United States District Court, S.D. New York
ESTATE OF M.D., by LOUIS DeCOSMO, Administrator, and J.D., a minor, by LOUIS DeCOSMO, his father and natural guardian, Plaintiffs,
STATE OF NEW YORK, NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, DUTCHESS COUNTY, DEPARTMENT OF COMMUNITY AND FAMILY SERVICES OF DUTCHESS COUNTY, ROBERT ALLERS, ALISON STERLING, MONICA BALASSONE, ULSTER COUNTY, ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES, MICHAEL IAPOCE, KENNETH STAHLI, and KAITLIN WOLFERT, Defendants.
Michael D. Pomerantz, Esq. Marrone Law Firm, L.L.C.
Philadelphia, PA Counsel for Plaintiff
L. Kraft, Esq. Counsel for Defendants the State of New York
and New York State Office of Children and Family Services
L. Posner, Esq. McCabe & Mack LLP Counsel for Defendants
Dutchess County, Department of Community and Family Services
of Dutchess County, Robert Allers, Alison Sterling, and
Michael T. Cook, Esq. Cook, Netter, Cloonan, Kurtz &
Murphy, P.C. Counsel for Defendants Ulster County, Ulster
County Department of Social Services, and Michael Iapoce
OPINION & ORDER
KENNETH M. KARAS UNITED STATES DISTRICT JUDGE
DeCosmo (“DeCosmo”), as administrator of the
estate of M.D., and as father and natural guardian of J.D., a
minor (“Plaintiffs”), bring this Action against
Defendants the State of New York, New York State Office of
Children and Family Services (“OCFS, ” and
together with the State of New York, “State
Defendants”), Dutchess County, Department of Community
and Family Services of Dutchess County (“Dutchess
DCFS”), Robert Allers (“Allers”), Alison
Sterling (“Sterling”), Monica Balassone
(“Balassone, ” and together with Dutchess County,
Dutchess DCFS, Allers, and Sterling, the “Dutchess
Defendants”), Ulster County, Ulster County Department
of Social Services (“Ulster DSS”), Michael Iapoce
(“Iapoce, ” and together with Ulster County and
Ulster DSS, the “Ulster Defendants”), Kenneth
Stahli (“Stahli”), and Katlin Wolfert
(“Wolfert”), alleging violations of
Plaintiffs' constitutional rights. (See Second
Am. Compl. (“SAC”) (Dkt. No. 78).) Plaintiffs also
bring claims of negligence, assault and battery, wrongful
death, and survival action under state law. (Id.)
Before the Court are Motions To Dismiss on behalf of State
Defendants, Dutchess Defendants, and Ulster Defendants (the
“Motions”). (See Dkt. Nos. 84, 86,
For the reasons to follow, the Motions are granted.
following facts are taken from Plaintiffs' SAC and are
assumed true for the purpose of resolving the instant
beginning of May 2014, DeCosmo, J.D., M.D., and Defendant
Wolfert resided together in Poughkeepsie, New York. (SAC
¶ 25.) At the time, J.D. was four months old and
Decedent M.D. was two and one-half years old. (Id.)
The four had lived together since the birth of M.D.
(Id.) Plaintiff DeCosmo, who is blind, was employed
as a disc jockey at a local radio station and was an active
parent to J.D. and M.D. (Id. ¶¶ 26-27.)
period of time leading up to May 2014, DeCosmo and
Wolfert's relationship “had deteriorated to the
point where the couple was no longer close.”
(Id. ¶ 26.) On May 1, 2014, a verbal argument
occurred between DeCosmo and Wolfert and Wolfert
“struck DeCosmo in the face with her fist.”
(Id. ¶ 28.) Following the incident, Wolfert
made an ex parte application to Dutchess County Family Court
(“DCFC”) for a restraining order that would
prohibit DeCosmo from entering their home. (Id.
¶ 29.) On May 5, 2014, DCFC granted Wolfert's
application, (id. ¶ 30), and on May 12, 2014,
DCFC entered an amended temporary restraining order that
granted DeCosmo access to the home, if accompanied by law
enforcement, for the purpose of retrieving his personal
property, (id. ¶ 31). DeCosmo was not allowed,
by virtue of a temporary restraining order, to continue to
provide care to J.D. and M.D. (Id. ¶ 32.)
result of the violent incident between DeCosmo and Wolfert,
Defendants OCFS, DCFS, and Allers opened a child protective
services (“CPS”) file in relation to M.D. and
J.D. (Id. ¶ 33.) The CPS file was assigned to
Defendant Sterling, who was supervised by Defendant
Balassone. (Id. ¶¶ 34-35.) Sterling
visited the home and interviewed Wolfert twice a month from
May to June 2014. (Id. ¶¶ 36-37.)
beginning of June 2014, Wolfert began a relationship with
Defendant Stahli. (Id. ¶ 38.) During June 2014,
Defendants Sterling and Balassone indicated in the CPS case
file that Defendant Wolfert's home was safe for M.D. and
J.D. (Id. ¶ 43.) Accordingly, Defendants
Sterling and Balassone determined that the Dutchess CPS case
file for M.D. and J.D. should be closed, (id. ¶
46), and recommended against the provision of family support
services, (id. ¶ 47).
allege that this was a reckless decision and resulted from a
“lack of proper training, the overburdened nature of
the CPS system[, ] and the excessive caseload on social
workers and supervisors.” (Id. ¶ 50.)
