Q. et al v. Caesar et al
Filing
101
MEMORANDUM AND ORDER granting 92 Motion; The defendants' motion for summary is granted with respect to the constitutional claims. The Court declines to exercise jurisdiction over the state law claims. The Clerk of Court is directed to enter judgment accordingly and to close the case. Ordered by Chief Judge Carol Bagley Amon on 9/21/2011. (fwd for judgment) (Fernandez, Erica)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
DENES Q. & ANN MARIE C., individually
and on behalf of their infant daughter, Y.Q.,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
07-CV-1281 (CBA) (JO)
Plaintiffs,
-againstJANET CAESAR et aL,
Defendants.
--------------------------------------------------------------;(
AMON, Chief United States District Judge:
Denes Q. and Ann Marie C. have filed a lawsuit, individually and on behalf of their
infant daughter Y.Q., against two private hospitals and a private physician (the medical
defendants), as well as the City ofNew York and several of its employees responsible for
detecting and preventing child abuse (the City defendants).
Relevant to this decision, the plaintiffs allege that the medical defendants illegally
detained and examined Y.Q. after her parents brought her to a private hospital in January 2006
with a burn that no one could explain, which led the medical defendants, and later the City
defendants, to suspect child abuse. They also allege that the medical defendants denied Y.Q. her
constitutional right to adequate medical care and illegally participated in the prosecution of
Denes and Ann Marie for child abuse. That prosecution lasted from January to March 2006.
The City defendants have settled. The medical defendants have moved for summary
judgment on the plaintiffs' federal constitutional and state law claims. For the reasons that
follow, the motion is granted with respect to the federal claims. The Court declines to exercise
jurisdiction of the state law claims.
I
BACKGROUND
l. Pre Hospital
On January 4, 2006, Denes and Ann Marie went to work and left their twenty-two month
old daughter Y.Q. with her regular babysitter. (Pl. R. 56.1 ~ 6.) Later that day, Denes's mother
retrieved Y.Q. from the babysitter and took her to the grandmother's house, which was across
the street from Denes and Ann Marie's house. (Id. ~ 7.) Sometime after 7:30p.m. that night,
Denes left work and traveled to his mother's house to retrieve his daughter. (Id.
~
8.)
When he arrived at his mother's house, Denes noticed that Y.Q. "was crying and being
very fidgety." (Denes Dep. 37.) Denes asked his mother what was wrong with his daughter, and
his mother said that she did not know and that Y.Q. was "just very cranky." (Id.) When Denes
lifted his daughter to leave, he noticed that her clothing smelled "like a degreaser." (Id. at 39.)
Soon after he arrived home, Denes went upstairs to change Y.Q.'s diaper. While
changing the diaper, Denes did not notice any marks on Y.Q., although he did notice that Y.Q.
"was very fidgety and unusually cranky." (Id. at 40.) While changing Y.Q.'s diaper, Denes
continued to smell what he identified as a de greaser. (I d.)
Denes then took his daughter downstairs, where she calmed a little but was still more
"fidgety" than normal. (Id. at 41.) Denes decided to take Y.Q. to her crib to make her more
comfortable. When he arrived at the crib he noticed for the first time that Y.Q. was wearing two
"onesies," which was unusual because he and Ann Marie never dressed Y.Q. in that way. (Id. at
42.) When he began to remove the outer onesie, Denes noticed a wet spot on both the inner and
outer onesie. (ld.) Denes smelled the wet spot and noticed that it smelled like degreaser.
Denes continued to remove the onesies, and it was then that he noticed for the first time a
mark on Y.Q.'s left chest. (Id. at 43.) The mark was about "two and a half, three inches'' in size
2
and "shaped like a tooth," meaning that it "had two roots and a circular portion on top." (I d.)
Denes described the mark as "red, yellow, brown, [and] green." (!d.) Upon discovering the
mark, Denes "just freaked and panicked and decided [that he] had to get to the emergency room
with [his] daughter" because "something was wrong with her." (I d.)
II. Hospital
Soon after Denes discovered the burn (which was at about 8:00p.m.), Ann Marie
returned home and she, Denes, and Denes's mother all took Y.Q. to the emergency room. (Id. at
44.) They went first to Forest Hills Hospital, a defendant in this action, which is a private
hospital that is owned by Long Island Jewish Medical Center, also a defendant in this action.
(Pl. R. 56.1
~~
3, 5.)
Doctors at Forest Hills examined Y.Q., determined that she had been burned, and
diagnosed her burn as a chemical burn, not a thermal burn. (I d.
~~
10, 96.) Relevant to this
litigation, chemical bums are less likely than thermal burns to be the result of child abuse. (I d.
~~
122, 124.)
When asked at Forest Hills to explain their daughter's injuries, neither Denes nor Ann
Marie was able to explain the burn, although they did explain their belief that Y.Q. had been
injured while in the care of her babysitter or grandmother. (ld.
~
11.) The babysitter (who was
contacted by telephone) could not explain the injury, and neither could the grandmother. (Denes
Dep. 59-61, 84-85.)
Later on the evening of January 4, 2006, Forest Hills staff, consistent with New York
law, which identifies them as mandated reporters, contacted the New York State Central Register
and reported that, because Y.Q. had a burn that none of her caregivers was able to explain, they
suspected that she was the victim of child abuse. (Pl. R. 56.1
3
~
13 .) The Central Register
forwarded the report to the New York Administration for Children's Services (ACS) for
investigation. (Id.
~
20.)
Later that night, or early on the morning of January 5, 2006, Forest Hills transferred Y.Q.
to Schneider Children's Hospital, which is also a private hospital owned and operated by Long
Island Jewish Medical Center and a defendant in this action. (Id.
~
21.)
One of the first doctors to examine Y.Q. on January 5, 2006 indicated that she had an
"unexplained injury" and that Debra Esernio-Jenssen, M.D., a child abuse specialist and member
of Schneider's Child Protection Team, should be contacted. (Ex. F 100092.) Dr. Jenssen
subsequently examined Y.Q. Her notes indicate that Y.Q.'s clothes had no smell (it is not clear
whether Y.Q. was still wearing the same onesies that she was wearing earlier) and that there
were no "splash marks" on Y.Q.'s chest. (Ex. F 100094.)
