Slater v. Mackey et al
MEMORANDUM & ORDER re 54 Motion for Summary Judgment. Defendant McDonald's Motion for Summary Judgment (Dkt. 54) is GRANTED. To the extent that Plaintiff purports to assert a new claim in her opposition papers, that claim is DISMIS SED as procedurally barred. This Order disposes of all remaining claims, and so the Clerk of Court is respectfully DIRECTED to close the case. The Clerk is further DIRECTED to send a copy of this order to Plaintiff. So Ordered by Judge Nicholas G. Garaufis on 11/21/2016. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
P.O. KAREN MACKEY #2267, Tax ID 4000,63rd
Precinct, NYPD;P.O. DANIEL YOUNG,Tax ID
4000,63rd Precinct, NYPD;THE CITY OF NEW
YORK;NEW YORK CITY POLICE
DEPARTMENT,63RD PRECINCT; CHARMAINE
MCDONALD,Child Protective Specialist, ACS
#6666517, Unit#: 181-3; NEW YORK CITY
ADMINISTRATION FOR CHILD SERVICES,
DCP/BROOKLYN FIELD OFFICE,
NICHOLAS G. GARAUFIS,United States District Judge.
Pro se Plaintiff Natasha Slater initiated this action against various municipal officials and
entities, bringing several claims under 42 U.S.C. § 1983 and state law relating to her 2012 arrest
and subsequent protection proceedings involving her three minor children. (See Am. Compl.
(Dkt. 16).) In an order dated November 9,2015 (the "2015 Order"), all but one ofPlaintiff's
claims were resolved by dismissal or summary judgment in favor of Defendants. (Nov.9,2015,
Mem.& Order(Dkt. 38).) In Plaintiff's sole surviving claim,she argues that Defendant
Charmaine McDonald made false allegations about Plaintiff's mental health during the child
protection proceedings. (Id at 34.) McDonald has submitted additional evidence and moved for
summary judgment on this claim. (McDonald's Mot.for Summ.J.("McDonald's Mot.")
(Dkt. 54).) For the reasons stated below, McDonald's Motion is GRANTED. The court notes
that Plaintiff's opposition papers appear to assert a new procedural due process claim that was
not included in the Amended Complaint. (PL's Mem,in Opp'n to Defs.' Mot. for Summ. J.
("PL's Opp'n")(Dkt. 61) at 3-8.) Any such claim is DISMISSED as procedurally barred.
The court assumes familiarity with the background ofthis case, as described in the
2015 Order.^ This section briefly reviews the factual allegations and procedural history that
underlie Plaintiffs surviving cause of action.
A. Factual Allegations
Plaintiff was arrested on June 1,2012, and charged with crimes including assault on her
minor child. (2015 Order at 4-6.) All criminal charges were eventually dropped, but the New
York City Administration for Child Services("ACS")continued to investigate the allegations
that Plaintiff had assaulted her child. (Id. at 6-7.) During that investigation, ACS discovered that
Plaintiff had case files with ACS's counterpart agencies in Florida and Texas. (Id at 7.) ACS
requested and received copies ofthose records. (Id)
"On June 13,2012, ACS brought three substantively identical Petitions ofNeglect
against [Plaintiff], one for each" ofPlaintiffs minor children (collectively, the "Neglect
Petitions"), fid.! "Each Neglect Petition alleged that:(1)[Plaintiff] threatened the child's safety
because she engaged in excessive corporal punishment...,and(2)[Plaintiff] suffers from a
mental illness, which impairs her ability to care for her children." (Id at 7-8.)
B. Plaintiffs Misrepresentation Claim and the 2015 Order
In the Amended Complaint, Plaintiff accuses Defendants offalsely "alleging that Plaintiff
is unable to take care of her children due to bipolar and/or schizophrenia," despite the absence of
"any confirmation or any evidence of a diagnosis ofPlaintiff by medical expertise." (Am.
