GARY L. SHARPE, District Judge.
Plaintiffs Angie Callwood and Johnathon Hardaway, on behalf of themselves and their minor children, A.H and J.H., commenced this action—and then filed an amended complaint—against defendants City of Kingston (City), Michael Mills, Robert Farrell, Timothy Bowers, Richard Negron, Kirk Strand, Emily-Claire Sommer (collectively, "City defendants"), as well as Ulster County (County), Michael Iapoce, Barbara Sorkin, Pamela Joern, James Meyer, Denise Timbrouck, Amy Greene, Peggy Webb, Holley Carnright, Elizabeth Culmone-Mills, and Tamatha Stitt
At the outset, the court notes that it refers to the City defendants only in general terms because plaintiffs' claims against them are not the subject of the pending motion, which was filed by the County defendants. (Dkt. No. 20.) Nonetheless, some allegations regarding the City defendants are included for relevant context.
Hardaway, Callwood, and their children, A.H. and J.H., are Florida residents. (Am. Compl. ¶ 7.) Callwood was the director of admissions and financial aid for Barrytown College, a Unificationist college. (Id. ¶¶ 15, 92.) Although she primarily worked offsite, she attended bi-monthly work meetings near the college in Annandale-on-Hudson, New York. (Id. ¶ 15.) Hardaway is an attorney and a sports agent. (Id. ¶ 77.) Hardaway and Callwood are African-American, and Callwood is a Unificationist. (Id. ¶¶ 92, 105.)
On February 8, 2014, Hardaway and family stayed at a Super 8 Hotel in Kingston, New York while Callwood attended meetings. (Id. ¶ 15.) At about 5:20 P.M. that day, Hardaway and Callwood left the hotel to pick up groceries and allowed A.H., then twelve years old, to babysit J.H., then four years old. (Id. ¶ 16.) Hardaway and Callwood were gone less than two hours and left a cell phone for A.H. with pre-programmed contacts, including their own. (Id. ¶¶ 16, 18.)
Shortly after Hardaway and Callwood left the hotel, two Kingston Police Department (KPD) officers arrived at the hotel, "purportedly in response to a complaint that noise was coming from plaintiffs' room earlier that afternoon." (Id. ¶ 19.) The officers knocked on plaintiffs' hotel room door, and, after A.H. responded but did not open the door, the officers entered with a key card obtained from the hotel's staff. (Id. ¶¶ 20-21.) A.H. asked them to leave several times and "told them her age, that she was allowed to babysit, that her father was an attorney, and that their actions were unconstitutional." (Id. ¶ 23.) Ignoring A.H.'s requests, the officers confiscated her cell phone, interrogated her, and searched and "ransacked" the room. (Id. ¶ 24.) The officers called a private ambulatory care company, and paramedics arrived and performed a medical examination of A.H. and J.H. (Id. ¶¶ 25-26.) "[T]he children were healthy; had normal, regular, and strong vital signs; were alert and conscious; and did not appear to be in any pain or distress." (Id. ¶ 26.) A.H. asked the officers to allow her and J.H. to stay in the hotel room, but the officers ordered the paramedics to take the children to a hospital for a second medical examination. (Id. ¶¶ 27-28).
At the hospital, A.H. repeatedly asked to return to the hotel, but a KPD officer told the children that they had to remain. (Id. ¶ 29.) A second medical examination indicated that the children "were alert, awake, conversant, in no distress, at healthy weights, and appeared healthy and well groomed." (Id. ¶ 30.) A KPD officer called the New York State Office of Children and Family Services (NYOCFS) Central Register of Child Abuse and Maltreatment (hereinafter, "Central Register") and "fabricated a phony basis for their removal," including stating A.H. was only ten years old and that J.H. needed immediate medical care because he had a seizure. (Id. ¶¶ 31-33.) Meyer, an Ulster County Department of Social Services (DSS) caseworker, called a KPD officer who told him that KPD officers were waiting at the hotel for Hardaway and Callwood, "`a large black man + girlfriend'" who were driving a car not registered to them, and that KPD did not have their names or contact information.
Meyer went to plaintiffs' hotel room and entered with two KPD officers, who used a key card to enter. (Id. ¶¶ 37-38.) Meyer took photographs of the room and then went to the hospital. (Id. ¶ 39.) He left a notice on the hotel room door regarding the removal of the children, but he did not leave contact information, as required by New York state law.
