Opinion
20-CV-3083 (GBD) (BCM)
08-23-2021
VANDYKE JOHNSON, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
TO THE HON. GEORGE B. DANIELS
Plaintiff Vandyke Johnson brings this action pursuant to 42 U.S.C. § 1983 against the City of New York (City), the Commissioner of the New York City Administration for Children's Services (ACS), ACS employees Diana Alama and Sheena Blaise, and BronxCare Health System, formerly known as Bronx Lebanon Hospital (BronxCare), seeking damages in connection with a series of incidents in late 2019 and early 2020 involving his minor daughter and stepdaughter. The claims against BronxCare all arise from a single incident on February 7, 2020, when plaintiff's wife - a nonparty here - was arrested and charged with child abuse. After the arrest, BronxCare medical personnel, acting at the request of ACS, examined both girls without plaintiff's consent or a court order. In his Second Amended Complaint (SAC) (Dkt. No. 25), plaintiff claims that in so doing BronxCare violated the children's rights under the Fourth and Fourteenth Amendment to be free of unreasonable searches and seizures. He also asserts a procedural due process claim, under the Fourteenth Amendment, on behalf of himself and the children, and related state law claims.
Now before me for report and recommendation is BronxCare's motion (Dkt. No. 35) to dismiss all claims against it pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Because plaintiff is proceeding pro se, and is not an attorney, he cannot sue BronxCare on behalf of his minor children. Consequently, all of his claims based on the children's rights, rather than his own, should be dismissed without prejudice. Plaintiff's remaining federal claim against BronxCare - predicated on his personal right to procedural due process in connection with the examination of his children - should also be dismissed, because plaintiff has failed to plead any facts that would render the hospital liable under § 1983 for the constitutional torts allegedly committed by the (unnamed) doctors who conducted the examinations. In the absence of any viable federal claim against BronxCare, plaintiffs state law claims against it should be dismissed as well, without prejudice.
I. BACKGROUND
As required by McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007), I accept plaintiffs 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 actions and submitted herein "to establish the fact of such litigation and related filings." Id. at 774.
Although the allegations at issue in BronxCare's motion stem from a single incident, they are best understood in the context of the Johnson family's troubled history with ACS, which has thus far spawned a No. of state court cases and two federal actions.
On August 29, 2019, prior to the commencement of this action, plaintiff filed Johnson v. Alma, No. 19-CV-8093-CM (S.D.N.Y.) (hereafter Johnson I), naming as defendants Diana Alama, a child protective specialist at ACS (mistakenly identified as Diana "Alma" in the Johnson I complaint); ACS Commissioner David A. Hansell; and the City.
On August 22, 2019, plaintiff was "accused of a serious incident." SAC ¶ 14. Specifically, plaintiff was arrested and charged with assault in the third degree, endangering the welfare of a child, and related offenses. See Order of Dismissal, Johnson I, ECF No. 6 (Oct. 15, 2019), at 2. The complainant in the criminal case was plaintiffs stepdaughter AOM, who was then fourteen years old. Id. In related Family Court proceedings, ACS employee Alama was assigned to investigate the claims of abuse. Id. On August 28 or 29, 2019, after a hearing at which plaintiff was not present, the Family Court issued a temporary order of protection "preventing plaintiff from contacting his wife and children." Id.
In Johnson I, plaintiff alleged, among other things, that defendants violated his constitutional rights by failing to inform him of that Family Court hearing. Order of Dismissal, Johnson I, at 1-3. Noting that the Family Court case was still open, Chief Judge Colleen A. McMahon dismissed plaintiff's initial federal case in its entirety "as barred by the domestic relations exception to federal jurisdiction and the Younger abstention doctrine," Id. at 9, and later denied plaintiff's motion to reopen the case. Order, Johnson I, ECF No. 9 (December 11, 2019).
On November 14, 2019, the Family Court renewed the ex parte order of protection. See City Ltr. dated March 25, 2021 (Dkt. No. 51), Ex. A. The November 14 order required plaintiff to stay away from his stepdaughter AOM and his biological daughter VJ (then five years old), except for certain agency-supervised or agency-authorized contact. Id. It also required plaintiff to stay away from the girls' home, their schools, and their mother Mercedes Johnson, who is plaintiff's wife. Id. Ms. Johnson was not a respondent, at that time, in the Family Court proceedings.
On November 25, 2019, the initial criminal case against plaintiff was dismissed. SAC ¶ 15 & Ex. A-1. Apparently under the impression that he was no longer subject to any order of protection, plaintiff went home to the apartment where his wife and both girls lived. Id. ¶¶ 16-20. Shortly thereafter, Alama arrived, but plaintiff would not permit her to enter the apartment. Id. ¶¶ 21-26. Alama contacted the New York Police Department (NYPD) and, when they arrived, showed them what plaintiff characterizes as an "expired order of protection" on her phone. Id. ¶ 30. Plaintiff was then arrested. Id. ¶ 32. Three months later, on March 5, 2020, plaintiff's criminal contempt case, arising out of the November 25, 2019 incident, was dismissed. SAC ¶ 34 & Ex. A-2.
During a December 11, 2019 Family Court hearing, plaintiff claimed that he was improperly arrested on November 25, 2019 for violating "[t]he Criminal Court order of protection that was no longer in effect." SAC Ex. B, 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." Id. at 10:2-5. She also testified that the NYPD showed plaintiff "the active order of protection from Family Court" before arresting him. Id. at 11:23-25. Alama's 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." See Pl. Ltr. dated March 26, 2021 (Dkt. No. 53), Ex. A.
