Thomas v. The City of New York et al
MEMORANDUM DECISION AND ORDER dated 12/20/16 granting defendant's 32 Motion for summary judgment. The Court certifies pursuant to 28:1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). ( Ordered by Judge Brian M. Cogan on 12/19/2016 ) *Forwarded for jgm. C/M to plaintiff. (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
: DECISION AND ORDER
- against : 15 Civ. 3236 (BMC)
GINA DIGGLIO; CATHY CHIOU;
CHARMAINE CORT; V. GRANT; JOHN
DOE P.O. and JOHN DOE, P.O.,
COGAN, District Judge.
Plaintiff pro se is the father of six children, 1 who were removed from their home at
various times by the New York City Administration for Children’s Services (“ACS”) after a
school guidance counselor filed a complaint that two of the children frequently came to school
late, hungry, and with poor hygiene. Plaintiff has sued the guidance counselor, the ACS
caseworkers involved in the removal – one who received the report and two who visited the
home and effected the removal – and the two police officers who assisted in the removal.
Plaintiff brings claims under 42 U.S.C. § 1983, asserting that these individuals violated his rights
under the Fourth and Fourteenth Amendments of the Constitution. Defendants moved for
judgment on the pleadings; I converted the motion to summary judgment and received additional
evidence and submissions from the parties. As shown below, plaintiff’s rights were not violated,
and defendants’ motion must therefore be granted.
The six children will be referred to by their initials as follows: J.B., K.B., D.B., A.B., baby Z.B., and infant J.B.
The case originated from a report to ACS sent by a guidance counselor at the school of
two of the children, who plaintiff has identified as defendant “Gina Digglio.” 2 The report stated
7 yr old . . . [J.B.] has been late for school 25 times & absent 4. Mother is aware,
but fails to correct the problem. The child’s education is negatively impacted as a
result of her poor attendance. . . . There are 2 children in the home, [J.B.] and
[A.B.]. Both children have the same attendance issues & they frequently come to
school late & hungry. In addition, both children have been noticed with poor
hygiene. . . . [J.B.] is a Special Education student & she is not completing her
homework. The family live [sic] a cross [sic] the street from the school.
The report was received by ACS caseworker defendant Cathy Chiou. She, in turn, dispatched
defendant caseworkers Charmaine Cort and V. Grant (the “caseworkers”) to visit the residence
on Bushwick Avenue (the “Apartment”). The visit occurred on Friday night, November 12,
2010, and the caseworkers determined to remove the children. The children were removed with
the assistance of two John Doe police officers. 3
There were a number of subsequent proceedings in Family Court following the removal
of the children. Defendants have submitted records from these proceedings that disclose a
number of material facts that cannot be genuinely disputed and are sufficient to resolve this
motion. First, on the night the children were removed, the children’s mother, 4 who was present
I previously ordered that defendants may continue to refer to the guidance counselor as “Gina Digglio,” which is
not her correct name, pursuant to N.Y. Soc. Serv. L. § 422(4)(A). That statute provides for confidentiality as to the
identity of an individual who makes a report of child abuse to the State Central Registry.
Defendants have provided plaintiff with the identities and service addresses of the two John Doe police officers,
but plaintiff has not sought to change the caption to reflect their names, and in light of the disposition in this
decision, I see no reason to do it now.
The children’s mother’s, the oldest child’s, and the infant’s initials are all J.B. I will refer to the children’s mother
as “the mother,” the oldest child as “J.B.,” and the infant as “infant J.B.”
for the visit, gave ACS signed consent to remove the children. The consent form was entitled,
“NOTICE OF TEMPORARY REMOVAL OF CHILD(REN) AND RIGHT TO HEARING.”
The form stated, “I understand the term and conditions of this temporary removal, and I agree to
the removal of my child(ren) as stated.” Above her signature, it stated, “NOTICE: YOU DO
NOT HAVE TO CONSENT TO THIS REMOVAL.” The form further advised her that a
hearing would be held before the Family Court the following Tuesday, November 16, 2010, for
intake. In addition, the mother signed a medical release form pursuant to the Health Insurance
Portability and Accountability Act (“HIPAA”), enabling ACS to obtain baby Z.B.’s medical
On November 16, 2010, Family Court Judge Lim held a hearing pursuant to § 1027 of the
New York Family Court Act, which calls for a preliminary hearing when ACS caseworkers
remove children without court authorization to determine whether the children should remain in
ACS custody or be returned to the parents. The mother was present and represented by counsel
at the hearing. Plaintiff did not attend. 5
At the hearing, Judge Lim ordered remand of the children to the custody of ACS. The
mother then requested a hearing pursuant to § 1028 of the Family Court Act, which allows for a
parent or guardian to petition for the return of children that the Family Court has previously
ordered removed. The mother informed the Court that she believed that plaintiff was the father
of the youngest child, baby Z.B, but that she did not know the father or fathers of the other
children. Judge Lim set a date for the § 1028 hearing to be held before Family Court Judge
Weinstein and directed ACS to serve plaintiff with notice.
