Johnson v. City of New York
| Decision Date | 12 August 2022 |
| Docket Number | 20-CV-3083 (GBD) (BCM) |
| Parties | VANDYKE JOHNSON, Plaintiff, v. CITY OF NEW YORK, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION TO THE HON. GEORGE B DANIELS
Plaintiff Vandyke Johnson sues the City of New York (City), the Commissioner of the New York City Administration for Children's Services (ACS), David A. Hansell, and two ACS employees, Diana Alama and Sheena Blaise, seeking damages arising out of a child neglect petition that was lodged against him on August 28, 2019 and withdrawn on August 3 2021. Now before me for report and recommendation is defendants' motion (Dkt. 76) to dismiss plaintiff's Third Amended Complaint (TAC) (Dkt. 72 at ECF pp. 4-21) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, the motion should be granted and the case should be dismissed.
On August 22, 2019, plaintiff and his step-daughter AOM, who was then 14 years old, were involved in a "family dispute," Compl. (Dkt. 1) ¶ 26, after which AOM's mother, Mercedes Johnson, took AOM and her younger sister VJ (plaintiff's biological daughter) to the 33d precinct and reported the incident to the New York Police Department (NYPD). Id. ¶ 27; see also Neglect Petition (Pet.) (Dkt. 81-2) at ECF pp. 6-7.[2] Ms. Johnson and AOM told the NYPD that plaintiff grabbed AOM by her sweatshirt and dragged her out of the bedroom, causing "redness to her neck." Compl. ¶¶ 32; Pet. at ECF pp. 6-7. NYPD Officer Diaz took photographs of AOM's neck. Compl. ¶¶ 33, 40; Pet. at ECF p. 7; Progress Notes at 16. NYPD Officer Randazzo prepared a police report stating that AOM "suffered redness to her neck, scratches on her ankle and was dragged out of the bedroom." Compl. ¶ 32. Petitioner, who declined to answer questions at the precinct, was arrested that same day and charged with assault in the third degree, acting in a manner injurious to a child, and related crimes. Compl. ¶¶ 28, 30-33; id. at ECF p. 19 (). On August 23, 2019, plaintiff was arraigned on those charges in Criminal Court. Id. at ECF p. 19. Additionally, the Criminal Court issued a "stayaway order of protection" (the Criminal Court OOP). Pet. at ECF p. 7.
After plaintiff's arrest, ACS began its own investigation, including review of police records, a home visit, and interviews of Ms. Johnson, AOM, VJ, and Officer Diaz. Pet. at ECF pp. 6-7; see also Compl. ¶¶ 38-40; Progress Notes at 1-32. Defendant Alama, who was assigned to the investigation on August 23, 2019, personally interviewed Ms. Johnson, AOM, and VJ, see Progress Notes at 14-21, and requested AOM's records from Broadway Pediatrics. Id. at 32. On August 28, 2019, ACS filed the Neglect Petition - verified by Alama - in Family Court, alleging that plaintiff inflicted "excessive corporal punishment" on AOM and that she and her sister were "neglected children" within the meaning of N.Y. Family Ct. Act § 1012(f). Compl. ¶ 43; TAC ¶¶ 13-14; Pet. at ECF pp. 3, 6.
According to the Neglect Petition, both AOM and Ms. Johnson stated on August 23, 2019 that during the August 22 incident plaintiff grabbed AOM "by her sweatshirt and dragged her out of the bedroom and into the living room," causing AOM to "suffer[] pain around her neck" and have "a hard time speaking." Pet. at ECF p. 6. In addition, according to the petition, AOM reported that plaintiff had been violent twice before, once grabbing her by the hair to throw her out of a bedroom and once striking her on the face with an open hand, causing her lip to bleed. Id. at ECF pp. 6-7. The petition further stated that NYPD Officer Diaz confirmed, on August 26, 2019, that when Ms. Johnson brought the children to the precinct, he "was able to observe scratches and bruises on or about [AOM's] neck." Id. at ECF p. 7.
These allegations are substantially corroborated by the allegations contained in plaintiff's original Complaint, summarized above, and by the Progress Notes, which show that when Child Protective Services (CPS) caseworker Sardia Waite visited the Johnson family home in the early morning hours of August 23, 2019,[3] both Ms. Johnson and AOM repeated to her what they had earlier reported to the NYPD. Ms. Johnson told Waite that on August 22, 2019, plaintiff "did not like" an answer that AOM gave him and Progress Notes at 9. Ms. Johnson "attempted to stop him but he was too strong." Id. After the incident, she "took the children to the 33rd precinct and the [father] was arrested." Id. Ms. Johnson added that "this is not the first incident where the father has been violent with [AOM]," id., and said that she "wants a restraining order against him." Id.
