Opinion
No. 04 CV. 417 (RPP).
August 31, 2004.
Law Offices of Thomas Hoffman, P.C., New York, NY, Thomas Hoffman, Counsel for Plaintiffs.
Lester Schwab Katz and Dwyer LLP, New York, NY, Steven Getzoff, Thomas A. Catalano, Bruce Strikowsky, Counsel for Defendants.
OPINION AND ORDER
Plaintiff Karen Francis brings this action individually and on behalf of her children: Teshawnia Francis, Rayven McGrew, Beyonce Brown and Najimy Brown. Plaintiff Cynthia McDonald brings this action individually and on behalf of her grandson, Tavin Graham. During oral argument, Plaintiffs' counsel stated that Plaintiffs would press only the following three causes of action: 1) the removal of Teshawnia Francis, Tavin Graham, Rayven McGrew, Beyonce Brown, and Najimy Brown ("the Children") from the custody of Plaintiff Karen Francis without a court order and without the existence of an emergency violated their Fourth, Thirteenth and Fourteenth Amendment rights under the United States Constitution; 2) the Children's removal was effected because of Defendant Rivera's prejudice against persons of Jamaican origin; and 3) the City of New York and the Administration for Children's Services ("ACS") were negligent in selecting the foster parents who allowed Beyonce Brown and Najimy Brown to be injured while in foster care. Defendants move to dismiss all three claims. Defendants assert that the Court lacks subject matter jurisdiction and the claims are barred by statutory and qualified immunity. The Court heard arguments on July 26, 2004.
I. Background
On October 28, 2002, Teshawnia, then age 10, was responsible for walking Tavin (age 8) and Rayven (age 6) to school. (Complaint at ¶ 19.) Once they reached the school, instead of attending class, the two younger children went to play in a park, where they were found by police officers. (Id. at ¶¶ 18, 20.) The officers brought the children to their school, and the principal called Karen Francis, the mother of Teshawnia and Rayven and the aunt of Tavin, as well as the New York State Abuse Hotline. (Id. at ¶¶ 21-22.) Ms. Francis came to school and picked up the children. (Id. at ¶¶ 23-25.) That evening, according to her own admission, Ms. Francis spanked Rayven and Taven on their clothed buttocks three times each with a woven, cloth belt. (Id. at 25.)
The next day, on October 29, 2002, at approximately 5:00 p.m., as a result of the call to the New York State Abuse Hotline, Defendant Rivera, an ACS caseworker, was sent to the apartment of Ms. Francis to investigate. (Id. at ¶¶ 26-27.) After examining Rayven and Tavin, she called Defendant Appiah, her supervisor, and they agreed the Children should be removed (id. at 32). Officers Vuksanovich and Hager and Sgt. Colon of the New York City Police Department arrived to assist with the removal. (Id. at ¶ 33.) Because it was late in the day, the courts were closed and Ms. Rivera was unable to get a court order for the removal. (Defs.' Ex. C, Petition and Removal Order, both dated Oct. 30, 2002, In the Matter of Tavin Ram, Docket No. N-11902/02; Defs.' Ex. D, Petition and Removal Order, both dated Oct. 30, 2002, In the Matter of Rayven McGrew, Docket No. N-11903/02; Defs.' Ex. E, Petition and Removal Order, both dated Oct. 30, 2002, In the Matter of Teshawnia Francis, Docket No. N-11904/02; Defs.' Ex. F, Petition and Removal Order, both dated Oct. 30, 2002, In the Matter of Beyonce Brown, Docket No. N-11905/02; Defs.' Ex. G, Petition and Removal Order, both dated Oct. 30, 2002, In the Matter of Najiimy Brown, Docket No. N-11906/02 [hereinafter "Petitions"] at 5).
The Petition misspelled Tavin's surname. Tavin's surname is Graham. (Complaint at ¶ 8.)
