Opinion
20-CV-3083 (GBD) (BCM)
08-12-2022
VANDYKE JOHNSON, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. GEORGE B. DANIELS
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Vandyke Johnson sues the City of New York (City), the Commissioner of the New York City Administration for Children's Services (ACS), David A. Hansell, and two ACS employees, Diana Alama and Sheena Blaise, seeking damages arising out of a child neglect petition that was lodged against him on August 28, 2019 and withdrawn on August 3, 2021. Now before me for report and recommendation is defendants' motion (Dkt. 76) to dismiss plaintiff's Third Amended Complaint (TAC) (Dkt. 72 at ECF pp. 4-21) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, the motion should be granted and the case should be dismissed.
I. BACKGROUND
As required by McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007), I accept plaintiff's well-pleaded factual allegations as true for the purpose of defendants' Rule 12(b)(6) motion. As permitted by Kramer v. Time Warner Inc., 937 F.2d 767 (2d Cir. 1991), I take judicial notice of relevant documents filed in related legal proceedings, and submitted herein, "to establish the fact of such litigation and related filings." Id. at 774; see also Kurtz v. Hansell, 2021 WL 1143619, at *1 (S.D.N.Y. Mar. 24, 2021) (taking judicial notice of "publicly filed documents from the underlying family-court proceedings," including "the removal petition, order of dismissal, and similar documents") McLennon v. New York City, 2015 WL 1475819, at *4 (E.D.N.Y. Mar. 31, 2015) (taking judicial notice of "arrest reports, certificates of disposition, criminal complaints, DD5s, and indictments").
On August 22, 2019, plaintiff and his step-daughter AOM, who was then 14 years old, were involved in a "family dispute," Compl. (Dkt. 1) ¶ 26, after which AOM's mother, Mercedes Johnson, took AOM and her younger sister VJ (plaintiff's biological daughter) to the 33d precinct and reported the incident to the New York Police Department (NYPD). Id. ¶ 27; see also Neglect Petition (Pet.) (Dkt. 81-2) at ECF pp. 6-7. Ms. Johnson and AOM told the NYPD that plaintiff grabbed AOM by her sweatshirt and dragged her out of the bedroom, causing "redness to her neck." Compl. ¶¶ 32; Pet. at ECF pp. 6-7. NYPD Officer Diaz took photographs of AOM's neck. Compl. ¶¶ 33, 40; Pet. at ECF p. 7; Progress Notes at 16. NYPD Officer Randazzo prepared a police report stating that AOM "suffered redness to her neck, scratches on her ankle and was dragged out of the bedroom." Compl. ¶ 32. Petitioner, who declined to answer questions at the precinct, was arrested that same day and charged with assault in the third degree, acting in a manner injurious to a child, and related crimes. Compl. ¶¶ 28, 30-33; id. at ECF p. 19 (Criminal Court disposition sheet, attached as an exhibit to the Complaint). On August 23, 2019, plaintiff was arraigned on those charges in Criminal Court. Id. at ECF p. 19. Additionally, the Criminal Court issued a "stayaway order of protection" (the Criminal Court OOP). Pet. at ECF p. 7.
The Neglect Petition was submitted by plaintiff as Exhibit C to his memorandum in opposition to the motion to dismiss (Pl. Opp. Mem.) (Dkt. 81). Plaintiff also submitted, as Exhibit B, a copy of a June 19, 2019 referral, signed by a nurse at Broadway Pediatrics (6/19/19 Ref.) (Dkt. 81-1), describing AOM as a "14 year old overweight patient with darkening of neck, abnormal hemoglobin A1C," and a diagnosis of Acanthosis nigricans. Plaintiff apparently intended to submit, as Exhibit A (but initially neglected to attach), copies of what he describes as "email communications of the Defendants ACS," Pl. Opp. Mem. at 1, which appear to this Court to be electronic Investigation Progress Notes (Progress Notes) (now appearing at Dkt. 81-3) prepared by the ACS personnel assigned to the Johnson case. Upon confirming that Exhibit A had been timely served on defendants, the Court permitted plaintiff to file the Progress Notes out of time, which he did on July 7, 2022. (See Dkts. 87, 89.)
After plaintiff's arrest, ACS began its own investigation, including review of police records, a home visit, and interviews of Ms. Johnson, AOM, VJ, and Officer Diaz. Pet. at ECF pp. 6-7; see also Compl. ¶¶ 38-40; Progress Notes at 1-32. Defendant Alama, who was assigned to the investigation on August 23, 2019, personally interviewed Ms. Johnson, AOM, and VJ, see Progress Notes at 14-21, and requested AOM's records from Broadway Pediatrics. Id. at 32. On August 28, 2019, ACS filed the Neglect Petition - verified by Alama - in Family Court, alleging that plaintiff inflicted "excessive corporal punishment" on AOM and that she and her sister were "neglected children" within the meaning of N.Y. Family Ct. Act § 1012(f). Compl. ¶ 43; TAC ¶¶ 13-14; Pet. at ECF pp. 3, 6.
According to the Neglect Petition, both AOM and Ms. Johnson stated on August 23, 2019 that during the August 22 incident plaintiff grabbed AOM "by her sweatshirt and dragged her out of the bedroom and into the living room," causing AOM to "suffer[] pain around her neck" and have "a hard time speaking." Pet. at ECF p. 6. In addition, according to the petition, AOM reported that plaintiff had been violent twice before, once grabbing her by the hair to throw her out of a bedroom and once striking her on the face with an open hand, causing her lip to bleed. Id. at ECF pp. 6-7. The petition further stated that NYPD Officer Diaz confirmed, on August 26, 2019, that when Ms. Johnson brought the children to the precinct, he "was able to observe scratches and bruises on or about [AOM's] neck." Id. at ECF p. 7.
These allegations are substantially corroborated by the allegations contained in plaintiff's original Complaint, summarized above, and by the Progress Notes, which show that when Child Protective Services (CPS) caseworker Sardia Waite visited the Johnson family home in the early morning hours of August 23, 2019, both Ms. Johnson and AOM repeated to her what they had earlier reported to the NYPD. Ms. Johnson told Waite that on August 22, 2019, plaintiff "did not like" an answer that AOM gave him and "went into the bedroom and grabbed [AOM's] phone away. He then dragged her out of the bed by her hooded sweater into the hallway near the bedroom." Progress Notes at 9. Ms. Johnson "attempted to stop him but he was too strong." Id. After the incident, she "took the children to the 33rd precinct and the [father] was arrested." Id. Ms. Johnson added that "this is not the first incident where the father has been violent with [AOM]," id., and said that she "wants a restraining order against him." Id.
According to the Progress Notes, AOM and VJ lived with their mother, Ms. Johnson, in a rented room within a three-bedroom apartment. Progress Notes at 8. Ms. Johnson told Waite that plaintiff visited on a daily basis but "live[d] at another location." Id. at 9.
