Summary
dismissing conspiracy claims where plaintiff failed to allege “any objective factual basis from which the Court can properly infer a meeting of the minds”
Summary of this case from Pierre v. YurchenkoOpinion
Civil Action 20 Civ. 1034 (PGG) (SLC)
10-26-2021
JOHN DE'BEY, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.
REPORT & RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE PAUL G. GARDEPHE, United States District Judge:
I. INTRODUCTION
Pro se Plaintiff John De'Bey brings this action under 42 U.S.C. §§ 1983, 1985, and 1988 and New York State law against: the City of New York (the “City”); New York City Police Department (“NYPD”) officers “Castellanos” and Stephanie Eiel; New York Health & Hospitals/Metropolitan (properly, New York City Health & Hospitals Corp. (“NYCHHC”)); and New York City Administration for Children's Services (“ACS”) employees Mubanga Nsofu, Conrad Seivwright, and Marsha “Weaks” (collectively, “Defendants”). (ECF No. 62). De'Bey's claims arise from ACS's February 2019 investigation into his family and removal of his son K.A., then two years old, and daughter A.A., then eight months old (together, the “Children”), and his arrest for endangering the Children's welfare. (Id.)
Defendants note that Officer “Castellanos” should be identified as Officer Castellano (though they do not provide the officer's first name), and that Marsha “Weaks” should be identified as Marsha Weekes. (ECF No. 93 at 1). The Court refers to these defendants by their correct names, Castellano and Weekes, respectively.
De'Bey and ACS refer to the Children by varying names. (See ECF No. 62 ¶ 33; ECF Nos. 95-1-95-2). The Court refers to the Children as K.A. and A.A.
Before the Court is Defendants' motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss portions of De'Bey's Second Amended Complaint (“SAC”). (ECF No. 93 (the “Motion”)). For the reasons set forth below, I respectfully recommend that the Motion be GRANTED IN PART and DENIED IN PART.
II. BACKGROUND
In preparing this factual summary, the Court relied on the SAC and its exhibits, which include: (i) the ACS “Investigation Progress Notes” relating to De'Bey, his wife, and the Children (which De'Bey refers to as the “ACS Report”); and (ii) the neglect petition ACS filed against De'Bey and his wife with respect to K.A. on February 27, 2019. (ECF No. 62 at 82-116). The Court has also considered several documents that Defendants submitted in support of the Motion, specifically: (i) the neglect petition ACS filed against De'Bey and his wife with respect to A.A. on February 27, 2019 (ECF No. 95-2); (ii) the February 27, 2019 removal orders relating to K.A. (ECF No. 95-3) and A.A. (ECF No. 95-4); and (iii) the transcript of De'Bey's April 30, 2019 plea allocution (ECF No. 95-5). As discussed below (see infra § III.A), the Court may consider these documents in deciding the Motion because they are annexed to, incorporated by reference in, and/or integral to the SAC (see, e.g., ECF No. 62 ¶¶ 2-6, 28-35, 109-18, 157, 210-14, 221-23; id. at 82- 116), and because several are also public records of which the Court may take judicial notice.
1. Events preceding the Children's emergency removal and De'Bey's arrest
At the time of the events alleged in the SAC, De'Bey lived with his wife, Sylfronia King, and the Children in Wise Towers, a New York City Housing Authority residence in Manhattan. (ECF No. 62 ¶¶ 118, 145-46). On February 13, 2019, the Children went with King to visit their grandmother in Queens. (Id. ¶ 24). There, after a dispute with King, a groundskeeper called ACS and falsely reported that K.A. was outside unsupervised. (Id. ¶¶ 25, 27; id. at 82).
De'Bey filed the SAC and its exhibits as a single document at ECF No. 62. Because the SAC is organized by paragraph and the exhibits are not, the Court notes that citations to ECF No. 62 followed by “¶ ” refer to the paragraphs of the SAC, and citations to ECF No. 62 followed by “at ” refer to the ECF-assigned page numbers of the exhibits.
That day, two ACS workers, one of whom was Defendant Seivwright, went to the grandmother's apartment. (ECF No. 62 ¶ 27). After King refused to let them in, Seivwright called the NYPD. (Id. ¶ 28). De'Bey alleges that Seivwright called the NYPD “to assist with a warrantless search using a purported policy and or custom known as ‘Safety Interventions.'” (Id.) To support this allegation, De'Bey cites an “ACS Report” attached to the SAC. (Id. (citing id. at 91). The ACS Report includes Seivwright's “Investigation Progress Notes” relating to the February 13, 2019 visit, with a subsection entitled “Safety Interventions” stating that “[p]olice assistance was requested to gain access to” the grandmother's apartment. (Id. at 87-91.) As further proof of the alleged policy, De'Bey claims that “[t]he City has been alerted to the regular use of excessive force and false arrests by its police officers but has nevertheless exhibited deliberate indifference to such excessive force and false arrests.” (Id. ¶ 350). De'Bey claims that the City's Civilian Complaint Review Board (“CCRB”) has received but failed to substantiate credible complaints about NYPD officers who “use excessive force, unlawfully search and seize citizens, bring charges against citizens with no legal basis, perjure themselves in charging instruments and testimony, and fail to intervene in and report the obviously illegal actions of their fellow officers.” (Id. ¶¶ 351-55).
De'Bey alleges that eight NYPD officers arrived, several of whom entered the grandmother's apartment without consent, purportedly to conduct a welfare check on the Children. (ECF No. 62 ¶¶ 29, 31-32). A non-party NYPD officer noted that the Children “appeared to be healthy.” (ECF No. 62 ¶ 35; id. at 85). Seivwright told King that the Children could not remain at their grandmother's apartment because it lacked running water and gas. (Id. ¶ 36). The grandmother informed Seivwright that King and the Children were only “visiting from time to time” and gave Seivwright De'Bey's contact information. (Id. ¶ 38).
That evening, Seivwright brought King and the Children back to Wise Towers, where De'Bey was waiting. (ECF No. 62 ¶¶ 43-44). Seivwright checked the apartment and deemed it safe for the Children to remain. (Id. ¶ 52). Seivwright asked for information about A.A.'s medical history, but King, who identified herself as “Queen Mut, ” was unwilling to provide any information except that the Children were seen by a holistic doctor in Harlem. (Id. at 89-90; see id. ¶ 29). Seivwright later noted that De'Bey and King's “eccentric, unorthodox and Afrocentric lifestyle may impact the [C]hildren's emotional and physical development.” (Id. ¶ 103). De'Bey alleges that this lifestyle “is directly related to his Akom religion.” (Id.) Seivwright informed De'Bey and King that ACS would conduct a second inspection. (Id. ¶¶ 46, 54). Three days later, on February 16, 2019, De'Bey received a call from an ACS caseworker. (Id. ¶ 55). After a brief conversation, the caseworker said he would call De'Bey back, but never did. (Id.)
On February 26, 2019 at about 11:00 p.m., while away on business, De'Bey received a phone call from ACS, informing him that ACS agents, including Defendants Weekes and Nsofu, were at his apartment and attempting to enter. (ECF No. 62 ¶¶ 60, 75, 67). Three hours later, at around 2:00 a.m. on February 27, 2019, De'Bey received another call from ACS and was given the phone number for one of the agents on the scene. (Id. ¶ 74). De'Bey then spoke with Defendant Castellano, “who was contacted by ACS” to gain access to De'Bey's apartment. (Id. ¶ 75). De'Bey alleges that Weekes and Nsofu “both threatened [his] family with police action to gain access to the home and therefore conspired the unconstitutional break in.” (Id. ¶ 76). Castellano told De'Bey that “they were going to ‘break the door down[.]'” (Id. ¶ 79). De'Bey, on speakerphone, told King “that if she didn't open the door, he feared that they'd violate the law and break the door down without a warrant and possibly hurt her or worst [sic].” (Id.).
On entering the apartment, the officers and agents discovered A.A.'s “severe malnourishment.” (ECF No. 62 ¶ 81; id. at 105 (indicating that A.A. “was found to be very malnourished, underweight and had to be hospitalized for approximately two weeks.”)). The Children were taken into ACS custody (the “Emergency Removal”). (Id. ¶ 156).
2. Family court proceedings
On February 27, 2019, the same day as the Emergency Removal, ACS filed petitions (the “Petitions”) under Article 10 of the New York Family Court Act in New York County Family Court (“Family Court”) against De'Bey and King, seeking orders declaring that the Children were “neglected.” (ECF No. 62 ¶¶ 2, 109, 157; id. at 108-16; ECF Nos. 95-1, 95-2). Nsofu verified the contents of both Petitions on behalf of ACS. (ECF No. 62 at 111; ECF No. 95-2 at 5).
The Petitions were filed against King and “Shawn Debey aka Shawn Thurman.” (ECF No. 62 at 108; ECF No. 95-2 at 2). Although “John De'Bey” does not appear as a respondent in the caption of the Petitions, De'Bey acknowledges that the Petitions were filed against him as a “person legally responsible” for the Children (ECF No. 62 ¶¶ 2, 115), and that he used to be known as “Sean Thurman.” (Id. ¶ 182).
In the Petitions, ACS alleged that De'Bey and King failed “to supply the [C]hildren with adequate food, clothing, or shelter, though financially able to do so or offered financial or other reasonable means to do so.” (ECF No. 62 at 112; ECF No. 95-2 at 6). Both Petitions included an identical addendum setting forth ACS's bases for believing the Children were neglected. (ECF No. 62 at 112-13; ECF No. 95-2 at 6-7). The addendum referred to various ACS records, including a February 26, 2019 report from non-party Elsa Gaston, De'Bey's neighbor. (ECF No. 62 at 112; ECF No. 95-2 at 6). In the SAC, De'Bey alleges that, based on “gossip that had gotten around the building, ” he knew that “Gaston was jealous of his family[, ] especially as to [King].” (ECF No. 62 ¶ 64).
