Hart v. Shmayenik

• Docket Number: 23-CV-4779 (LTS)
• Decision Date: 30 October 2023
• Parties: MALCOLM HART, Plaintiff, v. BRONISLAVA SHMAYENIK; DEPARTMENT OF SOCIAL SERVICES, Defendants.
• Court: U.S. District Court — Southern District of New York

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MALCOLM HART, Plaintiff, v. BRONISLAVA SHMAYENIK; DEPARTMENT OF SOCIAL SERVICES, Defendants.

No. 23-CV-4779 (LTS)

United States District Court, S.D. New York

October 30, 2023

ORDER OF DISMISSAL

LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:

Plaintiff who is appearing pro se, brings this suit challenging actions related to his payment of child support. Plaintiff sues the New York City Department of Social Services (DSS), and Bronislava Shmayenik, Director of Administrative Enforcement of the Support Collection Unit of the DSS's Office of Child Support Services.^[1]He asserts claims under the Fair Debt Collection Practices Act (FDCPA), 42 U.S.C. § 1692(g); 42 U.S.C. § 1983; federal criminal statutes, and state law. Plaintiff seeks termination of his Income Withholding Order (IWO), as well as recovery of child support payments that he alleges he has paid, and punitive damages.

By order dated June 8, 2023, the Court granted Plaintiff's request to proceed in forma pauperis, that is without prepayment of fees. The Court dismisses the complaint for the reasons set forth below.

STANDARD OF REVIEW

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 on 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 Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. 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.

Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” 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. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). 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. 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. Id.

BACKGROUND

The following allegations are from Plaintiff's complaint. Plaintiff's claims arose at the Bronx Family Courthouse on August 8, 2015, and October 26, 2020. Plaintiff was notified that, if he failed to pay child support as ordered, his driving privileges could be suspended, and he could be arrested. On an unspecified date, an IWO was sent to Plaintiff's employer to attach his wages. (ECF 1 at 7.)

Plaintiff attaches to his complaint two orders of support: an August 6, 2015 order, signed by Support Magistrate Robert Ross of the Family Court of the State of New York, New York County, directing Plaintiff to pay support; and an October 2020 order signed by Support Magistrate Denetra Thompson of the Family Court of the State of New York, Bronx County, modifying Plaintiff's support obligation.

Plaintiff also attaches to the complaint an affidavit from Defendant Shmayenik, which is captioned for the New York State Supreme Court, Kings County, and appears to have been submitted in Plaintiff's 2023 suit in that court against the New York State Office of Temporary Disability and Assistance. (Id. at 21-23.) In the affidavit, Defendant Shmayenik details the history of the child support enforcement orders involving Plaintiff and states that the New York City's OCSS (1) implemented an IWO on August 11, 2015, to enforce Plaintiff's obligation under the August 8, 2015 support order; and (2) changed the IWO amount on November 9, 2020, when the August 8, 2015 order was modified. (Id. at 22, ¶ 6.)

Plaintiff makes numerous challenges to the child support order against him and its execution.^[2]He further alleges that Defendants are violating the FDCPA and a criminal statute prohibiting “frauds and swindles,” 18 U.S.C. § 1341. Plaintiff seeks termination of the IWO, reimbursement of $95,000 allegedly paid in child support, plus $8 million in punitive damages.

DISCUSSION

A. Fair Debt Collection Practices Act

Plaintiff asserts a violation of his rights under the FDCPA. The FDCPA provides that “[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. “[T]he first question in any claim brought under the FDCPA is whether the allegedly violative conduct was used in an attempt to collect a ‘debt' within the meaning of the FDCPA.” Beal v. Himmel & Bernstein, LLP, 615 F.Supp.2d 214, 216 (S.D.N.Y. 2009). The FDCPA defines the term “debt” as:

any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.

15 U.S.C. § 1692a(5).

Courts have concluded that “[c]hild support obligations “do not qualify as ‘debts' under the FDCPA because they were not incurred to receive consumer goods or services. Rather, the [Department of Social Services] imposed these obligations upon appellants to force them to fulfill their parental duty to support their children.” Beal, 615 F.Supp.2d at 217. Because child support is not a debt governed by the FDCPA, Plaintiff's allegations that government agencies used various means to collect child support from him fail to state a claim under the FDCPA.

Moreover, the FDCPA excludes from the definition of “debt collector” officers or employees of any State or municipality. 15 U.S.C. § 1692a(6)(C) (The term “debt collector” does not include “any officer or employee of . . . any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties.”); 15 U.S.C. § 1692a(8) (“The term ‘State' means any State . . . or any political subdivision [thereof]”). Defendants New York City DSS and Shmayenik thus do not qualify as debt collectors for purposes of the FDCPA.^[3]For all of these reasons, Plaintiff's FDCPA claim must be dismissed because these allegations fail to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

B. Claims Under Criminal Law

Plaintiff contends that Defendants' actions, in compelling him to pay child support, violate criminal statutes prohibiting “frauds and swindles,” 18 U.S.C. § 1341, and constitute a conspiracy against his rights, in violation of 18 U.S.C. § 241. Plaintiff cannot initiate a criminal proceeding in this Court because “the decision to prosecute is solely within the discretion of the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). Nor can Plaintiff or the Court direct prosecuting attorneys to initiate a criminal proceeding, because prosecutors possess discretionary authority to bring criminal actions, and they are “immune from control or interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). Accordingly, the Court dismisses Plaintiff's claims for alleged violations of criminal law for failure to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

C. Challenge to Income Withholding Order

Plaintiff asks this Court to terminate the IWO, enjoin its enforcement, and refund the child support collected pursuant to that order. He makes numerous arguments about the invalidity of the IWO.^[4] Federal district courts, however, lack authority to review state court orders and judgments. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005); see also Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 644 n.3 (2002) (holding that the statute authorizing original federal jurisdiction, 28 U.S.C. § 1331, “does not authorize district courts to exercise appellate jurisdiction over state-court judgments[.]”); Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021) (district courts are barred from “hearing cases that in effect are appeals from state court judgments, because the Supreme Court [of the United States] is the only federal court with jurisdiction over such cases.” (citing 28 U.S.C. § 1257)).

District court review of claims that complain of injury by state court judgements is barred, under the so-called Rooker-Feldman doctrine,^[5]when four requirements are met: (1) the plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by a state court judgment; (3) the plaintiff must invite district court review and rejection of the state court judgment; and (4) the state court judgment must have been rendered before the district court proceedings commenced. Dorce, 2 F.4th at 101 (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85...