20-714-cv
Schvimmer v. Office of Ct. Admin.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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 3rd day of May, two thousand twenty-one.
PRESENT:
ROBERT D. SACK,
RICHARD C. WESLEY,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
Israel Schvimmer, Miriam Schvimmer,
Plaintiffs-Appellants,
v. 20-714
The Office of Court Administration; NYC Police
Det. Gwernen Buckner, of the 79th Precinct;
New York State Office of Children and Family
Services; David A. Hansell (Reg. #1950179),
individually and as NYC Commissioner of the
Administration for Children’s Services;
Corporation Counsel of the City of New York;
Rebecca Elizabeth Szewczuk (Reg. #4686903),
individually and as Attorney for NYC-ACS
Kings County Family Court and Attorney for
Corporation Counsel of the City of New York;
Ian Sangenito (Reg. #3035235), individually and
as Attorney for NYC-ACS Kings County Family
Court; John Anthony Morgano (Reg. #4558565),
individually and as Attorney for NYC-ACS, and
as Attorney for Corporation Counsel of the City
of New York; Kathy Ann Best, individually and
as Caseworker for NYC-ACS; Carmalita Cyrus,
individually and as Supervisor #1 for NYC-
ACS; Karen McNeely, individually and as
Caseworker for NYC-ACS, Airat Bakara
Adejobi, individually and as a Supervisor for
NYC-ACS; Cecily Francis, individually and as
NYC-ACS Supervisor; Jeanette Vega-Alvarez
(LIC #041405), individually and as NYC-ACS
Supervisor FSU; Beverly Drayton, individually
and as Caseworker for NYC-ACS; Peter Hill,
LCSW (LIC #028238), individually and as
Caseworker for NYC-ACS; Jonathen Caceras,
individually and as Caseworker for NYC-ACS;
Syndia Semexant, individually and as
Caseworker for NYC-ACS; Wanda Fraser;
Christine AKA Lottie Henderson, individually
and as Caseworker for NYC-ACS; Lorek
Grazna, individually and as Caseworker for
NYC-ACS; Chigewe Chisaramokwu,
individually and as Caseworker for NYC-ACS;
Sharon St. Hill, individually and as Caseworker
for NYC-ACS; Nicholas P. Smith, LCSW,
individually and as Caseworker for NYC-ACS;
Emmanuelle Flax, individually and as
Caseworker for NYC-ACS; Harvey S. Jacobs;
Sally Simone Markowitz (Reg. #3986031),
2
individually, Court-Appointed Attorney; Rabbi
Azriel Juda Katz, Liaison for NYC-ACS; Billa
Tessler Bendet, LCSW (LIC #045031),
individually and as Court-appointed Therapist,
Defendants-Appellees. 1
_____________________________________
FOR PLAINTIFFS-APPELLANTS: ISRAEL SCHVIMMER, MIRIAM SCHVIMMER,
pro se, Brooklyn, NY.
FOR DEFENDANTS-APPELLEES: Pedro Morales, New York State Unified
Court System, Office of Court
Administration, New York, NY, for the
Office of Court Administration;
Barbara D. Underwood, Solicitor
General, Steven C. Wu, Deputy
Solicitor General, David Lawrence III,
Assistant Solicitor General, for Letitia
James, Attorney General of the State of
New York, New York, NY, for the New
York State Office of Children and
Families;
Jane L. Gordon, Daniel Matza-Brown,
Assistant Corporation Counsel, for
James E. Johnson, Corporation Counsel
of the City of New York, New York,
NY, for Airat Bakara Adejobi, Kathy
Ann Best, Gwernen Buckner, Jonathen
Caceras, Chigewe Chisaramokwu,
Christine AKA Lottie Henderson,
1 The Clerk of Court is directed to amend the caption as set forth above.
3
Carmalita Cyrus, Beverly Drayton,
Emmanuelle Flax, Cecily Francis,
Wanda Fraser, Lorek Grazna, David A.
Hansell, Karen McNeely, John
Anthony Morgano, Ian Sangenito,
Syndia Semexant, Sharon St. Hill,
Rebecca Elizabeth Szewczuk, Jeanette
Vega-Alvarez, and Corporation
Counsel of the City of New York;
Sally Simone Markowitz, pro se,
Highlands Ranch, CO;
Roland T. Koke, Wilson Elser
Moskowitz Edelman & Dicker LLP,
White Plains, NY, for Peter Hill and
Nicholas P. Smith;
Harvey S. Jacobs, pro se, Brooklyn, NY;
Samantha Velez, Rutherford Christie,
LLP, New York, NY, for Billa Tessler
Bendet.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Kuntz, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is VACATED and the case is
REMANDED for the district court to entertain the plaintiffs’ motion for leave to amend.
