UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK mere ee es ee ee se re ee eee es eee ee eee ee XX VANDYKE JOHNSON, : Plaintiff, : -against- : MEMORANDUM DECISION : AND ORDER THE CITY OF NEW YORK, DIANA ALAMA, : CPS Worker, SHEENA BLAISE, CPS Worker, and: 20 Civ. 3083 (GBD) (BCM) DAVID A. HANSELL, Commissioner of the : Administration of Child Services, Defendants. : eee eee eee ee ee eee ee -X GEORGE B. DANIELS, United States District Judge: Pro se Plaintiff Vandyke Johnson brings this action against Defendants the City of New York, Diana Alama, a Child Protective Services (“CPS”) worker, Sheena Blaise, another CPS worker, and David A. Hansell, the Commissioner of the New York City Administration of Child Services, alleging various violations of federal and state law stemming from a child services matter involving Plaintiff and his family. (See generally Third Amended Complaint (“TAC”), ECF No. 72.) Defendants move to dismiss Plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Notice of Mot., ECF No. 76, at 1.) Before this Court is Magistrate Judge Barbara C. Moses’s August 12, 2022 Report and Recommendation (the “Report”), recommending that Defendants’ motion be granted and this action be dismissed. (See generally, Report, ECF No. 91.) Magistrate Judge Moses advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (/d at 31.) Plaintiff filed timely objections on August 22, 2022 and supplemental objections on September 8, 2022. (PI.’s Objs. to Mag. J..s R. & R., ECF No. 92

(“PI.’s Objs.”); Pl.’s Supp. Objs. to Mag. J.’s R. & R., ECF No. 95.)'! Subsequently, on September 15, 2022, Defendants filed a response to Plaintiff's initial and supplemental objections. (Defs.’ Resp. to Pl.’s Objs. to Mag. J.’s R. & R. (“Defs.’ Resp.”), ECF No. 96.) Having reviewed Magistrate Judge Moses’s Report, Plaintiffs objections, and Defendants’ response, this Court ADOPTS the Report in full. Accordingly, Defendants’ motion to dismiss is GRANTED and this action is dismissed. I. FACTUAL BACKGROUND? On August 22, 2019, Plaintiff was arrested on charges relating to “defamatory” allegations of child abuse after his step-daughter “A.O.M.” filed a police report accusing Plaintiff of violently grabbing and dragging her across her bedroom. (Report at 1-2; TAC 4 14.) A.O.M. was taken to the police station and assisted in reporting the incident by her biological mother, Mercedes Johnson, with whom Plaintiff also shares another minor child, “V.J.” (Report at 1-2.) The day after the alleged incident, Plaintiff was arraigned on charges of assault in the third degree, acting in a manner injurious to a child, and related crimes. (/d. at 2.) The arraigning court also issued a stay-away order of protection prohibiting Plaintiff from contacting A.O.M. or V.J. (d.) On August 28, 2019, the Administration of Child Services (“ACS”) filed a neglect petition against Plaintiff in Family Court based, according to Plaintiff, on “information from the Plaintiff's August 23, 2019 arrest, that produced no evidence, only false allegations.” (Report at 3; TAC { 13.) The neglect petition accused Plaintiff of inflicting “excessive corporal punishment” on A.O.M. and alleged that A.O.M. and her younger sister (Plaintiff’s biological daughter, V.J.) were

Plaintiff's Supplemental Objections purport to provide support for a false arrest claim. The operative complaint does not include a cause of action for false arrest. * The relevant factual and procedural background is set forth in greater detail in the Report and is incorporated by reference herein.