During the hearing, the attorney for ACS stated that ACS was unaware of the father or fathers of the children.
ACS’s petition also states that the father was unknown, but named plaintiff as a respondent. The petition explained
that plaintiff, the mother’s “paramour”, assists “in the care and supervision” of the children and thus was also a
“person legally responsible” for the neglect of the children.
After the November 16, 2010 hearing, Judge Lim entered a written order reflecting his
ruling from the bench. Judge Lim’s order directed remand of the children to the custody of ACS,
finding that the standard to sustain removal, “imminent risk” to the children, had been met.
Judge Lim determined that there was imminent risk because, according to his Order, there were
“deplorable conditions in the house, little food, child [J.B.] is not going to school, child [Z.B.] is
diagnosed as failing to thrive.” He also found that “respondent” – both plaintiff and the mother
were named as respondents, although it appears he was only referring to the mother – was
present at the hearing.
The most significant Family Court proceeding, for our purposes at least, is the § 1028
hearing, which began a couple of weeks later, on November 30, 2010, before Family Court
Judge Weinstein. At that hearing, the mother sought the return of the four oldest children, not
baby Z.B., who was then about three months old. It is significant for a number of reasons.
First, plaintiff was represented by an attorney at the proceeding, and he and his attorney
took positions that are inconsistent with several positions that plaintiff is taking in this § 1983
action. Plaintiff was not only present, but was placed under oath. Plaintiff’s attorney asserted
before Judge Weinstein that plaintiff had no interest in the proceeding because he was not the
father of the four oldest children – he was only the father of baby Z.B.: “Your Honor, just to
clarify, so I believe today’s hearing is not in relation to my client’s child, then we are going to
reserve his right [to challenge the removal of baby Z.B.].” However, notwithstanding this
attempted reservation, Judge Weinstein cautioned plaintiff and his attorney as follows:
THE COURT: Okay, you know, pursuant to Section 1028, I think that there is a
hearing [at which] he is represented by counsel, and he has an opportunity to
participate, that will – and the fact that the hearing goes forward today, that will
preclude him from seeking this relief in the future. Has he been advised of that?
MR. KUCUTSEY [plaintiff’s attorney]: He understands now.
THE COURT: You know, I am dealing here with a hearing that involves – that is
for the purpose of determining whether the removal of the children was justified
by an imminent risk, and whether or not the imminent risk would continue, and
whether or not there are services that could be provided that would minimize the
risk so that the children could be safely returned, and I think the issue really is
inexplicably [inextricably] entwined regarding all five children. So, I am – I
don’t – and the whole nature of this is to have emergency relief prior to a fact
finding. So, if I am going to be having a hearing, to determine all of the same
issues, I – I think this is the hearing. So, I think it is unlikely that the Court would
grant another pretrial 1028 application for a hearing. . . .
Okay. Mr. Kucutsey, I understand your client says he is not with – he is not going
to be participating. You and he have the right to remain, and to – and to be
provided with the evidence. I also understand your primary today[sic] and I am
not going to –
MR. KUCUTSEY: (Interposing) I’m not going to remain. I would like to – I
would like to request – will request the transcripts of the hearing.
THE COURT: Okay. You can certainly put in a request for those and – and you
will be provided with –
MR. GWINN [ACS’s attorney]: (Interposing) I can certainly provide him with
THE COURT: Fine. And – all right. Mr. Thomas, you have the right to remain as
well, and to hear all the evidence. You have the right to participate in the hearing,
at any time, to address the issue of custody of your child.
(emphasis added.) Carrying this point forward, just before the Court began to receive testimony,
plaintiff’s lawyer inquired, “Your Honor, I would like to excuse myself,” to which Judge
Weinstein responded, “Oh, fine. Good bye. Thank you.” The transcript does not disclose
whether plaintiff left with his attorney or remained for the hearing.
Second, before his attorney left, plaintiff took the position at the November 30th hearing
that he did not live at the Apartment. This was a position reiterated several times not only by
plaintiff’s attorney, but also by the children’s mother:
THE COURT: Does Mr. Thomas reside in the home with [the mother] and the
children? Or was he, until the removal of the children?
MR. KUCUTSEY [plaintiff’s attorney]: No, he was not.
THE COURT: Because, according to the petition, both parents – or both parties
were named as residing at [the Apartment].
MR. GWINN [ACS’s attorney]: I have an affidavit of service that indicates that
an individual known as Monte Thomas was, in fact, served with summons and
petitions on November the 19th at that exact address.