The caseworker then spoke to AOM herself, who was "tired and a little grumpy as her mother attempted to wake her." Progress Notes at 10. AOM "confirmed that her stepfather dragged her by her hoodie," and stated that "she feels safe in the home with her mother but does not feel safe when Mr. Johnson is in the home." Id. AOM "also confirmed that this is not the first time that [plaintiff] has put his hands on her." Id. Waite noted that AOM had a "contusion around her neck," but there were no visible marks or bruises on VJ (who remained asleep throughout the visit). Id. The caseworker deemed the risk of "imminent and impending danger" as "low." Id. at 11. Later on August 23, 2019, a photo, apparently of AOM's neck, was forwarded to an ACS Instant Response Team (IRT) Coordinator, who wrote that the injury was "not deemed serious." Id. at 12. Consequently, the case was not "enhanced at the time to an IRT." Id.
The ACS file contains a photo of what appears to be a teenage girl's upper chest, neck, and head, but the photocopy submitted to this Court is of poor quality, making it impossible to see any detail. Progress Notes at 16.
At 5:30 p.m. on the same day, defendant Alama met AOM, VJ, and their mother at New York Presbyterian Hospital. Progress Notes at 14-20. While there, AOM repeated her account of "what happened last night" including that plaintiff "grabbed her by the back of her of her sweatshirt and dragged her out." Id. at 15. The sweater "was choking her." Id. Ms. Johnson "intervened and took her and [VJ] to the precinct." Id. Asked about "any past incidents," AOL relayed that five years earlier, during an argument over clothes, plaintiff "got upset and grabbed her by the hair and dragged her." Id. On another occasion, after AOM made "too much noise," plaintiff "hit her in the face with an open hand." Id. Asked about her neck, AOM said it was not hurting "a lot," because she had taken Advil, but that "yesterday it was hard to speak for a bit." Id. Alama assessed that no "immediate medical treatment" was needed. Id. at 16.
Alama next interviewed Ms. Johnson, who corroborated AOM's account. Progress Notes at 18. According to Ms. Johnson, plaintiff never hit VJ, but AOM "likes to talk back which can upset" plaintiff. Id. While still at the hospital, Alama also spoke to VJ (then five years old), who confirmed that plaintiff had never hit her, and that she loved her daddy, but also stated that plaintiff "was being mean towards [AOM] and [Ms. Johnson]," and "demonstrated with her hand how [plaintiff] grabbed [AOM] by the sweatshirt and how the sweatshirt was choking her." Id. at 19.
On August 26, 2019, Alama spoke to an NYPD "source," presumably Officer Diaz, who confirmed the August 22 events at the 33d precinct: Ms. Johnson arrived "with the two kids" and reported the assault; plaintiff "did not say anything"; and the source took pictures, which he agreed to forward. Progress Notes at 29. See also Compl. ¶ 40 ("Officer Diaz stated to A.C.S. that he 'personally observed scratches and bruises on or about [AOM's] neck and took photos."). On August 27, 2019, Alama "faxed over HIPPA [sic] to [B]roadway [P]ediatrics," id. at 32, and on August 29, 2019 (after the Neglect Petition was filed) she "received medicals." Id. at 34.
On August 28 or 29, 2019, the Family Court issued a temporary order of protection (the Family Court OOP), prohibiting plaintiff from having any contact with AOM or VJ except in the presence of ACS or certain approved relatives, and barring him from the girls' home and schools. See App. for OSC, Johnson v. Alma (Johnson I), No. 19-CV-8093-CM (S.D.N.Y. Aug. 29. 2019), ¶¶ 7-10; Order of Dismissal, Johnson I (Oct. 15, 2019), at 2. On November 14, 2019, the Family Court renewed the Family Court OOP through February 24, 2020. (Dkt. 77-3.)
Johnson I, in which plaintiff sought a restraining order to prevent ACS from proceeding with the neglect case against him, was dismissed for lack of subject matter jurisdiction pursuant to the domestic relations exception and Younger v. Harris, 401 U.S. 37 (1971). See Order of Dismissal, Johnson I, at 3-5, 9.
The November 14, 2019 Family Court OOP was submitted as Exhibit C to the Declaration of Andrew B. Spears (Spears Decl.) (Dkt. 77), filed in support of defendants' pending motion to dismiss. As relevant here, defendants also submitted, as Exhibit B, a Removal Order issued by Family Court Judge Jane Pearl on February 10, 2020 (Rem. Order) (Dkt. 77-2), and as Exhibit D, the transcript of proceedings in the Family Court on August 3, 2021 (8/3/21 Family Ct. Tr.) (Dkt. 77-4).
On November 25, 2019, during a hearing in Criminal Court, the criminal charges arising out of the August 22, 2019 incident were dismissed. TAC ¶¶ 17-18. Plaintiff was told by his attorneys that to their knowledge "[t]here was no order of protection," and consequently returned to the children's residence. Id. ¶¶ 19-23. In fact, the Family Court OOP remained in effect.
Later that same day, Alama arrived at the home, with another woman, and "tried to enter the residence of Plaintiff to see the Plaintiff's children." TAC ¶¶ 25-28. Plaintiff "brought both children to the front door to let Defendant Alama inspect the children," id. ¶ 29, but apparently did not let her enter the apartment. Alama asked plaintiff why he was there. Id. ¶ 30. He responded by showing her a copy of the disposition of his criminal case. Id. ¶¶ 30-31. After an hour and a half, Alama contacted the NYPD. Id. ¶ 32. According to plaintiff, Alama showed the responding NYPD officer "an expired order of protection that terminated on November 14, 2019 on her iPhone." Id. ¶ 33 (emphasis in the original). Plaintiff was arrested and spent 18 hours in jail. Id. ¶¶ 35-38.
During a December 11, 2019 Family Court hearing, plaintiff claimed that he was improperly arrested on November 25 for violating "[t]he Criminal Court order of protection that was no longer in effect." See Second Amended Complaint (SAC) (Dkt. 25) Ex. B (12/11/19 Family Ct. Tr.), at 24:11-16. Alama, however, testified that before she called the NYPD she "tried to explain to [plaintiff] that Criminal Court and Family Court are two different courts, and that the order of protection from Family Court [was] still active." 12/11/19 Family Ct. Tr. at 10:2-5. Alama also testified that the NYPD showed plaintiff "the active order of protection from Family Court" before arresting him. Id. at 11:23-25 (emphasis added). Her testimony is consistent with the criminal complaint filed against plaintiff on November 25, 2019, which charged him with violating a "Valid Order of Protection issued in Family Court, County of New York on November 14, 2019 . . . which remains in effect until February 24, 2020." Pl. Ltr. dated March 36, 2021 (Dkt. 53) at ECF pp. 6-7) (emphasis added).
The criminal case stemming from the November 25, 2019 incident was dismissed on March 5, 2020, on speedy trial grounds. TAC ¶ 39; SAC Ex. A2. However, on February 7, 2020, plaintiff's wife "was arrested on allegations of child abuse," TAC ¶ 40; and on February 10, 2020, the Family Court authorized the continued temporary removal of AOM and VJ because Ms. Johnson "struck and strangled [AOM] with a belt." Removal Order at 1.
