Opinion
6:21-CV-06248 EAW
2023-06-26
Nicholas Bates STUMPF, Plaintiff, v. Jeffrey COOLEY, Linda Maywalt, Olivia Christman, Wonisha Greenlee, Vincent Arcarese, Esq., and Katherine Resch, Defendants.
Nicholas Bates Stumpf, Hamlin, NY, Pro Se.
Nicholas Bates Stumpf, Hamlin, NY, Pro Se.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Pro se plaintiff Nicholas Bates Stumpf ("Plaintiff") commenced the instant action on March 17, 2021, alleging violations of his civil rights against several individuals, including the Defendants, in connection with child custody proceedings. (Dkt. 1). Plaintiff also filed a motion for leave to proceed in forma pauperis. (Dkt. 2). Thereafter, on March 18, 2021, Plaintiff filed an amended complaint. (Dkt. 3). On June 6, 2022, the Court granted Plaintiff's motion to proceed in forma pauperis and, after reviewing the amended complaint, dismissed Plaintiff's claims without prejudice. (Dkt. 6). The Court granted Plaintiff leave to file an amended complaint within 45 days of its decision. (Id.).
Plaintiff filed a second amended complaint on July 7, 2022, naming as defendants Jeffrey Cooley, Linda Maywalt, Olivia Christman, Wonisha Greenlee, Vincent Arcarese, Esq., and Katherine Resch. (Dkt. 7). On October 27, 2022, Plaintiff filed a motion to appoint counsel and a motion for service by the U.S. Marshal. (Dkt. 8 & Dkt. 9).
The Court has reviewed Plaintiff's second amended complaint filed on July 7, 2022 as required by 28 U.S.C. § 1915(e)(2), and finds that his claims should be dismissed, except his due process claim, which the Court will grant him one further opportunity to replead.
BACKGROUND
The following facts are taken from Plaintiff's second amended complaint. (Dkt. 7). As is required at this stage of the proceedings, the Court treats Plaintiff's allegations as true.
As noted above, Plaintiff's claims stem from Defendants' involvement in state court custody proceedings concerning his son and daughter. Plaintiff alleges that on May 11, 2020, defendant Cooley, a CPS Case Supervisor, and defendant Christman, a former CPS caseworker, violated the Fourth Amendment when they entered his home located at 714 Bass Run Lane, Hamlin, New York, without a search warrant and without warning or permission from Plaintiff. (Id. at 4). Cooley and Christman entered through the front door "aggressively," and failed to announce their title and failed to show identification. (Id.).
Cooley and Christman had "allegations of neglect" against Plaintiff pertaining to an earlier complaint/report directed to his children's mother. (Id.). Plaintiff alleges that he was not named in this report, but Cooley and Christman accused him of being in violation of a "safety plan" from the previous closed case, "by allowing [the] children to be alone with their mother." (Id.). Plaintiff contends that he "has never been deemed as an unfit parent," and the state may not interfere in child-rearing decisions when a fit parent is available. (Id. at 4-5). Plaintiff further alleges that this "safety plan" was not "legally documented or articulated in any form of contract," and that one of the defendants admitted this fact during a June 2021 trial. (Id. at 5).
Plaintiff contends that "defendant" (it is unclear as to whether Plaintiff is referring to Cooley or Christman) used their authority to coerce him to agree to the voluntary surrender of his children to a family member pending investigation, and told him that if he did not agree they would obtain a court order to remove the children to a foster home during the investigation. (Id.). Plaintiff agreed to place his children temporarily with their maternal great grandfather until he could seek further legal advice. (Id.). Plaintiff further alleges that on May 12, 2020, defendant Christman violated Plaintiff's Fourth Amendment rights when she questioned Plaintiff's children (aged three and six) on the private property of the great grandparents, without his permission. (Id.).
After 24 hours of no returned phone calls from Defendants, and no filed notice of hearing in Monroe County Family Court, Plaintiff's attorney advised him to pick up his children from their great grandfather's residence and return home with them. (Id.). Plaintiff notes that he signed "no official separation of his children or his rights to be a parent." (Id.).
