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Mortimer v. City of New York

United States District Court, S.D. New York

March 29, 2018

KIM MORTIMER and C.S., Plaintiffs,
CITY OF NEW YORK; CHILDREN'S VILLAGE; NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES “ACS” WORKER BEVERLY BOOKER, in her individual and official capacity; ACS WORKER BEVERLY WILSON, in her individual and official capacity; ACS INVESTIGATIVE CONSULTANT KEITH HAYMES, in his individual and official capacity; ACS WORKER RAY SALINAS, in his individual and official capacity; ACS SUPERVISOR JACQUELINE CALDWELL, in her individual and official capacity; ACS WORKER KATHERINE VARGAS, in her individual and official capacity; ACS WORKER MARLENE BARNES, in he individual and official capacity; ACS SUPERVISOR GLENDORA OSBORNE, in her individual and official capacity; ACS SUPERVISOR MYRIAM CASTAN, in her individual and official capacity; ACS SUPERVISOR KIM VORHEES, in her individual and official capacity; ACS SUPERVISOR SHARLENE BROWNE, in he individual and official capacity; JOHN/JANE DOE ACS SUPERVISORS 1-3 CHILDREN'S VILLAGE WORKER SHELLEY WHITE, in her individual and official capacity; CHILDREN'S VILLAGE PHYSICIAN DOUGLAS WAITE, in his individual and official capacity; NYPD OFFICER ANCION, in his individual and official capacity; NYPD HOUSING OFFICE JANET CARABALLO, in her individual and official capacity; NYPD OFFICER ARRIAGA in his individual and official capacity; NYPD OFFICER LOPEZ, in her individual and official capacity; NYPD OFFICER STENA, in his individual and official capacity; NYPD OFFICER SHELLEY, in his individual and official capacity; NYPD OFFICER KYLE HURST, in his individual and official capacity; NYPD OFFICER JOE DURROWES, in his individual and official capacity; JOHN/JANE DOE NYPD OFFICERS 1-7; ASSISTANT DISTRICT ATTORNEY TIMOTHY DUDA, in his individual and official capacity; Defendants.


          KATHERINE POLK FAILLA United States District Judge

         Plaintiff Kim Mortimer and her son C.S.[1] (together, “Plaintiffs”) bring this civil rights action under 42 U.S.C. § 1983 against the City of New York (the “City”), several caseworkers and supervisors at the Administration for Children's Services (the “ACS Defendants”), officers of the New York City Police Department (the “NYPD Defendants”), Children's Village and two of its employees (the “Children's Village Defendants”), and Assistant District Attorney (“ADA”) Timothy Duda (collectively, “Defendants”). Plaintiffs bring these claims, voiced primarily through Mortimer, to seek redress for alleged constitutional violations stemming from a series of events in 2014 that led first to C.S.'s arrest and removal from Mortimer's home and ultimately to C.S.'s flight to Germany and Mortimer's arrest thereafter.

         Defendants hold a different view of these events, and now move as follows: (i) the ACS Defendants, (ii) the Children's Village Defendants, and (iii) ADA Duda separately move to dismiss under Federal Rule of Civil Procedure 12(b)(6); (iv) the Children's Village Defendants also move to dismiss under Rule 12(b)(1); and (v) the NYPD Defendants move for judgment on the pleadings under Rule 12(c) or, in the alternative, for summary judgment under Rule 56(a). At this procedural juncture, and with limited exceptions discussed in this Opinion, the Court must accept the well-pleaded allegations in Plaintiffs' Third Amended Complaint (“TAC”). Accordingly, and as detailed herein, the motions are granted in part and denied in part.


         A. Factual Background

         1. Plaintiffs Arrive in New York and Are Investigated by ACS

         Mortimer and her teenage son C.S. arrived in New York in June 2013 from London, having moved here to be closer to Mortimer's mother (and C.S.'s grandmother). (TAC ¶¶ 31-34, 39). In November 2013, Plaintiffs “had a verbal dispute about leaving New York” - C.S. wanted to return to Europe, but Mortimer needed to stay in New York to help her mother. (Id. at ¶¶ 37-38). Following this dispute, C.S. “attempted to [break] into his home” when Mortimer was not there in order to “get … his vital documents” that would permit him to leave New York. (Id. at ¶ 40). For this, C.S. was “arrested but not charged and ACS was notified.” (Id. at ¶ 41). On December 9, 2013, ACS Caseworker Katherine Vargas “reported [ ] Mortimer as an abuser” and assigned ACS Caseworker Ray Salinas to investigate. (Id. at ¶¶ 42-44). Plaintiffs allege that Salinas interviewed C.S. alone, without Mortimer's knowledge or permission, on December 9, 2013; December 10, 2013; January 5, 2014; and February 4, 2014. (Id. at ¶¶ 45-49, 58, 77-78, 101). Plaintiffs clarify in their opposition brief that Salinas's investigation was conducted by order of Family Court Judge Adetokunbo O. Fasanya, and that “[C.S.'s] grandmother initiated [c]ustody/[v]isitation [p]roceedings against Mortimer[.]” (Pl. Opp. 3).