Because Defendants are challenging the subject matter jurisdiction of the Court, the Court may look at materials extrinsic to the Complaint. United States v. Vasquez, 145 F.3d 74, 80 (2d Cir. 1998).
On October 30, 2002, Ms. Rivera filed petitions alleging neglect of each of the five children. (See Petitions.) An identical rider was attached to each of the five Petitions alleging that Ms. Francis, "inflicts excessive corporal punishment or undue physical harm on the subject children, Rayven McGrew and Tavin Ram . . . Tavin was observed with a bruise on his back and Rayven was observed with bruises on her abdomen and right leg." (Petitions at 4.) The Petitions further alleged that Ms. Francis "fails to provide all the subject children with adequate supervision and guardianship in that: the apartment of the respondent mother is unsanitary and hazardous . . . [and] all the subject children appeared dirty, unkempt, and emanated a foul odor." (Id.)
Also, on October 30, 2002, a hearing on the removal was held in Family Court, before Judge Jody Adams. Lillian Wan appeared for the Commissioner of Social Services; Amy Baronoff appeared for Ms. Francis; and Angela Tiffin, a law guardian, appeared for the Children. (Pls.' Ex. A, Tr. Hr'g 10/30/2002 at 2.) The Commissioner requested that Children be remanded to ACS custody. (Id. at 3.) The Judge stated, "Visitation is to be arranged in the interim . . . Visitation to be arranged immediately." (Id. at 5.) That same day the family court judge signed removal orders for each of the five children. Each order stated, "Continued placement of the child in his home would be contrary to the welfare and best interests of the child because respondent's house is unsanitary and hazardous. children are dirty and unkempt. Respondent also uses excessive corporal punishment on Tavin and Rayven." (Petitions at 7.) A Family Court Act ("Fam. Ct. Act") § 1028 hearing to determine if the Children should be returned to Ms. Francis pending the disposition of the allegation of neglect was scheduled for November 7, 2002. (Pls.' Ex. A, Tr. Hr'g 10/30/2002 at 5.)
On November 7, 2002, Lilian Wan appeared for the Commissioner, Thomas Hoffman, Esq., appeared for Ms.Francis, and Angela Tiffin appeared for the Children in Family Court. (Defs.' Ex. H, Tr. Hr'g 11/7/2002 at 2.) The Fam. Ct. Act § 1028 hearing scheduled for that date was adjourned to November 18, 2002. (Id. at 5.) At a court hearing on November 18, 2002, Najimy and Beyonce were released to their father Carlton Brown and the other three children were released to their grandmother, Cynthia McDonald. (Defs.' Ex. I, Tr. Hr'g 11/18/2002 at 4-5.) At an April 21, 2003, pre-trial conference, Ms. Francis was granted unsupervised day visits with her children because she had completed anger management and parenting skills programs. (Defs.' Ex. J, Tr. Hr'g 4/21/2003 at 7.) At a hearing on September 16, 2003, the order granting unsupervised visits was confirmed. (Defs.' Ex. M, Tr. Hr'g 9/16/2003 at 56.) It was clear that at this point Ms. Francis was living with Ms. McDonald and the three children paroled to Ms. McDonald. (Id.)
On June 23, 2003, September 16, 2003, October 7, 2003, and January 8, 2004, hearings were held to determine whether Ms. Francis had neglected the Children. Officer Vuksanovich and Ms. Rivera appeared as government witnesses. Both witnesses were cross examined by Ms. Francis' attorney (Mr. Hoffman, also representing her in this matter) and the Children's law guardian. Officer Vuksanovich testified that on October 29, 2002 the home of Ms. Francis and the Children was "very dirty and unkempt," and he observed "a mouse running across the refrigerator on top of a cabinet." (Defs.' Ex. K Tr. Hr'g 6/23/2003 at 10.) He recalled seeing bruises on Tavin's legs. (Id. at 11.)
Later in his testimony he referred to a rat. (Defs.' Ex. K Tr. Hr'g 6/23/2003 at 13.)
