United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
Donnelly, United States District Judge
January 29, 2019, the plaintiff commenced this pro
se action alleging violations of his constitutional
rights pursuant to 42 U.S.C. § 1983. I dismissed his
complaint with leave to amend on March 19, 2019. (ECF No. 6.)
After the plaintiff filed and served an amended complaint
(ECF No. 9), 1 dismissed sua sponle certain state
entities-the Richmond County Criminal Court, Richmond County
Family Court, and the Office of the Richmond County District
Attorney-and permitted the case to continue as to the
Administration for Children's Services, Forensic
Psychology Services of New York, PPLC, and the Law Office of
Ralph J. Porzio, Esq., PLLC. (ECF No. 15.) These defendants
subsequently moved to dismiss the amended complaint, (ECF
Nos. 27, 30, 42.) For the reasons that follow, the
defendants' motions to dismiss are granted.
plaintiffs lawsuit is premised on his claim that the
defendants did not protect his daughter from mental,
physical, and emotional abuse inflicted by his daughter's
mother and the mother's boyfriend. The plaintiff claims
that the defendants failed to enforce an order of protection
against the mother, did not make unscheduled visits at her
home, and refused to report abuse to the family court. (ECF
No. 9 ¶¶ 54, 56, 68, 69, 70, 84, 85.) He claims
that they violated his First Amendment rights by "not
allowing [him] to express [his] concerns," and his
procedural due process rights by not allowing him "to
present any evidence to refute the claims against
[him]." (Id. ¶¶ 61, 64, 75, 78, 91,
93.) The plaintiff claims that he suffered public
humiliation, verbal abuse, mental and emotional distress, and
two years of salary loss as a result of the defendants'
standards of review under Rules 12(b)(1) and 12(b)(6) are
"substantively identical." Lerner v. Fleet
Bank, AL4., 318 F.3d 113, 128 (2d Cir. 2003). In
deciding both types of motions, the Court must "accept
all of the plaintiffs factual allegations in the complaint as
true and draw inferences from those allegations in the light
most favorable to the plaintiff." Starr v. Georgeson
S'holder, Inc., 412 F.3d 103, 109 (2d Cir. 2005);
see also Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 572 (2007). Dismissal is proper under Rule 12(b)(1) for
lack of subject matter jurisdiction "when the district
court lacks the statutory or constitutional power to
adjudicate" the claim. Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000). Dismissal is
proper under Rule 12(b)(6) for failure to state a claim when
the complaint does not "contain sufficient factual
matter... to state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The only "substantive difference" between
the standards of review is that under Rule 12(b)(1),
"the party invoking the Court's jurisdiction bears
the burden of proof to demonstrate that subject matter
jurisdiction exists, whereas" under Rule 12(b)(6),
"the movant bears the burden of proof on a motion to
dismiss[.]" Seeman v. U.S. Postal Serv., No.
2:11-CV-206, 2012 1999847, at *1 (D. Vt. June 4, 2012)
pro se litigant's complaint is held to "less
stringent standards than formal pleadings drafted by
lawyers." Haines v. Kerner, 404 U.S. 519, 520
(1972). The court must read a pro se complaint
liberally and interpret it to raise the strongest arguments
it suggests, especially when it alleges civil rights
violations. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); Sealed Plaintiff v. Sealed Defendant #/, 537
F.3d 185, 191-93 (2d Cir. 2008); Weixel v. Bd. of Educ.
of City of New York, 287 F.3d 138, 146 (2d Cir.
2002) (citing Weinstein v. Albright, 261 F.3d 127,
132 (2d Cir. 2001)).
liberally construe the complaint to assert a First Amendment
claim, a procedural due process claim, violation of 18 U.S.C.
§ 242, negligence, and emotional injury.
courts are courts of limited jurisdiction," Durant,
Nichols, Houston, Hudgson & Cortese-Costa P.C. v.
Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (citation
omitted), and may only hear cases if there is diversity of
citizenship or a federal question at issue. 28 U.S.C.
§§ 1331, 1332. Of particular relevance in this
case, federal courts do not have the power to second guess
state court determinations in domestic relations cases;
"[t]he Supreme Court... has recognized a domestic
relations exception to subject matter jurisdiction that
'divests the federal courts of power to issue divorce,
alimony, and child custody decrees.'" Tait v.
Powell, 241 F.Supp.3d 372, 376 (E.D.N.Y. Mar. 10, 2017)
(citing Ankenbrandt v. Richards, 504 U.S. 689, 703
(1992)). Pursuant to the exception, "federal courts have
discretion to abstain from exercising jurisdiction over
issues on the verge of being matrimonial in nature as long as
full and fair adjudication is available in state
courts." Fisher v. Clark, No. 08-CV-3807, 2009
WL 3063313, at *2 (E.D.N.Y. Sep. 24, 2009) (internal
quotations, alterations, and citations omitted).
plaintiff makes the following federal claims: a procedural
due process claim, a First Amendment claim, and a claim
pursuant to 18 U.S.C. § 242. However, each claim
"begin[s] and end[s] in a domestic dispute."
Tait, 241 F.Supp.3d at 377 (citing Schottel v.
Kutyba, No. 06-CV-1577, 2009 WL 230106, at *1 (2d Cir.
Feb. 2, 2009) (unpublished)). According to the plaintiff, he
lost "approximately two (2) years of salary and clients
due to family court ordered appearances[.]" (ECF No. 9
¶ 57.) He claims that the defendants did not prevent
harm to his daughter, causing him mental and emotional
distress, public humiliation, harassment, and abuse.
(Id. ¶¶ 59, 66.) Each defendant-the
psychology services organization appointed by the family
court judge, the attorney for the plaintiffs daughter in the
custody dispute, and the Administration for Children's
Services-is involved in the welfare and custody of the
plaintiffs daughter. Thus, the plaintiffs complaint "is,
at heart, a dispute surrounding the custody of a
child." Schottel 2009 WL 230106, at *1.
the plaintiff styles some of his claims as raising
constitutional issues, the allegations stem from an on-going
state domestic relations matter and are thus outside this
Court's jurisdiction." Perso v. Perso, No.
19-CV-2858, 2019 WL 4415399, at *3 (E.D.N.Y. Sep. 13, 2019)
(dismissing Section 1983 action against various attorneys in
a state court child custody matter) (collecting cases);
see also Neustein v. Orbach, 732 F.Supp. 333
(E.D.N.Y. 1990) ("If, however, in resolving the issues
presented, the federal court becomes embroiled in factual
disputes concerning custody and visitation matters, the
action must be dismissed."). Accordingly, the plaintiffs
complaint must be dismissed for lack of subject matter
reasons explained above, I grant the defendants' motions
to dismiss with prejudice.'' The Clerk of Court is
respectfully directed to enter ...