Meanwhile, on February 7, 2020, plaintiff learned that "his wife was arrest[ed] on allegations of child abuse" and that his stepdaughter AOM "was involved in the incident." SAC ¶ 35. Plaintiff sent his wife's cousin, Elis Ramirez (who was authorized to have contact with the children), to pick up his daughter VJ from school. Id. ¶ 36; see also Declaration of Elis Ramirez (Ramirez Decl.) (Dkt. No. 44 at ECF pages 3-4) ¶ 2. Thereafter, ACS contacted Ramirez and directed her to bring VJ to the emergency room at BronxCare. SAC ¶ 37; Ramirez Decl. ¶ 4. When plaintiff arrived at the hospital, defendant Sheena Blaise, another child protective specialist at ACS, explained the allegations against plaintiff's wife. SAC ¶ 39. Mercedes Johnson was charged with assault in the second degree (a felony) and criminal obstruction of breathing. See Pl. Ltr. dated March 26, 2021, Ex. B-2, at ECF page 15. The criminal complaint alleged that she struck AOM with a belt and "pulled the belt around [AOM's] neck." Id.
Although the SAC is unclear on this point, Ramirez attests that when she got to the hospital with VJ, AOM was already there. Ramirez Decl. ¶ 4. Defendant Alama was also present at the hospital. See SAC ¶ 45.
At the hospital, plaintiff told Blaise not to question or examine his daughter VJ. SAC ¶¶ 39-40. He also told an unnamed BronxCare doctor not to examine his daughter. Id. ¶ 41. Because plaintiff objected so "vigorously" to any examination of VJ, hospital officials called 911, and NYPD officers from the 46th Precinct "escorted [plaintiff] out of the emergency room." Id. ¶ 44. According to the SAC, both girls were then examined by "Doctors at the Bronx Health Care System," without a "judicial order or parental consent," id. ¶¶ 43, 45, after which the two ACS workers took the children to an "unknown location" and questioned them "for several hours" without parents or lawyers present. Id. ¶ 47. Later that night, ACS placed the children in foster care with a friend of plaintiff's wife. Id. ¶ 48; Ramirez Decl. ¶ 8.
Although the SAC clearly alleges that both girls were subjected to an "examination" at BronxCare, plaintiff suggests differently in his opposition brief (Pl. Opp.) (Dkt. No. 40), and accompanying declaration (Pl. Decl.) (Dkt. No. 40 at ECF pages 13-19), which assert that his biological daughter was told to take off her clothes and change into a hospital gown for an examination, but do not mention his stepdaughter having to do the same. See Pl. Opp. at 6-7; Pl. Decl. ¶ 19. For purposes of the pending motion to dismiss, I accept the allegation that both girls were examined at the hospital.
In his opposition brief, plaintiff states that after the girls were removed, he "immediately filed" an application pursuant to N.Y. Fam. Ct. Act § 1028 to return the children, and that it was granted after the Family Court "found that there was no imminent risk and the Plaintiff's biological daughter was allowed to go home on March 18, 2020." Pl. Opp. at 4. However, neither the March 18, 2020 Family Court order (submitted by plaintiff along with his opposition brief, see Dkt. No. 40 at ECF page 18) nor the underlying hearing transcript (submitted by plaintiff under cover of a letter to the Court dated May 20, 2021, see Dkt. No. 55 at ECF pages 3-44) suggests that the original removal was improper. Rather, the Family Court temporarily released the younger child, VJ, to her father, subject to various conditions including "the exclusion of the respondent mother . . . from the home." (Dkt. No. 40 at ECF page 18.) The older child, AOM, remained in foster care. In its removal orders, dated February 10, 2020, the Family Court found that the temporary removal of VJ and AOM from the family residence was "necessary to avoid imminent risk" to their "life or health" because their mother "struck and strangled [AOM] with a belt." City Ltr. dated March 25, 2021, Ex. B. The removal itself was initially made pursuant to § 1024 of the New York Family Court Act, which, as relevant here, authorizes an ACS employee to take custody of a child without a prior court order or parental consent "if (i) 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; and (ii) there is not time enough to apply for an order under section one thousand twenty-two of this article." N.Y. Fam. Ct. Act § 1024(a).
B. Procedural Background
In his original Complaint (Compl.) (Dkt. No. 2), filed in forma pauperis on April 16, 2020, plaintiff sued the City, several NYPD officers, the principal and the parent coordinator at VJ's public school, the New York City Department of Education (DOE), ACS employee Alama, and ACS Commissioner Hansell, alleging a variety of constitutional and common-law torts, most of them sounding in false arrest, malicious prosecution, or abuse of process. In an order dated May 5, 2020 (Order to Amend) (Dkt. No. 4), the Honorable Louis L. Stanton, United States District Judge, dismissed all of 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.
Plaintiff's claims against the school personnel and the DOE arose from an incident on February 12, 2020, when he attempted to pick up his daughter VJ from school but was arrested, again, for violating the Family Court order of protection. See Compl. ¶¶ 74-88.
On July 31, 2020, plaintiff filed an Amended Complaint (Am. Compl.) (Dkt. No. 10) which, among other things, dropped the NYPD officers, school officials, and DOE as defendants, but added BronxCare and a second ACS employee, then identified as "Jane Doe." Am. Compl. ¶¶ 5-12. The case was then reassigned to the Honorable George B. Daniels, United States District Judge, who directed the New York City Law Department to ascertain the identity of the Jane Doe defendant and gave plaintiff leave to "file a second amended complaint naming the Jane Doe defendant" on receipt of that information. (Dkt. No. 14.) On the same day, Judge Daniels referred the case to me for general pretrial management and report and recommendation on dispositive motions. (Dkt. No. 13.) After the Law Department identified the Jane Doe defendant as Sheena Blaise (Dkt. No. 22), plaintiff filed the SAC on January 4, 2021, naming Blaise as the second ACS employee present at BronxCare on February 7, 2020, and adding factual detail regarding the incident. SAC ¶¶ 7, 39-41, 45-48.
