Opinion
11-CV-1583 (LDH) (SMG)
03-28-2018
Patrick ALFORD, Sr. and J.A., a minor, by J.A. and her guardian ad litem, Sydell Mack, Plaintiffs, v. CITY OF NEW YORK; St. Vincent's Services, Inc.; Robert Salemi, individually and in his capacity as a Supervisor of Child Protective Specialists for the Administration for Children's Services; Carline Anderson, individually and in her capacity as a Case Worker for St. Vincent's Services, Inc.; Zoila Villalta, individually and in her capacity as a Supervisor of Case Workers for St. Vincent's Services, Inc.; and Natalia Rosado, individually and in her capacity as a Child Protective Specialist for the Administration for Children's Services, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
BACKGROUND
Plaintiffs Patrick Alford, Sr. and J.A., a minor, by her guardian ad litem , Sydell Mack, bring this action against Defendants the City of New York (the "City"), Robert Salemi, Natalia Rosado, (together with the City and Salemi, "City Defendants"), St. Vincent's Services ("SVS"), Zoila Villalta, and Carline Anderson, pursuant to 42 U.S.C. § 1983, alleging violations of the Fourth Amendment, the Fourteenth Amendment, and various state laws. (See generally Am. Compl., ECF No. 16.) A separate but related action was filed by Jennifer Rodriguez on behalf of herself and her minor son, P.A., against the same Defendants under similar legal theories (the "Related Action"). See Rodriguez v. Admin. for Children's Servs. , No. 10-cv-04661 (E.D.N.Y). The instant action and the Related Action were consolidated for the purpose of discovery. (Min. Entry, Dec. 15, 2011, ECF No. 42.)
Plaintiff Alford initially filed this action on behalf of himself and J.A., his minor child. However, on October 25, 2016, after Alford filed a motion for summary judgment, the Court appointed pro bono counsel and a guardian ad litem to represent the interests of J.A. (Min. Entry, Oct. 25, 2016, ECF No. 162.)
All parties in the instant action and the Related Action moved for summary judgment on at least some claims in March and April 2014. On September 11, 2014, Judge Gleeson issued P.A. v. City of New York , 44 F. Supp. 3d 287 (E.D.N.Y. 2014), which decided the motions for summary judgment in the Related Action. Judge Gleeson declined, however, to rule on motions brought in connection with Alford and J.A.'s claims (the subject of the instant motions) due to concerns about Alford's competency and his legal capacity to represent J.A. P.A. , 44 F. Supp. 3d at 315. Subsequently, a guardian ad litem and counsel were appointed to represent the interests of J.A. (Min. Entry, Oct. 25, 2016, ECF No. 162; Transcript, Oct. 25, 2016, ECF No. 167.) In view of the fact that J.A. had newly appointed counsel, the Court permitted J.A. to file a supplemental opposition to Defendants' motions on March 3, 2017. (Min. Entry, Feb. 24, 2017, ECF No. 174; J.A. Supp. Opp., ECF No. 177.) Defendants filed reply memoranda to that submission on April 3, 2017. (City Defs.' Supp. Reply, ECF No. 182; SVS Defs.' Supp. Reply, ECF No. 183.) Judge Gleeson referred the motions for summary judgment on claims asserted by Alford and J.A. to United States Magistrate Judge Steven Gold for a report and recommendation. (Order Referring Mot., Feb. 3, 2016, No. 10-cv-4661.)
Both the instant action and the Related Action were reassigned to United States District Judge LaShann DeArcy Hall on March 10, 2016.
On August 18, 2017, Magistrate Judge Gold issued a Report and Recommendation in which he recommended that this Court deny Plaintiffs' motion for summary judgment in its entirety, and grant, in part, and deny, in part, Defendants' motions for summary judgment. (See R. & R., ECF. No. 192.) Specifically, Magistrate Judge Gold recommended that: (1) Defendants' motions for summary judgment on Plaintiffs' procedural due process claims be granted; (2) Defendants' motions for summary judgment on Plaintiffs' substantive due process non-kinship placement claims be denied; (3) Defendants' motions for summary judgment on Plaintiffs' substantive due process quality of care claims be denied with respect to J.A. and granted with respect to Alford on grounds of qualified immunity; and (4) Defendants' motions for summary judgment on Plaintiffs' Monell claims be denied as to the City with respect to the City's alleged 20-day policy and granted in all other respects. (Id. at 24.) On September 22, 2017, Alford and City Defendants each timely filed an objection pursuant to Federal Rule of Civil Procedure 72(b)(2).
Thereafter, on October 6, 2017, both J.A. (Reply Opp, to Obj., ECF No. 198) and Alford (Reply Opp, to Obj., ECF No. 200) filed responses to City Defendants' objections, and City Defendants filed a response to Alford's objections (Reply Opp, to Obj., ECF No. 199.). On October 13, 2017, City Defendants filed a reply to both Alford and J.A.'s responses. (Reply in Supp. Obj., ECF Nos. 203-04.) On November 3, 2017, Alford filed a letter requesting that this Court disregard City Defendants' October 13, 2017 reply letters as unpermitted sur-replies. (Letter, ECF No. 210.) On November 6, 2017, City Defendants responded to Alford's request, arguing that its October 13, 2017 replies were not prohibited by Magistrate Judge Gold's order or the plain text of Rule 72. (Letter, ECF No. 211.) The Court need not address this issue as the arguments advanced in the replies have no bearing on the Court's analysis.
The Court assumes the parties' familiarity with the facts and reviews Magistrate Judge Gold's report and recommendation de novo. See Fed. R. Civ. P. 72(b)(1), (3); 28 U.S.C. § 636(b)(1)(C).
A. Procedural Due Process Claim
Magistrate Judge Gold recommended dismissal of Plaintiffs' procedural due process claims. (R. & R. at 11.) In objection, Alford maintains that Magistrate Judge Gold reached his decision by wrongly "grafting onto Mr. Alford's claim the result reached by Judge Gleeson on Rodriguez's due process claim." (Pl. Alford's Obj., 9, ECF No. 197.) That is, according to Alford, because his claims relate to the events after the removal of the children whereas Rodriguez's procedural due process claim relates to the initial removal of the children from her, each claim warrants a different analysis, and by extension, a different outcome. (Id. at 6-7.) Alford's argument misses the mark.
The driving inquiry in any procedural due process analysis is whether a plaintiff was afforded notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ("The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ") (quoting Armstrong v. Manzo , 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) ). Thus, the viability of Alford's procedural due process claim is not dependent upon the point at which the children were removed from Rodriguez, as he suggests. Rather, the operative question is whether Alford was provided notice and an opportunity to be heard. Id. Magistrate Judge Gold correctly found that on the record, there was insufficient evidence to support the claim that Alford was denied constitutional process. Instead, he concluded Alford "make[s] passing references throughout [his] submissions to claimed deprivations of procedural due process" but fails to "identify any occasion on which [he] [was] denied notice or an opportunity to be heard." (R. & R. at 11.) The Court agrees. Accordingly, Alford's objection is overruled.
To the contrary, the record indicates that Alford was presented an opportunity to be heard on multiple occasions. First , at the Initial Child Safety Conference on December 30, 2009. (Pl.s' Opp. to City Def.'s 56.1 Statement ¶¶ 57, 58, ECF No. 107-3.) Second , at a January 4, 2010 family court hearing represented by counsel. (Id. at ¶¶ 82, 83.) Third , at a January 6, 2010 family court hearing represented by counsel. (Id. at ¶¶ 90, 91.) This is sufficient to satisfy the demands of due process.
B. Substantive Due Process
1. Personal Involvement
City Defendants argue that Magistrate Judge Gold erred in denying their motion for summary judgment as to the § 1983 claims against Robert Salemi, an Administration for Children's Services ("ACS") supervisor, and Natalia Rosado, a Child Protective Specialist, on the grounds that they lacked personal involvement in J.A.'s foster care placement and daily monitoring of same. (City Defs.' Obj., 3-4, ECF. No 196.)
