OPINION

ROBERT SWEET, Senior District Judge

Defendants Julie Kronfeld ("Kronfeld"), John Harte ("Harte"), the Board of Education of the City of New York (the "Board"), Edwounie Fleury ("Fleury"), Dorothy Baker ("Baker"), Audrey Eadey ("Eadey"), Nicholas Scoppetta ("Scoppetta" or the "Commissioner"), the Administration for Children's Services of the City of New York ("ACS"), and the City of New York (the "City") (collectively, the "City Defendants" or the "Defendants") have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., to dismiss the amended complaint of Lauren Shapiro ("Shapiro"), individually and on behalf Max Sanders ("Max") and Fay Sanders ("Fay") (collectively, the "Plaintiffs"). For the reasons set forth below, the motion is granted, and the complaint dismissed.

The Parties

Shapiro is the mother of Max and Fay and is divorced from their father, Ira Sanders ("Sanders").

Kronfeld is a school social worker at P.S./I.S. 187. Harte is the principal of P.S./I.S. 187. Fleury is a caseworker for ACS. Baker is her supervisor. Eadey is Borough Director of ACS. Scoppetta was the Commissioner for Children's Services of the City of New York. ACS is an agency of the City. Kronfeld, Harte, Fleury, Baker and Eadey (the "Individual Defendants") were employed by the City or one of its agencies or the Board at all relevant times.

Prior Proceedings

This action was initiated on August 23, 2000 by the filing of a complaint, followed by the filing of an amended complaint (the "Amended Complaint") on March 15, 2001. The Amended Complaint alleges violations of 42 U.S.C. § 1983 related to the removal of Max and Fay from Shapiro and the subsequent investigation and prosecution of Shapiro for neglect.

Twelve causes of action have been asserted: (1) the deprivation of Plaintiffs' liberty in violation of the Fourth, Fifth and Fourteenth Amendments of the United States Constitution; (2) the removal and detention of Max and Fay without probable cause in violation of the same amendments; (3) the malicious prosecution of Shapiro in violation of the Fourth and Fourteenth Amendments; (4) the malicious continuation of the neglect prosecution in violation of the Fourth and Fourteenth Amendments and the failure of the Commissioner, ACS and the City to train employees with regard to conducting and completing neglect and abuse investigations and prosecutions in violation of the Fourth, Fifth and Fourteenth Amendments; (5) damage to Shapiro's family integrity; (6) malicious prosecution in retaliation, in violation of the First Amendment; (7) gross negligence in the conduct of the investigation and deliberate indifference and respondeat superior; (8) emotional distress and respondeat superior; (9) bad faith of Kronfeld and respondeat superior; (10) bad faith of Fleury and respondeat superior; (11) gross negligence in the failure of ACS to provide services; and (12) breach of fiduciary duty of confidentiality of the implied contract of confidentiality and negligent disclosure and training against the Jewish Board of Family and Children's Services ("JBFCS") and its employee Frances Handler-Igna ("Handler-Igna").

By order of July 25, 2001 rendered upon an oral opinion, the Honorable Allen G. Schwartz dismissed the action against the JBFCS and Handler-Igna for lack of jurisdiction, denied the motion to dismiss of the City Defendants, and disqualified counsel for the infant Plaintiffs.

After the untimely death of Judge Schwartz, the action was reassigned to this Court on April 16, 2003. Discovery proceeded, the City Defendants filed the instant motion, and Max was dismissed from the case by order and stipulation of the parties on April 5, 2004. Following submission of Shapiro's opposition and the City Defendants' reply, the motion was marked fully submitted on July 21, 2004.

The Facts

The City Defendants' Statement of Undisputed Facts pursuant to Local Civil Rule 56.1 contains 61 paragraphs and 25 exhibits. Shapiro's Statement pursuant to Local Civil Rule 56.1 contains 90 paragraphs and 12 exhibits. The City Defendants' Response contains 29 paragraphs and 3 exhibits. The following facts are contained in the described submissions and are undisputed except as noted. Certain of the alleged factual disputes have been resolved by reference to the documents cited by the parties.

During the academic year 1997-98, Shapiro met with the then school social worker and arranged for her son Max to participate in a children's divorce group at the school because of his difficulties around the parents' divorce. Max had been seeing a therapist privately. Shapiro approached Kronfeld, the replacement for the previous social worker, about setting up the group. Shapiro made an appointment to see Kronfeld who informed Shapiro that she would not be continuing with a divorce group. According to Shapiro, she arranged for Max to see Kronfeld individually because she felt he was in need of help, despite his success in school, participation in the honors program and after school activities, and perfect attendance record.

In October 1998, Shapiro's former husband, Sanders, filed a custody petition in the Bronx Family Court, seeking custody of Max and Fay following a petition by Shapiro to modify the support agreement. Thereafter, Sanders amended his custody petition to allege that Shapiro inflicted excessive corporal punishment on Max. (See December 15, 2003 Decision Order, annexed to the Declaration of Jane R. Goldberg, dated Mar. 31, 2004 ("Goldberg Decl."), as Exhibit B, at 2.) The Bronx Family Court appointed Mildred McMahon, Esq. ("McMahon"), as law guardian for Max and Fay in connection with the custody case. McMahon also served as the children's law guardian during the subsequent neglect proceeding.

Kronfeld was the school social worker at P.S./I.S. 187 and, according to the City Defendants, the mandated reporter pursuant to New York Social Service Law § 411.

According to the City Defendants, in November 1998, Shapiro requested that Kronfeld counsel Max because he was a behavioral problem at home and would not obey her. According to Shapiro, she told Kronfeld he had kicked his sister, broken the door to his room and had been locked out of the apartment to enforce time-outs. Shapiro had previously told Kronfeld that she locked Max in his room and locked him out of the apartment as punishment. According to Shapiro, there are six other apartments on the floor, several of which were then occupied by families with young children. It was not uncommon for the children in the building to be in the hallway playing or in and out of each other's apartments. Max was ten years old at the time, was 4'3" tall and weighed approximately eighty pounds.

On Tuesday, February 23, 1999, according to Shapiro, she sought Kronfeld's help because of Max's conduct, specifically his refusal to obey the rules of the home and his aggressive conduct which Shapiro attributed to Sanders. The substance of the conversation between Kronfeld and Shapiro is disputed.

According to Shapiro, on February 24, 1999, or the day prior, Max had tried to kick Fay in the head as Shapiro was driving them to school and had also tried to kick the gearshift.

On the morning of February 24, Kronfeld met with Max who said he was afraid to return home that night because Shapiro beat him with a shoe, locked him out of the apartment, and poured cold water on him in the bathtub. Max reported that he felt he would be in danger if he returned to his mother's home. Shapiro concedes Kronfeld's testimony but has denied beating Max with a shoe.

Kronfeld testified that she consulted with her supervisor, Susan Glazer, who suggested that she speak with Harte, then principal of P.S./I.S. 187, before reporting the suspected abuse. Harte spoke with Max privately to verify what Max had told Kronfeld, and directed Kronfeld to call the State Central Registry ("SCR"). Kronfeld also testified that Harte stated that she (Kronfeld) would be making the report as an exception to the usual procedure.

Kronfeld reported that afternoon to the SCR that Max was afraid to go home because Shapiro beat him with a shoe, poured cold water on him in the bathtub and regularly locked him out of the apartment. (See generally Report of Suspected Child Abuse or Maltreatment, dated Feb. 24, 1999 (the "Report"), Goldberg Decl., Exh. F.) According to Shapiro, Kronfeld failed to use appropriate professional judgment regarding Max and Shapiro. That same afternoon, Max and Fay went to Sanders' home after school pursuant to the custody agreement between Shapiro and Sanders.

That same day, February 24, 1999, the ACS initiated an investigation concerning Shapiro after receiving the Report from the SCR that had been called in by Kronfeld. Shapiro has denied that an investigation was commenced but admitted that ACS became involved with her family on that date.

ACS received the SCR Report after 4:00 p.m. on the day in question and assigned the case to Fleury, who testified that she asked Sanders to keep the children until she had the opportunity to interview them. She testified further that she interviewed both children at Sanders' home that evening and observed that Max had a bruise on his shin and that Max told Fleury that he was injured when Shapiro hit him and he fell and that Shapiro beat him on his face and body, had locked him in his room by chaining the door when he behaved badly, put him out in the hallway at times for as long as half an hour, and threw cold water on him when he was taking a bath. According to Fleury, Max told her he was afraid to go home, and Fay confirmed Max's statements to Fleury. (See March 16, 1999 Testimony, Goldberg Decl., Exh. G, at 10-13; April 25, 2000 Testimony, Goldberg Decl., Exh. G, at 8-23; February 20, 2001 Testimony, Goldberg Decl., Exh. G, at 83-100.) Shapiro has admitted that Fleury testified as set forth but has denied the underlying facts.