In the SAC, plaintiff invokes this Court's jurisdiction pursuant to 28 U.S.C. § 1331 and 1367, SAC ¶ 1, and sets forth five causes of action, each asserted against multiple defendants. As to BronxCare, plaintiff alleges:
First, that by "subject[ing] the children to invasive medical examination" without a parent present, hospital personnel deprived them of the right to be free of unreasonable searches and seizures, in violation of the Fourth and Fourteenth Amendments, and deprived him and the children of their right to due process under the Fourteenth Amendment, SAC ¶¶ 72-76;
Second, that BronxCare is liable for the conduct of its employees, as a matter of "municipal and supervisory liability," because it has "created a policy or custom under which unconstitutional practices occurred and allowed such policies or customs to continue," id. ¶ ¶ 78-80;
Third, that hospital personnel violated the New York Constitution, which also offers "[s]ecurity against unreasonable searches, seizures and interceptions," see N.Y. Const. art. I, § 12, and guarantees due process of law, see id. art. I § 6, by "perform[ing] an invasive examination of the children without parental consent and/or without judicial order," SAC ¶¶ 71(c)-(d), 82-85;
Plaintiff's claim under the New York Constitution is titled "Fourth Cause of Action" but is in fact the third claim listed in the SAC.
Fourth, that BronxCare is liable for the conduct of its employees because it was negligent in hiring and retaining the "incompetent and unfit" workers who "proximately caused plaintiff's injuries," id. ¶¶ 87-91; and
Fifth, that it is liable for its employees' "tortious acts," under the doctrine of respondeat superior, because they were committed in the course of their employment. Id. ¶¶ 93-94.
On February 9, 2021, BronxCare filed its motion to dismiss, supported by a memorandum of law (Def. Mem.) (Dkt. No. 36), a declaration signed by attorney Milan P. Spisek (Dkt. No. 37) attaching several exhibits, and a Notice to Pro Se Litigant in accordance with Local Civil Rule 12.1 (Dkt. No. 39). Plaintiff filed his opposition memorandum on February 11, 2021, accompanied by his own declaration and followed by a letter (Dkt. No. 44) attaching the Ramirez declaration and other materials. On March 15, 2021, BronxCare filed a reply memorandum. (Dkt. No. 49.) On April 21, 2021, I heard argument on the motion. During the argument, plaintiff confirmed that, although the children's names do not appear in the caption of the SAC, he brought suit to redress violations of "my rights and my daughters' rights as well." See Tr. of Hr'g Apr. 21, 2021 (Tr.) (Dkt. No. 57) at 12:2-25.
On the same day, I conducted a pre-motion conference concerning a planned motion to dismiss by the City, Hansell, and the ACS employees (the ACS Defendants). During that conference, plaintiff stated that he would like to amend his claims against the ACS Defendants. See Tr. at 43:7-10. At the conclusion of the conference, I advised the parties that along with my report and recommendation on the BronxCare motion I would issue an order scheduling the parties' motions with respect to the claims against the ACS Defendants. Id. at 44:14-45:8.
II. BRONXCARE'S MOTION
BronxCare presents five arguments: (1) that plaintiff cannot pursue a constitutional claim against BronxCare under § 1983 because the hospital is not a state actor, Def Mem. at 10-12; (2) that BronxCare is entitled to statutory immunity under the Child Protective Services Act (CPSA), N.Y. Soc. Serv. Law §§ 411 et seq., which among other things immunizes hospital personnel from tort liability for a good faith report of suspected child neglect or abuse, Def. Mem. at 12-16; (3) that plaintiff "has failed to meet the threshold pleading requirement for a civil rights action" by failing to specify BronxCare's violative conduct, id. at 16-17; (4) that this Court lacks subject matter jurisdiction pursuant to the domestic relations exception, id. at 17-20; and (5) that BronxCare cannot be vicariously liable for its employees' alleged misconduct under § 1983 because plaintiff has failed to plead facts showing that the hospital authorized, supervised, or participated in the allegedly unconstitutional conduct. Id. at 20-23.
In response, plaintiff contends: (1) that BronxCare is a state actor because it willfully "participate[d] in the illegal medical examination of the Plaintiffs daughter[s]," Pl. Opp. at 6-7; (2) that it is not entitled to immunity because there were no "emergency circumstances," as required under Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), before an investigatory medical examination may be performed on a child, at the direction of ACS, without a court order or parental consent, Pl. Opp. at 4-5; (3) that the SAC "meet[s] the plausibility standard," id. at 7; (4) that "this is not a child custody case," but rather a complaint about an "illegal medical examination," id; and (5) that BronxCare is liable for its employees' constitutional torts under the principles set forth in the Restatement (Second) of Agency § 219 (1958). Id. at 8-9.
III. ANALYSIS
A. Standard for Motion to Dismiss Pursuant to Rule 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. The court may not credit "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "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)).
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), and permits the court, in its discretion, to consider factual allegations made in a pro se plaintiff's opposition papers (or the 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).
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).
B. Plaintiff Cannot Bring This Action Pro Se on Behalf of his Minor Children
Because it is plaintiff's minor children who were subjected to medical examinations at BronxCare (not plaintiff himself), he is necessarily asserting their rights (not his own) to be "free of unreasonable search and seizure" under the Fourth Amendment, as made applicable to the states through the Fourteenth Amendment, see SAC ¶ 73, and under the New York Constitution, see SAC ¶¶ 83-84. As the Second Circuit explained in Tenenbaum, 193 F.3d at 601 n.13 (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)), "'Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.'" Thus, parents "do not have . . . cognizable Fourth Amendment claims based on [their children's] examination" by (or at the direction of) local child welfare officials. Tenenbaum, 193 F.3d at 600.