City Defendants correctly note that Plaintiffs must show personal involvement of an individual defendant to sustain a § 1983 action against him or her. Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994) ("[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983."). In their objection, City Defendants contend that Magistrate Judge Gold somehow overlooked or ignored this requirement. (City Defs.' Obj. at 3-4.) Such is not the case. As City Defendants assuredly know, the question of personal involvement is a question of fact, often precluding determination on summary judgment. Williams v. Smith , 781 F.2d 319, 323 (2d Cir. 1986) ("Since personal involvement is a question of fact we are governed by the general rule that summary judgment may be granted only if no issues of material fact exist and the defendant[ ] is entitled to judgment as a matter of law."). Indeed, personal involvement can be predicated on a variety of facts. Wright , 21 F.3d at 501. A party may have directly participated in the alleged constitutional deprivation. Id. In some cases, a person will be considered personally involved, though not directly involved, if he or she is a supervisor but failed to remedy a wrong after learning of the violation. Id. In other cases, a supervisor may be liable if he or she created the policy or custom under which unconstitutional practices occurred, or failed to end such a policy or custom if already in existence. Id. Likewise, a supervisor may be liable if he or she was grossly negligent in managing subordinates who committed the constitutional violation. Id.
In recommending that Defendants' motions for summary judgment be denied, Magistrate Judge Gold outlined a host of facts that could lead a reasonable jury to find that Salemi and Rosado were personally involved in Plaintiffs' alleged violations of Plaintiffs' substantive due process. (See R. & R. at 12-20.) For example, with respect to Plaintiffs' non-kinship placement claim, ACS records indicate that Salemi noted on the date of the Initial Child Safety Conference ("ICSC") that ACS would "explore kinship resource[s]" and would "make a visit to the father['s] current shelter to see if his children can be paroled to him" (R. & R. at 13.) However, it was approximately two to three weeks before Rosado or anyone from ACS came to the shelter to investigate. (Id. ) When Rosado finally visited the shelter, she informed Alford that there was no reason why his children could not be placed with him, yet the placement was still not made. (Id. ) Moreover, a year prior to Rodriguez's allegation that Alford's girlfriend abused the children, both Salemi and Rosado noted that Rodriguez was untrustworthy and a liar. (Id. at 15.) Likewise, with respect to J.A.'s quality of care claim, Magistrate Judge Gold noted that Rosado emailed others at ACS about P.A., including that P.A. said "he would hurt himself if he can't go home, and that he was going to hurt/kill his sister [J.A.] because she keeps getting him in trouble." (Id. at 18.) In addition, Salemi testified that he had access to J.A. and P.A.'s progress notes that described the foster placement conditions but that he "probably didn't look [at them]" although he may have "glanced" at them. (Id. at 19.) Magistrate Judge Gold also found that, because P.A.'s abuse of J.A. was detailed in ACS progress notes, Defendants knew or should have known about the issues. (Id. at 18.) These facts are sufficient to create a genuine issue of material fact on the question of personal involvement. City Defendants' objection is overruled.
2. Quality of Care
City Defendants object to Magistrate Judge Gold's recommendation that their motion regarding J.A.'s quality of care claim be denied. (City Defs.' Obj. at 4-5.) City Defendants seem to predicate their objection on the notion that Magistrate Judge Gold's recommendation was based solely on law of the case—that is, Judge Gleeson's decision to allow P.A.'s quality of care claim to proceed. (Id. ) This is not so. Although Magistrate Judge Gold acknowledged that Judge Gleeson's analysis of P.A.'s claim was applicable in many respects to J.A.'s claim, his ultimate determination was based on an independent analysis of J.A.'s claim. (See R. & R. at 16-20.)
Upon review, Magistrate Judge Gold determined that "the evidence presented by [P]laintiffs could lead a [fact] finder to conclude that P.A. repeatedly struck J.A., took her food, grabbed her by the neck, and pushed out of her bed." (Id. at 18.) Furthermore, Magistrate Judge Gold stated that "[a] jury could also find that J.A. suffered emotionally by observing her brother smearing feces on the wall, threatening to cut himself with kitchen scissors, attempting to ‘escape’ his foster care setting, and hitting other children as young as one year old." (Id. ) Accordingly, Magistrate Judge Gold rightly determined that a jury could reasonably conclude that Defendants were grossly negligent in failing to protect J.A. from physical and mental harm. (Id. ); see also Marisol A. by Forbes v. Giuliani , 929 F. Supp. 662, 674–75 (S.D.N.Y. 1996), aff'd sub nom. Marisol A. v. Giuliani , 126 F.3d 372 (2d Cir. 1997) (collecting cases regarding the substantive due process right of children in foster to be protected from mental and physical harm). City Defendants' objection is overruled.
C. Qualified Immunity
1. Defendants' Objection
Magistrate Judge Gold recommended the denial of Defendants' motions for summary judgment on grounds of qualified immunity with respect to Alford and J.A.'s non-kinship placement claims. (R. & R. at 21.) According to Magistrate Judge Gold, this determination was dictated by law of the case flowing from Judge Gleeson's decision to deny Defendants' motions to dismiss Rodriguez and P.A.'s non-kinship placement claims. (R. & R. at 20-21.) City Defendants maintain that this was error. First , City Defendants contend that there is no law of the case regarding this issue because Judge Gleeson "indicated that he was actually declining to rule on the issue of qualified immunity for P.A.'s kinship placement." (City Defs.' Obj. at 5-6.) Second , City Defendants argue that the law of the case regarding Judge Gleeson's decision as to P.A.'s non-kinship claim does not require dismissal of City Defendants' motion as to J.A.'s non-kinship claim. (Id. at 6.) City Defendants ground this argument on the contention that they presented Judge Gleeson and Magistrate Judge Gold with different legal arguments regarding P.A. and J.A.'s claims, respectively. (Id. ) City Defendants misread the record.
Judge Gleeson did not "decline" to rule on the issue of qualified immunity with respect to P.A's non-kinship placement claim. Instead, Judge Gleeson keenly noted that Defendants did not "argue[ ] that the relevant individuals responsible for P.A.'s placement should be granted qualified immunity." P.A. , 44 F. Supp. 3d at 310 n.14. In other words, City Defendants simply did not raise the issue and it was not before Judge Gleeson. Thus, it cannot be said that on this question Judge Gleeson and Magistrate Judge Gold had different arguments before them. Instead, as City Defendants concede, they raised qualified immunity on the non-kinship claim for the first time in their reply to J.A.'s supplemental briefing in opposition to Defendants motions. (City Defs.' Obj. at 6.) That is, City Defendants had not previously "contest[ed] that [P.A.] has a substantive due process right to be placed with a family member over a non-kin foster parent." P.A. , 44 F. Supp. 3d at 310 n.14. Perhaps for good reason.
Typically, arguments made for the first time in a reply submission are not considered by the Court. Knipe v. Skinner , 999 F.2d 708, 711 (2d Cir. 1993) ("Arguments may not be made for the first time in a reply brief."); Domino Media, Inc. v. Kranis , 9 F.Supp.2d 374, 387, 387 n. 82 (S.D.N.Y. 1998) ("New arguments first raised in reply papers in support of a motion will not be considered."). Here, J.A. was permitted a supplemental opposition to Defendants' motions for summary judgment to ensure her interests were adequately represented following the appointment of counsel—it was not an opportunity for Defendants to remedy the deficiencies of their opening submission or to raise new arguments. However, in light of the fact that it was J.A. who first raised the issue of qualified immunity in her supplemental opposition, this Court will address the issue.
At the outset of his opinion, Judge Gleeson outlined the various rights at issue in this case—including the concomitant rights of parent and child for a child to remain in parental custody. Id. at 299 ("Both child and parent possess a constitutionally protected liberty interest in the child's remaining in parental custody.") This right has been long and clearly established. See, e.g. Southerland v. City of New York , 680 F.3d 127, 142 (2d Cir. 2012) (holding that children have a parallel liberty interest in not being separated from their parents and, therefore, "[t]he state's removal of a child from his or her parent may [ ]give rise to a variety of cognizable constitutional claims."); Kia P. v. McIntyre , 235 F.3d 749, 759 (2d Cir. 2000) ("[C]hildren have a parallel constitutionally protected liberty interest in not being dislocated from the emotional attachments that derive from the intimacy of daily [family] association."); Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) ("Th[e] right to the preservation of family integrity encompasses the reciprocal rights of both parent and children."). Indeed, the Court cannot fathom many other rights more paramount than this. The right is not absolute, however.