Fleury testified that she interviewed Shapiro later that night, that Shapiro told her that she smacked Max and locked him in his room in the past and locked him out of the apartment. Shapiro has admitted that Fleury testified to that effect but states that she told Fleury that she did not beat the children, that Max cursed at her and that she did not hit him in the face.

Based on her interviews with Shapiro and the children, Fleury directed Sanders to keep the children until she spoke with her supervisors the following day, February 25, 1999. (See March 16, 1999 Testimony, Goldberg Decl., Exh. G, at 16.) Shapiro has asserted that Fleury told her the children would remain with Sanders. Baker contacted the school on February 25, a Thursday, and directed the school not to release the children to Shapiro, stating that the children had been temporarily placed with their father.

On Monday, March 1, 1999, three business days after the SCR Report was made, the ACS filed Article 10 petitions against Shapiro. The petitions alleged that (1) Max told Kronfeld and Fleury that Shapiro hit him, locked him either in his room or out of the apartment as punishment, and poured cold water on him in the bathtub; (2) Fay told Fleury that she had been hit in the mouth by Shapiro, and that Shapiro hit Max with a shoe and locked him either in his room or out of the apartment for long periods of time; (3) Shapiro admitted to Fleury that she hit Max with her hands, locked him in his room by chaining the door, locked him out of the apartment for short periods of time, poured cold water on him, and considered tying Max's hands together to keep him in his room.

That same day, at a preliminary hearing in the Bronx Family Court, the Honorable John M. Hunt remanded Fay and Max to ACS custody, with privilege of parole granted to their father, Sanders, because "[the] children would be in danger due to excessive corporal punishment." (March 1, 1999 Orders, Goldberg Decl., Exh. I.)

Shapiro, through her attorney, sought the return of the children pursuant to Section 1028 of the Family Court Act. According to Shapiro, at the close of the March 24, 1999 hearing, McMahon, the children's law guardian, argued that Max was not in any physical danger in Shapiro's home, that he needed immediate psychological attention and that he wanted to be with his father for more time at that stage in his life, and that he had told her he would consent to be half and half. On March 24, 1999, Judge Hunt directed ACS to return Fay to Shapiro, but denied Shapiro's application for Max's return, "thereby finding that the return of Max to Respondent posed an imminent risk to the child's life or health." (June 13, 2002 Decision Order, Goldberg Decl., Exh. B. at 4.) Judge Hunt ordered ACS to provide services and to arrange counselling between Max and Shapiro.

During March 1999, Fleury referred Shapiro and Sanders to parenting classes, but Shapiro only attended one class. Fleury also spoke with a social worker at JBFCS's Riverdale office with regard to Shapiro's intake appointment, and referred Shapiro to another JBFCS program at Co-op City Family Services. According to Shapiro, ACS and the other Defendants failed to provide the support and assistance ordered by Judge Hunt.

In April 1999, ACS facilitated supervised visitation and family therapy between Shapiro and Max through the JBFCS program in Riverdale which Shapiro had previously sought. JBFCS terminated the family therapy in July 1999, after Shapiro expressed dissatisfaction with the therapist, Handler-Igna, and Handler-Igna expressed concerns about the interaction between Shapiro and Max.

In May 1999, ACS referred Shapiro to Kingsbridge Heights Community Center for Preventive Services, but Shapiro refused to sign an authorization for the release of her prior counseling records and rejected the services. The rejection, according to Shapiro, resulted because she believed Fleury sought the records of her prior treatment.

In June 1999, Shapiro referred herself to Pius XII for preventive services, and ACS then arranged for Pius XII to provide preventive services to Shapiro. Shapiro did not cooperate with ACS in connection with the referrals it made, according to the testimony of Fleury and Shapiro.

That same month, both the custody and neglect cases were reassigned to the Honorable Marion Shelton who continued Judge Hunt's order paroling Max to his father and commenced fact-finding in the neglect case.

McMahon, the law guardian for the children, filed an affidavit in August 1999 indicating that the children had not described any act or behavior by Shapiro that indicated that they were in danger in any way.

On at least three occasions — October 19, 1999, April 10, 2000 and April 25, 2000 — Judge Shelton ordered that there would be no family therapy between Max and Shapiro until Shapiro first engaged in individual therapy, which she refused to do. (See December 15, 2003 Decision Order, Goldberg Decl., Exh. B, at 4, 7 n. 3.) This finding is denied by Shapiro, who contends that she made efforts to find a therapist.

On or about May 4, 2000 Judge Shelton recused herself. On September 5, 2000, both of the cases were reassigned to the Honorable Carol Ann Stokinger, who declared a mistrial on consent of the parties. (See id. at 4.)

On November 21, 2000 Judge Stokinger began fact-finding in the neglect case. Shapiro would not consent to release her prior treatment records in order to facilitate family therapy.

On February 20, 2001 Judge Stokinger awarded temporary custody of Max to Sanders after Shapiro stated that she did not want further supervised visitation and would not authorize the release of prior treatment records. Shapiro admitted that she had not cooperated with ACS.

Shapiro repeatedly declined Judge Stokinger's offer of supervised visitation with Max, even on September 13, 2001 in the wake of the World Trade Center tragedy. (See id. at 7-8.) Shapiro would not contact Max by mail or phone, and did not send Max gifts. Shapiro attended Max's bar mitzvah (which she opposed) but did not speak to Max and left before the conclusion of the ceremony. (See id. at 8.) Shapiro denies these findings in general terms.

On August 14, 2001, at the request of Shapiro's counsel in the federal action, who suggested the possibility of a global settlement, the Family Court agreed to hold the neglect trial in abeyance and proceed with the custody case.

The custody trial commenced on December 21, 2001. During the course of the trial, Shapiro called eighteen witnesses and testified on her own behalf. The Family Court appointed a forensic examiner, and in June 2002 and November 2003 the Court conducted in camera interviews of Max and Fay. (See id. at 4.)

Shapiro was represented by private counsel during the Family Court proceeding, and was thereafter represented by a total of five attorneys in the Bronx Family Court until December 2001. The Family Court denied Shapiro's request for another assigned counsel.

Family therapy began again in January 2002 at Judge Stokinger's direction but was discontinued after it was reported that "respondent used the sessions to express her anger and negative feelings towards Max, rather than to make any significant overtures towards Max." (Id. at 7.) These findings are denied in general by Shapiro.

In May 2002, Shapiro filed a motion seeking Judge Stokinger's recusal. On June 13, 2002 Judge Stokinger denied Shapiro's motion. Shapiro's motion for leave to appeal from this order, and motion to stay all proceedings pending determination of said appeal were denied by the Appellate Division, First Department. (See August 15, 2002 Orders, Goldberg Decl., Exh. Q.)

On July 9, 2002, in response to in camera interviews with Max and Fay, Judge Stokinger ordered that family therapy would not recommence until Shapiro engaged in individual therapy. (See July 9, 2002 Order, Goldberg Decl., Exh. E, at 36.) Shapiro appealed this order to the Appellate Division, First Department, and requested a stay of proceedings and of the Order pending appeal. The Appellate Division denied Shapiro's request. (See September 5, 2002 December 12, 2002 Orders, Goldberg Decl., Exh. Q.)

Shapiro did not engage in individual therapy until January 2003. (See July 9, 2002 Order, Goldberg Decl., Exh. E, at 103.) Shapiro has denied these findings in general terms.

On November 7, 2002 the Appellate Division granted Shapiro's motion to proceed in forma pauperis and appointed counsel to represent her. (See November 7, 2002 Order, Goldberg Decl., Exh. Q.)

On December 2, 2002 the Family Court denied Shapiro's motion to dismiss the neglect petitions, and Shapiro filed a motion to dismiss in the Appellate Division, First Department. (See January 21, 2003 Order, Goldberg Decl., Exh. Q.)