' 2015 Order cites extensively to the record. In this opinion, citations to the factual findings in the 2015 Order
omit all references to such record citations.
Compl. at ECF pp.14-15.) Plaintiff alleges that, at the time the Neglect Petitions were filed,
"Defendants were fully aware that the Plaintiff was not suffering from any mental illness." (Id.
at ECF p.14.) In the 2015 Order,the court construed these allegations as "presenting a due
process violation" on the grounds that,"because of ACS's false statements,[Petitioner's]
children were removed." (2015 Order at 28.) The court determined that McDonald, an ACS
Child Protection Specialist, was entitled to qualified immunity absent a showing that any
"alleged misrepresentations were sufficiently material and serious to render the removal process
constitutionally defective." (Id.(citation omitted).) The court found "a genuine issue of material
fact regarding precisely what documents[ACS]received and precisely what formed the basis of
the Neglect Petitions." (Id. at 29.) The court therefore declined to grant summary judgment "at
[that] stage" on Plaintiffs claim of misrepresentations about her mental health." (Id)
All the other claims in the Amended Complaint were either dismissed without prejudice
or resolved on summary judgment in favor of Defendants. (Id at 33-34.) The court stated that,
"[sjhould [Plaintiff] wish to address the pleading defects" in any of her dismissed claims,"she is
instructed to file a Second Amended Complaint by December 15, 2015." (Id at 34(footnote
omitted).) Plaintiff has not filed a Second Amended Complaint, and the time to do so has long
Plaintiff's central allegation is "that McDonald made false statements in the Neglect
Petitions and in Family Court concerning [Plaintiffs] mental health." (2015 Order at 27.)
McDonald has now submitted documentary evidence that substantiates the allegations in the
Neglect Petitions. Plaintiff has failed to meaningfully contest this evidence. The court therefore
finds that McDonald's Motion for Summary Judgment must be granted on grounds of qualified
immunity. In addition, the court notes that Plaintiffs opposition papers appear to raise a new
procedural due process claim alongside Plaintiffs arguments about false statements. This new
claim is procedurally barred and,in any event,lacks merit.
A. Legal Standards
1. Summary Judgment
Summary judgment must be granted when "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c). "A
'material' fact is one capable ofinfluencing the case's outcome under governing substantive law,
and a 'genuine' dispute is one as to which the evidence would permit a reasonable juror to jSnd
for the party opposing the motion." Figueroa v. Mazza.825 F.3d 89,98(2d Cir. 2016)(citing
Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,248 (1986)). The court is conscious of its
obligation to "construe briefs submitted by pro se litigants liberally." Ferran v. Town ofNassau,
471 F.3d 363, 369(2d Cir. 2006)(citation omitted).
2. Qualified Immunity for Child Protective Service Workers
"It is well settled that child protective services workers are entitled to qualified immunity
for their conduct during the course of abuse investigations." Walker v. Citv ofNew York.
621 F. App'x 74, 75(2d Cir. 2015)(summary order)(alterations omitted)(quoting Wilkinson ex
rel. Wilkinson V. Russell. 182 F.3d 89,99(2d Cir. 1999)). "Qualified immunity shields federal
and state officials from money damages unless a plaintiff pleads facts showing(1)that the
official violated a statutory or constitutional right, and(2)that the right was clearly established at
the time ofthe challenged conduct." Ricciuti v. Gvzenis. 834 F.3d 162,167(2d Cir. 2016)
(internal citation marks omitted)(quoting Ashcroft v. al-Kidd. 563 U.S. 731,735 (2011)).
"It [is] clearly established that it violates due process under the Fourteenth Amendment
for a government official to give false testimony in a state court proceeding." Velez v. Reynolds.