Similarly, the Fourth Amendment right to be free of an unreasonable "seizure," including the removal of a child from her parents' home, is personal to the removed child. Tenenbaum, 193 F.3d at 600; accord Hollenbeck v. Boivert, 330 F.Supp.2d 324, 334 n.10 (S.D.N.Y. 2004) (Daniels, J.) ("If plaintiff Kevin and Sophie Hollenbeck's Fourth Amendment claims are based on the removal and detention of their children, therefore, they must be dismissed."). For purposes of the present motion, however, that question appears to be academic. BronxCare is not responsible for removing VJ from her elementary school, see SAC ¶ 37 (alleging that ACS directed plaintiff's cousin to bring VJ to the hospital), nor for removing VJ and AOM from the hospital and placing them in foster care. See id. ¶ 47 (alleging that after the medical examination, Blaise and Alama "took the children of Plaintiff to an unknown location" for questioning); id. ¶ 48 (alleging that Blaise and Alama "removed the children from the home" and "did not place the children with relatives"). As plaintiff confirmed in his motion papers, see Opp. Mem. at 7, and at oral argument, see Tr. at 17:12-18, his claims against BronxCare arise out of the medical examinations that hospital personnel allegedly performed on his children without his consent or a court order.
A father may, under certain circumstances, bring Fourth Amendment claims on behalf of a minor child. See, e.g., Tenenbaum, 193. F.3d at 600 (noting that "the Tenenbaums [had] standing to assert a Fourth Amendment-based claim against the defendants on [their daughter] Sarah's behalf" after child welfare officials removed Sarah from school and took her to a hospital for an investigatory medical examination without their consent or a court order). But he may not do so pro se, because "an individual who is not licensed as an attorney 'may not appear on another person's behalf in the other's cause.'" Machadio v. Apfel, 276 F.3d 103, 106 (2d Cir. 2002) (quoting Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)). "It is thus a well-established general rule in this Circuit that a parent not admitted to the bar cannot bring an action pro se in federal court on behalf of his or her child." Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (collecting cases); see also Cheung v. Youth Orch. Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) ("[I]t is not in the interests of minors . . . that they be represented by non-attorneys.").
Neither plaintiff nor BronxCare addresses this issue in their motion papers. Nonetheless, where - 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, and often does so sua sponte. See, e.g., Vidarte v. Burgos, 2021 WL 2646613, at *3 (S.D.N.Y. June 28, 2021) ("The Court must dismiss Plaintiff's claims that she asserts on behalf of her minor child."); Ghazi El for SS v. New York City's Admin. of Child Servs., 2021 WL 1600111, at *2 (S.D.N.Y. Apr. 22, 2021) (dismissing without prejudice "any claims Petitioner asserts on behalf of [his minor child]"); McFarlane ex rel. McFarlane v. City of New York, 2014 WL 409112, at *2 (S.D.N.Y. Jan. 31, 2014) (Daniels, J.) (dismissing pro se plaintiff's claims brought on behalf of her minor children because those claims can only be "brought and litigated with retained or appointed counsel"). Although plaintiff Johnson appears to be an experienced pro se litigant, there is no suggestion in the record of this case that he is an attorney licensed to practice in New York. Therefore, all of his claims premised on BronxCare's 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 - should be dismissed without prejudice.
Plaintiff has filed a number of civil actions in this Court. In addition, during his pre-filing hearing pursuant to N.Y. Gen. Mun. Law § 50-h, which took place on October 6, 2020, plaintiff testified that he was self-employed "helping other people in pro se matters, helping them write legal documents for people seeking civil suits." SAC Ex. C, at 11:12-15.
It is possible, of course, that plaintiff will be able to overcome this defect by locating a licensed attorney to represent the children. See, e.g., Vinluan on behalf of D.V. v. Ardsley Union Free Sch. Dist., 2021 WL 3193128, at *4 (S.D.N.Y. July 27, 2021) (declining to dismiss plaintiff's claims on behalf of her minor child MV because, "after filing the Complaint pro se, Plaintiff later obtained pro bono counsel"). Moreover, as noted above, plaintiff also asserts that BronxCare violated his own constitutional rights, under the Fourteenth Amendment and the New York Constitution, to procedural due process. See SAC ¶¶ 71(a), 71(d), 76, 85. As to those claims, therefore, I must go on to consider the various grounds for dismissal raised by BronxCare in its motion papers.
Because parents possess a fundamental liberty interest in "the care, custody and management of their children," Tenenbaum, 193 F.3d at 593, they may seek damages pursuant to § 1983 if their children are subjected to non-emergency medical examinations without their consent or adequate procedural safeguards. See Id. at 588 (affirming the judgment of the district court insofar as it held that child welfare officials "violated the Tenenbaums' and Sarah's procedural due-process rights" by subjecting Sarah to a non-emergency medical examination without parental consent or a court order); id. at 597-99 (explaining holding).
C. The Domestic Relations Exception Does Not Apply
"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). "A court presented with a motion to dismiss under both Rules 12(b)(1) and 12(b)(6) must decide the 'jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.'" Chambers v. Wright, 2007 WL 4462181, at *2 (S.D.N.Y. Dec. 19, 2007) (quoting Magee v. Nassau Cty. Med. Ctr., 27 F.Supp.2d 154, 158 (E.D.N.Y. 1998)).
BronxCare contends that all of plaintiff's claims against it, like his claims against the ACS Defendants in Johnson I, should be dismissed pursuant to the domestic relations exception, because "the nature of the claims are the same" in both cases. Def. Mem. at 18. BronxCare is mistaken. The domestic relations exception, which is "very narrow," Williams v. Lambert, 46 F.3d 1275, 1283 (2d Cir. 1995), generally prohibits the federal courts from adjudicating claims which in substance are "directed at challenging the results of domestic relations proceedings," including child custody decisions. Mitchell-Angel v. Cronin, 1996 WL 107300, at *2 (2d Cir. Mar. 8, 1996) (unpublished table opinion); see also Martinez v. Queens Cnty. Dist. Atty., 596 Fed.Appx. 10, 12 (2d Cir. 2015) (summary order) ("subject matter jurisdiction may be lacking in actions directed at challenging the results of domestic relations proceedings"); Sobel v. Prudenti, 25 F.Supp.3d 340, 353-54 (E.D.N.Y. 2014) (dismissing case under the domestic relations exception where plaintiff sought to "'undo' the domestic relations orders issued by the state courts").