According to Plaintiffs, these deficiencies were “part
of a longstanding and widespread custom and/or practice that
was known to Defendants State of New York, OCFS, Dutchess
County, DCFS, and Allers, acting through high-level
policymakers with final authority or so widespread that
they should have known of such custom and/or practice of
incomplete and inaccurate CPS investigations.”
(Id. ¶ 53.)
around July 6, 2014, Wolfert moved with M.D. and J.D. to
Milton, New York, in Ulster County. (Id.
¶¶ 57, 60.) Stahli also moved into Wolfert's new
home with her children and became their sole caretaker while
Wolfert worked during the day. (Id. ¶¶
60-61.) During the following month, Wolfert and Stahli
“engaged in a drug fueled pattern of abuse, physical
battering[, ] and torture.” (Id. ¶ 62.)
On August 5, 2014, an emergency medical technician and
paramedic were called to Wolfert's home and encountered
an unresponsive M.D. with visible bruising on his body.
(Id. ¶ 63.) The paramedic attempted to perform
life-saving measures on M.D., but they were unsuccessful.
(Id. ¶ 64.) An autopsy performed on M.D.
revealed that he had suffered internal bleeding from a
lacerated pancreas and liver, brain injuries, a lacerated
frenulum, a subdural hematoma, and a broken rib.
(Id. ¶ 65.) The post-mortem examination also
revealed the presence of heroin in M.D.'s body.
examination of J.D. at the time of M.D.'s death revealed
“a double ear infection, a 101 [degree] fever, severe
eczema . . . and very inflamed nipples, with a hickey-type
injury about two inches below the right nipple.”
(Id. ¶ 71.) Following M.D.'s death, J.D.
was removed from Wolfert's home and is currently in the
custody of DeCosmo. (Id. ¶ 70.) On May 8, 2015,
following a jury trial in Ulster County, Stahli was convicted
of the murder of M.D. and is currently serving a sentence of
25 years to life in prison. (Id. ¶¶ 66,
assert nine counts against various Defendants for violation
of Plaintiffs' rights under the Fourth and Fourteenth
Amendments, supervisory liability, Monell liability,
assault and battery, negligence, wrongful death, and survival
action, (see Id. ¶¶ 78-132), seeking
monetary and punitive damages, as well as interest, costs,
and attorney's fees, (see id.).
filed their initial Complaint on August 20, 2015. (Dkt. No.
Plaintiffs filed an Amended Complaint on September 1, 2015,
(Dkt. No. 28), and the Second Amended Complaint on February
8, 2016. (Dkt. No. 78.) On March 28, 2016, State Defendants
filed a Motion To Dismiss and accompanying memorandum of law,
(Dkt. Nos. 84-85), and on the same day, Dutchess Defendants
filed a Motion To Dismiss and accompanying papers, (Dkt. Nos.
86- 92). On March 29, 2016, Ulster Defendants filed a Motion
To Dismiss and accompanying papers. (Dkt. Nos. 94-98.) On May
12, 2016, Plaintiffs filed oppositions to each Motion To
Dismiss, (Dkt. Nos. 99-101), and State, Dutchess, and Ulster
Defendants each filed a reply on May 26, 2016, (Dkt. Nos.
Standard of Review
Supreme Court has held that although a complaint “does
not need detailed factual allegations” to survive a
motion to dismiss, “a plaintiff's obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and internal quotation marks omitted). Indeed,
Rule 8 of the Federal Rules of Civil Procedure “demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “Nor does a complaint suffice if it tenders
naked assertions devoid of further factual
enhancement.” Id. (alteration and internal
quotation marks omitted). Rather, a complaint's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. Although “once a
claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in
the complaint, ” id. at 563, and a plaintiff
must allege “only enough facts to state a claim to
relief that is plausible on its face, ” id. at
570, if a plaintiff has not “nudged [his] claims across
the line from conceivable to plausible, the complaint must
be dismissed, ” id.; see also Iqbal,
556 U.S. at 679 (“Determining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief.'” (second alteration
in original) (citation omitted) (quoting Fed.R.Civ.P.
8(a)(2))); id. at 678-79 (“Rule 8 marks a
notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing
more than conclusions.”).
ruling on a defendant's motion to dismiss, a judge must
accept as true all of the factual allegations contained in
the complaint, ” Erickson v. Pardus, 551 U.S.
