22-845-cv
`Dabah v. Franklin
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`SUMMARY ORDER
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`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.
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`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
`22nd day of May, two thousand twenty-three.
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`PRESENT:
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`JOHN M. WALKER, JR.,
`RICHARD C. WESLEY,
`JOSEPH F. BIANCO,
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`Elliot Dabah,
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`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,
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`Circuit Judges.
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`Plaintiff-Appellant,
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`v.
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`22-845-cv
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`Defendants-Appellees.
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`FOR PLAINTIFFS-APPELLANTS:
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`FOR DEFENDANTS-APPELLEES:
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`CAROLYN A. KUBITSCHEK, Lansner &
`Kubitschek, New York, NY, (Elliot
`Shields, on the briefs), Roth & Roth,
`LLP, New York, NY.
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`LORENZO DI SILVIO (Richard Dearing &
`Elina Druker, on the brief) for Hon.
`Sylvia O. Hinds-Radix, Corporation
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`Counsel of the City of New York, New
`York, NY.
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`Appeal from the judgment of the United States District Court for the Southern District of
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`New York (Carter, J.).
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`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
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`DECREED that the judgment of the district court is AFFIRMED.
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`Plaintiff-appellant Elliot Dabah appeals from the judgment of the district court, entered on
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`March 31, 2022, granting the motion to dismiss filed by defendants-appellants Nicole Franklin,
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`Rica Hazelwood, Sharon Atkins, Myrtle Green, Felix Dumay, and the City of New York. Dabah
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`is the father of two minor children from a previous marriage. Under the divorce decree, his former
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`wife was awarded “sole legal and physical custody of the children,” but the children resided with
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`Dabah every other weekend, Tuesday evenings, and on certain holidays and other occasions. Joint
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`App’x at 63. The decree also provided that decisions regarding the children’s medical treatment,
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`education, and religious instruction be made jointly by Dabah and his former wife. In December
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`2016, New York City’s Administration for Children’s Services (“ACS”) launched an investigation
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`after receiving allegations that Dabah abused and mistreated his children. As a result of that
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`investigation, ACS commenced ex parte child neglect proceedings against Dabah in the Family
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`Court of the State of New York (the “Family Court”). The Family Court issued an ex parte order
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`that barred Dabah from having any contact with his children and from participating in the
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`determination of their medical decisions. Dabah contends that the investigation and neglect
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`proceedings were instigated by his former wife, in an attempt to remove him from her and the
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`children’s lives, and that defendants knew or should have known that the allegations were false.
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`Ultimately, after a trial in the Family Court, all charges against Dabah were dismissed and he
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`regained access to his children.
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`2
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`Dabah then brought this action against individual ACS employees and the City of New
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`York under 42 U.S.C. § 1983, alleging violations of substantive and procedural due process,
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`malicious prosecution, and various state law claims. The district court dismissed Dabah’s federal
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`claims for failure to state a claim and declined to exercise supplemental jurisdiction over the
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`remaining state law claims. We assume the parties’ familiarity with the facts, procedural history,
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`and issues on appeal, to which we refer only as necessary to explain our decision to affirm.
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`DISCUSSION
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`We review de novo the grant of a motion to dismiss under Rule 12(b)(6), Nunes v. Cable
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`News Network, Inc., 31 F.4th 135, 140 (2d Cir. 2022), assuming the truth of facts alleged in the
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`complaint and drawing all inferences in the plaintiff’s favor, Biro v. Condé Nast, 807 F.3d 541,
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`544 (2d Cir. 2015). We may also consider documents attached to the complaint as exhibits,
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`incorporated by reference therein, or integral to the complaint. United States ex rel. Foreman v.
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`AECOM, 19 F.4th 85, 106 (2d Cir. 2021), cert. denied, 142 S. Ct. 2679 (2022). To survive
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`dismissal, the pleadings must contain “enough facts to state a claim to relief that is plausible on its
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`face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), i.e., to allow the court reasonably to
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`infer that the defendant is liable for the misconduct alleged, see Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009). In making that assessment, courts “are not bound to accept as true a legal conclusion
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`couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S.