Ms. Rivera testified as follows. At approximately 6:30 p.m. on October 29, 2002, she acted upon an ORT she received from her supervisor to investigate the case of Ms. Francis' children. (Id. at 25-26.) Ms. Rivera went to Ms. Francis' apartment. The two younger children, Beyonce and Najimy, were inside the apartment, and Teshawnia was sent to pick up Rayven and Tavin from an after school program. (Id. at 28.) Once Rayven and Tavin arrived, Ms. Rivera spoke with each of the two children separately in the hallway outside the Francis apartment. (Id. at 28-29.) Ms. Rivera observed a bruise on Tavin's back that he said he received from Ms. Francis as a punishment for skipping school. (Id. at 29.) Tavin told Ms. Rivera that Ms. Francis hit him with a black leather belt. (Id. at 30.) Ms. Rivera observed bruises on Rayven's upper thigh and "in the trunk area." (Id.) Ms. Rivera then called her supervisor (Defendant Appiah) who recommended that she call 911 for police assistance in removing the Children. (Id. at 32.)
ORT is an abbreviation for Oral Report Transmittal. (Pls.' Ex. A, Tr. Hr'g 10/30/2002 at 3.)
Once officers arrived, Ms. Rivera received Ms. Francis' consent to enter the apartment and look around. (Id. at 33.) Ms. Rivera testified that she observed a crib full of laundry and plastic bags, a bed in the living room whose sheets had an odor emanating from them, an uninsulated steam pipe in the bathroom, spoiled food in the refrigerator, and rats eating spilled oatmeal on top of the refrigerator. (Id. at 33-35.) On cross-examination, Ms. Rivera acknowledged that neither the children's babysitter nor teacher had reported having seen bruises or other evidence of corporal punishment. (Defs.' Ex. M, Tr. Hr'g 9/16/2003 at 20.)
Ms. Francis' argument for dismissal of the charges of neglect was denied on October 7, 2003 (Defs.' Ex. N, Tr. Hr'g 10/7/2003 at 13) and Ms. Francis presented her case on January 8, 2004. At that time, Officer Hager testified that on October 29, 2002, he had used a flashlight to examine the children for bruises but did not see any bruises, even though Ms. Rivera did attempt to point them out to him. (Defs. Ex. O, Tr. Hr'g 1/8/2003 at 12-13, 34-35.) He also testified that the apartment was messy (id. at 15), but contained no obvious hazards (id. at 18) and the children looked fine, not malnourished, not beaten, and not abused (id. at 16).
Sgt. Colon testified that on October 29, 2002 he also had seen no bruises, and had he seen them, the children would have been taken to a local hospital. (Id. at 45-46.) He also testified that the apartment was "a little messy." (Id. at 48.)
Ms. Francis testified that she spanked each child three times with a woven nylon belt. (Id. at 70-71.) According to Ms. Francis, she had never hit any of the Children before this incident. (Id. at 73.) She also testified that the apartment has had a rat problem since she moved in. (Id. at 63.)
The Family Court Judge made findings based on the preponderance of the evidence that Rayven and Tavin were neglected and their "physical condition was in imminent danger of being impaired as a result of the failure of [Ms. Francis] to exercise a minimum degree of care in providing them with proper supervision and guardianship in that . . . she slapped them each one of the children on the body with a belt three times. (Id. at 105-06.) According to the judge, under the Fam. Ct. Act, three slaps create a danger that the children could have been more seriously injured. (Id.) The judge also stated that she did not find that the ACS had proven that there were bruises nor did the ACS prove that the home was maintained in a filthy or unsanitary condition. (Id. at 106.) She commended Ms. Francis for working for nine years and raising five children. (Id. at 108.) The children were paroled to Ms. Francis and the ACS was ordered to supervise the home for six months with announced visits. (Id. at 114, 119.)