Dr. Jenssen also interviewed Denes and Ann Marie, as well as Denes's mother and the
babysitter who had cared for Y.Q. the previous day. (Pl. R. 56.1
~~
146-48.) Dr. Jenssen
testified that she conducted those interviews to determine the time at which the injury to Y.Q.
occurred. (Jenssen Dep. 54.) There is evidence that during some or all of these interviews, Dr.
Jenssen did not clearly identify herself as associated with Schneider's Child Protection Team.
(Pl. R. 56.1
~~
146-48.)
After her examination and interviews, Dr. Jenssen concluded that Y.Q.'s burn was the
result of contact with a hot liquid (i.e. it was a thermal burn), not contact with a chemical. (I d.
~
150.) Dr. Jenssen's interview report (dated January 6, 2006) shows that she further determined
that the burn "could certainly have resulted from an accidental spill" of hot liquid, as Y.Q.'s
grandmother had said that she had been making soup while in the kitchen with her
granddaughter, although the grandmother "denied [Y.Q.] having contact with soup or hot water."
4
(Ex. F 100125.) Dr. Jenssen further indicated that ''[b]oth parents and the sitter seemed to be
genuinely concerned and credible." (Ex. F at 100125-26.)
ACS notes indicate that on the evening of January 5, 2006, Dr. Jenssen spoke with ACS
and informed the agency that ''she didn't feel that it was an abusive injury, and that [she and a
Dr. Crystal] still didn't know what it was, and that she will interview the babysitter. Dr. Jenssen
stated that they still could not figure it out." (Ex. L 193.)
After her examination and interviews, Dr. Jenssen ordered that a retinal exam and
skeletal survey be performed on Y.Q. (Ex. F 100094.) Another physician who examined Y.Q.
upon arrival at Schneider had a similar recommendation, although the medical records, which
contain some illegible handwriting, do not clearly reveal the identity ofthe physician. (Pl. R.
56.1
~
32.)
Dr. Jenssen secured the consent of Y. Q.' s parents to perform these exams. (Ex. F
100094.) With respect to the skeletal survey, Denes testified that Dr. Jenssen explained to him
that she wanted to know the extent of Y.Q. 's injuries and that a "skeletal survey would be
something to help us understand how severe her injuries are or if she's hurt in any other way,
shape, or form.'' (Denes Dep. 58.)
Dr. Jenssen also explained to Denes and Ann Marie that, if the survey ruled out child
abuse (by, for example, failing to reveal evidence of suspicious healed breaks), ACS would end
its investigation. (Pl. R. 56.1
~
159.) Dr. Jenssen also suggested to Y.Q. 's parents that the more
they cooperated with ACS's efforts to determine whether Y.Q. had been abused, the sooner they
would be able to go home with their daughter. (Id.
~
160.)
With respect to the retinal exam, Dr. Jenssen told Denes that Y.Q.'s bum could have been
caused by contact with a chemical and that it was possible that some of the offending chemical
5
had entered Y.Q.'s eyes. (Id.) She explained to Denes that the eye exam could detect any
chemicals in his baby's eyes. (ld.)
Notwithstanding Dr. Jenssen's representations to Denes, the form requesting an
ophthalmology consultation states that the reason for the consult was to rule out shaken baby
syndrome; a shaken baby will have retinal hemorrhages that can be detected by the exam. (Pl. R.
56.1
~
158.) Dr. Jenssen did not tell Denes about the fact that a retinal exam is a tool used to
diagnose child abuse.
Both the skeletal survey and ophthalmology exams eventually came back negative. That
is, neither revealed any signs of abuse. (Ex. F I 001 0 I.)
Dr. Jenssen was not the only Schneider physician examining Y.Q. On January 6, 2006,
Burt Greenberg, M.D., a plastic surgeon, consulted on Y.Q. and recommended a course of
treatment, including a possible surgical debridement. (Pl. R. 56.1
~~
30, 162.) Also on January
6, 2006, both a pediatric dermatologist and an ophthalmologist examined Y.Q. (Id.
~
36.) The
dermatologist's report identifies Y.Q. as an inpatient with a "presumed chemical burn." (Ex. F
100128.) The ophthalmologist's report lists her as having a "chemical burn left chest." (Ex. F
100130.)
ACS notes from January 6, 2006, indicate that Dr. Jenssen communicated with ACS and
"stated that [Y.Q.'s] burn is a 3rd degree thermal (liquid) burn. Dr. Jenssen stated that it
appeared to be boiling water, clear liquid.... Dr. Jenssen stated that there was a mention of
soup cooking, maybe that had something to do with it." (Ex. L 196.)
On January 7 and 8, 2006, multiple physicians evaluated Y.Q., and they recommended
that she continue on the treatment course already established. (Pl. R. 56.1
6
~
37.) Medical
records indicate that Y.Q. was to be evaluated again on January 9, 2006 by a plastic surgeon to
determine whether her burn needed debridement. (Id.
~
38.)
ACS progress notes from January 9, 2006 indicate that Y.Q. 's case was "conferenced"
and that "[i]t was advised that since family had no explanation for injury and doctor's [sic] are
not conclusive, case must be referred to our legal division." (Ex. L 197.)
Later on January 9, 2006, at about 2:00p.m, a "Nurse Patty," from Schneider called ACS
about Y.Q. (Pl. R. 56.1
~
40.) According to ACS notes of the call, the nurse told ACS that Y.Q.
was '"ready for discharge." (Ex. L 197.) ACS informed the nurse that Y.Q. was not to be
discharged and that the nurse should speak with a "social worker." (Id.) ACS further told the
nurse that it would "inform her of any new details." (I d.)
At about 6:45p.m. on January 9, 2006, ACS asked Schneider to place a "social hold" on
Y.Q. (Pl. R. 56.1
~
42; Ex. F 100105.) Although the plaintiffs dispute the propriety ofthe social
hold, there does not appear to be any dispute about the fact that a social hold generally bars a
hospital from discharging a child like Y.Q. until ACS can arrange for her safe discharge. (Pl. R.
56.1
~
43.)