On the day Ms. Johnson was arrested, both girls were taken to BronxCare Health System (BronxCare), where they were medically examined - over plaintiffs vigorous objections - and questioned by Alama and Blaise "without a parent or lawyer present." TAC ¶¶ 42-51. AOM and VJ were then removed from the home "without a parent present or judicial order." Id. ¶ 52. The Removal Order issued on February 10, 2020 explains that the children were initially removed pursuant to N.Y. Family Ct. Act § 1024, which authorizes ACS caseworkers (among others) to "tak[e] or keep[] a child in protective custody," without a court order or parental consent, if there is no time to apply for an order and if "such person has reasonable cause to believe that the child is in such circumstance or condition that his or her continuing in said place of residence or in the care and custody of the parent or person legally responsible for the child's care presents an imminent danger to the child's life or health[.]" A neglect case was opened against Ms. Johnson on February 24, 2020. See Pl. Ltr. dated July 14, 2021 (Dkt. 90) at ECF pp. 4-5.
Two days later, on February 12, 2020, plaintiff was arrested at VJ's school, for "criminal contempt," Compl. at 2, after the school principal "falsely called the police and falsely stated to the NYPD that the Plaintiff was violating the Family Court's Order." TAC ¶ 63. The criminal case stemming from the February 12, 2020 incident was dismissed on May 12, 2020. SAC Ex. A3.
On August 3, 2021, ACS withdrew the Neglect Petition against plaintiff. TAC ¶ 75; see also 8/3/21 Family Ct. Tr. at 4:22-25; Pl. Ltr. dated Aug. 5, 2021 (Dkt. 58) at ECF p. 3 (Order of Dismissal). That same day, the neglect case against Ms. Johnson was adjourned in contemplation of dismissal. Pl. Ltr. dated July 14, 2021 at ECF pp. 4-5 (Adjournment in Contemplation of Dismissal). The record before this Court does not disclose the outcome of the criminal case against Ms. Johnson.
B. Procedural History
In his original Complaint, filed pro se and in forma pauperis on April 16, 2020, plaintiff sued the City, NYPD officers Diaz and Randazzo, the principal and the parent coordinator at VJ's school, the DOE, ACS employee Alama, and ACS Commissioner Hansell, alleging a variety of constitutional and common-law torts. Plaintiff asserted that he "did not abuse his children," Compl. ¶ 25, and further alleged, in conclusory terms, that the NYPD "fabricat[ed] evidence" against him in connection with his criminal arrests. Id. ¶¶ 36, 93. In an Order to Amend dated May 5, 2020 (Dkt. 4), the Honorable Louis L. Stanton, United States District Judge, dismissed plaintiff's claims, explained the federal pleading standards, and gave plaintiff "leave to amend his complaint to detail his claims insofar as he can plead facts that state a claim under the standards set forth above." Order to Amend at 17.
In his Amended Complaint, filed on July 31, 2020 (Am. Compl.) (Dkt. 10), plaintiff dropped the NYPD officers, the DOE, and its personnel as defendants, but added BronxCare and a second ACS employee, then identified as "Jane Doe," who was present during the incident at BronxCare. Am. Compl. ¶¶ 5-12. The case was then assigned to the Honorable George B. Daniels, United States District Judge, who directed the City to ascertain the identity of the Jane Doe defendant, gave plaintiff leave to "file a second amended complaint naming the Jane Doe defendant" on receipt of that information, and referred the case to me for general pretrial management and report and recommendation on dispositive motions. (Dkts. 13, 14.)
After the City identified Jane Doe as Sheena Blaise (Dkt. 22), plaintiff filed his Second Amended Complaint, alleging five causes of action, each asserted against multiple defendants, principally arising out of the February 2020 events at BronxCare. On February 9, 2021, BronxCare moved to dismiss all of the claims against it. (Dkt. 35.) The remaining defendants (the City Defendants) did not move at that time. On August 23, 2021, I recommended that BronxCare's motion be granted (Dkt. 62), and on September 30, 2021, Judge Daniels agreed and dismissed all of plaintiff's claims against BronxCare. See Johnson v. City of New York, 2021 WL 4896477, at *6 (S.D.N.Y. Aug. 23, 2021), report and recommendation adopted, 2021 WL 4479384 (S.D.N.Y. Sept. 30, 2021). As relevant here, the Court held that a pro se parent cannot sue on behalf of his children for alleged violations of the children's personal rights, granted by the Fourth and Fourteenth Amendments, to be free from unreasonable searches and seizures. Id. at *7 ("[W]here - as here - a non-attorney parent attempts to brings claims asserting the rights of a minor child on a pro se basis, the court must dismiss those claims[.]").
On October 14, 2021, after the withdrawal of the Neglect Petition, plaintiff filed a motion for leave to further amend his complaint. (Dkt. 72.) He attached a copy of what is now the Third Amended Complaint, which alleges that the Neglect Petition was "based on information from plaintiff's August 23 [sic], 2019 arrest, that produced no evidence, only false allegations," and that the Family Court petition itself contained "false allegations" unsupported by "any evidence." TAC ¶¶ 13-14. In particular, plaintiff complains that defendants "did not include CPS Wade's [sic] report that exonerated Plaintiff of abuse allegations on visiting the family first," id. ¶ 8, and alleges that as a result of defendants' various false allegations he was "forced out of his home, subject to multiple arrests, embarrassment, defamation, and alienation of family." Id. ¶ 16.
The TAC invokes this Court's jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, TAC ¶ 1, and asserts six causes of action:
(1) A claim pursuant to 42 U.S.C. § 1983 for violating plaintiff's "right to be free from malicious prosecution," TAC ¶ 78;
(2) A claim, also pursuant to § 1983, alleging that the individual defendants failed to "intervene in each other's misconduct," id. ¶ 81, including the "fabrication of evidence concerning the plaintiff's arrest or neglect petition" and the examination and questioning of his daughters at BronxCare, id. ¶¶ 83-85;
(3) A state law malicious prosecution claim, id. ¶¶ 89-95;
(4) A claim brought under the New York Constitution for examining and questioning his daughters at BronxCare without parental consent or a court order, id. ¶¶ 96-101;
(5) A claim for negligent hiring and retention, alleged against the City and "A.C.S.," id. ¶ 106; and
(6) A Monell claim against the City for all of the misconduct attributed to the ACS employees, including the filing of the Neglect Petition and the events at BronxCare. Id. ¶¶ 108-116.
On November 1, 2021, after a conference, I issued an Order (11/1/21 Order) (Dkt. 75) granting plaintiff's motion for leave to amend and accepting the proposed TAC for that purpose, but only to the extent that it asserts claims that are not barred by Judge Daniel's September 30, 2021 decision. 11/1/21 Order at 1. I specified that defendants "need not respond" to the portions of the TAC (including the entire Fourth Cause of Action) arising out of the examination and questioning of plaintiffs' daughters at BronxCare or otherwise alleging that defendants deprived AOM and VJ of their rights to be free of unreasonable searches and seizures. Id. at 1-2.