On February 21, 2003 Judge Stokinger denied another motion to dismiss the neglect proceedings. (See February 21, 2003 Order, Goldberg Decl., Exh. B.) Shapiro then asked Judge Stokinger to hold the custody case in abeyance and proceed with the neglect petitions. The Family Court denied this request, noting that it had adjourned the neglect case at the request of Shapiro's counsel in this action.

Shapiro filed an appeal from Judge Stokinger's order to the Appellate Division, First Department, and a motion in the Appellate Division, First Department, to direct the Family Court to reconsider the motion to dismiss, asking the Appellate Division to dismiss the ACS case sua sponte. The Appellate Division, First Department, denied these requests. (See April 1, 2003 Order, Goldberg Decl., Exh. Q.)

On May 9, 2003 Shapiro's court-appointed appellate attorney filed a motion to stay the custody proceeding. On May 30, 2003 the Appellate Division denied Shapiro's motion for a stay of the custody proceedings pending determination of Shapiro's appeals from the Family Court's orders of July 9, 2002 and February 21, 2003. (See May 30, 2003 Order, Goldberg Decl., Exh. Q.)

During the course of her testimony in the custody proceeding, Shapiro admitted that she had hit Max, had chained the door to his room so that he could not get out, locked him out of the apartment, and threw water on him.

On May 21, 2003 Shapiro testified that she had not complied with the Family Court's order that she engage in individual therapy. Shapiro further testified that she did not think it appropriate for her to have conversations with Max, or to write a note to him that she loved him. She testified that she may have told Max that she wished he had not been born.

Shapiro's motion in the Appellate Division to stay the Family Court's orders of July 9, 2002 and October 30, 2002 directing her to engage in individual therapy was denied on September 3, 2003. (See September 3, 2003 Order, Goldberg Decl., Exh. Q.)

On December 15, 2003 Judge Stokinger issued a decision and order awarding custody of Max to Sanders, noting that both the law guardian and the court-appointed forensic examiner recommended that custody of Max be awarded to Sanders. Based on Max's age, 15 years, his wishes, and Shapiro's lack of contact with him, Judge Stokinger awarded no visitation with Max to Shapiro, but permitted contact by letter or e-mail. Despite her concerns about Shapiro's ability to parent Fay, Judge Stokinger awarded custody of Fay to Shapiro. (See December 15, 2003 Decision Order, Goldberg Decl., Exh. B. at 12-14.)

Judge Stokinger found that "Max did not fare well in [Shapiro's] care," that Shapiro used unacceptable physical forms of punishment such as throwing cold water at him and frequently slapping and striking him, and that Shapiro had rejected Kronfeld's suggestion that she seek outside help for herself and the children. (Id. at 5-6.)

Judge Stokinger found that Shapiro discontinued supervised visitation at JBFCS "because she found it humiliating and spent the time in family therapy criticizing and blaming Max." (Id. at 6.)

Concerning the pending neglect petitions, Judge Stokinger stated that during the custody trial, "facts were established from which the Court could find that Shapiro was responsible for Max being a `neglected child' as defined in Section 1012 of the Family Court Act and the Court could make a derivative finding as to Fay." (Id. at 14.)

Judge Stokinger found that the Court had attempted to provide services to the family, but that without Shapiro's cooperation, the Court could not provide aid, and that without a change in Shapiro's attitude toward Max, family therapy would be detrimental to Max. Based on these determinations, Judge Stokinger concluded that there are no services or aid that the Court could provide to the family, and dismissed the neglect petitions pursuant to Section 1051(c) of the Family Court Act, which states that,

If . . ., in a case of alleged neglect, the court concludes that its aid is not required on the record before it, the court shall dismiss the petition and shall state on the record the grounds for the dismissal.

N.Y. Family Court Act § 1051(c).

Shapiro has filed appeals from the Family Court's custody and neglect decisions, in which she claims that the neglect issues are not moot because the Family Court found that there were sufficient facts established during the custody trial to find neglect as to both children.

The Summary Judgment Standard

Summary judgment is granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004); see generally 11 James Wm. Moore, et al., Moore's Federal Practice ¶ 56.11 (3d ed. 1997 Supp. 2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995).

A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248; see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson, 477 U.S. at 248; see also Ouarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) ("[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment.").

In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). "Summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law."Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). In order to defeat a motion for summary judgment, the non-moving party must offer sufficient evidence to enable a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248;Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). In other words, the non-moving party "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto, 143 F.3d at 114-15. Summary judgment is warranted "when the nonmoving party has no evidentiary support for an essential element on which it bears the burden of proof." Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991).

Discussion I. The Rooker-Feldman Doctrine Does Not Bar Consideration of Certain of Plaintiffs' Claims

Defendants argue that certain of Plaintiffs' claims, including their claims that ACS violated their rights under the Fourth, Fifth and Fourteenth Amendments when it removed Max and Fay, investigated allegations of child neglect, and prosecuted child neglect petitions against Shapiro, are barred by theRooker-Feldman doctrine. See generally District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983);Rooker v. Fidelity Trust, 263 U.S. 413 (1923). "Under theRooker-Feldman doctrine, a federal court has no subject matter jurisdiction over a case that seeks to reverse or modify a state court decision, or a case in which the federal claims are `inextricably intertwined' with the merits of the state court's judgment." Velez v. Reynolds, 325 F. Supp. 2d 293, 305 (S.D.N.Y. 2004) (citing Phifer v. City of New York, 289 F.3d 49, 55-56 (2d Cir. 2002); Moccio v. New York State Office of Court Admin., 95 F.3d 195, 198 (2d Cir. 1996); Harp v. City of New York, 218 F. Supp. 2d 495, 498 (S.D.N.Y. 2002)).

The Second Circuit has defined "inextricably intertwined" as meaning, "at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding . . ., subsequent litigation of the claim will be barred under theRooker-Feldman doctrine if it would be barred under the principles of preclusion." Moccio, 95 F.3d at 199-200. In other words, "[a] federal claim is inextricably intertwined with a state court judgment if the `federal district court would necessarily have to determine that the state court erred in order to find that the federal claims have merit.'" Torres v. Family Court/Admin. for Children's Servs., No. 01 Civ. 4351 (RWS), 2001 WL 1111510, at *2 (S.D.N.Y. Sept. 20, 2001) (quoting Khal Charidim Kiryas Joel v. Village of Kiryas Joel, 935 F. Supp. 450, 455 (S.D.N.Y. 1996)).

Defendants have previously filed a motion to dismiss Plaintiffs' claims on Rooker-Feldman grounds. In a July 25, 2001 decision, Judge Schwartz denied Defendants' motion. According to Shapiro, Judge Schwartz's rulings constitute law of the case and preclude application of the Rooker-Feldman doctrine at this juncture.

"The doctrine of the law of the case `posits that if a court decided a rule of law, that decision should continue to govern in subsequent stages of the same case.'" Aramony v. United Way, 254 F.3d 403, 410 (2d Cir. 2001) (citing In re Crysen/Montenay Energy Co., 226 F.3d 160, 165 n. 5 (2d Cir. 2000), cert. denied, 532 U.S. 920 (2001)). "Courts apply the law of the case doctrine when their prior decisions in an ongoing case either expressly resolved an issue or necessarily resolved it by implication."Id. (citation omitted). Application of the law of the case doctrine is discretionary, however, "and does not limit a court's power to reconsider its own decisions prior to final judgment.'"Id. (quoting Crysen/Montenay, 226 F.3d at 165 n. 5 (quotingSagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 277 (2d Cir. 1996))).

Under the circumstances presented, it is not necessary to revisit Judge Schwartz's decision. As Judge Schwartz stated on July 25, 2001, the Amended Complaint was upheld only insofar as it stated a facially adequate § 1983 complaint arising out of the initial emergency custody decision. In announcing this decision, Judge Schwartz carefully noted that his conclusion was not made in the summary judgment context and did not deal with qualified immunity. (See Transcript of July 25, 2001, annexed to the Declaration of Marcia Goffin, dated Apr. 28, 2004, as Exhibit 2, at 20-32.) Accordingly, the principle of the law of the case does not foreclose application of the Rooker-Feldman doctrine here.