In this case, certain of plaintiff's claims against the ACS Defendants may run afoul of the domestic relations exception. For example, plaintiff seeks redress for the ACS Defendants' "[v]iolation of [his] paternal rights," SAC ¶ 71(b), based on his allegation that ACS removed the children from the family home "illegally," in violation of state law. SAC ¶¶ 48-50. These allegations appear to challenge the Family Court's finding, three days later, that the removal was "necessary to avoid imminent risk" to the children's "life or health" and therefore lawful, pursuant to N.Y. Fam. Ct. Act § 1024(a), notwithstanding the lack of consent or court order. City Ltr. dated March 25, 2021, Ex. B. However, plaintiff's claims against BronxCare (which was not sued in Johnson I) do not seek to challenge or "undo" any decision of the Family Court. Rather, plaintiff seeks money damages from BronxCare for its allegedly unconstitutional conduct on February 7, 2020, when hospital personnel examined the children without his consent or a prior court order. SAC ¶¶ 35-50; id. at 14 ¶¶ A-B. To the extent BronxCare's motion to dismiss is made pursuant to Rule 12(b)(1), therefore, it should be denied.
To the extent that plaintiff seeks to challenge the findings of the Family Court, his claims against the ACS Defendants may also implicate the Rooker-Feldman doctrine, which bars federal claims brought by a plaintiff who (1) lost in state court, (2) complains of injuries caused by the state-court judgment, (3) invites the district court to review and reject the state-court judgment, and (4) commenced the district court proceedings after the state-court judgment was rendered. Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014). "The doctrine applies here to the extent that Plaintiff lost custody of his minor child in state court, complains of that loss here, and seeks this Court's review of that decision." Order of Dismissal, Johnson I, at 4-5 n.2.
D. Plaintiff's Federal Claim Against BronxCare Should Be Dismissed
1. Plaintiff Has Adequately Pleaded State Action
Plaintiff's federal claim for violation of his procedural due process rights is brought pursuant to 42 U.S.C. § 1983, which "provides a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege, or immunity secured by the Constitution or the laws of the United States." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Once jurisdictional issues are resolved, the court's "first inquiry" in a § 1983 case is "whether the actions alleged by the plaintiffs come within the definition of 'under color of' [state] law." Kia P. v. McIntyre, 235 F.3d 749, 755 (2d Cir. 2000) (quoting Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997)); see also Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (§ 1983 plaintiffs must "show state action"); United States v. Int'l Brotherhood of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991) ("Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes 'state action.'").
BronxCare "is a private entity." Preston v. New York, 223 F.Supp.2d 452, 465 (S.D.N.Y. 2002), aff'd sub nom. Preston v. Quinn, 87 Fed.Appx. 221 (2d Cir. 2004). Although private hospitals are regulated by the state and required to obey state laws, they "are generally not proper § 1983 defendants because they do not act under color of state law." White v. St. Joseph's Hosp., 369 Fed.Appx. 225, 226 (2d Cir. 2010) (summary order); see also Amofa v. Bronx-Lebanon Hosp. Ctr., 2006 WL 3316278, at *4 (S.D.N.Y. Nov. 13, 2006) ("Unless certain rare conditions exist, private hospitals such as Bronx-Lebanon are not state actors for purposes of Section 1983."); Thomas v. Beth Israel Hosp. Inc., 710 F.Supp. 935, 940 (S.D.N.Y. 1989) ("As a general rule, private hospitals do not act under color of state law for § 1983 purposes."). Not surprisingly, courts in this district have frequently concluded that BronxCare is not a state actor for purposes of § 1983.
See, e.g., Powell v. New York City Police Dep't, 2020 WL 5116233, at *2 (S.D.N.Y. Aug. 31, 2020); Liburd v. Bronx Lebanon Hosp. Ctr., 2008 WL 3861352, at *7-8 (S.D.N.Y. Aug. 19, 2008); Amofa, 2006 WL 3316278, at *4; Preston, 223 F.Supp.2d at 464, 467.
However, even where a § 1983 defendant is a "nominally private entity," its actions can be attributed to the state under the "close nexus" test if the state "provides 'significant encouragement' to the entity, the entity is a 'willful participant in joint activity with the [s]tate,' or the entity's functions are 'entwined' with state policies." Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001)); accord Tancredi, 316 F.3d at 312. Here, plaintiff invokes the close nexus test, arguing that the hospital was a "willful participant" in the medical examination of his daughter VJ, Pl. Opp. at 6, 7, in that it conducted the examination "under the direction of the ACS Defendants" notwithstanding that plaintiff explicitly (and "vigorously") refused to consent. Id. at 5-6; see also SAC ¶ 40-41, 42, 45. Plaintiff adds in his brief (which I may consider as supplementing the SAC, see George, 2012 WL 2512964, at *6 n.7) that the examination was conducted "for the purpose of the ACS investigation" rather than as a matter of medical necessity or routine. Pl. Opp. at 7.
In Kia P., the Second Circuit applied the close nexus test in similar circumstances to conclude that Long Island College Hospital (LICH), a private entity, was a "state actor," and therefore subject to suit under § 1983, insofar as it acted "as part of the reporting and enforcement machinery for CWA [the predecessor to ACS], a government agency charged with detection and prevention of child abuse and neglect." 235 F.3d at 756. Although neither plaintiff nor BronxCare cited the case, I conclude that Kia P. and its progeny are controlling here, and that the well-pleaded factual allegations set forth in the SAC - assumed to be true for purpose of the pending motion - adequately demonstrate that BronxCare was a state actor insofar as it conducted medical examinations of plaintiff's children for investigatory purposes, at the request of ACS, rather than in the ordinary course of diagnosing or treating an illness or injury.