The Petitions specified that, according to ACS records, on February 26, 2019 at approximately 12:00 p.m., Gaston observed King outside at a park with the Children, who “were not dressed appropriately for the weather.” (ECF No. 62 at 112; ECF No. 95-2 at 6). Gaston saw King exiting the park with A.A., leaving K.A. behind. (ECF No. 62 ¶ 112; ECF No. 95-2 at 6). When Gaston escorted K.A. back to King, King asked Gaston “if she wanted to take” K.A., and told Gaston “that she did not want [K.A.] anymore.” (ECF No. 62 ¶ 112; ECF No. 95-2 at 6). King then left the park without K.A., “who began running in the opposite direction of [King] and down the street.” (ECF No. 62 ¶ 112; ECF No. 95-2 at 6). Gaston followed K.A. “to prevent him from going into traffic” and watched him “until approximately 5:30PM, when she brought [him] back to [King's] home.” (ECF No. 62 at 112; ECF No. 95-2 at 6). That same day, Gaston reported seeing A.A. and that she appeared “to be malnourished, underfed, and to appear much younger than she actually is.” (ECF No. 62 at 112-13; ECF No. 95-2 at 6-7).
The Petitions further alleged that, on February 26, 2019, Weekes “observed [A.A.] to be underweight, with hanging, thin, dry, and inelastic skin, and with sunken eyes, ” and that, since the Emergency Removal earlier that morning, A.A. “was admitted to the hospital . . . and diagnosed with severe protein calorie malnourishment.” (ECF No. 62 at 113; ECF No. 95-2 at 7). According to a social worker at the hospital where A.A. was treated, A.A. weighed “only 7 pounds and a few ounces, ” which is “severely underweight” for a child her age. (ECF No. 62 at 113; ECF No. 95-2 at 7).
Later that same day, following an ex parte hearing, Family Court Judge Jane Pearl granted the Petitions and ordered the temporary removal of the Children. (ECF No. 62 ¶¶ 156-58; ECF Nos. 95-3, 95-4). Judge Pearl deemed the temporary removal to be “necessary to avoid imminent risk to [the Children]'s life or health” (ECF Nos. 95-3 at 2, 95-4 at 2), and ordered that a “permanency hearing” be held on October 23, 2019. (ECF Nos. 95-3 at 4, 95-4 at 4).
3. De'Bey's Arrest
On the evening of February 27, 2019, having returned from his business trip, De'Bey left his apartment “for a walk” at about 9:30 p.m. when he saw Gaston, who told him that “there were detectives looking for him.” (ECF No. 62 ¶ 180). Gaston did not tell De'Bey about her reports to ACS or about “any of the events that had occurred.” (Id. ¶ 181). De'Bey then “went directly to the detectives to see what they had to say, ” and was approached by three detectives, including Defendant Eiel. (Id. ¶¶ 182-83). The detectives asked De'Bey if his name was “Sean Thurman, ” and De'Bey “responded that he had not been addressed by that name in over 3 years since it has been changed.” (Id. ¶ 182). Eiel asked De'Bey for identification, and De'Bey presented “a business bank debit card along with other financial cards to establish his identity.” (Id. ¶¶ 183-84). Eiel asked De'Bey “to come to the station, ” and De'Bey, believing “that he was only going to the station to learn more about what had happened earlier that morning, ” agreed. (Id. ¶¶ 186, 188). De'Bey claims he “was not under arrest at the time and was not cuffed upon entering the back of the detective's vehicle.” (Id. ¶ 187).
At the precinct, Eiel asked De'Bey “to place his cellphone into a bin on top of a file cabinet for safe keeping.” (ECF No. 62 ¶ 189). Eiel questioned De'Bey about his relationship with King and showed him pictures of A.A. (Id. ¶ 191-92). According to De'Bey, A.A. “appeared to have lost a significant amount of weight” since he had last seen her seven days earlier. (Id. ¶¶ 192- 93). De'Bey confirmed he was A.A.'s father. (Id. ¶ 193). Eiel “read [De'Bey] his Miranda rights” (id. ¶ 194), and arrested and charged him with endangering the welfare of the Children. (Id. ¶¶ 5, 148, 200). De'Bey claims that officers “demanded [his] password” to his cellphone, which the NYPD never returned to him. (Id. ¶¶ 199, 204). De'Bey further alleges that Eiel did not give him a voucher or receipt for this phone, and that she delivered the phone “directly to the DAs Office without a court order.” (Id. ¶ 201-02).
4. De'Bey's Detention and Plea
De'Bey was detained on Rikers Island for two months. (ECF No. 62 ¶¶ 165-67). De'Bey claims that, during that time, he was denied access to the courts. (ECF No. 62 ¶ 167). In particular, he appears to allege that Defendants failed to produce him for a hearing in Family Court (id. ¶ 165) and for a hearing in housing court, resulting in his default. (Id. ¶¶ 175-77).
De'Bey claims that he “entered a plea deal on May 2nd, 2019.” (ECF No. 62 ¶ 210). In support of the Motion, Defendants submitted the transcript of De'Bey's plea allocution (the “Plea”), which took place on April 30, 2019. (ECF No. 95-5 at 2). At his Plea, De'Bey admitted, inter alia, that: (i) he was A.A.'s father; (ii) on about February 26, 2019, he “knowingly acted in a manner likely to be injurious to the welfare of a child under the age of seventeen[;]” (iii) neither he nor King had taken A.A. to see a doctor for any type of medical care since her birth; (iv) in January and February 2019, he was aware that A.A. had lost all of the weight that she had gained since her birth, and that she “appeared to be severely under weight and she needed medical attention[;]”; (v) “during that time period, [De'Bey and King] continued to feed [A.A.] an exclusively vegan diet[;]” and (vi) on February 16, 2019, A.A. was in De'Bey's care and, at that time, weighed approximately seven pounds. (ECF No. 95-5 at 8-10; ECF No. 62 ¶¶ 210-14). De'Bey was sentenced to 60 days' imprisonment, with credit for time served, and three years of probation. (ECF No. 95-5 at 6, 11).
De'Bey alleges that two of his Plea admissions - that he fed A.A. a strict vegan diet and that he knew A.A. was underweight since January 2019 - were made “under coercion.” (ECF No. 62 ¶¶ 211, 213). He claims that he “did not feed his daughter a strict vegan diet, because [he] did not feed his daughter at all, ” and that King “handled this responsibility.” (Id. ¶ 217). Similarly, De'Bey alleges that he “did not take his daughter to seek medical services at any time” because “[King] assumed responsibility for taking [their] children to the doctors if necessary.” (Id. ¶ 214-15). De'Bey also acknowledges in the SAC that A.A.'s “weight dropped” in February 2019, but “asserts that he was away that week and did not have any idea what [King] was going through mentally.” (ECF No. 62 ¶ 126).
5. De'Bey's Release
On May 5, 2019, De'Bey was released from detention. (ECF No. 62 ¶ 153). On July 24, 2019, as condition of his probation, De'Bey met with a psychiatrist affiliated with “NYC Health + Hospitals Metropolitan” (a facility owned and operated by NYCHHC), who falsely reported that De'Bey's mother and sister suffer from bipolar disorder. (ECF No. 62 ¶¶ 247-54; ECF No. 44). As a result, De'Bey's mother and sister were not allowed to take custody of the Children. (ECF No. 62 ¶ 422).
In November 2019, De'Bey and King had another son. (ECF No. 62 ¶ 98). On January 7, 2020, while De'Bey and King were visiting the Children at The New York Foundling, where they were in foster care, ACS workers “[c]onfronted” De'Bey and asked where the newborn was. (Id. ¶¶ 97-98). De'Bey told them that the child was living with his mother and sister in Queens because of the “open case.” (Id. ¶ 99). That night, the newborn was also taken into ACS custody. (Id. ¶ 100).
B. Procedural Background
On February 6, 2020, De'Bey filed the original complaint (ECF No. 1), and on February 10, 2020, filed the amended complaint (ECF No. 3 (the “Amended Complaint”)). In addition to naming each of the current Defendants except Seivwright, De'Bey also asserted claims against: the New York Foundling; the County of New York (the “County”); Assistant District Attorney Sara Weiss; the NYPD; ACS; the City Department of Correction (“DOC”); the Family Court; Caitlyn Hall; Wise Towers; and Gaston. (Id.)
De'Bey has since voluntarily withdrawn or otherwise abandoned his claims against these other defendants. (ECF Nos. 56, 63, 80, 84; see ECF No. 62).
On March 5, 2020, De'Bey filed proof of service as to the City, indicating that the Summons and Amended Complaint were hand-delivered to the firm Schiavetti Corgan DiEdwards, the “attorney[s] for the City of New York.” (ECF No. 6). On April 29, 2020, De'Bey filed proof of service indicating that he had served the remaining defendants by certified mail. (ECF Nos. 21-36).
On May 6, 2020, the Honorable Paul G. Gardephe dismissed De'Bey's claims against Gaston as inadequately pled. (See ECF No. 37). Judge Gardephe ordered that De'Bey could file a motion for leave to amend, with a proposed amended pleading, by June 8, 2020. (Id. at 5).
On May 13, 2020, New York City Office of Corporation Counsel appeared on behalf of the City, the County, ACS, the NYPD, DOC, and New York City Health + Hospitals/Metropolitan, noting that the County, ACS, the NYPD, and DOC “are non-suable entities” who would not respond to the Amended Complaint separately from the City. (ECF No. 40 at 1 (citing Ximines v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir. 2008) (“Section 396 of the Charter has been construed to mean that New York City departments, as distinct from the City itself, lack the capacity to be sued.”))).
On May 15, 2020, the Court ordered De'Bey to serve the Summons and Amended Complaint on the defendants in accordance with Federal Rule of Civil Procedure 4, because his previous attempt by Certified Mail did not constitute proper service. (ECF No. 43). The Court also directed the City and New York City Health + Hospitals/Metropolitan to notify De'Bey and the Court whether they intended to contest the manner of service. (Id. at 2). On May 27, 2020, counsel for the City and New York City Health + Hospitals/Metropolitan filed a letter indicating that: (i) “[b]ecause NYC Health + Hospitals/Metropolitan ‘is a facility owned and operated by [NYCHHC], it is not a suable entity and may not be sued independently'” (ECF No. 44 at 1 n.2 (quoting Espinoza v. City of New York, No. 12 Civ. 341 (ENV), 2012 WL 6851171, at *9 (E.D.N.Y. Dec. 10, 2012); and (ii) “the City of New York and NYC Health + Hospitals/Metropolitan will not contest service in this action.” (ECF No. 44 at 2).
