Uwadiegwu v. Dep't of Soc. Servs. of Suffolk

• Decision Date: 11 March 2015
• Docket Number: No. CV 14–3219.,CV 14–3219.
• Citation: 91 F.Supp.3d 391
• Parties: Ajamu UWADIEGWU, Plaintiff, v. DEPARTMENT OF SOCIAL SERVICES OF THE COUNTY OF SUFFOLK, John F. O'Neill, Acting DSS Commissioner, Individually and in his Official Capacity, the County of Suffolk, John Harder, and certain caseworkers and/or employees of the County of Suffolk, and/or DSS, currently unknown but identified herein as John Does 1–3, Defendants.
• Court: U.S. District Court — Eastern District of New York

91 F.Supp.3d 391

Ajamu UWADIEGWU, Plaintiff

v.DEPARTMENT OF SOCIAL SERVICES OF THE COUNTY OF SUFFOLK, John F. O'Neill, Acting DSS Commissioner, Individually and in his Official Capacity, the County of Suffolk, John Harder, and certain caseworkers and/or employees of the County of Suffolk, and/or DSS, currently unknown but identified herein as John Does 1–3, Defendants.

No. CV 14–3219.

United States District Court, E.D. New York.

Signed March 11, 2015.

Ray, Mitev & Associates by John W. Ray, Esq., Vesselin Venelinov Mitev, Miller Place, NY, for Plaintiff.

Dennis M. Brown, Suffolk County Attorney, by Christopher Gatto, Esq., Assistant

County Attorney, Hauppauge, NY, for Defendants.

MEMORANDUM AND ORDER

WEXLER, District Judge:

Before the Court is Defendants' motion to dismiss Plaintiff's Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion. For the following reasons, Defendants' motion is granted.

BACKGROUND

This case arises out of two separate Family Court actions in which the Plaintiff, Ajamu Uwadiegwu (“Plaintiff”), was alleged to have neglected his two minor children, A.U., Jr. and A.U., by engaging in drug use and domestic violence with the children's mother on several occasions. (Gatto Decl., Ex. A, E.)¹ Defendant Suffolk County Department of Social Services (“DSS”) filed the initial Petition for Neglect on June 14, 2012.² (Gatto Decl., Ex. A.)

A hearing on the DSS Petition for Neglect was held on June 15, 2012. (Gatto Decl., Ex. B.) In its Order dated that same day, the Family Court took a negative inference based on Plaintiff's refusal to take a drug test and noted that Plaintiff left court prior to the case being heard. (Gatto Decl., Ex. B.) The Court ordered the immediate removal of A.U., Jr. and A.A. to foster care and directed that there be no visitation as it would be detrimental to the best interests of the children. (Gatto Decl., Ex. B.)

By Order dated July 27, 2012, Plaintiff consented to the entry of a finding of neglect based on the incidences described in the neglect petition. (Gatto Decl., Ex. C.) The Family Court entered a finding of neglect against Plaintiff and directed that the children were to remain in foster care. (Gatto Decl., Ex. C.) The Family Court also directed Plaintiff to obtain a substance abuse evaluation and to attend and participate in both a parenting skills program and a domestic violence prevention program. (Gatto Decl., Ex. C.) Finally, the Family Court ordered that visitation was to be supervised by DSS. (Compl. ¶ 19; Gatto Decl., Ex. C.)

The Family Court issued another Order on January 15, 2013, by which it returned custody of A.U., Jr. and A.A. to their mother. (Gatto Decl., Ex D.) In that Order, the Family Court explicitly stated that the children were to have no contact with the Plaintiff. (Gatto Decl., Ex. D.)

On April 3, 2013, DSS filed a second Petition for Neglect against Plaintiff, this time with respect to the minor child A.U. (Gatto Decl., Ex. E.) The Petition alleged that Plaintiff had failed to undergo a substance abuse evaluation and to attend and participate in both a parenting skills program and a domestic violence prevention program, as ordered by the Family Court in July 2012. (Gatto Decl., Ex. E.) For that reason, DSS alleged that A.U. would be at risk of harm if he were to remain in Plaintiff's care. (Gatto Decl., Ex. E.)

