Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Modica v. Wolf

United States District Court, E.D. New York

June 20, 2017

NICOLE E. MODICA, Plaintiff,


          ROSLYNN R. MAUSKOPF, United States District Judge.

         Plaintiff 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.


         Modica 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.)[2] 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.)


         Under 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).

         At the 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").

         A 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).


         I. Domestic Relations Exception

         The 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)).

         Although 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 family court).

         Here, 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.

         Further, 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), ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.