ALLEN v. MATTINGLY
| Decision Date | 30 March 2011 |
| Docket Number | No. : 10 CV 0667 (SJF)(ARL),: 10 CV 0667 (SJF)(ARL) |
| Parties | SANDRA MORRISON ALLEN, Plaintiff, v. JOHN MATTINGLY, Commissioner of ACS, DEIDRE REYNOLDS, Director Mercy First Foster Care, JEANIE CAMBRIA, Mercy First Foster Care, STEWART ALTMAN, Law Guardian for Child, ERIN GALVIN, ESQ., RACHELLE SKUOL [sic], ESQ., for Administration for Children Services, ANGELLA [sic] CAMPBELL, Caseworker for ACS, DR. DEBRA ERNERSIO-JENS SEN [sic], ANDREA LOMAX, Caseworker, JOSEPH KASPER, ESQ., SISTERS OF MERCY/MERCY FIRST FOSTERCARE BOARDING HOMES, "JOHN DOE," IRA ERAS, ESQ. and JUDGE LINDA TALLY, |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
On February 16, 2010, pro se plaintiff Sandra Morrison Allen ("plaintiff) commenced this action pursuant to, inter alia, 42 U.S.C. §§ 1983, 1985 and 1986 against: (1) defendants John Mattingly ("Mattingly"), as commissioner of the New York City Administration for Children's Services ("ACS"), Rachelle Sukol, Esq. ("Sukol"), i/s/h as Rachelle Skuol, Esq., as the attorney for ACS, and Angela Campbell ("Campbell"), i/s/h as Angella Campbell, as caseworker for ACS, (collectively, "the City defendants"); (2) defendants Sisters of Mercy/Mercy First Fostercare Boarding Home ("Mercy First"), Deidre Reynolds ("Reynolds"), as director of Mercy First, Andrea Lomax ("Lomax"), as caseworker for Mercy First, Jeanie Cambria ("Cambria"), anemployee of Mercy First, and Ira Eras, Esq., counsel for Mercy First (collectively, "the Mercy First defendants"); (3) defendant Stewart Altaian ("Altaian"), as law guardian for plaintiff's son; (4) defendant Erin Galvin, Esq. ("Galvin"), as law guardian for plaintiff's daughter; (5) defendant Debra Esernio-Jenssen, M.D. ("Jenssen"), i/s/h as Dr. Debra Ernersio-Jenssen; (6) pro se defendant Joseph Kasper, Esq. ("Kasper"); (7) a "John Doe" defendant; and (8) defendant Judge Linda Tally ("Judge Tally")1. Pending before the Court are: (1) the motions of the City defendants and the State defendants pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure to dismiss the amended complaint for lack of subject matter jurisdiction and failure to state a claim, respectively; and (2) the motions of Galvin, Jenssen and the Mercy First defendants pursuant to Rule 12(b)(6) of the Federal Rules of Procedure to dismiss the amended complaint for failure to state a claim. For the reasons discussed herein, the motions are granted.
Plaintiff is the mother of a son, born on September 16, 2001, and a daughter, born August 18, 1989. In October 2001, ACS commenced neglect proceedings under Article 10 of the New York State Family Court Act against plaintiff in the Family Court of the State of New York,County of Queens ("the Family Court"), (Declaration of Steven D. Weber [Weber Decl.], Exs. B and C), after plaintiff sought medical treatment for injuries her son allegedly sustained following an accident. (Compl., pp. 5, 9, 10). The only factual allegation in the complaint referencing Jenssen is that she was the pediatrician to whom plaintiff brought her son for medical treatment following the alleged accident. (Compl., p. 10).
On July 13, 2005, following fact-finding hearings, Judge Friedman issued a Fact-Finding Order, adjudging, inter alia, plaintiff's son to be an abused child, as defined in section 1012 of the New York State Family Court Act. (Weber Decl., Ex. D).
On October 11, 2005, following a preliminary hearing, Judge Friedman issued an order remanding plaintiff's son to the custody of ACS pending further proceedings in the Family Court. (Weber Decl., Ex. E).
On November 9, 2005, following a hearing, Judge Friedman issued another order remanding plaintiff's son to the custody of ACS pending further proceedings, finding that removing plaintiff's son from her custody was in the best interests of the child because plaintiff had been remanded to Elmhurst Hospital "due to erratic behavior in the waiting room," the child had previously been adjudicated an abused child and plaintiff "hid the child from ACS and provided false information where the child was located." (Weber Decl., Ex. F). Plaintiff alleges that Judge Friedman accused her of participating in a "prayer circle" in the vestibule of the Family Court; caused the "court room police" to seize her and take her to the "jail in the basement of the court room without any notice to [her] attorney;" and ordered her into psychiatric hospitalization at Elmhurst General Hospital for fourteen (14) days. (Compl., p. 3). According to plaintiff, as a result of the hospitalization, she missed a court proceeding "which took placewithout [her] and resulted in the seizure by ACS of [her] two children * * *." (Compl., p. 3). Upon his removal from plaintiff's custody, plaintiff's son was placed in the care of Mercy First, a private, not-for-profit child care agency. Plaintiff alleges that once her son was "seized" by ACS, she was deprived of contact with him for ten (10) or eleven (11) months and was denied the "right to any pictures" of him. (Compl., pp. 3, 12, 13).