As City Defendants aptly note, the right to familial integrity must be "counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parent themselves." (City Defs.' Supp. Reply at 5.) (citing Wilkinson ex rel. Wilkinson v. Russell , 182 F.3d 89, 104 (2d Cir. 1999)). Whether the particular circumstances in this case were such that warranted the non-kinship placement, thus resulting in no constitutional violation, or would have caused caseworkers of reasonable competence to disagree on the matter, warranting a grant of qualified immunity, are questions of fact that cannot be resolved on this record. Kerman v. City of New York , 374 F.3d 93, 108-09 (2d Cir. 2004) ("[T]he matter of whether a defendant official's conduct was objectively reasonable, i.e., whether a reasonable official would reasonably believe his conduct did not violate a clearly established right, is a mixed question of law and fact ... Although a conclusion that the defendant official's conduct was objectively reasonable as a matter of law may be appropriate where there is no dispute as to the material historical facts, if there is such a dispute, the factual questions must be resolved by the factfinder.") (internal quotation marks and citations omitted).
In sum, while the Court disagrees that dismissal here is necessary based on law of the case, it nonetheless concurs with Magistrate Judge Gold's recommendation for the reasons set out above. Accordingly, City Defendants' objection is overruled.
2. Alford's Objection
Alford objects to Magistrate Judge Gold's recommendation that Defendants' motions be granted with respect to his substantive due process quality of care claim on the grounds of qualified immunity. (Pl. Aflord's Obj. at 9-11.) Magistrate Judge Gold determined that grant of Defendants' motions was warranted based on the law of the case. (R. & R. at 20-21.)
As set out in Judge Gleeson's opinion, federal law provides a private right of action for money damages against state officials, acting "under color" of law, who violate a constitutional or statutory right. 42 U.S.C. § 1983 ; see also Kia P., 235 F.3d at 755. However, the doctrine of qualified immunity shields both state and federal officials from suit "unless [1] the official violated a statutory or constitutional right [2] that was clearly established at the time of the challenged conduct." Terebesi v. Torreso , 764 F.3d 217, 230 (2d Cir. 2014). Official conduct violates clearly established law "when, at the time of the challenged conduct, [t]he contours of [a] right [are] sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al–Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted).
In analyzing P.A.'s quality of care claim, Judge Gleeson recognized the long-established right that "children in foster care [have] a substantive due process right to the protection from harm." P.A., 44 F. Supp. 3d at 305 (quoting Marisol A. , 929 F. Supp. at 675 ). At the same time, Judge Gleeson found that, consistent with Rodriguez's theory, "a parent has a sufficiently strong interest in the care and management of her child that she may maintain a substantive due process action under § 1983 at least when a state custodian (or, as here, a state custodian's designee) is allegedly deliberately indifferent to the child's care." Id. at 313. However, Judge Gleeson ultimately determined that this parental right was "not clearly established" at the time of Defendants' conduct, thus warranting the application of qualified immunity as to Rodriguez's claims. Id. at 314.
Curiously, Alford urges the Court to view his quality of care claim as parallel to those brought by P.A. and J.A. It is not. Rather, Alford sits as Rodriguez does. Thus, the law of the case dictates, as Magistrate Judge Gold found, that the individual defendants are entitled to qualified immunity with respect to Alford's claim because it was not clearly established that "parents ha[d] a specific right to control a child's upbringing that is violated when a state custodian fails to properly care for the child" at the time of the alleged wrongdoing. ( Id. ) Alford's objection is overruled.
D. Municipal Liability
In his Report and Recommendation, Magistrate Judge Gold recommended the grant of Defendants' motions on Plaintiffs' Monell claims, except as against the City based upon application of the "20-day rule." (R. & R. at 22-23.) Magistrate Judge Gold based his recommendation on Judge Gleeson's finding that certain documents suggested the existence of an ACS policy to refrain from reassigning children between the date of the ICSC and the date of the follow-up conference held up to twenty days later—the 20-day rule. Id. ; P.A. , 44 F. Supp. 3d at 309. Judge Gleeson determined that this policy, coupled with the fact that the City quickly cleared the home of Ms. Mercado, a relative, but did not attempt to move P.A. from foster care to Ms. Mercado's care, created a triable issue regarding P.A.'s kinship placement claim. P.A. , 44 F. Supp. 3d at 309. The Court agrees. However, unlike Magistrate Judge Gold, this Court does not construe Judge Gleeson's holding to narrowly apply only to the 20-day rule. In raising the 20-day rule, Judge Gleeson was undertaking a review of facts to support P.A.'s "failure to change placement to kinship" claim. Id. That is, Judge Gleeson was making a determination of whether any policy, practice, and custom existed that was sufficient to sustain municipal liability for Defendants' failure to change P.A.'s foster placement to one of kinship.
For this reason, to the extent City Defendants' objection to the survival of Plaintiffs' non-kinship claim is based on the argument that the 20-day rule did not proximately cause Plaintiffs' deprivation of constitutional rights, (City Defs.' Obj. at 7.), the objection is overruled. Likewise, to the extent City Defendants' objection is premised on the notion that the kinship rights asserted by Plaintiffs do not exist or were not clearly established (id. ), this too fails as no such finding has been made. City Defendants' objection is overruled.
Judge Gleeson's highlighting of the 20-day policy did not limit the non-kinship placement claim to only that policy. There may be other policies, practices, and customs that support the claim. For example, Alford alleges that the City has a policy of withholding a child from a non-offending parent even in the absence of abuse allegations. (Pl. Alford's Obj. at 11-12.) This policy, like the 20-day policy, creates a triable issue. P.A., 44 F. Supp. 3d at 309. Under this Court's construction of Judge Gleeson's opinion, P.A.'s non-kinship placement claim persists without limitation. Applying law of the case, Alford's claim too survives. Accordingly, Alford's objection is denied as moot.
Alford objected to Magistrate Judge Gold's recommendation that this Court grant Defendants' motions for summary judgment as the Monell claims against SVS and the City but deny the motions as to the Monell claims against the City based upon the application of the 20-day rule. (Pl. Alford's Obj. at 11-12.)
E. State Law Claims
City Defendants object to Magistrate Judge Gold's recommendation that City Defendants' motion regarding Plaintiffs' state law claims be denied. (R. & R. at 23.) City Defendants contend for the first time in their reply brief that the state law claims should be dismissed on the grounds of governmental immunity. (City Defs.' Supp. Reply; City Defs.' Obj. at 8.) It is well-established that "[a]rguments may not be made for the first time in a reply brief." Knipe , 999 F.2d at 711 ). Therefore, "[n]ew arguments first raised in reply papers in support of a motion will not be considered." Domino Media, Inc. , 9 F.Supp.2d at 387 (collecting cases that hold issues first raised in reply brief will not be considered by the court). Here, City Defendants failed to argue that the state law claims should be dismissed on the grounds of governmental immunity in their initial briefing. (See generally City Defs.' Cross-Mot. for Summ. J., ECF No. 102.); P.A. , 44 F. Supp.3d at 310. Undoubtedly, this argument was available to City Defendants from the start of this case and should have been raised in their initial submission. See Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G. , 215 F.3d 219, 226–27 (2d Cir. 2000) (holding that reply papers may only address new issues that were raised in opposition papers). Having not timely raised the defense of governmental immunity, it is not properly before this Court. City Defendants' objection is overruled.