MR. KUCUTSEY: Well, Your Honor, he has the full month of –. The child is
four months old. So, it would make sense that – at that residence. Your Honor, in
fact his – his grandmother lives down the block from his residence. He comes
there, you know – so there would be a reason that he would be at the house – but
he does not live there.
MS. BASKIN [the mother’s attorney]: And my client also says that Mr. Thomas
does not reside there, but he is there.
Thus, both plaintiff’s attorney and the mother’s attorney represented to the Court that plaintiff
did not live at the Apartment, and plaintiff, who was present and under oath, said nothing to
correct them. 6
Third, the November 30th hearing is significant because the Court received extensive
testimony from defendant Cort, the caseworker, as to her involvement in the case. She testified
that prior to visiting the Apartment, she reviewed the file and saw a prior complaint for excessive
corporal punishment on J.B., the oldest child, against both plaintiff and the mother. She then had
a conversation with the guidance counselor, defendant Gina Digglio. Digglio reported that she
and the children’s two teachers had observed “bad body and breath odor” coming from the
children; that they had been late 35 times between them, each time for at least an hour; and that
It is not a material point, but it does not seem too speculative to suggest that what may have been going on here
was that if plaintiff had a criminal conviction, it may have raised a question as to whether he could legally reside in
the public housing that the mother and children lived in during the period in question. See
http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130 (noting Class C felon named “Dermont Thomas”
released from parole supervision 10/31/2003); https://www.reentry.net/ny/help/item.2912-Housing_and_Reentry
(noting that a Class C felon is not allowed to live in NYCHA housing until six years after release from parole
they frequently complained of being hungry and were given breakfast by their teachers before
going to class. Digglio further reported that she had a parent-teacher meeting with the mother
three days prior to filing the report with ACS, but the mother could give no reason why the
children were so frequently late, especially since they lived across the street from the school.
Digglio offered to pick up the children and bring them to school but the mother demurred.
Digglio said that as a result of the lateness, the children, one of whom was in a special education
class, were at risk of not being promoted.
Based on that conversation, Cort visited the Apartment on November 12, 2010. Present
were the mother; her brother, Randy Benson; plaintiff; another unidentified adult; and the five
subject children. Cort testified to observing deplorable conditions relating primarily to
sanitation, odors, insect infestation, lack of food, lack of lighting, unwashed condition of the
younger children, and inadequate sleeping accommodations, although some of those conditions
had somewhat improved on a second visit after the children had been removed. Photographs
were admitted into evidence, documenting her observations. She also related a conversation
with J.B., the oldest child, who told her that plaintiff and Randy Benson frequently smoked
marijuana in the Apartment and that the mother and plaintiff would hit her with a hangar when
she got into trouble.
A particular focus of Cort’s testimony was the condition of baby Z.B. – the only child
that plaintiff claimed was his. The attorney for the mother repeatedly objected to this testimony
on the ground that only custody of the older four children was at issue, but Judge Weinstein,
consistent with his warning to plaintiff and his attorney before the hearing, overruled the
objections on the ground that evidence of neglect towards baby Z.B. could tend to show
derivative neglect towards the other children. Cort testified that the baby was smaller than a
three month old should be, her eyes appeared sunken in her head, and she was very pale.
The mother acknowledged to Cort during her visit that the baby had been diagnosed at
Woodhull Hospital with “failure to thrive,” 7 and that a nurse was supposed to be visiting the
baby at home, but the nurse never came. The mother advised Cort that the baby’s birthweight
was 6 lbs. 8 ounces, but at three months old upon admission to Woodhull Hospital, the baby was
only 6 lbs. 13 oz. She was discharged five days later at 7 lbs. 13 oz. Upon removal by ACS on
November 12, she weighed only 8 lbs. 3 oz. Cort further testified that she called the child’s
pediatrician, who confirmed that the baby had been diagnosed with failure to thrive. The
pediatrician told Cort that nurses had tried to reach the mother to bring the baby in for follow up,
but these efforts were unsuccessful.
Cort also testified that she had offered parenting services to the mother, who had agreed
to use them but had not. In addition, based on her conversation with J.B. about marijuana use in
the Apartment, Cort asked the mother and the mother’s brother, Randy Benson, to submit to drug
testing. The mother agreed and tested negative; Randy Benson declined to be tested. Cort had
also wanted to ask plaintiff to submit to drug testing, but he left the Apartment before she had the
The November 30th § 1028 hearing was continued to December 10, 2010. Plaintiff and
his attorney did not appear at the reconvened hearing, but the mother and her attorney did. At
the hearing, the parties stipulated that the deficiency in sleeping arrangements had been cured.