Kia P. arose from the birth of a baby girl at LICH on March 27, 1993. The baby's urine initially tested positive for methadone. Kia P., 235 F.3d at 752. LICH notified CWA and kept the child, over her mother's objections, for additional testing, observation, and (if needed) treatment for methadone withdrawal. Id. at 752-53. On April 6 or 7 - after further testing of mother and child produced negative results, and no withdrawal symptoms were observed - the baby was "medically cleared" for discharge, but LICH kept custody of her for another day, "solely pending action by the CWA," before releasing her to her mother. Id. at 753, 757. No. abuse or neglect proceedings were ever initiated. Id. at 753. The mother, Kia P., later sued the hospital, the City, and various hospital and CWA personnel pursuant to § 1983, alleging constitutional violations. Id. at 754.
The district court held, and the Second Circuit agreed, that LICH's actions from March 27 to April 7 - including administering the initial urine test and keeping the baby for observation and potential treatment while additional testing was pursued - "were taken by the Hospital in its capacity as a private provider of medical care and thus do not subject the Hospital to liability under § 1983." Kia P., 235 F.3d at 756. However, when the hospital and its personnel continued to hold the baby, after she was medically cleared for discharge, "solely pending action by the CWA," they were "behaving as state actors and may be held accountable under § 1983 for events occurring during that period." Id. at 757; see also Estiverne v. Esernio-Jenssen, 581 F.Supp.2d 335, 345-46 (E.D.N.Y. 2008) (Estiverne I) (denying Rule 12(b)(6) motion by hospital and doctors because "plaintiffs have sufficiently alleged that Medical Defendants became state actors when the rationale behind their detention of [plaintiff's minor son] Andrew ceased to be medical necessity and became solely the investigation of child abuse").
Applying Kia P., district courts have also held that a hospital is engaged in state action when its personnel administer medical tests or conduct medical examinations, at the request of the state, solely for purposes of investigation rather than diagnosis or treatment. In Armstrong v. Brookdale Univ. Hosp. and Med. Ctr., 2002 WL 13222 (E.D.N.Y. Jan. 3, 2002), police officers drove 11-year-old Chanel Armstrong and her mother to Brookdale Hospital - a private entity - to determine whether Chanel had given birth to an abandoned newborn baby found outside her bedroom window. Id. at *1. Hospital personnel collected blood and urine samples from Chanel and conducted a vaginal exam, which "confirmed that Chanel had not recently given birth." Id. at *1-2. No. charges were brought. After the Armstrongs sued pursuant to § 1983, the hospital sought summary judgment, arguing that it was not a state actor because the exam was conducted in accordance with relevant professional standards. Id. at 5. The court rejected that argument as "irrelevant," explaining:
What is relevant to this analysis is that Defendants conducted the examinations at the request of the police, clearly a state actor. If, as Defendants contend, Ms. Armstrong had given consent to Defendants to conduct the examinations, then it is possible that Defendants would not be considered state actors for purposes of § 1983. Furthermore, the examinations were conducted for investigative purposes, in order to determine whether Chanel gave birth to the abandoned infant. However, since it is disputed whether Ms. Armstrong gave consent to Defendants, the question of her consent and whether Defendants were acting under the color of state law are also issues of material fact to be determined at trial. . . . Accordingly, Defendants' motion for summary judgment is denied with respect to Plaintiffs' § 1983 claim.Id.; see also Estiverne I, 581 F.Supp.2d at 343-45 (allegations that hospital and physician ordered a "skeletal survey" of plaintiffs' son "for investigative, not medical, reasons," based solely on their suspicion of abuse, would, if true, "support the requisite finding of state action") (emphasis in the original); Estiverne v. Esernio-Jenssen, 833 F.Supp.2d 356, 368 (E.D.N.Y. 2011) (Estiverne II) (denying summary judgment motion by hospital defendants because "plaintiffs have presented evidence that the sole purpose of this testing was to rule out abuse").
BronxCare is correct that private hospitals do not become state actors merely by "reporting suspected instances of child abuse," Def. Mem. at 11, which they are required to do by the CPSA, see N.Y. Soc. Serv. Law § 417(1)(b). "[C]ourts have repeatedly found that reporting suspected child abuse alone does not constitute state action." J.C. v. Mark Country Day Sch., 2007 WL 201163, at *3 (E.D.N.Y. Jan. 23, 2007) (collecting cases); see also Estiverne I, 581 F.Supp.2d at 345; Storck v. Suffolk Cnty. Dep't of Soc. Servs., 62 F.Supp.2d 927, 942 (E.D.N.Y. 1999); Thomas, 710 F.Supp. at 940. BronxCare is also correct that state law confers immunity on hospital personnel who make such reports in good faith. N.Y. Soc. Serv. Law § 419. But plaintiff is not suing BronxCare for reporting suspected child abuse (nor, as explained above, for removing the children from the family home). When VJ and AOM arrived at BronxCare on February 7 - at the direction of ACS - an order of protection was already in effect against plaintiff, and a new abuse charge had just been lodged against his wife. Unnamed BronxCare doctors then "examined both of his kids without his consent," SAC ¶ 45, after removing their clothes, "for the purpose of the ACS investigation" rather than for ordinary medical purposes. Pl. Opp. at 7. This too was done at the direction of ACS. SAC ¶ 45. While plaintiff does not expressly allege that the exams were "purely" for investigatory purposes, see Estiverne I, 581 F.Supp.2d at 343-45; Estiverne II, 833 F.Supp.2d at 368, there is no contrary suggestion, anywhere in the record, that the exams were medically necessary or that BronxCare personnel would have conducted them in the absence of ACS's request. Nor does BronxCare claim that it was required to perform the exams on an emergency basis, thus obviating the need for parental consent or a court order. I therefore conclude that, for purposes of his constitutional claims based on the physical examinations of VJ and AOM conducted on February 7, 2020, plaintiff has adequately alleged state action by BronxCare.
