Johnson et al v. Myers et al
Filing
176
MEMORANDUM & ORDER granting 151 Motion for Summary Judgment; granting 154 Motion for Summary Judgment. For the foregoing reasons, the County Defendants' and Myers' motions for summary judgment are GRANTED. The Clerk of the Court is directed to enter judgment accordingly and CLOSE this case. 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 purpose of an appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 6/16/2014. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JULIA JOHNSON,
Plaintiff,
-againstEDDIE JAMES MYERS, JR., DONNA GUARTON,
psychologist, BENJAMIN MALEWICZ, JODY
WEITZMAN-FISHER, P.O. PATTERSON,
Shield No. 658, 1st Precinct Command,
ROBERT BARRIS, M.D., DR. G. ST. VICTOR,
NASSAU COUNTY BALDWIN, U.F.S.D., ARTHUR
A. GIANELLA, President/CEO Nassau
University Medical Center, JOHN CIAMPOLI,
Nassau County Attorney, JUSTICE KAREN
MURPHY, Nassau County Supreme Court,
CYRUS R. VANCE, JR., New York County
District Attorney,
MEMORANDUM & ORDER
10-CV-1964(JS)(WDW)
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Julia Johnson, pro se
588 Powell St.
Brooklyn, NY 11212
c/o Stella Gordon
For Defendants
Eddie James Myers, Jr.:
Malewicz, WeitzmanFisher, Patterson,
and Ciampoli:
Danielle J. Seid, Esq.
Lance D. Simon, Esq.
Law Offices of Anthony A. Capetola
Two Hillside Avenue, Building C
Williston Park, NY 11596
Pablo A. Fernandez, Esq.
Liora M. Ben-Sorek, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501
SEYBERT, District Judge:
Plaintiff Julia Johnson (“Plaintiff”) commenced this
action pro se on behalf of herself and her infant son, DJM, on
April 23, 2010.
Currently pending before the Court are: (1) a
motion for summary judgment filed by defendants Benjamin Malewicz,
Jodi
Weitzman
s/h/a
Jody
Weitzman-Fisher,
and
Police
Officer
Kenneth Petterson s/h/a P.O. Patterson (together, the “County
Defendants”); and (2) a motion for summary judgment filed by
defendant Eddie James Myers, Jr. (“Myers” and together with the
County Defendants, “Defendants”).
For the following reasons, both
motions are GRANTED.
BACKGROUND
I.
Procedural History
The
Court
assumes
familiarity
with
the
procedural
history of this case and will briefly summarize it as follows:
Plaintiff commenced this action pro se on behalf of
herself and her infant son, DJM, asserting various claims against
DJM’s father, Myers; the County Defendants; Baldwin Union Free
School District and school psychologist, Donna Guarton (together,
the “School District Defendants”); Dr. Robert Barris, Dr. G. St.
Victor, and Arthur A. Gianella of the Nassau University Medical
Center (“NUMC”) (together, the “NUMC Defendants”); New York County
2
District Attorney Cyrus R. Vance, Jr.; and Nassau County Supreme
Court Justice Karen Murphy.
On June 29, 2010, the NUMC Defendants filed Answers to
the Complaint.
(Docket Entries 18-20.)
On August 30, 2010, the
County Defendants also answered the Complaint.
(Docket Entry 39.)
The School District Defendants, District Attorney Vance,
and Myers all filed motions to dismiss on July 26, September 20,
and December 14, 2010, respectively.
(Docket Entries 26, 46, 64.)
On February 23, 2011, this Court dismissed all claims against the
School District Defendants and District Attorney Vance.
Entry 77.)
(Docket
With respect to Myers, the only claim that survived
the motion to dismiss was Plaintiff’s defamation claim against
him.
(Docket Entry 77.)
Myers filed an Answer with respect to
this claim on June 1, 2011.
(Docket Entry 96.)
On May 25, 2011, the NUMC Defendants moved for summary
judgment on all claims (Docket Entries 90–94), which the Court
granted in their favor on December 6, 2011 (Docket Entry 107).
After warning Plaintiff that she could not represent her
infant son pro se, the Court dismissed all claims brought on behalf
of DJM on January 27, 2012.
(Docket Entry 121.)