4
Appellants Israel and Miriam Schvimmer sued employees of the New York City
Administration for Children’s Services (“ACS”) and others under 42 U.S.C. § 1983, other
federal statutes, and state law. The Schvimmers allege that ACS and other defendants
separated the Schvimmers’ daughter from her family in 2017. Then, over the course of
several years, the defendants denied the Schvimmers a hearing by obtaining nineteen
consecutive extensions of a “temporary order of protection” that kept the Schvimmers
from having contact with their daughter without a finding of danger or unfitness and
without allowing the Schvimmers to speak in their own defense. Instead, the defendants
continued a lengthy process of alleged fact-finding during which the Schvimmers’ other
children were interviewed without their parents’ consent, and their daughter remained
separated from her parents indefinitely.
Although their original complaint was filed pro se, the Schvimmers later retained
an attorney after the defendants filed pre-motion letters seeking dismissal of the
complaint. The attorney sought leave to amend the pro se complaint, but the district court
denied leave. The district court explained that it would not permit amendment while
motions to dismiss were pending. After the motions to dismiss were fully briefed, the
district court dismissed the complaint for failure to state a claim in a summary two-page
order without any analysis of the complaint. In the dismissal order, the district court
again denied leave to amend, reasoning that the Schvimmers should have sought to
5
amend the complaint earlier. The Schvimmers appeal, now proceeding pro se. We
assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
I
We review de novo the dismissal of a complaint for failure to state a claim. Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss under
Rule 12(b)(6), the complaint must plead “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); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). We review a denial of leave to amend for abuse of
discretion. Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012).
“Although [Federal Rule of Civil Procedure] 15(a) provides that leave to amend a
complaint ‘shall be freely given when justice so requires,’ … it is within the sound
discretion of the district court whether to grant or deny leave to amend.” Zahra v. Town
of Southold, 48 F.3d 674, 685 (2d Cir. 1995). A district court may deny leave to amend “for
good reason, including futility, bad faith, undue delay, or undue prejudice to the
opposing party.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014).
In this case, the district court erred by failing to explain its reasons for dismissing
the Schvimmers’ complaint. The Federal Rules of Civil Procedure do not require district
courts to provide reasoning when ruling on Rule 12 motions. See Fed. R. Civ. P. 52(a)(3)
6
(“The court is not required to state findings or conclusions when ruling on a motion under
Rule 12 or 56”). Nevertheless, we have said on numerous occasions that the better practice
is for a district court to explain its reasoning. In Lucas v. Miles, we noted that “a decision
to dismiss stands a better chance on appeal if the appellate court has the benefit of the
district court’s reasoning.” 84 F.3d 532, 535 (2d Cir. 1996). In Watkins v. City of New York,
we explained that while “[w]e do not generally require that district courts set forth in
exhaustive detail their rationale for dismissing actions brought by pro se litigants,”
nevertheless “notions of simple fairness suggest that a pro se litigant should receive an
explanation before his or her suit is thrown out of court.” 768 F. App’x 101, 101 n.1 (2d
Cir. 2019). Cases in which we have affirmed orders that contained little or no reasoning
usually have involved vexatious litigants or patently frivolous claims for which
amendment would not cure any deficiency. See, e.g., Bank v. Alarm.com Holdings, Inc., 828
F. App’x 5, 8 (2d Cir. 2020); Watkins, 768 F. App’x at 102-03. This case does not involve a
vexatious litigant or a complaint that has incurable deficiencies.
The Schvimmers’ pleadings and motion papers in the district court suggest that at
least some claims would have been properly stated if leave to amend had been granted.
For example, the Schvimmers allege that their and their children’s Fourth Amendment
rights were violated when the ACS defendants temporarily seized and interviewed their
children over their objections. We have recognized that parents may assert such claims
7
on their children’s behalf. See Southerland v. City of New York, 680 F.3d 127, 143 (2d Cir.
2012). To establish that a seizure violated the Fourth Amendment, a plaintiff must show
that the seizure was unreasonable—i.e., that it was not supported by probable cause.