Before effecting proper service, De'Bey filed a motion to amend (the “Motion to Amend”). (ECF No. 45). On June 10, 2020, the Defendants who had appeared by that time took no position on the Motion to Amend. (ECF No. 54).
On September 18, 2020, the Court partially granted the Motion to Amend. (ECF No. 59). The Court allowed De'Bey to: (1) add Seivwright as a defendant; (2) plead additional claims against Gaston; (3) consolidate improperly named City entities into a single defendant, the City; (4) remove Caitlyn Hall has a defendant; and (5) correct factual errors and include additional details to the facts alleged in the Amended Complaint. (Id. at 11). The Court denied leave to add claims against The New York Foundling and a defamation claim against Gaston. (Id.) The Court also directed De'Bey to make necessary amendments to his proposed SAC, including, inter alia, adding Eiel and NYCHHC as Defendants in the case caption. (Id. at 9-10).
On November 12, 2020, De'Bey filed the SAC. (ECF No. 62). On March 11, 2021, the Defendants requested a pre-motion conference before Judge Gardephe to discuss their anticipated Motion. (ECF No. 85). On March 16, 2021, Judge Gardephe referred Defendants' pre-motion letter to the undersigned. (ECF No. 86). On March 17, 2021, the Court granted Defendants' request for a pre-motion conference, which was held by telephone on April 22, 2021. (ECF Nos. 87; ECF minute entry Apr. 22, 2021). At the conference, the Court set a briefing schedule for the Motion. (ECF No. 89).
C. The Motion
On June 1, 2021, Defendants filed the Motion. (ECF No. 93). They seek dismissal of the following claims: (i) “all § 1983 claims against the City and against the individual Defendants in their official capacities[;]” (ii) “[De'Bey]'s claims of religious discrimination against the City and Defendant[s] Nsofu, Seivwright, and Eiel[;]” (iii) De'Bey's substantive due process claims, premised on the Emergency Removal, against the City and Nsofu; (iv) “[De'Bey]'s § 1983 and § 1985 conspiracy claims against the City and Defendants Nsofu, Eiel, and Castellano[;]” (v) “[De'Bey]'s claims of negligent hiring and retention against the City, of false imprisonment against the City and Defendant Nsofu, and of intentional infliction of emotional distress against the City and Defendant Nsofu under New York law[;]” and (vi) “[De'Bey]'s claims, including conspiracy[, ] against the City for harms he allegedly befell at the hands of the New York City Health and Hospitals Corporation.” (ECF No. 94 at 9-10). They do not seek dismissal of De'Bey's “unreasonable search or seizure claims against [the] individual Defendants in their personal capacities and relating to (i) the alleged entry into [De'Bey's] home on February 13, 2019, by ACS staff, (ii) the alleged entry into [his] home on February 26/27, 2019, by ACS and NYPD staff, and (iii) the alleged seizure of [De'Bey's] cellular telephone by Detective Eiel.” (ECF No. 94 at 8-9).
On July 6, 2021, De'Bey advised the Court that he would not oppose the Motion. (ECF No. 100). On July 7, 2021, the Court deemed the Motion fully briefed. (ECF No. 101).
III. LEGAL STANDARDS
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Ent., 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“In applying this standard, a court accepts as true all well-pled factual allegations but does not credit ‘mere conclusory statements' or ‘[t]hreadbare recitals of the elements of a cause of action.'” Gottesfeld v. Anderson, No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *4 (S.D.N.Y. Mar. 6, 2020) (quoting Iqbal, 556 U.S. at 678). The Court shall not give “effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007). “Where a court can infer no more than the mere possibility of misconduct from the factual averments - in other words, where the well-pled allegations of a complaint have not ‘nudged [plaintiff's] claims across the line from conceivable to plausible' - dismissal is appropriate.” Gottesfeld, 2020 WL 1082590, at *4 (quoting Twombly, 550 U.S. at 570).
“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citation omitted). “Where a document is not incorporated by reference, the court may never[the]less consider it where the complaint ‘relies heavily upon its terms and effect,' thereby rendering the document ‘integral' to the complaint.'” Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). For a document to be integral to the complaint, “the plaintiff must have (1) ‘actual notice' of the extraneous information and (2) ‘relied upon th[e] document[] in framing the complaint.'” DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 60 (S.D.N.Y. 2010) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
“It is well established that a district court may rely on matters of public record in deciding a motion to dismiss under Rule 12(b)(6).” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998). This includes documents filed in another court. See Tyson v. City of New York (Admin. Child Servs.), No. 18 Civ. 8515 (GBD) (KHP), 2019 WL 8437455, at *1 (S.D.N.Y. Nov. 8, 2019) (taking judicial notice of “orders, pleadings, and transcripts of the Family Court Proceedings that form the basis for Plaintiff's Complaint”); Hutchins v. Solomon, No. 16 Civ. 10029 (KMK), 2018 WL 4757970, at *7 (S.D.N.Y. Sept. 29, 2018) (considering plea allocution transcript, and noting that “[t]he public records courts may consider include dispositions in criminal cases.”); Kuar v. Mawn, No. 08 Civ. 4401 (JFB) (ETB), 2011 WL 838911, at *4 (E.D.N.Y. Mar. 4, 2011) (concluding that “the transcript of plaintiff's plea allocution may be considered as a public document”); Villanueva v. City of New York, No. 08 Civ. 8793 (LBS), 2010 WL 1654162, at *5 (S.D.N.Y. Apr. 14, 2010) (taking judicial notice of “the court orders and hearing transcripts from the underlying Family Court Proceedings in deciding th[e] motion [to dismiss]”). “However, in taking judicial notice of such public records, the Court does so only to establish ‘the fact of such litigation,' not for the truth of the matters asserted in that proceeding.” Hutchins, 2018 WL 4757970, at *7 (quoting Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006)).
B. Pro Se Considerations
In deciding a motion to dismiss, “the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation and citation omitted). Nonetheless, “a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face.” Gottesfeld, 2020 WL 1082590, at *5. Despite the Court's obligation “to draw the most favorable inferences” from a complaint, it “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “The Court need not accept allegations that are ‘contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint.'” Tsinberg v. City of New York, No. 20 Civ. 749 (PAE), 2021 WL 1146942, at *4 (S.D.N.Y. Mar. 25, 2021) (quoting Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005)).
IV. DISCUSSION
A. Municipal Liability
Defendants argue that De'Bey's federal constitutional claims against the City - and against the individual Defendants in their official capacities - fail as a matter of law because he “fails to plausibly allege the existence of any policy or custom that deprived him of his rights.” (ECF No. 94 at 14). Rather, Defendants argue, De'Bey “relies on boilerplate and conclusory language to assert his claims, ” and attempts to allege the existence of a policy based only on the “Defendants' conduct vis-à-vis him.” (Id. at 14-15). Regarding the City's alleged “Safety Interventions” policy by which the NYPD assists ACS with warrantless searches under the guise of conducting “welfare checks” (ECF No. 62 ¶ 28), Defendants argue that this “policy” is “actually just an entry in an ACS caseworker's notes describing the police's involvement in a response to a report to the State Central Register” and does not “constitute an actual written policy of the City.” (ECF No. 94 at 15). Finally, Defendants argue that De'Bey improperly “attempts to bootstrap both the repeated removals of his children and a history of complaints to the [CCRB] about the use of excessive force and false arrest by the NYPD that were allegedly scuttled by non-credible police testimony into evidence of a custom of unconstitutional conduct on the part of caseworkers and police in the course of child welfare investigations.” (Id. at 16). Defendants argue that a “history of complaints about general police misconduct does not establish a custom . . . of ACS ‘weaponizing the police' to unlawfully enter homes” (id. (quoting ECF No. 62 ¶ 50, 360-61), and that De'Bey's “allegations of his own experience with ACS and NYPD do not reflect a custom of misconduct by ACS and NYPD but a persistent (and seemingly well-founded concern) about his children.” (Id.)
1. Legal Standard
“A plaintiff asserting a claim under 42 U.S.C. § 1983 must show that, ‘while acting under color of state law, Defendants deprived him of a federal constitutional or statutory right.'” Vasquez v. Cnty. of Rockland, No. 13 Civ. 5632 (SLC), 2020 WL 883514, at *6 (S.D.N.Y. Feb. 24, 2020) (quoting Blackson v. City of New York, No. 14 Civ. 462 (VEC), 2014 WL 6772256, at *2 (S.D.N.Y. Dec. 2, 2014)).
“To state a claim under section 1983 against a municipality such as the City of New York [or against an individual City employee sued in his or her official capacity], [the] Plaintiff must allege plausibly that the municipality itself, not merely one or more employees of the municipality, caused the violation of the plaintiff's rights.” Yi Sun v. New York City Police Dep't, No. 18 Civ. 11002 (LTS) (SN), 2020 WL 4530354, at *4 (S.D.N.Y. Aug. 6, 2020) (citing Connick v. Thompson, 563 U.S. 51, 60 (2011)); see Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). “Absent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat superior basis for the tort of its employee.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012). “[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force' behind the injury alleged.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997).
A plaintiff may plead a policy or custom by alleging:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such
an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.Kucharczyk v. Westchester Cty., 95 F.Supp.3d 529, 538 (S.D.N.Y. 2015) (quoting Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010)). At the pleading stage, the plaintiff “need not prove these elements, but still must plead them sufficiently to make out a plausible claim for relief.” Id. at 540.
“[I]solated acts . . . by non-policymaking municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal liability.” East Haven, 691 F.3d at 81; see City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional [] policy [] [that] can be attributed to a municipal policymaker.”). “On the other hand, ” unconstitutional acts by non-policymaking employees may justify municipal liability if “they were done pursuant to municipal policy, or were sufficiently widespread and persistent to support a finding that they constituted a custom, policy, or usage of which supervisory authorities must have been aware, or if a municipal custom, policy, or usage would be inferred from deliberate indifference of supervisory officials to such abuses.” East Haven, 691 F.3d at 81. “A plaintiff alleging that []he has been injured by the actions of a low-level municipal employee can establish municipal liability by showing that a policymaking official ordered or ratified the employee's actions-either expressly or tacitly.” Id.