According to ACS progress notes, at some point after it was clear that ACS planned to
seek removal, an ACS employee informed Denes that "the case was going to court." (Ex. L
199.) Denes asked why, and he was told that "the baby had a serious injury, and nobody could
account for it. [The ACS employee] explained that it was difficult to send a child home not
knowing who did what to the child. [The ACS employee] explained that the child could be at
risk for further harm, because ACS did not know who did anything to the child." (Id.)
On January 10, 2006, although it is not clear precisely when, ACS formally decided to
pursue child abuse charges against Denes, Ann Marie, and Y.Q.'s grandmother. (Pl. R. 56.1
7
~
57.) That afternoon, ACS filed a petition in family court and asked that the court order Y.Q.
removed from her parents' custody. (Ex. G.) The petition identified as the persons "who are
responsible for the abuse and neglect" ofY.Q. as Denes, Ann Marie, Denes's mother, and the
babysitter. (l.QJ
Also on January 10, 2006, Y.Q. was again evaluated by physicians, including Dr.
Greenberg, the plastic surgeon. (Ex. F 100105-06.) Dr. Greenberg determined that Y. Q. 's burn
required debridement and he also determined that Y.Q. would likely need a skin graft. (Ex. F
100106.)
Later on January 10, 2006, the family court ordered that Y.Q. be removed. {Ex. K.) That
removal order states that removal was necessary because Y.Q. "suffered third degree burns with
no plausible explanation by respondents as to how she sustained such burns." (Id.) Denes and
Ann Marie appeared in family court on January 11, 2006 to contest the removal order. (Pl. R.
s6.1
n 78-79.)
After the family court ordered Y.Q.'s removal, ACS called Schneider to arrange for it to
discharge Y.Q. to the custody of her godparents. (Id.
~
83; Ex. L 202.) Schneider told ACS that
Y.Q. would have to return some four days later for surgery, but ACS informed Schneider that
Y.Q.'s parents did not want the surgery performed there. (Ex. L 202.) As ACS informed
Schneider, Y.Q. 's parents apparently were not happy with the treatment that Y.Q. had received
from them and wanted to have her surgery performed at the bum center at Staten Island
University Hospital. (Id.)
III. Discharge
Y.Q. was formally medically cleared and discharged at 6:10p.m. on January 11, 2006.
(Id.) Schneider imposed certain conditions on Y.Q.'s release. Schneider asked ACS to report to
8
Dr. Jenssen the results of scheduled appointments that Y.Q. had with her pediatrician and a
plastic surgeon selected by Y.Q.'s parents. (Ex. L 105.) Schneider also asked that Y.Q. be
returned to the hospital if her parents did not follow the treatment plan that ACS had cleared with
Schneider. (Id.) Schneider's social work department followed up, after Y.Q.'s discharge, to
ensure that the treatment plan was followed. (Ex. F 100107.)
Upon her discharge, Y.Q. stayed with her godparents. (Pl. R. 56.1
~
83.) Denes and Ann
Marie had daily contact with their daughter while she was staying with her godparents, but they
were never permitted to be alone with Y.Q. Denes's contact was by telephone during the week
because of his work schedule. (I d.
~~
84-87.)
On February 9, 2006, the family court ordered, on consent of the parties, Y.Q. returned to
her parents' custody. (Id.
~
90; Ex. N.) The family court also permitted Y.Q.'s grandmother to
visit her, although not without supervision. The babysitter was barred from contacting Y.Q. at
all. (Pl. R. 56.1
-:)~
90-91.)
On March 27, 2006, ACS withdrew the petition alleging abuse against Y.Q.'s parents.
(Id.
~
92; Ex. 0.) On May 16,2006, the petitions against Y.Q.'s grandmother and babysitter
were withdrawn. (Pl. R. 56.1
to this day. (Pl. R. 56.1
~·
~
93; Ex. P.) The nature and cause of Y.Q. 's burn remains unclear
95.)
IV. Litigation
The plaintiffs filed this action in March 2007. In addition to the medical defendants who
are still in this action, the plaintiffs sought relief against the City defendants, a group of
defendants including several ACS employees who were involved in or supervised Y.Q.'s case,
the ACS commissioner, and the City of New York.
9
Against the medical defendants, the plaintiffs asserted constitutional as well as state law
claims. The essence of the constitutional claims was that the medical defendants violated Y.Q.'s
and her parents' Fourth and Fourteenth Amendment rights when they seized and detained Y.Q.
without cause and subjected her to invasive medical procedures (the retinal exam and skeletal
survey), also without adequate cause. The state law claims sought to hold the medical
defendants liable for that same conduct, as well as for reporting Denes and Ann Marie to ACS
and for their role in the subsequent investigation and prosecution of Denes and Ann Marie in
family court.
The plaintiffs also asserted both constitutional and state law claims against the City
defendants, alleging, in essence, that the City defendants umeasonably relied on Dr. Jenssen in
deciding to detain Y.Q. and prosecute her parents. They alleged that Dr. Jenssen has a history of
unreasonable and misleading diagnoses of child abuse and that the City defendants should have
known about that.
All of the defendants eventually moved to dismiss. The district court mostly denied the
motions in September 2008. It granted only the medical and City defendants' motions for
judgment on the malicious prosecution claims brought under 42 U .S.C. § 1983, as well as the
City defendants' motion with respect to a state law abuse of process claim. V.S. v. Muhammad,
581 F. Supp. 2d 365 (E.D.N.Y. 2008) (frizarry, J.).
The plaintiffs and the City defendants later executed a settlement agreement, which the
Court approved in September 2009. Denes Q. v. Caesar, No. 07-CV -1281, 2009 WL 2877155
(E.D.N.Y. Sept. 8, 2009) (Amon, J.).
10
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate where the record "show[s1 that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). An issue of fact is genuine if"the
~:vidence
is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 ( 1986). A fact is material when it "might afTect the outcome of the suit under the governing
law." Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (internal quotation marks
omitted).
The movant bears the burden of establishing that no genuine issue of material fact exists.
Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,244 (2d Cir. 2004). The court
"must resolve all ambiguities and draw all reasonable inferences against the movant." Pucino v.
