Opinion
20 Civ. 1835 (PGG) (GWG)
05-24-2021
KETANYA R. BURKE, Plaintiff v. HON. JUDGE ELENOR REID-CHERRY; CITY OF NEW YORK, N.Y., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Ketanya R. Burke, proceeding pro se, brought this lawsuit against “Judge Elenor Reid-Cherry” and the City of New York (“the City”). Burke alleges defendants violated her constitutional rights during custody proceedings in the Bronx County Family Court. Before the Court are two motions to dismiss made pursuant to Fed.R.Civ.P. 12(b)(1) and (6): one filed by Reid, the other by the City. Burke failed to respond to either motion. For the following reasons, both motions should be granted.
While Burke listed Reid's name as “Elenor Reid-Cherry” in her complaint, Reid's filings give her name as “Elenor C. Reid.”
Motion to Dismiss, filed November 9, 2020 (Docket # 19) (“Reid Mot.”); Declaration of Shawn Schatzle in Support, filed November 9, 2020 (Docket # 20); Memorandum of Law in Support, filed November 9, 2020 (Docket # 21) (“Reid Mem.”); First Motion to Dismiss, filed November 10, 2020 (Docket # 24) (“City Mot.”); Memorandum of Law in Support, filed November 10, 2020 (Docket # 26).
I. BACKGROUND
A. Allegations in the Complaint
For purposes of this decision, we assume the allegations in Burke's complaint to be true.
Burke's claims stem from a custody proceeding in New York Family Court. See Complaint, filed February 27, 2020 (Docket # 2) (“Comp.”) at *10-11. She and the father of their son, “V.D., ” see id., have “been fighting for custody since March 2013, ” Id. ¶ 1. An incident occurred in 2018 in which Burke “had to remove [her] child from his father's care” which “got [her] in trouble with the law.” Id. ¶ 1. “Since 2019” the two “have been back into the family court system fighting for custody.” Id.
refers to pages assigned by the ECF system.
Burke largely focuses on the period from February 2019 through February 2020. See Comp. ¶¶ 4-27. During this period, the father had physical custody of V.D., see Id. at *27, while Burke had “supervised visits” at an Administration for Children's Services (“ACS”) office, see Id. ¶ 1. Burke refers only to “the judge” or “the presiding judge” in the fact portion of her complaint. However, Reid's memorandum explains that the custody proceeding was “transferred to the Bronx County Family Court and assigned to Judge Reid” in 2018, Reid Mem. at 1-2. We therefore attribute the actions of “the judge” or “the presiding judge” to Reid for the period after 2018.
Burke requested an order of protection against V.D.'s father due to the 2018 incident. Comp. ¶ 2. In response, Reid “did not make any attempt to consider [Burke's] rights, ” apparently denying this request despite Burke's attorney explaining “the history of the father and [Burke].” Id. Burke was later granted an order of protection by a different judge in January 2020. Id. ¶ 23. In a later petition for the order of protection, Burke detailed the “ways the court [was] showing bias, discriminating and showing favoritism because [she] [is] a black woman, poor, fighting a white male for custody.” Id.
Reid denied several more of Burke's requests throughout the custody proceedings. For example, in November 2019 Burke “made a petition to modify” an order from August 2018. Comp. ¶ 19. Without Burke or the father in the room, and off the record, Reid “informed all parties lawyers, it won't matter what [Burke] . . . tell[s] the court. [Reid] stated she [would] rule against [Burke] if [she] moved forward with” the modification petition. Id. ¶ 20. Burke's lawyer “requested forensics so child, V.D[.] can freely express himself to a trained child psychologist in a safe space. The judge informed the court it will take too long and did not allow it.” Id. ¶ 19. Burke's lawyer also requested the father be held in contempt on two separate occasions for failing to comply with the court's orders. See Id. ¶¶ 13, 18. Both requests were denied. See id.
Reid granted several of the father's requests over Burke or her attorney's objection, including ordering that Burke stop wearing perfume or oils to visits with V.D., see Comp. ¶ 10, and that Burke's visits with V.D. be moved to a different ACS facility, despite Burke informing Reid she felt unsafe going to that facility and that it was difficult for her to travel to it, see Id. ¶¶ 14-15.