Tenenbaum v. Williams, 193 F.3d 581, 602 (2d Cir. 1999). Only in emergency circumstances
in which a child is “immediately threatened with harm” may a state official take custody
(even temporarily) of a child without parental consent or a court order. Id. at 594. The
Schvimmers allege that they were never found to be negligent or abusive and that ACS
caseworkers investigated over a period of two weeks before a petition was filed in family
court, and therefore the complaint appears to allege sufficient facts to state a claim that
there were no emergency circumstances involved and the caseworkers who seized and
interviewed the children could have obtained a court order but failed to do so.
Similarly, the Schvimmers raised a plausible Fourteenth Amendment procedural
due process claim based on the repeated denial of a full and fair hearing regarding
extensions of a temporary order of protection separating them from their daughter. “The
Fourteenth Amendment imposes a requirement that except in emergency circumstances,
judicial process must be accorded both parent and child before removal of the child from
his or her parent’s custody may be effected.” Southerland, 680 F.3d at 142. The amended
complaint and Miriam Schvimmer’s affidavit allege that she and her husband have been
repeatedly denied opportunities for full hearings to determine the factual issues of
8
whether they were fit parents and whether their daughter faced danger in their
household, were not permitted to present their expert testimony or other evidence at the
limited hearings that did occur, and often received no notice of those hearings, which
permitted ACS officials to obtain nineteen ex parte orders that extended the order of
protection. The complaint therefore indicates that the Schvimmers were denied judicial
process before an order of protection was entered or extended. At the very least, the
viability of such a claim appears plausible and could be clarified through amendment.
Amendment would also indicate which defendants were involved with the family court
hearings and permit the district court to determine whether such defendants may be
entitled to some form of immunity from suit.
II
The district court’s failure to explain why it dismissed the complaint is made more
troubling by the district court’s denial of leave to amend. We have previously held that a
district court abuses its discretion by denying leave to amend while simultaneously
deciding that the complaint was defective. In Cresci v. Mohawk Valley Community College,
the district court denied the plaintiff, a pro se attorney, leave to amend based on his
failure to submit a proposed amended complaint prior to deciding the motion to dismiss.
693 F. App’x 21, 24-25 (2d Cir. 2017). We concluded that such criticism was “unjustified”
because the plaintiff did not have an obligation to replead based solely on the defendant’s
9
argument that the complaint was deficient. Ultimately, we vacated the judgment because
the plaintiff was “effectively deprived … of a reasonable opportunity to seek leave to
amend.” Id. The Schvimmers were also denied an opportunity to amend their complaint
at the same time the district court dismissed it. In this case, moreover, the district court
did not even identify the purported deficiencies in the complaint.
The district court’s decision to deny leave to amend on February 20, 2020, based
on undue delay was an abuse of discretion. The district court denied leave on the ground
that the Schvimmers’ counsel had not filed an amended complaint in the ten-month
period prior to the dismissal. But when the Schvimmers’ attorney had attempted to
amend the complaint in July 2019, the district court denied leave on the ground that
amendment should await the district court’s consideration of the motion to dismiss,
which it did not resolve until February 20, 2020.
Moreover, even if the Schvimmers had not attempted to amend their complaint in
July 2019, the ten-month delay between their attorney’s appearance and the district
court’s order dismissing the complaint and denying leave to amend was insufficient to
warrant denial of leave to amend. We have not set out a specific definition for undue
delay, but most delays warranting denial of leave to amend are several years in length
and are discussed in conjunction with prejudice or bad faith. See, e.g., Ruotolo v. City of
New York, 514 F.3d 184, 190-92 (2d Cir. 2008); Evans v. Syracuse City Sch. Dist., 704 F.2d 44,
10
47-48 (2d Cir. 1983). Thus, “[m]ere delay, … absent a showing of bad faith or undue
prejudice, does not provide a basis for a district court to deny the right to amend.” State
Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981). There would have
been little or no prejudice resulting from this delay because the Schvimmers’ federal
claims were timely filed and discovery had not begun. See, e.g., Block v. First Blood Assoc.,
988 F.2d 344, 350 (2d Cir. 1993) (holding that a grant of amendment was proper even with
a four-year delay because the non-movant could not show prejudice); Middle Atlantic
Utils. Co. v. S.M.W. Dev. Corp., 392 F.2d 380, 384-85 (2d Cir. 1968) (holding that a three-
year delay in amending the complaint was insufficient to deny amendment because the
motion was made prior to trial and a new claim did not require additional discovery).
***
For the foregoing reasons, we VACATE the judgment and REMAND the case for
the district court to consider the plaintiffs’ motion for leave to amend the complaint. We
direct that this case be reassigned to a different judge upon remand to the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
11