Verizon Wireless Commc'ns, Inc., 618 F.3d 112, 117 (2d Cir. 2010). "To survive summary
judgment the nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial." Niagara Mohawk Power Corp. v. Jones Chern. Inc., 315 F.3d 171, 175
(2d Cir. 2003) (internal quotation marks and emphasis omitted). "Conclusory allegations,
conjecture, and speculation ... are insufficient to create a genuine issue of fact." Kerzer v.
Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Moreover, "the existence of a mere scintilla of
evidence in support ofnonmovant's position is insufficient to defeat the motion." Powell v.
Nat'] Bd. ofMed. Examiners, 364 F.3d 79, 84 (2d Cir. 2004).
11
II. Detention: Constitutional Claims
The plaintiffs claim that the medical defendants unconstitutionally detained Y.Q. "for
investigative reasons" as state actors without adequate justification and without providing
adequate process. (Pl. Br. at 22-26.)
Resolution of the plaintitTs' claims about detention requires the Court to ask and answer
two questions. First, did the medical defendants detain Y.Q. as state actors at any point?
Second, did any state-actor detention violate the plaintiffs' federal constitutional rights?
A. State Action
The federal statute under which the plaintiffs have asserted their constitutional claims, 42
U.S.C. § 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.'" K & A Radiologic
Tech. Servs., Inc. v. Comm'r ofDep't of Health, 189 F.3d 273,280 (2d Cir. 1999) (quoting
Blessing v. Freestone, 520 U.S. 329, 340 (1997)).
As the Second Circuit has explained, "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)). Consequently, the Court's "first inquiry ... is whether the actions
alleged by the plaintiffs come within the definition of under color of state law." Kia P. v.
Mcintyre, 235 F.3d 749, 755 (2d Cir. 2000) (internal quotation marks and bracket omitted).
Although the plaintiffs' papers are not entirely clear, at oral argument they clarified that
they allege that the medical defendants held Y.Q. as state actors from January 9, 2006 to January
11, 2006. The medical defendants answer that they "never 'detained' or 'removed' Y.Q. from
12
her parents' custody" because "Y.Q. received medical treatment until January 11, 2006-the
date she was discharged." (Def. Br. at 30.)
The parties have discussed several cases applying several tests aimed at determining
whether private actors can be held liable in several settings under the Constitution as state actors,
but the Second Circuit's opinion in Kia P. v. Mcintyre provides the rule of decision in this case.
In Kia P~, the plainti±Is-a mother and her infant child-sought to hold a private hospital liable
for detaining the child, Mora, when, shortly after her birth, her urine tested positive for
methadone. Id. at
751~52.
There, the Second Circuit held that the private hospital detained
Mora both as a state actor and also as a private actor. The hospital held her as a private actor
when it detained her "between the receipt of the results of the first [urine] test and Mora's
ultimate medical clearance eight or nine days later" after a subsequent test revealed that her urine
was free of methadone. Id. at 753. This detention was "for medical reasons" because ''it was the
medical staff that made the initial decision to withhold Mora's release because of the danger of
methadone withdrawal" and "from Mora's birth to her medical release, the infant was under
medical observation and care by the Hospital's medical sta±I." Id. at 753, 756.
With respect to detention as a state actor, the Second Circuit explained that, "insofar as
the Hospital was acting ... as part of the reporting and enforcement machinery for CWA [the
Child Welfare Administration, an ACS predecessor], a government agency charged with
detection and prevention of child abuse and neglect ... the Hospital was a state actor." Id. at
756.
And in Kia P. the Second Circuit concluded that the private hospital held Mora as part of
the reporting and enforcement machinery of the state, since the infant child was detained
pursuant to "compliance with Hospital and CW A policies requiring that any child under
13
investigation by CWA not be released from the Hospital without CWA permission." Id. at 75253, 756-·57; see also Estiverne v. Esernio-Jenssen, 581 F. Supp. 2d 335,343-44 (E.D.N.Y. 2008)
(discussing this holding ofKia P.).
Turning to the question of liability for Mora's detention, the Second Circuit concluded
that, where the private hospital held Mora as both a private actor and a state actor, the hospital
could not be constitutionally liable for Mora's detention. The court explained that where the
state and private detentions overlapped, "the Hospital in its role as state actor ... was incapable
of depriving, and therefore did not deprive, mother and daughter of liberties that had already
been taken away by the Hospital's medical staff as private, professional persons." Kia P., 235
F.3d at 757. Only when Mora was medically cleared by hospital doctors did Mora's deprivation
become the consequence of state action, which exposed the hospital to liability under the
Constitution.
Applying the teaching ofKia P. to this case, the Court agrees with the plaintiffs that the
medical defendants were state actors capable of violating the plaintiffs' constitutional rights
when they detained Y.Q. from January 9, 2006 at about 2:00p.m. (informal medical discharge)
to January 11, 2006 at about 6:00p.m. (discharge to Y.Q.'s godparents).
Notwithstanding some language in their papers to the contrary, the plaintiffs agreed at
oral argument that, from Y.Q.'s arrival at Schneider until her informal discharge, Y.Q. was held
"for medical reasons" and was "under medical observation and care" by medical staff. Id. at
753. Y.Q. was not formally medically cleared at any point during that period. During that
period, Y.Q. saw several doctors, including a plastic surgeon and a pediatric dermatologist, who
all were concerned with the burn on her stomach and provided treatment for that burn. Indeed,
14
Y.Q.'s treatment at the hands of plastic surgeon Dr. Greenberg continued past the date of her
informal medical clearance.
Although there is some evidence in the record that Y.Q. could have been discharged
before January 9, 2006 (that is, her detention was not absolutely medically necessary), that fact
does not mean that Y.Q. was being held at Schneider only for ACS related purposes. See id. at
756 n.2 (fact that "[s]ome evidence suggests that if the Hospital does not have concerns relating
to the ability of a parent properly to care for an infant, there may be circumstances when, at least
absent f..1rther action by the 1-Iospital, that parent may tak·~ the child home despite 'medical
advice' to the contrary ... docs not establish that absent CWA-related concerns, Mora would
have
be•~n
released to her mother").