CONCLUSION
Having addressed the parties' objections, for the foregoing reasons, Magistrate Judge Gold's Report and Recommendation is adopted as the opinion of this Court with respect to the following: (1) Plaintiff Alford's motion for summary judgment is DENIED; (2) Defendants' motions for summary judgment on Plaintiffs' procedural due process claims are GRANTED; (3) Defendants' motions for summary judgment on Plaintiffs' substantive due process non-kinship placement claims are DENIED; (4) Defendants' motions for summary judgment on Plaintiffs' substantive due process quality of care claims are DENIED with respect to J.A.'s claim and GRANTED with respect to Alford's claim on grounds of qualified immunity. With respect to Magistrate Judge Gold's recommendation regarding Plaintiffs' Monell claims, Defendants' motions for summary judgment are DENIED as to Defendant City with respect to Plaintiffs' § 1983 failure to change placement to kinship claim as this Court respectfully declines to adopt Magistrate Judge Gold's recommendation insofar as it limits the claim to the purported 20-day policy, and GRANTED in all other respects.
SO ORDERED.
REPORT & RECOMMENDATION
Steven M. Gold, United States Magistrate Judge
INTRODUCTION
This case arises from tragic circumstances. On December 29, 2009, plaintiff J.A. and her brother, P.A., were removed from the custody of their mother and placed in foster care. P.A., seven years old at the time, ran away from the foster home and remains missing to this day. J.A., four years old at the time, remained in non-kinship foster care for approximately three to four weeks, up until the time her brother disappeared. Patrick Alford, Sr. ("Alford"), the biological father of P.A. and J.A., claims that both children should have been placed with him rather than in non-kinship foster care, where his children were subjected to unreasonable harm. J.A. joins in these claims and asserts she should have been placed with her father and protected from the unreasonable harm she suffered during the time she remained in non-kinship foster care.
BACKGROUND
A. Procedural History
Alford filed this action on behalf of himself and J.A. on March 31, 2011. Alford Compl., Docket Entry 1, in No. 11-CV-1583. Jennifer Rodriguez ("Rodriguez"), the biological mother of J.A. and P.A., had previously filed a complaint on behalf of herself and P.A. Rodriguez Compl., Docket Entry 1, in No. 10-CV-4661. The Honorable John Gleeson, then the United States District Judge presiding over these related actions, appointed pro bono counsel, who also acts as guardian ad litem, for P.A. See Orders dated June 6, 2011 and Dec. 16, 2011, in 10-CV-4661.
Both case No. 11-CV-1583 and case No. 10-CV-4661 have since been reassigned to United States District Judge LaShann DeArcy Hall.
Unless otherwise noted, all record citations refer to the docket entries in case No. 11-CV-1583.
The amended complaint in this action asserts Fourth and Fourteenth Amendment claims pursuant to 42 U.S.C. § 1983, as well as a state law cause of action for negligence, on behalf of both J.A. and Alford. These claims are asserted against the City of New York ("City") and St. Vincent's Services ("SVS"), a foster care agency, as well as Robert Salemi and Natalia Rosado, a supervisor and caseworker, respectively, employed by the City's Administration for Children's Services ("ACS"), and Zoila Villalta and Carline Anderson, a supervisor and caseworker, respectively, employed by SVS. See Am. Compl., Docket Entry 16.
Claims against additional employees of the City and SVS named in the amended complaint were dismissed by Order dated Oct. 15, 2011.
Summary judgment motions were brought in both actions some time ago. With respect to this action, plaintiff Alford moved for summary judgment on two of his claims, and defendants moved for summary judgment on each of the claims asserted by J.A. and Alford.
Although J.A. also moved for summary judgment on her claims when Alford was her guardian ad litem, she subsequently withdrew her motion. See J.A. Letter dated Jan. 30, 2017, Docket Entry 171.
Judge Gleeson decided the summary judgment motions relating to claims asserted by P.A. and Rodriguez but declined to rule on the motions insofar as they involved the claims of Alford and J.A. due to concerns about Alford's competency and his legal capacity to represent J.A. P.A. v. City of New York , 44 F. Supp. 3d 287, 314 (E.D.N.Y. 2014). On February 3, 2016, Judge Gleeson referred the pending motions for summary judgment in 11-CV-1583 to me for report and recommendation. Order dated Feb. 3, 2016, in 10-CV-4661. Subsequently, Sydell Mack, J.A.'s grandmother, was appointed to serve as guardian ad litem to J.A., and pro bono counsel from the law firm of Davis Polk & Wardwell LLP appeared for J.A. through her guardian ad litem. Docket Entries 162, 167; Orders dated Nov. 2, 2016. J.A.'s newly appointed guardian ad litem and counsel submitted supplemental opposition to defendants' motions for summary judgment on March 3, 2017. See Supp. Mem. in Opp. to Defs.' Cross-Mots. for SJ ("J.A. Supp. Mem."), Docket Entry 177, and supporting declarations and exhibits, Docket Entries 178, 181. Defendants then filed memoranda in reply to J.A.'s supplemental submission. Docket Entries 182, 183.
For the reasons set forth below, I respectfully recommend that Alford's motion for summary judgment be denied and that the defendants' motions for summary judgment be granted in part and denied in part.
B. Facts
Many of the pertinent facts and much of the governing law are set forth in Judge Gleeson's 2014 summary judgment ruling. I assume familiarity with Judge Gleeson's Memorandum and Order, and I rely to a great extent upon it in making the recommendations set forth below in this Report. For the convenience of the reader, though, I briefly recount the facts relevant to the pending motions here. The facts are undisputed except where noted and are drawn primarily from the parties' Rule 56.1 Statements. Additional factual details are set forth below in connection with this Report's discussion of plaintiffs' specific claims.
Plaintiff Alford is the biological father of P.A. and J.A, and Jennifer Rodriguez is their biological mother. City R. 56.1 ¶¶ 1, 3, Docket Entry 94. P.A. was born in November 2002 and J.A. was born in April 2005. Am. Compl. ¶¶ 7, 9. Defendant City maintains the ACS. Am. Compl. ¶ 60. Defendant SVS contracts with the City to act as a foster care agency. Am. Compl. ¶ 70.
Rodriguez was known to ACS as early as September 2009. City R. 56.1 ¶ 2. On December 26, 2009, Rodriguez was arrested for shoplifting while both J.A. and P.A. were present. City R. 56.1 ¶ 6. ACS was notified of the arrest. On December 28, 2009, defendant Robert Salemi ("Salemi"), an ACS Supervisor, sent defendant Natalia Rosado ("Rosado"), a Child Protective Specialist ("CPS"), to meet with Rodriguez. City R. 56.1 ¶¶ 11-12.
The City and defendants Salemi and Rosado are referred to in this Report collectively as the "City defendants." SVS and defendants Anderson and Villalta are referred to in this Report collectively as the "SVS defendants."
On December 29, 2009, Rodriguez called Salemi and asked for help entering a drug treatment program for her marijuana use. When Salemi responded that marijuana use generally did not merit inpatient treatment, Rodriguez revealed that she had been using Phencyclidine, or PCP, regularly and had recently taken some. City R. 56.1 ¶¶ 20-23. Salemi sent CPS Deborah Pride ("Pride") and CPS Rosa Sosa ("Sosa") to the Rodriguez home, where they arrived after 5:00 p.m. to find an incoherent Rodriguez, an unknown male—who refused to identify himself—and J.A. P.A. was not present, and Rodriguez could not identify where he was aside from indicating that he was with an aunt. Pride and Sosa informed Salemi of what they had learned. City R. 56.1 ¶¶ 24-29, 31-35. Salemi then conferred with his superior, Reinaldo Gibbs, a Child Protective Manager, who authorized the removal of both children. City R. 56.1 ¶ 38.
After removing J.A., Pride and Sosa attempted to locate P.A. and found him at an aunt's home in Brooklyn. City R. 56.1 ¶¶ 39-42. They informed the aunt that they were there to remove P.A. and then proceeded to do so. City R. 56.1 ¶¶ 44, 46.
J.A. and P.A. were transported to the main ACS facility to await placement. Because no foster homes were available on Staten Island, where they resided with their mother, P.A. and J.A. were placed in Brooklyn with Librada Moran ("Moran"). The placement was made at about 11:00 p.m., and the children were taken to the Moran home the next day, December 30, 2009. City R. 56.1 ¶¶ 47-53; J.A. R. 56.1 Resp. to City ¶ 49, Docket Entry 177-1.