“Failure to thrive is defined as decelerated or arrested physical growth (height and weight measurements fall below
the third or fifth percentile, or a downward change in growth across two major growth percentiles) and is associated
with abnormal growth and development. The reason for failure to thrive is inadequate nutrition.” John Hopkins
Medicine, Health Library, “Failure to Thrive,” at
http://www.hopkinsmedicine.org/healthlibrary/conditions/pediatrics/failure_to_thrive_90,P02297/ (last visited
December 20, 2016).
The mother’s attorney also advised Judge Weinstein that the mother had amended the petition so
as to seek return of only the oldest three children, instead of the oldest four, thus agreeing that
the youngest two children could remain in ACS custody.
Judge Weinstein then received testimony from the children’s mother. The mother
testified that she lived alone with the five children. When asked if anyone besides her and the
children had ever lived at the apartment, she identified her brother Randy Benson – not plaintiff,
who she testified lived elsewhere. She testified that when the children missed breakfast, it was
because they did not want to eat, and when they were late for school, it was because one of them
was sick. She said that plaintiff made the children dinner, but identified him as the father only to
baby Z.B. She denied that she had any conversations with the children’s guidance counselor.
Judge Weinstein then ruled from the bench. He found Cort’s testimony fully credible,
and the mother’s testimony largely incredible. Nevertheless, he found that appropriate
conditions could be put into place to protect the three older children, and therefore ordered, inter
alia: (1) twice weekly home visits with private conferences between the caseworker and the
children; (2) an order of protection, excluding the mother’s brother, Randy Benson, from the
home as a result of his refusal to submit to drug testing; and (3) a prohibition on corporal
punishment of any kind.
In addition, ACS requested that Judge Weinstein order plaintiff excluded from the
Apartment based on hospital records received in evidence in which the children had reported that
he was using marijuana in the house along with Randy Benson. 8 The mother’s attorney then
inquired, “[e]xcluded so he can’t visit, or excluded so he can’t reside there[, be]cause he doesn’t
reside there.” ACS’s attorney answered, “reside.” The mother’s attorney then confirmed that
The inference that marijuana or drugs were being used was based on the children’s statements to hospital personnel
that Randy Benson and plaintiff were smoking something that “made a lot of fire.”
her client would ensure that no one smoked marijuana in the house. On that basis, Judge
Weinstein declined to exclude plaintiff from the Apartment.
The status quo was not long maintained. Five days later, on December 15, 2010, a
hearing was held in front of Family Court Judge Danoff on a petition by ACS for an order to
show cause as to why the children should not be remanded to ACS for violations of the
conditions set by Judge Weinstein. In an affidavit, attached to ACS’s order to show cause,
defendant Cort averred that: (1) on December 14, 2010 she visited the apartment and found the
three children alone with Randy Benson, and plaintiff did not return to the apartment until a half
hour later; (2) the children advised her that Randy Benson had spent the night in the apartment;
(3) she had observed that the children were wearing the same clothing that they had been
wearing the previous day; and (4) one of the children informed her that she had not had a bath in
Both plaintiff and the mother were present through counsel at the December 15th hearing.
At the hearing, the mother consented to the remand and Judge Danoff ruled that “the order to
show cause is granted on consent.” Judge Danoff then ordered the children remanded to the
custody of ACS, finding that “it is contrary to the welfare of the children to remain with the
mother and the father at this time.” Significantly, plaintiff did not object to ACS’s petition for
remand on the mother’s consent. The children were then removed pursuant to Judge Danoff’s
The next Family Court record we have is from a conference held before Family Court
Judge Beckoff almost a year later, on November 17, 2011. At the time of the hearing, all of the
children remained in foster care. The November 17th conference is significant because, despite
plaintiff’s and the mothers’ previous assertions to Judge Weinstein that plaintiff was only the
father of baby Z.B., and was not the father of the four other children, plaintiff and the mother
sought the entry of an order of filiation establishing plaintiff’s paternity over all five children.
After plaintiff and the mother affirmed under oath that plaintiff was the biological father of all
five children, Judge Beckoff entered five orders of filiation, declaring that plaintiff was the father
of each child.
On December 12, 2011, plaintiff and the mother had another baby, infant J.B. Three days
after her birth, before she had been released from the hospital, ACS filed a petition for the
removal of the child. A hearing was held the same day, December 15, 2011, in front of Family
Court Judge Turbow. Plaintiff and the mother, who were both present and represented by
separate counsel, objected to the removal. ACS’s attorney informed Judge Turbow that ACS
was seeking remand of infant J.B. because
it would be contrary to the welfare of this newborn to be released to the care of
the respondents [plaintiff and the mother] and that reasonable efforts to prevent
the removal of this baby have been made in that the five siblings have been in
foster care since 2010, various referrals having been made . . . to promote
reunification, and assist with the underlying issues which led to the filing of the
removal. . . . [Due to] the outstanding issues related to child neglect . . . [ACS]
believes that a remand is in order.