C. The Motion to Dismiss
The City Defendants filed their motion to dismiss on December 1, 2021, supported by a memorandum of law (Def. Mem.) (Dkt. 78) and the Spears Declaration (with exhibits, as discussed above). Defendants argue that plaintiff's malicious prosecution claims (federal and state) fail because they arise from a "civil family court proceeding" and because plaintiff has not adequately alleged either lack of probable cause or malice; that defendant Blaise was not even involved in the filing of the Neglect Petition, while defendant Alama is entitled to qualified immunity; that plaintiff has not pled a viable Monell claim against the City; that his state law malicious prosecution claim fails for the additional reason that he did not file a timely Notice of Claim; that his negligent hiring claim fails because defendants were acting within the scope of their employment; and that upon the dismissal of plaintiff's federal claims this Court should decline to exercise supplemental jurisdiction over his state law claims. Def. Mem. at 4-18.
In response, plaintiff filed his opposition brief (with exhibits, as discussed above) and a declaration (Johnson Decl.) (Dkt. 82), which asserts among other things that AOM was diagnosed as pre-diabetic prior to the August 22, 2019 incident; that it was her medical condition that caused her neck to darken; and that plaintiff "did not drag, pull, or [take] any action that amounted [to] child abuse against his stepdaughter." Johnson Decl. ¶¶ 1(b), 1(f).
Acanthosis nigricans is "a condition that causes areas of dark, thick velvety skin in body folds and creases," typically affecting the armpits, groin and neck, and that "tends to affect people with obesity." Mayo Clinic, Acanthosis nigricans, https://www.mayoclinic.org/diseases-conditions/acanthosis-nigricans/symptoms-causes/syc-20368983 (last visited August 12, 2022).
In his brief, plaintiff argues that there was no probable cause for the filing of the Neglect Petition because the Progress Notes show "a different case." Pl. Opp. Mem. at ECF p. 4. Plaintiff points in particular to the evidence showing that when caseworker Waite made a visit to the Johnson home in the early morning hours of August 23, 2019 (at which point plaintiff was in custody and the Criminal Court OOP was in place), ACS assessed the risk of "imminent and impending danger" as "low," and deemed the injuries to AOM's neck not "serious" enough to "enhance" the case at that time to the Instant Response Team. Pl. Opp. Mem. at ECF pp. 4-5; Progress Notes at 9-13. Plaintiff further notes that although Ms. Johnson identified Janet Nunez as a babysitter for the children, see Progress Notes at 9, ACS did not interview Nunez. Pl. Opp. Mem. at ECF p. 4. According to plaintiff, "if the Family Court knew about this information early on the Neglect petition would have been rejected outright." Pl. Opp. Mem. at ECF p. 5.
Plaintiff further argues that on August 29, 2019 (the day after the Neglect Petition was filed), when Alama received AOM's medical records (see Progress Notes at 33-34), she must have learned that AOM was pre-diabetic and had Acanthosis nigricans, and therefore should have realized that the petition was "full of deceit [and] fantasy." Pl. Opp. Mem. at ECF pp. 6-7. According to plaintiff, defendants' failure to disclose AOM's diagnosis, as well as the information summarized above, supports his claim that defendants "misrepresented, falsified evidence, or otherwise acted in bad faith." Id. at ECF p. 7.
On January 12, 2022, defendants filed their reply brief (Def. Reply Mem.) (Dkt. 83), arguing, among other things, that plaintiff cannot "amend the TAC" or otherwise "cure the fatal pleading deficiencies therein" by submitting evidentiary exhibits with his opposition papers. Def. Reply Mem. at 2. Defendants also argue that the Removal Order issued by the Family Court on February 10, 2020 creates a "presumption of probable cause" for the filing of the Neglect Petition six months earlier, and that even if the Court were to consider the Progress Notes and other extrinsic documents submitted by plaintiff, nothing in those documents would "rebut the presumption of probable cause brought about by the Removal Order[]." Id at 8.
II. ANALYSIS
A. Legal Standards
1. Rules 8(a)(2) and 12(b)(6)
Fed. R. Civ. P. 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." If that "short and plain statement" fails to present "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," the deficient claims may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
When faced with a Rule 12(b)(6) motion, the trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy, 482 F.3d at 191. However, those factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Thus, "a pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (internal citations omitted) (quoting Twombly, 550 U.S. at 555, 557). The courts will not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. "The pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation." Geldzahler v. New York Med. Coll., 663 F.Supp.2d 379, 385 (S.D.N.Y. 2009).
In addition to the facts alleged in the body of the complaint, the court may consider documents "attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference," Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)); "documents that, although not incorporated by reference, are 'integral' to the complaint," Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018) (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)); and documents of which judicial notice may be taken, Chambers, 282 F.3d at 153 (citing Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)), including documents filed in related state court proceedings, which may be used to establish the existence of the state court case and the contents of its docket. Kramer, 937 F.2d at 774; Kurtz, 2021 WL 1143619, at *1 n.1.
2. Pro Se Parties
Where, as here, the plaintiff is pro se, his complaint must be construed "liberally, reading it with special solicitude and interpreting it to raise the strongest claims that it suggests." J.S. v. T'Kach, 714 F.3d 99, 103 (2d Cir. 2013) (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)). This mandate "applies with particular force when a plaintiff's civil rights are at issue." Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009). Thus, although ordinarily "a plaintiff may not shore up a deficient complaint through extrinsic documents submitted in opposition to a defendant's motion to dismiss," Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 122-23 (S.D.N.Y. 2010), in a pro se case the court may, in its discretion, consider factual allegations made in the plaintiff's opposition papers (or attachments thereto) "as supplementing the Complaint, at least to the extent they are consistent with the allegations in the Complaint." George v. Pathways to Hous., Inc., 2012 WL 2512964, at *6 n.7 (S.D.N.Y. June 29, 2012); accord Adeniji v. New York State Off. of State Comptroller, 2019 WL 4171033, at *2 (S.D.N.Y. Sept. 3, 2019); Elliott v. Nestle Waters N. Am. Inc., 2014 WL 1795297, at *7 (S.D.N.Y. May 6, 2014) (finding it "appropriate to consider" documents attached to a plaintiff's opposition in light of his pro se status). In this case, I have exercised my discretion to consider the factual allegations made in plaintiff's opposition papers, as well as the attachments thereto (including the Progress Notes) as supplementing the TAC.
However, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Maisonet, 640 F.Supp.2d at 348 (internal quotation marks and citation omitted). Thus, even a pro se plaintiff "must state a plausible claim for relief." Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Moreover, the court need not accept allegations that are "contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint." Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005).