         According to the TAC, Salinas reported in his file that C.S. told him that he wanted to live with his grandmother and that Mortimer “slapped him once for saying the word ‘whatever' multiple times, ” but that C.S. also “changed his mind often with respect to his ideal living situation, ” stating later that he wished to live with his father in Spain and, eventually, that he wanted to remain with Mortimer. (TAC ¶¶ 52-54, 67-68). Salinas also interviewed C.S.'s grandmother about allegations of “excessive corporal punishment, ” which allegations Plaintiffs vigorously deny. (Id. at ¶¶ 50, 56; see, e.g., id. at ¶ 55). Plaintiffs state that C.S.'s grandmother told Salinas that Plaintiffs had disputes over C.S.'s performance in school, but that she “had never seen [ ] Mortimer hit [C.S.]; that she had never seen any marks on [C.S.]; and that if she ever did see marks on [C.S.] she would report it.” (Id. at ¶ 57).

         Plaintiffs allege that Salinas told C.S. that C.S. “would be ‘better off' living and remaining with his father … in Spain, ” despite Salinas having never met or spoken to C.S.'s father and having “no factual knowledge of whether [C.S.'s father] had the financial means, emotional maturity[, ] and psychological stability to be an appropriate resource for his son[.]” (TAC ¶¶ 69-71). On December 13, 2013, Mortimer confronted Salinas “about the inappropriateness of his comments, ” and Salinas denied making them. (Id. at ¶¶ 72-73). Mortimer then filed a written complaint against Salinas that she sent to ACS Caseworker Vargas and ACS Supervisor Vorhees. (Id. at ¶ 74). Plaintiffs allege that “Vorhees was extremely unprofessional in her handling of” the complaint, but do not explain how so. (Id. at ¶ 75). Ultimately, Plaintiffs allege, C.S. returned to live with Mortimer “without any ACS intervention.” (Id. at ¶ 76).[3]

         On December 16, 2013, Salinas interviewed Mortimer and told her that she was required to register with the New York City Department of Education if she wished to homeschool C.S. (TAC ¶ 60). With Salinas's help, Mortimer filled out the registration papers. (Id. at ¶ 62). Salinas told her that she would have 30 days to complete the process, and Plaintiffs allege that Mortimer complied. (Id. at ¶¶ 64-65). Salinas returned to Plaintiffs' home on February 4, 2014, to ascertain whether Mortimer had completed the registration process. (Id. at ¶ 97). Plaintiffs told Salinas that Mortimer had filled out the forms; Salinas interviewed C.S. in private and then left the home. (Id. at ¶¶ 98-101).

         On March 6, 2014, [4] Vargas instructed Salinas to “indicate[] the case for inadequate guardianship and educational neglect, ” as well as “[l]acerations, [b]ruises, [w]elts and excessive corporal punishment.” (TAC ¶¶ 79, 88).[5]Plaintiffs allege that C.S.'s exemplary standardized test scores belie any allegation of educational neglect. (Id. at ¶¶ 81-87). Mortimer claims not to have been notified that she was the subject of these allegations, but only to have learned later that the charges had been deemed unfounded. (Id. at ¶¶ 80, 89-90, 119). Plaintiffs allege that “Vargas … and Vorhees were directly responsible for creating the false narrative against [ ] Mortimer, ” by, among other things, instructing Salinas to accuse Mortimer of neglect and generate a file against her. (Id. at ¶¶ 91-94). The “fabrications” in this file, by Plaintiff's telling, “set off a chain of events” that (i) resulted in further lies that were used to justify the unlawful removal of C.S. from Mortimer's custody, (ii) “established a global case ‘theme' of [ ] Mortimer as a physical abuser of [C.S.], ” and (iii) “signaled that [Plaintiffs'] relationship should receive a high level of intervention going forward.” (Id. at ¶¶ 95-96). Plaintiffs allege that, throughout this time, C.S. was adequately cared for by Mortimer and her mother. (Id. at ¶ 110).

         2. Plaintiffs' April 2014 Dispute Leads to C.S.'s Arrest

         On April 12, 2014, about one month after allegations of neglect were first made against Mortimer, she and C.S. had a dispute when C.S. returned home past his curfew at 2:30 a.m. (TAC ¶¶ 120-23). Plaintiffs allege that Mortimer was upset with C.S. and that she “was distracted by their exchange and the door accidentally closed on her finger.” (Id.). Mortimer went around the corner to her friend's building and asked the doorman to call 911 because she “needed stitches.” (Id. at ¶ 124). Defendant Officers Durrowes and Hurst responded to the call, and Mortimer explained to them that she and C.S. had a dispute during which a door had accidentally closed on her finger. (Id. at ¶ 126).

