United States District Court, E.D. New York
NICOLE E. MODICA, Plaintiff,
HON. KAREN WOLF; CHILDREN'S AID SOCIETY; and ADMINISTRATION FOR CHILDREN'S SERVS., Defendants.
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, United States District Judge.
Nicole E. Modica filed this pro se action pursuant
to 42 U.S.C. § 1983, seeking certain relief related to
the custody of her child. For purposes of this Order, the
Court grants Modica's request to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. For the
reasons discussed below, all claims asserted by Modica are
dismissed for lack of subject matter jurisdiction.
alleges that her son was removed from her custody by the
Children's Aid Society and the New York City
Administration for Children's Services ("ACS").
Following a family court proceeding, Modica was found guilty
of child neglect. (Compl. (Doc. No. 1) at 14.) It appears that
her child is currently in the custody of Modica's father.
Modica asks this Court to do the following: (1) return her
son to her custody; (2) direct ACS to pay for counseling; and
(3) impeach Judge Wolf. Modica also seeks 15 million dollars
in damages. (Id. at 6.)
28 U.S.C. § 1915(e)(2)(B), a district court shall
dismiss an in forma pauperis action where it is
satisfied that the action "(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief." An action is
"frivolous" when either: (1) "the 'factual
contentions are clearly baseless.' such as when
allegations are the product of delusion or fantasy": or
(2) "the claim is 'based on an indisputably
meritless legal theory.'" Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998) (internal citation omitted).
pleadings stage of the proceeding, the Court must assume the
truth of "all well-pleaded, nonconclusory factual
allegations" in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010),
aff'd, 133 S.Ct. 1659 (2013) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678-78 (2009)). A
complaint must plead sufficient facts to "state a claim
to relief that is plausible on its face." Bell All.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678 (internal
citations omitted). The Court must be mindful that a pro
se plaintiffs pleadings should be held "to less
stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 104-05 (1976)); see also Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court "remain[s] obligated to
construe a pro se complaint liberally").
plaintiff seeking to bring a lawsuit in federal court must
establish that the court has subject matter jurisdiction over
the action. See, e.g., Rene v. Citibank NA, 32
F.Supp.2d 539, 541-42 (E.D.N.Y. 1999). "[F]ailure of
subject matter jurisdiction is not waivable and may be raised
at any time by a party or by the court sua sponte.
If subject matter jurisdiction is lacking, the action must be
dismissed." Lyndonville Sav. Bank & Trust Co. v.
Lussier, 211 F.3d 697, 700-01 (2d Cir.2000) (citations
omitted); see Fed. R. Civ. P. 12(h)(3).
Domestic Relations Exception
domestic relations exception '"divests the federal
courts of power to issue divorce, alimony, and child custody
decrees."' Sobel v. Prudenti, 25 F.Supp.3d
340, 353 (E.D.N.Y. 2014) (quoting Akenbrmdt v.
Richards, 504 U.S. 689, 703 (1992)). The exception
"stems from 'the policy consideration that the
states have traditionally adjudicated marital and child
custody disputes and therefore have developed competence and
expertise in adjudicating such matters, which federal courts
lack.'" Id. (quoting Thomas v. New York
City, 814 F.Supp. 1139, 1146 (E.D.N.Y. 1993)).
the exception is narrow, it applies where the essence of a
plaintiff s suit involves an issue such as custody.
Schottel v. Kuiba, No. 06-CV-1577 (JON) (SS) (JSR),
2009 WL 230106, at *1 (2d. Cir. Feb. 2, 2009). Federal courts
have discretion to abstain from exercising jurisdiction over
issues that "begin and end" in a domestic dispute
where full and fair adjudication is available in state
courts; such abstention may apply to civil rights actions.
Id.; see also Martinez v. Queens Cty. Dist. Atty.,
No. 12-CV-6262 (RRM), 2014 WL 1011054, at *9 (E.D.N.Y.
Mar. 17, 2014), aff'd, 596 F.App'x 10 (2d
Cir. 2015) (finding that all questions that begin and end in
the domestic dispute should be adjudicated in the state
although Modica alludes to violations of her constitutional
rights, she seeks to have this Court intervene and consider a
child custody matter that has already been considered by the
state court. Under the domestic relations exception, this
Court cannot provide the relief Modica seeks. Sobel,
25 F. Supp, 3d at 354.
to the extent that Modica seeks to have this Court revisit or
overturn the state court's determination concerning
custody of her son, the Court is barred by the
Rooker-Feldman abstention doctrine. See Exxon
Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S.
280, 284 (2005); see generally B.C. Court of Appeals v.
Feldman,460 U.S. 462, 482-86 (1983) and Rooker v.
Fidelity Trust Co.,263 U.S. 413, 415-16 (1923). Modica
may not seek to collaterally attack in this Court the state
court orders relating to the custody proceeding. See,
e.g., Graham v. Criminal Court of the City of N.Y., No.
15-CV-337 (PKC), 2015 WL 427981, at *4 (E.D.N.Y. Feb. 2,
2015); Johnson v. Myers, No. 10-CV-1964 (JS), ...