3. Section 1983
All of plaintiff's federal claims are brought pursuant to 42 U.S.C. § 1983, which permits civil suits against those who, acting "under color" of state law, have deprived a plaintiff of "any rights, privileges, or immunities secured by the Constitution" or laws of the United States. 42 U.S.C. § 1983. "Section 1983 does not create any federal rights; rather, it provides a mechanism to enforce rights established elsewhere." Soberanis v. City of New York, 244 F.Supp.3d 395, 400 (S.D.N.Y. 2017) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002)). To state a claim under § 1983, "a plaintiff must allege that (1) the defendant was a state actor, i.e., acting under color of state law, when he committed the violation and (2) the defendant deprived the plaintiff of 'rights, privileges or immunities secured by the Constitution or laws of the United States.'" Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (citation omitted). Here, it is undisputed that the defendant ACS employees were "acting under color of state law" in connection with the neglect case against plaintiff. See Alford v. City of New York, 413 F.Supp.3d 99, 113 (E.D.N.Y. 2018) (ACS employees "clearly qualify as state actors").
The First Cause of Action, for malicious prosecution, and the Second Cause of Action, accusing the individual defendants of "fail[ing] to intervene in each other's misconduct," expressly invoke § 1983. The Sixth Cause of Action invokes Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978), and seeks to hold the City liable for the alleged constitutional torts of the individual defendants. In Monell, the Court held that a municipality "can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 169. Thus, a Monell claim is a § 1983 claim. See Kurtz, 2021 WL 1143619, at *7 n.8 ("The Monell doctrine . . . relates uniquely to § 1983 claims against municipal entities.").
B. Plaintiff Cannot Bring this Action Pro Se on Behalf of His Minor Children
As discussed in Johnson v. City of New York, a non-attorney parent may not bring claims for unlawful search or seizure on behalf of his minor children, because those claims are personal to the children. 2021 WL 4896477, at *8. Moreover, although Judge Daniels dismissed all such claims in the Second Amended Complaint, see Johnson v. City of New York, 2021 WL 4479384, at *3, plaintiff appears to have reasserted at least some of them, as against the City Defendants, in the Fourth Cause of Action and elsewhere in the Third Amended Complaint. See TAC ¶¶ 76(d)-(f), 83-86, 96-101, 103, 115. For clarity, therefore, I recommend that all of plaintiff's claims premised on defendants' allegedly unlawful search and/or seizure of his minor daughter and/or stepdaughter - and all of his other claims, however denominated, brought to vindicate his children's rights rather than his own - be dismissed without prejudice.
Accord Grullon v. Admin. for Children's Servs., 2021 WL 981848, at *9 (S.D.N.Y. Mar. 16, 2021); Vidarte v. Burgos, 2021 WL 2646613, at *3 (S.D.N.Y. June 28, 2021); McFarlane ex rel. McFarlane v. City of New York, 2014 WL 409112, at *2 (S.D.N.Y. Jan. 31, 2014).
C. Plaintiff Fails to State a Malicious Prosecution Claim
All of the remaining claims in the Third Amended Complaint sound in malicious prosecution. The First, Second, and Third Causes of Action allege that defendant Alama filed and pursued the Neglect Petition with "no basis," premised on "false allegations," for the malicious purpose of separating plaintiff from his family (or failed to prevent her colleagues from doing so). TAC ¶¶ 13-15, 78-79, 81-82, 87, 90-93. The Fifth Cause of Action, for negligent hiring, and the Sixth Cause of Action, pleaded under Monell, seek to hold the City liable for the conduct of Alama and Blaise. The key question for this Court, therefore, is whether plaintiff has stated any cognizable claim, against any ACS employee, for malicious prosecution.
Plaintiff also suggests - at least in his brief - that both Alama and Blaise can be held liable for malicious prosecution for their (unspecified) role in obtaining the Removal Order issued by the Family Court on February 10, 2020. See Pl. Opp. Mem. at ECF p. 7.
There can be "no municipal liability under § 1983" in the absence of "an underlying [constitutional] violation by a [City] official." Simpson v. Town of Warwick Police Dep't, 159 F.Supp.3d 419, 434 (S.D.N.Y. 2016). Similarly, there can be no liability for the "negligent hiring" of employees in the absence of intentionally tortious misconduct by those employees. See H & H Int'l Corp. v. J. Pellechia Trucking, Inc., 119 F.R.D. 352, 353 (S.D.N.Y. 1988).
"In order to prevail in an action for malicious prosecution in New York, a plaintiff must show: '1) the initiation of an action by the defendant against [him], 2) begun with malice, 3) without probable cause to believe it can succeed, 4) that ends in failure or, in other words, terminates in favor of the plaintiff.'" Engel v. CBS, Inc., 145 F.3d 499, 502 (2d Cir. 1998) (quoting O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir.1996)), certified question accepted, 92 N.Y.2d 867, 700 N.E.2d 310 (1998), and certified question answered, 93 N.Y.2d 195, 711 N.E.2d 626 (1999). To plead a federal malicious prosecution claim under § 1983, a plaintiff must establish the elements of a malicious prosecution claim under state law and must also "show a violation of his rights under the Fourth Amendment." Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (citations omitted); see also Callahan v. City of New York, 90 F.Supp.3d 60, 71 (E.D.N.Y. 2015) ("One of the requirements of a Section 1983 claim for malicious prosecution is that the plaintiff must have suffered a deprivation of his Fourth Amendment rights, i.e., the plaintiff must have been seized in relation to the specific proceeding alleged to be malicious.")
1. Civil vs. Criminal Proceeding
Malicious prosecution claims typically arise from criminal proceedings. Defendants argue, on this basis, that all of plaintiff's malicious prosecution claims should be dismissed. Def. Mem. at 5. Under New York law, however, it is clear that a malicious prosecution claim may be premised on a prior civil suit, with two caveats. First, "when the underlying action is civil in nature the want of probable cause must be patent." Butler v. Ratner, 210 A.D.2d 691, 693, 619 N.Y.S.2d 871, 874 (3d Dep't 1994); accord Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610, 613-14, 23 N.Y.S.3d 173, 177 (1st Dep't 2015); Liberty Synergistics, Inc. v. Microflo Ltd., 50 F.Supp.3d 267, 290 (E.D.N.Y. 2014).
Second, "where the alleged malicious prosecution was a civil action, [the plaintiff] must also demonstrate a 'special injury,' i.e., 'some interference with [the] plaintiff's person or property . . . beyond the ordinary burden of defending a lawsuit.'" McCaul v. Ardsley Union Free Sch. Dist., 514 Fed.Appx. 1, 4 (2d Cir. 2013) (summary order) (quoting Engel v. CBS, Inc., 145 F.3d 499, 502 (2d Cir.), certified question accepted, 92 N.Y.2d 867, 700 N.E.2d 310 (1998), and certified question answered, 93 N.Y.2d 195, 711 N.E.2d 626 (1999)). Here, plaintiff has adequately pleaded a "special injury" as required by state law, by alleging that the Family Court neglect proceedings, including the Family Court OOP, kept him away from his children on pain of arrest, thus "interfering" with his person and family life in a manner far more profound than the "ordinary burden of defending a lawsuit." Cf. McCaul, 514 Fed.Appx. at 3-4 (malicious prosecution claim arising out of neglect petition was properly dismissed because, although plaintiff "spent thousands of dollars to retain an attorney and suffered distress and anxiety," she "does not allege that her parental custody was ever interrupted").