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`265, 286 (1986)). Moreover, we are “free to affirm an appealed decision on any ground which
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`finds support in the record, regardless of the ground upon which the trial court relied.” Garcia v.
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`Hartford Police Dep’t, 706 F.3d 120, 130 (2d Cir. 2013) (per curiam) (quoting Leecan v. Lopes,
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`893 F.2d 1434, 1439 (2d Cir. 1990)).
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`3
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`I.
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`Substantive and Procedural Due Process
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`Dabah concedes that his former wife has sole legal custody of the children. However,
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`Dabah retained visitation rights and he “and his ex-wife jointly made decisions about the medical
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`treatment, education, and religious instruction of [the children].” Joint App’x at 15. Dabah
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`contends that he has a constitutionally protected liberty interest in these visitation and decision-
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`making rights, and that defendants interfered with those rights by, among other things, failing to
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`properly investigate the neglect allegations, continuing meritless neglect proceedings, and denying
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`him a pre-termination and prompt post-termination hearing. Dabah asserts that this alleged
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`interference constitutes a violation of his substantive and procedural due process rights.
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`As an initial matter, we have never resolved the question of whether a parent who does not
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`have legal custody of a child nevertheless has a protected liberty interest in his or her visitation
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`rights and/or right to participate in certain decisions regarding the child. See Uwadiegwu v. Dep’t
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`of Soc. Servs. of the Cnty. of Suffolk, 639 F. App’x 13, 15 (2d Cir. 2016) (summary order) (noting
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`that this Court has never resolved whether there is a constitutionally protected liberty interest in a
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`non-custodial parent’s visitation rights with children). However, we need not reach that issue here
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`because we conclude that Dabah’s substantive and due process claims fail, even assuming he has
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`such a liberty interest.
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`A. Substantive Due Process
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`“To state a claim for a violation of this substantive due process right of custody, a plaintiff
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`must demonstrate that the state action depriving him of custody was so shocking, arbitrary, and
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`egregious that the Due Process Clause would not countenance it even were it accompanied by full
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`procedural protection.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 275 (2d Cir. 2011)
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`(internal quotation marks and citation omitted). Assuming Dabah has a constitutionally protected
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`4
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`liberty interest in his rights as a non-custodial parent, we see no reason why a different standard
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`would apply to his rights. Under that standard, we have emphasized that “[a]lthough parents enjoy
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`a constitutionally protected interest in their family integrity, this interest is counterbalanced by the
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`compelling governmental interest in the protection of minor children, particularly in circumstances
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`where the protection is considered necessary as against the parents themselves.” Wilkinson ex rel.
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`Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation marks and citations
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`omitted). Thus, “[t]his Circuit has adopted a standard governing case workers which reflects the
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`recognized need for unusual deference in the abuse investigation context[; a]n investigation passes
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`constitutional muster provided simply that case workers have a ‘reasonable basis’ for their findings
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`of abuse.” Id. Of course, “[c]ase workers cannot be free to substantiate a claim of abuse, for
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`instance, by ignoring overwhelming exculpatory information or by manufacturing false evidence.”
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`Id.
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`Here, the removal of Dabah’s children from his part-time care did not occur until after ACS
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`obtained a Family Court order permitting such removal. That order was based on a neglect
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`proceeding in which ACS alleged, among other things, that Dabah’s two children gave separate
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`statements to a case worker and therapist reporting that he used corporal punishment on them.
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`Although the amended complaint alleges that those statements to ACS were false, the amended
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`complaint contains no specific allegations that ACS fabricated the existence of those statements in
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`its petitions to the Family Court. Instead, the amended complaint merely contains conclusory
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`statements of fabrication that are insufficient to support a plausible substantive due process claim.