In response to a question by Judge Turbow as to, “whether the father is capable of taking
care of the children,” the attorney for ACS stated that, “It’s my understanding that although the
mother has tried complying or has complied with some of her service plan, the father has not
complied with any aspect of his service plan, and so . . . [ACS] believes that he is not an
appropriate resource.” Based on this information, Judge Turbow ordered infant J.B. remanded to
ACS, finding that a “return home [would be] contrary to [infant J.B.’s] best interests in view of
allegations in [the] petition and prior history” and that “reasonable efforts” had been made by
ACS in light of the services provided “with respect to [the] other children.”
A § 1028 hearing was held five days later in front of Judge Beckoff, on December 20,
2011. The mother and plaintiff were both present and represented by separate counsel. We do
not have the complete record of the December 20th hearing, but the portion we have is sufficient
for our purposes.
At the hearing, the Court heard testimony from Sharon DaSilva, the ACS caseworker
assigned to infant J.B.’s case. DaSilva testified that on December 14, 2011, she received an oral
report from a foster care agency, which was monitoring the mother and plaintiff because their
other children were in foster care, reporting that the mother had delivered a new baby and that no
preparations had been made for the new baby. After receiving the report, DaSilva went to the
hospital to visit the mother. DaSilva testified that when she had asked the mother why she was
not prepared for the baby, “she told me that her due date was on the 15th . . . and she just didn’t
make any preparation[s].” DaSilva further testified that when she asked the mother if she was
planning to breast feed the baby, “she said no . . . she told me that she . . . was smoking cigarettes
all through the pregnancy and she feel[sic] that the nicotine in the breast milk might harm the
Based on this conversation, DaSilva asked the mother if she could visit the apartment.
The mother agreed and went with DaSilva to the apartment later that day, December 14, 2011.
DaSilva testified that the floors of the apartment were dirty, there was no working stove, and the
bedrooms looked like a “junk yard” because there were boxes, television sets, and tool kits
scattered all over the room. DaSilva also stated that she did not observe any baby clothes or
After making these observations, DaSilva told the mother that she did not think that she
was prepared or ready for the baby, and the mother agreed. DaSilva testified that at the child
safety conference the following day, plaintiff had also acknowledged that the children’s
bedrooms were not prepared and blamed the condition of the bedrooms on a bedbug infestation,
the same explanation the mother had given the previous year when ACS initially visited the
apartment in 2010.
As they got older, all of the children were ultimately returned from foster care to the
mother and plaintiff, beginning in 2012 and continuing through 2013. These return orders were
subject to a number of stringent conditions. The Family Court case was closed in 2014, and
plaintiff brought this action the following year.
It is understandable that, as a pro se litigant attacking a series of events in state court
proceedings that happened years ago, plaintiff’s theory of the case as expressed in his amended
complaint is not only imprecise, but has evolved as defendants have refuted various of his
contentions with documentary evidence. Liberally read, the essence of the claim against each
defendant is as follows.
As to Gina Digglio, the school guidance counselor, she did not follow a number of New
York City Board of Education policies and procedures requiring parental consultation and
support before the guidance counselor can file a report with ACS. The failure to observe these
guidelines, according to plaintiff, deprived him of his right to due process of law.
As to the ACS caseworkers, Chiou, Cort, and Grant, and the two police officers, they
violated plaintiff’s due process rights in the following ways: (a) obtaining medical information
without consent under HIPAA; (b) removing the children from the Apartment without a court
order and without consent; (c) failing to serve plaintiff with the Order of Protection barring
Randy Benson from the Apartment, and then removing the children again when it was violated;
and (d) removing the newborn child from the hospital shortly after her birth in December 2011.
In addition, plaintiff claims that Cort, Grant, and the police officers violated his and the
children’s Fourth Amendment rights when they entered the Apartment.
In opposing defendants’ motion for summary judgment, plaintiff additionally offers that
defendants presented “false and misleading” testimony to the Family Court to obtain the
removal. He also asserts that the fact that the Family Court ultimately returned the children to
the mother and plaintiff proves that their removal was improper ab initio.
My conclusions as to these claims, based on the record, are as follows.
First, there is no plausible claim against Chiou. All that is alleged is that she received the
report from Digglio and passed it on to Cort and Grant. There is nothing unconstitutional about
that; that is her job. Defendants’ motion for summary judgment is granted as to her.
Second, there can be no claim for violation of baby Z.B.’s rights under HIPAA. The
consent form that the mother signed contained an express waiver of those rights including
authorization for the caseworkers to contact the child’s physicians and obtain her medical files.