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“neglected children” within the meaning of the law. (Report at 3.) Defendant Alama was the Child Protective Services worker assigned to the investigation into A.O.M.’s allegations against Plaintiff and she verified the petition. (/d. at 2-3.) Plaintiff alleges that “defendants did not provide the family court of any evidence to support their allegations,” and failed to include a report from another Child Protective Services worker, identified as “CPS Wade,” that exonerated the Plaintiff of the abuse allegations. (/d. at 9.) Shortly after ACS filed the petition, the Family Court issued a temporary order of protection prohibiting Plaintiff from having any contact with A.O.M. or V.J. except in the presence of ACS or certain approved relatives, and barring him from the girls’ home and schools until February 24, 2020. (/d. at 5-6.) On November 25, 2019, the criminal charges arising out of the August 22, 2019 incident were dismissed. (Report at 6.) Presumably under the assumption that the criminal charges and order of protection went hand-in-hand, once the charges were dismissed, Plaintiff's criminal defense attorneys advised him that there was no longer any order of protection in place. (/d.) In actuality, the family court order remained in effect. U/d.) Believing that no order of protection remained, however, Plaintiff returned to his children’s residence. (/d.) After seeing Plaintiff there during a wellness visit, Defendant Alama called the police. (/d.) Plaintiff was arrested and spent eighteen hours in jail. (/d.) The criminal case stemming from Plaintiff's November 25, 2019 violation of the order of protection was dismissed on March 5, 2020 on speedy trial grounds. (Report at 7.) On February 12, 2020, Plaintiff was again arrested, this time outside of V.J.’s school for “criminal contempt” after the school principal “falsely called the police and falsely stated to the NYPD that Plaintiff was violating the Family Court’s order.” (/d. at 7-8.) That case was dismissed on May 12, 2020. (Ud. at 8.) On August 3, 2021, ACS withdrew the neglect petition against Plaintiff. (/d.)

On April 16, 2020, Plaintiff initiated the instant suit, alleging that his constitutional rights were violated by the Defendants in connection with his arrests and the family court proceedings. Plaintiff alleges that, “because of the Defendant of City of New York [sic] false allegations, the Plaintiff was forced out of his home subject to multiple arrests, embarrassment, defamation, and alienation of family.” (Report at 8, 10.) On September 30, 2021, this Court adopted Magistrate Judge Barbara Moses’s August 23, 2021 Report and Recommendation that Plaintiff's Second Amended Complaint (“SAC”) be dismissed insofar as it asserted claims on behalf of Plaintiff's minor children. See Johnson v. City of New York, 2021 WL 4896477, at *6 (S.D.N.Y. Aug. 23, 2021), report and recommendation adopted, 2021 WL 4479384 (S.D.N.Y. Sept. 30, 2021); (ECF No. 71). After Plaintiff filed the operative Third Amended Complaint, (ECF No. 72), which Defendants now move to dismiss, Magistrate Judge Moses issued an Order excising certain claims alleged therein as barred by this Court’s September 30, 2021 ruling. (Report at 10.) Il. LEGAL STANDARDS A. Reports and Recommendations “Although a magistrate may hear dispositive pretrial motions, he may only submit proposed findings of fact and recommendations for disposition of the matter.” Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). The district court must review de novo the portions of a magistrate judge’s report and recommendation to which a party properly objects. 28 U.S.C. § 636(b)(1)(C). However, the district court need not conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Instead, it is sufficient that the district court “arrive at its own, independent conclusion” regarding those portions of the report to which objections are made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (citation omitted).