The Complaint alleges three causes of action. First, the Defendants' removal of the Children without the existence of imminent danger to life or health constitutes a violation of the Fourth, Fifth, Thirteenth and Fourteenth Amendments to the United States Constitution. (Complaint at ¶ 53.) Plaintiffs request damages of at least one million dollars on behalf of each Plaintiff under this cause of action. (Id. at ¶ 54.)
The second cause of action is a claim on behalf of plaintiffs Beyonce and Najimy for Defendants' failure to provide adequate supervision and care between October 29, 2002 and November 20, 2002. (Id. at ¶¶ 55-57.) Plaintiffs request damages of $500,000 for each of the two children. (Id. at ¶ 60.) The Complaint alleges that sometime between October 29, 2002 and November 20, 2002, while they were in foster care, Beyonce (then age two) and Najimy (then seven months old) were burned. (Id. at ¶ 57.) The burn marks have left permanent scars on the two children. (Id. at 59.)
The third cause of action asserts that Ms. Rivera's decision to remove the Children on October 29, 2002 was discriminatory and in reckless disregard of Plaintiffs' statutory and constitutional rights. (Id. at ¶ 62.) The Complaint also alleges, "On November 20, 2002, when the parties were in family court after the removal, Ms. Rivera told plaintiff McDonald that the children would not be placed with her and that `you people should learn to speak English.'" (Id. at ¶ 43.) McDonald is of Jamaican heritage. (Id. at ¶ 44.) At the neglect hearing, Ms. Rivera testified that she did not recall making that statement. (Defs.' Ex. M, Tr. Hr'g 9/16/2003 at 31.)
At the hearing on September 16, 2003, Mr. Hoffman's questioning of Ms. Rivera indicated that the alleged comment "Why don't you people learn how to speak English?" was made a week or two prior to the hearing. (Defs.' Ex. M, Tr. Hr'g 9/16/2003 at 31.)
Although not stated as a cause of action, the Complaint contains the allegation, "After the Children were removed, plaintiff Francis could not visit with the Children until ten days later at which time plaintiff Francis was allowed two hours biweekly supervised visits." (Id. at ¶ 46.)
II. Analysis
A. Standard for Motion to Dismiss
In considering a motion to dismiss, a court "must read the Complaint liberally, drawing all inferences in favor of the pleader." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993). "To survive a motion to dismiss . . . the complaint must allege facts which, assumed to be true, confer a judicially cognizable right of action." York v. Association of Bar of City of New York, 286 F.3d 122, 125 (2d Cir. 2002). A "district court should deny the motion [to dismiss] unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief." IUE AFL-CIO Pension Fund, 9 F.3d at 1052 (internal quotations omitted). Because Defendants are challenging the subject matter jurisdiction of the Court, the Court may look at materials extrinsic to the Complaint. United States v. Vasquez, 145 F.3d 74, 80 (2d Cir. 1998).
B. As to the claim that a removal without the existence of an emergency violated Plaintiffs' 14th Amendment rights under the U.S. Constitution
Plaintiffs' first cause of action is brought against Defendants Rivera and Appiah for removing the Children from the custody of Plaintiff Francis violating Plaintiffs' "substantive right of this parent not be interfered with." (Tr. Arg. 7/26/2004 at 28);see Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13 (1972) (holding that there is a constitutionally protected liberty interest in maintaining custody of one's children). Defendants assert that this claim was litigated in the state court and is thus precluded by the Rooker-Feldman doctrine.