The caseworker then spoke to AOM herself, who was "tired and a little grumpy as her mother attempted to wake her." Progress Notes at 10. AOM "confirmed that her stepfather dragged her by her hoodie," and stated that "she feels safe in the home with her mother but does not feel safe when Mr. Johnson is in the home." Id. AOM "also confirmed that this is not the first time that [plaintiff] has put his hands on her." Id. Waite noted that AOM had a "contusion around her neck," but there were no visible marks or bruises on VJ (who remained asleep throughout the visit). Id. The caseworker deemed the risk of "imminent and impending danger" as "low." Id. at 11. Later on August 23, 2019, a photo, apparently of AOM's neck, was forwarded to an ACS Instant Response Team (IRT) Coordinator, who wrote that the injury was "not deemed serious." Id. at 12. Consequently, the case was not "enhanced at the time to an IRT." Id.[4]
At 5:30 p.m. on the same day, defendant Alama met AOM, VJ, and their mother at New York Presbyterian Hospital. Progress Notes at 14-20. While there, AOM repeated her account of "what happened last night" including that plaintiff "grabbed her by the back of her of her sweatshirt and dragged her out." Id. at 15. The sweater "was choking her." Id. Ms. Johnson "intervened and took her and [VJ] to the precinct." Id. Asked about "any past incidents," AOL relayed that five years earlier, during an argument over clothes, plaintiff "got upset and grabbed her by the hair and dragged her." Id. On another occasion, after AOM made "too much noise," plaintiff "hit her in the face with an open hand." Id. Asked about her neck, AOM said it was not hurting "a lot," because she had taken Advil, but that "yesterday it was hard to speak for a bit." Id. Alama assessed that no "immediate medical treatment" was needed. Id. at 16.
Alama next interviewed Ms. Johnson, who corroborated AOM's account. Progress Notes at 18. According to Ms. Johnson, plaintiff never hit VJ, but AOM "likes to talk back which can upset" plaintiff. Id. While still at the hospital, Alama also spoke to VJ (then five years old), who confirmed that plaintiff had never hit her, and that she loved her daddy, but also stated that plaintiff "was being mean towards [AOM] and [Ms. Johnson]," and "demonstrated with her hand how [plaintiff] grabbed [AOM] by the sweatshirt and how the sweatshirt was choking her." Id. at 19.
On August 26, 2019, Alama spoke to an NYPD "source," presumably Officer Diaz, who confirmed the August 22 events at the 33d precinct: Ms. Johnson arrived "with the two kids" and reported the assault; plaintiff "did not say anything"; and the source took pictures, which he agreed to forward. Progress Notes at 29. See also Compl. ¶ 40 (). On August 27, 2019, Alama "faxed over HIPPA [sic] to [B]roadway [P]ediatrics," id. at 32, and on August 29, 2019 (after the Neglect Petition was filed) she "received medicals." Id. at 34.
On August 28 or 29, 2019, the Family Court issued a temporary order of protection (the Family Court OOP), prohibiting plaintiff from having any contact with AOM or VJ except in the presence of ACS or certain approved relatives, and barring him from the girls' home and schools. See App. for OSC, Johnson v. Alma (Johnson I), No. 19-CV-8093-CM ), ¶¶ 7-10; Order of Dismissal, Johnson I (Oct. 15, 2019), at 2.[5] On November 14, 2019, the Family Court renewed the Family Court OOP through February 24, 2020. (Dkt. 77-3.)[6]
On November 25, 2019, during a hearing in Criminal Court, the criminal charges arising out of the August 22, 2019 incident were dismissed. TAC ¶¶ 17-18. Plaintiff was told by his attorneys that to their knowledge "[t]here was no order of protection," and consequently returned to the children's residence. Id. ¶¶ 19-23. In fact, the Family Court OOP remained in effect.
Later that same day, Alama arrived at the home, with another woman, and "tried to enter the residence of Plaintiff to see the Plaintiff's children." TAC ¶¶ 25-28. Plaintiff "brought both children to the front door to let Defendant Alama inspect the children," id. ¶ 29, but apparently did not let her enter the apartment. Alama asked plaintiff why he was there. Id. ¶ 30. He responded by showing her a copy of the disposition of his criminal case. Id. ¶¶ 30-31. After an hour and a half, Alama contacted the NYPD. Id. ¶ 32. According to plaintiff, Alama showed the responding NYPD officer "an expired order of protection that terminated on November 14, 2019 on her iPhone." Id. ¶ 33 (emphasis in the original). Plaintiff was arrested and spent 18 hours in jail. Id. ¶¶ 35-38.
During a December 11, 2019 Family Court hearing, plaintiff claimed that he was improperly arrested on...
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