         Mortimer was eventually taken to a hospital and made a formal statement to Hurst and Durrowes while she was there. (TAC ¶ 127). Plaintiffs allege that Durrowes “recorded in his incident report that [C.S.] had wielded no weapon against [Mortimer].” (Id. at ¶ 129). Durrowes and Hurst are also alleged to have interviewed C.S. at the 24th Precinct without reading him his Miranda rights, during which interview they “falsely told [C.S.] that [ ] Mortimer had accused him of cutting her finger[.]” (Id. at ¶¶ 130-31). Plaintiffs further allege that this false accusation “prompt[ed C.S.] to make negative statements [about] Mortimer, ” including that she “cut herself on the finger in order to now falsely blame [C.S.]” for her injury. (Id. at ¶¶ 131-33). Durrowes and Hurst allegedly used unspecified improper methods to induce C.S. to confess to injuring Mortimer. (Id. at ¶ 136).

         Following this incident, C.S. was “arrested and charged with [seven] counts of multiple offenses[, ] one of which was [third degree] assault” during which he possessed a “deadly weapon, dangerous instrument[, ] and what appeared to be a pistol and other firearm.” (TAC ¶¶ 137-38). Plaintiffs allege that Hurst “submitted his false version of [C.S.'s] confession to the New York County District Attorney's Office” and that Durrowes failed to intervene “to correct this fabrication.” (Id. at ¶¶ 144-45).

         After C.S. was arrested, Mortimer set out to look for him. On April 13, 2014, she went to the 24th Precinct, but officers there told her that C.S. had been “taken to the Manhattan[] Central Booking Detention Cent[er] [‘MDC'] to be processed, fingerprinted, and videotaped.” (TAC ¶¶ 148-49). When Mortimer arrived at the MDC, she was told that C.S. “had been transferred to the New York City Criminal Courthouse.” (Id. at ¶ 164). Once there, Mortimer learned that C.S. was being arraigned on “seven counts of assault with a dangerous weapon and … a deadly firearm.” (Id. at ¶ 168).

         Plaintiffs allege that, also on April 12, 2014, ACS employees Woods, Vazquez, and Baker “unlawfully entered” Mortimer's home and that, even though Mortimer spoke to them, they did not tell her that C.S. had been moved from the 24th Precinct to the MDC and, later, to the courthouse “to be arraigned … and sent to [Rikers] Island.” (Id. at ¶¶ 151-59).[6]

         3. C.S. Is Interviewed by ADA Duda and an Order of Protection Is Issued

         Plaintiffs allege that ADA Duda interrogated C.S. without reading him his Miranda rights and without an attorney, and proceeded to “unlawfully videotape[]” him. (TAC ¶¶ 172-74). ADA Duda then reported to ACS employee Woods “that [C.S.] was arrested … for assaulting [ ] Mortimer, ” and that C.S. “was being physically abused for performing poorly in school[] and performing poorly in his extracurricular activities for the last three years.” (Id. at ¶¶ 175-77). Plaintiffs allege that these accusations conflict with Mortimer's statements that she never abused C.S. and that he excelled in his home-schooling program and extracurricular activities. (Id. at ¶¶ 178-80).

         Plaintiffs further allege that ADA Duda reported the following to ACS regarding the April 12, 2014 incident: (i) C.S. went to Mortimer's home that day “to retrieve his clothing” but Mortimer “would not let him in”; (ii) Mortimer “was holding pliers in her hand”; and (iii) Mortimer “cut herself with the pliers.” (TAC ¶¶ 181-87). Plaintiffs assert that these statements were false when made by ADA Duda. (Id.). Based on this account of the April 12, 2014 events, ADA Duda obtained an order of protection to keep C.S. from entering Mortimer's home. (Id. at ¶ 191). Mortimer objected to the order and states that it was “manifestly unreasonable” and forced C.S. to reside outside her home, thereby infringing on Plaintiffs' “family-togetherness rights.” (Id. at ¶¶ 192-95, 199). ADA Duda also fostered the “global case ‘theme'” that Mortimer had physically abused C.S., and “unlawfully signaled that [Plaintiffs'] relationship should receive a high level of intervention going forward.” (Id. at ¶¶ 202-03). Plaintiffs allege that the order of protection was eventually vacated and C.S. returned to Mortimer's home, though Plaintiffs do not specify when C.S. returned. (Id. at ¶ 204).

