United States District Court, S.D. New York
ERIC J. LONG, Plaintiff,
LESLIE ZELLER, SANTIAGO BAEZ, KRISTINA JENNEY, and STEVEN GIOE, Defendants.
OPINION AND ORDER
Vincent L. Briccetti, United States District Judge
Eric Long, proceeding pro se and in forma
pauperis, brings this action claiming defendants
violated his rights under the Equal Protection Clause. (Doc.
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).
following reasons, defendants' motion is GRANTED.
Plaintiff's motions are DENIED AS MOOT.
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.
daughter, “ML, ” resides at Andrus, a private
mental health facility in Yonkers, New York.
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.
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.”
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.
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.
Domestic Relations Exception to ...