On June 28, 2012, the Court dismissed all claims against
Justice Murphy on the ground of judicial immunity.
130.)
3
(Docket Entry
On March 4, 2013, Myers and the County Defendants, the
only remaining defendants in the case, both moved for summary
judgment on the claims remaining against them.
151, 154.)
II.
(Docket Entries
These motions are currently pending before the Court.
Factual Background1
On June 20, 2008, the Nassau County Child Protective
Services (“CPS”) received a report from the New York Statewide
Central
Register
of
Child
Abuse
and
Maltreatment2
detailing
1
Although Defendants served Plaintiff with the required notice
to pro se litigants opposing motions for summary judgment, see
LOCAL CIV. R. 56.2, Plaintiff failed to file a proper 56.1
Counterstatement. Rather, Plaintiff filed “Statements of
Material Facts Responses,” which do not specifically address any
of the material facts set forth in Defendants’ 56.1 Statements
or contain citations to admissible evidence. (See Pl.’s Stmt.
to Myers’ Mot., Docket Entry 148; Pl.’s Stmt. to Cnty. Defs.’
Mot., Docket Entry 149.) The Court therefore finds as true the
facts contained in Defendants’ 56.1 Statements to the extent
that they are supported by admissible evidence. See LOCAL CIV. R.
56.1(c) (“Each numbered paragraph in the statement of material
facts set forth in the statement required to be served by the
moving party will be deemed to be admitted for purposes of the
motion unless specifically controverted by a correspondingly
numbered paragraph in the statement required to be served by the
opposing party.”); LOCAL CIV. R. 56.1(d) (“Each statement by
the . . . opponent . . . controverting any statement of material
fact[ ] must be followed by citation to evidence which would be
admissible, set forth as required by Fed. R. Civ. P. 56(c).”).
The Court notes that this is not the first time in this case
that Plaintiff has failed to comply with Rule 56 despite
adequate notice. See Johnson v. Myers, No. 10-CV-1964, 2011 WL
6131003, at *1 n.1 (E.D.N.Y. Dec. 6, 2011).
2
The Statewide Central Register is a hotline that receives
reports alleging child abuse or maltreatment within New York
State and forwards such reports to the local child protective
service for investigation. See http://www.ocfs.state.ny.us/main
/cps/.
4
suspected child abuse or maltreatment of DJM by Plaintiff.
Defs.’ 56.1 Stmt., Docket Entry 156, ¶ 1.)
(Cnty.
The report originated
from a mandated reporter at Brookside Elementary School who had
observed
unusual
behavior
indicating
that
Plaintiff
was
delusional, paranoid, and unable to make adequate or safe decisions
for DJM.
(See Fernandez Decl. Ex. C at 1; Pl.’s Stmt. to Cnty.
Defs.’ Mot. at 313.)
Examples of Plaintiff’s behavior included
her refusal to sign emergency contact forms or to provide her home
telephone number to the school; her refusal to sign permission
slips; and that she had sent incoherent letters to the Federal
Bureau of Investigation and the Commissioner of Schools on Long
Island containing false information regarding a school incident
relating to another student.
(Cnty. Defs.’ 56.1 Stmt. ¶¶ 1, 14;
Fernandez Decl. Ex C. at 1.)
After receiving the report, Jodi Weitzman (“Weitzman”),
a
caseworker
employed
by
CPS,
made
an
unannounced
visit
to
Plaintiff’s home to investigate the allegations of neglect. (Cnty.
Defs.’ 56.1 Stmt. ¶ 2.)
Plaintiff and DJM were not home at the
time but Weitzman did interview DJM’s father, Myers, who also
resided at the home.
(Cnty. Defs.’ 56.1 Stmt. ¶ 2.)
3
From the end
Plaintiff’s “Statements of Material Facts Responses” and their
exhibits are filed as single documents at Docket Entries 148 and
149. If required to refer to page numbers for any of the
exhibits, the Court will use the page numbers supplied by the
Case Management/Electronic Case Files system.
5
of June until the middle of August 2008, Weitzman and other CPS
caseworkers
made
several
additional
attempts
to
interview
Plaintiff and DJM but were unsuccessful either because Plaintiff
and DJM were not home or because they did not answer the door.