Nor does a private entity become a state actor merely by seeking the assistance of law enforcement, such as by calling 911. See, e.g., Masri v. Cruz, 2019 WL 2388222, at *4 (S.D.N.Y. June 6, 2019) ("the mere act of calling the police does not constitute state action"); Johns v. Home Depot U.S.A., Inc., 221 F.R.D. 400, 405 (S.D.N.Y. 2004) (no state action alleged where "Williams, on behalf of Home Depot, called the New Rochelle Police Department on February 6, 2002, lodged a complaint against plaintiff, and 'caused' the police officers to escort plaintiff to the parking lot and search his car"); Estes El v. Long Island Jewish Med. Ctr., 1995 WL 217545, at *1 (S.D.N.Y. Apr. 12, 1995) (dismissing, for lack of state action, § 1983 claim against LIJ arising out of incident in which LIJ security guards allegedly assaulted and then detained plaintiff for arrest by NYPD). To the extent, therefore, that plaintiff Johnson seeks to hold BronxCare liable for calling 911 in response to his "vigorous" objections (after which the NYPD escorted him from the emergency room, SAC ¶¶ 42-44), he cannot do so pursuant to § 1983.
Nor, conversely, does BronxCare claim that it was legally obligated to perform the exams at the direction of ACS. Insofar as can be determined from the present record, plaintiff's children were not "ordered into foster care" (arguably giving ACS, rather than plaintiff, the authority to consent to medical procedures on their behalf) until after the exams were completed. See Estiverne I, 581 F.Supp.2d at 346 (holding that status of hospital and physician as state actors ended when the child was formally ordered into foster care).
See Tenenbaum, 193 F.3d at 599 ("We also agree with the district court that if Sarah had ever been in imminent danger, she was not by the time she was taken to the hospital in the custody of the CWA.").
As noted above, neither party cited Kia P. (or its progeny) in their motion papers. Nor did these cases come up at oral argument, when I asked BronxCare's counsel whether the "state actor point" had been "previously litigated under similar circumstances." Tr. at 4:24-5:5. Instead, counsel cited an older state court case, Miriam P. v. City of New York, 558 N.Y.S.2d 506 (1st Dep't 1990), which held, among other things, that St. Luke's-Roosevelt Hospital was not acting under color of state law when it refused to discharge a child, after the patient was medically cleared, pending the completion of an abuse investigation by the agency then responsible for child welfare in New York City. This Court is, of course, bound by the contrary (and more recent) holding of the Second Circuit in Kia P.
2. Plaintiff Has Not Adequately Pleaded a § 1983 Claim Against BronxCare
"Like government employers, private employers are not responsible, under a theory of respondeat superior, for the constitutional torts of their employees." Estiverne II, 833 F.Supp.2d at 370. This principle applies fully to hospitals - public or private - sued under § 1983 for the allegedly unconstitutional conduct of their employees. See, e.g., Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983) ("As [HHC] cannot be held liable under § 1983 on a respondeat superior theory, . . . proof that the corporation employed a tortfeasor will not, standing alone, establish liability." (citing Monell v. Department of Social Servs., 436 U.S. 658, 691-94 (1978))); Heicklen v. U.S. Dep't of Homeland Sec., 2011 WL 3841543, at *9 (S.D.N.Y. Aug. 30, 2011) ("even assuming that the Hospital did act under the color of state law, summary judgment on [plaintiff's § 1983 claim] should be granted because, as the Hospital correctly notes, respondeat superior liability . . . is inapplicable to Section 1983 claims"), report and recommendation adopted, 2011 WL 4442669 (S.D.N.Y. Sept. 23, 2011); Rodriguez v. Mount Vernon Hosp., 2011 WL 3163506, at *6 n.6 (S.D.N.Y. July 27, 2011) ("the doctrine of respondeat superior standing alone does not suffice to impose liability for damages under section 1983 on a defendant acting in a supervisory capacity" (quoting Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003)), report and recommendation adopted, 2011 WL 3874814 (S.D.N.Y. Sept. 2, 2011) (Daniels, J.).
To hold a hospital (or other private entity) liable under § 1983 for conduct committed by its employees, the plaintiff "must show that 'action pursuant to official . . . policy of some nature caused a constitutional tort.'" Estiverne II, 833 F.Supp.2d at 370 (quoting Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990) (internal quotation marks omitted)); see also Heicklen, 2011 WL 3841543, at *9 ("a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right" (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007))); Dilworth v. Goldberg, 2011 WL 3501869, at *24 (S.D.N.Y. July 28, 2011) (Dilworth I) ("to state a § 1983 claim against a private entity, a plaintiff must allege that an action pursuant to some official policy caused the constitutional deprivation"), report and recommendation adopted, 2011 WL 4526555 (S.D.N.Y. Sept. 30, 2011). Alternatively, a hospital may be liable for the unconstitutional conduct of an employee if that employee "was a hospital policymaker." Estiverne II, 833 F.Supp.2d at 370-71 (permitting § 1983 claim to go forward against hospital where defendant physician, who allegedly detained and tested plaintiff's infant son for purely investigatory purposes, was "the head of [the hospital's] Child Protective Services Team" with "final decision-making authority in this area").