By Order dated May 7, 2013, Plaintiff consented to an order of derivative neglect being entered with respect to A.U. (Gatto Decl., Ex. F.) A.U. was released into the custody of his mother and Plaintiff was again ordered to obtain a substance abuse evaluation and to attend and participate in both a parenting skills program and a domestic violence prevention program. (Gatto Decl., Ex. F.) The Family Court further ordered that DSS shall provide supervised visitation for Plaintiff with A.U. (Gatto Decl., Ex. F.)

Plaintiff alleges that DSS failed to provide him with supervised visitation with his children, as ordered by the Family Court. (Compl. ¶ 22.) Plaintiff further alleges that instead, on or about July 8, 2013, DSS and Defendant John Harder facilitated and assisted in the surreptitious relocation of A.U., Jr. and A.U. to Jackson, Mississippi without his knowledge or consent. (Compl. ¶¶ 22–25.) To this date, the minor children remain in Mississippi. (Compl. ¶ 22.)

Plaintiff commenced the within action on May 21, 2014, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his First, Fourth and Fourteenth Amendment rights by failing to provide him with court-ordered visitation with his children and by assisting or facilitating the relocation of his children to Mississippi. Plaintiff also asserts claims for municipal liability, violation of the New York State Constitution and violation of New York Social Service Law § 384–b[7][a]. Defendants now move to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted.

DISCUSSION

I. Legal Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “Facial plausibility” is achieved when the “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). As a general rule, the court is required to accept as true all of the allegations contained in the complaint. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ; Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir.2007).

However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements ... are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937 (citation omitted); see also Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (stating that the Court is “not bound to accept as true a legal conclusion couched as a factual allegation”). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations,” which state a claim for relief. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. A complaint that “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’ ” will not suffice. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).

II. The Federal Claims

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In order to establish a constitutional violation under § 1983, a plaintiff must demonstrate that: (1) the defendants were acting under color of state law; and (2) that the defendants' actions deprived the plaintiff of a constitutional or federal statutory right. See Graham, 869 F.Supp.2d at 348 (citing Hayut v. State Univ. of New York, 352 F.3d 733, 743–44 (2d Cir.2003) ).

There is no dispute here that Defendants were acting under color of state law. However, for the reasons that follow, the Court finds that Plaintiff has failed to state a claim for any violation of his rights. Since Plaintiff has failed to demonstrate any constitutional or federal statutory violation, the Court need not reach the issues of municipal liability or qualified immunity.

A. Unreasonable Search and Seizure

In his Complaint, Plaintiff alleges that by relocating his children, Defendants violated his Fourth Amendment right to be free from illegal searches and seizures. (Compl. ¶ 40.) Defendants correctly move to dismiss this claim on the grounds that “Fourth Amendment rights are personal rights, which, like some other constitutional rights, may not be vicariously asserted.” Tenenbaum v. Williams, 193 F.3d 581, 593 n. 13 (2d Cir.1999) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) ). Any alleged seizure here occurred as to the minor children. See Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir.2000) (“[T]he Fourth Amendment applies in the context of the seizure of a child by a government-agency official during a civil child-abuse or maltreatment investigation.”). Accordingly, only the children—not Plaintiff—may assert a violation of this right. See Southerland v. City of New York, 667 F.3d 87, 103 (2d Cir.2012) (“A Fourth Amendment child-seizure claim belongs only to the child, not to the parent.”), amended by, 681 F.3d 122 (2d Cir.2012) ; Graham, 869 F.Supp.2d at 355 (“While a Fourth Amendment claim may be brought by a parent on behalf of a child, parents do not have their own Fourth Amendment right to be free from a child's court-approved removal.”).

Moreover, the Court notes that Plaintiff failed to oppose Defendants' motion on this ground. “Consequently, because plaintiff did not address defendant[s'] motion to dismiss with regard to this claim, it is deemed abandoned and is hereby dismissed.” Hanig v. Yorktown Cent. Sch. Dist., 384 F.Supp.2d 710, 723 (S.D.N.Y.2005) (collecting cases).

B. Due Process

The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV § 1. “Choices about marriage, family life, and the upbringing of children are among associational rights the Court has ranked of basic importance in our society ... rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect.” Graham, 869 F.Supp.2d at 349 (quoting M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) ).

The Supreme Court has held that parents have a “fundamental liberty interest ... in the care, custody and management of their child....” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ; see also Tenenbaum, 193...