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`See Iqbal, 556 U.S. at 678 (holding that a complaint is insufficient if it contains only “labels and
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`conclusions[,] . . . a formulaic recitation of the elements of a cause of action[, or] . . . naked
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`assertions devoid of further factual enhancement” (alteration adopted) (internal quotation marks
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`5
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`and citations omitted)); Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014) (holding that the court is
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`not “required to accept as true allegations that are wholly conclusory”). Similarly, the amended
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`complaint makes no allegations of specific exculpatory information that was withheld from the
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`Family Court other than an assertion that Dabah’s daughter showed him “great affection” during
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`one visit by a case worker (purportedly undermining any claim of corporal punishment) and, upon
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`information and belief, that the daughter had an unspecified favorable conversation about him
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`during a second interview with a case worker (for which he was not present). In short, the
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`allegations in the amended complaint do not support a plausible claim that defendants’ conduct
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`was shocking, arbitrary, or egregious. Therefore, the district court correctly held that the amended
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`complaint failed to state a substantive due process claim.
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`B. Procedural Due Process
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`Dabah argues that defendants violated his procedural due process rights by failing to
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`provide: (1) a hearing before his visitation rights were terminated; and (2) a prompt hearing after
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`his visitation rights were terminated. We consider each argument in turn.
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`The district court held that, as a non-custodial parent, Dabah was not entitled to any type
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`of pre-termination hearing. We need not (and do not) address that issue because we hold that, even
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`assuming arguendo that such a right exists, the pre-termination claim against the individual
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`defendants is defeated by qualified immunity.
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`The doctrine of qualified immunity shields state officials from liability for civil damages
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`unless their conduct violated a “clearly established” statutory or constitutional right at the time of
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`the challenged conduct. Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014). “In determining
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`whether a right is clearly established at the time of the conduct in question, we can consider
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`Supreme Court decisions and our own decisions, as well as a consensus of cases of persuasive
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`6
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`authority such that a reasonable officer could not have believed that his actions were lawful.”
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`Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020) (internal quotation marks omitted).
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`Dabah points to no case authority clearly establishing the right of non-custodial parents to
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`such a pre-termination hearing. Instead, Dabah relies on decisions addressing custodial parents’
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`procedural due process rights. However, as we have previously held, “[t]here is no authority for
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`the proposition that . . . a non-custodial parent ha[s] a clearly established right to a pre-termination
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`hearing before suspension of whatever visitation rights she might have retained.” Young v. County
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`of Fulton, 160 F.3d 899, 903 (2d Cir. 1998). Dabah identifies no decision since Young by the
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`Supreme Court, this Court, or by a consensus of other courts, that has clearly established that right.
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`Accordingly, qualified immunity shields the individual defendants from Dabah’s pre-termination
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`procedural due process claim.
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`Likewise, Dabah fails to state a plausible claim that defendants denied him a prompt
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`post-termination hearing. It is clear from the amended complaint that Dabah exercised his right to
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`post-removal review under Section 1028 of the Family Court Act and obtained a post-deprivation
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`hearing, after which the Family Court dismissed the neglect case against him. Although Dabah
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`alleges that his due process rights were denied because the neglect proceedings took approximately
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`twenty months to be completed, there is a “presumption of regularity that we attribute to state
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`judicial proceedings,” Southerland v. City of New York, 680 F.3d 127, 154 (2d Cir. 2012), and the
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`delay in the proceedings while the case was pending in Family Court, and the alleged fault of
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`defendants in causing that delay, do not overcome that presumption. Thus, the district court
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`properly dismissed Dabah’s procedural due process claim based on his post-termination hearing.
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`7
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`II. Malicious Prosecution
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`The amended complaint also asserts a malicious prosecution claim for the “seizure” of the
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`children by the neglect proceeding brought in Family Court. We have held that “[a] Fourth
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`Amendment child-seizure claim belongs only to the child, not to the parent, although a parent has
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`standing to assert it on the child’s behalf.” Southerland, 680 F.3d at 143; see also Smith v. Tkach,
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`844 F. App’x 414, 416 (2d Cir. 2021) (summary order) (“[Plaintiff] lacks standing to assert a
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`Fourth Amendment claim based on the seizure of his children because his personal rights were not
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`violated.”); but see Walker v. City of New York, 621 F. App’x 74, 76 (2d Cir. 2015) (summary
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`order) (noting that “the law in our Circuit is unsettled as to whether child removal proceedings can
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`give rise to a federal claim for malicious prosecution of a parent”).