         4. ACS Continues to Visit Plaintiffs in April 2014

         On April 14, 2014, following ADA Duda's report to ACS, Defendant ACS Caseworker Wilson was assigned to investigate. (TAC ¶¶ 205-06). She interviewed C.S. alone and without Mortimer's knowledge or consent. (Id. at ¶¶ 206-07). Wilson visited Mortimer's home and “stated she wanted to have a family meeting with C.S., ” but Mortimer explained that would not be possible in light of the order of protection. (Id. at ¶¶ 208-10). Plaintiffs allege that Wilson “insisted” they have the meeting, but Mortimer stated she would not violate the order of protection. (Id. at ¶¶ 211-12). When Wilson reached out to ADA Duda to inquire about the order of protection, he stated he was not aware of any such order but, Plaintiffs claim, he reiterated to Wilson that C.S. had told him that Mortimer had cut her own finger during the April 12, 2014 incident in an effort to frame C.S. (Id. at ¶¶ 213-15). Plaintiffs allege that ADA Duda failed to explain that C.S. had been coerced into making that statement and, further, that Wilson had noted in her file that she found C.S. to be “misleading.” (Id. at ¶¶ 216-17).

         Plaintiffs allege that Wilson failed to conduct an independent investigation of ADA Duda's claim, did not give appropriate weight to Mortimer's statement that the finger injury was an accident, and unreasonably accepted ADA Duda's and the NYPD Defendants' “unreliable and unreasonable” findings, which Wilson either knew or should have known were false. (TAC ¶¶ 218-21). On June 5, 2014, and July 8, 2014, Wilson interviewed C.S. alone and without Mortimer's knowledge or consent. (Id. at ¶¶ 223, 225). Thereafter, “Wilson substantiated an abuse and neglect finding” that was “objectively unreasonable and … implausible based on the record.” (Id. at ¶¶ 227-28). Plaintiffs allege that ACS Defendants Barnes, Osborne, Browne, Castan, Booker, Vorhees, Vargas, and Caldwell were Wilson's supervisors and likewise “failed to properly investigate the facts.” (Id. at ¶¶ 229-30).

         5. Plaintiffs' July 2014 Dispute Leads to C.S.'s Removal from Mortimer's Home

         On or about July 23, 2014, Plaintiffs “had a quarrel about [ ] Mortimer's rule that [C.S.] could not access his computer until he finished certain housework.” (TAC ¶ 231). “[C.S.] called 911 to report that [ ] Mortimer's computer-access rule” amounted to “theft of his property.” (Id. at ¶ 232). Defendant Officer Caraballo and a second, unnamed officer responded to the call. (Id. at ¶ 233). Plaintiffs allege that, during their dispute, Mortimer demanded that C.S. “give back to her the Oxford shirt he was wearing, ” that C.S. complied, and that Plaintiffs agreed that C.S. would stay with his grandmother “for a time.” (Id. at ¶¶ 234-36). Officer Caraballo “walked [C.S.] across the street and personally delivered him” to his grandmother's home. (Id. at ¶ 237). Plaintiffs allege that Caraballo later “called ACS” and “falsely reported” that Mortimer “had stripped [C.S.] down to his underwear.” (Id. at ¶¶ 238-39). On July 23, 2014, and July 24, 2014, ACS Caseworker Wilson again interviewed C.S. outside Mortimer's presence and Osborne allegedly approved Wilson's conduct. (Id. at ¶¶ 241-44).

         On August 1, 2014, Wilson initiated proceedings in Family Court “to remove C.S. from [ ] Mortimer's custody” and to have him “place[d] on non-kinship foster care.” (TAC ¶ 246). Plaintiffs allege that Wilson's actions were approved by her supervisors Caldwell and Booker, and that Wilson failed to notify Mortimer about the proceedings. (Id. at ¶ 248). Plaintiffs allege that Wilson's notes reflect that she spoke to Mortimer and put a notice “on the letterbox” in Mortimer's building on July 31, 2014, but assert that her notes are false and that no such notice was given. (Id. at ¶¶ 249-51). In consequence of Wilson's failure, Mortimer did not attend the hearing. (Id. at ¶ 252).

         Prior to the hearing, Wilson, Booker, and Caldwell met with C.S. to devise a “safety plan”; they excluded C.S.'s grandmother from this conversation, even though she had accompanied him to Family Court that day, and also excluded C.S.'s attorney. (TAC ¶¶ 253-54). Wilson, Booker, and Caldwell allegedly told C.S. that Mortimer “had been notified of the [c]onference and the [h]earing but did not want to come.” (Id. at ¶ 256). Plaintiffs allege that C.S. told Wilson, Booker, and Caldwell “that he wanted to live with his father … in Spain, ” and that Wilson, Booker, and Caldwell responded by telling C.S. that “he would go to jail if he tried to return to live with” his mother, thereby coercing him to say that he wanted to be placed in foster care while arrangements were made for him to live with his father. (Id. at ¶¶ 257-59). Plaintiffs allege that Wilson, Booker, and Caldwell improperly relied on C.S.'s statements alone and did not solicit the views of other family members in reaching their determination that “Mortimer had mental health issues.” (Id. at ¶¶ 260-61; see also Id. at ¶¶ 262-64). Plaintiffs further allege that Wilson, Booker, and Caldwell failed to consider the possibility of placing C.S. with his grandmother or with a friend of the family. (Id. at ¶¶ 265-66).

