Case 1:13-cv-00089-ENV-SMG Document 4 Filed 03/05/13 Page 1 of 7 PageID #: 69
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`JIASATAECHRISTENY JAINITY,
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`Plaintiff,
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`-against-
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`MEMORANDUM AND ORDER
`13-CV-0089 (ENV)
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`KELLY SARWAY; EMILY LEWIS KITA Y;
`SARA LILLIAN HILTZIK; AMANDA KATZ;
`AVINASH MARHARJ; MICHAEL NESS;
`SHELLY BURGER; RONALD E. RICHTER;
`JAMES M. ABRAMSON; DAVID MANDEL;
`MOISHIE HELLMAN; MEL ZACHTER;
`SHOSHANNA COHAN; MR. COHAN;
`PERMANENCY HEARING OF FAMILY COURT;
`NYS OFFICE OF CHILDREN AND FAMILY SERVICES;
`FAMILY COURT,
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`Defendants.
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`VITALIANO, D.J.
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`Plaintiff Jiasataechristeny Jainity, brings this prose action under 42 U.S.C. § 1983. The
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`Court grants plaintiffs request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
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`However, for the reasons discussed below, the complaint is dismissed in part with prejudice, and
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`in part without prejudice and with leave to amend those claims not dismissed with prejudice.
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`BACKGROUND
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`Plaintiff brings this action in connection with Family Court proceedings involving her
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`son. Although the complaint is far from clear, it appears that she has lost custody of her young
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`son, that the child has been placed in foster care, and that the foster parents are seeking to adopt
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`the child and to terminate Jainity's parental rights. Contending that she has been deprived of
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`substantive due process as a result of these events, including adverse state court outcomes,
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`Jainity seeks in this action custody of her son as well as $15 million in damages.
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`I
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`Case 1:13-cv-00089-ENV-SMG Document 4 Filed 03/05/13 Page 2 of 7 PageID #: 70
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`STANDARD OF REVIEW
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`At the pleadings stage, the Court must assume the truth of"all well-pleaded,
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`nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621
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`F.3d 111, 123 (2d Cir. 201 0) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint must
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`plead facts sufficient to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007). A facially plausible claim includes factual content that
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`"allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged." Iqbal, 556 U.S. at 678. However, the court need not accept as true legal conclusions
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`couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Moreover, "a
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`pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of
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`action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
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`factual enhancement." Iqbal, 556 U.S. at 678 (internal citations and quotations omitted). On the
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`other hand, "a complaint need not pin plaintiffs claim for relief to a precise legal theory."
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`Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011). All that is required is "a plausible 'short and
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`plain' statement of the plaintiffs claim, not an exposition of his legal argument." !d.
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`It is axiomatic that pro se pleadings are held to Jess stringent standards than those drafted
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`by attorneys, and the Court must read a prose plaintiffs complaint liberally and interpret it to
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`raise the strongest arguments it suggests. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
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`Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (per curiam).
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`However, in an in forma pauperis action, must dismiss the complaint if it "(i) is frivolous or
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`malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
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`against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). An action is
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`"frivolous" when either "(I) the factual contentions are clearly baseless, such as when allegations
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`2
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`Case 1:13-cv-00089-ENV-SMG Document 4 Filed 03/05/13 Page 3 of 7 PageID #: 71
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`are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal
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`theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434,437 (2d Cir. 1998) (internal
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`quotations omitted).
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`DISCUSSION
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`In order to maintain an action under 42 U.S.C. § 1983, a plaintiff must allege two
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`essential elements. First, "the conduct complained of must have been committed by a person
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`acting under color of state law." Pitchell v. Callan, 13 F.3d 545,547 (2d Cir. 1994). Second, "the
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`conduct complained of must have deprived a person of rights, privileges, or immunities secured
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`by the Constitution or laws ofthe United States." Id Here, Jainity alleges that, in losing custody
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`of her son, she was unlawfully stripped of her rights as a parent. To be sure, the interest she seeks
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`to vindicate is one protected by the Constitution. As the Supreme Court has held, "[t]he liberty
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`interest ... of parents in the care, custody, and control of their children ... is perhaps the oldest
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`of the fundamental liberty interests recognized by this Court," and is protected by the Due
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`Process Clause of the 14th Amendment. Troxel v. Granville, 530 U.S. 57, 65 (2000). See also,
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`e.g., Kia P. v. Mcintyre, 235 F.3d 749, 757-61 (2d Cir. 2000) (a parent's liberty interest in
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`maintaining custody of her child has both procedural and substantive aspects). The complaint
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`thus satisfies the second Pitchell element.
