Dabah v. Franklin

1

Elliot Dabah, Plaintiff-Appellant, v. Nicole Franklin, Rica Hazelwood, Sharon Atkins, Myrtle Green, City of New York, Felix Dumay, individually, and as a manager, Sherill Douglas-Alexis, individually, and as a manager, Defendants-Appellees.

No. 22-845-cv

United States Court of Appeals, Second Circuit

May 22, 2023

UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22^nd day of May, two thousand twenty-three.

Appeal from the judgment of the United States District Court for the Southern District of New York (Carter, J.).

FOR PLAINTIFFS-APPELLANTS:

CAROLYN A. KUBITSCHEK, Lansner & Kubitschek, New York NY, (Elliot Shields, on the briefs), Roth & Roth, LLP New York, NY.

FOR DEFENDANTS-APPELLEES

LORENZO DI SILVIO (Richard Dearing & Elina Druker, on the brief) for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.

PRESENT: JOHN M. WALKER, JR., RICHARD C. WESLEY, JOSEPH F. BIANCO, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-appellant Elliot Dabah appeals from the judgment of the district court entered on March 31, 2022, granting the motion to dismiss filed by defendants-appellants Nicole Franklin, Rica Hazelwood, Sharon Atkins, Myrtle Green, Felix Dumay, and the City of New York. Dabah is the father of two minor children from a previous marriage. Under the divorce decree, his former wife was awarded "sole legal and physical custody of the children," but the children resided with Dabah every other weekend, Tuesday evenings, and on certain holidays and other occasions. Joint App'x at 63. The decree also provided that decisions regarding the children's medical treatment, education, and religious instruction be made jointly by Dabah and his former wife. In December 2016, New York City's Administration for Children's Services ("ACS") launched an investigation after receiving allegations that Dabah abused and mistreated his children. As a result of that investigation, ACS commenced ex parte child neglect proceedings against Dabah in the Family Court of the State of New York (the "Family Court"). The Family Court issued an ex parte order that barred Dabah from having any contact with his children and from participating in the determination of their medical decisions. Dabah contends that the investigation and neglect proceedings were instigated by his former wife, in an attempt to remove him from her and the children's lives, and that defendants knew or should have known that the allegations were false. Ultimately, after a trial in the Family Court, all charges against Dabah were dismissed and he regained access to his children.

Dabah then brought this action against individual ACS employees and the City of New York under 42 U.S.C. § 1983, alleging violations of substantive and procedural due process, malicious prosecution, and various state law claims. The district court dismissed Dabah's federal claims for failure to state a claim and declined to exercise supplemental jurisdiction over the remaining state law claims. We assume the parties' familiarity with the facts, procedural history, and issues on appeal, to which we refer only as necessary to explain our decision to affirm.

DISCUSSION

We review de novo the grant of a motion to dismiss under Rule 12(b)(6), Nunes v. Cable News Network Inc., 31 F.4th 135, 140 (2d Cir. 2022), assuming the truth of facts alleged in the complaint and drawing all inferences in the plaintiff's favor, Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015). We may also consider documents attached to the complaint as exhibits, incorporated by reference therein, or integral to the complaint. United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021), cert. denied, 142 S.Ct. 2679 (2022). To survive dismissal, the pleadings must contain "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), i.e., to allow the court reasonably to infer that the defendant is liable for the misconduct alleged, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In making that assessment, courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, we are "free to affirm an appealed decision on any ground which finds support in the record, regardless of the ground upon which the trial court relied." Garcia v. Harford Police Dep't, 706 F.3d 120, 130 (2d Cir. 2013) (per curiam) (quoting Leecan v. Lopes, 893 F.2d 1434, 1439 (2d Cir. 1990)).

I. Substantive and Procedural Due Process

Dabah concedes that his former wife has sole legal custody of the children. However, Dabah retained visitation rights and he "and his ex-wife jointly made decisions about the medical treatment, education, and religious instruction of [the children]." Joint App'x at 15. Dabah contends that he has a constitutionally protected liberty interest in these visitation and decisionmaking rights, and that defendants interfered with those rights by, among other things, failing to properly investigate the neglect allegations, continuing meritless neglect proceedings, and denying him a pre-termination and prompt post-termination hearing. Dabah asserts that this alleged interference constitutes a violation of his substantive and procedural due process rights.

As an initial matter, we have never resolved the question of whether a parent who does not have legal custody of a child nevertheless has a protected liberty interest in his or her visitation rights and/or right to participate in certain decisions regarding the child. See Uwadiegwu v. Dep't of Soc. Servs. of the Cnty. of Suffolk, 639 Fed.Appx. 13, 15 (2d Cir. 2016) (summary order) (noting that this Court has never resolved whether there is a constitutionally protected liberty interest in a non-custodial parent's visitation rights with children). However, we need not reach that issue here because we conclude that Dabah's substantive and due process claims fail, even assuming he has such a liberty interest.

A. Substantive Due Process

"To state a claim for a violation of this substantive due process right of custody, a plaintiff must demonstrate that the state action depriving him of custody was so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection." Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 275 (2d Cir. 2011) (internal quotation marks and citation omitted). Assuming Dabah has a constitutionally protected liberty interest in his rights as a non-custodial parent, we see no reason why a different standard would apply to his rights. Under that standard, we have emphasized that "[a]lthough parents enjoy a constitutionally protected interest in their family integrity, 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 marks and citations omitted). Thus, "[t]his Circuit has adopted a standard governing case workers which reflects the recognized need for unusual deference in the abuse investigation context[; a]n investigation passes constitutional muster provided simply that case workers have a 'reasonable basis' for their findings of abuse." Id. Of course, "[c]ase workers cannot be free to substantiate a claim of abuse, for instance, by ignoring overwhelming exculpatory information or by manufacturing false evidence." Id.

Here the removal of Dabah's children from his part-time care did not occur until after ACS obtained a Family Court order permitting such removal. That order was based on a neglect proceeding in which ACS alleged, among other things, that Dabah's two children gave separate statements to a case worker and therapist reporting that he used corporal punishment on them. Although the amended complaint alleges that those statements to ACS were false, the amended complaint contains no specific allegations that ACS fabricated the existence of those statements in its petitions to the Family Court. Instead, the amended complaint merely contains conclusory statements of fabrication that are insufficient to support a plausible substantive due process claim. See Iqbal, 556 U.S. at 678 (holding that a complaint is insufficient if it contains only "labels and conclusions[,] . . . a formulaic recitation of the elements of a cause of action[, or] . . . naked assertions devoid of further factual enhancement" (alteration adopted) (internal quotation marks and citations omitted)); Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014) (holding that the court is not "required to accept as true allegations that are wholly conclusory"). Similarly, the amended complaint makes no allegations of specific exculpatory information that was withheld from...