An initial child safety conference ("ICSC") was held on the morning of December 30, 2009. Alford, Rodriguez, and several other family members attended. City R. 56.1 ¶¶ 57-58. The parties disagree about whether or not Alford consented to the continued placement of his children in foster care. City R. 56.1 ¶¶ 62, 69; Alford Resp. to City R. 56.1 ¶¶ 62, 69, Docket Entry 107-1; J.A. R. 56.1 Resp. to City ¶¶ 62, 69; see ACS Progress Notes at PA-ACS-199-204; ICSC Decision Summary. Later that day, a hearing was held in family court, during which the possibility of placing the children with Alford was discussed. However, ACS raised concerns about: (1) a domestic violence incident between Alford and Shareema Bruington ("Bruington"), with whom Alford was residing at the time and (2) the ability of the shelter where Alford, Bruington, and their children were residing to accommodate two additional children. The family court judge ordered the temporary non-kinship foster care continued. City R. 56.1 ¶¶ 78-81.
City Cross-Mot. for SJ Ex. K, Docket Entry 103-14.
City Cross-Mot. for SJ Ex. B, Docket Entry 102-5.
On January 6, 2010, ACS appeared at a follow-up family court appearance and was ready to recommend that J.A. and P.A. be transferred to Alford's custody. However, during this court appearance, Rodriguez accused Bruington of having physically abused P.A. in the past. Additional time was granted to investigate this allegation. City R. 56.1 ¶¶ 90-99.
Defendant Carlene Anderson ("Anderson") is a caseworker employed by SVS and was assigned to P.A. and J.A. after they were placed with SVS. Anderson's job responsibilities included conducting visits to Moran's foster home, assessing what needs the children had, and ensuring those needs were addressed. SVS R. 56.1 ¶¶ 17-18, Docket Entry 85. During the time the children were in the care of SVS, Anderson conducted a supervised visit on January 8, 2010 and two home visits. SVS R. 56.1 ¶ 19. Anderson was supervised by defendant Zoila Villalta ("Villalta"), who is also a caseworker employed by SVS. SVS R. 56.1 Statement and Response to P.A., Jr. ¶ 6, Docket Entry 343, in No. 10-CV-4661.
Once P.A. and J.A. were placed in the Moran household, P.A. began to demonstrate erratic behavior. He attempted to walk out of the room during a supervised visit with his mother, unlock doors and leave the Moran apartment, and leave a subway car while traveling with Moran. He also threatened to cut himself with a pair of scissors, smeared feces on the wall, and repeatedly hit himself on the head. In addition, Alford claims that at one point P.A. threatened to kill J.A. Alford R. 56.1 ¶¶ 223, 226, 228, 232, 234-35, Docket Entry 91. P.A. was interviewed by an SVS psychologist, Dr. Eugene Plotnick, on January 14, 2010. Dr. Plotnick concluded that P.A. "needs some urgent help" and stated that, while P.A. "doesn't appear to be an imminent risk to [him]self or others," he wanted to "expedite a psychiatric evaluation and treatment intervention." P.A. Decl. in Supp. of SJ Ex. W, Docket Entry 315-23, in No. 10-CV-4661.
On January 22, 2010, P.A. disappeared from the Moran home. City R. 56.1 ¶ 102. He has not been seen since. Alford was granted custody of J.A. shortly after P.A. disappeared. P.A. , 44 F. Supp. 3d at 294.
DISCUSSION
A. General Legal Standards
1. Summary Judgment
A court may grant summary judgment only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether there are genuine disputes of material fact, the court must "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Terry v. Ashcroft , 336 F.3d 128, 137 (2d Cir. 2003). The movant may demonstrate that summary judgment is appropriate by showing that no reasonable jury could find for the nonmoving party based on the evidence offered in support of the claim. See Powell v. Nat'l Bd. of Med. Exam. , 364 F.3d 79, 84 (2d Cir. 2004) ("[T]he existence of a mere scintilla of evidence in support of nonmovant's position is insufficient to defeat the motion; there must be evidence on which a jury could reasonably find for the nonmovant.") (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ).
2. Section 1983
42 U.S.C. Section 1983 provides that
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights," but provides "a method for vindicating federal rights elsewhere conferred." Graham v. Connor , 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "[T]he core purpose of § 1983 is to provide compensatory relief to those deprived of their federal rights by state actors." Kia P. v. McIntyre , 235 F.3d 749, 755 (2d Cir. 2000) (internal quotation marks and citation omitted). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Id. (internal citation omitted). ACS and its employees clearly qualify as state actors. SVS and its defendant employees concede for the purposes of the pending summary judgment motions that they were state actors as well and may be sued under § 1983. See SVS Mem. in Supp. of Cross-Mot. for SJ at 7 n.2, Docket Entry 345, in No. 10-CV-4661.
3. Law of the Case
The doctrine of law of the case "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Christianson v. Colt Indus. Operating Corp. , 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). As noted above, Judge Gleeson has already decided summary judgment motions relating to the claims asserted by P.A. and Rodriguez in 10-CV-4661. This case and 10-CV-4661 are related actions, and discovery and motion practice has proceeded in the two actions together. Indeed, the motions now before the Court were briefed and presented to Judge Gleeson together with those he decided; Judge Gleeson deferred decision on the pending motions only because of his concerns about Alford's competency and capacity to represent J.A.'s interests. In the course of doing so, Judge Gleeson noted that the claims asserted by Alford and J.A. "mirror[ed]" P.A.'s claims. P.A. , 44 F. Supp. 3d at 305, n.11.
Notably, J.A. invokes the law of the case doctrine in her supplemental briefing, J.A. Supp. Mem. at 9, and neither the SVS nor the City defendants challenge the doctrine's application in their responsive memoranda.
Judge Gleeson's decision addresses many of the same issues raised by the motions now before the Court. Judge Gleeson's resolution of those issues is law of the case and controls here.
B. The City Defendants' Rooker-Feldman Challenge to Jurisdiction
The City opposes certain of plaintiffs' claims on the basis that they are barred by the Rooker-Feldman doctrine and that this Court therefore lacks subject matter jurisdiction over them. City Mem. in Opp. to Pl. Mot. for SJ at 11, Docket Entry 102-1. The Rooker-Feldman doctrine "bars federal courts from exercising jurisdiction over claims by ‘state-court losers’ who challenge ‘state court judgments rendered before the district court proceedings commenced.’ " E.D. ex rel. V.D. v. Tuffarelli , 692 F. Supp. 2d 347, 357 (S.D.N.Y. 2010) (internal citation omitted). For the Rooker-Feldman doctrine to deprive a district court of jurisdiction, four elements must be established: (1) the plaintiff must have lost in state court, (2) the plaintiff must be complaining of injuries caused by a state court judgment, (3) "the plaintiff must invite district court review and rejection of that judgment," and (4) "the state-court judgment must have been rendered before the district court proceedings commenced." Id. at 357-58 (internal quotation marks and alterations omitted).
The pages of the City Mem. in Opp. are not numbered; the reference in the text is to the page number assigned by ECF when the document was filed.
Judge Gleeson rejected defendants' Rooker-Feldman argument in his decision, noting that "[i]t is undisputed that the state family court in this case never issued a final order depriving either parent of [P.A.]'s custody." P.A. , 44 F. Supp. 3d at 298. The same is true with respect to J.A. Accordingly, Judge Gleeson's rejection of defendants' Rooker-Feldman argument warrants its rejection here.
C. Plaintiffs' Due Process Claims
As noted above, plaintiffs' amended complaint asserts four causes of action under Section 1983. Counts One and Three are brought on behalf of plaintiff Alford and J.A., respectively, against the individual defendants, and Counts Two and Four are brought on behalf of plaintiff Alford and J.A., respectively, against the City and SVS. The Fourth and Fourteenth Amendments are invoked in each of the four counts. Although it is not entirely clear from their pleading, plaintiffs' briefing in connection with the pending summary judgment motions indicates that they claim, in essence, denials of their rights to substantive, and possibly procedural, due process. See Pl. Mem. in Supp. at 14-16, 24, Docket Entry 90; Pl. Mem. in Opp. to City's Mem. at 13, Docket Entry 107; J.A. Supp. Mem. at 11.