         The petition seeking removal of C.S. from Mortimer's custody “included an allegation of a slap, ” but failed to clarify that “Salinas'[s] records also indicated the allegation was unfounded.” (TAC ¶ 268). More broadly, Plaintiffs allege that Wilson - along with her supervisors Booker and Caldwell - knew that “Salinas had concluded that the [slap] allegation was unfounded, ” and that C.S. had been found to be “manipulative” and “misleading, ” but nonetheless commenced removal proceedings without probable cause and with unverified evidence. (Id. at ¶¶ 267-71).

         Plaintiffs allege that at the August 1, 2014 proceeding before Family Court Judge Susan Knipps, Wilson and Caldwell gave the following false and unsubstantiated testimony: (i) “Mortimer suffered from mental illness and was mentally unstable”; (ii) Mortimer failed to take “psychotropic medication”; (iii) Mortimer “had purposely cut herself when she was upset with her son, and then blamed her son”; (iv) C.S. could not be placed with his grandmother because an uncle who had an “unsafe alcohol problem” lived there; and (v) Wilson had provided Mortimer with notice of the hearing. (TAC ¶¶ 273-86). Wilson and Caldwell gave this testimony “to persuade Judge Knipps that [C.S.] was in imminent danger.” (Id. at ¶¶ 278-82). But Wilson “later testified … that she had not properly investigated the facts in her petitions” and that she had “only taped a notice to a mailbox in [Mortimer's] building.” (Id. at ¶¶ 281, 286). Plaintiffs allege that Wilson's actions were approved by ACS Supervisors Barnes, Osborne, Browne, Castan, Booker, and Caldwell. (Id. at ¶ 287).[7]

         On August 11, 2014, Mortimer discovered “a summons on the floor of her building about the Family Court proceedings”; the “summons did not say that [C.S.] had already been placed into non-kinship foster care, only that the possibility existed if [ ] Mortimer failed to appear on August 11, 2014.” (TAC ¶¶ 293-94). Plaintiffs allege that Mortimer “entered an appearance in the [F]amily [C]ourt proceedings” on August 11, 2014, and went to the 24th Precinct to ask about C.S.'s whereabouts. (Id. at ¶¶ 295-96). Once there, Mortimer was informed that C.S. had “been remanded to Children's Village Foster Home.” (Id. at ¶ 297). On August 22, 2014, Mortimer “received an email from her attorney confirming that [C.S.] had been remanded into foster care.” (Id. at ¶ 298).

         6. C.S. Is Placed in Foster Care but Absconds to Germany

         On August 1, 2014, C.S. was placed in foster care by Shelley White, a caseworker at Children's Village. (TAC ¶¶ 299-300). White visited Mortimer on August 11, 2014, and Mortimer told White that “under no circumstances were psychological tests to be performed on [C.S.]” and that “no vaccinations or medication was to be administered to [C.S.]” (Id. at ¶¶ 303-05). Plaintiffs allege that, earlier that year, “[o]n January 29, 2014[, ] Salinas noted that [C.S.] was current on his immunizations.” (Id. at ¶ 66). Mortimer also sent emails and letters to Children's Village reiterating that no vaccinations or medications were to be given to C.S. (Id. at ¶ 306).

         Despite Mortimer's entreaties, Children's Village obtained C.S.'s medical and educational records without Mortimer's consent - which records allegedly would have shown that C.S. was already immunized - and Dr. Waite administered eight vaccinations to C.S. and prescribed medication. (TAC ¶¶ 307-15). Dr. Lubliner, who is not a party to this action, also “performed psychological tests on [C.S.]” (Id. at ¶ 316). And Children's Village Caseworker White and ACS Caseworker Wilson interviewed C.S. without Mortimer's consent. (Id. at ¶ 317). Plaintiffs further allege that Children's Village was aware that C.S. “may have suffered from mental illness and suicidal tendencies, ” and that “Mortimer believes that [C.S.] was sexually assaulted at the Children's Village holding facility.” (Id. at ¶ 319).

         On August 27, 2014, C.S. was placed in a foster home on East 128th Street between Park Avenue and Lexington Avenue in Manhattan, which Plaintiffs allege was “unsafe and unhealthy, ” with the foster home located adjacent to a drug rehabilitation facility. (TAC ¶¶ 320-21). Plaintiffs allege that C.S.'s foster family should have known about C.S.'s mental health issues and suicidal tendencies and that they permitted C.S. to “wander the … streets and … return late at night[.]” (Id. at ¶ 323). On August 30, 2014, C.S. left his foster home and boarded a flight to Germany. (Id. at ¶¶ 325-26).