Plaintiff alleges that between June 2006 and March 2008, while in the care and custody of Mercy First, her son sustained injuries, including a fractured skull, fractured collar bone, "strange bites," redness of his nipples, bruises to his ankles, "injury marks" on his ears, limping, loss of four (4) front teeth and contusions on the side of his face, and had been "psychiatrically medicated." (Compl., pp. 10-11, 13). According to plaintiff, the Mercy First defendants have refused to release to her all records pertaining to the medical, dental, school and psychological treatment received by her son. (Compl., p. 11,13).
Plaintiff alleges that on January 19, 2006, the Mercy First defendants falsely accused her of kidnapping her daughter after her daughter brought Christmas presents to her car "instead of travelling [sic] on the lonely, dark Far Rockaway crime ridden community to a train station by Mercy First location." (Compl., p. 4). According to plaintiff, the false accusations by the Mercy First defendants caused her to be absent from another court hearing. (Compl., p. 4). According to Kasper, who represented plaintiff during the neglect proceeding from on or about November 23, 2005 until or on about May 12, 2006, then again from on or about June 29, 2007 until on or about February 2, 2009, (Kasper's Answer [Ans.], ¶ 1), plaintiff was arrested on January 18, 2006 for allegedly kidnapping her daughter, (Ans., ¶ 7), but the charges were dismissed by the Queens County District Attorney's office prior to arraignment. (Compl., Ex. III).
Plaintiff alleges that in December 2007, her son was denied visitation with his relatives from out of state. (Compl., p. 13).
In or about March 2008, ACS filed a petition in the Family Court seeking to terminate plaintiff's parental rights.
On September 23, 2008, following a dispositional hearing, Judge Tally issued an Order of Disposition, inter alia, directing plaintiff's son to be placed in the custody of the Commissioner of Social Services of Queens County ("CSS") until the completion of the next permanency hearing scheduled for March 23, 2009; directing plaintiff to "engage in individual counseling with an individual therapist credentialed by a hospital" and to comply with all reasonable referrals stemming from such therapy; and permitting plaintiff to have "therapeutic visits" with her son "[w]hen the therapist deems appropriate." (Weber Decl., Ex. G). On that same date, Judge Tally issued a Permanency Hearing Order, inter alia, directing the continued placement of plaintiff's son in the custody of CSS until completion of the next permanency hearing because plaintiff had "failed to engage in mandated services and appropriate visitation;" directing CSS to continue planning for the adoption of plaintiff's son, but permitting CSS to concurrently plan for the son's reunification with plaintiff; directing that plaintiff's son be provided with individual therapy; permitting CSS to provide therapeutic visitation for plaintiff "when deemed appropriate by the attending therapist;" and directing CSS to continue supervised sibling visitation. (Weber Decl., Ex. H).
Plaintiff alleges that in May 2009, her request to have her son attend her graduation from Hofstra University was denied. (Compl., p. 13).
On September 29, 2009, Craig Ramseur, referee, issued a Permanency Hearing Order,inter alia, finding that CSS had made "reasonable efforts to reach the goal of adoption" by filing a termination of parental rights petition and placing plaintiff's son in a pre-adoptive home; directing that plaintiff's son "continue to be temporarily removed in the custody of [CSS] until the completion of the next permanency hearing, scheduled for [March 22, 2010];" and directing plaintiff to have supervised visits with her son at "the agency" for two (2) hours every Thursday evening. (Weber Decl., Ex. H).
Plaintiff also alleges that at an unidentified time, a visit with her son was cancelled because she had sung a religious song to him during a prior visit. (Compl., p. 13).
On May 16, 2008, plaintiff and her husband filed an action pro se in this Court against Mattingly, Reynolds, Altman, Galvin, Lomax and Mercy First, among others, challenging the placement of their son in foster care and plaintiff's involuntary confinement for psychiatric evaluation in November 2005, and seeking declaratory relief, compensatory damages and to regain custody of their son ("the 2008 action"). Allen v. Mattingly. No. 08-cv-2003. Plaintiff also claimed, inter alia, that her involuntary commitment in November 2005 violated her First Amendment right to practice her religion. By order entered June 19, 2008, inter alia: (1) plaintiff's claims seeking to regain custody of her son, for damages relating to the placement of her son in foster care and for a declaration that the placement of...
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