Third, plaintiff cannot challenge the initial removal of the children on November 12,
2010. The record shows that although plaintiff was present when ACS initially arrived at the
apartment on the night of November 12, 2010, he chose to absent himself. Perhaps that is the
reason he was unaware that the children’s mother had consented to their removal and had
received notice of the hearing to confirm the removal until defendants produced the consent form
when this Court converted their motion to dismiss to a motion for summary judgment. It is
axiomatic that the mother’s consent to the removal of the children vitiates any due process or
Fourth Amendment claims that plaintiff might have arising from that evening, as any rights she
had could obviously be waived. See generally United States v. Smith, 308 F.2d 657, 663 (2d
Cir. 1962) (When a person “consents to a search or seizure . . . the protection he would have
enjoyed under the Fourth Amendment is lost to him.”); Kreuter v. Reuter, No. 01-cv-5229, 2002
WL 31946715, at *5 (E.D.N.Y. Dec. 5, 2002) (“The Supreme Court has consistently held that
constitutional rights may be waived under certain circumstances.”) (collecting cases).
Additionally, several of the positions that plaintiff is taking in this action to challenge the
initial removal are barred by the doctrine of judicial estoppel. The doctrine of judicial estoppel
bars a party from asserting a position in a later litigation that is inconsistent with his position in
an earlier litigation. See Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir.
1999). The Supreme Court set out non-exclusive considerations for applying the doctrine in
New Hampshire v. Maine, 532 U.S. 742, 750–51, 121 S. Ct. 1808, 1815 (2001):
First, a party’s later position must be “clearly inconsistent” with its earlier
position. Second, courts regularly inquire whether the party has succeeded in
persuading a court to accept that party’s earlier position, so that judicial
acceptance of an inconsistent position in a later proceeding would create “the
perception that either the first or the second court was misled.” . . . A third
consideration is whether the party seeking to assert an inconsistent position would
derive an unfair advantage or impose an unfair detriment on the opposing party if
(citations omitted). The purpose of judicial estoppel is to “preserve the sanctity of the oath by
demanding absolute truth and consistency in all sworn positions” and to “protect judicial
integrity by avoiding the risk of inconsistent results in two proceedings.” Bates v. Long Island
R.R. Co., 997 F.2d 1028, 1037 (2d Cir. 1993). Moreover, “[b]ecause the rule is intended to
prevent ‘improper use of judicial machinery,’ judicial estoppel ‘is an equitable doctrine invoked
by a court at its discretion.’” New Hampshire, 532 U.S. at 750, 121 S. Ct. at 1815 (citations
At the November 30, 2010 evidentiary hearing before Family Court Judge Weinstein,
plaintiff was placed under oath and, through his attorney’s proffer, represented to Judge
Weinstein that: (1) none of the children that were the subject of that proceeding – the four oldest
children – were his, a point confirmed by the mother’s attorney; (2) he did not live at the
Apartment, another point that his attorney and the mother made repeatedly; and (3) he had no
interest in remaining at the evidentiary hearing despite Judge Weinstein’s warning that his
findings would impact any future determination as to baby Z.B., the one child as to whom
plaintiff claimed paternity. At the conclusion of the continued hearing on December 10, 2010,
which plaintiff did not even attend, Judge Weinstein credited caseworker Cort’s description of
the deplorable conditions in the apartment on the night of the removal over the mother’s denial
of such conditions.
Plaintiff seeks to challenge that finding now, but he is estopped from doing so. He led
Judge Weinstein to believe that the Apartment was not his residence, these were not his children,
and he had no interest in the conclusions that Judge Weinstein might make. Plaintiff could have
instead claimed custody of both the children and the Apartment, and even without asserting such
a proprietary claim to either, participated in the hearing, as Judge Weinstein suggested, by
testifying as a witness to the conditions that he observed on the night of the removal. He
affirmatively chose to do neither, and thereby either misled Judge Weinstein or is attempting to
mislead this Court. The doctrine of judicial estoppel compels him to adhere to the first position
he took, and does not permit him to adopt a later, contrary position.
The fact that plaintiff later claimed paternity of all five children does not permit him to
now challenge the removal of the children during a period when he denied being their father.
Plaintiff affirmatively disavowed his rights to the care and custody of the four oldest children at
the November 30, 2010 hearing; he may not now claim that his rights were violated before he
decided to begin exercising them.