Under federal law, the matter is less well settled. See Walker v. City of New York, 621 Fed.Appx. 74, 76 (2d Cir. 2015) (summary order) ("the law in our Circuit is unsettled as to whether child removal proceedings can give rise to a federal claim for malicious prosecution of a parent"). In Washington v. Cnty. of Rockland, 373 F.3d 310, 316 (2d Cir. 2004), the Second Circuit held that "to sustain a § 1983 malicious prosecution claim, there must be a seizure or other 'perversion of proper legal procedures' implicating the claimant's personal liberty and privacy interests under the Fourth Amendment." The plaintiffs in that case - who alleged that they were wrongfully subjected to a civil disciplinary proceeding - could not make the required showing, because they "were charged in an administrative proceeding, and, critically, were never taken into custody, imprisoned, physically detained or seized within the traditional meaning of the Fourth Amendment." Id. Since then, however, a number of cases within our Circuit have held that "the removal of a child from her parents, via civil family court proceedings, implicates sufficient constitutional interests to support a [federal] malicious prosecution claim." Kurtz, 2021 WL 1143619, at *13 (collecting cases); see also, e.g., Cornejo v. Bell, 2008 WL 5743934, at *12 (E.D.N.Y. May 19, 2008) ("[T]he removal of Cornejo's son is sufficient to meet that threshold."), aff'd, 592 F.3d 121 (2d Cir. 2010); Providencia V. v. Schutlze, 2007 WL 1582996, at *5 n.3 (S.D.N.Y. May 31, 2007) ("[T]he removal of Plaintiffs' son is sufficient to meet the threshold for applicability of this doctrine.")
But see Walker v. City of New York, 63 F.Supp.3d 301, 317 n.12 (E.D.N.Y. 2014) ("It is likely that no plaintiff in this action can even state a claim for a malicious prosecution as the Adult Plaintiffs have not been seized, and Infant Plaintiffs have not been prosecuted.") (internal quotation marks and citation omitted).
In this case, as in Kurtz, plaintiff alleges that, as a result of the Family Court proceeding, his access to his children was "highly restricted" for a substantial period of time, 2021 WL 1143619, at *13, and he was "forced out of his home." TAC ¶ 16. This may be an "impingement . . . substantial enough to support a claim for malicious prosecution." Kurtz, 2021 WL 1143619, at *13. According, I do not recommend dismissal of plaintiff's federal malicious prosecution claims solely because they arise from a civil Family Court proceeding
2. Termination in Plaintiff's Favor
The Neglect Petition was withdrawn on August 3, 2021. TAC ¶ 75. As defendants concede (Dkt. 86), a malicious prosecution plaintiff need only show that the claims against him were dismissed; he need not establish that the dismissal was "indicative of innocence" as previously required in this Circuit. See Thompson v. Clark, 142 S.Ct. 1332, 1335 (2022) (abrogating Lanning v. City of Glens Falls, 908 F.3d 19 (2d. Cir. 2018), and holding that, to demonstrate the "favorable termination" element of a malicious prosecution claim under § 1983, "a plaintiff need only show that his prosecution ended without a conviction"). Consequently, plaintiff has adequately pleaded the favorable termination element of his malicious prosecution claims.
3. Probable Cause
"[T]he existence of probable cause is a complete defense to a claim of malicious prosecution in New York." Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003). Thus, "[n]o claim for malicious prosecution can survive" - whether state or federal, direct or vicarious - "if there was probable cause for the prosecution.” Buari v. City of New York, 530 F.Supp.3d 356, 384 (S.D.N.Y. 2021) (citing Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003)). This rule applies with full force to claims arising out of Family Court proceedings. See Slater v. Mackey, 2015 WL 6971793, at *15 (E.D.N.Y. Nov. 10, 2015) ("A finding of probable cause will negate a claim of malicious prosecution premised on a Neglect Petition.").
Under New York law, probable cause to prosecute is "the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of." Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994) (quoting Pandolfo v. U.A. Cable Systems of Watertown, 171 A.D.2d 1013, 1013, 568 N.Y.S.2d 981, 982 (4th Dep't 1991)); accord Grullon, 2021 WL 981848, at *11; Berry v. Marchinkowski, 137 F.Supp.2d 495, 537 (S.D.N.Y. 2015). While this is "a more exacting standard than the standard required to support an arrest," Emanuel v. Griffin, 2015 WL 1379007, at *8 (S.D.N.Y. Mar. 25, 2015), it is tempered by the rule, explained above, that where the underlying action is civil, "the want of probable cause must be patent." Butler, 210 A.D.2d at 693, 619 N.Y.S.2d at 874. This is because "obviously less in the way of grounds for belief will be required to justify a reasonable [person] in bringing a civil rather than a criminal suit." Id. (citation omitted).
Importantly, "the issuance of a temporary injunction or similar judicial recognition of the merit of the underlying case creates a presumption of probable cause and places upon the plaintiff the burden of pleading facts sufficient to overcome it." Grullon, 2021 WL 981848, at *11 (quoting Butler, 210 A.D.2d at 693-94, 619 N.Y.S. at 874); see also Emanuel, 2015 WL 1379007, at *8 ("the Family Court's finding of 'good cause' to issue a protective order against Richard" created a presumption of probable cause for the underlying child abuse petition). In this case, as in Emanuel, the Family Court found good cause for the issuance (and renewal) of an OOP, thus creating a presumption that the underlying Neglect Petition was supported by probable cause.
Defendants argue that the Removal Order, issued on February 10, 2020, "conclusively establishe[d] a presumption of probable cause[.]" Def. Mem. at 7. I disagree. The Removal Order was prompted by new facts - namely, the arrest of Ms. Johnson on criminal child abuse charges -that did not exist at the time the original Neglect Petition was filed six months earlier. The Family Court OOP, however, was initially issued immediately after the filing of the Neglect Petition, based on the same factual showing underpinning the petition itself, and thus constituted a "judicial recognition of the merit of the underlying case." Grullon, 2021 WL 981848, at *11.
Nothing in the Third Amended Complaint - even as supplemented by plaintiffs opposition papers - rebuts that presumption, much less makes "the want of probable cause . . . patent." Butler, 210 A.D.2d at 693, 619 N.Y.S.2d at 874. To the contrary: plaintiff's own admissions, together with the Progress Notes he placed before the Court, confirm that the Neglect Petition was based on the statements of AOM herself, her mother, and her younger sister, all of whom told NYPD officers and ACS caseworkers - consistently - that on August 22, 2019, plaintiff grabbed AOM "by her sweatshirt and dragged her out of the bedroom and into the living room," causing AOM to "suffer[] pain around her neck" and have "a hard time speaking." Pet. at ECF p. 6; see also Progress Notes at 8-11 (interviews by caseworker Waite), 14-20 (interviews by defendant Alama). AOM also told ACS that plaintiff had been violent twice before, once grabbing her by the hair to throw her out of a bedroom and once striking her on the face with an open hand, causing her lip to bleed. Pet. at ECF pp. 6-7; Progress Notes at 15. Additionally, NYPD officers and ACS caseworkers directly observed (and photographed) AOM's neck, see Progress Notes at 10 ("AOM has contusion around her neck"), 13 ("she had red marks on her neck"), 50 ("in the picture [taken by NYPD on August 22] there is visible redness around the child's neck"), and defendant Alama spoke to NYPD Officer Diaz, who told her that when he saw AOM on August 22, 2019, "he was able to observe scratches and bruises on or about [AOM's] neck." Pet. at ECF p. 7; Compl. ¶ 40 ("Officer Diaz stated to A.C.S. that he 'personally observed scratches and bruises on or about [AOM's] neck and took photos.[']").