“A municipal policymaking official's ‘deliberate indifference' to the unconstitutional actions, or risk of unconstitutional actions, of municipal employees can in certain circumstances satisfy the test for a municipal custom, policy, or usage that is actionable under [§] 1983.” East Haven, 691 F.3d at 81 (quoting Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 126, 127 n.8 (2d Cir. 2004)). “To state a claim for municipal liability based on failure to train, [a] Plaintiff therefore must allege facts which support an inference that the municipality failed to train its police officers, that it did so with deliberate indifference, and that the failure to train caused his constitutional injuries.” Triano v. Town of Harrison, NY, 895 F.Supp.2d 526, 540 (S.D.N.Y. 2012) (collecting cases). “‘[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410. The Second Circuit has “held that demonstration of deliberate indifference requires a showing that the official made a conscious choice, and was not merely negligent.” East Haven, 691 F.3d at 81. A “Plaintiff must allege that the type of . . . misconduct at issue . . . was known to the [municipality], and not just that the [municipality]'s . . . officers engage in misconduct.” Triano, 895 F.Supp.2d at 539.
2. Application
The Court finds that De'Bey has failed to allege a claim for municipal liability under Monell. De'Bey does not allege sufficient facts to plausibly suggest the existence of a City policy or custom that caused his alleged constitutional injuries. While he claims that the City has a policy called “Safety Interventions” by which the NYPD assists ACS with unconstitutional searches, he alleges no facts from which the Court can properly infer that such a policy exists. (ECF No 62 ¶ 28 (citing id. at 91)). To the contrary, as Defendants point out, this alleged “policy” is no more than “an entry in an ACS caseworker's notes describing the police's involvement in a response to a report to the State Central Register.” (ECF No. 94 at 15). Similarly, De'Bey's reliance on his own, isolated interactions do not plausibly allege that ACS has a policy of “weaponizing the police” to effect unconstitutional searches. (ECF No. 62 ¶ 50). See Yi Sun, 2020 WL 4530354, at *5 (granting motion dismiss pro se plaintiff's Monell claim and concluding that “the isolated alleged misrepresentations by . . . [non-policymaking] individuals do not provide an objectively reasonable basis from which the Court can properly infer that ACS had a policy or custom of fabricating evidence or deceiving children in order to remove them from their parents.”); Sulaymu-Bey v. City of New York, No. 17 Civ. 3563 (AMD) (SJB), 2019 WL 1434597, at *11 (E.D.N.Y. Mar. 29, 2019) (dismissing Monell claim under Rule 12(c) where the pro se plaintiffs made only conclysory allegations that the City had “customs and policies . . . of ignoring exculpatory evidence in its investigations and prosecutions, and . . . of using boilerplate forms as a basis for seizure and prosecution of Plaintiffs, allowing ACS employees to substitute their judgment for doctors' opinions, and failing to give notice of Family Court hearings”).
“The same standard applicable to Fed.R.Civ.P. 12(b)(6) motions to dismiss applies to Fed.R.Civ.P. 12(c) motions for judgment on the pleadings.” Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010).
De'Bey's attempts to plead Monell liability under a failure-to-train theory are also unavailing. He claims that the City is “responsible for its inexcusable failure to train its officers on their ministerial duties regarding [his] mobile device.” (ECF No. 62 ¶ 326). This allegation is conclusory and relates to a single incident of allegedly unconstitutional conduct, and thus is “not sufficient to support a claim for municipal liability.” Sulaymu-Bey, 2019 WL 1434597, at *11. Similarly, while De'Bey claims that the CCRB failed to investigate credible complaints about NYPD officers who “use excessive force, unlawfully search and seize citizens, bring charges against citizens with no legal basis, perjure themselves in charging instruments and testimony, and fail to intervene in and report the obviously illegal actions of their fellow officers” (ECF No. 62 ¶¶ 351-55), this allegation, even if true, does not plausibly suggest that the City was deliberately indifferent to the type of misconduct by ACS that De'Bey alleges in the SAC. As such, it fails to support his Monell claim. See Connick, 563 U.S. at 62 (plaintiffs must establish “[a] pattern of similar constitutional violations by untrained employees . . . to demonstrate deliberate indifference for purposes of failure to train.”); Turner v. Correct Care Sols., No. 18 Civ. 3370 (VB), 2019 WL 1115857, at *13 (S.D.N.Y. Mar. 11, 2019) (granting motion to dismiss Monell claim and noting that, “to adequately plead a policy or custom under Monell, plaintiff must plausibly allege similar incidents involving others.”) (emphasis added). Accordingly, the Court recommends that De'Bey's Monell claims be dismissed.
B. Religious Discrimination
De'Bey claims that “Defendants' conduct deprived [him] of his right to eat a vegan diet, pursuant to the First and Fourteenth Amendments.” (ECF No. 62 ¶ 263; see id. ¶¶ 303-10). He claims that Defendants “converted [his] religion and right to eat a vegan diet into a crime, ” and that the Constitution secures “his right for him and his family to worship and eat what they wish, so long as it does not intentionally cause harm and does not affect the general public or public safety.” (Id. ¶¶ 268, 276). He also alleges that “our society” maintains double standards with respect to underweight and overweight children. (Id. ¶ 238). He claims that “[t]he State cannot acknowledge only one form of malnourishment” and that it must “prosecute the parents of underweight and overweight children alike to meet the standards of the equal protections [sic] clause.” (Id. ¶ 278).
Defendants argue that De'Bey's First Amendment religious discrimination claim fails because “[h]e does not plausibly allege that the removal of his daughter was based in a lack of neutrality with respect to [his] religion, rather than a report of malnourishment that, when investigated, in fact resulted in [his] infant daughter being hospitalized for two weeks with ‘extreme protein malnourishment.'” (ECF No. 94 at 17 (citing ECF No. 62 at 97, 105)). As to De'Bey's religious discrimination claim under the Equal Protection Clause of the Fourteenth Amendment, Defendants argue that he “does not identify a similarly situated comparator that Defendants allegedly treated better than him, [and] instead mak[es] a contorted argument that there is a societal double standard that accepts parents with obese children but punishes those with underweight children.” (Id. at 18 (citing ECF No. 62 ¶ 278)). “In other words, [Defendants argue that] Plaintiff fails to plausibly allege that Defendants treat others with underweight children-and who observe a different religion-in a better manner.” (Id.)
1. Legal Standard
“The First Amendment's Free Exercise Clause ‘prohibits the government from enacting a law or regulation that discriminates against religious beliefs or regulates conduct because it is undertaken for religious reasons.'” Sulaymu-Bey, 2019 WL 1434597, at *8 (quoting People United for Children, Inc. v. City of New York, 108 F.Supp.2d 275, 298 (S.D.N.Y. 2000)). “A law or regulation is invalid if it facially targets religion unless ‘it is justified by a compelling governmental interest and is narrowly tailored to advance that interest.'” Id. (quoting People United for Children, 108 F.Supp.2d at298). “A law or regulation that is neutral and of general applicability is constitutional even if it has an incidental effect on religion.” Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, N.Y., 111 F.Supp.3d 459, 484 (S.D.N.Y. 2015) (citing Emp't Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 878 (1990). “In order to state a Free Exercise Clause claim, [a plaintiff] must show that [his] religious beliefs are sincerely held, that the challenged laws burden [the plaintiff's] religious practice, and that the challenged laws were enacted to infringe upon or restrict religious practices because of [the plaintiff's] religious motivation.” Sulaymu-Bey, 2019 WL 1434597, at *8 (quotation and alterations omitted).
“The Equal Protection Clause of the Fourteenth Amendment protects members of a class who have been treated differently from similarly situated persons outside of that class.” Yi Sun, 2020 WL 4530354, at *5 (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). “To state a claim for selective enforcement, a plaintiff must allege facts supporting a conclusion that 1) he was ‘treated differently from other similarly situated' comparators, and 2) ‘that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'” Missere v. Gross, 826 F.Supp.2d 542, 560 (S.D.N.Y. 2011) (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir.2007)). “To establish such intentional or purposeful discrimination, it is axiomatic that a plaintiff must allege that similarly situated persons have been treated differently.” Gagliardi v. Vill. of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). “To meet this standard, courts have held that pleadings must include factual details that move beyond conclusory or personal opinion allegations.” Ragland v. Coulter, No. 20 Civ. 2002 (EK) (VMS), 2021 WL 4430271, at *6 (E.D.N.Y. June 25, 2021) (collecting cases).
2. Application
The Court finds that De'Bey fails to state a First Amendment Free Exercise claim. Although the Court does not doubt that De'Bey's veganism is a sincerely held religious belief, he does not plausibly allege that any City regulation facially targets, or was otherwise enacted to restrict, this religious tenet. To the contrary, the only plausible inference from De'Bey's own allegations - and the documents he annexes to the SAC - is that Defendants enforced generally applicable regulations based on reports that De'Bey's Children were malnourished and neglected. According to the Petitions, Gaston reported to ACS that she observed King leave K.A. alone at a park for several hours in February without appropriate clothing, and that A.A. appeared “to be malnourished, underfed, and . . . much younger than she actually is.” (ECF No. 62 at 112-13; ECF No. 95-2 at 6-7). Weekes also “observed [A.A.] to be underweight, with hanging, thin, dry, and inelastic skin, and with sunken eyes.” (ECF No. 62 at 113; ECF No. 95-2 at 7). The Petitions also indicate that, after the Emergency Removal, A.A. “was admitted to the hospital . . . and diagnosed with severe protein calorie malnourishment, ” and weighed “only 7 pounds and a few ounces.” (ECF No. 62 at 113; ECF No. 95-2 at 7). De'Bey pled guilty to endangering A.A.'s welfare, and admitted, inter alia, that neither he nor King had taken A.A. to see a doctor for any type of medical care since her birth and that he knew A.A. had lost all of the weight that she had gained since her birth. (ECF No. 95-5 at 8-10; ECF No. 62 ¶¶ 211-14). Indeed, De'Bey acknowledges A.A.'s “severe malnourishment” and significant weight loss several times in the SAC. (See, e.g., ECF No. 62 ¶¶ 81, 126, 192-93). While De'Bey notes that Seivwright expressed concern about aspects of his “lifestyle” that De'Bey generally alleges are “directly related to his Akom religion” (id. ¶ 103), De'Bey has “not alleged facts to support a finding that [his] religion was taken into account by defendants when they removed [his] [C]hildren” following reports of their neglect. People United for Children, 108 F.Supp.2d at 298 (S.D.N.Y. 2000) (granting motion to dismiss Free Exercise claim based on child removal); see Sulaymu-Bey, 2019 WL 1434597, at *9 (granting Rule 12(c) motion to dismiss Free Exercise claim based on child removal and concluding that, although the “plaintiffs allege that defendants' actions burdened their religious practice, . . . that is not sufficient to state a Free Exercise Clause claim.”). Accordingly, De'Bey has failed to allege a plausible Free Exercise claim.
