Charles v. Lopez
| Decision Date | 15 October 2019 |
| Docket Number | 19-CV-8706 (CM) |
| Parties | SAMUEL CHARLES, Plaintiff, v. ANTHONY LOPEZ; SHIRA ATZMON; MUNICIPAL CREDIT UNION (MCU), Defendants. |
| Court | U.S. District Court — Southern District of New York |
ORDER OF DISMISSAL
Plaintiff, appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. By order dated September 20, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis.
The court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The court must also dismiss a complaint if the court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The United States Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief "'that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. Id. (citing Twombly, 550 U.S. at 556.) In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id. But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Id. (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. See id. at 678-79.
Plaintiff filed this complaint alleging that Anthony Lopez and Shira Atzmon, who are Bronx County Family Court Support Magistrates, and the Municipal Credit Union (MCU), conspired against him to violate his due process rights. Although Plaintiff does not provide much factual detail regarding the events underlying this action, he alleges that his due process rights were violated during child support proceedings involving him and Shaniqua Smiley. Plaintiff alleges that Defendants used "deceptive tactics to induce [him] into signing an adhesion contract by using methods of duress & coercion"; that the Support Magistrates "are operating under fraud, breach of contract, negligence attempting to overthrow the gov't in their colorable court"; that "jurisdiction have been challenge & yet to be proven, lack of thereof case is null & void"; and that Smiley "has yet to provide injury or crime against me under penalty of perjury." (ECF1:19-CV-8706, 2.) Plaintiff asserts that his wages and tax returns were garnished or seized, and his driver's license and passport revoked. Plaintiff does not specify the relief he seeks.
New York law provides a procedure for modifying a child support award. "[T]he Family Court Act permits a respondent to make an application asking the family court, in its discretion, to modify an order of support based on the respondent's financial hardship." Ngemi v. Cnty. of Nassau, 87 F. Supp. 3d 413, 418 (E.D.N.Y. 2015). A parent can also seek relief in the state court for child support arrears. N.Y. Family Court Act § 451 (). Plaintiff does not indicate that he attempted to modify his monthly child support obligations by filing a petition for modification of an order of support in the Family Court, or that he sought to reduce or annul any arrears by showing good cause for his failure to seek relief before the unpaid arrears accrued.
Federal district courts, however, lack authority to review state court orders. See McKithen v. Brown, 481 F.3d 89, 96 (2d Cir. 2007) (). The Court therefore lacks jurisdiction to entertain any request to vacate or modify child support orders issued by the New York Family Court, or reduce or annul the arrears owed.
Plaintiff appears to challenge the authority of the Support Magistrates to determine his child support obligation. The Court understands this as an argument that New York's delegation of decisionmaking authority to child support examiners or magistrates is improper.
New York's Supreme Court has considered and rejected arguments that the Family Court Act § 439 violates New York's Constitution insofar as it authorizes the transfer of Family Court's powers from "constitutionally elected Judges to nonjudicial, unelected employees of the Unified Court System." Carella v. Collins, 144 A.D.2d 78, 82 (1989) (); see also Boscherini v. Borgia, 229 A.D.2d 744, 745 (1996) (). Plaintiff's challenge to the authority of the Support Magistrates, which arises under state law, thus fails to state a claim on which relief can be granted.
Moreover, a Support Magistrate acting in a judicial capacity is entitled to absolute judicial immunity for judicial actions and is not deprived of immunity because the action he or she took "was in error, was done maliciously, or was in excess of [his or her] authority." Gross v. Rell, 585 F.3d 72, 84 (2d Cir. 2009). Here, the decisions of Support Magistrates Lopez and Atzmon were made in the course of presiding over Plaintiff's child support matter. His claims against the Support Magistrates must be dismissed because they are immune from suit for such claims. 28 U.S.C. § 1915(e)(2)(B)(iii).
In order to "assur[e] that assistance in obtaining support will be available . . . to all children," federal law provides that "each State must have in effect laws requiring the use of" procedures for withholding income payable as support, establishing paternity, and establishing, modifying, and enforcing support obligations. 42 U.S.C. §§ 651, 666(a). These include "(1) issuance of income executions; (2) intercepting state and federal income tax re[funds];(3) suspension of a driver's license; (4) imposing liens on real and personal property; and (5) seizure of assets. See Southerland v. Banks, No. 15-CV-6088, 2015 WL 9581818, at *2 (E.D.N.Y. Dec. 30, 2015) ( 42 U.S.C. § 666(a)(1)-(16), and Social Security Act § 111-t, 111-u).
Plaintiff's complaint can be read to assert that his due process rights were violated in connection with the enforcement of a child support decree.1 "The two threshold questions in any § 1983 claim for denial of procedural due process are whether the plaintiff possessed a liberty or property interest protected by the United States Constitution or federal statutes and, if so, what process was due before plaintiff could be deprived of that interest." Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)). When a plaintiff brings a procedural due process claim based on random or unauthorized acts by state employees, a post-deprivation hearing is the only form of due process that can be made available because the state could not have predicted that the deprivation would occur. Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 880 (1996). But "in situations where the State feasibly can provide a predeprivation hearing before taking property, it must do so regardless of the adequacy of the postdeprivation remedy." Zinermon v. Burch, 494 U.S. 113, 132 (1990)); Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 467 (2d Cir. 2006)("[W]hen the deprivation is pursuant to an established state procedure, the state can predict when it will occur and is in the position to provide a pre-deprivation hearing").
At a minimum, due process requires that the government provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Weinstein v. Albright, 261 F.3d 127, 134 (2d Cir. 2001) ().
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