Kleinbart v. N.Y.C.

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STEVEN KLEINBART and SARAH KLEINBART, Plaintiffs, v. NEW YORK CITY, NEW YORK ADMINISTRATION FOR CHILDREN'S SERVICES, DAVID A. HANSELL, AMANDA G. KATZ, DR. RIVKA Y. STEIN, DAVID and JENNIFER STEINBERG, HON. BEN DARVIL, JR., OTHEL CHILDREN'S HOME & FAMILY SERVICES, MALKIE BOBKER, OHEL, JOHN DOES #1-25, JANE DOES #1-25, and ABS Entities #1-25 Defendants.

No. 21 CV 2169 (EK)(LB)

United States District Court, E.D. New York

June 8, 2022

REPORT AND RECOMMENDATION

BLOOM United States Magistrate Judge:

Plaintiffs Steven and Sarah Kleinbart^[1] bring this fee-paid pro se action alleging defendants violated their civil rights under 42 U.S.C. §1983 and 42 U.S.C. §1985, provisions of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§1961-1968, and state law. Plaintiffs seek damages, declaratory, and injunctive relief. Defendants move to dismiss plaintiffs' Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim.

The Honorable Eric R. Komitee referred defendants' motions to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, it is respectfully recommended that defendants' motions should be granted, and plaintiffs' Amended Complaint should be dismissed for lack of subject matter jurisdiction.

BACKGROUND

The following facts are drawn from allegations in plaintiffs' Amended Complaint. ECF No. 29. Plaintiffs, who are Orthodox Jews, struggled with H.K.'s medical condition from birth. ¶¶ 3, 21. In February 2015, a feeding tube was inserted in H.K. ¶¶ 21-27. On April 30, 2015, a woman who knew plaintiffs called the New York Administration for Children's Services (“ACS”) and informed ACS that plaintiffs were neglecting their daughter's education. ¶ 28. The same woman phoned Dr. Rivka Stein plaintiffs' daughter's pediatrician at that time, to report that plaintiffs were unfit parents. ¶ 31. Over the next five months, ACS began to look in on plaintiffs and to meet with them. ¶ 34.

Toward the end of December 2015, plaintiffs' daughter became ill, and Dr. Stein instructed plaintiffs to take her to the hospital. ¶ 38. Plaintiffs' daughter was taken to Columbia Hospital and treated for dehydration with intravenous fluid. ¶ 43. While at the hospital, Dr Jocelyn Brown, a licensed physician at the hospital who was in contract with ACS, examined plaintiffs' daughter. ¶¶ 53-55. Dr. Brown contacted the State Central Registry to report her belief that plaintiff Sarah Kleinbart was abusing H.K. ¶ 56.

On January 8, 2016, ACS assigned a caseworker to investigate the abuse accusation against plaintiffs. ¶ 58. That same day, the caseworker contacted a Rabbi engaged by ACS, who was asked to assist the agency to encourage plaintiffs to voluntarily surrender their daughter to ACS. ¶¶ 59-61. Plaintiffs refused to do so. ¶ 62.

Following H.K.'s hospitalization, ACS visited and inspected plaintiffs' home. ¶ 74. On February 9, 2017, plaintiffs' daughter contracted pneumonia and was hospitalized. ¶¶ 89-103. On February 28, 2017, ACS summoned plaintiffs to Family Court, claiming plaintiffs had fabricated H.K.'s pneumonia diagnosis. ¶ 104. Defendant Ben Darvil Jr., a New York State Family Court Judge, appointed Sarah Kleinbart's father as guardian for H.K. ¶ 106. Judge Darvil also ordered plaintiffs to follow Dr. Stein's orders regarding their daughter's medical care. ¶ 109.

On March 15, 2017, Dr. Stein informed the Family Court that plaintiffs' daughter's feeding tube was unnecessary. ¶ 125. Plaintiffs had the feeding tube removed by Dr. Stylianos, but Dr. Stein told ACS that plaintiff Sarah Kleinbart had removed the feeding tube without her permission. ¶¶ 128-133. On June 12, 2017, plaintiffs requested that Judge Darvil remove Dr. Stein as their daughter's pediatrician. ¶ 137. The request was granted. Id. Plaintiffs and Judge Darvil chose Dr. Robert Kadar as their daughter's new pediatrician. Id.

On September 1, 2018, plaintiffs moved with their daughter from Brooklyn, New York to Monsey, New York in Rockland County. ¶ 152. Plaintiffs allege that ACS “fabricated a claim” that plaintiffs were not permitted to move their daughter to Rockland County. ¶ 161. On October 15, 2018, ACS took H.K. from the Kleinbarts on Judge Darvil's order. ¶¶ 164, 168. Plaintiffs' daughter was taken to an ACS center in Manhattan. ¶ 173.