"These facts plainly establish probable cause to bring a petition against [plaintiff]." Emanuel, 2015 WL 1379007, at *9 (child's report of alleged molestation was sufficient to establish probable cause for abuse petition); see also Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (law enforcement officers "are entitled to rely on the victim's allegations that a crime has been committed"); Rosen v. Alquist, 2012 WL 6093909, at *11 (D. Conn. Dec. 7, 2012) ("Sergeant Alquist was entitled in his probable cause analysis to rely on the consistent statements made by the alleged victim that Mr. Brown had sexually assaulted her, and on Alquist's interviews with Lleidy Deleon and the alleged victim's brother, which corroborated or supplemented the girl's allegations."); Hotaling v. LaPlante, 167 F.Supp.2d 517, 521 (N.D.N.Y. 2001) (probable cause is properly based on victim and witness interviews,"[b]ecause a reasonable person would find that the statements of the alleged victim and witnesses to the incident constitute knowledgeable and trustworthy sources").
Here, although plaintiff alleges broadly that the Neglect Petition was "fabricated," TAC ¶¶ 13-14, he does not deny that his wife, step-daughter, and daughter made the quoted statements to the NYPD and ACS. Nor does he deny that both the NYPD officers and the ACS caseworkers observed redness and contusions to AOM's neck. Instead, plaintiff clutches at straws, critiquing ACS for (i) failing to interview a babysitter who, insofar as he record shows, was not present for the incident on August 22, 2019; (ii) failing to expressly state in the petition that AOM's neck injury was not "serious" enough to call in the IRT, or that the agency deemed the risk of "imminent" danger "low" (given that plaintiff was in custody and would be subject to an OOP upon release, see Progress Notes at 11, 21); and (iii) failing to recognize, upon receipt of AOM's medical records, that the marks that the caseworkers and police officers observed on AOM's neck might have been caused by Acanthosis nigricans rather than by her stepfather. Pl. Opp. Mem. at 4-5.
Acanthosis nigricans "causes areas of dark, thick velvety skin in body folds and creases," Mayo Clinic, Acanthosis nigricans, https://www.mayoclinic.org/diseases-conditions/acanthosis-nigricans/symptoms-causes/syc-20368983. There is no suggestion in the record of this action that it causes redness, scratches, or contusions. See Pet. at ECF pp. 6-7; Progress Notes at 10, 12, 50.
None of these alleged omissions, singly or in the aggregate, shows that "defendants' submissions to the family court were 'intentionally or recklessly false, as the result of defendants' conduct,'" as required to rebut the presumption of probable cause. Kurtz, 2021 WL 1143619, at *15 (quoting Estiverne v. Esernio-Jenssen, 833 F.Supp.2d 356, 379 (E.D.N.Y. 2011)). While police officers (and, by extension, ACS caseworkers) "may not disregard plainly exculpatory evidence," Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006), neither are they "required to explore and eliminate every theoretically plausible claim of innocence" before making an arrest or filing a neglect petition. Id. at 396 (quoting Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001)). Similarly, the theoretical possibility that all three female members of the Johnson family were lying to the NYPD and ACS (which is what plaintiff now implies) does not undercut probable cause, as defendants "had no reason to doubt these witnesses' reliability." Simpson v. Town of Warwick Police Dep't, 159 F.Supp.3d 419, 436 (S.D.N.Y. 2016) (collecting cases); see also Parisi v. Suffolk Cnty., 2009 WL 4405488, at *6-7 (E.D.N.Y. Nov. 30, 2009) ("[T]he probable cause standard does not require that the arresting officer affirmatively seek out reasons to doubt the victim or witness where none are apparent."); Hotaling, 167 F.Supp.2d at 521 ("[A] police officer may rely upon the statements of victims and witnesses to determine the existence of probable cause for the arrest . . . regardless of the ultimate accurateness or truthfulness of the statements.") (citation omitted).
Thus, even after accepting the extrinsic documents submitted to this Court by plaintiff, and drawing all reasonable inferences raised by those documents in his favor, McCarthy, 482 F.3d at 191, I cannot conclude that plaintiff has made a "plausible allegation that ACS fabricated evidence or knew that the evidence upon which it was relying was fabricated or concealed mitigating facts[.]" Grullon, 2021 WL 981848, at *11. Since plaintiff has failed to overcome the presumption of probable cause with respect to the Neglect Petition, all of his malicious prosecution claims arising out of that petition should be dismissed.
To the extent plaintiff's claims arise out of the Removal Order issued on February 10, 2020, they also fail. As plaintiff acknowledges, that order was prompted by Ms. Johnson's February 7, 2020 arrest on child abuse charges. TAC ¶ 40. Although he alleges in a single sentence that defendants Alama and Blaise "submitted a false allegation for removal against the plaintiff's wife," id. ¶ 52, he offers no facts to suggest that probable cause was lacking for the arrest. Nor, for that matter, does he suggest that Alama or Blaise - who met the children at BronxCare after their mother was arrested - played any role in the criminal process leading to that arrest.
4. Malice
A malicious prosecution plaintiff must plead and prove that the defendant acted with "actual malice," Manganiello, 612 F.3d at 161, which means "a wrong or improper motive, something other than a desire to see the ends of justice served." Barnes v. City of New York, 338 F.Supp.3d 317, 325 (S.D.N.Y. 2018) (quoting Fulton v. Robinson, 289 F.3d 188, 198 (2d Cir. 2002); Irish v. The City of New York, 2010 WL 5065896, at *5 (S.D.N.Y. Dec. 6, 2010) (quoting Williams v. City of New York, 2003 U.S. Dist. LEXIS 19078, at *23 (S.D.N.Y. Oct. 23, 2003)). Here, plaintiff freely sprinkles the words "malice" and "malicious" throughout his pleading, see FAC ¶¶ 79, 87, 91, 92. 91, but offers no concrete facts or "non-speculative" allegations that would suggest that the ACS caseworkers involved with the Johnson family acted out of any improper or ulterior motive. Nor, of course, can the Court infer malice from a lack of probable cause, cf. Kurtz, 2021 WL 1143619, at *16 ("at the pleadings stage, lack of probable cause generally raises an inference of malice") (citation omitted), because plaintiff has not overcome the presumption of probable cause with respect to the neglect proceedings against him. For this reason as well, all of plaintiff's malicious prosecution claims should be dismissed.