         7. Mortimer Is “Harassed” and Arrested

         Plaintiffs allege that after C.S. left for Germany, Children's Village - specifically Caseworker White - “continued to harass [ ] Mortimer, ” and that this harassment was “racially motivated.” (TAC ¶¶ 328-29). Namely, White entered Mortimer's home without her consent eight times in September 2014 and intercepted Mortimer's emails, phone calls, postal mail, and “other electronic mediums” from September to December 2014 without consent or a warrant. (Id. at ¶¶ 330-31).[8] Plaintiffs state that, on September 17, 2014, White “intercepted, signed and opened a FedEx package[] addressed to [ ] Mortimer.” (Id. at ¶ 332). The next day, the Family Court ordered Mortimer to turn over her passport and not leave New York or the United States for “over 365 days.” (Id. at ¶ 333). Plaintiffs allege that White insisted on overseeing Mortimer as she surrendered her passport and “threatened [ ] Mortimer with force and incarceration if she refused to cooperate.” (Id. at ¶¶ 334-36).

         On September 2, 2014, the Family Court held an emergency conference at which White and Mortimer were present and during which “the Family Court issued a ‘pick-up' warrant for [C.S.'s] arrest.” (TAC ¶¶ 337-38).[9] Plaintiffs allege that no warrant was issued for Mortimer's arrest or to search Mortimer's home. (Id. at ¶¶ 340-41). From September 10, 2014, to September 17, 2014, White came to Mortimer's home five times looking for C.S. and was accompanied by “at least five [NYPD] squad cars for each visit.” (Id. at ¶¶ 342-43). Plaintiffs also allege that Mortimer's home was illegally searched three times: first, on September 10, 2014, by two unnamed police officers, second, on September 14, 2014, by Defendant Officers Ancion and Stena and ACS Caseworker White, and third, on September 15, 2014, again by Ancion, Stena, and White. (Id. at ¶¶ 345-57). When White and two unnamed officers arrived at her home on September 16, 2014, Mortimer refused to let them search her home without a warrant. (Id. at ¶¶ 358-60).

         Following these warrantless searches, Plaintiffs allege that Defendant ACS Investigative Consultant Keith Haymes “contacted NYPD asking NYPD to arrest [ ] Mortimer, ” but that the “NYPD refused twice as there had been no warrant or probable cause for [ ] Mortimer's arrest.” (TAC ¶¶ 361-62). On September 16, 2014, “the City, the ACS … Defendants, Children's Village and [ ] White learned from the Department of Homeland Security that [C.S.] flew to Germany from the United States on August 30, 2014.” (Id. at ¶ 363). The next day, Defendant Officers Arriaga, Ancion, and Lopez, together with ACS Caseworker White, went to Mortimer's home, and White directed the officers “to arrest [ ] Mortimer pursuant to the [C.S.] warrant.” (Id. at ¶¶ 364-65).

         B. Procedural Background

         Plaintiffs initiated this action on September 11, 2015, and, since then, have thrice amended their pleadings. (Dkt. #1, 29, 53, 93). The Third Amended Complaint, the operative pleading, was filed on May 1, 2017. (Dkt. #93). ADA Duda, the ACS Defendants, and the Children's Village Defendants filed motions to dismiss on June 1, 2017. (Dkt. #101-07). On June 16, 2017, certain of the NYPD Defendants filed a motion for judgment on the pleadings or, in the alternative, for summary judgment. (Dkt. #111-14). Plaintiffs filed an opposition brief on August 9, 2017. (Dkt. #127). On September 8, 2017, counsel for the NYPD Defendants filed a reply brief and a letter stating that the remaining NYPD Defendants had been served with the TAC and asking that they be permitted to join the motion. (Dkt. #132, 134). The Court granted that application on September 11, 2017. (Dkt. #135). ADA Duda also filed his reply brief on September 8, 2017. (Dkt. #133). The Children's Village Defendants and the ACS Defendants filed their reply briefs on October 6, 2017, and October 10, 2017, respectively. (Dkt. #138, 140).


         A. Applicable Law

         1. Motions to Dismiss Under Rule 12(b)(1)

         The Children's Village Defendants move to dismiss Plaintiffs' claims against Dr. Waite pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. “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.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In this case, the Court must consider both its original and its supplemental jurisdiction to hear Plaintiffs' claims. Under 28 U.S.C. § 1367, a district court “shall have supplemental jurisdiction over all other claims that are so related to claims in the action within [the court's] original jurisdiction that they form part of the same case or controversy[.]” 28 U.S.C. § 1367(a); see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). A court may decline to exercise jurisdiction where “the claim raises a novel or complex issue of State law, ” “the [state] claim substantially predominates over the … claims over which the district court has original jurisdiction, ” or “the district court has dismissed all claims over which it has original jurisdiction[.]” 28 U.S.C. § 1367(c).

         2. Motions to Dismiss Under Rule 12(b)(6), and Motions for Judgment on the Pleadings Under Rule 12(c)

         ADA Duda, the ACS Defendants, and the Children's Village Defendants move to dismiss the TAC under Rule 12(b)(6) of the Federal Rules of Civil Procedure. To satisfy Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing a motion to dismiss, a court must “draw all reasonable inferences in [the] [p]laintiffs' favor, ‘assume all well-pleaded factual allegations' to be true, and ‘determine whether they plausibly give rise to an entitlement to relief.'” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (quoting Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). A court is not, however, obligated to credit “conclusory allegations or legal conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks and citation omitted). Ultimately, while Rule 8 “does not require detailed factual allegations, … it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted); see generally Fed. R. Civ. P. 8 (requiring, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief”).