The medical defendants' position that a reasonable jury must conclude that Y.Q. was
never detained is not persuasive. They do not engage the evidence tending to prove that on
January 9, 2006 Y .Q. was set for medical discharge and was not discharged only because ACS
told "Nurse Patty" to implement a social hold. Instead, the medical defendants stress the fact
that Y.Q. received medical treatment throughout her stay at ACS, up to and including the date of
her formal medical discharge.
The medical defendants fail to appreciate that the fact that there is evidence from which a
reasonable jury could find that Y.Q. was detained past January 9, 2006 at 2:00p.m. only because
of a social hold is dispositive. That Schneider decided not to abandon medical treatment after
that date is of no moment. It simply means that Schneider doctors determined that, while Y.Q.
was in "state custody," it was in Y.Q. 's best interests to receive treatment that she either would
not otherwise have received or would have received as an out-patient.
15
In sum, a reasonable jury could find that the medical defendants detained Y.Q. as state
actors from January 9, 2006 at 2:00p.m. to January 11, 2006 at about 6:00p.m. The question
then is whether that detention was consistent with the plaintiffs' substantive and procedural
constitu:ional rights.
B. Substantive Due Process
Although the papers are not entirely clear, the Court considers the plaintiffs to be
claiming that the state detention just described violated their substantive due process rights
because it was not justified by any constitutionally sufficient state interest.'
The medical defendants contend principally that the detention from January 9, 2006 to
January 11, 2006, assuming it was state-actor detention, was justified because they were
"awaiting further instruction from ACS," which was conducting an investigation into whether a
twenty-two month old child who presented with an unexplained injury had been the victim of
abuse and required protection from her caregivers. (Def. Br. at 33-34.)
lt is well settled that Denes and Ann Marie have a fundamental liberty interest in
maintaining custody of their child without state interference. See, e.g., Wilkinson v. Russell, 182
F.3d 89, 103 (2d Cir. 1999) ("It has long been settled in this Circuit that a parent's interest in the
custody of a child is a constitutionally protected liberty interest subject to due process
protection." (internal quotation marks and brackets omitted)); Gottlieb v. Cnty. of Orange, 84
F.3d 511,518 (2d Cir. 1996).
Consequently, absent a sufficiently compelling justification, the state may not have
separated Denes and Ann Marie from their daughter. See: Tenenbaum, 193 F.3d at 600 (citing
County Jf Sacramento v. Lewis, 523 U.S. 833, 846 (1998)); Velez v. Reynolds, 325 F. Supp. 2d
1
This is a claim that belongs only to Denes and Ann Marie, not Y.Q., whose challenge to the substance of
her detention must be considered under the Fourth Amendment. Southerland v. City of New York,--- F.3d----,
2011 WL 2279186, at *9 & n.13 (2d C ir. June I 0, 20 1 1).
16
293,
30~
(S.D.N. Y. 2004) ("Substantive due process protects individuals from arbitrary
government intrusions by requiring a reasonable basis or justification for such action.'').
Relevant here, the Second Circuit has recognized one such justification to be the
"governmental interest in the protection of minor children, particularly in circumstances where
the protection is considered necessary as against the parents themselves." Wilkinson, 182 F.3d
at I 04; i:ee also van Emrik v. Chemung Cnty. Dep't of Soc. Servs., 911 F.2d 863, 866 (2d Cir.
1990). Detention to serve that interest is warranted where the state has a "reasonable basis" to
believe that a child has been the victim of abuse and that detention is necessary to protect the
child from further harm. Wilkinson, 182 F.3d at 104 (internal quotation marks omitted). That
standard "reflects the recognized need for unusual deference in the abuse investigation context."
The Second Circuit has also said that detention to serve the interest in protecting children
from abuse is warranted where, although "the primary evidence of abuse ha[ s] been discredited,"
the state requires time to process the fact that evidence has been discredited and to determine the
most sensible course of action moving forward. Kia P., 235 F.3d at 759.
The Second Circuit has held that brief separations of child and parent "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 v. Scoppetta, 344 F.3d 154, 172 (2d Cir. 2003 ); see also Southerland, - - - F .3d at - - -, 2011 WL 2279186, at * 17 ("We have also recognized that substantive due process claims in
the child-removal context have a temporal dimension."); Tenenbaum, 193 F.3d at 600.
In this case, no reasonable jury could find that the medical defendants' detention ofY.Q.
from informal medical clearance to discharge was without adequate justification. The only
17
reasonable view of the evidence is that for the first part of that period, the medical defendants
held Y.Q. to permit ACS sufficient time to determine whether and how to proceed against her
parents. For part of January 10,2006, the medical defendants held Y.Q. while the state secured
an abuse petition from the family court. And, from 1anuary l 0, 2006 until discharge, the medical
defendants were holding Y.Q. while final arrangements D)r her discharge were completed. As a
matter of!aw, detention of this sort is clearly not "without a reasonable basis" and also is not
"without any reasonable justification in the service of a legitimate governmental objective." Kia
P., 235 F.3d at 759.
To the extent that the plaintiffs contend that the medical defendants had an obligation not
to accommodate the ACS decision-making process because there was insufficient justification
for removal, that argument is rejected. Y.Q. had a burn that those in charge of her care could not
explain. The record in this case reveals that ACS viewed that unexplained injury as reason
enough to seek removal.
The plaintiffs have not identified any evidence to support the proposition that the medical
defendants should have believed that the injury was explained or should have believed that
removal for an unexplained injury was inconsistent with state or federal law, such that they
should have refused to accommodate a clearly illegal process.
As indicated, courts reviewing the decision of ACS investigators to remove a child for his
own protection defer to the reasonable conclusions of those investigators. See Wilkinson, 182
F.3d at I 06 ("As we have emphasized, courts must apply the 'reasonable basis' test to permit
investigators considerable discretion in the abuse context. This is in keeping with the basic
precept that a mere failure to meet local or professional standards, without more, should not
generally be elevated to the status of constitutional violation."); Orlik v. Dutchess Cnty., 603 F.
18
Supp. 2d 632, 646-47 (S.D.N.Y. 2009) ("faulty or incorrect report" does not render separation a
violation of due process because investigation that is "faulty" or conclusions that are "incorrect
or ill-advised" do not violate due process so long as actions are "consistent with some significant
portion of the evidence").