For similar reasons, the Court also finds that De'Bey's Equal Protection claim fails as a matter of law. De'Bey has not plausibly alleged that any Defendant was motivated by religious animus. As discussed above, De'Bey's own allegations and submissions suggest that the Defendants were motivated by reports of the Children's malnutrition and neglect. Moreover, while De'Bey claims “our society” treats underweight children differently from overweight children (id. ¶ 238), Defendants correctly point out that he fails to allege the existence of any similarly situated comparators who received more favorable treatment. With no comparators or other plausible allegations of religious discrimination to support it, De'Bey's Equal Protection claim fails. See Ragland, 2021 WL 4430271, at *6 (granting motion to dismis pro se plaintiff's Equal Protection claim based on child's removal by ACS where the plaintiff provided only a “conclusory allegation that other Defendants acted against her with racial animus” but failed to plausibly allege she was “treated differently from a similarly situated non-African-American person.”) (quotation and alteration omitted); Yi Sun, 2020 WL 4530354, at *5 (granting motion to dismiss pro se plaintiff's claim that she was “treated differently by ACS and/or ACS case workers because of her nationality” where the plaintiff “ha[d] not alleged that any similarly situated person exist[ed]” and, thus, “the Court [could not] infer that she ha[d] been treated differently from a similarly situated person of another nationality.”).
Accordingly, the Court recommends that De'Bey's religious discrimination claims be dismissed.
C. Substantive Due Process
Defendants argue that the Emergency Removal did not violate De'Bey's substantive due process rights. (ECF No. 94 at 18-24). Specifically, they argue that “ACS and its caseworkers clearly had a reasonable justification for the removal of” the Children, based on reports that A.A. “was suffering from severe protein malnourishment and [King] was apparently struggling to adequately care for [K.A.], as he was ‘w[a]ndering and unsupervised' and there was ‘no food in the home for the children.'” (Id. at 23 (quoting ECF No. 62 at 98, 100, 105)).
1. Legal Standard
“Substantive due process rights safeguard persons ‘against the government's exercise of power without any reasonable justification in the service of a legitimate governmental objective.'” Southerland v. City of New York, 680 F.3d 127, 151 (2d Cir. 2012) (quoting Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir. 1999)) (internal citation omitted). “To establish a violation of one's substantive due process rights, the ‘interference with the plaintiff's protected right must be so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.'” Tyson, 2019 WL 8437455, at *4 (quoting Southerland, 680 F.3d at 152).
“As a matter of substantive due process, parents have a fundamental, constitutionally protected liberty interest in the custody of their children.” Tyson, 2019 WL 8437455, at *4 (citing Stanley v. Illinois, 405 U.S. 645, 651-52 (1972)). However, “this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.” Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation omitted).
“Thus, in the child-removal context, [courts] ask whether ‘the removal . . . would have been prohibited by the Constitution even had the [plaintiffs] been given all the procedural protections to which they were entitled.'” Southerland, 680 F.3d at 152 (quoting Tenenbaum, 193 F.3d at 600 (emphasis omitted)).
“Brief removals of a child ‘generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal.'” Sulaymu-Bey, 2019 WL 1434597, at *6 (quoting Southerland, 680 F.3d at 153 (internal quotation omitted). “Once such ‘court confirmation of the basis for removal is obtained, any liability for the continuation of the allegedly wrongful separation of parent and child can no longer be attributed to the officer who removed the child.'” Id. (quoting Southerland, 680 F.3d at 153).
2. Application
The Court finds that De'Bey has failed to plausibly allege substantive due process claim based on the Emergency Removal. On February 27, 2019 - the same day as the Emergency Removal - ACS filed the Petitions, and the Family Court held a hearing during which it confirmed that the grounds for removal were proper. (ECF No. 62 ¶¶ 156-58; id. at 108-16; ECF Nos. 95-2-95-4). As a result, De'Bey cannot plausibly claim that the Emergency Removal constituted the type of “shocking, arbitrary, and egregious” behavior that is necessary to sustain a substantive due process claim. Tyson, 2019 WL 8437455, at *4-5 (granting motion to dismiss substantive due process claim based on child removal and finding “[w]here, as here, exigent circumstances require the ex parte temporary removal of a child from the home and a court proceeding is promptly held following the removal of the child, there is no substantive due process violation as a matter of law”). Thus, De'Bey's substantive due process claim relating to the Emergency Removal “must fail.” Sulaymu-Bey, 2019 WL 1434597, at *6 (dismissing substantive due process claim under Rule 12(c) where ex parte hearing was held the same day as ACS's emergency removal of the plaintiffs' children and the basis for removal was confirmed); see Green ex rel. T.C. v. Mattingly, No. 07 Civ. 1790 (ENV) (CLP), 2010 WL 3824119, at *10 (E.D.N.Y. Sept. 23, 2010) (granting motion to dismiss substantive due process claim and finding that “the four-day removal of T.C., who was actually physically assaulted in his residence, pending ACS investigation of the parents, could not possibly be labeled so ‘shocking' or ‘arbitrary' as to violate substantive due process”); see also Schweitzer v. Crofton, 935 F.Supp.2d 527, 549 (E.D.N.Y. 2013) (granting summary judgment and dismissing substantive due process claim premised on child removal where defendants filed neglect petition three days after removal, and post-removal hearing was held three days later, the “six-day separation [did] not constitute a violation of [the plaintiff's] substantive due process rights”); E.D. ex rel. V.D. v. Tuffarelli, 692 F.Supp.2d 347, 368 (S.D.N.Y. 2010) (granting summary judgment dismissing substantive due process claim where plaintiff's children were removed on a Friday evening and the post-removal hearing was held the following Monday); Orlik v. Dutchess Cnty., 603 F.Supp.2d 632, 646 (S.D.N.Y. 2009) (granting summary judgment and dismissing substantive due process claim premised on child removal where the court found that “the alleged several-hour long removal of [the plaintiff's child], pending a judicial determination of whether removal was proper, does not rise to the level of a violation of substantive due process”). Accordingly, the Court recommends that De'Bey's substantive due process claims relating to the Emergency Removal by ACS be dismissed.
In a footnote, Defendants suggest that De'Bey's procedural due process claims should also be dismissed. (ECF No. 94 at 20 n.6). Initially, “because the[se] arguments appear only in [a] footnote[], they are not properly raised, and the Court is under no obligation to consider them.” Weslowski v. Zugibe, 96 F.Supp.3d 308, 314 (S.D.N.Y.) (collecting cases), aff'd, 626 Fed.Appx. 20 (2d Cir. 2015). Nonetheless, the Court declines to recommend dismissal of De'Bey's procedural due process claims at this relatively early stage of the case on such a thin argument by Defendants. See Sulaymu-Bey, 2019 WL 1434597, at *5 (declining to dismiss under Rule 12(b)(6) pro se plaintiffs' procedural due process claim relating to the ex parte removal of their children). As set forth in Section IV.A.2, supra, however, given De'Bey's failure to allege that any of his constitutional claims arose from a City policy or custom, the Court recommends that his procedural due process Monell claims against the City be dismissed.
D. Conspiracy
De'Bey alleges throughout the SAC that “Defendants have individually and jointly deprived [him] of his civil, constitutional and statutory rights under color of law and have conspired to deprive him of such rights and are liable to plaintiff under 42 USC § 1983 [and] § 1985.” (See ECF No. 62 ¶¶ 283, 303, 311, 322, 331, 341, 348, 362, 372, 380, 397, 406, 415, 419, 428, 445, 454). De'Bey also alleges that: (i) through her reports to ACS, “Gaston acted under color of State law and in conspiracy with agent Defendant Nsofu” (id. ¶ 72); (ii) “[Weekes] & Nsofu both threatened [De'Bey's] family with police action to gain access to the home and therefore conspired the unconstitutional break in” (id. ¶ 76); (iii) “he was charged as part of a conspiracy to limit the [D]efendant's personal and municipal liability for breaking into his home without a duty of care, without a warrant, [and] without firsthand knowledge or exigent circumstances” (id. ¶ 366); and (iv) Defendants' “actions were part of a conspiracy to retaliate against him for filing a Notice of Claim against the [City] for damages” (id. ¶ 424).
Defendants argue that De'Bey's conspiracy claims “fail under the intra-corporate conspiracy doctrine.” (ECF No. 94 at 24). Defendants also argue that De'Bey's allegation of a conspiracy between Defendant Nsofu and Gaston should be dismissed because he “fails to plausibly allege how this purported conspiracy was ‘a result of racial, ethnic, or class-based animus.'” (Id. at 25 (quoting Yi Sun, 2020 WL 4530354, at *8)).
1. Legal Standard
“To state a conspiracy claim under Section 1983, a plaintiff must plausibly allege ‘(1) an agreement between [two or more state actors or] a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.'” Brown v. Annucci, No. 19 Civ. 9048 (VB), 2021 WL 860189, at *9 (S.D.N.Y. Mar. 8, 2021) (quoting Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002)).
“[T]o state a claim for conspiracy pursuant to 42 U.S.C. § 1985, ‘a plaintiff must allege: (1) a conspiracy; (2) the purpose of which was to deprive a person or class of persons of equal protection of the laws or of equal privileges or immunities under the law; (3) actions by the defendants in furtherance of the conspiracy; (4) injury to plaintiff's person or property or deprivation of a right as a result of these actions; and (5) class-based discriminatory animus.'” Walsh v. City of New York, No. 19 Civ. 9238 (AT), 2021 WL 1226585, at *8 (S.D.N.Y. Mar. 31, 2021) (quoting Little v. City of New York, 487 F.Supp.2d 426, 441 (S.D.N.Y. 2007)).