On October 17, 2018, the Family Court requested a list of family members with whom plaintiffs' daughter could be placed. ¶ 177. However, while plaintiffs were compiling a list, Judge Darvil informed plaintiffs that their daughter was being placed with defendants David^[2] and Jennifer Steinberg. Id. A few weeks later, David and Jennifer Steinberg obtained orders of protection against plaintiffs. ¶ 184. On October 19, 2018, plaintiffs met with defendant Ohel Children's Home and Family Services (“Ohel”) and were informed by defendants Amanda Katz and Jennifer Steinberg that Ohel would oversee their daughter's foster care. ¶ 189.

After an April 22, 2019, Passover visit for plaintiffs and their daughter, ACS suspended all contact between plaintiff Sarah Kleinbart and her daughter, telling plaintiffs they were not permitted to speak Yiddish. ¶¶ 209-210. At a hearing on August 9, 2019, the Court prohibited plaintiffs from speaking or writing about their daughter. ¶ 219.

The Court takes judicial notice that on March 25, 2020, the Family Court suspended plaintiffs' visits with H.K. ECF No. 37-2, ¶ 11. On May 10, 2021, Judge Darvil issued a decision and order finding that plaintiffs had neglected their daughter H.K.; plaintiffs' application for the return of custody pursuant to Family Court Act § 1028 was denied. Id. ¶ 14. On May 12, 2021, H.K. was placed in ACS custody. Id. ¶ 15. The Family Court scheduled a Permanency Hearing to determine whether plaintiffs' daughter should remain in foster care for November 16, 2021; that hearing was adjourned to February 15, 2022. Id. ¶ 16. Another permanency hearing is scheduled for August 9, 2022.^[3]

PROCEDURAL HISTORY

Plaintiffs commenced this pro se action in the Southern District of New York on April 14, 2021, on behalf of themselves and H.K., their minor daughter. ECF No. 1. The case was transferred to the Eastern District on April 20, 2022,^[4] and summonses were issued May 14, 2022. ECF No. 8. By Order dated July 1, 2021, the Court informed plaintiffs that they could not represent their daughter in this action and that in order to pursue H.K.'s claims they must retain an attorney to represent H.K. ECF No. 19.

Defendants^[5] requested a premotion conference to move to dismiss the complaint, ECF Nos. 20, 21, 24, which was held on November 3, 2021. At the conference, the Court granted plaintiffs' request to file an amended complaint. ECF No. 27. Plaintiffs filed their Amended Complaint on December 1, 2021. ECF No. 29. Defendants, David A. Hansell, Amanda G. Katz, New York Administration for Children's Services, New York City (collectively “the City defendants”); Malkie Bobker, David and Jennifer Steinberg, Ohel Children's Home & Family Services (collectively “the Ohel defendants”);^[6] Ben Darvil, and Rivka Stein; all filed their instant motions to dismiss, ECF Nos. 35, 36, 37, 39, 52; plaintiffs opposed defendants' motions to dismiss, ECF No. 49; and defendants have replied. ECF Nos. 50, 51, 57, 59.

DISCUSSION

Plaintiffs' Amended Complaint asserts fifteen claims against defendants including civil rights claims under §1983 and §1985, as well as claims under RICO and state law. Plaintiffs allege that defendants conspired to remove plaintiffs' daughter H.K. from their custody and to place her with defendants David and Jennifer Steinberg as part of a scheme to profit from the Title IV-E federal funding program.

I. Standard of Review

The standards for a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and for a motion to dismiss for failure to state a claim under Rule 12(b)(6) are substantively identical. Moore v. PaineWebber, Inc., 189 F.3d 165, 169 n.3 (2d Cir. 1999). However, on a motion to dismiss under 12(b)(1), the party invoking the court's jurisdiction bears the burden of proof to show that subject matter jurisdiction exists, while the movant bears the burden of proof on a motion to dismiss under Rule 12(b)(6). Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); McCray v. Lee, No. 16 CV 1730, 2017 WL 2275024, at *2 (S.D.N.Y. May 23, 2017).^[7] A case must be dismissed for lack of subject matter jurisdiction when the Court “lacks the statutory or constitutional power to adjudicate it.” Makarova, 201 F.3d at 113 (citing (Fed. R. Civ. P. 12(b)(1)). A plaintiff must prove the existence of subject matter jurisdiction by a preponderance of the evidence. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002)).

A court reviewing a motion to dismiss must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Bell Atl Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); In re NYSE Specialists Sec. Litig., 503 F.3d 89, 91 (2d Cir. 2007); Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d. Cir. 2002). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, federal courts may take judicial notice of state court decisions. See Rates Tech. Inc. v. Speakeasy, Inc., 685 F.3d 163, 166 n.3 (2d Cir. 2012) (quoting Global Network Commc'ns, Inc. v. City of New York, ...