The plaintiffs have provided no reason to conclude that the medical defendants must have
been me-re critical of the investigation than a reviewing court. Thus, no reasonable jury could
conclud1~
that the medical defendants acted unreasonably in deferring to the ACS process in this
case.
C. Procedural Due Process
The Court also considers the plaintiffs to be arguing that, even if the medical defendants
had sufficient justification for detaining Y.Q., the plaintiffs were not provided the procedural
protections guaranteed them by the Constitution. 2
The medical defendants answer that, even if Y.Q. was subjected to state-actor detention
on January 9, 2006, the plaintiffs were "provided a hearing at most two days later, on January II,
2006." (Def. Br. at 31.) They say that that prompt post-removal hearing was sufficient to satisfy
the plaintiffs' due process rights.
The plaintiffs' procedural due process claim is "covered by the subset of [Second Circuit]
cases addressing circumstances where the government, although not physically taking the child
away from the parent, gains custody of the child by refusing to release him or her after the parent
has voluntarily granted temporary custody to the government or a third party." Kia P., 235 F.3d
This is a claim that belongs to all three of the plaintiffs. Southerland, · -- F.3d at- - - - . 2011 WL
2279186, at *9 ("'both the parents and the children may have a cause of action for violation of the Fourteenth
Amendment under a theory of denial of procedural due process").
19
at 760; see also Cecere v. City of New York, 967 F.2d 826, 830 (2d Cir. 1992); Duchesne v.
Sugarman, 566 F.2d 817, 822-23 (2d Cir. 1977).
'The rule in this Circuit is that under these circumstances the State has a duty to initiate a
'prompt' post-deprivation hearing after the child has been removed from the custody of his or
her parents." Kia P., 235 F.3d at 760 (citing Gottlieb, 84 F.3d at 520). There is no requirement
for a pre-deprivation hearing, which is usually required in non-emergency circumstances, as ''the
Hospital already had custody of [Y.Q.] at the moment she was medically cleared." Id. at 760
n.4. As a matter of law, Denes and Ann Marie received a prompt post-deprivation hearing in this
case.
H~re,
viewing the evidence in the light most favorable to the plaintiffs, the actual removal
was effe-cted on January 9, 2006 at about 2:00p.m. and the formal order of removal (secured
January 10, 2006) was presented to a state family court on January 11, 2006, two days after the
medical defendants took custody of the child as state actors.
The plaintiffs have not explained why, in view of these facts, they were not provided a
sufficiently prompt opportunity to contest the removal of Y.Q. See id. at 761; Cecere, 967 F.2d
at 830 (permitting four day deprivation in the face of evidence of abuse); Taylor v. Evans, 72 F.
Supp. 2d 298, 307-08 (S.D.N. Y. 1999) (four-day period was "short-lived and relatively nondisrupti·>'e" and consistent with due process); Dietz v. Damas, 932 F. Supp. 431 (E.D.N.Y. 1996)
(twelve day delay reasonable).
l!l. Fourth Amendment
The Court also understands the plaintiffs to be arguing that the same state detention that
violated the Due Process Clause also violated Y.Q.'s rights under the Fourth Amendment. The
medical defendants' answer to this claim is similar to their answer to the due process arguments:
any dett:ntion "was reasonable" because there is no evidence that "the medical defendants had
20
the authority or any reason to challenge ACS's decision" to impose a social hold. (Def. Br. at
39.)
The Second Circuit has not clearly explained "which of three modes of determining
whether a seizure was 'reasonable' under the Fourth Amendment should apply in cases where
the state seizes a child in order to prevent abuse or neglect." Kia P., 235 f.3d at 762. That is, it
is not clear whether the state requires probable cause, or whether "special needs" justify
application of a "less stringent reasonableness requirement," or whether detention can only be
justified by "exigent circumstances." I d. (discussing Tenenbaum, 193 F .3d at
603~05).
In any event, like the Second Circuit in Kia P., the: Court need not resolve this issue. This
is becau>e, under any standard, the medical defendants' detention of Y.Q. in this case did not
violate the Fourth Amendment "for substantially the same reasons that militate against [the]
finding of a due process violation." Id. at
762~63.
III. Testing: Constitutional Claim
The Court now turns to the plainti±Ts' claim that the medical defendants violated Y.Q."s
Fourth Amendment rights when they subjected her to medical testing. The plaintitis claim that
Dr. Jenssen, as a state actor, "ordered both a skeletal survey and an ophthalmology exam, both of
which were medically unnecessary to treat Y.Q's burn," for the purpose of investigating child
abuse. (Pl. Br. at 25-26.) They contend that the medical defendants needed a court order or
consent to perform those tests, but they lacked both; the consent allegedly secured was secured
through deception. (!d. at 26.)
The medical defendants answer that the tests were: not ordered by ACS and were
perform~d
"for medical and not investigative purposes." (Def. Br. at 36-37.) They say also that
21
even if the tests are regulated by the Fourth Amendment--because state action and for
investigative purposes-the tests were reasonable. (I d. at 37.)
In arguing for liability, the plaintiffs rely on the Sf:cond Circuit's holding that "the
Constitution assures parents that, in the absence of parental consent, x-rays of their child may not
be taken for investigative purposes at the behest of state officials unless a judicial officer has
determined ... that grounds for such an examination exist." van Emrik, 911 F.2d at 867.
In van Emrik, the plaintiffs sued government investigators who, against the advice of a
doctor, ordered the doctor to perform potentially harmful x-rays to identify "previous fractures
elsewhere in the child's body that had gone undetected and had since healed." Id. In that case,
the Second Circuit ruled that the government defendants could be liable.
The plaintiffs also rely on the Second Circuit's application of the van Emrik holding to
rule that the Fourth Amendment regulates a government investigator who brought a young girl
who was the suspected victim of sexual abuse to a hospital and asked a doctor to perform a
physical examination the girl, which examination aimed to discover signs of sexual abuse.