To determine whether the Rooker-Feldman doctrine may be applied in this case, it must first be determined whether the principles of preclusion (i.e., res judicata or collateral estoppel) bar Plaintiffs' claims. Res judicata will not bar a plaintiff's Section 1983 claims where the previous litigation was in Family Court, as that court may not award monetary damages, however "collateral estoppel can be applied to the plaintiff's section 1983 claims to determine whether they are barred underRooker-Feldman." Phifer, 289 F.3d at 56. Under New York law, collateral estoppel or issue preclusion will bar claims if "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995); accord Vargas v. City of New York, 377 F.3d 200, 204 (2d Cir. 2004); Phifer, 289 F.3d at 56. Defendants bear the burden of showing that the issues at stake here were previously decided by the Family Court and the Appellate Division, as they are the parties asserting issue preclusion, while Plaintiffs bear the burden of demonstrating that there was no full and fair opportunity to litigate the issues. See Velez, 325 F. Supp. 2d at 305 (citing Colon, 58 F.3d at 869).

The issues raised here are the constitutionality of the removal of the infant Plaintiffs prior to the issuance of a court order, the neglect investigation and the prosecution of Shapiro for neglect. "When a plaintiff challenges the constitutionality of official conduct after a state family court has already decided issues of removal and neglect, the court must engage in `a careful analysis of the basis for the individual claims in light of the information presented to the family court and the family court's ultimate factual findings and legal conclusions.'" Velez, 325 F. Supp. 2d at 305 (quoting Park v. City of New York, No. 99 Civ. 2981 (LBS), 2003 WL 133232, at *10 (S.D.N.Y. Jan. 16, 2003)).

To the extent that Plaintiffs have brought claims of constitutional dimension regarding the initial removal of the infant Plaintiffs prior to the issuance of a court order, their claims are not barred by the Rooker-Feldman doctrine. Plaintiffs' claims depend on whether "exigent" or "emergency" circumstances justified the removal of Max and Fay without prior court authorization. See Tenenbaum v. Williams, 193 F.3d 581, 594-95, 604-05 (2d Cir. 1999). An emergency removal is only warranted if ACS did not have sufficient time, consistent with the children's safety, to seek and obtain prior court authorization. See id. at 596. Although at the preliminary hearing of March 1, 1999, the Family Court determined that removal was necessary because the children "would be in danger due to excessive corporal punishment" (March 1, 1999 Orders, Goldberg Decl., Exh. I), this ruling did not address whether there was a sufficient basis to seize the children prior to a hearing. In other words, a general conclusion that continued removal is warranted "cannot constitute a specific finding that caseworkers lacked reasonably sufficient time to obtain a court order prior to seizing the children from school." Velez, 325 F. Supp. 2d at 306. Accordingly, Plaintiffs' claims as to the constitutionality of the initial seizure were not actually decided by the Family Court at the preliminary hearing or at any of the subsequent court proceedings identified by Defendants, and they are not barred by the Rooker-Feldman doctrine.

Plaintiffs' claims concerning the neglect investigation and prosecution present a closer question, as a determination by this Court that Plaintiffs' constitutional rights were violated by the neglect investigation and the prosecution of neglect petitions would call into question the validity of the orders denying Shapiro's motion to dismiss the neglect petitions and the orders, concluding that facts had been established from which the Family Court could find that Shapiro was responsible for Max being a neglected child. See, e.g., Mercedes ex rel. Brown v. Blue, No. 00 Civ. 9225 (RMB), 2004 WL 2202578, at *8 (S.D.N.Y. Sept. 30, 2004) (concluding that the Rooker-Feldman doctrine barred consideration of the plaintiff's claim for malicious prosecution in Family Court); Saint-Fleur v. City of New York, No. 99 Civ. 10433 (WHP) (AJP), 2000 WL 280328, at *6 (S.D.N.Y. Mar. 14, 2003) (deeming the plaintiffs' complaint, including a claim of malicious prosecution in Family Court, barred by theRooker-Feldman doctrine to the extent that the complaint appeared to be collaterally attacking the judgment of the Family Court). Whether these claims are barred by the Rooker-Feldman doctrine need not be conclusively determined, however, as even if these issues were not actually and necessarily decided in the Family Court and Shapiro had not enjoyed a full and fair opportunity to litigate the issues there, Plaintiffs' claims concerning the neglect investigation and prosecution fail on the merits, as discussed below.

II. Summary Judgment Is Appropriate as to Plaintiffs' Federal Claims

"Section 1983 imposes liability on anyone who, under color of state law, deprives a person `of any rights, privileges, or immunities secured by the Constitution and laws.'" KA Radiologic Tech. Servs., Inc. v. Comm'r of Dep't of Health, 189 F.3d 273, 280 (2d Cir. 1999) (quoting Blessing v. Freestone, 520 U.S. 329, 340 (1997)). The "core purpose of § 1983 is `to provide compensatory relief to those deprived of their federal rights by state actors.'" Hardy v. New York City Health Hosps. Corp., 164 F.3d 789, 795 (2d Cir. 1999) (quoting Felder v. Casey, 487 U.S. 131, 141 (1988)); accord Kia P. v. McIntyre, 235 F.3d 749, 755 (2d Cir. 2000), cert. denied, 534 U.S. 820 (2001).

The first inquiry in addressing a Section 1983 claim is whether the actions alleged by the plaintiffs come within the definition of `under color of state law.' See id.; accord Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997). As the Court of Appeals for the Second Circuit has explained, 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.'" Kia P., 235 F.3d at 755 (quoting Carlos, 123 F.3d at 65). It is undisputed that the City Defendants were acting under color of state law with regard to the actions at issue.

The second inquiry under Section 1983 is whether the actions under color of state law were deprivations of a constitutional or federal statutory right. See Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir. 2004); Hayut v. State Univ. of New York, 352 F.3d 733, 743-44 (2d Cir. 2003).

Here, even drawing every inference in favor of Shapiro, as is required, see Gibbs-Alfano, 281 F.3d at 18, there are no material facts properly in dispute as to the key period under consideration. From the time of the initial conversation between Kronfeld and Max on February 24, 1999 and the order of removal of Max and Fay from Shapiro to Sanders, and the hearing on that removal by Judge Hunt on March 1, 1999, the only evidence is the sworn testimony of Kronfeld and Fleury. Although this testimony is challenged by Shapiro as a general proposition, she has presented no material facts to dispute the testimony of the eye-witnesses to events and statements outside her presence, and conclusory statements fail to defeat a motion for summary judgment. See Ying Jing Gan, 996 F.2d at 532. On this record, summary judgment dismissing the federal claims raised in Plaintiffs' Amended Complaint is appropriate for the multiple reasons stated below. A. The Fourteenth Amendment Claims Are Dismissed

It is well established that parents "have a constitutionally protected liberty interest in the care, custody and management of their children," and family members have a fundamental right under the Fourteenth Amendment to remain together. Tenenbaum, 193 F.3d at 593; see also Velez, 325 F. Supp. 2d at 303. Although "the State has a profound interest in the welfare of the child," any interference with family integrity must be in accord with procedural and substantive due process guarantees, as well as rights under the Fourth Amendment, among other provisions.Tenenbaum, 193 F.3d at 593-94; see also Phifer, 289 F.3d at 57-62; Kia P., 235 F.3d at 757-63. Procedural due process "generally requires a hearing prior to depriving a parent of custody or a prompt post-deprivation hearing if the child is removed under emergency circumstances," while substantive due process protects against "arbitrary government intrusions by requiring a reasonable basis or justification for such actions."Velez, 325 F. Supp. 2d at 303.

1. The Fourteenth Amendment Procedural Due Process Claims Are Dismissed

"In reviewing procedural due process claims, courts must first determine whether a person has been deprived of a protected liberty interest. The court must then determine what, if any, constitutional process is due." Hollenbeck v. Boivert, 330 F. Supp. 2d 324, 332 (S.D.N.Y. 2004).

"As a general rule . . . before parents may be deprived of the care, custody, or management of their children without their consent, due process — ordinarily a court proceeding resulting in an order permitting removal — must be accorded to them."Tenenbaum, 193 F.3d at 593. In emergency circumstances, however, "a child may be taken into custody by a responsible State official without court authorization or parental consent."Id. at 594 (internal quotation marks and citations omitted). "Emergency circumstances are those in which `the child is immediately threatened with harm, for example, where there exists an immediate threat to the safety of the child, or where the child is left bereft of care and supervision, or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence.'" Hollenbeck, 330 F. Supp. 2d at 332 (quoting Hurlman v. Rice, 927 F.2d 74, 81 (2d Cir. 1991)). "If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization,ex parte or otherwise, for the child's removal, then the circumstances are not emergent." Tenenbaum, 193 F.3d at 594. "The government must offer `objectively reasonable' evidence that harm is imminent." Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (citing Gottlieb v. County of Orange, 84 F.3d 511, 520 (2d Cir. 1996), certified questions answered by Nicholason v. Scoppetta, ___ N.Y.2d ___, 2004 WL 2381177 (N.Y. Oct 26, 2004); Hurlman, 927 F.2d at 81).

a. The Investigation

Plaintiffs allege that their procedural due process rights were violated when Kronfeld, a certified school social worker and mandated reporter, filed a report with the SCR, triggering an investigation into allegations of child abuse and neglect against Shapiro. (See Am. Compl. ¶ 38.)