(Cnty. Defs.’ 56.1 Stmt. ¶¶ 2-3; Fernandez Decl., Docket Entry
155, Ex. C. at 1-6.)
On August 12, 2008, Weitzman called Myers
and asked him to meet her at the home when Plaintiff and DJM were
home so that she could interview them, which he agreed to do the
next day.
(Fernandez Decl. Ex. C at 6.)
On August 13, 2008, Weitzman met Myers at the home and
he let her inside.
Ex. C at 6.)
(Cnty. Defs.’ 56.1 Stmt. ¶ 3; Fernandez Decl.
Weitzman’s progress notes for the visit depict a
largely unproductive meeting.
According to Weitzman, Plaintiff
refused to talk to her and appeared suspicious of the fact that
Weitzman and Myers came to the home together.
Stmt. ¶ 3; Fernandez Decl. Ex. C at 6.)
(Cnty. Defs.’ 56.1
Plaintiff repeatedly
changed from one unrelated subject of conversation to another,
would not allow Weitzman to speak with DJM, and would not answer
any of her questions.
(Cnty. Defs.’ 56.1 Stmt. ¶ 3.)
Over the next six days, additional attempts by Weitzman
to speak with Plaintiff and DJM were unsuccessful.
56.1 Stmt. ¶¶ 5-7.)
(Cnty. Defs.’
However, Myers was at the home at the time of
the first visit and he told Weitzman that Plaintiff had engaged in
unusual behavior for the last three years, including covering up
6
the sensors on the home alarm system because she believed the
police were monitoring her through it.
¶ 5.)
(Cnty. Defs.’ 56.1 Stmt.
On August 19, 2008 Weitzman asked Myers to meet her at the
home the next day so that Weitzman could come with police officers
to interview DJM.
(Fernandez Decl. Ex. C at 7.)
On August 20, 2008, Weitzman, Myers, and Police Officers
Petterson and Barrett of the Nassau County Police Department met
at the home.
(Cnty. Defs.’ 56.1 Stmt. ¶ 8.)
According to the
County Defendants, Plaintiff was extremely agitated, would not
allow Weitzman to speak with DJM, and displayed increasingly
irrational behavior.
(Cnty. Defs.’ 56.1 Stmt. ¶ 8.)
For example,
Plaintiff would not allow Weitzman to speak with DJM unless
Officers Petterson and Barrett arrested her.
C at 8.)
(Fernandez Decl. Ex.
Based on their assessment of Plaintiff’s behavior,
Weitzman and the police officers believed that Plaintiff was a
danger to herself and DJM and the police officers therefore decided
to send Plaintiff to the NUMC Psychiatric Unit for a psychiatric
evaluation.
A
(Cnty. Defs.’ 56.1 Stmt. ¶ 8.)
detailed
recitation
of
the
facts
concerning
Plaintiff’s admission to the NUMC is set forth in the Court’s prior
order granting summary judgment in favor of the NUMC Defendants.
See Johnson v. Myers, No. 10-CV-1964, 2011 WL 6131003, at *1-2
(E.D.N.Y. Dec. 6, 2011).
In short, upon arrival at the NUMC,
Plaintiff was examined by two staff psychiatrists who diagnosed
7
her with psychosis, not otherwise specified, rule out delusional
disorder.
Id. at *1.
Dr. St. Victor examined Plaintiff the next
day and diagnosed her with rule out delusional disorder and
schizophrenia, paranoid type.
to
herself
and
others--she
Id.
Plaintiff was deemed a danger
presented
as
extremely
paranoid,
guarded, anxious and suspicious; she believed that the police were
monitoring her through her burglar alarm system; she reported that
she locked herself and DJM in DJM’s bedroom in the middle of the
night and made him push a heavy desk against the door because she
was afraid of Myers; and she had on a prior occasion attempted
suicide.
Id.
She was also advised that she had a urinary tract
infection but refused to take any medication to treat it and she
refused to sign a release to allow NUMC to obtain information from
her prior doctors regarding her psychiatric condition.
Id.
Dr.
St. Victor prescribed Risperdal, an antipsychotic medication, but
Plaintiff refused to take it.
Id.