On May 12, 2020, at approximately 8:00 p.m., two Monroe County Sheriff's Deputies, as well as defendant Greenlee, a CPS worker, entered Plaintiff's business, Americanna Inc., located at 1712 Lake Road, Hamlin, New York. (Id.). The officers and defendant Greenlee accused Plaintiff of violating the agreement that he voluntarily surrender his children when he removed them from the great grandfather's home. (Id.). Plaintiff alleges that he had no contract with Defendants and that there was no judiciary authority to remove his children and that his children were safe with him. (Id.). Plaintiff further alleges that the officers had no warrant or court order to enter the property, and also that the "originating danger," which was the children's mother, was not on the property. (Id.). Plaintiff alleges that the children's mother was a subject of the original CPS complaint because she was pulled over by the police with one of the children in the vehicle, and drug paraphernalia was seized from another passenger in the vehicle. (Id.).
Plaintiff further alleges that he told defendant Maywalt in text messages that he did not want his son in Catholic religious activities, and that it was a violation of his First Amendment rights to make religious decisions on behalf of the children when his parental rights were not terminated. (Id. at 6).
Plaintiff also alleges that he was ordered to close his business from 6:00 p.m. Saturday evenings, until 7:00 p.m. on Sunday evenings during visits with his children, including because Defendants did not agree with Plaintiff's occupation, and his family lived in the same dwelling as the business. (Id.). Plaintiff contends that Defendants used coercion and intimidation by visitation with his children "as a weapon to force violation of his rights." (Id.).
Plaintiff alleges that, as a result of Defendants' actions, he and his children have suffered injury to their mental health, and the children have struggled to maintain attendance at school. (Id. at 7). In addition, Plaintiff has suffered injury to his business and reputation because he was forced to close his business in return for visitation with his children, and he has incurred monetary expenses for attorney fees and driving to see his children. (Id.). He seeks monetary damages of $50,000 from each defendant, for a total of $300,000. (Id.).
DISCUSSION
I. Legal Standards
A. Screening Order
"Section 1915 requires the Court to conduct an initial screening of complaints filed by civil litigants proceeding in forma pauperis, to ensure that the case goes forward only if it meets certain requirements." Guess v. Jahromi, No. 6:17-CV-06121(MAT), 2017 WL 1063474, at *2 (W.D.N.Y. Mar. 21, 2017), reconsideration denied, No. 6:17-CV-06121(MAT), 2017 WL 1489142 (W.D.N.Y. Apr. 26, 2017). In evaluating the complaint, a court must accept as true all of the plaintiff's factual allegations and must draw all inferences in the plaintiff's favor. See, e.g., Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003). Upon conducting this initial screening, a court must dismiss the case pursuant to § 1915(e)(2)(B) "if the [c]ourt determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." Eckert v. Schroeder, Joseph & Assocs., 364 F. Supp. 2d 326, 327 (W.D.N.Y. 2005). "In addition, if the Court 'determines at any time that it lacks subject-matter jurisdiction, the Court must dismiss the action.' " West v. Sanchez, No. 17-CV-2482 (MKB), 2017 WL 1628887, at *1 (E.D.N.Y. May 1, 2017) (quoting Fed. R. Civ. P. 12(h)(3)); see also English v. Sellars, No. 07-CV-6611L, 2008 WL 189645, at *1 (W.D.N.Y. Jan. 18, 2008) ("[E]ven pleadings submitted pro se must fit within the subject matter jurisdiction of an Article III court . . . .").
B. Section 1983 Claims
"To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)).
II. Analysis
A. Plaintiff's Claims Relating to State Court Custody Proceedings
To the extent Plaintiff's claims are "aimed at changing the results of domestic proceedings, including orders of child custody," they are barred by the domestic relations exception to federal jurisdiction, which "divests the federal courts of power to issue divorce, alimony and child custody decrees." Rabinowitz v. New York, 329 F. Supp. 2d 373, 376 (E.D.N.Y. 2004) (citation omitted); see also McArthur v. Bell, 788 F. Supp. 706, 709 (E.D.N.Y. 1992) (where the plaintiff alleged violations of his constitutional rights and property damage, which were directly related to the child support determination, finding that domestic relations exception applied, because "to decide the instant case, this Court would be forced to re-examine and re-interpret all the evidence brought before the state court in the domestic relations proceedings," which "is the role of the Appellate Division . . . not the role of this Court"). As presently alleged, some of Plaintiff's allegations appear to challenge the results of prior state custody proceedings. For example, Plaintiff expresses his disagreement with visitation and custody determinations with respect to his children. (See, e.g., Dkt. 7 at 4 (challenging validity of "safety plan" from previous case, in which he was not permitted to leave children alone with their mother); id. at 6 (challenging order that he was forced to close his business while he had visitation with children)). However, federal court is not the proper venue for any such claim. Accordingly, to the extent Plaintiff's claims seek to change the result of child custody proceedings, they are dismissed without prejudice for lack of subject matter jurisdiction.