On February 10, 2014, Hardaway and Callwood filed an application to return their children,
Before the application to return hearing on February 13, Stitt, an Ulster County District Attorney's Office (UCDAO) investigator, Culmone-Mills, Greene (a DSS caseworker), Meyer, and "other defendants" met. (Id. ¶¶ 11, 12, 73.) Stitt claimed that Hardaway "had two telephone numbers, one being used by an escort service and one a pornographic web site," and said that Hardaway and Callwood would be arrested for child endangerment. (Id. ¶ 73.) At that day's hearing, Stitt testified falsely as to her investigation into Hardaway and afterward "continued to manufacture evidence, hide exculpatory evidence, and falsely assert [Hardaway and Callwood] were involved in illicit businesses." (Id. ¶¶ 74-90, 91.)
The same day, a KPD officer "swore out" a criminal complaint against Hardaway and Callwood for endangering the welfare of a child. (Id. ¶¶ 99, 101.) They were arrested after the February 13 hearing, during which Hardaway had cross-examined some of the defendants. (Id. ¶¶ 101-02.) The arresting officer called Hardaway a racial slur and asked, "`[y]ou got any questions for me now?'" (Id. ¶ 104.) Per Culmone-Mills' preference, Hardaway and Callwood spent the night in jail and were released on their own recognizance on February 14. (Id. ¶¶ 108, 110.) Later that day, Greene told Hardaway and Callwood that "`[d]riving luxury cars [referring to . . . Hardaway's Porsche] will get you the kind of police attention you do not want in Kingston'" and "`[y]ou were arrested so that we could find out who you were . . . [n]obody could figure out who you all were.'" (Id. ¶¶ 111-12.) The same day, Stitt told Greene that Manassas, Virginia (where Hardaway once rented an apartment) "`has a notorious sex trafficking issue being run by orientals and believed to be part of the Moonie cult,'" which "`explained why [Hardaway was driving] a Porsche.'" (Id. ¶¶ 92-93.) The terms "orientals" and "Moonie cult" are derogatory terms used to describe the Unification religion and its members. (Id. ¶ 94.) Stitt also told Virginia authorities that Hardaway and Callwood "`were likely involved in sex trafficking and other crimes.'" (Id. ¶ 95.)
Joern and unidentified DSS personnel posted Hardaway's and Callwood's mugshots on Facebook "and took turns disparaging them and `liking' each other's negative comments." (Id. ¶ 58.) Joern mischaracterized the results of the application to return hearing and disclosed confidential information about Hardaway and Callwood. (Id.) Joern deleted electronic versions of her Facebook posts after Hardaway and Callwood learned that they existed. (Id.)
Based on a neglect petition signed by Iapoce, the DSS Commissioner, on February 10, 2014, Family Court set a trial for July and August. (Id. ¶¶ 11, 52-57.) When ordering the return of A.H. and J.H. to Hardaway and Callwood on February 14, Family Court "issued a protective order requiring A.H.'s schooling [to] be compliant with state education law during the pendency of all [F]amily [C]ourt matters." (Id. ¶ 52.) On February 25, Greene filed a violation petition, signed by Iapoce, claiming Hardaway's and Callwood's non-compliance with the protective order because they failed to enroll A.H. in a school program. (Id. ¶ 56.) In April, Sorkin, the DSS Deputy Commissioner, Webb (a DSS caseworker), Joern, and "three other []DSS personnel" met and agreed to file an emergency removal petition for A.H. "to circumvent" Family Court's trial scheduled for July and August. (Id. ¶¶ 11, 59.) Joern filed an emergency removal petition on April 7 and at a hearing the next day claimed the reason was that A.H.'s homeschooling plan was not registered with the Kingston City School District. (Id. ¶¶ 60, 62.) Family Court instructed Hardaway and Callwood to register A.H.'s homeschool plan with the Kingston City School District.
Hardaway and Callwood filed this action in late October 2015, asserting claims on behalf of themselves and their minor children, A.H. and J.H., (Compl., Dkt. No. 1), and then filed an amended complaint in December 2015, (Am. Compl.). The City defendants answered the amended complaint and cross-claimed against the County defendants for "contribution and/or indemnification." (Dkt. No. 16 at 5.) The County defendants filed the pending motion to dismiss, which Hardaway opposed but the City defendants did not. (Dkt. Nos. 20, 37, 46.)
Rule 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). For a full discussion of the governing standard, the court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218 (N.D.N.Y. 2010).