The Rooker-Feldman doctrine limits the subject matter jurisdiction of federal district courts. In Rooker v. Fidelity Trust Co., the Supreme Court held that federal district courts do not have jurisdiction to "entertain a proceeding to reverse or modify" a state court judgment — only the United States Supreme Court has that jurisdiction. Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149 (1923). The Supreme Court added to the rule in Dist. of Col. Ct. of App. v. Feldman, when it held that to the extent that a plaintiff's claims are "inextricably intertwined" with a state court's determinations, federal district courts have no jurisdiction. Dist. of Col. Ct. of App. v. Feldman, 460 U.S. 462, 482 n. 16, 103 S. Ct. 1303, 1315 n. 16 (1983). Even if the challenges to the state court's action allege that the state court's action was unconstitutional, federal district courts have no jurisdiction. Id. at 486. The Second Circuit has provided the following standard for determining when a state court determination is "inextricably intertwined" with a plaintiff's claim in federal court:
We agree that the Supreme Court's use of `inextricable intertwined' means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding (as either the plaintiff or defendant in that proceeding), subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion.Moccio v. N.Y. State Office of Ct. Admin., 95 F.3d 195, 199-200 (2d Cir. 1996). The Second Circuit went on to explain that the principles of preclusion were res judicata (claim preclusion) and collateral estoppel (issue preclusion). Id. at 200.
A claim brought under 42 U.S.C. § 1983 is not barred by res judicata if the plaintiff seeks monetary damages that are unavailable in a state court proceeding. Phifer v. City of New York, 289 F.3d 49, 56 (2d Cir. 2002). Because Plaintiffs' claims of violations of constitutional rights are raised pursuant to Section 1983 and Plaintiffs seek monetary damages (Complaint at ¶¶ 54, 63), res judicata does not apply. Section 1983 claims may be collaterally estopped, however, even if the plaintiff seeks monetary damages. Id.
Under New York law, collateral estoppel applies if "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995). "The party asserting [collateral estoppel] bears the burden of showing that the identical issue was previously decided, while the party against whom the doctrine is asserted bears the burden of showing the absence of a full and fair opportunity to litigate in the prior proceeding." Id.
Plaintiffs claim that their Constitutional rights were violated because "Parents . . . have a constitutionally protected liberty interest in the care, custody and management of their children,"Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and the Children were removed "without the existence of imminent danger to life or health" (Complaint at ¶ 53). Accordingly, a pre-deprivation hearing is generally required before the removal of children from the custody of their parents. Tenenbaum, 193 F.3d at 593. In "emergency circumstances," however, a state official may remove children from the custody of their parents without a court order or the permission of the parents. Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987). Thus, Plaintiffs' procedural due process claim would be precluded if the existence of an emergency prior to removal was decided by the state court. An analysis of relevant provisions of New York's Fam. Ct. Act is necessary to determine whether the issue was in fact actually and necessarily decided in the state court.
New York's Fam. Ct. Act. § 1024 authorizes designated employees of a city department of social service to take a child into protective custody without a court order when there is reasonable cause to believe that remaining in the current situation presents "an imminent danger to the child's life or health" and there is not enough time to apply for a preliminary court order. N.Y. Fam. Ct. Act § 1024(a) (McKinney 1999) (emphasis added). Under Fam. Ct. Act. § 1027, "as soon as practicable" after such a removal, a hearing to determine whether, "the child's interests require protection pending a final order of disposition" may be requested by the person making the petition or the law guardian or the court may order such a hearing on its own. N.Y. Fam. Ct. Act § 1027(a) (McKinney Pocket Part 2004). "Upon such a hearing, if the court finds that removal is necessary to avoid imminent risk to the child's life or health, it shall remove or continue the removal of the child and remand him or her to a place approved for such purpose by the social services district or place him or her in the custody of a suitable person other than the respondent." N.Y. Fam. Ct. Act § 1027(b)(i) (McKinney Pocket Part 2004) (emphasis added). Thus, the standard for continuing a removal by court order is the same as the standard for initiating a removal without a court order — imminent risk to the child's life and or health. A finding of "imminent risk to the child's life and or health" does meet the constitutional standard of an "emergency circumstance." See Robison, 821 F.2d at 922 ("[T]here is a sufficient emergency to warrant officials' taking custody without a prior hearing if a child is immediately threatened with harm or is bereft of adequate care or supervision.")