Dr. St. Victor discharged Plaintiff on September 2, 2008
because, despite a noticeable degree of suspiciousness, she was no
longer believed to be a danger to herself or others. Id. Plaintiff
advised Dr. St. Victor that she would not pursue any mental health
follow-up treatment, nor was she willing to participate in her
discharge planning.
Id.
On September 2, 2008, Weitzman spoke with Kara Connors,
an employee at the NUMC.
Connors advised Weitzman that Plaintiff
8
was being discharged and that the NUMC had scheduled a follow-up
appointment with Dr. Metta for September 10, 2008.
56.1 Stmt. ¶ 10.)
(Cnty. Defs.’
On September 15, 2008, Weitzman contacted Dr.
Metta’s office and was advised that Plaintiff failed to keep her
follow-up appointment and had not rescheduled.
(Cnty. Defs.’ 56.1
Stmt. ¶ 12.)
On September 17, 2008, Weitzman met with DJM at Brookside
Elementary School in the presence of the school psychologist, Donna
Guarton (“Guarton”).
(Cnty. Defs.’ 56.1 Stmt. ¶ 13.)
DJM refused
to speak to Weitzman, apparently because Plaintiff instructed him
not to speak with CPS.
(Cnty. Defs.’ 56.1 Stmt. ¶ 13.)
ended the interview because DJM appeared upset.
56.1 Stmt. ¶ 13.)
Weitzman
(Cnty. Defs.’
After the interview, Guarton told Weitzman that
she believed that Plaintiff was schizophrenic and she shared with
Weitzman the letters Plaintiff sent to the Federal Bureau of
Investigation and the Commissioner of School on Long Island, which,
according
to
the
County
irrational thoughts.
Defendants,
exhibited
paranoia
(Cnty. Defs.’ 56.1 Stmt. ¶ 14.)
and
Guarton
further told Weitzman that on one occasion, Plaintiff refused to
sign a written permission slip for DJM to attend a school carnival
even though Plaintiff verbally consented to DJM attending the
carnival.
(Cnty. Defs.’ 56.1 Stmt. ¶ 14.)
On
October
8,
2008,
Plaintiff
again
was
admitted
involuntarily to NUMC’s Psychiatric Unit after CPS again expressed
9
concern regarding her ability to care for her son.
WL 6131003, at *1.
Johnson, 2011
During this second hospitalization, Plaintiff
was diagnosed with delusional disorder and rule out psychosis.
Id.
Plaintiff continued to exhibit paranoid delusions and refused
to take any antipsychotic medication so the NUMC filed a petition
in
the
Nassau
County
Supreme
Court
seeking
permission
to
involuntarily treat Plaintiff with antipsychotic medication, which
was granted by Justice Murphy.
December
4,
significantly.
2008
when
her
Id.
Plaintiff was discharged on
delusions
and
paranoia
subsided
Id.
On October 7, 2008, two days prior to Plaintiff’s second
involuntary hospitalization, CPS filed a Neglect Petition against
Plaintiff pursuant to Article 10 of the New York State Family Court
Act in the Family Court of the State of New York, County of Nassau
(the “Family Court”).
(Fernandez Decl. Ex. D.)
The Neglect
Petition sought a determination that DJM was a neglected child and
was supported by statements Myers and Guarton made to CPS, as well
as the other observations made during Weitzman’s investigation.
(Fernandez Decl. Ex. D.)
On March 26, 2009, Myers filed a Family Offense Petition
in the Family Court seeking, inter alia, temporary custody of DJM.
(Cnty. Defs.’ 56.1 Stmt. ¶¶ 23-24; Myers’ 56.1 Stmt. ¶ 9).
In the
Family Offense Petition, Myers alleged that Plaintiff had a history
of
mental
illness,
attempted
suicide
10
in
the
past,
and
that
Plaintiff’s
delusional
and
paranoid
behavior
increasingly bizzare [sic] and erratic . . . .”
Ex. F.)
“was
becoming
(Fernandez Decl.
On April 20, 2009, the Family Court dismissed the Family
Offense Petition for failure to state a claim.
(Fernandez Decl.
Ex G.)