As explained in its previous Decision and Order, to the extent Plaintiff seeks to overturn final custody orders that have already been issued by the state court, any such claims would also be barred by the Rooker-Feldman doctrine, which "bars 'federal courts from exercising jurisdiction over claims brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.' " Walker v. Cholakis, No., 1:19-CV-12288 (LEK/CFH) 2020 WL 3503158, at *3 (N.D.N.Y. June 29, 2020) (quoting Sykes v. Mel S. Harris and Assoc. LLC, 780 F.3d 70, 94 (2d Cir. 2015)).
B. Alleged Constitutional Violations
Plaintiff brings a claim pursuant to the Fourth Amendment for defendant Cooley and defendant Christman's entry into his home located at 714 Bass Run Lane on May 11, 2020, as well as defendant Christman's interviewing his children on May 12, 2020. "Federal courts do have jurisdiction to decide tort, contract or civil rights questions in cases arising out of a domestic relations context when the underlying domestic relations issues are not in dispute." McArthur, 788 F. Supp. at 708.
Turning first to Plaintiff's Fourth Amendment claims, Plaintiff alleges that defendants Cooley and Christman entered his home without a warrant and without his permission. The Fourth Amendment requires that a state actor obtain a warrant, based on probable cause, before entering a residence and conducting a search. "Warrantless searches inside a home are presumptively unreasonable. However, police officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance." Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) (citations, quotations, and alteration omitted). Plaintiff alleges that defendants Cooley and Christman entered his home aggressively and without a warrant. However, Plaintiff also alleges that defendants Cooley and Christman entered due to allegations of neglect, including because Plaintiff was in violation of a custody plan for his children.
To the extent Plaintiff's Fourth Amendment claim is based on an unlawful seizure, Plaintiff fails to allege that he or his children were in custody during the time that defendants Cooley and Christman were in his home, or that they were not otherwise free to leave. To the extent Plaintiff's Fourth Amendment claim is premised on an illegal search, he does not allege that defendants Cooley or Christman searched his home. The Court noted in its prior Decision and Order that the complaint lacked these allegations (see Dkt. 6 at 11 (explaining that Plaintiff's allegations with respect to alleged Fourth Amendment violation were conclusory, as he provided "no facts supporting his allegations, such as when the alleged entry occurred or the circumstances surrounding the entry," and that it was "not clear from the amended complaint whether the state actors in this case searched or seized anything (other than his children) from Plaintiff's home")), and despite being given the opportunity to re-plead his claims, Plaintiff has failed to include sufficient factual information supporting a Fourth Amendment violation.
With respect to the interview of Plaintiff's children at their great grandparents' residence on May 12, 2020, those allegations similarly do not support a Fourth Amendment claim. Plaintiff cites Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), where the Seventh Circuit held that welfare caseworkers violated the Fourth Amendment when, with the assistance of the police, they "investigated allegations of child abuse" on the premises of a private school and, "[a]s part of that investigation . . . took [the child] into custody to interview him," which the court found constituted "both a search and a seizure under the Fourth Amendment." Id. at 509; but see Phillips v. Cnty. of Orange, 894 F. Supp. 2d 345, 368 (S.D.N.Y. 2012) ("The Court finds instructive that the cases that have addressed whether in-school interviews of children during child abuse investigations violate the Fourth Amendment have analyzed the children's Fourth Amendment claims in the context of illegal seizure, not illegal search.").
Plaintiff's second amended complaint lacks sufficient factual information with respect to the alleged interview by defendant Christman. For example, Plaintiff does not allege facts suggesting that the children were in custody when defendant Christman conducted the alleged interview, and Plaintiff previously alleged that he consented to the children being at their great grandparents' residence. Similarly, Plaintiff does not allege any information with respect to the nature and circumstances of the interview, such as whether the great grandparents consented to the interview, where on the property the interview took place, and who was present during the interview. Further, Plaintiff makes no allegations with respect to the content of the interview—in other words, allegations specifying on what subjects the children were interviewed. Cf. Phillips, 894 F. Supp. 2d at 363 (plaintiffs alleged seizure where they alleged that the child was removed from her class, taken to room with three adults where the door was closed, told that she "had to" answer questions, and was told the examination was "like a test"). Plaintiff has had three opportunities to plead a Fourth Amendment violation, but he has failed to do so. Accordingly, Plaintiff's Fourth Amendment claims are dismissed with prejudice.