Tenenbz.um, 193 F.3d at 597-99. In Tenenbaum, the court rejected the argument that the
government need not secure consent or a court order where the test, which was ordered by an
investigator "for the purpose of determining whether [sexual] abuse had occurred," might have
uncover~d
injuries in need of treatment; that fact did not render the test "medically indicated and
designed ±or treatment." I d. at 599. In reaching that result, the Second Circuit compared the
facts of the case with the facts of two district court cases in which government defendants were
held not liable for tests performed on children who were the suspected victims of abuse and who
were brought, by government investigators, to hospitals for examination.
22
In one of those cases, Chayo v. Kaladjian, x-rays were ordered on a child with a visible
bruise on his head to facilitate a diagnosis of the nature of the injury and to "determine what
treatment, if any, was necessary." 844 F. Supp. 163, 169 (S.D.N.Y. 1994). The district court
concluded that the rule of van Emrik did not apply because (a) "the x-ray examinations were
ordered not by the caseworkers but by Dr. Ibrahm Ahmed, a pediatric resident at St. Vincent's
Hospital'' and (b) the x-rays were ordered "for medical rather than investigative purposes." Id.
The plaintiffs in that case argued for liability on the ground that the "medical records
state that the purpose of the medical examinations, including the x-rays, was to make sure the
children are not being abused." !d. at 170 n.2 (internal quotation marks and emphasis deleted).
The cow1 rejected that argument because the cited records did not bear directly on Dr. Ahmed's
reasons for ordering the tests and because, "[m]ore importantly, it does not in any way suggest
that the caseworkers requested the x-rays." !d.
The second case discussed by the Second Circuit was Schwimmer v. Kaladjian, in which
the plairtitls sought to hold liable two government agencies and agency employees for the fact
that a doctor at Beth Israel ordered, without judicial process, "two sets of x -rays ... , both skull
and skeletal series," on a child who was brought to the hospital by two police officers and who
was cowred with ecchymotic lesions. 988 F. Supp. 631, 637 (S.D.N.Y. 1997).
In Schwimmer, the district court ruled that the "analogy ... to the child in van Emrik is
inappropriate" because "the record is devoid of evidence that [ACS employeesl directed Beth
Israel to take skeletal x-rays of [the child] for investigatory purposes and that the x-rays were
'not medically necessary or advisable."' Id. at 641. Although the case does not discuss the fact,
there
do,~s
not appear to have been any suggestion that the tests in Schwimmer would identify an
injury in need of treatment.
23
The plaintiffs in this case focus on whether the tests at issue were investigative. The
plaintiffs' claim in this case fails because no reasonable jury could find for them on an issue that
is antecedent to that question; namely, whether ordering the tests was state action. No
reasonable jury could find that the medical defendants performed the challenged tests in this case
as state actors. The Kia P. state action test, which the Court detailed earlier, compels this result.
The record is clear that ACS did not order the tests at issue. It is undisputed that Y.Q.
arrived Yoluntarily at Forest Hills and Schneider and, as the plaintiffs state in their papers, Dr.
Jenssen 'made the decision to conduct a skeletal survey and an ophthalmologic exam, ... neither
ofwhid. had been requested by ACS." (Pl. Br. at 14.) There is no evidence that the medical
defendants ordered the tests because the state-or Schneider, implementing a state policyrequired that private physicians perform medical tests to confirm a suspicion of child abuse. The
Schneider policy concerning children who are the suspected victims of abuse, which the parties
have prcvided the Court, makes no mention of testing. (Ex. 9.)
More important, the record reveals a medical, non-ACS purpose for the challenged tests.
The plaintitis' expert, Dr. Kai Sturmann, testified that the skeletal survey and eye exam were not
undertaken to facilitate treatment because retinal bleeds cannot be treated and because a doctor
looking for fractures in need of treatment would not perform a skeletal survey, which would
reveal only old, healed breaks. (Ex. R.) But Dr. Sturmann also testified that the tests had a
"medical purpose" and were properly ordered as part of a medical diagnostic work up of a child
with an ·1nexplained injury. (Id.) Thus there is unchallenged evidence that a private medical
professional, exercising medical judgment, would-as
th•~
medical defendants say they did
here-o-der these exams as part of a diagnostic workup without regard to ACS. This evidence
24
reflects the fact that the professional concerns of physicians like those involved in this case are
not as mrrow as the plaintiffs appear to believe (i.e. "treatment" and only "treatment").
The fact that private doctors, when ordering tests like those at issue here, know that ACS
will be interested in, and may act upon, the results (insofar as they confirm or rule out child
abuse) dCJes not mean that the Constitution regulates those private doctors' decisions. Cf. Blum
v. Yarett;ky, 457 U.S. 991, I 008-09 (1982) (state not responsible for medical decisions to
discharge residents from private nursing facilities even though private party knows that state will
review discharge decision and adjust benefits in response to discharge) (cited as relevant to
liability determination in Kia P.).
Finally, the Court observes that the plaintiffs have not provided the Court a single case in
which a private doctor-or, derivatively, a hospital-not acting at the clear direction of the state,
has been subject to Fourth Amendment scrutiny for the dt:cision to order tests designed to
confirm a suspicion that an unexplained injury on a child whose parents voluntarily brought him
to the hospital was the result of abuse. Absent such authority, the Court is not inclined to subject
private doctors or hospitals to Fourth Amendment regulation in the circumstances present here.
IV. Constitutional Right to Adequate Medical Care
In their opposition papers, the plaintiffs assert for the first time a claim about Y.Q.'s
constitu1ional right to adequate medical care. They argue that Y.Q.'s January 9, 2006 removal
from the custody of her parents "changed the legal relationship between Y.Q. and Hospital
defendants." (Pl. Br. at 26.) They say that from that date, "as an individual in government
custody, Y.Q. had a right to adequate medical treatment." (Id.) And they argue without any real
explanation that the medical defendants violated that right.
25
To support liability, the plaintiffs allege that the medical defendants "actions fell far
below accepted medical care," thus exposing them to constitutional liability, because they
(I) failed to discuss with ACS the rationale for removing Y.Q. from her family; (2) failed to
discuss with ACS the basis of its decision to remove; (3) failed to tell ACS that they did not
recommend removal, if they did not; (4) failed to ask about the justification for ACS's decision
to remove Y.Q.; (5) failed to advocate for Y.Q.'s best interests; and (6) failed to go up the chain
of command to advocate for Y.Q.