325 F. Supp.2d 293,316(S.D.N.Y. 2004)(citing Nanuev. Illinois. 360 U.S. 264,270(1959)).
Even so, in recognition ofthe "'need for unusual deference in the abuse investigation context,'"
the Second Circuit has adopted a "deferential standard[:]'[a]n investigation passes constitutional
muster provided simply that case workers have a reasonable basis for their findings of abuse. At
the same time, case workers are not 'free to substantiate a claim of abuse ... by ignoring
overwhelming exculpatory information or by manufacturing false evidence.'" Walker,
621 F. App'x at 75-76 (internal quotation marks omitted)(quoting Wilkinson, 182 F.3d at 104).
B. Plaintiffs Section 1983 Misrepresentation Claim
McDonald has submitted evidence to substantiate the claims made in the Neglect
Petitions. Plaintiff objects to that evidence on several grounds. The court finds those objections
unpersuasive. McDonald is therefore entitled to qualified immunity because Plaintiff has failed
to show that McDonald violated a clearly established right. The court grants summary judgment
in favor of McDonald on Plaintiff's Section 1983 claim.
1. McDonald's Evidence in Support ofthe Cleiims in the Neglect Petitions
The Neglect Petitions stated that, according to "records from the Florida Department of
Children and Families [("DCF"),][Plaintiff] has been diagnosed with bi-polar disorder and
prescribed Zoloft and Trazodone and was supposed to be engaged in therapy. According to
Florida records the respondent mother was hospitalized at Brookdale Hospital Psychiatric
Center." (Neglect Pets.(Am Compl. Ex. 1 (Dkt. 16-1)) at ECF pp.64, 71, 79.) In the 2015
Order,the court found that "[t]his statement[was] not an accurate summary ofthe mental health
evaluation from Florida" that was available to the court at that time. (2015 Order at 29.)
McDonald has since submitted DCF records that substantiate each ofthe representations
in the Neglect Petitions. (See McDonald's Rule 56.1 Statement^(Dkt. 56)H 9(citing to DCF
^ Plaintiffs opposition papers did not include a responsive Rule 56.1 Statement, as required by Local Civil
Rule 56.1(b). The court notes that Plaintiff was furnished copies of both Local Rule 56.1 and Federal Rule of Civil
records^).) McDonald asserts that, at the time she filed the Neglect Petitions, she "did not have
any information suggesting that the summary ofPlaintiffs mental health history contained in the
Florida DCF records was incorrect or inaccurate in any respect." (Id.^ 10.) Indeed, one of
Plaintiffs own children told ACS that Plaintiff"had a history of mental health conditions." (Id.
4.) McDonald argues, therefore, that she "did not make any misstatements, let alone the
'extreme' or 'material and serious' misstatements, necessary to override the qualified immunity
afforded to her." (McDonald's Mem.in Supp. of Mot. for Summ.J.(Dkt. 55) at 6(citations
2. Plaintiffs Response
Plaintiff raises three objections, none of which is sufficient to deprive McDonald of
qualified immunity. Plaintiff first notes that, in response to ACS questioning, she stated that she
had previously tested negative for mental health issues, and that she refused to sign a form
authorizing ACS to access her health records at certain facilities. (PL's Opp'n at 8-9.) ACS was
not obligated to rely on Plaintiffs representations, however. McDonald's investigation properly
accounted for all legally available evidence, including DCF records and recent statements firom
Plaintiffs own children.
Second, Plaintiff notes that some ofthe cited DCF records were created in 2009.