As found above, Kronfeld called the SCR after Max, whom she had been counseling, told her that Shapiro beat him with a shoe, locked him out of the apartment, and poured cold water on him in the bathtub, all of which caused him to believe that he was in danger. Max's statements were confirmed by what Shapiro had previously reported to Kronfeld about the punishment that she inflicted on Max. Kronfeld called the SCR at the direction of the school principal, Harte, who herself had spoken independently with Max.

Kronfeld and Harte are mandated reporters under New York Social Service Law ("SSL") § 413. Based on Max's statements to them about his mother's treatment of him and his fear of returning home, they had reasonable cause to suspect that Max had been maltreated by his mother, and a legal obligation to make a report so that the matter could be investigated by the proper authorities.

As a mandated reporter pursuant to SSL § 413, and pursuant to Chancellor's Regulation A-750 (concerning reports of suspected child abuse), Kronfeld was required to report cases of suspected child abuse or maltreatment. Shapiro has not supplied any evidence to contravene Kronfeld's testimony as to the statements made to her by Max. As a matter of law, Kronfeld's good faith in making the report is presumed. See, e.g., Lentini v. Page, 5 A.D.3d 914, 915, 773 N.Y.S.2d 472, 473-74 (N.Y.App.Div. 3d Dep't 2004). Plaintiffs' due process claims against Kronfeld and Harte arising out of the Report to SCR are therefore dismissed.

Plaintiffs further allege that their constitutional rights were violated because Shapiro was investigated for child neglect. (See Am. Compl. ¶ 38.) The right to family integrity does not include a constitutional right to be free from child abuse investigations. See Brown v. Town of East Haddam, 56 F. Supp. 2d 212, 214-15 (D. Conn. 1999) (concluding that a bruise and a child's statements provided a reasonable basis to make a mandatory report) (citing Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993)), aff'd, 213 F.3d 625 (2d Cir. 2000); see also Croft v. Westmoreland County Children Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997).

ACS is mandated to conduct an investigation when it receives a report from the SCR, and must "include an evaluation of the environment of the child named in the report and any other children in the same home and a determination of the risk to such children if they continue to remain in the existing home environment. . . ." SSL § 424(6); see also Nicholson, 344 F.3d at 159. Therefore, Plaintiffs' procedural due process rights were not violated by ACS's initiation of an investigation into Max's allegations against Shapiro.

b. The Custody Decision

Plaintiffs claim a violation of their procedural due process rights because Fay and Max were removed prior to the issuance of a court order. Shapiro has cited no authority for her assumption that ACS's direction to Sanders that he retain custody of his children constitutes a removal. Compare, e.g., Hollenbeck, 330 F. Supp. 2d at 332 ("In order to state a procedural due process claim, therefore, plaintiffs must allege that the children were removed without parental permission and without Court authorization.") (emphasis supplied); but see In re Alexandra N., 159 Misc. 2d 345, 349, 604 N.Y.S.2d 471, 473 (N.Y. Fam. Ct. Kings Cty. 1993) (concluding that a father with joint legal custody was entitled to § 1028 hearing where the Commissioner of Social Services intended to release his daughter to the temporary custody of her mother).

It is Shapiro's contention that Max was removed under provisions relating to a charge of abuse while the petition upon which Judge Hunt acted charged neglect and that abuse allegations are required. Our Circuit has held to the contrary, namely, that the "exigent circumstances" exception to parents' due process rights permits removal of a child "if they [state actors] believe that life or limb is in immediate jeopardy." Phifer, 289 F.3d at 61 (quoting Tenenbaum, 193 F.3d at 604) (internal quotation marks and citation omitted). This "exigent circumstances" exception applies to both abuse and neglect cases. See id.

Fleury initiated her investigation after receiving the SCR report late in the afternoon of Wednesday, February 24, 1999. Max and Fay were at their father's home pursuant to their parents' custody agreement, which Sanders had already petitioned to modify. According to Fleury's undisputed testimony, both children confirmed that Shapiro beat Max on his face and body, had locked him in his room when he behaved badly by chaining the door, put him out in the hallway at times for as long as half an hour, and threw cold water on him when he was taking a bath. Max expressed fear of returning to his mother's home. Fleury then asked Sanders to retain custody of the children while she interviewed Shapiro. Shapiro admitted hitting Max, locking him in his room, and locking him out of the apartment as punishment. Based on her interviews with Shapiro and the children, Fleury directed Sanders to keep the children until she spoke with her supervisors the following day. Fleury interviewed Kronfeld and the school guidance counselor the next day, and a decision was made in consultation with her supervisors to file Article 10 petitions alleging neglect.

It is well settled that case workers are entitled to "unusual deference" in connection with child abuse and neglect investigations. Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104-05 (2d Cir. 1999); see also Park, 2003 WL 133232, at *10. Fleury's investigation into Max's allegations against his mother provided a more than reasonable basis for concluding that the children were subjected to excessive corporal punishment, and were in danger of further physical harm if left with their mother. The beating, hitting and lock-out which Max reported to Kronfeld, Harte and Fleury and which was confirmed by Fay thus establish that there was an objectively reasonable basis to believe that an emergency existed that required the immediate removal of Max and Fay from the custody of their mother pursuant to SSL § 1024. See Gottlieb, 84 F.3d at 520.

Within three business days of the custody decision by ACL, on March 1, 1999, ACS commenced Family Court proceedings by filing petitions pursuant to Article 10 of the Family Court Act. At a preliminary hearing on that day, the Family Court granted remand of the children to the custody of the Commissioner of ACS, and privilege of parole to Sanders, finding that "the removal is necessary because children would be in imminent danger due to excessive corporal punishment." (March 1, 1999 Orders, Goldberg Decl., Exh. I.)

While ACS had custody of the children, they continued to reside with their father. Under similar circumstances, courts have held that such a short-lived and relatively non-disruptive removal does not violate due process. See, e.g., Taylor v. Evans, 72 F. Supp. 2d 298, 308 (S.D.N.Y. 1999) (concluding that due process had not been violated where children were removed for only four days prior to a preliminary hearing and were placed with their grandmother) (citing Cecere v. City of New York, 967 F.2d 826, 830 (2d Cir. 1992) (holding that a four-day delay in post-deprivation hearing, including a weekend, was constitutionally permissible where emergency removal was justified)); see also Kia P., 235 F.3d at 760-61.

Accordingly, Plaintiffs' claims for violation of procedural due process based on the children's removal are dismissed.

2. The Fourteenth Amendment Substantive Due Process Claims Are Dismissed

"Substantive due-process rights guard against government's exercise of power without any reasonable justification in the service of a legitimate governmental objective." Tenenbaum, 193 F.3d at 600 (citing County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)) (internal quotation marks omitted). The substantive due process claim asserted by Plaintiffs here is sometimes described as the right to "family integrity," or the right "`to remain together without the coercive interference of the awesome power of the state.'" Id. (citing Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977)). While the right to family integrity is a constitutionally-protected liberty interest, "it does not automatically override the sometimes competing `compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.'" Kia P., 235 F.3d at 758 (quoting Wilkinson, 182 F.3d at 104).

A plaintiff seeking to prevail on a claim must establish that the separation from her children was "`so shocking, arbitrary, and egregious that the Due Process clause would not countenance it even were it accompanied by full procedural protection.'"Anthony v. City of New York, 339 F.3d 129, 143 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 600). "[B]rief removals generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal." Nicholson, 344 F.3d at 172 (citingTenenbaum, 193 F.3d at 600-01 n. 12).

In this case, Max and Fay stayed with their father for four days, including a weekend, prior to the filing of the Article 10 petitions and the preliminary hearing. In fact, Sanders had weekend custody under the divorce decree, custody which he was in the process of seeking to extend. This brief removal prior to the hearing is not "so shocking, arbitrary and egregious" that it violated Plaintiffs' substantive due process rights. Tenenbaum, 193 F.3d at 600 (explaining that "`[o]nly the most egregious official conduct can be said to be arbitrary in the constitutional sense'" and therefore unconstitutional) (quotingLewis, 523 U.S. at 846).