Plaintiff's counsel also uses "emergency" and "imminent danger to life or health" interchangeably. (Compare Complaint at ¶ 53 (stating first cause of action is "Defendant's removal of the Children without the existence of imminent danger to life or health . . .") with Tr. Arg. 7/26/2004 at 28 ("The first cause of action . . . is the infringement of the substantive right of this parent not to be interfered with . . . by the removal of the children without the existence of an emergency."))
On October 30, 2002, the day after ACS removed the Children, the first proceeding regarding the removal of the Children was held in Family Court. The Commissioner for Social Services requested that the Children be remanded to ACS. The judge replied, "One moment. I have not seen the petitions." (Pls.' Ex. A, Tr. Hr'g 10/30/2002 at 3.). The petitions were submitted by Ms. Rivera and stated that the Children had been removed pursuant to Fam. Ct. Act § 1024 without a court order, because the "removal occurred outside court hours." (Petitions at 5.)
This statement indicates that the judge did not sign the orders before the hearing.
The family court judge then signed removal orders authorizing removal of the Children from Ms. Francis' home pursuant to Fam. Ct. Act § 1024 on October 30, 2002. Each removal order said, "temporary removal of said child from her place of residence is necessary to avoid imminent risk to said child's life or health." (Petitions at 7.) That is, the family court judge actually and necessarily decided in each case that there was an emergency — "imminent risk to the child's life or health." (See Id. at 7.)
For collateral estoppel to apply, whether there was imminent risk to the Children's life or health must have been fully and fairly litigated. The hearing on October 30, 2002 was brief and neither Ms. Francis herself, nor through her counsel, contested the removal, nor did they contest the claims made by Ms. Rivera in her Petitions. (Pls.' Ex. A, Tr. Hr'g 10/30/2002.) At the end of the hearing, the parties agreed that a hearing would be held pursuant to Fam. Ct. Act § 1028 on November 7, 2002 to determine whether the Children should be returned to the custody of Ms. Francis. On November 7th, the hearing was adjourned on consent of all counsel until November 18, 2002. (Defs.' Ex. H, Tr. Hr'g 11/7/2002 at 4-5.)
Fam. Ct. Act § 1028 says in pertinent part:
Upon the application of the parent [or other legal guardian] or upon the application of a law guardian for an order returning the child, the court shall hold a hearing to determine whether the child should be returned (i) unless there has been a hearing pursuant to § 1027 . . on the removal of the child at which the parent . . . was present and had the opportunity to be represented by counsel, or (ii) upon good cause shown. . . . Upon such a hearing, the court shall grant the application, unless it finds that the return presents an imminent risk to the child's life or health. If a parent or other person legally responsible for the care of a child waives his or her right to a hearing under the section, the court shall advise such person at that time that, notwithstanding such waiver, an application under this section may be made at any time during the pendency of the proceedings.
N.Y. Fam. Ct. Act. § 1028 (a) Note that the standard for determining whether a child should be returned is the same as that for determining whether the child should be removed. Accordingly if the issue of return had been decided at a § 1028 hearing, the issue of whether the removal was lawful would, in effect, have been litigated as well.
At the November 18, 2002 hearing, Tavin, Tashawnia, Rayven were paroled to Ms. McDonald, and Najimy and Beyonce were paroled to their father, Carlton Brown. (Defs.' Ex. I, Tr. Hr'g 11/18/2002 at 4-5.) Ms. Francis and Ms. McDonald both appeared in court. Ms. Francis was represented by the same attorney representing Plaintiffs on this matter. (Id. at 1.) Neither on November 7th, nor at this hearing did Ms. Francis or her attorney raise the issue that there had not been an emergency situation that required the removal of the Children.