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`As for the first Pitchell element, the question is more convoluted. To begin, plaintiff lists
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`17 different defendants against whom she has filed suit, but the complaint is not clear as to
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`whether she claims these individuals or entities were state actors or, if not, were in some way
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`acting under the color of state law. One of the 14 individual defendants, Avinash Maharj, appears
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`to be an employee ofNew York City's Administration for Children's Services ("ACS"). 1 Of the
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`1 In various places throughout her complaint (although not in the caption), Jainity indicates that
`she also seeks to sue ACS itself in addition to the seventeen named defendants. However, as an
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`3
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`13 remaining individual defendants, the Court cannot discern from the complaint how their
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`actions took place under the color of state law and, if so, what (if any) facts support plaintiffs'
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`allegation that they deprived her of her constitutional rights.
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`Jainity also sues three institutional defendants: the New York State Office of Children
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`and Family Services (OCFS), the Family Court of Kings County, and the Permanency Hearing
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`Section of the Family Court. Each entity is an arm of the State of New York and hence immune
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`from suit for damages in federal court under the II th Amendment. Jones v. New York State
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`Division of Military and Naval Affairs, 166 F.3d 45, 49 (2d Cir. 1999) (holding that the II th
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`Amendment bars§ 1983 suits against state agencies); Hale v. Mann, 219 F.3d 61,67-69 (2d Cir.
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`2000) (granting II th amendment immunity to the OCFS in the context of a Family Medical
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`Leave Act suit); Bey v. Brooklyn Family Court, No. 11-CV-5209 (KAM), 2012 WL 1145933, at
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`*2 (E.D.N.Y. 2012) (granting II th Amendment immunity to the Kings County Family Court).
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`The Family Court and Permanency Hearing Section of the Family Court also enjoy absolute
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`judicial immunity from suit. See Bernstein v. New York, 591 F.Supp.2d 448, 462 (S.D.N.Y.
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`2008) Qudicial immunity in the context of§ 1983 extends to all judicial officers, as well as "the
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`institution of the court itself ... and its supporting offices"). All claims against these entities are
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`thus dismissed and may not be refilled in federal court.
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`In any event, even assuming the absence of these fundamental roadblocks, it appears as
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`though the bulk of plaintiff's grievances fall within the purview of the Rooker-Feldman doctrine.
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`See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v.
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`agency of the City of New York, ACS is not subject to suit under§ 1983. See Graham v. City of
`New York, 869 F.Supp.2d 337,348 (E.D.N.Y. 2012) (citing N.Y. City. Charter, Ch. 17 § 396).
`Under circumstances not pleaded here, the City could be liable under § 1983 for constitutional
`violations committed by one of its agencies' employees. See Monell v. New York City Dept. of
`Social Services, 436 U.S. 658 (1978).
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`4
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`Feldman, 460 U.S. 462 (1983). Under Rooker-Feldman, a federal district court lacks jurisdiction
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`over a claim if the following conditions are met:"(!) the plaintifflost in state court, (2) the
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`plaintiff complains of injuries caused by the state court judgment, (3) the plaintiff invites district
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`court review ofthat judgment, and ( 4) the state court judgment was entered before the plaintiff's
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`federal suit commenced." McKithen v. Brown, 626 F.3d 143, !54 (2d Cir. 2010). The Second
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`Circuit has previously applied this doctrine to federal lawsuits seeking review of Family Court
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`decisions. See, e.g., Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir. 2002) ("There is no
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`question that Rooker-Feldman bars Phifer's challenges to the family court's decisions regarding
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`custody, neglect, and visitation."); Remy v. New York State Dept. of Taxation and Finance, Case
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`No. 11-1921, 2013 WL 28362, at *1 (2d Cir. Jan. 3, 2013) ("Remy's federal complaint seeks
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`direct review of prior state court judgments. Thus, under Rooker-Feldman, this court does not
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`have subject matter jurisdiction to disturb his state court judgments.").