Plaintiff also brings a claim for violation of the First Amendment. "The free exercise clause of the First Amendment embraces both the freedom to believe and the freedom to act according to those beliefs." United States v. Hernandez, 209 F. Supp. 3d 542, 544 (E.D.N.Y. 2016). Plaintiff's First Amendment claim is premised on a text message he sent to defendant Maywalt regarding his not wanting his son in Catholic religious activities. However, that is all the second amended complaint alleges, and Plaintiff has failed to allege a violation of his religious rights. For example, Plaintiff does not state how or when his son was allegedly exposed to Catholic religious activities. Accordingly, any claim based on a violation of the First Amendment is dismissed with prejudice.
Finally, Plaintiff alleges a violation of his due process rights. (Dkt. 7 at 4). A parent may bring a due process claim for the removal of their children in the absence of a court order or exigent circumstances. See Southerland v. City of N.Y., 680 F.3d 127, 149, 152 (2d Cir. 2012). Here, Plaintiff alleges that there was no court order for the removal of his children. (See, e.g., Dkt. 7 at 5 (alleging that on May 12, 2020, "[t]here was no judicial authority to remove the children")). However, Plaintiff does not specifically state that the children were actually removed from his custody at any point in the second amended complaint. For example, Plaintiff alleges that on May 11, 2020, defendants Cooley and Christman told him that he could either voluntarily surrender his children to a family member, or that they would obtain a court order to remove the children. Plaintiff chose to voluntarily surrender his children to their great grandfather. Plaintiff also alleges that defendant Greenlee and police officers visited his business on May 12, 2020, but he does not allege that the children were removed from his custody at that juncture.
Plaintiff does allege that the "forced separation of a parent from child, even for a short time (in this case 18 hours), represents a serious infringement upon the rights of both." (Dkt. 7 at 6). Although this statement seems to indicate that the children were removed from his custody, it is not clear from the second amended complaint when this alleged 18 hours of separation occurred. Plaintiff has had multiple opportunities to sufficiently allege his due process claim, and he has failed to do so. However, out of an abundance of caution, and given his pro se status, the Court will permit Plaintiff to file one additional amended complaint with respect to his due process claim, only. Plaintiff must file his amended complaint within 45 days of the date of this Decision and Order. If Plaintiff fails to file an amended complaint within that timeframe, the Clerk of Court is directed to dismiss this case with prejudice and without further Order of the Court.
Plaintiff is advised that an amended complaint is intended to completely replace the prior complaint in the action, and thus it "renders [any prior complaint] of no legal effect." Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, any amended complaint must include all allegations against each Defendant so that the amended complaint stands alone as the only complaint that Defendants must answer in this action.
Although defendant Arcarese and defendant Resch are named as defendants, the second amended complaint does not include any specific allegations against them, such as describing how they were involved or connected to the events described in the second amended complaint. Plaintiff is hereby advised that if he intends to file an amended complaint against either of these defendants, he must explain how they were involved in the alleged constitutional deprivations. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020); see also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) ("[A] plaintiff must show the defendant's personal involvement in the alleged constitutional violations.").
C. Motion to Appoint Counsel and Motion for Service by the U.S. Marshal
Plaintiff has also filed a motion to appoint counsel and a motion for service by the U.S. Marshal. (Dkt. 8 & Dkt. 9). In support of his motion to appoint counsel, Plaintiff argues that he cannot afford an attorney and he is not licensed to practice law. (Dkt. 8). With respect to his motion for service, Plaintiff argues that Defendants are former government employees, locating their personal information is complicated, and service by the U.S. Marshal would be easier. (Dkt. 9).
Both the motion to appoint counsel and the motion for service by the U.S. Marshal are denied without prejudice because they are premature at this juncture. Plaintiff may renew these motions if he submits another amended complaint and it proceeds to service.
CONCLUSION
For the foregoing reasons, Plaintiff's claims based on the underlying child custody proceedings, as well as his First and Fourth Amendment claims, are dismissed. Plaintiff may file an amended complaint with respect to his due process claim only, within 45 days of the date of this Decision and Order. If Plaintiff fails to file an amended complaint within that time, the Clerk of Court is directed to dismiss this case with prejudice and without further Order of the Court.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Decision and Order would not be taken in good faith and, therefore leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Any request to proceed in forma pauperis on appeal should be directed to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.