(PL's Opp'n at 10.) Plaintiff argues that the Neglect Petitions, filed in 2012,improperly included
Procedure 56. (Notice to Pro Se Litigant Who Opposes a Mot. for Summ. J.(Dkt. 58)at 3-5.) Therefore,"[t]o the
extent the facts in [McDonald's] Rule 56.1 statement are not directly addressed by [Plaintiff], they are deemed
undisputed for the purpose ofthe summary judgment motion." Petrucelli v. Hastv. 605 F. Supp. 2d 410,418
(E.D.N.Y. 2009); see also Local Civil Rule 56.1(c). "In recognition ofPlaintiffs pro se status," however,the court
will "cite to Plaintiffs[Amended] Complaint" and other filings "to identify places in which Plaintiffs allegations
go beyond the existing record." Paul v. Postgraduate Ctr. for Mental Health. 97 F. Supp. 3d 141,150
^ McDonald filed copies ofthe faxed DCF materials under seal, pursuant to the court's order of August 15,2016
(Dkt. 65). Citations to these and other sealed documents have been omitted throughout except as otherwise
information about diagnoses and treatments from "previous times." (Id) The Neglect Petitions
did not allege ongoing treatment, however. The Neglect Petitions merely conveyed information
about Plaintiffs prior diagnoses, prescriptions, and hospitalizations. CSee Neglect Pets, at ECF
pp.64, 71,79(Tlaintiff"has been diagnosed with bi-polar disorder and prescribed" medications,
and she "was hospitalized" in the past at a particular psychiatric facility,(emphasis added)).)
Plaintiffs final objection is that the Neglect Petitions do not accurately reflect her
records. This claim bears closer scrutiny, since willful inaccuracies by McDonald may preclude
qualified immunity. Certain among Plaintiffs examples are without merit because they attack
the DCF records themselves rather than McDonald's summary thereof. For example,the DCF
records state that Plaintiff"sees Dr. Buthman at Family Health Center for bi-polar disorder."
(McDonald's Reply(Dkt. 63) at 5 (quoting DCF records filed under seal).) Plaintiff argues that
she "was never seen by Dr. Buthman for bipolar" disorder, citing to medical records of visits
with Dr. Buthman in 2009 and 2010 that make no mention ofa bipolar diagnosis. (Pl.'s Opp'n
at 11 (citing to medical records filed under seal).) Even if Plaintiff is correct, however,the
inaccuracy lies with the DCF records, not with McDonald's representations as to the contents of
More concerning to the court is Plaintiffs contention that the Neglect Petitions create a
misleading impression by citing facts out of context. The Neglect Petitions state that Plaintiff
"has been diagnosed with bi-polar disorder and prescribed Zoloft and Trazodone and was
supposed to be engaged in therapy." (Neglect Pets, at ECF pp.64, 71, 79.) The DCF records
clearly indicate, however, that Plaintiff was "prescribed Trazodone for insomnia." (Pl.'s Opp'n
at 10(emphasis added)(quoting from DCF records filed under seal).) McDonald attempts to
sidestep the issue, arguing that the Neglect Petitions merely stated a series offacts: DCF records
unequivocally show that Plaintiff was, at various times,(1)diagnosed with bi-polar disorder,
(2)prescribed Zolofl, and(3)prescribed Trazodone. (McDonald's Reply at 5.) By pairing a
diagnosis with a list of prescription medications, however,the Neglect Petitions yield the
reasonable interpretation that the listed medications were prescribed
the listed diagnosis. The
Neglect Petition goes on to say that Plaintiff"was supposed to be engaged in therapy," another
statement that presumably relates to Plaintiff's bipolar disorder,the only diagnosis listed.
The court is troubled by McDonald's decision to mention the Trazodone prescription in
the context of a statement about Plaintiffs bipolar diagnosis, and without any indication that the
prescription was for a separate condition. Nonetheless, the court finds that this omission,
standing alone, does not rise to the level of a willful misrepresentation that would deprive
McDonald of qualified immunity. The Neglect Petitions were replete with well-documented
evidence of physical abuse. (See 2015 Order at 27(McDonald "had probable cause to believe
that [Plaintiff] had engaged in excessive corporal punishment.").) The addendum discussing
Plaintiffs mental health accurately summarizes the DCF records as to Plaintiffs bipolar
diagnosis and general treatment history. Omitting the insomnia indication does not undermine
the "reasonable basis for [ACS's]findings of abuse," nor does it rise to the level of"ignoring
overwhelming exculpatory information or  manufacturing false evidence." Walker,
621 F. App'x at 75-76(intemal quotation marks and citations omitted). The court therefore finds
that McDonald is entitled to qualified immunity.