These proceedings ultimately culminated in a custody hearing that was scheduled for February 19, 2020. See Comp. ¶¶ 19, 24. Burke “got the time mixed up” believing the hearing was set for 11:30 a.m. when the correct time was 9:00 a.m. Id. ¶ 24. Burke missed the hearing, and Reid “gave full and sole custody to the child's father, allowed him to relocate to South Carolina and the child's father is supposed to let [Burke] know when [she] can go to South Carolina to do visits with” V.D. Id. Burke's attorney informed Reid of the mix-up two days later. Id. ¶¶ 25-26. Reid “reopened the case, ” but the father had already “left for South Carolina.” Id. ¶ 26. Burke's lawyer argued that V.D. and the father “should come back to the court jurisdiction hence this is a NY case” but Reid denied this request. Id. When asked how Burke was supposed to have visits with V.D., Reid said she “can face time with child.” Id. Despite Burke's lawyer explaining that the father “will not allow [V.D.] to use the phone in South Carolina, ” Reid still denied the request for V.D. to return to New York, and instead directed that “the father can make skype appearance for all trial dates.” Id. Burke argues that, in light of these rulings, she was “denied full and equal custody with child's father without due process” and that Reid was biased against her. Id.
Burke also recounts several facts regarding an unnamed judge who previously presided over the custody hearings. See Comp. at *27-30. Burke eventually sought to have this judge removed from the custody proceeding and, when doing so, discovered she “was one of many blacks in the court system going through similar issues with these family court judges. When I looked around everyone in there looked like me. Black and poor.” Id. at *28. Burke alleges that “the NYC Family Court System and Children Services . . . is set up for plaintiff to lose especially when you're a black woman fighting against a white man for your biracial child.” Id. at *29. Burke alleges that she “was denied the fundamental right to care custody and control of [her] child, by denying full and equal custody with the child's father without due process” and has therefore “suffered profound injuries.” Id.
Burke seeks three forms of relief in her complaint: “Declaratory and Injunctive relief against all Defendants on Behalf of Plaintiff and all person who have been or will in the future, will be deprived of the physical or legal custody of their children without prompt and full hearing on based on [sic] their race or economic status, ” Comp. at *31; “Declaratory and Injunctive relief against Defendant on behalf of all person or persons who have been, or in the future, will be deprived of their physical or legal custody of their children without the same rights afforded to their counterparts who did not lose custody to another parent, ” id. at *32; and “declaratory judgment that fundamental rights, including parental rights, First and Second Amendment rights due process rights, Civil Rights may not be taken away without due process merely because plaintiff is in family court, ” id.
As for the legal basis for her claims, Burke purports to assert claims under “Federal Rule of Civil Procedure 23 (a) and (b), ” “the Declaratory Judgment and Civil Rights Act, ” and constitutional provisions, including “fundamental rights to Due Process” and her “Civil Rights” and the “Fourteenth Amendment.” Comp. at *10. More specifically, Burke alleges Reid deprived her and her “minor child V.D., of fundamental rights by conducting unconstitutional acts and proceedings” and “conducted unconstitutional proceedings which violated plaintiff and child's fundamental rights to the care custody [sic] were denied without a full trail [sic] or hearing.” Id. As to the City, Burke alleges it “has failed to implement any guideline or procedures to ensure a parent receives a full and prompt hearing when the City takes away custody from one parent and gives custody to another parent” and that “New York City Courts are well known for violation of parents' due process rights.” Id.
In her complaint, Burke checked the box for diversity of citizenship as the basis for federal-court jurisdiction. See Comp. at *2. Nonetheless, we agree with Reid, see Reid Mem. at 11 n.9, that this was likely an error given that both Burke and Reid are citizens of New York, see Comp. at *2-3, and Burke is in fact attempting to invoke federal question jurisdiction under 28 U.S.C. § 1331. More specifically, we view Burke's complaint as asserting claims under 42 U.S.C. § 1983.