“In order to survive a motion to dismiss, § 1983 and § 1985 conspiracy claims ‘must provide some factual basis supporting a meeting of the minds, such as that defendants entered into an agreement, express or tacit, to achieve the unlawful end, augmented by some details of time and place and the alleged effects of the conspiracy.” Walsh, 2021 WL 1226585, at *8 (quoting K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F.Supp.2d 197, 208 (S.D.N.Y. 2013)). “A complaint ‘containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights' must be dismissed.” Porter v. City of New York New York, No. 03 Civ. 6463 (SJ), 2004 WL 7332338, at *5 (E.D.N.Y. Mar. 15, 2004) (quoting Gyadu v. Hartford Ins. Co., 197 F.3d 590, 591 (2d Cir. 1999)).
“[E]ven where a plaintiff has adequately alleged the elements of a conspiracy, under the doctrine of intracorporate conspiracy ‘officers, agents and employees of a single corporate entity are legally incapable of conspiring together' and thus cannot be held liable for conspiracy under § 1985(3) or § 1983.” Blue v. City of New York, No. 16 Civ. 9990 (VSB), 2018 WL 2561023, at *9 (S.D.N.Y. June 4, 2018) (quoting Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008)). The Court notes that, although the Second Circuit has “not yet had occasion to decide whether the doctrine also applies to conspiracy claims under [§] 1983, ” Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 388 (S.D.N.Y. 2013), “district courts have typically applied the logic of the intracorporate conspiracy doctrine to § 1983 claims.” Zilioli v. City of New York, No. 17 Civ. 9495 (WHP), 2020 WL 1548763, at *4 (S.D.N.Y. Apr. 1, 2020) (collecting cases).
2. Application
The Court finds that De'Bey has failed to plausibly allege § 1983 and § 1985 conspiracy claims. The vast majority of De'Bey's allegations concerning the existence of a conspiracy are “conclusory, vague, or general allegations of conspiracy to deprive [him] of constitutional rights.” Porter, 2004 WL 7332338, at *5. This includes De'Bey's allegations that Gaston conspired with Nsofu through her reports to ACS, that Weeks and Nsofu “conspired the unconstitutional break in” by threatening to involve the police, that he was “charged as part of a conspiracy to limit the defendant's personal and municipal liability for breaking into his home without a duty of care, without a warrant, without firsthand knowledge or exigent circumstances, ” and that Defendants conspired “to retaliate against him for filing a Notice of Claim against the [City] for damages” (ECF No. 62 ¶¶ 72, 76, 366, 424). De'Bey fails to allege any objective factual basis from which the Court can properly infer a meeting of the minds among the individuals who were involved in the alleged constitutional violations, and as a result, De'Bey's conspiracy claims “must be dismissed.” Porter, 2004 WL 7332338, at *5 (dismissing pro se plaintiff's conspiracy claim for failure to state a claim); see Yi Sun, 2020 WL 4530354, at *9 (granting motion to dismiss pro se plaintiff's Section 1983 and 1985 conspiracy claims where the “conclusory allegations that employees of ACS worked together to deprive [the plaintiff] of custody of her child by proffering false testimony are not allegations of fact from which the Court can properly infer an agreement between ACS employees to deprive her of her constitutional rights.”).
Moreover, De'Bey's conspiracy claim against Weakes and Nsofu is barred by the intra-corporate conspiracy doctrine. Because they are both ACS employees, Weakes and Nsofu are “part of single corporate entity.” Blue, 2018 WL 2561023, at *9. As a result, they are “are legally incapable of conspiring together” under the intra-corporate conspiracy doctrine. Id. (quoting Hartline, 546 F.3d at 99 n.3); see Yi Sun, 2020 WL 4530354, at *8 (“To the extent that Plaintiff alleges a conspiracy among only NYPD officers, or among only ACS employees, Plaintiff's conspiracy claims under section 1985 are barred by the intracorporate conspiracy doctrine.”); see also Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978) (affirming dismissal of conspiracy claim on motion for summary judgment, and explaining that “there is no conspiracy if the conspiratorial conduct challenged is essentially a single act by a single corporation acting exclusively through its own directors, officers, and employees, each acting within the scope of his employment”).
Finally, with respect to De'Bey's § 1985 conspiracy claim, the Court agrees with Defendants that the SAC does not contain “any facts from which the Court can infer that members of the NYPD or ACS were motivated by class-based animus.” Yi Sun, 2020 WL 4530354, at *8; see supra § IV.B.2.
Accordingly, the Court recommends that De'Bey's conspiracy claims be dismissed.
E. State Law Claims
Defendants seek dismissal of several of De'Bey's state law claims. (ECF No. 94 at 25-27).
1. Negligent Hiring and Retention and Respondeat Superior
De'Bey seeks to hold the City liable under state law theories of “negligent hiring & retention” and respondeat superior. (ECF No. 62 ¶¶ 406-18). To support his negligent hiring and retention claim, De'Bey alleges that the City “knew or should have known through exercise of reasonable diligence that[: (i)] the NYPD defendants were potentially dangerous and had previously falsely arrested civilians without probable cause[;] . . . [(ii)] the ACS agency were potentially dangerous and had previously falsely accused parents of neglect and abuse without probable cause[;] . . . [and (iii)] ACS had a history of exaggerating its authority to enter the homes of New Yorkers without warrants from previous lawsuits and complaints filed against its agency.” (Id. ¶¶ 410-12). In support of his respondeat superior claim, De'Bey alleges that “Defendants' intentional tortious acts were undertaken within the scope of their employment by [the City] and in furtherance of the [City]'s interest.” (Id. ¶ 416).
Defendants argue that De'Bey's negligent hiring and retention claim fails because he “does not allege, beyond conclusory terms, how the City was on notice of any individual Defendants' purported propensity for wrongful conduct.” (ECF No. 94 at 26). Defendants also argue that De'Bey's claims against the City under the theory of respondeat superior should be dismissed because he “has failed to state a viable claim of any individual employee's tort that can be imputed to the City.” (Id. at 26-27).
a. Legal standard
“Under New York law, an employer may be found liable for the conduct of its employee under theories of negligent hiring, retention, or supervision.” Doe v. City of New York, No. 09 Civ. 9895 (SAS), 2013 WL 796014, at *3 (S.D.N.Y. Mar. 4, 2013). “To state a claim for negligent supervision or retention under New York law, in addition to the standard elements of negligence, a plaintiff must show: (1) that the tort-feasor and the defendant were in an employee-employer relationship; (2) that the employer knew or should have known of the employee's propensity for the conduct which caused the injury prior to the injury's occurrence; and (3) that the tort was committed on the employer's premises or with the employer's chattels.” Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (internal citations and quotations omitted). “[W]here an employee acts within the scope of his or her employment, the employer cannot be held liable for a claim of negligent hiring, retention, or training.” Barnville v. Mimosa Cafe, No. 14 Civ. 518 (GHW), 2014 WL 3582878, at *2 (S.D.N.Y. July 10, 2014) (citing Talavera v. Arbit, 18 A.D.3d 738, 795 N.Y.S.2d 708, 708 (2d Dep't 2005)).
Under the doctrine of respondeat superior, “an employer can be held ‘vicariously liable for torts committed by an employee acting within the scope of the employment . . ., so long as the tortious conduct is generally foreseeable and a natural incident of the employment.'” Aponte v. City of New York, No. 14 Civ. 3989 (KMK), 2016 WL 5394754, at *7 (S.D.N.Y. Sept. 26, 2016) (quoting RJC Realty Holding Corp. v. Republic Franklin Ins. Co., 2 N.Y.3d 158, 164, (2004). “An employee's actions fall within the scope of employment where the purpose in performing such actions is ‘to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business.'” Guzman v. United States, No. 11 Civ. 5834 (JPO), 2013 WL 543343, at *9 (S.D.N.Y. Feb. 14, 2013) (quoting Beauchamp v. City of New York, 771 N.Y.S.2d 129, 131 (2d Dep't 2004)). “Because the question of whether an officer's actions were committed within the scope of his public employment and the discharge of his duties raises factual questions, such inquiries often survive motions for summary judgment, let alone motions to dismiss.” Case v. Anderson, No. 16 Civ. 983 (NSR), 2017 WL 3701863, at *25 (S.D.N.Y. Aug. 25, 2017) (quoting Guzman, 2013 WL 543343, at *9 (internal quotation and citation omitted).
b. Application
The Court finds that De'Bey has failed to allege the City's liability under a theory of negligent hiring or retention because De'Bey fails to allege that any of the individual Defendants were acting outside the scope of their employment. To the contrary, the SAC describes behavior that can only be understood as within the scope of the individual Defendants' employment with ACS or the NYPD. See Paul v. City of New York, No. 16 Civ. 1952 (VSB), 2017 WL 4271648, at *7 (S.D.N.Y. Sept. 25, 2017) (granting motion to dismiss claim for negligent hiring, training, or supervision premised on “behavior that could only be understood as within the scope of [the individual defendants'] employment as officers with the NYPD.”); Case, 2017 WL 3701863, at *26 (dismissing negligent supervision or training claim under Rule 12(b)(6) where the plaintiff failed to allege, inter alia, that the individual defendants “were acting outside of the scope of their employment”); Melvin v. Cnty. of Westchester, No. 14 Civ. 2995 (KMK), 2016 WL 1254394, at *21 (S.D.N.Y. Mar. 29, 2016) (dismissing negligent hiring, supervision, and retention claim under Rule 12(b)(6) and concluding that the claim “must fail precisely because the [complaint] offers no allegations that [defendants] were acting outside [their] scope of employment during the course of events giving rise to Plaintiff's claim.”); Harisch v. Goldberg, No. 14 Civ. 9503 (KBF), 2016 WL 1181711, at *14-15 (S.D.N.Y. Mar. 25, 2016) (“As with any substantive assertion in a complaint, the facts alleged in support of a cause of action for negligent hiring, supervision, or retention must support a plausible argument that the employee's actions were outside the scope of her employment.”); Marotta v. Palm Mgmt. Corp., No. 05 Civ. 10688 (LTS) (HBP), 2009 WL 497568, at *4 (S.D.N.Y. Feb. 25, 2009) (dismissing claim of negligent hiring, retention, training, or supervision under Rule 12(b)(6) for failure to plead “factual allegations ... that [defendants] at any time acted outside their normal course of duties”). Accordingly, the Court recommends dismissal of De'Bey's state law claims against the City premised on a theory of negligent hiring or retention.