Plaintiff is also estopped from claiming that he lived in the Apartment at the time of the
initial removal. Additionally, the fact that plaintiff chose to leave the Apartment during the
course of ACS’s visit vitiates any argument that he was an overnight guest. Consequently, any
claim that his Fourth Amendment rights were violated when the caseworkers and police officers
entered the Apartment on the night of the initial removal must fail. See Rakas v. Illinois, 439
U.S. 128, 134, 99 S. Ct. 421, 435 (1978) (holding that a “person who is aggrieved by an illegal
search . . . only through the introduction of damaging evidence secured by a search of a third
person’s premises or property has not had any of his Fourth Amendment rights infringed.”); see
also Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 473 (1998) (“[O]ne who is merely
present with the consent of the householder” may not “claim the protection of the Fourth
Amendment” as to the search of the house).
Fourth, any challenge to the subsequent removal of the three oldest children (it will be
recalled that the mother elected not to contest the removal of the youngest two children) on
December 15, 2010, for violations of the conditions of return, also fails. As an initial matter,
plaintiff is judicially estopped from challenging the subsequent removal of the three oldest
children. Prior to the children’s removal, a hearing had been held in front of Judge Danoff on
December 15, 2010, during which the mother gave her consent to the removal. Plaintiff, who
was present at the hearing through counsel, did not contest ACS’s request for remand nor object
to the mother’s grant of consent. In fact, plaintiff’s attorney did not say anything in response to
ACS’s request for removal. Plaintiff’s silence at the hearing operates as consent. He may not
adopt a contrary position now and challenge the removal over four years later. 9
Even more significantly, unlike the initial removal, the December 15, 2010 removal
occurred only after a Court order was entered permitting removal for good cause. See N.Y. Fam.
Ct. Act § 1029(a). Thus, “the independent judicial determination of the Family Court [to remove
the child] absolves Defendants of any liability.” Licorish-Davis v. Mitchell, 12-CV-601, 2013
WL 2217491, *28 (S.D.N.Y. May 20, 2013).
Fifth, plaintiff has no valid claims regarding the removal of infant J.B. within days of her
birth. Like the subsequent remand of the three oldest children on December 15, 2011, infant J.B.
was removed after a Court order was entered permitting her removal for good cause. As is often
the case in Family Court proceedings, good cause for the removal of infant J.B. was found on the
basis of derivative neglect as a result of the findings from the November 30, 2010 hearing, which
plaintiff and his lawyer decided to leave, and the December 10, 2010 hearing, which plaintiff
decided not to attend. Thus, once plaintiff decided not to participate in or challenge the findings
of Family Court Judge Weinstein, he took on a heavy burden to demonstrate that the children
should not remain in ACS custody until the conditions leading to their removal had been
The doctrine of derivative neglect is based on the common-sense notion that if the Family
Court, after a hearing, finds that children in the household are at imminent risk, then other
children introduced into the household are going to be exposed to at least the same degree, and in
the case of infant children very likely an even greater degree, of risk. See N.Y. Fam. Ct. Act §
Plaintiff argues that the subsequent removal of the children for violations of the conditions of return was
impermissible because he had not been served with Judge Weinstein’s December 10, 2010 Order and had been
unaware of any such conditions. However, regardless of whether plaintiff was served with Judge Weinstein’s
December 10, 2010 order, he was present at the December 15, 2010 hearing and he did not contest that the
conditions in Judge Weinstein’s order had been violated or object to the remand of the children.
1046(a)(i) (“proof of the abuse or neglect of one child shall be admissible evidence on the issue
of the abuse or neglect of any other child of, or the legal responsibility of, the respondent. . . .”).
Numerous New York cases hold that when the conditions that had supported remanding one
child to ACS have not been cured, those same conditions support remanding the other children in
the household even without direct evidence that the other children suffered the same neglect.
See, e.g., In re Sha-Naya M.S.C., 130 A.D.3d 719, 13 N.Y.S.3d 502 (2d Dep’t 2015); In re
Keyarei M., 71 A.D.3d 1510, 897 N.Y.S.2d 572 (4th Dep’t 2010); In re Camara R, 263 A.D.2d
710, 693 N.Y.S.2d 681 (3rd Dep’t 1999); In re Kimberly H., 242 A.D.2d 35, 673 N.Y.S.2d 96
(1st Dep’t 1988). In finding derivative neglect as to infant J.B., the Family Court relied on the
testimony of caseworker DaSilva, who confirmed that the conditions that led to the other
children’s removal had not been remedied and that the mother and plaintiff acknowledged that
they were not prepared to take home an infant.
Sixth, to the extent plaintiff alleges Fourth Amendment claims in regards to the multiple
removals of the children, they fail. Because Fourth Amendment rights are personal rights that
cannot be asserted vicariously, see Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961
(1969), plaintiff has no claim that his Fourth Amendment right to be free from unreasonable
seizures was violated each time the children were removed. See Southerland v. City of New
York, 680 F.3d 127, 143 (2d Cir. 2011) (“A Fourth Amendment child-seizure claim belongs only
to the child, not to the parent. . . .”); Graham v. City of New York, 869 F. Supp. 2d 337, 355
(E.D.N.Y. 2012) (“[P]arents do not have their own Fourth Amendment right to be free from a
child’s court-approved removal.”).