B. Procedural History
Both defendants filed motions to dismiss. See Reid Mot.; City Mot. When Burke did not timely respond to those motions, the Court sua sponte extended the deadline for her response until December 31, 2020. See Order, entered December 10, 2020 (Docket # 30). Burke failed to respond by this extended deadline. The Court therefore ordered Burke to file a letter “stating whether she intend[ed] to pursue this matter and whether she [sought] an extension to respond to the motions to dismiss.” Order, entered January 18, 2021 (Docket # 31) at 1. Burke submitted a letter, indicating that she did intend to pursue the case and seeking an additional unspecified amount of time to respond. See Letter from Ketanya Burke, filed February 9, 2021 (Docket # 32). The Court granted an extension until March 5, 2021. See Memo Endorsement, entered February 10, 2021 (Docket # 33). Burke failed to file a response to either motion by that deadline or at any other time.
II. DISCUSSION
Burke claims to be seeking “declaratory and injunctive relief under Federal Rule of Civil Procedure 23 (a) and (b).” Comp. at *10; see id. at *31-32. Because Burke is proceeding pro se, she “cannot assert claims on behalf of any individual other than” herself. Syville v. New York City of New York, 2020 WL 918610, at *1 (S.D.N.Y. Feb. 25, 2020); see McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000) (“A pro se litigant . . . is not empowered to proceed on behalf of anyone other than himself.”). We therefore only consider the allegations as they relate to Burke individually.
Defendants make several arguments in favor of dismissal. See Reid Mem. at 6-19; City Mem. at 3-9. Because we find the Younger abstention doctrine requires that the Court refrain from exercising jurisdiction over this suit, we do not address defendants' other arguments for dismissal.
“Even where subject-matter jurisdiction exists . . . the Supreme Court has found that, under certain circumstances, a court should nonetheless abstain from hearing the case.” Plotch v. Wells Fargo Bank, N.A., 413 F.Supp.3d 129, 132 (E.D.N.Y. 2018) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 724-25 (1996)). The abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971) “exemplifies one class of cases in which federal-court abstention is required: When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution.” Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). While Younger was born out of state criminal proceedings, the Supreme Court has explained that, “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982).
Prior to the Supreme Court's decision in Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69 (2013), the Second Circuit had held
that district courts must abstain whenever the three conditions identified in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), were satisfied: “(1) there is a pending state proceeding, (2) that implicates an important state interest, and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of his or her federal constitutional claims.” Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65, 75 (2d Cir. 2003); see Middlesex, 457 U.S. at 432, 102 S.Ct. 2515.
In Sprint, which was decided after Spargo, the Supreme Court cautioned that the “three Middlesex conditions . . . were not dispositive; they were, instead, additional factors appropriately considered by the federal court before invoking Younger.” 134 S.Ct. at 593 (emphasis omitted). This was true in part, the Court explained, because relying on the three conditions alone “would extend Younger to virtually all parallel state and federal proceedings . . . where a party could identify a plausibly important state interest.” Id.Falco v. Justs. of the Matrimonial Parts of Supreme Ct. of Suffolk Cnty., 805 F.3d 425, 427 (2d Cir. 2015), cert. denied, 136 S.Ct. 2469 (2016). As explained in Falco, the core Younger doctrine, as set forth in in Sprint, holds that
district courts should abstain from exercising jurisdiction only in three “exceptional circumstances” involving (1) “ongoing state criminal prosecutions, ” (2) “certain civil enforcement proceedings, ” and (3) “civil proceedings involving certain orders uniquely in furtherance of the state courts' ability to perform their judicial functions.” Id. at 591 (quotation marks omitted) (alteration omitted). The Court explained that “these three ‘exceptional' categories . . . define Younger's scope.” Id.Id. at 427. Falco itself applied the third Sprint category to a suit “challenging the constitutionality of the New York laws that authorize State judges to order parents to pay for attorneys appointed for their children” in divorce proceedings. Id.
Here, Burke seeks declaratory and injunctive relief that would require the court to intervene in her ongoing state-court child custody proceedings. See Comp. at *31-32. Indeed, Burke points to several acts of the Bronx County Family Court as justifying her claim to relief, including her allegations that Reid did not issue an order of protection for Burke against the father, Comp. ¶ 2; that Reid “gave full and sole custody to [V.D.'s] father, ” after Burke missed the custody hearing, id. ¶ 24; that Reid “allowed [the father] to relocate to South Carolina” with V.D., id.; and that Reid did not require the father to return to New York with V.D. after reopening the case, see id. ¶ 26.