However, on December 9, 2009, following an inquest,
Judge Edmund M. Dane issued a Decision After Inquest granting CPS’s
Neglect Petition and adjudging DJM to be a neglected child as
defined by Family Court Act § 1012(f)(i)(B).4
Cnty. Defs.’ Mot. at 30-36.)
the
credible
evidence
(Pl.’s Stmt. to
Judge Edmund based his decision “on
offered
by
the
Department
4
[of
Section 1012(f)(i)(B) of the Family Court Act defines
“neglected child” as:
a child less than eighteen years of
age . . . whose physical, mental or
emotional condition has been impaired or is
in imminent danger of becoming impaired as a
result of the failure of his parent or other
person legally responsible for his care to
exercise a minimum degree of care . . . in
providing the child with proper supervision
or guardianship, by unreasonably inflicting
or allowing to be inflicted harm, or a
substantial risk thereof, including the
infliction of excessive corporal punishment;
or by misusing a drug or drugs; or by
misusing alcoholic beverages to the extent
that he loses self-control of his actions;
or by any other acts of a similarly serious
nature requiring the aid of the
court . . . .
N.Y. FAM. CT. ACT § 1012(f)(i)(B).
11
Social
Services],” which included live testimony from Myers, Guarton, and
Weitzman.
(Pl.’s Stmt. to Cnty. Defs.’ Mot. at 35.)
Plaintiff
failed to appear in Family Court for the scheduled inquest but she
was represented by counsel throughout the proceeding. (Pl.’s Stmt.
to Cnty. Defs.’ Mot. at 30.)
On March 11, 2010, Judge Edmund issued an Order of
Disposition placing DJM under the supervision of the Nassau County
Department of Social Service.
at 37-39.)
(Pl.’s Stmt. to Cnty. Defs.’ Mot.
The Order of Disposition also ordered Plaintiff to
comply with an accompanying Order of Protection, which directed
Plaintiff
to
stay
away
from
DJM.
(Docket
Entry
92-13.)
Additionally, Judge Edmund issued an Order of Custody on Default
granting Myers custody of DJM.
(Fernandez Decl. Ex. H.)
There is
no evidence that Plaintiff appealed these orderS in the Family
Court or that DJM has been returned to her custody.
Rather,
Plaintiff commenced this action shortly after on April 23, 2010
despite the fact that each of Judge Edmund’s orders advised
Plaintiff that she could appeal the orders.
DISCUSSION
As noted in the Court’s prior order granting summary
judgment in favor of the NUMC Defendants, it is unclear what claims
Plaintiff
asserts
because
the
Plaintiff’s version of the facts.
at *2.
Complaint
merely
narrates
See Johnson, 2011 WL 6131003,
However, the Court reads the Complaint very liberally to
12
assert claims against the County Defendants under 42 U.S.C. § 1983
for false arrest and malicious prosecution in violation of the
Fourth Amendment and deprivation of due process in violation of
the Fourteenth Amendment. The Complaint may also be read to assert
claims against the County Defendants under New York State law for
intentional infliction of emotional distress, false arrest, and
malicious
prosecution.
As
noted,
the
Court
had
previously
construed the Complaint to assert a claim against Myers under New
York State law for defamation.
The Court will first set forth the
legal standard on a motion for summary judgment before turning to
Defendants’ motions specifically.
I.
Legal Standard
Summary judgment is appropriate where “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
FED. R. CIV.
P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986).
“In assessing the record to determine whether there is a
genuine issue to be tried as to any material fact, the court is
required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought.”
McLee v. Chrysler Corp., 109 F.3d 130, 134
(2d Cir. 1997).
13
“The burden of showing the absence of any genuine dispute
as to a material fact rests on the party seeking summary judgment.”
Id.; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90
S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
A genuine factual issue
exists if “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”
To
defeat
summary
judgment,
“the
Anderson, 477 U.S. at 248.
non-movant
must
‘set
forth
specific facts showing that there is a genuine issue for trial.’”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)
(quoting Anderson, 477 U.S. at 256).
“[M]ere speculation or
conjecture as to the true nature of the facts” will not overcome
a motion for summary judgment.
Knight v. U.S. Fire Ins. Co., 804
F.2d 9, 12 (2d Cir. 1986); see also Williams v. Smith, 781 F.2d
319, 323 (2d Cir. 1986) (“Mere conclusory allegations or denials
will not suffice.” (citation omitted)); Weinstock, 224 F.3d at 41
(“[U]nsupported allegations do not create a material issue of
fact.”).