Alford and J.A. clearly have interests protected by due process at issue in this case. "Choices about marriage, family life, and the upbringing of children are among associational rights [the Supreme] Court has ranked as of basic importance in our society, ... rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect." Tenenbaum v. Williams , 193 F.3d 581, 593 (2d Cir. 1999) (quoting M.L.B. v. S.L.J. , 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) ) (internal quotation marks omitted). Accordingly, the Second Circuit has held that "[p]arents ... have a constitutionally protected liberty interest in the care, custody and management of their children." Tenenbaum , 193 F.3d at 593 (collecting cases). Children have a reciprocal liberty interest in "not being separated from their parents," P.A. , 44 F. Supp. 3d at 299, or "dislocated from the emotional attachments that derive from the intimacy of daily family association." Kia P. , 235 F.3d at 759 (internal quotation marks, alterations, and citation omitted).
These liberty interests give rise to both procedural and substantive due process rights protected by the Fifth and Fourteenth Amendments. See Southerland v. City of New York , 680 F.3d 127, 142 (2d Cir. 2012), cert. denied , 568 U.S. 1150, 133 S. Ct. 980, 184 L.Ed.2d 773 (2013) ; Phillips v. Cty. of Orange , 894 F. Supp. 2d 345, 372-75, 378 (S.D.N.Y. 2012). Moreover, if placed in foster care, children "[have] a substantive due process right to protection from harm" that is violated by professional caretakers when they substantially depart "from accepted professional judgment, practice, or standards." P.A. , 44 F. Supp. 3d at 305-06 (internal quotations and citations omitted). The conduct of professional caretakers is measured by "what is essentially a gross negligence standard." Doe v. NYC Dept. of Soc. Servs. , 709 F.2d 782, 790 (2d Cir. 1983) ; see also P.A. , 44 F. Supp. 3d at 306.
1. Procedural Due Process
The essence of procedural due process "is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal quotation marks omitted). Although plaintiffs make passing references throughout their submissions to claimed deprivations of procedural due process, they nowhere identify any occasion on which they were denied notice or an opportunity to be heard, or specify any particular procedural rights they claim were due but not provided. See, e.g. , Pl. Mem. in Supp. at 16, 24; Pl. Mem in Opp. to SVS Mem. at 10, Docket Entry 108. Addressing similar claims asserted by Rodriguez, Judge Gleeson granted summary judgment to defendants. P.A. , 44 F. Supp. 3d at 312-13. I recommend the same result here.
2. Substantive Due Process
Plaintiffs' substantive due process claims are more clearly articulated and raise closer questions. Distilled to their essence, plaintiffs' substantive due process claims may be understood as having two components: first, a deprivation of Alford's right to have his children placed with him, and J.A.'s corollary right to be placed with her biological father rather than with an unrelated foster parent (plaintiffs' "non-kinship placement" claim); and second, Alford's right to have his children properly cared for, and J.A.'s corollary right to be cared for properly while placed in a foster home (plaintiffs' "quality of care" claim).
a. Plaintiffs' Non-Kinship Placement Claim
Plaintiffs contend that defendants' interference with their substantive due process rights began on the morning of December 30, 2009, at the ICSC, when ACS determined that J.A. and P.A. would be placed in foster care and not with Alford. Pl. Mem. in Supp. at 16. As noted above, Alford was present at that conference, and plaintiffs point to evidence indicating that Alford asked that J.A. and P.A. be placed with him. Rosado Dep. at 411. Alford advised ACS officers at the conference that he had cared for P.A. until he was four years old, and that he "wants to be considered a resource for his children." ACS Progress Notes at PA-ACS-0203. ACS records indicate that, at least at one point during the conference, "[i]t was decided that the parents would decide who would be the best resource for the children." Id.
Thus, unlike Rodriguez, Alford and J.A. apparently do not challenge the emergency removal of J.A. and P.A. from Rodriguez' care on December 29, 2009.
Decl. of Sharon Katz in Opp. to the Defs. Cross-Mots. for SJ ("Katz Decl.") Ex. F, Docket Entry 178-7.
Katz Decl. Ex. C, Docket Entry 178-4.
ACS records confirm that the agency visited P.A. while he was in Alford's care in October 2007, and that they "observed father and child to interact well" and that it appeared that Alford was "able to provide child with basic needs of food, clothing and shelter." ACS Progress Notes at PA-ACS-0013. The ACS notes go on to describe P.A. as "friendly, sweet and respectful," and report that, when P.A. asked Alford for permission to play video games and Alford agreed, P.A. "gave him a hug and said thank[s] happily." Id. at PA-ACS-0014.
Decl. of Patrick Alford, Sr. in Supp. of Mot. for SJ ("Alford Decl.") Ex. K, Docket Entry 99.
ACS records also indicate that, on December 30, 2009, the date of the ICSC, Salemi, a supervisor, wrote that ACS would "explore kinship resource[s]" and would "make a visit to the father['s] current shelter to see if his children can be paroled to him." Id. at PA-ACS-0048. According to Alford, though, it was approximately two or three weeks before defendant Rosado or anyone from ACS came to the shelter to investigate. Alford Dep. at 147. Significantly, when Rosado did come to the shelter, she told Alford there was no reason why his children could not be placed with him. Id.
Katz Decl. Ex. G, Docket Entry 178-8.
The evidence also indicates that ACS conducted an emergency study with a second-degree cousin of Rodriguez on or about December 31, 2009, and that the caseworker who conducted the study found the home to be an adequate placement. Sosa Dep. at 158. Nevertheless, consideration of placement with the cousin was "put on hold" because placing the children with Alford was still under consideration. ACS Progress Notes at PA-ACS-15268-69.
Katz Decl. Ex. H, Docket Entry 178-9.
Katz Decl. Ex. C.
A family court hearing was held later in the day on December 30, 2009, after the ICSC. Alford was present during the hearing and asked that the children be placed with him. Tr. at 7. Counsel for ACS advised the Court, though, that the particular shelter where Alford was staying could not accommodate the children and that a review of Alford's criminal history revealed multiple domestic violence incidents, including one that had occurred recently. Tr. at 8, 12. Counsel for ACS stated further that the agency's investigation of Alford was continuing and asked that the children be remanded to the care of the ACS Commissioner, but also represented that ACS expected to place the children with a cousin that night. Tr. at 9-10. The Court granted the application and assured Alford that ACS would conduct its investigation within "a few more days." Tr. at 12-13. The children were placed in non-kinship foster care in the interim. ACS Progress Notes at PA-ACS-199.
Decl. of Charles E. O'Bryan in Supp. of SVS Cross-Mot. for SJ Ex. G, Docket Entry 101-7.
Alford Decl. Ex. K.
A second family court hearing was held on January 4, 2010. Although Alford reiterated his desire to take custody of his children, ACS reported that its investigation of the domestic violence allegations against Alford was ongoing and that Alford's living arrangement could not accommodate two additional children. Tr. at 8-9. A further hearing was held on January 6, 2010. At that hearing, ACS reported that it had completed its investigation of Alford and determined that P.A. and J.A. should be released to his care. Tr. at 5, 7. At that point, Rodriguez objected, alleging—apparently for the first time—that P.A. and J.A. had been abused by Alford's girlfriend. Tr. at 8. ACS sought time to investigate Rodriguez' allegation and, as a result, the Court denied Alford's application to have the children released to him. Tr. at 17-18. The matter was then put over to January 26, 2010. City R. 56.1 ¶¶ 101-102.
City Cross-Mot. for SJ Ex. E, Docket Entry 103-8.
City Cross-Mot. for SJ Ex. F, Docket Entry 103-9.
A caseworker from ACS spoke with Rodriguez on January 15, 2010. At that time, Rodriguez retracted her accusation against Alford's girlfriend, expressing surprise that anyone paid attention to her when she was obviously high. ACS Memorandum at SVS 347-348. Rodriguez was upset to learn that J.A. and P.A. were not with their father, who she described as "a good man." Id. Nevertheless, ACS made no arrangements to transfer J.A. and P.A. from non-kinship foster care to the custody of their father, Alford.
Katz Decl. Ex. J, Docket Entry 178-11.
