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Long v. Zeller

United States District Court, S.D. New York

October 30, 2017

ERIC J. LONG, Plaintiff,
v.
LESLIE ZELLER, SANTIAGO BAEZ, KRISTINA JENNEY, and STEVEN GIOE, Defendants.

          OPINION AND ORDER

          Vincent L. Briccetti, United States District Judge

         Plaintiff Eric Long, proceeding pro se and in forma pauperis, brings this action claiming defendants violated his rights under the Equal Protection Clause. (Doc. #2).

         Now pending before the Court are: (i) plaintiff's motion for emergency relief to enforce the terms of a custody and visitation order issued on consent by the Orange County Family Court (Doc. #3); (ii) plaintiff's motion for a temporary order granting therapeutic and off campus visitation with his daughter (Doc. #10); and (iii) defendants' motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) (Doc. #11).

         For the following reasons, defendants' motion is GRANTED. Plaintiff's motions are DENIED AS MOOT.

         BACKGROUND

         For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of the complaint as true, and draws all reasonable inferences in plaintiff's favor.

         Plaintiff's daughter, “ML, ” resides at Andrus, a private mental health facility in Yonkers, New York.

         Plaintiff alleges defendant Zeller, an administrator at Andrus, refuses to return plaintiff's telephone calls regarding scheduling visitation with ML. Plaintiff claims defendants Baez and Jenney, respectively a supervisor and clinician at Andrus, have failed to address his concerns about ML, and intentionally have withheld information that is vital to understanding ML's condition. Plaintiff alleges defendant Gioe, a clinician at Andrus, is acting at the behest of defendant Baez and refusing to make ML available for therapy, or allow plaintiff to participate in ML's therapy. Plaintiff claims defendants' actions have caused him emotional distress and damaged his relationship with ML.

         Attached to the complaint is a copy of a Custody and Visitation Order On Consent issued by Judge Lori Currier Woods of the Orange County Family Court. (Compl. at 8-10). Regarding plaintiff's visitation with ML, the Order states that plaintiff “may participate in the therapy, visitation and mental health treatment within the parameters established by the facility [ML] is currently in and all subsequent facilities [ML] may reside in.” (Id. at 9). The Order further states, “this Order shall be enforceable by any police or peace officer.” (Id.).

         Plaintiff seeks an Order granting similar visitation rights, specifically: “weekly counseling sessions and off campus visits every other Saturday between 10 a.m. and 6 p.m.” (Compl. at 6). Plaintiff further seeks a thirty day jail sentence for defendants, should they fail to comply with the Court's Order.

         DISCUSSION

         I. Legal Standard

         “[F]ederal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (internal quotation marks omitted). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation marks omitted). The party invoking the Court's jurisdiction bears the burden of establishing that jurisdiction exists. Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009). If this Court determines at any time that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). To do otherwise would be a usurpation of state power.

         II. Domestic Relations Exception to ...


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