Plaintiffs assert the following claims, which are numbered as in the amended complaint,
Plaintiffs also request punitive damages, (id. ¶ 172), "attorney's fees, costs, and disbursements" under 42 U.S.C. § 1988, (id. ¶ 176), "[a] permanent injunction ordering [the County] to add the name, title, organization, address, and telephone number of the caseworker removing a child to all future § 1024 removal notices," (id. ¶ 178), and a declaratory judgment declaring certain of the County's policies and practices unconstitutional, (id. ¶ 179).
The City defendants cross-claimed against the County defendants for "contribution and/or indemnification." (Dkt. No. 16 at 5.)
The County defendants argue that dismissal of a number of claims is appropriate because of various forms of immunity. (Dkt. No. 20, Attach. 2 at 5-12.) The court addresses each in turn.
The County defendants assert that absolute prosecutorial immunity bars claims against Joern, Culmone-Mills, Carnright, Greene, Webb, Sorkin, and Iapoce. (Dkt. No. 20, Attach. 2 at 5-7.) However, at this juncture, only Carnright, Sorkin, and Iapoce are entitled to such immunity, for the reasons stated below. On a more developed factual record, it may be that more of the County defendants are immune to at least some of Hardaway's claims; accordingly, the County defendants are free to raise this argument again at an appropriate time.
Although Joern is "accorded absolute immunity from claims arising out of the performance of her duties" as DSS counsel, Walden v. Wishengrad, 745 F.2d 149, 152 (2d Cir. 1984), the amended complaint includes allegations that Joern made Facebook comments outside of her role as an attorney. (Am. Compl. ¶ 58.) Joern is not accorded absolute immunity for comments having no functional tie to the judicial process. See Buckley v. Fitzsimmons, 509 U.S. 259, 277 (1993); Warney v. Monroe Cty., 587 F.3d 113, 121 (2d Cir. 2009). The claims against Joern thus cannot be dismissed because of prosecutorial immunity at this time.
The claims against Culmone-Mills likewise cannot be dismissed at this time, because it is unclear whether Culmone-Mills' alleged involvement in the application to return hearing, (Am. Compl. ¶ 100), was within the scope of her prosecutorial duties. See Walden, 745 F.2d at 151. Moreover, Hardaway makes a state common law claim against Culmone-Mills, and the County defendants have failed to address if and how prosecutorial immunity would apply to a claim alleged pursuant to authority other than § 1983.
Carnright's review of court transcripts and meetings with subordinates, (Am. Compl. ¶ 115), are part of the performance of his prosecutorial duties, and absolute immunity applies. See Walden, 745 F.2d at 152. Except for the failure to supervise claim that is addressed below, see infra Part IV.F.3, the claims against Carnright are thus dismissed.
Because "officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts," Walden, 745 F.2d at 151 (internal quotation marks and citations omitted), and the only allegations regarding Sorkin and Iapoce are their involvement with an emergency removal petition, a neglect petition, and a violation petition, (Am. Compl. ¶¶ 52, 56, 59), the claims against Sorkin and Iapoce are dismissed, with the exception of the failure to supervise claim that is addressed below.
The County defendants next argue that absolute witness immunity bars claims against Meyer, Greene, and Stitt. (Dkt. No. 20, Attach. 2 at 8.) "[A]bsolute witness immunity [applies] to Section 1983 actions arising out of or caused by the substance of public officials' allegedly false trial testimony." Cipolla v. Cty. of Rensselaer, 129 F.Supp.2d 436, 447 (N.D.N.Y. 2001) (citing Briscoe v. LaHue, 460 U.S. 325 (1983)), aff'd, 20 F. App'x 84 (2d Cir. 2001). However, the County defendants failed to meaningfully articulate which of plaintiffs' claims arise out of or were caused solely by the substance of such testimony. That is, the County defendants did not address why the alleged out-of-court actions of Meyer, Greene, and Stitt do not suffice to support plaintiffs' claims.
The County defendants also seek to dismiss the claims against Meyer, Timbrouck, and Stitt on the basis of qualified immunity. (Dkt. No. 20, Attach. 2 at 8-11.) Qualified immunity generally protects governmental officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal citations omitted). On the facts now before the court, which are drawn from the amended complaint and accepted as true, the County defendants have not established that qualified immunity applies.