On January 22, 2010, four days before the next scheduled court date, P.A. ran away from his non-kinship foster home, never to be seen again. ACS Progress Notes at PA-ACS-226-230. ACS subsequently transferred J.A. to Alford's custody. Alford R. 56.1 ¶ 246; ACS Case Summary at PA-ACS-782.
Katz Decl. Ex. C.
Alford Decl. Ex. U, Docket Entry 100-8.
As noted above, a parent and child "have a parallel liberty interest in not being separated." P.A. , 44 F. Supp. 3d at 299. Here, questions of fact preclude awarding summary judgment to plaintiffs or defendants on plaintiffs' non-kinship placement claim.
A jury might find that defendants acted reasonably, or at least were not grossly negligent, when they decided not to place P.A. and J.A. with Alford. Alford was living in a shelter, and it was apparently unclear whether two additional children could be housed there. In addition, Alford had been the subject of allegations of domestic violence. Although ACS had concluded by January 6, 2010, that the children could appropriately be placed with Alford, Rodriguez at that time raised new allegations of abuse by Alford's girlfriend.
A jury might also conclude, though, that defendants were grossly negligent and thereby violated plaintiffs' rights not to be separated from each other and Alford's right not to be separated from P.A. ACS notes from 2007 indicated that Alford provided P.A. with a good home, where P.A. seemed well-adjusted and happy. By January 6, 2010, the only impediment to placing J.A. and P.A. with Alford was an allegation made by Rodriguez about abuse by Alford's girlfriend. However, a notation made by defendant Salemi in the records of ACS from September 29, 2009 refers to Rodriguez as an "habitual liar." ACS Progress Notes at PA-ACS-112. At his deposition, Salemi again described Rodriguez as a "pathological liar." Salemi Dep. at 135. Defendant Rosado similarly testified that she quickly concluded that Rodriguez was untrustworthy. Rosado Dep. at 70-71. Based upon this evidence, a finder could conclude that it was unreasonable for defendants to alter their view that J.A. and P.A. should be living with their father based upon Rodriguez' uncorroborated allegation. Finally, by January 15, 2010, Rodriguez had retracted her allegation against Alford's girlfriend, expressed surprise that the children were not with Alford, and described Alford as a "good man." Nevertheless, defendants made no effort to transfer custody to Alford, choosing instead to await the next court appearance scheduled for January 26, 2010. Particularly in light of the troubling events taking place with respect to P.A. and J.A. at the foster home during this period, discussed in greater detail below, a finder could reasonably conclude that it was grossly negligent not to have transferred the children to Alford's care by, at the latest, January 15, 2010.
Alford Decl. Ex. K.
Alford Decl. Ex. D, Docket Entry 97.
Alford Decl. Ex. A, Docket Entry 96-1.
Finally, based on virtually the same record described above, Judge Gleeson determined that P.A.'s claim that he was unreasonably denied a kinship placement raised triable issues of fact. P.A. , 44 F. Supp. 3d at 309. Accordingly, and for the reasons discussed above, I respectfully recommend that the parties' cross-motions for summary judgment on plaintiffs' non-kinship placement claims be denied.
b. Plaintiffs' Quality of Care Claim
Things did not go well for P.A. and J.A. after they were transferred to non-kinship foster care. The stress P.A. was under and the erratic behavior he exhibited are discussed in Judge Gleeson's decision. P.A. , 44 F. Supp. 3d at 307. While the facts concerning J.A. are somewhat less dramatic, they are nevertheless disturbing.
As early as January 5, 2010, Moran, the caregiver in the foster home, reported that J.A. "barely eats, and is very skinny" and that P.A. "hits the other children" in her care. ACS Progress Notes at PA-ACS-204-05. On January 6, Moran reiterated that P.A. was hitting the other children in her care, and stated that J.A. "will not eat [much]" and wets her bed every night. Id. at 205. On January 11, 2010, Moran told an ACS caseworker that P.A. "is behaving badly, jumping, hitting everybody," that she "cannot sleep when [he is awake]," that he will "not go to bed," that he had spread feces on the bathroom wall, that he would "throw [another child's] things all on the floor, including his pampers, wipes," that he hit the one-year old in Moran's care, and that he hit J.A. in the face. During the same conversation, Moran reported that J.A. tends to copy what P.A. does. ACS Progress Notes at PA-ACS-0217. Rodriguez testified at her deposition that she had a supervised visit with her children on January 7, 2010, and noticed that J.A. had two scratches on her face. Rodriguez Dep. at 137:5-139:13.
Alford Decl. Ex. K.
Katz Decl. Ex. C.
Katz Decl. Ex. K, Docket Entry 178-12.
On January 13, 2010, Moran reported that P.A. "told [J.A.] he was going to kill her," that P.A. "hits her," and that P.A. "pushed [J.A.] from the bed to the floor, and she was crying." Moran stated further that P.A. "will tell [J.A.] not to eat anymore, because he wants more food." ACS Progress Notes at PA-ACS-0221. On January 21, 2010, Moran stated that "[P.A.] took [J.A.] by the neck." Id. at PA-ACS-0224. P.A. continued to hit J.A. up until the time he ran away. Id. at PA-ACS-0230.
Katz Decl. Ex. C.
In addition to suffering the hitting, deprivation of food, and other harms specifically directed towards her, J.A.—a four-year-old child placed in a home where her brother was the only person familiar to her—was also forced to witness P.A.'s psychological deterioration, as described in the portion of Judge Gleeson's decision cited above. For example, on January 21, 2010, during a visit by defendant Anderson, P.A. "went into the kitchen and took the scissors and acted as though he would cut his wrist." Id. at PA-ACS-0226. And, of course, after repeatedly threatening to run away, P.A. did so on January 22, 2010, and has apparently not been seen since. Id. Indeed, it was J.A., at the age of four, who was called upon to alert Moran that her brother was gone. Id. at PA-ACS-0230.
As discussed above, "children in foster care [have] a substantive due process right to protection from harm" under the Fourteenth Amendment. Marisol A. by Forbes v. Giuliani , 929 F. Supp. 662, 675 (S.D.N.Y. 1996) (collecting cases). The right is not limited to protection from physical harm; children placed in foster care have a "right to be free from unreasonable and unnecessary intrusions into their emotional well-being." Id.
Although his focus was on P.A., Judge Gleeson's conclusion that a jury could reasonably find that defendants failed to properly discharge their responsibilities, see P.A. , 44 F. Supp. 3d at 306, applies to J.A. as well. As demonstrated above, the evidence presented by plaintiffs could lead a finder to conclude that P.A. repeatedly struck J.A., took her food, grabbed her by the neck, and pushed her out of her bed. A jury could also find that J.A. suffered emotionally by observing her brother smearing feces on the wall, threatening to cut himself with kitchen scissors, attempting to "escape" his foster care setting, and hitting other children as young as one year old. These events are all recounted in progress notes maintained by ACS, and it is therefore clear that defendants knew, or at least should have known, about them. In fact, in the course of a series of emails shared with defendants Rosado, an ACS caseworker, and Villalta, a caseworker with SVS, defendant Anderson, also of SVS, wrote that P.A. "was saying that he would hurt himself if he can't go home, and that he was going to hurt/kill his sister [J.A.] because she keeps getting him in trouble." SVS/ACS Emails at SVS 02920.
Katz Decl. Ex. Q, Docket Entry 178-18.
Defendants' failure to take action in response to the troubling events involving P.A. and J.A. might be found to have been grossly negligent, especially when alternative kinship placements were available. As noted above, the home of a second-degree cousin was identified as a suitable kinship placement as early as December 31, 2009. By January 6, 2010, all initial concerns about placement with Alford had been resolved, with the exception of a new allegation made by Rodriguez; Rodriguez, however, was by then recognized by ACS to be a completely untrustworthy PCP addict. Moreover, by January 15, 2010, Rodriguez had withdrawn her allegation, yet defendants still took no steps to transfer custody of P.A. and J.A. to their cousin or father. A finder could also conclude that it was grossly negligent for ACS and SVS supervisors not to have taken a more active role in overseeing the placement of P.A. and J.A. in non-kinship foster care, especially in light of the circumstances described above. It is telling in this regard that the ACS supervisor involved, defendant Salemi, stated in his deposition that he had access to J.A. and P.A.'s progress reports but "probably didn't look [at them]" although he may have "glanced" at them. Salemi Dep. at 217:1-21.