Conversely, the Court declines to recommend dismissal of De'Bey's state law claims against the City under a theory of respondeat superior. While they claim that De'Bey “has failed to state a viable claim of any individual employee's tort that can be imputed to the City” (ECF No. 94 at 26-27), “Defendants do not seek dismissal at this juncture of [De'Bey]'s unreasonable search or seizure claims against [the] individual Defendants in their personal capacities and relating to (i) the alleged entry into [De'Bey's] home on February 13, 2019, by ACS staff, (ii) the alleged entry into [De'Bey's] home on February 26/27, 2019, by ACS and NYPD staff, and (iii) the alleged seizure of [De'Bey's] cellular telephone by Detective Eiel.” (Id. at 8-9). As a result, and contrary to Defendants' argument, the Court cannot conclude that De'Bey has failed to allege tortious conduct that could be attributable to the City. See Hatcher v. City of New York, No. 15 Civ. 7500 (VSB), 2018 WL 1583036, at *10 (S.D.N.Y. Mar. 27, 2018) (“Because, however, the respondeat superior doctrine may be applied to state constitutional tort claims, Plaintiff's municipal liability claim arising from state constitutional violations for unlawful search and seizure remains.”); Williams v. City of New York, No. 14 Civ. 5123 (NRB), 2015 WL 4461716, at *6 (S.D.N.Y. July 21, 2015) (“The City can, however, be liable on a respondeat superior theory with respect to claims arising from state law, including the New York State Constitution and common law.”). Accordingly, the recommends that the Motion be denied to the extent it seeks dismissal of De'Bey's state law claims against the City under the theory of respondeat superior.
2. New York State Constitutional Claims
De'Bey alleges that Defendants violated his rights “to due process” and “to be free from an unreasonable search and seizure” under the New York State Constitution. (ECF No. 62 ¶ 282(c)-(d)).
Defendants argue that De'Bey's claims under the New York State Constitution should be dismissed because “he has adequate and available claims under the U.S. Constitution and New York common law.” (ECF No. 94 at 26).
a. Legal standard
Like the U.S. Constitution, the New York State Constitution prohibits unreasonable searches and seizures and guarantees the right to due process of law. N.Y. Const., art. I, §§ 6, 12. Nevertheless, “[c]ourts in this Circuit have ‘uniformly held that no private right of action exists for violations of the New York State Constitution where the plaintiff has an alternative remedy under § 1983 for violations of parallel provisions of the U.S. Constitution.'” Buari v. City of New York, No. 18 Civ. 12299 (MKV), 2021 WL 1198371, at *28 (S.D.N.Y. Mar. 30, 2021) (quoting Alwan v. City of New York, 311 F.Supp.3d 570, 586 (E.D.N.Y. 2018)). “These decisions rely on the premise that § 1983 provides an ‘adequate' alternative remedy for violations of the New York State Constitution.” Alwan, 311 F.Supp.3d at 586. However, as discussed above, “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691. Accordingly, “courts in this Circuit have concluded that ‘§ 1983 is not an adequate alternative remedy for state-constitutional claims that rely on a theory of respondeat superior.” Buari, 2021 WL 1198371, at *29 (quoting Alwan, 311 F.Supp.3d at 587). As the New York Court of Appeals has recognized, “[a] plaintiff seeking to recover on the basis of respondeat superior simply does not come within the terms of section 1983.” Brown v. State, 89 N.Y.2d 172, 194 (1996).
b. Application
The Court finds that De'Bey cannot maintain his claims under the New York State Constitution against the individual defendants, because Section 1983 provides an adequate remedy under the U.S. Constitution's parallel provisions. Buari, 2021 WL 1198371, at *29 (granting motion to dismiss state constitutional due process claims against individual defendants “because Section 1983 provides an adequate remedy.”); Brown v. City of New York, No. 13 Civ. 6912 (TPG), 2017 WL 1390678, at *15 (S.D.N.Y. Apr. 17, 2017) (granting motion to dismiss state constitutional claims against individual defendants because “§ 1983 provides a remedy for all of the [plaintiff's] claims . . . under the New York State Constitution against the Individual Defendants.”); Camac v. Long Beach City Sch. Dist., No. 09 Civ. 5309 (DRH) (ARL), 2011 WL 3030345, at *19 (E.D.N.Y. July 22, 2011) (“Where, as here, plaintiffs have asserted a viable Fourth Amendment claim under Section 1983[, ] any violation of the plaintiff[‘s] right to be free of unreasonable searches and seizures can be vindicated through this claim.”) (quotation and citation omitted). Accordingly, the Court recommends that De'Bey's claims under the New York State Constitution against the individual defendants be dismissed.
Because “§ 1983 does not provide an alternative remedy for [De'Bey]'s state constitutional claims” against the City under a theory of respondeat superior, however, the Court declines to recommend dismissal of those claims at this time. Brown v. City of New York, 2017 WL 1390678, at *15 (dismissing State constitutional claims against individual defendants, but declining to dismiss the same claims asserted against the City); see Buari, 2021 WL 1198371 (same), at *29. Accordingly, the Court recommends that the Motion be denied to the extent it seeks dismissal of De'Bey's claims against the City under the New York State Constitution.
3. False Imprisonment
De'Bey asserts a false imprisonment claim against the City and Nsofu. (ECF No. 62 ¶¶ 437-44). He does not indicate whether the asserts the claim under federal or state law. (Id.) As discussed below, the relevant analysis is the same under both.
Defendants argue that De'Bey's false imprisonment claim fails as a matter of law because “he has pleaded guilty in conjunction with his arrest.” (ECF No. 94 at 22 n.9 (citing ECF No. 62 ¶ 134; ECF No. 95-5)).
a. Legal standard
“A Fourth Amendment claim of false imprisonment brought under 42 U.S.C. § 1983 is ‘substantially the same' as a false imprisonment claim under New York State law.” Greenaway v. Cty. of Nassau, 97 F.Supp.3d 225, 233 (E.D.N.Y. 2015) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)). “Such a claim requires a showing that ‘(1) the defendant intended to confine the plaintiff; (2) the plaintiff did not consent to the confinement; (3) the plaintiff was aware that he was confined; and (4) the confinement was not otherwise privileged, such as confinement pursuant to a warrant or with probable cause or immunity protection.'” Kaplan v. Cnty. of Orange, No. 20 Civ. 1382 (KMK), 2021 WL 1105618, at *15 (S.D.N.Y. Mar. 23, 2021) (quoting Tobias v. Cnty. of Putnam, 191 F.Supp.2d 364, 375 (S.D.N.Y. 2002). “Probable cause furnishes a complete defense to both Fourth Amendment and state law claims of false imprisonment.” Id. (citing Greenaway, 97 F.Supp.3d at 233). “If, following the arrest, the plaintiff was convicted of the charges against him, that conviction normally ‘would be conclusive evidence of probable cause.'” Weyant, 101 F.3d at 852 (quoting Broughton v. State, 37 N.Y.2d 451, 458, 335 N.E.2d 310, 315 (1975)). “But this is so only if the conviction ‘survives appeal.'” Id. (citing Broughton, 37 N.Y.2d at 458). “[A] claim for false arrest turns only on whether probable cause existed to arrest a defendant, and . . . it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.” Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006).
b. Application
The Court agrees with Defendants that De'Bey's false arrest claim, whether asserted under state or federal law, is legally deficient. As he acknowledges in the SAC, De'Bey was arrested for endangering the Children's welfare, and he later pled guilty to these charges with respect to A.A. (ECF No. 62 ¶¶ 148, 210; see ECF No. 95-5). While De'Bey claims that aspects of his plea were coerced (ECF No. 62 ¶¶ 211, 213), he does not, and cannot, claim that his conviction was reversed on appeal. As a result, his conviction establishes “conclusive evidence” of probable cause for the confinement, Weyant, 101 F.3d at 852, which “furnishes a complete defense” to his false imprisonment claim. Kaplan, 2021 WL 1105618, at *15; see Drayton v. Young, No. 17 Civ. 5440 (KMK), 2018 WL 5831324, at *5 (S.D.N.Y. Nov. 7, 2018) (on Rule 12(b)(6) motion, dismissing without prejudice a pro se plaintiff's false imprisonment claim where the plaintiff was convicted of several of the arrest charges, concluding that that the plaintiff “cannot maintain a § 1983 action for false arrest unless and until his conviction is in fact overturned”). Accordingly, the Court recommends that De'Bey's false imprisonment claim be dismissed.
4. Intentional Infliction of Emotional Distress
De'Bey asserts a claim for intentional infliction of emotional distress (“IIED”) against Nsofu and the City, claiming that they “knew with certainty that their conduct would cause severe emotional distress to Plaintiff by way of Defendant Nsofu lying to the courts, filing false petitions, false imprisonment, and unreasonable search and seizure was outrageous and an extraordinary transgression of socially tolerable behavior.” (ECF No. 62 ¶¶ 454-56).