B. The Fourth Amendment Claims Are Dismissed

Plaintiffs claim that the Individual Defendants violated the Fourth Amendment by initiating and conducting an investigation into allegations of child abuse and neglect (see Am. Compl. ¶ 38), removing and detaining Fay and Max without probable cause (see Am. Compl. ¶ 42), maliciously and wrongfully prosecuting Shapiro for child abuse and neglect (see Am. Compl. ¶ 45), and continuing the neglect prosecution. (See Am. Compl. ¶ 48).

Plaintiffs' only potentially viable Fourth Amendment claim concerns the alleged warrantless seizure of Max and Fay, assuming that Fleury's instructions to Sanders to keep the children constitutes a warrantless seizure. The Fourth Amendment "applies in the context of the seizure of a child by a government agency official during a civil child-abuse or maltreatment investigation." Nicholson, 344 F.3d at 172 (citing Kia P., 235 F.3d at 762). However, the warrantless seizure of a child by government officials "pursuant to a child abuse or neglect proceeding is reasonable if it is justified by `exigent circumstances.'" Park, 2003 WL 133232, at *11 (citing Phifer, 289 F.3d at 61). In Tenenbaum the Second Circuit expressly held that:

[W]here information possessed by a state officer would warrant a person of reasonable caution in the belief that a child is subject to the danger of abuse if not removed from school before court authorization can reasonably be obtained, the "exigent circumstances" doctrine too permits removal of the child without a warrant equivalent and without parental consent.

Shapiro asserts that Kronfeld, Fleury, Baker and Eadey maliciously prosecuted her for neglect, and that Fleury, Baker and Eadey maliciously continued the prosecution in violation of her rights under the Fourth and Fourteenth Amendments. (See Am. Compl., ¶¶ 45, 48). In order to state a claim for malicious prosecution under Section 1983, Shapiro must prove the elements of malicious prosecution under state law. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). Therefore, Shapiro must show that a proceeding was commenced or continued against her without probable cause and with actual malice, and that the proceeding was terminated in her favor. See id. In addition, Shapiro must establish a violation of her rights under the Fourth Amendment.See Washington v. County of Rockland, 373 F.3d 310, 316 (2d Cir. 2004) ("[O]nly those claims of malicious prosecution that implicated Fourth Amendment rights were appropriate bases for malicious prosecution claims brought under § 1983."); see also Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997) (citingAlbright v. Oliver, 510 U.S. 266 (1994)).

Civil proceedings as a general rule do not support Section 1983 claims based on malicious prosecution. See Washington, 373 F.3d at 317 (explaining that the case law of this circuit "does not forbid a § 1983 malicious prosecution claim premised on a civil or administrative proceeding; however, because such claims must . . . be premised on a violation of Fourth Amendment rights, it is unlikely that a civil proceeding of the kind at issue here [an administrative proceeding] would implicate constitutional rights in a manner that would warrant redress under § 1983");Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992) (concluding that where a plaintiff was subject only to civil, not criminal, liability, any abuse would have been malicious abuse of process rather than malicious prosecution). The possibility that a civil proceeding could give rise to a malicious prosecution claim may not have been foreclosed completely, however. See Washington, 373 F.3d at 317; Taylor, 72 F. Supp. 2d at 315 (noting that the Second Circuit has "left open the rather narrow possibility that a civil malicious prosecution may conceivably rise to constitutional dimensions"); see also Yuan v. Rivera, 48 F. Supp. 2d 335, 349 (S.D.N.Y. 1999) ("[T]he groundless initiation of a case in Family Court may give rise to a claim for malicious prosecution.").

Even if a state child removal proceeding could give rise to a Section 1983 claim for malicious prosecution, however, Plaintiffs' claim fails here. Kronfeld had a reasonable basis for making a report to the SCR, and Fleury had probable cause to direct Sanders to keep custody of the children. In light of the Family Court and Appellate Division decisions continuing the neglect proceedings against Shapiro, there are no facts established sufficient to constitute malice. Finally, Shapiro cannot establish that the Family Court proceedings terminated in her favor. In her final decision and order, Judge Stokinger awarded custody of Max to his father, and stated that the record supported a finding that Max was a neglected child and that Fay could be found a neglected child derivatively. Accordingly, Shapiro is unable to establish, as she must, that the final disposition by the Family Court is indicative of innocence in order to demonstrate that she had a favorable termination of the proceedings against her. See Murphy, 118 F.3d at 948 (quotingRussell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995) ("In the absence of a decision on the merits, the plaintiff must show that the final disposition is indicative of innocence.")). For these reasons, Shapiro's malicious prosecution claims are dismissed.

D. The First Amendment Retaliation Claim Is Dismissed

Shapiro alleges that defendants Fleury, Baker and Eadey maliciously continued to prosecute her in retaliation for reporting their actions to the Office of Public Advocate ("Public Advocate") in violation of her First Amendment rights. (See Am. Compl. ¶ 55.) In order to establish her Section 1983 retaliation claim, Shapiro must show that (1) the conduct was protected by the First Amendment, and that (2) Defendants' actions were motivated by or substantially caused by her exercise of free speech. See, e.g., Posr v. Court Officer Shield # 207, 180 F.3d 409, 418 (2d Cir. 1999) (citing Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994)); see also Morris ex rel. Morris v. Dapolito, 297 F. Supp. 2d 680, 693 (S.D.N.Y. 2004) (collecting cases from the Court of Appeals for the Second Circuit suggesting that a third element, the actual chilling of the plaintiff's First Amendment right, must also be established).

Shapiro has the burden of producing evidence from which the inference can be drawn that Defendants had an improper motivation in continuing to prosecute the neglect petitions. See Yuan, 48 F. Supp. 2d at 351. A letter from the Public Advocate to the Appellate Division, First Department, states that Shapiro first contacted the Public Advocate in June 1999, as of which time the Family Court had already determined that it would conduct fact-finding in the neglect case. None of the judges who were assigned to hear the neglect case dismissed the petitions. In view of these facts, Shapiro has not established any nexus between her contact with the Public Advocate and Defendants' prosecution of the neglect petitions. Plaintiffs' retaliation claim is dismissed.

E. The Fifth Amendment Claims Are Dismissed

Plaintiffs claim that Defendants violated their rights under the Fifth Amendment by initiating and conducting an investigation into allegations of child abuse and neglect, and removing and detaining Max and Fay without probable cause and due process. (See Am. Compl. ¶¶ 38, 42.) The Fifth Amendment pertains only to the federal government. Plaintiffs have not alleged any "federal action" in violation of their due process rights, nor has Shapiro set forth any argument in this regard in her opposition papers. Therefore, their Fifth Amendment claims are dismissed. See Taylor, 72 F. Supp. 2d at 305 n. 3.

F. The Individual Defendants Are Entitled To Qualified Immunity

In addition to the reasons just stated, Plaintiffs' federal claims against the Individual Defendants must be dismissed for the independent reason that they are entitled to qualified immunity.

The defense of qualified immunity is available as to Section 1983 claims involving a government actor performing a discretionary task if "`(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.'" Wilkinson, 182 F.3d at 103 (quotingTierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998)). In the context of child abuse or neglect proceedings, the Second Circuit has applied a deferential standard, emphasizing that "courts must apply the `reasonable basis' test to permit investigators considerable discretion in the abuse context." Wilkinson, 182 F.3d at 106; see also Phifer, 289 F.3d at 61 (applying this discretion to neglect cases — "exigent circumstances" test applies to both abuse and neglect cases). As the Second Circuit stated in Tenenbaum:

[P]rotective services caseworkers [must] choose between difficult alternatives. . . . 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. It is precisely the function of qualified immunity to protect state officials in choosing between such alternatives, provided that there is an objectively reasonable basis for their decision, whichever way they make it.

No violation of any clearly established law is apparent here, and it has been concluded above that it was objectively reasonable for the school social worker and principal to report to the SCR their suspicions concerning possible abuse or neglect based on what Max had reported to them. See Preston v. New York, 223 F. Supp. 2d 454, 471 (S.D.N.Y. 2002) (concluding that a minor's report of an incident provides sufficient factual basis to give rise to reasonable suspicion of child abuse, which is all that is required to trigger mandatory reporting requirements) (citing, inter alia, Isabelle V. v. City of New York, 150 A.D.2d 312, 541, N.Y.S.2d 809, 809 (N.Y.App.Div. 1st Dep't 1989)), aff'd sub nom. Preston v. Quinn, 87 Fed. Appx. 221, 2004 WL 303944 (2nd Cir. Feb. 18, 2004) (unpublished); SSL § 419.