         The NYPD Defendants move for a judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. Courts use the same standard to evaluate a motion for a judgment on the pleadings under Rule 12(c) as for a motion to dismiss under Rule 12(b)(6), except that the universe of documents a court may consider is expanded to include the pleadings of both the moving and non-moving parties. Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191, 193 (2d Cir. 2015); L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011). Here, this makes little difference, as the only document appended to the NYPD Defendants' Amended Answer is an excerpt from the TAC. (Dkt. #100).[10]

         Pro se litigants are afforded a special solicitude, one that requires “liberal construction of pleadings [and] motion papers” to avoid the “forfeit[ure] of important rights through inadvertence” occasioned by their inexperience and lack of formal legal training. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). Pleadings and submissions drafted by pro se litigants must be read “to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017). Here, Plaintiffs have filed a memorandum of law in opposition to the instant motions that includes several corrections to certain misstatements that Plaintiffs claim are in the ACS Defendants' moving brief. (Pl. Opp. 2-8). The facts set forth in Plaintiffs' opposition are largely redundant of those contained in the TAC. (See id.). Plaintiffs correctly argue that the Second Circuit admonishes district courts not to dismiss claims where the pro se plaintiff's “complaint and opposition papers … state[] a claim upon which relief could be granted.” (Pl. Opp. 1 (citing Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014))).

         Defendants encourage the Court to ignore the facts raised in Plaintiffs' opposition, citing cases that hold that a court may not consider facts raised for the first time in a legal brief opposing a motion to dismiss. But the cited cases derive their holdings from Second Circuit cases in which all parties were represented by counsel - and thus were entitled to no solicitude - or which pre-date more recent Second Circuit case law holding that district courts may consider facts raised in an opposition brief and, indeed, may err in ignoring facts raised in pro se submissions. Compare Payne v. Malemathew, No. 09 Civ. 1634 (CS), 2011 WL 3043920, at *2 n.3 (S.D.N.Y. July 22, 2011) (citing Friedl v. City of N.Y., 210 F.3d 79, 83-84 (2d Cir. 2000) (parties represented by counsel)), with Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.”), and Nielsen, 746 F.3d at 62 (reversing dismissal where plaintiff's complaint and opposition brief, taken together, stated a plausible claim to relief). Moreover, Mira v. Argus Media, cited by the Children's Village Defendants, is inapposite insofar as it found that a district court was not required to consider entirely new claims raised for the first time in opposition to a motion to dismiss; indeed, the court found that district courts could consider additional facts that elaborate on other facts alleged in the pleadings. No. 15 Civ. 9990 (RJS), 2017 WL 1184302, at *3 & n.4 (S.D.N.Y. Mar. 29, 2017); see also Shah v. Helen Hayes Hosp., 252 F. App'x 364, 366 (2d Cir. 2007) (summary order) (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (parties represented by counsel)).

         3. Documents the Court May Consider

         The NYPD Defendants and ADA Duda attach documents to their motions for the Court's consideration. While the NYPD Defendants provide these documents as part of their motion for summary judgment, the Court will not hear the NYPD Defendants' motion for summary judgment at this juncture and denies it without prejudice. See supra at note 9. That issue resolved, the Court must then determine whether it can consider these documents in the context of a motion to dismiss under Rule 12(b)(6) or for judgment on the pleadings under Rule 12(c).

         The NYPD Defendants put before the Court: (i) Mortimer's supporting deposition to the April 12, 2014 Domestic Incident Report; (ii) a video and a transcript of C.S.'s April 12, 2014 interview with ADA Duda; and (iii) a Family Court arrest warrant for Mortimer dated September 2, 2014. (Dkt. #112 (Declaration of Colin McCann Ceriello)). ADA Duda provides the Court with: (i) the April 12, 2014 Domestic Incident Report; (ii) the video of C.S.'s interview; (iii) the criminal complaint against C.S. dated April 12, 2014; (iv) an order of protection dated April 12, 2014; and (v) a notice of claim Mortimer filed with the New York City Comptroller on February 4, 2015. (Dkt. #104 (Declaration of Elizabeth N. Krasnow)).