Defendants argue that De'Bey's IIED claims should be dismissed because: (i) De'Bey “fails to allege facts permitting a plausible inference that [Nsofu's] conduct was ‘extreme and outrageous'[;]” (ii) De'Bey “relies on conclusory allegations of ‘severe and emotional' distress that fail to establish a viable claim[;]” and (iii) De'Bey's “IIED claim against the City . . . [is] barred by public policy.” (ECF No. 94 at 27).
a. Legal standard
“To state a claim for [IIED] under New York law, a plaintiff must allege ‘[ (1) ] extreme and outrageous conduct; [ (2) ] intent to cause, or disregard of a substantial probability of causing, severe emotional distress; [ (3) ] a causal connection between the conduct and injury; and [ (4) ] severe emotional distress.'” Poulos v. City of New York, No. 14 Civ. 3023 (LTS) (HBP), 2015 WL 5707496, at *10 (S.D.N.Y. Sept. 29, 2015) (quoting Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993)). “However, New York law explicitly bars recovery for negligent or intentional infliction of emotional distress when such claims are based on conduct that is ‘embraced by a traditional tort remedy.'” Id. (quoting E.E.O.C. v. Die Fliedermaus, 77 F.Supp.2d 460, 472 (S.D.N.Y. Dec. 13, 1999)). Moreover, “New York courts routinely hold that IIED claims against government agencies, including New York City, are barred for public policy reasons.” Chukwuka v. City of New York, No. 08 Civ. 2095 (RJD) (LB), 2010 WL 3780214, at *9 (E.D.N.Y. Sept. 21, 2010) (citing Llerando-Phipps v. City of New York, 390 F.Supp.2d 372, 381 (S.D.N.Y.2005)); see also Lauer v. City of New York, 659 N.Y.S.2d 57, 57 (2d Dep't 1997) (collecting cases).
b. Application
The Court recommends that De'Bey's IIED claim against the City be dismissed because it is barred by public policy. See Cummings v. City of New York, No. 19 Civ. 7723 (CM) (OTW), 2021
WL 1163654, at *10 (S.D.N.Y. Mar. 26, 2021) (on Rule 12(b)(6) motion, dismissing IIED claim against the City because, inter alia, it was barred by public policy); Koulkina v. City of New York, No. 06 Civ. 11357 (SHS), 2009 WL 210727, at *8 (S.D.N.Y. Jan. 29, 2009) (granting motion to dismiss IIED claim and concluding that “public policy prohibits recovery for IIED against the City”). Accordingly, the Court recommends that De'Bey's IIED claim against the City be dismissed.
The Court also finds that De'Bey's IIED claim against Nsofu should be dismissed. De'Bey bases his IIED claim against Nsofu on her participation in the Emergency Removal and her verification of the Petitions (ECF No. 62 ¶¶ 454-56), i.e., the same conduct on which he bases his constitutional claims against her. “Thus, because more traditional tort remedies appear to be available to address his injuries, [De'Bey's] IIED . . . claim[] must be dismissed.” Poulos, 2015 WL 5707496, at *10 (granting motion to dismiss IIED claims “based on the same conduct that constitute[d] the basis for Plaintiff's [other] state law claims”); see Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000) (explaining that “the 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”); Kurtz v. Hansell, No. 20 Civ. 3401 (PAE), 2021 WL 1143619, at *23 (S.D.N.Y. Mar. 24, 2021) (granting motion to dismiss IIED claim where “ACS's decision to pursue removal proceedings, to the extent it may be found outrageous or intolerable, is redressable within the framework of the familiar tort of malicious prosecution.”); Sullivan v. City of New York, No. 17 Civ. 3779 (KPF), 2018 WL 3368706, at *18 (S.D.N.Y. July 10, 2018) (granting motion to dismiss IIED claim where “the well-pleaded IIED allegations are co-extensive with the allegations that give rise to Plaintiff's false-arrest claim.”); Graham v. City of New York, 869 F.Supp.2d 337, 355 (E.D.N.Y. 2012) (“A claim arising out of the removal of a child without probable cause can thus raise constitutional concerns.”). Accordingly, the Court also recommends that De'Bey's IIED claim against Nsofu be dismissed.
F. NYCHHC
De'Bey asserts a “false medical report” claim against the City relating to his treatment at New York Health & Hospitals/Metropolitan, a constituent hospital of NYCHHC. (ECF No. 62 ¶¶ 247-61, 419-27; see ECF No. 44 (indicating that New York Health & Hospitals/Metropolitan is a facility owned by NYCHHC)).
Defendants argue that “[a]ny claims relating to the conduct of Metropolitan Hospital employees are improperly asserted against the City and should be dismissed.” (ECF No. 94 at 28). They also note that “the Court gave [De'Bey] the opportunity to assert claims against [NYCHHC] in his [SAC] by specifically directing him to include [NYCHHC] in the caption[, ]” and argue that he “did not do so, and thus [NYCHHC] is no longer in this action.” (Id.)
1. Legal Standard
“New York courts consistently have held that the City is a separate legal entity from [NYC]HHC.” Cabrera v. NYC, 436 F.Supp.2d 635, 641 (S.D.N.Y. 2006) (collecting cases); cf. Woodard v. New York Health & Hosps. Corp., No. 04 Civ. 5297 (DGT), 2010 WL 2735757, at *7 (E.D.N.Y. July 9, 2010) (noting that “most Title VII cases have reached the conclusion that despite the fact that [NYC]HHC employees are entitled to indemnification and representation by the City, HHC and the City are separate entities with separate employees.”). Accordingly, courts dismiss claims against the City that are properly asserted against NYCHHC. See Ingrassia v. Health & Hosp. Corp., 130 F.Supp.3d 709, 716 (E.D.N.Y. 2015); St. Juste v. Metro Plus Health Plan, 8 F.Supp.3d 287, 301 (E.D.N.Y. 2014) (“Where, as here, there are no allegations against the City of New York or any of its agencies but rather against HHC, a separate entity, the City of New York has improperly been named as a Defendant to this suit.”).
2. Application
The Court agrees that De'Bey's claims relating to the conduct of NYCHHC employees are improperly asserted against the City. See Morrison v. City of New York, 591 F.3d 109, 116 (2d Cir. 2010) (affirming Rule 12(b)(6) dismissal of claims against the City that did “not implicate the City because [the constituent hospital] and its doctors and employees are part of the [NYCHHC]”); Ingrassia, 130 F.Supp.3d at 716 (dismissing claims against the City that were premised on actions by NYHCC). Accordingly, the Court recommends that De'Bey's false medical report claim be dismissed to the extent that he asserts it against the City.
While the Court takes no position on whether De'Bey sufficiently alleges any claim against NYCHHC, it disagrees with Defendants' suggestion that NYCHHC “is no longer in this action” simply because De'Bey did not name it in the caption of the SAC. (ECF No. 94 at 28). “While Rule 10(a) of the Federal Rules of Civil Procedure requires that the caption of a pleading name all the parties to a lawsuit, ‘the caption itself is normally not determinative of the identity of the parties or of the pleader's statement of claim.'” JCG v. Ercole, No. 11 Civ. 6844 (CM) (JLC), 2014 WL 1630815, at *16 (S.D.N.Y. Apr. 24, 2014) (quoting E.E.O.C. v. Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers, Local 580, 139 F.Supp.2d 512, 525 (S.D.N.Y. 2001)). “Rather, in deciding whether an entity has properly been made a party to a lawsuit, the court should consider the caption, pleadings, service of process and other indications of the intent of the pleader.” Id. (quotation and alteration omitted). Here, although De'Bey failed to comply with the Court's directive to add NYCHHC to the caption (ECF No. 59 at 10), the SAC makes clear that he intended to assert his false medical report claim against NYCHHC, which has appeared through counsel. (ECF No. 62 ¶¶ 247-62, 419-27; see ECF No. 44). Accordingly, to the extent Defendants seek dismissal of De'Bey's false medical report claim against NYCHHC, the Court recommends that aspect of the Motion be denied.
G. Leave to Amend
De'Bey elected not to oppose the Motion. (ECF No. 100). He did so “after being given significant time to review the [D]efendants' defense and to further conserve court resources for unnecessary filings, responses, and research.” (Id.) De'Bey also has not requested leave to amend any of the claims as to which Defendants seek dismissal (id.), despite being on notice that “if [he has] proof of [his [claim], now is the time to submit it.” (ECF No. 96 at 1). Nonetheless, the Court has considered whether granting leave to amend would be appropriate, and recommends that no further amendment be permitted.
Federal Rule of Civil Procedure 15(a)(2) provides that “leave to amend a complaint shall be ‘freely' given when ‘justice so requires,' though a district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.'” Santiago v. Pressley, No. 10 Civ. 4797 (PAE), 2011 WL 6748386, at *5 (S.D.N.Y. Dec. 23, 2011) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-01 (2d Cir. 2007)). “A court should generally grant a pro se plaintiff ‘leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.'” Brown v. Volpe, No. 15 Civ. 9004 (PAE), 2017 WL 985895, at *8 (S.D.N.Y. Mar. 13, 2017) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Here, De'Bey has already amended his pleading twice (ECF Nos. 3, 62), and, given the Court's analysis of the substantive deficiencies in each of his claims set forth above, the Court is not persuaded that another attempt to state a viable claim would be successful. See Brady v. IGS Realty Co., L.P., No. 19 Civ. 10142 (PAE) & 19 Civ. 10622 (PAE), 2020 WL 5414683, at *13 (S.D.N.Y. Sept. 8, 2020) (denying leave to amend as futile); In re WorldCom, Inc. Secs. Litig., 303 F.Supp.2d 385, 391 (S.D.N.Y. 2004) (“[I]n the absence of any identification of how a further amendment would improve upon the Complaint, leave to amend must be denied as futile.”). Furthermore, courts in this District “routinely deny” granting leave to amend that would allow a plaintiff a “‘third bite at the apple.'” Binn v. Bernstein, No. 19 Civ. 6122 (GHW) (SLC), 2020 WL 4550312, at 34 (S.D.N.Y July 13, 2020) (collecting cases), aff'd 2020 WL 4547167 (Aug. 6, 2020). Accordingly, I respectfully recommend that De'Bey be denied leave to amend.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that the Motion be GRANTED IN PART and DENIED IN PART as follows:
(a) the following claims be DISMISSED WITH PREJUDICE:
(i) De'Bey's § 1983 municipal liability claims against the City;
(ii) De'Bey's religious discrimination claims;
(iii) De'Bey's substantive due process claims under the U.S. and New York State Constitutions premised on the Emergency Removal; (iv) De'Bey's § 1983 and § 1985 conspiracy claims;
(v) De'Bey's claims under the New York State Constitution against the City premised on a theory of negligent hiring or retention;
(vi) De'Bey's claims under the New York State Constitution against the individual Defendants;
(vii) De'Bey's intentional infliction of emotional distress claims against the City and Nsofu; and (viii) De'Bey's false medical report claim against the City;
(b) De'Bey's false imprisonment claim, whether asserted under federal or New York State law, be DISMISSED WITHOUT PREJUDICE;
(c) the following claims, in addition to those as to which Defendants did not move, be allowed to proceed:
See supra § II.C.
(i) De'Bey's remaining claims under the New York State Constitution against the
City premised on a theory of respondeat superior; (ii) De'Bey's claim against NYCHHC; and
(d) De'Bey not be granted leave to amend.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If De'Bey does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Defendants' counsel. See Local Civ. R. 7.2.