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`It is apparent from the face of Jainity's pleading that the four Rooker-Feldman factors
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`described in McKithen apply here. Plaintifflost custody of her son pursuant to a Family Court
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`order, which issued prior to the commencement ofthis suit;2 she claims injury resulting from that
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`order; and she effectively requests that this Court reverse the order. Accordingly, Rooker-
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`Feldman applies, signaling the absence of subject-matter jurisdiction over issues already decided
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`by the Family Court.3
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`2 The Family Court, of course, retains jurisdiction over the matter, and Jainity appears to be
`involved in further proceedings there too. That is of no moment. The gravamen of the complaint
`now before this Court is the decision the Family Court has already made to deny plaintiff
`custody over her son.
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`3Jainity sprinkles throughout the complaint various allegations apparently made on behalf of her
`minor son. As a general rule, "a non-attorney parent must be represented by counsel in bringing
`an action on behalf of his or her child." Cheung v. Youth Orchestra Foundation of Buffalo, Inc.,
`906 F.2d 59, 61 (2d Cir. 1990). With no reason to department from that principle evident here,
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`5
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`A liberal reading of Jainity's complaint, however, suggests at least one claim that may
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`not be barred by Rooker-Feldman. Jainity alleges that the foster care agency overseeing her son's
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`case arbitrarily reduced or entirely cut off her visitation privileges; she also submitted a motion
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`to tbe Family Court in February 2012 seeking reinstatement of visits. See, e.g., Compl. at PDF
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`pp. 17, 31-33. It is an issue that, on the face oftbe complaint, appears unresolved in state court.
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`Consequently, Rooker-Feldman would not foreclose jurisdiction over any claim for damages in
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`this case based on an unconstitutional deprivation of her visitation rights. See Green v. Mattingly,
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`585 F.3d 97, 102-03 (2d Cir. 2009) (because Family Court had overturned on a subsequent
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`application a previous temporary order removing plaintiff's son from her custody, Rooker-
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`Feldman did not bar her claim for damages in federal court).
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`Given the complaint's current rambling form, though, it is difficult to decipher whether
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`plaintiff alleges injuries of this nature-that is, injuries that have not resulted from adverse
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`Family Court rulings. To the extent that Jainity's complaint does bring such claims, an amended
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`complaint must make such factual allegations separately and clearly against defendants who are
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`not immune from suit in tbis Court.
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`LEAVE TO AMEND
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`In light of Jainity's prose status, the Court grants her 30 days' leave to amend her
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`complaint. To avoid dismissal, the amended complaint must allege injuries that did not result
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`from any adverse rulings by Family Court. Moreover, tbe amended complaint must be brief and
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`to-the-point, must specify which defendants were responsible for the alleged injuries and how
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`they were responsible, and must allow the Court to determine whether or not these defendants
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`were acting under tbe color of state law. Plaintiff is reminded that any counts raised against a
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`the Court declines to construe tbe complaint as alleging any causes of action on behalf of
`Jainity's son.
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`judicial body, or any judicial officers even acting in their individual capacity, are improper and
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`must not be repleaded.
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`CONCLUSION
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`Accordingly, the complaint is dismissed with prejudice with respect to all claims against
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`judicial officers in their official capacity, as well as all claims that seek to review Family Court
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`custody rulings. All claims against ACS are also dismissed with prejudice. All other claims are
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`dismissed without prejudice and with leave to replead them in this action to the extent that they
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`do not name as defendant persons or entities otherwise immune to suit as detailed above.
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`Any amended complaint submitted pursuant to the grant of leave must be filed within 30
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`days that this Memorandum and Order is entered on the Court's docket. Plaintiff is advised that
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`any amended complaint she files will completely replace the original complaint. Therefore,
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`plaintiff should not reference statements or allegations made in her previous complaint to support
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`claims in her amended complaint. The new submission must be captioned "Amended
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`Complaint" and shall bear the same docket number as this Order. If plaintiff fails to timely file
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`an amended complaint, the entire case will be dismissed and judgment entered against plaintiff.
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`SO ORDERED.
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`Dated: Brooklyn, New York
`February 26, 2013
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`ERIC N. VITALIANO
`United States District Judge
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`7
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`s/ ENV