Katz Decl. Ex. A, Docket Entry 178-2.
Judge Gleeson concluded from the evidence presented in connection with the motions he reached that
a jury could reasonably find that [P.A.]'s behavior demanded greater urgency and more attention than [P.A.]'s caregivers provided. At the same time, a jury could also reasonably conclude that the defendants' response to the warning signs did not amount to gross negligence. For these reasons, summary judgment is not appropriate.
P.A. , 44 F. Supp. 3d at 307. The same applies with respect to the evidence concerning J.A. Indeed, a CPS assigned to ACS's Office of Special Investigations examined the circumstances of P.A.'s disappearance after it occurred and concluded that the placement of P.A. and J.A. with Moran was an error, that "there were many mileposts along the way" that should have alerted ACS caseworkers, and that "[t]he agency ... should have said, ‘Well, if [P.A.]'s trying to leave, let's put him somewhere else before he absconds, you know, not only with himself but with his sister.’ " Mitchell Dep. at 18, 52, 506-07. Accordingly, for all the reasons stated above, I conclude that there are genuine issues of material fact with respect to whether defendants were grossly negligent in failing to move P.A. and J.A. from the Moran household to the home of their cousin or father.
Alford Decl. Ex. M, Docket Entry 100.
3. Qualified Immunity
The individual defendants argue for dismissal on grounds of qualified immunity. Public officials are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (internal quotation marks omitted). "A right is clearly established when [t]he contours of the right ... [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. Qualified immunity is an affirmative defense and it is incumbent upon the defendant to plead[ ] and adequately develop that defense." Southerland , 680 F.3d at 141 (internal quotation marks and citations omitted) (alterations in the original). Simply put, a public official is entitled to qualified immunity "if ‘officers of reasonable competence could disagree’ on the legality of the action at issue in its particular factual context." Manganiello v. City of New York , 612 F.3d 149, 165 (2d Cir. 2010) (internal citation omitted).
Judge Gleeson has already determined that
qualified immunity in this case turns on the facts, not on any judgment about legal uncertainty.... If a jury finds that the individual defendants were grossly negligent, then their conduct violated clearly established rights, and no reasonable person in their position could have believed otherwise.... [T]he qualified immunity defense is inextricably
bound up in the facts of the case, and cannot be resolved at the summary judgment stage.
P.A. , 44 F. Supp. 3d at 307-08. Accordingly, Judge Gleeson denied defendants' motion for summary judgment on grounds of qualified immunity, with one exception: Judge Gleeson held that qualified immunity barred the claim asserted by Rodriguez for failure to care for P.A. because a parent's due process right to the proper care of her removed child was not clearly established at the time P.A. and J.A. were placed in non-kinship foster care. P.A. , 44 F. Supp. 3d at 314.
Although the portion of Judge Gleeson's decision referenced in the text addresses whether to grant summary judgment on grounds of qualified immunity to employees of SVS, I see no relevant distinction between those employees and the individual defendants who were employed as ACS caseworkers.
Judge Gleeson's decision is law of the case. I therefore respectfully recommend that the motions of the individual defendants for summary judgment on grounds of qualified immunity be denied with respect to plaintiffs' non-kinship placement claim, denied with respect to J.A.'s quality of care claim, and granted with respect to Alford's quality of care claim.
4. Municipal Liability
Neither the City nor SVS "may ... be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell v. Dep't of Soc. Servs. of City of New York , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, plaintiffs must identify a "custom" or "policy" that caused the injury sued upon before liability under § 1983 may attach. Id. This "ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality." Bd. of the Cty. Comm'rs of Bryan Cty., Okla. v. Brown , 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
To hold a municipality liable requires proof of a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation," which may be demonstrated by showing that (1) a formal policy was promulgated or adopted by the City, (2) an official with policymaking authority took action or made a specific decision which caused the alleged violation of constitutional rights, or (3) an unlawful practice by subordinate officials exists and was so permanent or well settled so as to constitute a custom or usage and that the practice was so widespread as to imply the constructive acquiescence of policymaking officials. Green ex rel. T.C. v. Mattingly , 2010 WL 3824119, at *11 (E.D.N.Y. Sept. 23, 2010) (internal quotation marks and citation omitted).
Judge Gleeson has already considered the Monell claims asserted by P.A. based upon essentially the same evidentiary record presented here, and he largely rejected those claims. P.A. , 44 F. Supp. 3d at 308 (as to SVS) and 309 (as to the City). As they did before Judge Gleeson, though, plaintiffs point to evidence from which a jury could conclude that ACS caseworkers, as a matter of policy, generally do not review foster care placements until twenty days after the ICSC. See Salemi Dep. at 38-44. A jury could reasonably find that the application of that policy, in light of the facts at issue in this case, deprived plaintiffs of their substantive due process rights. Judge Gleeson denied summary judgment with respect to P.A.'s Monell claim against the City based upon application of its 20-day policy and the resulting failure to change P.A.'s placement to kinship foster care before he disappeared. P.A. , 44 F. Supp. 3d at 309. For the same reasons, and applying the doctrine of law of the case, I recommend that defendants' motions to dismiss the Monell claims against SVS and the City be granted, except that the motion for summary judgment on the Monell claims against the City based upon application of the 20-day rule be denied.
Katz Decl. Ex. A.
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D. Plaintiffs' State Law Claims
The City and SVS seek dismissal of plaintiffs' state law claims. Their argument, though, is that those claims should be dismissed because plaintiffs' federal law claims should be dismissed. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim [properly before the court] if ... the district court has dismissed all claims over which it has original jurisdiction"); United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ("[I]f the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well"). Because I recommend that defendants' motions for summary judgment on plaintiffs' federal claims be denied in part, at least some of plaintiffs' federal claims will survive if my recommendations are adopted. I therefore further recommend that defendants' motions for summary judgment on plaintiffs' state law claims be denied.
CONCLUSION
This Court recognizes that ACS workers must make difficult decisions on a daily basis. "If they err in interrupting parental custody, they may be accused of infringing the parents' constitutional rights. If they err in not removing the child, they risk injury to the child and may be accused of infringing the child's rights." Van Emrik v. Chemung Cty. Dep't of Soc. Servs. , 911 F.2d 863, 866 (2d Cir. 1990). Nevertheless, the evidence presented by the parties raises material questions of fact about whether the allegations made by Rodriguez should have been taken seriously as a reason not to place the children with their father on January 6, 2010, whether the children should have been placed with Alford on January 15, 2010, when those allegations were retracted, and whether in any event the children should have been promptly removed from Moran's foster care as soon as the disturbing series of events that eventually culminated in P.A.'s disappearance began.
For all of the foregoing reasons, I respectfully recommend that Alford's motion for summary judgment be denied and that the defendants' motions for summary judgment be granted in part and denied in part as indicated above. More specifically, I respectfully recommend that (1) plaintiff Alford's motion for summary judgment be denied; (2) defendants' motion for summary judgment on plaintiffs' procedural due process claims be granted; (3) defendants' motion for summary judgment on plaintiffs' substantive due process non-kinship placement claims be denied; (4) defendants' motion for summary judgment on plaintiffs' substantive due process quality of care claims be denied with respect to J.A.'s claim and granted with respect to Alford's claim on grounds of qualified immunity; and (5) defendants' motion for summary judgment on plaintiffs' Monell claims be denied as to defendant City with respect to the City's alleged 20-day policy and granted in all other respects.
Any objections to the recommendations made in this Report must be submitted within fourteen days after filing of the Report and, in any event, no later than September 1, 2017. See 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. Proc. 72(b)(2). Failure to file timely objections may waive the right to appeal the District Court's order. See Small v. Sec'y of Health & Human Servs. , 892 F.2d 15, 16 (2d Cir. 1989) (discussing waiver under the former ten-day limit).
SO ORDERED.