The County defendants argue that plaintiffs' claims against them in their official capacities are barred by the Eleventh Amendment. (Dkt. No. 20, Attach. 2 at 11-12.) "To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). Plaintiffs did not dispute the County defendants' Eleventh Amendment argument. Accordingly, the court dismisses plaintiffs' claims for damages
Plaintiffs' seventh cause of action is a § 1983 Fourth Amendment claim based on the medical examination of A.H. and J.H. at a hospital. (Am. Compl. ¶ 138.) As argued by the County defendants, (Dkt. No. 20, Attach. 2 at 14), the claim against Timbrouck and Meyer must be dismissed because there are no allegations that either had any involvement regarding the medical examination, (Am. Compl. ¶¶ 25-30). Indeed, plaintiffs acknowledge that "[A.H. and J.H.] were undergoing a second medical examination in the hospital before . . . Meyer left his home." (Id. ¶ 99(K).)
The eighth cause of action is for Timbrouck's and Meyer's alleged retaliation against A.H. in violation of her First Amendment rights. (Am. Compl. ¶ 140.) "To plead a First Amendment retaliation claim a plaintiff must show: (1) he has a right protected by the First Amendment; (2) the defendant's actions were motivated or substantially caused by his exercise of that right; and (3) the defendant's actions caused him some injury." Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). The claim against Timbrouck fails because there is no allegation that Timbrouck knew that A.H. spoke to KPD officers, let alone what A.H. said. (Am. Compl. ¶¶ 23, 35.) The claim against Meyer likewise fails because plaintiffs do not sufficiently allege either "that [A.H.'s] speech [was] adversely affected by the government retaliation or that [A.H.] . . . suffered some other concrete harm" because of Meyer's actions. Dorsett, 732 F.3d at 160. Even if Meyer hid exculpatory evidence and gave false testimony in Family Court,
Hardaway's ninth cause of action, which is against the County defendants for First Amendment retaliation based on acts in response to Hardaway's cross-examination during Family Court proceedings, (Am. Compl. ¶ 142), survives as to Stitt and Joern but must be dismissed as to the remaining County defendants, as explained below.
Stitt began her investigation after Hardaway's cross-examination of Meyer and a KPD officer, and Stitt said Hardaway and Callwood would be arrested because "`nothing seems to be adding up.'"
Plaintiffs allege that Joern retaliated against Hardaway by making disparaging Facebook comments. (Am. Compl. ¶¶ 58, 142.) As described above, see supra Part IV.A.1.a, Joern is not entitled to prosecutorial immunity for the Facebook comments. The claim thus survives as to Joern.
Although Culmone-Mills is not entitled to absolute prosecutorial immunity as to each claim against her, see supra Part IV.A.1.b, she is immune regarding her "prefer[ence]" that Hardaway and Callwood spend the night in jail after they were arrested, (Am. Compl. ¶ 108), because such a decision is a "component[] of the initiation and presentation of a prosecution," Doe v. Phillips, 81 F.3d 1204, 1213 (2d Cir. 1996). As none of Culmone-Mills' other conduct adversely affected Hardaway's speech or caused him to suffer some other concrete harm, the First Amendment retaliation claim as to Culmone-Mills is dismissed. See Dorsett, 732 F.3d at 160.
Iapoce, Sorkin, and Carnright have absolute prosecutorial immunity, see supra Part IV.A.1.c-d, and Hardaway fails to sufficiently allege that the retaliation of Greene, Webb, Timbrouck, Meyer, or the County caused him concrete harm or an adverse effect on his speech, see Dorsett, 732 F.3d at 160. Therefore, the First Amendment retaliation claim against them is dismissed.
The County defendants assert that plaintiffs' state law malicious prosecution claim (seventeenth cause of action) against Culmone-Mills and Stitt should be dismissed because plaintiffs failed to file a notice of claim, as required by New York state law. (Dkt. No. 20, Attach. 2 at 15-16.) But the court agrees with plaintiffs that a notice of claim is not required for an intentional tort claim against a municipal employee in her individual capacity for which the municipality has no obligation to indemnify the employee. See Lluberes v. City of Troy, No. 11-CV-1346, 2014 WL 1123413, at *21 (N.D.N.Y. Mar. 21, 2014); Knox v. Cty. of Ulster, No. 1:11-CV-0112, 2013 WL 286282, at *9 (N.D.N.Y. Jan. 24, 2013). The County defendants do not argue that the County has an obligation to indemnify Culmone-Mills and Stitt for malicious prosecution, and thus the claim survives.