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`Here, Dabah does not assert the malicious prosecution claim on behalf of the children, but
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`rather on his own behalf. Although we read the language in Southerland to entirely foreclose
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`Dabah from asserting this claim on his own behalf, the district court correctly determined, at a
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`minimum, that the individual defendants were entitled to qualified immunity on this claim because
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`we have never recognized any such independent Fourth Amendment right of the parent under these
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`circumstances. See Terebesi, 764 F.3d at 230.1
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`III. Monell Liability
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`Dabah also failed to plausibly state a municipal liability claim against the City under
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`Section 1983. A “municipality can be held liable under Section 1983 if the deprivation of the
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`1 The amended complaint also makes a conclusory reference to Dabah having been denied his right to a
`fair trial in the context of his malicious prosecution claim. Defendants argue that the claim is unpreserved
`because it was not clearly delineated as a separate claim in the amended complaint, and Dabah never alerted
`the district court that he intended to assert such a claim. We agree with defendants that the amended
`complaint did not contain a “short and plain statement” of that claim. Fed. R. Civ. P. 8(a)(2). In any event,
`a fair trial claim would necessarily be based on the same conclusory allegations of fabrication as the
`substantive due process claim and, thus, would likewise fail to survive a motion to dismiss. See Lewis v.
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`8
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`plaintiff’s rights under federal law is caused by a governmental custom, policy, or usage of the
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`municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell v.
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`Dep’t of Soc. Servs., 436 U.S. 658 (1978)). “Absent such a custom, policy, or usage, a municipality
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`cannot be held liable on a respondeat superior basis for the tort of its employee.” Id. Dabah’s
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`Monell claim principally sounds in substantive due process. Specifically, he alleges that the City
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`has a practice of removing children from their parent’s custody without constitutionally adequate
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`investigations. However, because we have affirmed the district court’s determination that Dabah
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`failed to state a substantive due process claim, the Monell claim based on that alleged constitutional
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`violation also must fail. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Monell
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`does not provide a separate cause of action for the failure by the government to train its employees;
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`it extends liability to a municipal organization where that organization’s failure to train, or the
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`policies or customs that it has sanctioned, led to an independent constitutional violation.”). Any
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`Monell claim based on the lack of a prompt post-hearing procedure also fails because of the lack
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`of an underlying constitutional violation. Furthermore, to the extent Dabah’s amended complaint
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`asserts Monell claims against the City that sound in procedural due process (based on the lack of
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`a pre-deprivation hearing) or malicious prosecution (as to which we found qualified immunity for
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`the individual defendants), he has failed to plead sufficient factual allegations to support a plausible
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`inference that the City has a policy or practice that caused those alleged violations.
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`*
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`*
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`*
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`City of New York, 591 F. App’x 21, 22 (2d Cir. 2015) (summary order) (“[B]ecause [plaintiff] has provided
`no detail regarding the evidence purportedly fabricated by the defendant officers, he has not stated a
`plausible claim for denial of the right to a fair trial.”).
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`We have considered Dabah’s remaining arguments and conclude that they are without
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`merit. For the foregoing reasons, we AFFIRM the judgment of the district court.2
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`FOR THE COURT:
`Catherine O’Hagan Wolfe, Clerk of Court
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`2 At oral argument, and in a letter filed pursuant to Federal Rule of Appellate Procedure 28(j), Dabah
`requested that we remand with instructions that he be given leave to replead. However, Dabah concedes
`he did not request leave to amend his amended complaint before the district court. “While leave to amend
`under the Federal Rules of Civil Procedure is ‘freely granted,’ no court can be said to have erred in failing
`to grant a request that was not made.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (quoting Fed.
`R. Civ. P. 15(a)). To the extent that Dabah nevertheless seeks to have this Court remand to allow him to
`replead, we decline to do so given the absence of such a request in the district court. See In re Nortel
`Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (per curiam) (noting the “well-established
`general rule that an appellate court will not consider an issue raised for the first time on appeal” (internal
`quotation marks and citations omitted)).
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`10
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