Indeed, as mandated reporters, Kronfeld and Harte are required to report suspected child maltreatment to the SCR. ACS is required by statute to investigate all reports forwarded to it by the SCR. Thus, based on the SCR report, Fleury was obligated to initiate an investigation. Given the facts adduced in that investigation regarding Shapiro's treatment of Max, Fleury, Baker and Eadey had a reasonable basis for the decision to file neglect petitions against Shapiro. In this case, when Fleury interviewed Max, he reiterated what he had told Kronfeld. On the facts found above, it was objectively reasonable for them to believe that an emergency situation existed that warranted a report to the SCR, an investigation into the allegations, the children's removal (insofar as they remained with their father), and the initiation of Family Court proceedings. The Individual Defendants are, accordingly, entitled to qualified immunity as to the federal claims against them.

G. The Claims Against Defendants Scoppetta, Harte, Baker And Eadey Are Dismissed

Plaintiffs' Section 1983 claims against Scoppetta and certain of the Individual Defendants fail for the additional reason that the predicate for individual liability under Section 1983 has not been established.

In order to establish individual liability for a damages claim under 42 U.S.C. § 1983, a plaintiff must show that the defendant was "personally involved" in the alleged constitutional deprivation. See Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986); Johnson v. City of New York, No. 99 Civ. 0048 (LTS) (THK), 2003 WL 1826122, at *10 (S.D.N.Y. Apr. 8, 2003). A defendant may not be held liable under Section 1983 merely because he or she holds a position of high authority. See Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004); Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Personal involvement of a supervisory official may be established by showing that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring.

Plaintiffs allege that Scoppetta's policies with regard to (1) investigating child abuse or neglect allegations; (2) removing and detaining children; (3) prosecuting claims of abuse and neglect; (4) continuing neglect prosecutions; and (5) family integrity, violated their constitutional rights. However, Plaintiffs do not allege, nor has Shapiro established, that former Commissioner Scoppetta: (1) directly participated in their case; (2) was informed of any issues concerning their case; (3) was grossly negligent in supervising subordinate ACS employees; or (4) had information indicating that the alleged violations had occurred. Therefore, Plaintiffs' Section 1983 claims against Scoppetta in his individual capacity are dismissed. See Black, 76 F.3d at 7.

Shapiro's sole allegation about Harte, the school principal, is that she "knew or should have known that there was no substance to these allegations" (Am. Compl. ¶ 20), and that Harte "knew there was nothing there" because Shapiro had allegedly told her that there might be a "false claim" filed. (August 19, 2003 Testimony, Goldberg Decl., Exh. D. at 72.) It is undisputed, however, that Harte spoke with Max prior to directing Kronfeld to call the SCR. There is no evidence that Harte did anything other than what she was obligated to do by law.

Beyond their involvement in the decision to file Article 10 neglect proceedings, there is no evidence that Baker, who was Fleury's supervisor, or Eadey, the case manager, were "personally involved" in Plaintiffs' case in a fashion to create liability for alleged violations of constitutional rights. Plaintiffs allege that no supervisor at ACS informed Shapiro of the allegations against her (see Am. Compl. ¶ 21), and that ACS failed to replace Fleury as it was ordered to do by Judge Shelton in November 1999. (See Am. Compl. ¶¶ 31-32). Shapiro testified that it was Eadey's job to produce Max for visitation when Baker and Fleury failed to do so, even though there was no court order that visitation take place. Eadey's only other involvement with the case was as recipient of a letter from the Public Advocate concerning Fleury.

Accordingly, since no facts have been established showing that Scoppetta, Harte, Baker or Eadey were personally involved in Plaintiffs' case in ways that implicate any violation of Plaintiffs' constitutional rights, individual liability such as would sustain a damages claim under 42 U.S.C. § 1983 has not been established.

H. The Claims Against The City Are Dismissed

In order to hold a municipality liable as a "person" within the meaning of 42 U.S.C. § 1983, a plaintiff must establish that the municipality was at fault for the constitutional injury he or she suffered, see Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978), in that the violation of the plaintiff's constitutional rights resulted from a municipal policy, custom or practice. See Monell, 436 U.S. at 694; Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). A plaintiff may satisfy the "policy, custom or practice" requirement in one of four ways.See Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996). The plaintiff may allege the existence of (1) a formal policy officially endorsed by the municipality, see Monell, 436 U.S. at 690; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question, see Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion);Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992); (3) a practice so consistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials, see Monell, 436 U.S. at 690-91; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees. See City of Canton v. Harris, 489 U.S. 378, 388 (1989). There must also be a causal link between the policy, custom or practice and the alleged injury in order to find liability against a municipality. See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).

"[A] single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). It is also well settled that a municipality may be found liable under Section 1983 only where the municipality itself causes the constitutional violation at issue. In other words, liability may not be predicated on a theory of respondeat superior or vicarious liability. See Monell, 436 U.S. at 694-95.

As a necessary predicate to municipal liability, plaintiffs must show that they sustained a constitutional injury. As this Court has stated, "a policy or custom that might authorize constitutionally violative behavior by itself does not result in municipal liability under Monell." Santiago v. City of New York, No. 90 Civ. 5233 (RWS), 1992 WL 116605, at *3 (S.D.N.Y. May 15, 1992) (citing Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). As concluded above, the federal claims against the Individual Defendants are dismissed. Accordingly, Plaintiffs cannot establish the required predicate to municipal liability.

Even if Plaintiffs had satisfied this first requirement, they must still establish a "policy, custom or practice." Monell, 436 U.S. at 694. Here, Plaintiffs have asserted in conclusory fashion that the policies of Defendants Scoppetta, ACS, Board, and the City concerning investigation of child abuse or neglect, removing and detaining children, and prosecuting claims of child abuse and neglect, violated their rights under the Fourth, Fifth and Fourteenth Amendments (see Am. Compl. ¶¶ 39, 43, 46, 49, 53), and that their failure to train employees in conducting and completing investigations and prosecutions for abuse and neglect violated their constitutional rights. (See Am. Compl. ¶ 50). These latter allegations, not supported by any evidence, are insufficient to establish municipal liability under Section 1983.See Durven D. v. Giuliani, No. 98 Civ. 0523 (JGK), 2000 WL 1145425, at *9 (S.D.N.Y. Aug. 11, 2000); Goode v. Winkler, No. 97 Civ. 8999 (SAS), 1999 WL 1067959, at *4 (S.D.N.Y. Nov. 23, 1999).

Moreover, to the extent that Plaintiffs rely on the conduct of the subordinate municipal Defendants as evidence of unconstitutional municipal policies, their claims have no merit. Plaintiffs must prove that the subordinate municipal Defendants' conduct is attributable to a policymaking official. See, e.g., Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004). As concluded above, the only specific evidence is that of the conduct of subordinate municipal employees resulting from Kronfeld's report. No connection has been established between an alleged ACS policy and the removal of Max and Fay to their father's custody, investigation of the SCR report, and prosecution of neglect petitions against Shapiro.See McSween v. Edwards, 91 F. Supp. 2d 513, 523-24 (E.D.N.Y. 2000) (dismissing claims against social workers and the city because it was objectively reasonable to continue neglect proceedings). No evidence has been adduced that any policymaking official ordered or ratified the alleged unconstitutional conduct of subordinate municipal employees, or was aware of their alleged unconstitutional actions and acquiesced in them. See Amnesty America, 361 F.3d at 126 (explaining that "where a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a deliberate choice, that acquiescence may be properly thought of as a city policy or custom that is actionable under § 1983") (internal quotation marks and citations omitted).

Any claim that Scoppetta is liable merely because he was the Commissioner of ACS is tantamount to a theory of vicarious liability and, for the reasons set forth above, is dismissed.See Dove v. Fordham Univ., 56 F. Supp. 2d 330, 336-37 (S.D.N.Y. 1999), aff'd sub nom. Dove v. O'Hare, 210 F.3d 354 (2nd Cir. 2000). Plaintiffs' claims against ACS and the Board are likewise dismissed as ACS and the Board are not suable entities.See Dove, 56 F. Supp. 2d at 337 (explaining that "the organizational subdivisions of the City of New York lack independent legal existence and are not suable entities") (citing, inter alia, N.Y. City Charter, Chapter 17, § 396).