Plaintiff Johnson asserts in conclusory terms that BronxCare (along with the City and ACS Commissioner Hansell) "created a policy or custom under which unconstitutional practices occurred and allowed such policies or customs to continue," SAC ¶ 78, including a policy or custom of "forcing the Plaintiff's children into medical examination without parental consent or judicial warrant." Id. ¶ 79. However, he fails to allege (either in his pleading or in his motion papers) any facts which, if true, would demonstrate the creation, existence, or application of such a policy or custom. Nor does he allege facts showing that the unnamed BronxCare doctors who performed the exams were hospital policymakers. See Dilworth I, 2011 WL 3501869, at *25 (dismissing § 1983 claim against NYMC, a private medical school that supplied health care to county jail inmates, where individual defendants had high-ranking titles but "[n]othing in these allegations suggest that these doctors were final policymakers of NYMC or that their actions constituted NYMC policy"). Since this Court cannot credit plaintiff's "mere conclusory statements," Iqbal, 556 U.S. at 678, his § 1983 claims against the hospital, set forth in his First and Second Causes of Action, should be dismissed pursuant to Rule 12(b)(6).
The fact that the examinations were performed by BronxCare doctors, who were on notice of plaintiff's objections, is clearly not enough to impose § 1983 liability on the hospital. See, e.g., Rodriguez, 2011 WL 3163506, at *6 n.6 (allegations that doctor who performed surgery on plaintiff's knee was an employee of Mt. Vernon Hospital, where the procedure was performed, and that hospital "had knowledge" that plaintiff did not agree to the surgery, were "insufficient" to impose liability on Mt. Vernon for constitutional torts committed by the surgeon).
3. 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). However, plaintiff Johnson has already amended his complaint twice. Moreover, he did not seek another opportunity to amend in his motion papers or at oral argument, and nowhere suggests that he could cure the defects in his claim against BronxCare if given such an opportunity. To the contrary: in his opposition brief, plaintiff argues only that BronxCare should be held liable for its employees' conduct under the respondeat superior principles outlined in the Restatement (Second) of Agency. Pl. Opp. at 8-9. Leave to amend should therefore be denied. 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)); Dilworth v. Goldberg, 914 F.Supp.2d 433, 455 (S.D.N.Y. 2012) (denying motion to amend complaint to allege a § 1983 claim against private medical school that provided health care to jail inmates where amendment would be "futile").
Plaintiff recently wrote to the Court reporting that ACS had dismissed the neglect petition it filed against him on August 28, 2019, and seeking leave to reinstate his malicious prosecution claims (against the ACS Defendants) based on that change in circumstance. (Dkt. No. 58.) However, he has never sought leave to further amend his claims against BronxCare.
E. Plaintiff's State Law Claims Should Also Be Dismissed
Plaintiff's remaining claims, all brought under state law, should also be dismissed. A district court "may decline to exercise supplemental jurisdiction over a claim . . . [when it] has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). 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." Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
The Fourth Cause of Action, read liberally in accordance with T'Kach, 714 F.3d at 103, alleges that BronxCare personnel violated plaintiff's right to procedural due process under the New York Constitution by examining his children without his permission or a court order. The Fifth Cause of Action alleges that BronxCare is liable to plaintiff for that unconstitutional conduct because it negligently hired and retained the "unfit and incompetent" employees who proximately caused his injuries. The Sixth Cause of Action alleges that BronxCare is liable for the same conduct as a matter of respondeat superior.
Here, there is no reason to believe that judicial economy, convenience, or fairness would be served by this Court exercising supplemental jurisdiction over plaintiff's state law claims against BronxCare. Consequently, those claims should also be dismissed. See Patterson v. Westchester Cty., 2014 WL 1407709, at *13 (S.D.N.Y. Apr. 11, 2014) (declining to exercise supplemental jurisdiction over state law claims, including negligent hiring claim, where plaintiff's federal claims were dismissed), report and recommendation adopted, 2014 WL 2759072 (S.D.N.Y. June 16, 2014); Locantore v. Hunt, 775 F.Supp.2d 680, 689 (S.D.N.Y. 2011) (dismissing plaintiff's "putative state constitutional and negligence claims," without prejudice to refiling in state court, after dismissing his federal constitutional claims on the merits).
"New York has no enabling statute similar to [§ 1983] permitting damage actions for the deprivation of constitutional rights." Brown v. State, 89 N.Y.2d 172, 186 (1996). Brown recognized a "'narrow remedy' for a constitutional tort claim brought under the State Constitution," but only where "a plaintiff otherwise has no available remedy." Allen v. Antal, 665 Fed.Appx. 9, 13 (2d Cir. 2016) (summary order). Where, as here, a plaintiff seeks damages for rights guaranteed under parallel provisions of the federal and state constitutions, the federal courts routinely dismiss the state constitutional claims on the ground that § 1983 provides an alternative available remedy. See Allen, 665 Fed.Appx. at 9 (affirming dismissal of state constitutional claims "[b]ecause alternative remedies were available under § 1983); Ahmad v. New York City Health & Hosps. Corp., 2021 WL 1225875, at *35 (S.D.N.Y. Mar. 31, 2021) (dismissing most of plaintiffs' federal free speech and equal protection claims, and then dismissing their parallel claims under the state constitution "in deference to the First Amendment retaliation claims and equal protection claims available to the plaintiff[s] under § 1983"); Harrell v. New York State Dep't of Corr. & Cmty. Supervision, 2019 WL 3821229, at *21 (S.D.N.Y. Aug. 14, 2019) (dismissing claims brought under the New York Constitution because "Plaintiff has available remedies under [his] § 1983 claims for excessive force and deliberate medical indifference, neither of which Defendants have moved to dismiss"). Thus, even if plaintiff had successfully pleaded a procedural due process claim against BronxCare under § 1983, it is unlikely that his parallel claims founded on the New York Constitution would survive.
IV. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that defendant BronxCare's motion be GRANTED to the extent that:
1. All of plaintiff s claims brought on behalf of his minor children, federal and state, be DISMISSED without prejudice;
2. Plaintiffs personal federal claim, brought pursuant to § 1983, be DISMISSED with prejudice; and
3. Plaintiffs state law claims be DISMISSED without prejudice.
The Clerk of Court is respectfully directed to mail a copy of this order to the plaintiff.
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).