         The NYPD Defendants and ADA Duda argue that these records are incorporated in the TAC by reference and, further, are integral to it. (NYPD Br. 7; Duda Br. 2-3). The Court agrees only as to the arrest warrant. The TAC adverts to Mortimer's supporting deposition and to the fact that C.S.'s interview was videotaped, but the gravamen of Plaintiffs' claims lies in the events described, and not the documentation memorializing those events. Under the NYPD Defendants' and ADA Duda's theory, a broad array of documents would become “integral” to a pleading simply by memorializing the events described therein, which is not the standard employed by the Second Circuit. The cases these Defendants cite - including one by this Court - pre-date the Second Circuit's decision in Goel v. Bunge, 820 F.3d 554, 558-59 (2d Cir. 2016). (See NYPD Br. 7 (citing Betts v. Shearman, No. 12 Civ. 3195 (JPO), 2013 WL 311124, at *3 (S.D.N.Y. Jan. 24, 2013)); Duda Br. 2-3 (citing Johnson v. City of N.Y., No. 12 Civ. 4431 (KPF), 2013 WL 6171937, at *4-5 (S.D.N.Y. Nov. 25, 2013) (converting defendants' motion to one for summary judgment))).

         Goel makes plain that references to a document in a pleading do not render the document integral to that pleading, thus the Court will not consider the Domestic Incident Report, the video of C.S.'s interview, or Plaintiff's notice of claim. See Goel, 820 F.3d at 559 (“Merely mentioning a document in the complaint will not satisfy this standard; indeed even offering limited quotations from the document is not enough.”). On the other hand, the TAC relies heavily on the terms and effect of the arrest warrant, and it is thus integral to Plaintiffs' claims. Moreover, the criminal complaint and order of protection are documents of which the Court may take judicial notice, and it will consider them for the mere fact that they exist but not for the truth of the matters asserted therein. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); see also Jordan v. City of N.Y., No. 15 Civ. 6364 (CM), 2017 WL 3106453, at *2 (S.D.N.Y. July 17, 2017) (“Judicial notice may be taken of public records, including arrest reports criminal complaints, indictments, and criminal disposition data.”).

         4. Claims Under 42 U.S.C. § 1983

         “[Section 1983] creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.” City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985). To state any claim under § 1983, a plaintiff must allege two elements: “[i] the defendant acted under color of state law; and [ii] as a result of the defendant's actions, the plaintiff suffered a denial of her federal statutory rights, or her constitutional rights or privileges.” Annis v. Cty. of Westchester, 136 F.3d 239, 2452d Cir. 1998).

         B. Analysis

         Plaintiffs raise the following claims under 42 U.S.C. § 1983: (i) violations of substantive due process rights; (ii) violations of procedural due process rights; (iii) unreasonable searches and seizures in violation of the Fourth Amendment; (iv) malicious prosecution; (v) fabrication of evidence and denial of the right to a fair trial; (vi) malicious abuse of process; (vii) First Amendment retaliation; (viii) failure to intervene; and (ix) municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978).[11] Plaintiffs also raise several state-law torts: (i) negligent placement of C.S. in a foster home; (ii) negligent supervision of care after placement in a foster home; (iii) false arrest; (iv) false imprisonment; (v) negligent infliction of emotional distress; (vi) intentional infliction of emotional distress; (vii) trespass to land; (viii) trespass to chattel; (ix) slander; and (x) libel. The Court addresses each of these claims after addressing several predicate issues raised by Defendants.

         1. The Court Will Exercise Supplemental Jurisdiction over Plaintiffs' State-Law Claims Against Dr. Waite

         Plaintiffs allege that Dr. Waite, an employee of Children's Village, vaccinated C.S. eight times and prescribed C.S. medications without Mortimer's consent and against her clearly-stated wishes. (TAC ¶¶ 312-15). Plaintiffs do not raise any federal claims against Dr. Waite; their only claims against him are state-law claims for negligent infliction of emotional distress and intentional infliction of emotional distress. (Id. at ¶¶ 477-85). The Children's Village Defendants urge the Court to decline to exercise supplemental jurisdiction over the claims against Dr. Waite, arguing that they “do not derive from the same ‘common nucleus of operative fact' as the remainder of [P]laintiffs' claims[.]” (CV Br. 24-25).

         The Court appreciates that Plaintiffs' claims against Dr. Waite are somewhat attenuated from Plaintiffs' grievances against ACS and the NYPD, but it does not believe them to be so far removed to render the exercise of supplemental jurisdiction improper. Plaintiffs' TAC is, broadly speaking, an attack on the methods by which several arms of the City government and Children's Village intervened in Plaintiffs' lives. Plaintiffs' claims against Dr. Waite are but one piece of that puzzle and their complaint against him fits comfortably within the same nucleus of operative facts.

         Where state and federal claims form part of the same controversy, as they do here, the Second Circuit has found that supplemental jurisdiction is properly exercised over the state-law claims. Shahriar v. Smith & WollenskyRest. Grp., Inc., 659 F.3d 234, 245-46 (2d Cir. 2011). While this case is still at the pleadings stage, Plaintiffs filed it nearly two years ago and the Court has overseen Plaintiffs' numerous attempts to state legally sufficient claims. To force Plaintiffs to re-file their claims against Dr. Waite in state court at this juncture would not promote the values of economy, ...

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