Any remaining claims that plaintiff may be advancing are defeated by the doctrine of
qualified immunity, which protects all of the individual defendants, from the school guidance
counselor to the caseworkers to the police officers. “Qualified immunity shields government
officials performing discretionary functions ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). The relevant
question is whether it was clear to the defendant “‘that his conduct was unlawful in the situation
he confronted.’” Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir. 2003) (quoting Saucier v. Katz,
533 U.S. 194, 202, 121 S. Ct. 2151, 2156 (2001)). Qualified immunity applies if a government
officer’s “action was ‘objectively legally reasonable in light of the legal rules that were clearly
established at the time it was taken.’” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir.
2010) (quoting X–Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)). In other words, “if
‘officers of reasonable competence could disagree’ on the legality of the action at issue in its
particular factual context,” a defendant is entitled to qualified immunity. Walczyk v. Rio, 496
F.3d 139, 154 (2d Cir. 2007) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092,
As to Digglio, the guidance counselor, plaintiff’s main point is that, pursuant to various
Department of Education and school regulations and policies, she should have alerted the family
to the problems before she alerted ACS. The regulations to which plaintiff cites have nothing to
do with cases of child neglect. Rather, school officials’ obligations in such cases are set forth in
New York Social Services Law § 413, which provides that a “school official, which includes but
is not limited to school teacher [and, inter alia,] school guidance counselor,” is “required to
report [to ACS] . . . when they have reasonable cause to suspect that a child . . . is an abused or
maltreated child. . . .” In addition, Digglio’s report was not the causative factor in the removal of
the children on November 12, 2010 – it was the observations of Cort and Grant, the
conversations Cort had with the children’s doctor, and, even more fundamentally, the mother’s
consent to the removal of the children. At the very least, it is clear that Digglio acted in good
As to the caseworkers, Cort and Grant, the mother’s consent protects them from any
liability for the November 12th removal. But even beyond that, once the Family Court
confirmed “‘the basis for removal’” four days later, “any liability for the continuation of the
allegedly wrongful separation of the parent and child can no longer be attributed to” them.
Southerland, 680 F.3d at 153 (2d Cir. 2011) (quoting Nicholson v. Scoppetta, 344 F.3d 154, 172
(2d. Cir. 2003)). Every other remand was sanctioned by Family Court Order.
Plaintiff acknowledges that he would have to show that Cort and Grant knowingly
supplied false evidence to the Family Court to avoid their qualified immunity, see Wilkinson ex
rel. Wilkinson v. Russel, 182 F.3d 89, 104 (2d Cir. 1999) (“Case workers cannot be free to
substantiate a claim of abuse, for instance, by ignoring overwhelming exculpatory information or
by manufacturing false evidence.”), but what plaintiff repeatedly calls “false and misleading
statements” refers only to the fact that he disagrees with the caseworkers’ observations. The
most he can do is argue with their interpretation of the evidence. For example, he points out that
the reason baby Z.B. was diagnosed with failure to thrive was because she was lactose intolerant,
not that he and the mother were negligently failing to feed the baby (I am not sure I see the
difference; there are ways to feed a lactose intolerant child so that she does not weight 8 lbs.
when she is three months old).
Those kinds of competing explanations are meant to be raised on cross-examination,
which plaintiff did not do because he chose not to participate in the hearing; they are not
“fraudulent evidence” sufficient to overcome qualified immunity. The Family Court had the
medical records and made its determination based on the proceedings before it. The fact that
plaintiff disagrees with the Family Court’s findings does not mean that they were based on
At most, plaintiff is arguing that the caseworkers should have done a more thorough
investigation, but that is a simple negligence claim, not the kind of willful or reckless
indifference that overcomes qualified immunity. Indeed, plaintiff is in a particularly poor
position to argue that the caseworkers should have done more because of his decision, while
represented by counsel, to voluntarily abandon the removal proceedings at an early stage.
Family Court Judge Weinstein expressly warned him of the potential consequences of that
decision, and they did indeed come to pass. Plaintiff’s failure to offer anything suggesting that
“false” evidence was submitted to the Family Court shows that qualified immunity applies.
Finally, there is no plausible basis for a claim against the John Doe police officers, who
assisted in the November 12th removal. As noted several times previously, the initial removal
was completed with the mother’s consent and was confirmed by the Family Court within four
Defendants’ motion for summary judgment is granted. The Clerk is directed to enter
judgment dismissing the complaint. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good faith and therefore in forma pauperis
status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962).
Digitally signed by
Brian M. Cogan
Dated: Brooklyn, New York
December 19, 2016
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