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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