"The mere failure to raise an issue in state court does not, however, invariably save a federal plaintiff from issue preclusion under Rooker-Feldman." Vargas v. City of New York, 377 F.3d 200, 206 (2d Cir. 2004). For Plaintiffs' claim to succeed, this Court would have to decide that there was no emergency precipitating the removal of the Children from Ms. Francis' custody. Such a review of the Family Court's decision contained in the removal orders is barred by the Rooker-Feldman doctrine. Rooker 263 U.S. at 416 (barring federal court review of state court decisions that would effectively act as appellate review of state court decisions). Because on October 30, November 7, and November 18, 2002, Plaintiffs had an opportunity to raise the issue of whether there was an imminent danger to life or health of the Children on October 29, 2002, the principle of collateral estoppel bars the claim of a violation of the procedural due process rights of Plaintiffs.
The Rooker-Feldman doctrine also bars Plaintiffs' claim that the removal violated their substantive due process rights. The substantive right of a parent to maintain custody of his or her child may be infringed upon if a caseworker has a "reasonable basis" for finding abuse. Kia P.V. McIntyre, 235 F.3d 749, 758 (2d Cir. 2000), cert. denied, 122 S. Ct. 51 (2001). An "emergency" circumstance is a reasonable basis for depriving a parent of custody of their child. See Robison v. Via, 821 F.2d at 921. Accordingly, because the Family Court found on October 29, 2002, that there was imminent danger to the lives or health of the Children, Plaintiff's substantive due process claim is barred.
C. As to the claim that Ms. Rivera acted with bias
Plaintiffs allege that when Ms. Rivera removed the Children, she was motivated by bias against Plaintiffs due to their national origin. To survive a motion to dismiss, plaintiffs claiming bias must allege events that were intentionally discriminatory and "circumstances giving rise to a plausible inference of . . . discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994). Defendants point out, "stray remarks alone do not support a discrimination suit."Danzer v. Norden Sys. Inc, 151 F.3d 50, 56 (2d Cir. 1998);Velasquez v. Goldwater Memorial Hosp., 88 F. Supp. 2d 257, 263 (S.D.N.Y. 2000).
Plaintiffs allege, "Rivera knew there was no . . . imminent danger but removed the Children based solely on an animus towards Francis and a bias against people with a Jamaican heritage. Ms. Rivera's observations of the belt marks and bruises were contrived." (Complaint at ¶ 38.) Plaintiffs support their claim that Ms. Rivera contrived her observations of bruises and belt marks by citing to the finding of the Family Court judge that ACS had not proved that there were bruises left on the children. (See, Defs.' Ex. O, Tr. Hr'g 1/8/2003 at 106.) While the judge made findings that Ms. Rivera was "much less credible" than the witnesses who reported seeing no bruises, the judge made no findings that Ms. Rivera deliberately lied or was motivated by bias. (See id. at 107.)
The only fact Plaintiffs provide to support the allegation that Ms. Rivera was motivated by bias when she removed the Children is a comment made by Ms. Rivera to Ms. McDonald on November 20, 2002, three weeks after the removal. (Complaint at ¶ 43.) When Ms. Rivera asked Ms. McDonald for her date or birth, Ms. McDonald replied by giving the day first, followed by the month and then the year. (Defs.' Ex. M, Hr'g Tr. 9/16/2003 at 28.) Ms. Rivera then commented, "you people should learn to speak English." (Complaint at ¶ 43.)
Defendants assert that allegations of discriminatory impact on the basis of language are not actionable under 42 U.S.C. § 1981 or 42 U.S.C § 1983. Vialez v. NYCHA, 783 F. Supp. 109, 123 (S.D.N.Y. 1991). Plaintiffs contend that Ms. Rivera's remark did not refer to Ms. McDonald's language skills, but rather the ability of Jamaicans in general to express themselves. It is possible that the comment "you people" referred to Jamaicans and not just to people who do not speak American English as a first language. See IUE AFL-CIO Pension Fund, 9 F.3d at 1052 (holding in motion to dismiss all inferences are drawn in favor of the pleader).