III. The Remaining State Law Claims Are Dismissed

As Plaintiffs' Section 1983 claims are being dismissed for the reasons set forth above, the only remaining claims are those asserted under state law, specifically the claim for gross negligence in the conduct of the investigation and deliberate indifference, for which the liability of Scoppetta, ACS, the Board and the City is asserted on a theory of respondeat superior; the claim for emotional distress and respondeat superior; the claim for bad faith of Kronfeld and respondeat superior; the claim for bad faith of Fleury and respondeat superior; and the claim for gross negligence in the failure of ACS to provide services.

A. The Individual Defendants Are Entitled to Qualified Immunity on Plaintiffs' State Law Claims

New York law affords immunity to "those who participate in the investigation of or make a report of suspected child abuse of maltreatment, provided `they act within the scope of their employment and do not engage in willful misconduct or gross negligence.'" Lentini v. Page, 5 A.D.3d 914, 915, 773 N.Y.S.2d 472, 473 (N.Y.App.Div. 3d Dep't 2004) (quoting Van Emrik v. Chemung County Dep't of Soc. Servs., 220 A.D.2d 952, 953, 632 N.Y.S.2d 712, 714 (N.Y.App.Div. 3d Dep't 1995)). For mandatory reporters, good faith is presumed. See id. at 915, 773 N.Y.S.2d at 473. As the Appellate Division, Second Department, has stated:

The reporting requirements which trigger the qualified immunity provision contained in Social Services Law § 419 are not predicated upon actual or conclusive proof of abuse of maltreatment.

In this case, the Family Court testimony of Kronfeld and Fleury as well as Shapiro's admissions concerning her conduct toward Max establish that the Individual Defendants had reasonable cause to suspect that Max had been subjected to excessive corporal punishment. Therefore, Kronfeld's report to the SCR was made in good faith and the state law claims against her and Harte, the school principal who directed her to call the SCR, are dismissed.

Plaintiffs allege that Fleury, Baker and Eadey conducted the investigation into the allegations of neglect in a "grossly negligent manner," that Fleury acted in bad faith and "callous disregard" for Shapiro's rights in filing the neglect petitions, and that Defendants intentionally and in a grossly negligent manner, failed to meet an alleged special duty to Shapiro and Max. Shapiro has failed to produce any evidence of bad faith or gross negligence, which latter requires a showing of deliberate indifference or reckless disregard. See Taubin v. City of New York, 187 Misc. 2d 327, 332, 723 N.Y.S.2d 601, 605 (N.Y.Sup.Ct. Queens Co. 2001) (citing, inter alia, Doe v. New York City Dep't of Soc. Servs., 649 F.2d 134 (2d Cir. 1981)). These elements are not established by the record. Accordingly, Fleury, Baker and Eadey, are entitled to immunity pursuant to SSL § 419, and Plaintiffs' state law claims against them arising out of the removal, investigation, prosecution of the neglect petition are, accordingly, dismissed.

In light of the dismissal of the state law claims against Kronfeld, Harte, Fleury, Baker and Eadey, the claims against ACS, Scoppetta, the Board and the City premised on a theory ofrespondeat superior are also dismissed, as there can be no imposition of vicarious liability in the absence of underlying liability. See Wende C. v. United Methodist Church, 6 A.D.3d 1047, 1052, 776 N.Y.S.2d 390, 395 (N.Y.App.Div. 4th Dep't 2004) (collecting cases), appeal withdrawn, 3 N.Y.3d 655, 782 N.Y.S.2d 694, 816 N.E.2d 566 (N.Y. 2004).

B. The Negligence Claim Is Dismissed

Plaintiffs claim that Defendants "failed to meet their special duty to Shapiro and Max, arising following Judge Hunt's order directing defendant ACS provide them services. This failure was intentional and grossly negligence." (Am. Compl. ¶ 66.)

Defendants do not owe a special duty to Plaintiffs upon which liability may be predicated here. The New York Court of Appeals has stated that a special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefits of a particular class of person; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; and (3) when the municipality assumes positive direction or control in the face of a known, blatant and dangerous safety violation. See Pelaez v. Seide, 2 N.Y.3d 186, 199-200, 778 N.Y.S.2d 111, 118, 810 N.E.2d 393, 400 (N.Y. 2004).

In this case, the only way a special duty could only be found is by a violation of a statutory duty. In order to form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. Id. at 200, 778 N.Y.S.2d at 118, 810 N.E.2d at 400 (citing Sheehy v. Big Flats Cmty. Day, Inc., 73 N.Y.2d 629, 633, 543 N.Y.S.2d 18, 20, 541 N.E.2d 18, 20 (N.Y. 1989)). The New York Court of Appeals has held that in the performance of statutory obligations to provide preventive services, there is no private right of action for an alleged violation of SSL § 409-a, the provision that requires a social service agency to provide a plan for preventive services.See Mark G. v. Sabol, 93 N.Y.2d 710, 721, 695 N.Y.S.2d 730, 734, 717 N.E.2d 1067 (N.Y. 1999). No statutory duty or private right of action having been shown, Plaintiffs' claim based on an alleged breach of a special duty is dismissed.

Moreover, the Family Court determined that Shapiro was uncooperative with ACS's efforts to provide services to her and Max. (See December 15, 2003 Decision Order, Goldberg Decl., Exh. B, at 7-8). An agency that makes diligent efforts to encourage the parental relationship, but faces an uncooperative parent is deemed to have fulfilled its statutory duty. See In re Vincent Anthony C., 235 A.D.2d 283, 283, 652 N.Y.S.2d 289, 290 (N.Y.App.Div. 1st Dep't 1997) (concluding that the agency was excused from further efforts to encourage parental relationship where the mother refused to have therapy, attend parenting classes, or visit the child on a more consistent basis, affirming termination of parental rights).

The claim based on breach of a "special duty" is dismissed.

C. The Claim Of Emotional Distress Is Dismissed

Plaintiffs have alleged that "the intentional acts" of Kronfeld, Fleury, Baker and Eadey were "grossly negligent" and inflicted emotional distress on them for which Scoppetta, ACS, the Board and the City are liable under the doctrine ofrespondeat superior. (Am. Compl. ¶ 60.) No evidence has been adduced to support a finding of gross negligence or intentional infliction of emotional distress.

To state a claim for intentional infliction of emotional distress, a plaintiff must allege and establish (i) extreme and outrageous conduct, (ii) with the intent to cause emotional distress, (iii) a causal connection between the conduct and the alleged injury, and (iv) that plaintiff has suffered severe emotional distress. See Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996) (citing Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353, 612 N.E.2d 699, 702 (N.Y. 1993)). New York strictly applies each of these elements. See Howell, 81 N.Y.2d at 121, 596 N.Y.S.2d at 353, 612 N.E.2d at 702; Ahmed v. Gelfand, 160 F. Supp. 2d 408, 416 (E.D.N.Y. 2001).

For conduct to be sufficiently "extreme and outrageous" to give rise to a claim for intentional infliction of emotional distress, it must be "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86, 90 (N.Y. 1983); see also Howell, 81 N.Y.2d at 122, 596 N.Y.S.2d at 353, 612 N.E.2d at 702. ("Indeed, of the intentional infliction of emotion distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous."). Further, the conduct which allegedly caused the emotional distress must be intentionally directed at the plaintiff without any reasonable justification; a showing of gross recklessness is insufficient. See, e.g., Levin v. McPhee, 917 F. Supp. 230, 242-43 (S.D.N.Y. 1996) (concluding that a claim that another party defamed the plaintiff by alleging complicity in a murder was insufficient to make out a claim of intentional infliction of emotional distress), aff'd, 119 F.3d 189 (2d Cir. 1997).

Here, where the Individual Defendants acted in compliance with their statutory obligations under New York Social Service Law to report and investigate allegations of suspected child neglect, and ACS filed neglect petitions against Shapiro based on the interviews conducted, and the Family Court remanded the children to ACS custody, the Individual Defendants acted in good faith, as presumed by law. Plaintiffs' claim for emotional distress is dismissed.

Conclusion

Based on the facts and the conclusions as determined above, summary judgment is granted, dismissing the Amended Complaint in its entirety with costs.

It is so ordered.