11-1613
Allen v. Mattingly
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 TO 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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 21st day of June, two thousand twelve.
PRESENT:
GUIDO CALABRESI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
SANDRA MORRISON ALLEN,
Plaintiff-Appellant,
v. 11-1613-cv
JOHN MATTINGLY, Commissioner of
ACS, DEIDRE REYNOLDS, Director
Mercy First Foster Care, JEANIE
CAMBRIA, Mercy First Foster Care,
STEWART ALTMAN, Law Guardian for
Child, RACHELLE SUKOL, ESQ. for
Administration for Children
Services, ANGELA CAMPBELL,
Caseworker for ACS, DR. DEBRA
ERNERSIO-JENSSEN, ANDREA LOMAX,
Caseworker, JOSEPH KASPER, Esq.,
SISTERS OF MERCY MERCY FIRST
FOSTERCARE BOARDING HOMES, JOHN
DOE, IRA ERAS, ESQ., JUDGE LINDA
TALLY, ERIN GALVIN, ESQ.,
Defendants-Appellees.*
_____________________________________
FOR PLAINTIFF-APPELLANT: Sandra Morrison Allen, pro se,
Uniondale, NY.
FOR DEFENDANT-APPELLEE Lisa L. Shrewsberry, Traub,
STEWART ALTMAN: Liberman, Straus &
Shrewsberry, LLP, Hawthorne,
NY.
FOR DEFENDANT-APPELLEES Michael P. Kandler, Steven M.
DEIDRE REYNOLDS, JEANIE CAMBRIA, Kaye, Jr., of Counsel, Callan,
ANDREA LOMAX, SISTERS OF MERCY Koster, Brady, & Brennan, LLP,
MERCYFIRST FOSTER CARE BOARDING New York, NY.
HOME PROGRAM, and IRA ERAS:
FOR DEFENDANT-APPELLEE Jonathan B. Bruno, Alex N.
DEBRA ESERNIO-JENSSEN: Niederman, Kaufman, Borgeest &
Ryan, LLP, New York, NY.
FOR DEFENDANT-APPELLEE Laura R. Johnson, Assistant
JUDGE LINDA TALLY: Solicitor General (Barbara D.
Underwood, Solicitor General,
Michael S. Belohlavek, Senior
Counsel, on the brief), for
Eric T. Schneiderman, Attorney
General of the State of New
York, New York, NY.
FOR DEFENDANTS-APPELLEES JOHN Karen M. Griffin (Francis F.
MATTINGLY, RACHELLE SUKOL, and Caputo, on the brief), for
ANGELA CAMPBELL: Michael A. Cardozo,
Corporation Counsel of the
City of New York, New York,
NY.
FOR DEFENDANT-APPELLEE ERIN William D. Buckley, Garbarini
GALVIN: & Scher, P.C., New York, NY.
*
The Clerk of Court is respectfully requested to amend the
caption as set forth above.
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Appeal from the judgment of the United States District Court
for the Eastern District of New York (Sandra J. Feuerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Sandra Morrison Allen, proceeding pro
se, appeals from the district court’s March 29, 2011, Opinion and
Order dismissing her complaint on the defendants’ motions to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and
(6). We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
“We review dismissal of a cause of action under Fed. R. Civ.
P. 12(b)(1) or 12(b)(6) de novo.” Jaghory v. N.Y. State Dep’t of
Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a case for
lack of subject matter jurisdiction under Rule 12(b)(1) is proper
“when the district court lacks the statutory or constitutional
power to adjudicate it.” Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). To survive a Rule 12(b)(6) motion to
dismiss, 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, 677-78 (2009).
On appeal, Allen fails to explain why the specific rulings
made by the district court were in error, and instead largely
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repeats the allegations made in her complaint and makes various
broad arguments that her rights were violated by the defendants.
We have conducted a de novo review of the record and now affirm
for substantially the same reasons set forth in the district
court’s thorough and well-reasoned Opinion and Order.
We reject Allen’s argument that the district court erred
when it dismissed her action without first permitting her to
remove an ongoing proceeding in the Queens County Family Court
relating to the custody of her child. Documents attached to
Allen’s February 2011 notice of removal demonstrate that the
proceedings in the Family Court were ongoing since at least
November 2010. Allen’s removal attempt was thus improper because
it was not made within 30 days after she received “a copy of the
initial pleading setting forth the claim for relief upon which
such action or proceeding is based.” 28 U.S.C. § 1446(b)(1).
We have considered all of Allen’s remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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