Portions of a magistrate judge’s report to which no or “merely perfunctory” objections are made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (citations omitted). The clear error standard also applies if a party’s “objections are improper—because they are ‘conclusory,’ ‘general,’ or ‘simply rehash or reiterate the original briefs to the magistrate judge.’” Stone v. Comm’r of Soc. Sec., No. 17 Civ. 569 (RJS), 2018 WL 1581993, at *3 (S.D.N.Y. Mar. 27, 2018) (citation omitted). Clear error is present when “upon review of the entire record, [the court is] ‘left with the definite and firm conviction that a mistake has been committed.’” United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation omitted). “A magistrate’s ruling is contrary to law if it ‘fail[s] to apply or misapplies relevant statutes, case law, or rules of procedure[.]’” Thai Lao Lignite (Thai.) Co. v. Gov’t of Lao People’s Democratic Republic, 924 F. Supp. 2d 508, 512 (S.D.N.Y. 2013) (first alteration in original) (citation omitted). B. Rule 12(b)(6) Failure to State a Claim “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must demonstrate “more than a sheer possibility that a defendant has acted unlawfully”; stating a facially plausible claim requires the plaintiff to plead facts that enable the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Jd The factual allegations pled must therefore “be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted). A district court must first review a plaintiffs complaint to identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” [gbal, 556 U.S. at 679. The court then considers whether the plaintiff s remaining well-pleaded factual allegations, assumed to be true, “plausibly give rise to an

entitlement to relief.” Ja.; see also Targum v. Citrin Cooperman & Co., No. 12 Civ. 6909 (SAS), 2013 WL 6087400, at *3 (S.D.N.Y. Nov. 19, 2013). In deciding the 12(b)(6) motion, the court must also draw all reasonable inferences in the non-moving party’s favor. See N.J. Carpenters Health Fund y. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 119-20 (2d Cir. 2013). C. Pro Se Litigants Submissions of pro se litigants are read liberally and interpreted to “raise the strongest arguments that they suggest.” Triestman y. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). Courts must also “afford pro se plaintiffs ‘special solicitude’ before granting motions to dismiss or motions for summary judgment.” Quadir v. N.Y. State Dep’t of Labor, 39 F. Supp. 3d 528, 536 (S.D.N.Y. 2014) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). I. DEFENDANTS’ MOTION TO DISMISS IS GRANTED A. Plaintiff Continues to Lack Standing to Assert Claims on Behalf of His Children In the operative Third Amended Complaint, Plaintiff predicates several of his claims on allegations that Defendants unconstitutionally performed an “invasive, non-routine nude examination” of his children without parental consent. (See e.g., TAC § 96-101.) As noted above, this Court has already held that Plaintiff may not vicariously assert a constitutional search and seizure claim on behalf of his children. See Johnson, 2021 WL 4896477, at *6; (ECF No. 71); see also Tenenbaum vy. Williams, 193 F.3d 581, 593 n. 13 (2d Cir. 1999) (“Fourth Amendment rights are personal rights, which, like some other constitutional rights, may not be vicariously asserted”) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)); Southerland v. City of New York, 667 F.3d 87, 103 (2d Cir. 2012) (“A Fourth Amendment child-seizure claim belongs only to the child, not to the parent.”); Hunter v. Child Protective Servs. of Niagara Cnty., No. 20

& Civ. 18 (LJV) (MJR), 2021 WL 2368024, at[*14] (W.D.N.Y. Feb. 22, 2021), report and recommendation adopted sub nom. Hunter v. McMahon, 2021 WL 1996772 (W.D.N.Y. May 19, 2021) (applying identical principle to New York State search and seizure claim). Notwithstanding this Court’s prior ruling, the TAC continues to assert claims on behalf of Plaintiff's children, (TAC 83-86, 96-101, 115), and the Court is aware of no change in the law that makes them now colorable—a point Plaintiff concedes in his objections, (Pl.’s Objs. at 6). Plaintiff's TAC is therefore dismissed insofar as it is predicated on an alleged unlawful search and seizure of Plaintiffs minor children.? B. Plaintiff's Malicious Prosecution Claim is Dismissed Plaintiff's First Cause of Action is based on his claim that Defendants maliciously prosecuted him when they filed the neglect petition against him in family court. In her Report, Magistrate Judge Moses concluded that Plaintiff may advance a malicious prosecution claim arising from his family court proceedings, but that the claim nevertheless fails for pleading deficiencies. (Report at 17-25.) As an initial matter, neither Plaintiff nor Defendants objected to that portion of the Report which found that Plaintiff may advance a malicious prosecution claim premised on a civil, family court proceeding and, seeing no clear error in that ruling, this Court adopts it. Plaintiff does object, however, to the Report’s recommendation that his claim be dismissed for his failure to adequately plead a lack of probable cause or malice. Accordingly, this Court reviews those issues de novo.