For this, the plaintiffs rely on the testimony of their expert, Dr. Sturmann. The deposition
excerpts are not complete, but Dr. Sturmann apparently was explaining what he believed some
unnamed Schneider doctors should have done to prevent a harmful removal if they believed "that
the parents were not involved in causing the burn." (Ex. 3 at 89.) It is not clear on what
evidenct: Dr. Sturmann was relying for the proposition that some unnamed Schneider doctors
were ofthe belief that Denes and Ann Marie were not "involved in causing the burn," or if he
was simJly answering a hypothetical question.
The medical defendants answer this argument by urging that the plaintiffs' position is
inconsistent with Kia P., which "found no basis for Section 1983 liability against the hospital to
the extent the hospital acted as both a provider of medical care and in a social welfare role during
the period of time in which the hospital retained the infant for medical treatment and to protect
her from suspected abuse." (Def. Reply at 18-19.) They also argue that Y.Q. received adequate
medical care. CW. at 19.)
This claim cannot survive summary judgment. First, the plaintiffs have not cited any
authority for the proposition that the medical defendants--private entities and a private
individual-had any constitutional obligation to provide medical care to Y.Q. simply because,
26
during trte period in question, they were detaining her solely as state actors under the test
outlined in Kia P.
And, as the defendants observe, the idea that the medical defendants had such a legal
obligation (however defined) is in some tension with-although not clearly foreclosed by-the
Second Circuit's holding in Kia P. that, even though the private hospital was holding Mora as a
state actor, it could not be liable for the manner in which it provided medical care. 235 F.3d at
756 ("[I]nsofar as the Hospital and its employees rendered medical care to Kia P. and her
newborn daughter, the Hospital was ... not a state actor. Whatever misdeeds the Hospital
defendants may have committed in providing that care-if any there were-they are not
redressable under§ 1983." (citation omitted)).
Second, the plaintiffs have not clearly identified or justified the content of any
constitutional obligation to provide a certain level of medical care. For example, in support of
their clmm that Y.Q. had a right to "adequate medical treatment," the plaintifis cite Estelle v.
Gamble, which holds that, under the Eighth Amendment, an incarcerated individual has a right to
adequate medical care that is infringed by "deliberate indifference to [his] serious medical
needs." 429 U.S. 97, 104 (1976); see also Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005);
Chance v. Armstrong, 143 F.3d 698 (2d Cir. 1998). The citation to this case is unexplained and
confusing: Y.Q. was not incarcerated and the plaintiffs do not appear to urge deliberate
indifierence as the rule that governs here.
The plaintiffs then change tack and say that hospitals and doctors "will be liable for
violating the substantive due process right of their patients to adequate medical treatment if their
conduct is 'such a substantial departure from accepted professional judgment, practice or
27
standards as to demonstrate that the person responsible actually did not base the decision on such
ajudgment."' (Pl. Br. at 26-27 (quoting Youngberg v. Romeo, 457 U.S. 307,323 (1982).)
Youngberg involved civilly committed mentally ill individuals confined for their own
good and held that those individuals have "liberty interests in safety and freedom from bodily
restraint" that require states to "provide minimally adequate or reasonable training to ensure
safety and freedom from undue restraint." 457 U.S. at 319. That right is infringed when a
professional's determination regarding what training is required "is such a substantial departure
from accepted professional judgment, practice, or standards as to demonstrate that the person
responsible actually did not base the decision on such judgment." Id. at 323.
The relevance of this case is not apparent: Y.Q. is not mentally ill, was not civilly
committed, and the plaintiffs do not argue that she had a right to "minimally adequate or
reasonable training to ensure safety and freedom from undue restraint."
Third, assuming one of these constitutional obligations is applicable, the plaintiffs have
not explained how the medical defendants were either "deliberately indifferent" to Y.Q.'s
medical need to avoid removal or how they based the decision not to actively oppose removal on
something other than "professional judgment." Absent some better guidance from the plaintiffs,
the Comt does not understand how a reasonable jury, viewing the evidence in the light most
favorable to the plaintiffs, could conclude that the medical defendants were indifferent or
exercised something other than professional judgment.
In any event, this entire theory of liability lacks merit. There is no evidence that the
medical defendants believed that removal was inappropriate or harmful to Y.Q. And the Court
has already explained that no reasonable jury could find that the medical defendants violated the
Fourth Amendment or the Due Process Clause in connection with Y.Q.'s detention. For similar
28
reasons, no reasonable jury could find that they violated some undefined constitutional right to
adequat~e:
medical care for failing to stop or oppose the removal that the detention facilitated.
V. State Law Claims
The Court now turns to the plaintiffs' remaining state law claims, which are claims
against the medical defendants alleging malicious prosecution, unlawful imprisonment, gross
negligence, and professional negligence.
As an exercise of discretion, the Court may refuse to exercise jurisdiction over these
claims. See Matican v. City ofNewYork, 524 F.3d 151, 154-55 (2d Cir. 2008) ("ifMatican has
no valid claim under§ 1983 against any defendant, it is within the district court's discretion to
decline to exercise supplemental jurisdiction over pendent state-law claims").
Considerations of '''judicial economy, convenience, fairness, and comity'" do not warrant
adjudication of these claims in federal court. Kolari v. New York-Presbyterian Hosp., 455 F.3d
118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
The Court appreciates that the plaintiffs have committed substantial resources to litigating this
case in federal court, but, relevant here, almost none of those resources were devoted to
developmg facts unique to the state law claims; those facts are relevant in the main to the federal
claims, loo.
Moreover, none of the state law claims is of special federal concern and the gross
negligence claim, which appears in large part to respect actions taken pursuant to New York's
mandatc.ry reporting law, as well as the medical negligence claim, present issues of special
concern to New York. Consequently, the state law claims belong in New York's courts.
29
CONCLUSION
The defendants' motion for summary is granted with respect to the constitutional claims.
The Cou·t declines to exercise jurisdiction over the state law claims.
The Clerk of Court is directed to enter judgment accordingly and to close this case.
SO ORDERED.
Dated: Brooklyn, New York
s.~ptember
2011
dl.{ ,
s/CBA
-
Carol Bagle-y!Amln
ChiefUnited States District Judge
30
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