89, 94 (2007), and “draw all reasonable inferences in
favor of the plaintiff, ” Daniel v. T & M Prot.
Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014)
(citing Koch v. Christie's Int'l PLC, 699
F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n
adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of
which judicial notice may be taken.” Leonard F. v.
Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Wang v.
Palmisano, 157 F.Supp.3d 306, 317 (S.D.N.Y. 2016)
Plaintiffs' Claims Against State Defendants
noted, Plaintiffs allege that the “deficiencies in the
CPS investigation . . . which brought about the death of M.D.
and the injuries suffered by J.D. . . . were part of a
longstanding and widespread custom and/or practice that was
known to Defendants State of New York . . . [and] OCFS . . .,
acting through high-level policymakers with final authority
[who] deliberately chose not to pursue a different course of
action.” (SAC ¶ 54.) Similarly, Plaintiffs aver
that “the active and affirmative conduct of Defendants
Alison Sterling and Monica Balasone were the result of
decisions by Defendants State of New York . . . [and] OCFS .
. ., acting through high-level policymakers with final
authority and/or acquiescing to a longstanding custom and/or
practice known to such high-level policymakers.”
(Id. ¶ 55.) Plaintiffs further allege that
during the final weeks of Decedent M.D.'s life, witnesses
to the abuse committed by Defendants Wolfert and Stahli
“called anonymous child abuse ‘tip lines'
maintained by Defendants State of New York” and that
despite receiving such information, “Defendant State
of New York . . . did not initiate any CPS investigation or
assign any caseworker.” (Id. ¶ 69.)
their Motion To Dismiss, State Defendants argue that
“Plaintiffs' claims against State Defendants are
barred by the Eleventh Amendment.” (See Mem.
of Law in Supp. of State Defs.' Mot. To Dismiss 5 (Dkt.
No. 85).) The Eleventh Amendment provides that “[t]he
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign
State.” U.S. Const. amend. XI. The Amendment prohibits
suits against a state in federal court unless the state
consents or there has been a valid abrogation of its
sovereign immunity by an act of Congress. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01
(1984). “[Section] 1983 does not explicitly and by
clear language indicate on its face an intent to sweep away
the immunity of the States; nor does it have a history which
focuses directly on the question of state liability and which
shows that Congress considered and firmly decided to abrogate
the Eleventh Amendment immunity of the States.”
Quern v. Jordan, 440 U.S. 332, 345 (1979); see
also Davis v. New York, 316 F.3d 93, 101 (2d
Cir. 2002) (affirming dismissal of § 1983 claims for
damages against state on Eleventh Amendment
sovereign immunity extends to state agencies that constitute
“arms of the state.” See N. Ins. Co. of N.Y.
v. Chatham County, 547 U.S. 189, 193 (2006); see
also Jones v. N.Y. State Div. of Military & Naval
Affairs, 166 F.3d 45, 49 (2d Cir. 1999) (holding that
the Eleventh Amendment bars § 1983 suits against state
agencies). Here, OCFS is properly characterized as an
“arm of the state.” See Hale v. Mann,
219 F.3d 61, 67-69 (2d Cir. 2000) (granting immunity under
the Eleventh amendment to OCFS in the context of a Family
Medical Leave Act suit); Rivera v. Mattingly, 604
F.Supp.2d 634, 638 (S.D.N.Y. 2009) (finding official capacity
claims against OCFS Commissioner barred by Eleventh
response to State Defendants' Motion, Plaintiffs argue
that “[t]he Eleventh Amendment . . . is not truly a
limit on subject matter jurisdiction, but rather a block on
the exercise of jurisdiction that still exists.”
(Pls.' Resp. in Opp'n to Defs. State of New York and
New York State Office of Children and Family Servs.' Mot.
To Dismiss (“Pls.' State Opp'n”) 2 (Dkt.
No. 101).) Plaintiffs offer no further explanation of this
claim, whatever it is. Plaintiffs further assert that
OCFS's assertions of immunity are unavailing because
under Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978), a municipal agency is
considered a “person” subject to suit, (Pls.'
State Opp'n 2-3). As the Supreme Court made clear in
Will v. Mich. Dep't of State Police, 491 U.S. 58
(1989), “it does not follow that if municipalities are
persons [under Monell] then so are States.”
Id. at 70. “States are protected by the
Eleventh Amendment while municipalities are not . . . and . .
. [the] holding in Monell [was limited] to local
government units which are not considered part of the State
for Eleventh Amendment purposes.” Id.
(citation and internal quotation marks omitted).
New York State has not waived its Eleventh Amendment
immunity, nor has Congress abrogated the state's immunity
under § 1983, this Court lacks subject matter
jurisdiction over Plaintiffs' claims against the State of
New York and OCFS. ...