D. Remaining Issues
Because plaintiff has not adequately pleaded either lack of probable cause or malice, there is no need to consider defendants' remaining arguments. See Irish, 2010 WL 5065896, at *5 ("Because the Court's finding rests on the probable cause determinations, there is no need to reach Detective Banker's argument that he is entitled to qualified immunity.") For the sake of completeness, however, I will briefly explain why, even if plaintiff had plausibly alleged these elements, all of his federal claims should be dismissed pursuant to Rule 12(b)(6), and any remaining state law claims should be dismissed for lack of subject matter jurisdiction.
1. Qualified Immunity (Alama)
Under federal law, "[i]ndividual government actors performing discretionary tasks are entitled to qualified immunity if: '(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.'" Slater, 2015 WL 6971793, at *6 (quoting Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 103 (2d Cir. 1999)). As against a malicious prosecution claim, a state actor is entitled to qualified immunity if she "had arguable probable cause to arrest the plaintiff." McKay v. City of New York, 32 F.Supp.3d 499, 511 (S.D.N.Y. 2014). As noted above, defendant Alama personally interviewed AOM, her mother, and her sister, all of whom reported that plaintiff committed the precise conduct alleged in the Neglect Petition, and obtained corroboration from the NYPD officer to whom they initially made that report. At a minimum, therefore, Alama had "arguable probable cause" to sign the petition, and plaintiff's § 1983 claims should be dismissed as against her.
2. Lack of Personal Involvement (Blaise, Hansell)
A plaintiff suing under § 1983 must plausibly allege the personal involvement of every individual defendant named. See Johnson v. Coombe, 156 F.Supp.2d 273, 278 (S.D.N.Y. 2001) ("It is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983' and that a complaint must allege such personal involvement.") (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)); Ragland v. Coulter, 2021 WL 4430271, at *4 (E.D.N.Y. June 25, 2021) (dismissing claims against Commissioner Hansell and various ACS personnel for failure to allege "any Individual Defendant's personal involvement in the events at issue").
Thus, although supervisory personnel can be sued under § 1983, they "cannot be held liable based solely on the alleged misconduct of their subordinate[s]." Kee v. Hasty, 2004 WL 807071, at *12 (S.D.N.Y. Apr. 14, 2004); see also Case v. City of New York, 233 F.Supp.3d 372, 398 (S.D.N.Y. 2017) ("a plaintiff cannot bring a Section 1983 claim against [an individual] based solely on [his] supervisory capacity or the fact that [he] held high positions of authority") (quoting Hobson v. Fischer, 2011 WL 891314, at *3 (S.D.N.Y. Mar. 14, 2011)). In the case of a supervisory defendant, "personal involvement" means "direct participation or 'failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates.'" Coombe, 156 F.Supp.2d at 278 (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)).
As noted above, plaintiff alleges no facts suggesting that defendant Blaise had any involvement in the Neglect Petition. As to defendant Hansell, plaintiff pleads in conclusory terms that he "allowed or ignore[d] the actions of his subordinates," TAC ¶ 69, but he offers no concrete facts that would save his claim. See Kee, 2004 WL 807071, at *12 ("Conclusory accusations regarding a defendant's personal involvement in the alleged violation, standing alone, are not sufficient[.]"). Consequently, even if the Neglect Petition were not supported by probable cause, plaintiff's § 1983 claims against Blaise and Hansell would fail. See Ragland, 2021 WL 4430271, at *4; Hudson v. Greiner, 2000 WL 1838324, at *3 (S.D.N.Y. Dec. 13, 2000) ("Hudson's conclusory statement that defendant Greiner failed to supervise the prison will not withstand the motion to dismiss.").
3. Monell Claim
Like supervisory liability, "[m]unicipal liability in a § 1983 action may not rest on respondeat superior or vicarious liability. Instead, to hold a municipality liable under § 1983 for unconstitutional actions of its employees, a plaintiff must prove that there was a municipal policy or custom that directly subjected [him] to a constitutional violation." Kurtz, 2021 WL 1143619, at *18 (citation omitted). To succeed on a Monell claim, a plaintiff must show: "(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees." Id. (citing Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010)). Here, as plaintiff himself appears to acknowledge, see Pl. Opp. Mem. at ECF p. 8 ("it is an uphill battle to establish a Monell liability under Section 1983"), he has offered nothing but "speculative and conclusory allegations of an unlawful custom and practice," which are "insufficient to support a claim of municipality liability" under Monell. Irish, 2010 WL 5065896, at *5.
4. State Law Claims
Plaintiff's state law claims are within this Court's supplemental jurisdiction only because they form "part of the same case or controversy" as his § 1983 claims. See 28 U.S.C. § 1367(a). Supplemental jurisdiction may be declined where "the district court has dismissed all claims over which it has original jurisdiction." Id. § 1367(c)(3). Although the statute is phrased in discretionary terms, and there is no "mandatory rule to be applied inflexibly in all cases," Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988), in the "usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims." Id.; see also Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 123 (2d Cir. 2006) (reversing district court decision to retain supplemental jurisdiction over state law claims after dismissing federal claim, citing "the absence of a clearly articulated federal interest"); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir.1998) ("In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well.").
There is no discernable federal interest embedded in plaintiff's state-law malicious prosecution or negligent hiring claims. Nor do any of the other Cohill factors militate in favor of this Court retaining jurisdiction over those claims. See Irish, 2010 WL 5065896, at *6 (declining to exercise supplemental jurisdiction after dismissal of malicious prosecution claims brought under § 1983). As an alternative to dismissing all of plaintiff's claims on the merits, therefore, the Court may, upon the dismissal of plaintiff's federal claims, dismiss the remaining state law claims, without prejudice to refiling in state court, for lack of subject-matter jurisdiction.
E. No Leave to Amend Should Be Granted
"Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (internal quotation marks and citation omitted). Here, however, plaintiff has formally amended his complaint three times, and has effectively amended it a fourth time through his opposition to the City Defendants' motion to dismiss. Nothing in the now-extensive record of this action suggests that plaintiff could, through repleading, cure the defects that require dismissal of his Third Amended Complaint. To the contrary: the Progress Notes, far from "exonerat[ing] Plaintiff of abuse allegations," TAC ¶ 8, demonstrate that the ACS personnel assigned to his case had ample probable cause to initiate and pursue neglect proceedings against him. Consequently, any amendment would be futile. See Jackson v. Wells Fargo Home Mortgage, 811 Fed.Appx. 27, 30 (2d Cir. 2020) (pro se plaintiff may be denied leave to amend where "amendment would be futile") (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (affirming denial of leave to amend where the pro se plaintiff "suggested no new material she wishes to plead").
"[W]here pleading deficiencies have been identified a number of times and not cured, there comes a point where enough is enough." State Street Global Advisors Tr. Co. v. Visbal, 462 F.Supp.3d 435, 443 (S.D.N.Y. 2020). That point has been reached here.
III. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that defendants' motion to dismiss be GRANTED; that his claims on behalf of his children be dismissed without prejudice; and that his remaining claims, federal and state, be dismissed with prejudice for failure to state a claim upon which relief can be granted.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. George B. Daniels at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Daniels. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).