malicious prosecution and failure to intervene (which he also alleges to be violations of his Fourth and Fourteenth Amendment rights). This claim is therefore dismissed, as Plaintiff has not adequately pleaded a plausible cause of action distinct from his remaining claims. See Brandon vy. City of New York, 705 F.Supp.2d 261, 264, 268-69 (S.D.N.Y. 2010) (dismissing “catchall” claim for violation of “federal civil rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments” for failing to “set forth a plausible cause of action” or provide fair notice). D. Plaintiff's Monell Claim is Dismissed Plaintiff's sixth cause of action is for Monell liability based on deliberately indifferent policies, practices, and customs. (TAC {J 108-16). As an initial matter, Plaintiff's Monell claim must be dismissed because, for the reasons discussed above, he has failed to allege any underlying constitutional violation. See Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) (Monell does not provide an independent separate cause of action against a municipality; rather, “it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation”). Even if Plaintiff had sufficiently pled a constitutional violation, he still has not plausibly alleged a claim for Monell liability. In order to maintain a 42 U.S.C. § 1983 action against a municipal defendant, a plaintiff must identify a municipal “policy or custom” from which the alleged injury arose. Monell v. Dep’t of Social Svcs., 436 U.S. 658, 694 (1978). One of the ways courts have found allegations sufficient to establish a policy or custom is when “an act performed pursuant to a custom that has not been formally approved by an appropriate decisionmaker ... is so widespread as to have the force of law.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997); see also Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (noting that “persistent and widespread” practices of city officials may constitute a municipal custom). A plaintiff may also plead the existence of a custom or policy based on governmental reports documenting constitutional deficiencies or misconduct, Felix v. City of New York, 344 F. Supp. 3d 644, 658 (S.D.N.Y. 2018) (collecting cases), or “by citing to complaints in other cases that contain similar allegations,” Gaston v. Ruiz, No. 17 Civ. 1252 (NGG) (CLP), 2018 WL 3336448, at *6 (E.D.N.Y. July 6, 2018). Finally, municipal liability can also be based on a showing of deliberate indifference to a recurring situation “where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates’ unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). As the Report correctly notes, (see Report at 28), the TAC does none of these things. While Plaintiff makes conclusory allegations that the City of New York developed and maintained policies and customs exhibiting “deliberate indifference” to the rights of citizens, including by enacting a policy and custom of “filing false neglect petitions, breaking up families, and having good mothers and fathers arrested,” as well as interviewing and forcing children into medical examinations without parental consent, (TAC §§ 113, 115), he does not offer any examples of similar misconduct in other cases. As such, Plaintiff has offered no facts from which it can be inferred that the conduct complained of is “widespread,” “pervasive,” or part of a “pattern.” His Monell claim therefore fails. E. This Court Declines to Exercise Supplemental Jurisdiction Over Plaintiff's State Law Claims Having dismissed claims over which this Court has original jurisdiction, this Court adopts the Report’s recommendation and declines to exercise supplemental jurisdiction over Plaintiff's claims under Third, Fourth and Fifth Causes of Action brought under state law. (Report at 29.)

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IV. CONCLUSION Plaintiff's objections are OVERRULED and Magistrate Judge Moses’s Report is ADOPTED in full. Defendant’s motion to dismiss, (ECF No. 76), is GRANTED.’ The Clerk of the Court is directed to close the motion accordingly.

Dated: September 21, 2022 New York, New York SOARDERED. CAG, & Dai 4 R . DANIELS United States District Judge

’ This Court agrees with Magistrate Judge Moses’s recommendation that leave to amend should be denied, as Plaintiff has already had multiple opportunities to correct his pleading deficiencies. (Report at 29-30.)