The court finds that Plaintiff has failed to show a genuine dispute of material fact as to
McDonald's entitlement to qualified immunity. Therefore, the court grants summary judgment
in favor of McDonald on Plaintiffs Section 1983 misrepresentation claim.
C. The New Claim Asserted in PlaintilBfs Opposition Papers
Plaintiffs opposition papers appear to raise a new procedural due process challenge to
ACS's investigation and child protection proceedings. (See PL's Opp'n at 3-8.) Plaintiff asserts
that she was "entitled to notice ofthe charges against her, an explanation of the evidence that
ACS had, and an opportunity to present her side ofthe story before[ACS sought] removal" of
her children. (Id at 3-4.) Plaintiff specifically alleges that some—^but not all—of her child's
bruises were the result of prior injuries unrelated to any abuse by Plaintiff, and that Plaintiff
should have been permitted to present evidence to that effect before ACS sought an ex parte
injunction and removal order. (Id at 5-7.) This argument is procedurally barred. Even if it were
not. Plaintiff has failed to state a claim that would overcome McDonald's qualified immunity.
1. Procedural Bar
In the Amended Complaint, Plaintiff made virtually identical allegations concerning
photographic evidence of her child's bruises, but styled as a due process challenge under a theory
of"fraud on the court." (See Am. Compl. at ECF p.15 ("[T]he pictures that ACS had in
evidence were pictures of old bruises.... Plaintiffinformed the [Family] Court that she [had]
pictures ... indicating that the bruises [were] old.").) That claim was dismissed without
prejudice in the 2015 Order on the groimds that Plaintiff had "neither alleged, nor produced
evidence indicating, that ACS or McDonald knew or had reason to know that the photographs
that they submitted to the family court were false." (2015 Order at 29-30.) The court instructed
Plaintiff to amend her complaint by December 15, 2015, should she wish to cure any defects (id.
at 34), but Plaintifffailed to do so.
Plaintiff now attempts to revive that same claim, repackaged as a procedural due process
violation based on lack of notice and opportunity to respond. However,"[a] party may not use
his or her opposition to a dispositive motion as a means to amend the complaint." Shah v. Helen
Haves Hosp.. 252 F. App'x 364, 366(2d Cir. 2007)(summary order)(citing Wright v. Ernst &
Young LLP. 152 F.3d 169,178(2d Cir. 1998)). Plaintiff declined to amend her complaint at the
appropriate time, and may not do so at this stage ofthe proceedings. Plaintiff's newly asserted
procedural due process claim is therefore dismissed.
2. Lack of Merit
The court notes that Plaintiffs procedural due process argument would likely have failed
even had it been included in a properly amended complaint. McDonald is entitled to qualified
immunity absent a showing that she violated a clearly established constitutional right, as
discussed above in Section II.A.2.
Ricciuti, 834 F.3d at 167. Plaintiff has made no showing
of a clearly established constitutional right to advance notice of each specific injury underlying
emergency child protection proceedings. See, e.g.. Green ex rel. T.C. v. Mattinglv.
(CLP),2010 WL 3824119, at *9(E.D.N.Y. Sept. 23,2010)("It is
questionable whether any notice at all is constitutionallv required" for temporary removal
hearings,(citing Tenenbaum v. Williams. 193 F.3d 581,594 n.lO(2d Cir. 1999))).
For the reasons stated above. Defendant McDonald's Motion for Summary Judgment
(Dkt. 54)is GRANTED. To the extent that Plaintiff purports to assert a new claim in her
opposition papers, that claim is DISMISSED as procedurally barred. This Order disposes of all
remaining claims, and so the Clerk of Court is respectfully DIRECTED to close the case. The
Clerk is further DIRECTED to send a copy ofthis order to Plaintiff.
s/Nicholas G. Garaufis
Dated: Brooklyn,New York
NICHOLAS G. GARAUBIS
United States District Judge
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