The comment was directed at Ms. McDonald, who Plaintiffs assert speaks with a Jamaican accent (id. at ¶ 44). Plaintiffs have not asserted that Ms. Rivera could or did identify Ms. Francis as of Jamaican origin, either by her accent or other means, at the time of the removal. Moreover, the comment was made well after the removal of the Children, and is not indicative of the state of mind of Ms. Rivera when she initiated the removal. Plaintiffs' Complaint fails to show that Ms. Rivera's alleged comment was anything but a stray remark, and as such it does not support a claim of racial discrimination, either by itself or in conjunction with the conclusory allegation that Ms. Rivera contrived the allegation that the children had bruises. Accordingly, Plaintiffs' claims of discrimination are dismissed.
D. The visitation policy
At oral arguments Plaintiffs' attorney asserted that Plaintiffs had three causes of action and that in addition to those claims they were seeking relief from the visitation policy of ACS. (Tr. Arg. 7/26/2004 at 40-41.) The Complaint, however, does not properly raise the issue of the visitation policy. It states:
Under the State Statutes, Rules and Regulations, after a removal a Parent's visitation with children is limited to two hours supervised every two weeks. This restrictive visitation is unreasonable and is an unconstitutional interference with the liberty of a family to maintain contact with each other and increases trauma and anguish to parents and children.
(Complaint at ¶ 51.) After oral arguments, Plaintiffs provided the Court with a copy of "ACS Implementation of the Adoption and Safe Families Act, Part III — ACS Best Practice Guidelines for Family Visiting Arrangements for Children in Foster Care." The Guidelines say, "Current OFCS [Office of Family and Children's Services] regulations require that children with goals of `return to parent' visit their parents at least once every two weeks, but it is expected and recommended that more frequent contact be arranged and facilitated." (ACS Implementation of the Adoption and Safe Families Act, Part III — ACS Best Practice Guidelines for Family Visiting Arrangements for Children in Foster Care, 12/19/200, attached to letter from Thomas Hoffman to Hon. Robert P. Patterson, Jr. of 7/27/2004 at 4 (emphasis added).) The guidelines provided by Plaintiffs contradict the allegation in the Complaint. Other than asserting that Ms. Francis was granted only biweekly visits, the Complaint sets forth no facts showing that the ACS has unconstitutionally restrictive visitation policies. Accordingly, Plaintiffs' request for relief from the visitation policies of Defendants is dismissed for failure to state a claim.
E. Claims arising under the 4th and 13th Amendments of the U.S. Constitution
In addition to the claims discussed above, the Complaint alleges violations of rights secured by the Fourth and Thirteenth Amendments to the United States Constitution. (See Complaint at ¶ 3.) "[A] complaint is sufficient if it gives fair notice of what the plaintiff's claim is and the grounds upon which it rests." Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir. 2002) (internal quotations omitted). Here, Plaintiffs have provided no notice of what the Fourth and Thirteenth Amendment claims are, nor have they provided the grounds upon which those claims rest. Accordingly those claims are dismissed.
Plaintiffs also brought claims under the Fourteenth and Fifth Amendments. The Fifth Amendment claim was withdrawn (Defs.' Ex. B, letter from Thomas Hoffman to Bruce Strikowsky of April 7, 2004) and the Fourteenth Amendment claims are addressed in Part II.B of this opinion.
F. As to the claim that the City of New York and ACS were negligent in selecting foster parents leading to the injury of two children
At the oral argument on this motion, Plaintiffs' attorney said that the negligence claim would be limited to New York State tort law. (Tr. Arg. 7/26/2004 at 47.) Because it is a state law claim that is not brought under diversity jurisdiction, the Court only has jurisdiction if the claim is pendant to a federal claim. 28 U.S.C. § 1367(a). The federal claims have been dismissed. Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), this claim is dismissed for lack of subject matter jurisdiction.
III. Conclusion
Defendants' motion to dismiss is granted in its entirety.
IT IS SO ORDERED.