II.
The County Defendants’ Motion for Summary Judgment
A.
Constitutional Claims
Plaintiff’s constitutional claims against the County
Defendants arise out of: (1) the child neglect investigation and
prosecution conducted by CPS; and (2) Plaintiff’s involuntary
transportation to the NUMC for a psychiatric evaluation. The Court
will address the claims arising out of each incident separately.
14
1.
Neglect Investigation and Prosecution
Liberally construed, Plaintiff’s Complaint alleges that
Weitzman and Benjamin Malewicz (Weitzman’s supervisor) violated
Plaintiff’s procedural and substantive due process rights under
the
Fourteenth
violation
of
Amendment
the
and
Fourth
maliciously
Amendment
prosecuted
when
they
her
in
investigated
allegations of child neglect and prosecuted the Neglect Petition
against Plaintiff in the Family Court. Additionally, the Complaint
specifically “request[s] a court injunction to vacated [sic] and
dismiss all documents, petitions, and orders, etc that have been
filed in Nassau County Family Court . . . .
[and] to be totally
exonerated by the court of all claims of abuse and neglect with
respect to [her] son . . . .”
(Compl. at 55.)
As discussed below,
these claims are barred by the Rooker-Feldman doctrine because
they impermissibly seek to collaterally attack the Family Court
orders regarding DJM’s custody and status as a neglected child.
See Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust
Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923).
Under
the
Rooker-Feldman
doctrine,
federal
district
courts are prohibited from exercising subject matter jurisdiction
5
The page numbers for the Complaint refer to the page numbers
supplied by the Case Management/Electronic Case Files system.
15
“over suits that are, in substance, appeals from state-court
judgments.”
Hoblock v. Albany Cnty. Bd. of Elecs., 422 F.3d 77,
84 (2d Cir. 2005).
“The doctrine applies when a litigant seeks to
reverse or modify a state court judgment or asserts claims that
are ‘inextricably intertwined’ with state court determinations.”
Park v. City of N.Y., No. 99-CV-2981, 2003 WL 133232, at *7
(S.D.N.Y. Jan. 16, 2003).
The Second Circuit has held that there
are four requirements for the application of the Rooker-Feldman
doctrine:
First, the federal-court plaintiff must have
lost in state court.
Second, the plaintiff
must complain of injuries caused by a statecourt judgment.
Third, the plaintiff must
invite district court review and rejection of
that judgment.
Fourth, the state-court
judgment must have been rendered before the
district court proceedings commenced--i.e.,
Rooker–Feldman has no application to federalcourt suits proceeding in parallel with
ongoing state-court litigation.
Hoblock, 422 F.3d at 85 (internal citations, quotations marks,
brackets, and footnote omitted) (emphasis added).
“The first and
fourth of these requirements may be loosely termed procedural; the
second and third may be termed substantive.”
Id.
Here, there is no question that Plaintiff seeks to
directly challenge and reverse the Family Court’s prior orders
adjudging DJM to be a neglected child and granting Myers custody
of DJM.
The Complaint explicitly requests such relief.
(Compl.
at 5.) However, Rooker-Feldman precludes this Court from reviewing
16
the
Family
Court’s
orders.
With
respect
to
the
procedural
requirements, first, Plaintiff “lost” in state court when the
Family Court issued these orders.
See Davis v. Baldwin, No. 12-
CV-6422, 2013 WL 6877560, at *3 (S.D.N.Y. Dec. 31. 2013) (holding
that plaintiff “lost” in state court pursuant to family court’s
orders of removal and protection placing plaintiff’s children in
care
of
children’s
services
and
precluding
plaintiff
from
interfering with the care and custody of his children); Allen v.
Mattingly, No. 10-CV-0667, 2011 WL 1261103, at *8 (E.D.N.Y. Mar.
29, 2011) (holding that plaintiff “lost” in state court pursuant
to both temporary and final orders of the family court removing
plaintiff’s son from her custody and placing him in foster care),
aff’d, 479 F. App’x 712 (2d Cir. 2012). Second, the Decision After
Inquest, dated December 9, 2009; the Order of Disposition, dated
March 11, 2010; the Order of Protection, dated March 12, 2010, and
the Order of Custody on Default, dated March 11, 2010; all were
issued before this action was commenced on April 23, 2010.