The court dismisses plaintiffs' eighteenth cause of action, which claims a substantive due process violation, because it violates Rule 8(a)(2), as argued by the County Defendants. (Dkt. No. 20, Attach. 2 at 5.)
Hardaway's nineteenth cause of action consists of claims of municipal liability on the grounds of policy and practices and failure to train, as well as supervisory liability claims. (Am. Compl. ¶¶ 162-64.) The court addresses each of these in turn.
"[A] municipality can be held liable under Section 1983 if the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality." Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (internal citations omitted). "[A]part from a detailed recounting of [their] own experiences, [plaintiffs'] complaint contains only general and conclusory allegation[s]" as to the County's policies and practices, Schnauder v. Gibens, 679 F. App'x 10 (2d Cir. 2017) (internal quotation marks and citation omitted), and plaintiffs thus fail to state a municipal liability claim based on a custom, policy, or usage. See Uwadiegwu v. Dep't of Soc. Servs., 639 F. App'x 13, 16 (2d Cir. 2016). The claim is dismissed, and plaintiffs' request for a declaratory judgment, (Am. Compl. ¶ 179), is dismissed for the same reasons. See Cty. of Los Angeles v. Humphries, 562 U.S. 29, 31 (2010).
Plaintiffs also fail to state a municipal liability claim on the grounds of the County's failure to train. "[A] municipality can be liable for failing to train its employees where it acts with deliberate indifference in disregarding the risk that its employees will unconstitutionally apply its policies without more training." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 378, 387-90 (1989)). But plaintiffs fail to "identify a specific deficiency in the [County]'s training program and establish that that deficiency . . . actually caused [any] constitutional deprivation." Id. at 129 (internal quotation marks and citation omitted). A failure to train claim must "be based on more than the mere fact that the misconduct occurred in the first place," which plaintiffs' conclusory allegations fail to provide. Id. (internal citations omitted). The claim is thus dismissed.
A supervisor may be held personally liable
The County defendants argue that punitive damages are not available against a municipality, (Dkt. No. 20, Attach. 2 at 18), and plaintiffs fail to show otherwise. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) ("[A] municipality is immune from punitive damages under 42 U.S.C. § 1983."). Thus, plaintiffs' demand for punitive damages against the County is dismissed. However, the County defendants have not provided a valid basis for dismissing plaintiffs' demand for punitive damages from the County defendants (excepting the County) in their individual capacities.
Because plaintiffs "ha[ve] made no showing that [they are] realistically threatened by a repetition" of the alleged harm that they suffered as a result of the § 1024 removal notice's lack of contact information, plaintiffs lack standing to seek an injunction. City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Even if plaintiffs had standing, an injunction "is unavailable absent a showing of irreparable injury, a requirement that cannot be met [because] there is no showing of any real or immediate threat that . . . plaintiff[s] will be wronged again" by an omission of contact information from a § 1024 removal notice. Id. at 111.
Under § 1988, a prevailing party in a § 1983 action may be allowed to recover reasonable attorney's fees. LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998) (citing 42 U.S.C. §§ 1988). But a decision on that issue is premature at this stage of the proceedings. See Rielly v. Barkley, No. 91 CV 4871, 1992 WL 390282, at *2 (E.D.N.Y. Dec. 15, 1992).
The County defendants moved to dismiss the cross-claim brought against them by the City defendants. (Dkt. No. 20, Attach. 2 at 1; Dkt. No. 16 at 5.) The court deems the City defendants' failure to file any opposition as consent to the granting of the motion under Local Rule 7.1(b)(3), and their cross-claim is hereby dismissed. See Burns v. Trombly, 624 F.Supp.2d 185, 197 (N.D.N.Y. 2008).
The court notes that it appears plaintiffs' tenth, eleventh, and twelfth causes of action are subject to dismissal because § 1983 liability may not be predicated on a claim of malicious abuse of civil process. Green v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). However, because the issue was neither raised nor argued by the parties, the court declines to dismiss those claims at this time.
The court also notes that Hardaway withdrew his thirteenth cause of action for "false arrest/false imprisonment" as to Culmone-Mills and Stitt. (Dkt. No. 37 at 1.)
Finally, the court notes that the dismissal of plaintiffs' claims is with prejudice because plaintiffs have already amended their complaint once, and they did not seek leave to amend their complaint for a second time in their opposition to the County defendants' motion to dismiss. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1132 (2d Cir. 1994).