This case thus falls into the third Sprint category inasmuch as Burke's complaint implicates acts that are “uniquely in furtherance of the state court['s] ability to perform [its] judicial functions, ” Sprint, 571 U.S. at 70, and Burke seeks declaratory and injunctive relief that would substantially interfere with the state court's ability to perform its judicial functions in the custody proceeding. See Bukowski v. Spinner, 709 Fed.Appx. 87, 88 (2d Cir. 2018) (affirming dismissal of the complaint “on the ground that federal-court abstention [was] required under” Younger because plaintiff sought “declaratory or injunctive relief that would interfere with [the] state court's ability to perform its judicial function in an ongoing custody proceeding”) (punctuation omitted) (summary order); Falco, 805 F.3d at 428 (finding the “circumstances of th[e] case . . . clearly [fell] within Sprint's third category” where the court orders at issue were “integral to the State court's ability to perform its judicial function in divorce and custody proceedings”); Kelly v. New York, 2020 WL 7042764, at *5 (E.D.N.Y. Nov. 30, 2020) (refusing to “interfere in Plaintiff's on-going State Court post-judgment divorce and custody proceedings” where “[t]he court's orders at issue in those civil proceedings implicate New York's interest in enforcing the orders and judgments of its courts and were issued by New York courts in furtherance of their ability to perform their judicial functions”) (punctuation omitted).
Having determined this case falls into the third Sprint category, we turn next to the Middlesex factors. These factors clearly weigh in favor of the Court abstaining from exercising jurisdiction under Younger. First, the complaint alleges that the custody proceedings are ongoing in New York family court. Comp. ¶ 1 (“Since 2019 the father and I have been back into the family court system fighting for custody.”) As to the second factor - that the state proceeding implicate an important state interest - Burke's “federal lawsuit implicates the way that New York courts manage their own divorce and custody proceedings - a subject in which the states have an especially strong interest, ” Falco, 805 F.3d at 427 (punctuation omitted). Finally, courts in this Circuit have repeatedly found that New York state courts afford a plaintiff an adequate opportunity for judicial review of constitutional claims. See Sobel v. Prudenti, 25 F.Supp.3d 340, 355 (E.D.N.Y. 2014) (“Plaintiff has had more than sufficient opportunity to litigate the federal issues in state courts, which are fully competent to decide federal constitutional questions.”) (punctuation omitted); Best v. City of New York, 2014 WL 163899, at *10 (S.D.N.Y. Jan. 15, 2014) (finding “the ongoing state proceeding afford[ed] [plaintiff] adequate opportunity for judicial review of his constitutional claims” where plaintiff had ongoing child custody proceedings in family court).
Younger abstention applies to all of Burke's claims as Burke seeks only injunctive and/or declaratory relief, see Comp. at *31-32. See Corren v. Sorrell, 151 F.Supp.3d 479, 486 (D. Vt. 2015) (explaining that the Younger abstention doctrine “applies to cases which . . . seek injunctive and declaratory relief”) (citing Kirschner v. Klemons, 225 F.3d 227, 235 (2d Cir. 2000)). The court should therefore abstain from exercising jurisdiction under Younger. See Perso v. Perso, 2019 WL 4415399, at *3 (E.D.N.Y. Sept. 13, 2019) (“this Court abstains under Younger from interfering in plaintiff's ongoing state-court proceedings involving child custody and visitation issues and ‘implicat[ing] a State's interest in enforcing the orders and judgments of its courts'”) (quoting Sprint, 571 U.S. at 72-73).
Finally, the only allegation regarding the City is that it “has failed to implement any guideline or procedures to ensure a parent receives a full and prompt hearing when the City takes away custody from one parent and gives custody to another parent.” Comp. at *10. This allegation does not affect our conclusion that the Court must abstain from exercising jurisdiction over this lawsuit because the gravamen of the complaint is a challenge to proceedings in the New York Family Court and the allegation against the City is directly related to the conduct of those proceedings.
III. CONCLUSION
For the foregoing reasons, Judge Elenor C. Reid's motion to dismiss (Docket # 19) and the City of New York's motion to dismiss (Docket # 24) should be granted. The Clerk is requested to mail a copy of this Report and Recommendation to the plaintiff.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Gardephe. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).