The substantive requirements are also met.
As noted,
the two substantive requirements that must be met for the RookerFeldman doctrine to apply are: (1) the plaintiff must complain of
injuries caused by a state-court judgment; and (2) the plaintiff
must invite district court review and rejection of that judgment.
Here, the Complaint specifically “request[s] a court injunction to
vacated [sic] and dismiss all documents, petitions, and orders,
17
etc that have been filed in Nassau County Family Court . . . .
[and] to be totally exonerated by the court of all claims of abuse
and neglect with respect to [her] son . . . .”
(Compl. at 5.)
Thus, Plaintiff clearly complains of injuries caused by the Family
Court’s judgments and invites the Court to review and reject them.
The Rooker-Feldman doctrine therefore precludes the Court from
reviewing the Family Court orders.
See Phifer v. City of N.Y.,
289 F.3d 49, 57 (2d Cir. 2002) (holding that the plaintiff’s claims
seeking
an
order
directing
children’s
services
to
return
plaintiff’s child to her custody were barred by the Rooker–Feldman
doctrine); Davis, 2013 WL 6877560, at *5 (holding that plaintiff’s
request for “relief [from] all [family court] orders made in
violation of the law” was barred by the Rooker-Feldman doctrine
(first alteration in original)); Allen, 2011 WL 1261103, at *8
(“[T]he Rooker-Feldman doctrine divests this Court of subject
matter jurisdiction to hear plaintiff’s claims relating to the
removal of her son from her custody, his placement in foster care
and her visitation with her son.”); Mercedes ex rel. Brown v. Blue,
No. 00-CV-9225, 2004 WL 2202578, at *8 (S.D.N.Y. Sept. 30, 2004)
(“The
Court
concludes
that
it
does
not
have
subject
matter
jurisdiction to review the Family Court’s disposition, including
the
.
.
.
[plaintiff’s]
Order
approving
custody,
the
under
removal
of
Rooker-Feldman
children
.
.
.
from
.”).
Accordingly, the County Defendants’ motion for summary judgment is
18
GRANTED insofar as Plaintiff requests a review of the Family
Court’s prior orders.
The more nuanced inquiry in this case is whether RookerFeldman divests this Court of subject matter jurisdiction over
Plaintiff’s malicious prosecution and due process claims.
Court
finds
that
it
does.
With
respect
to
the
The
malicious
prosecution claim, the Family Court has already decided that
Plaintiff neglected DJM and the relief sought under the malicious
prosecution claim would effectively reverse the Family Court’s
findings.
See Mercedes, 2004 WL 2202578, at *8 (holding that
plaintiff’s claim of malicious prosecution in family court was
barred by Rooker-Feldman because such claim would require the court
to
reexamine
the
family
court’s
order
removing
plaintiff’s
children from her custody); Richards v. City of N.Y., No. 97-CV7990, 2003 WL 21036365, at *10 (S.D.N.Y. May 7, 2003) (“[I]f the
Family Court in this case decided that defendants had a reasonable
ground to separate Richards from the children, the Court actually
and
necessarily
action.”).
decided
the
issue
presented
in
this
§
1983
Accordingly, the County Defendants’ motion for summary
judgment on Plaintiff’s malicious prosecution claim is GRANTED.6
6
Even if Rooker-Feldman did not apply to Plaintiff’s malicious
prosecution claim, however, her claim would fail anyway because
the Family Court proceedings did not terminate in Plaintiff’s
favor. See Green v. Mattingly, 585 F.3d 97, 103-04 (2d Cir. 2009)
(affirming district court’s dismissal of plaintiff’s claim that
child neglect proceeding was maliciously prosecuted because
19
Rooker-Feldman
also
precludes
the
Court
adjudicating Plaintiff’s procedural due process claim.
from
Although
not entirely clear, it appears that Plaintiff claims that her
procedural due process rights were violated by virtue of false
allegations made by Myers and Guarton in the neglect proceeding in
the Family Court.
However, as noted above, Plaintiff lost the
neglect proceeding and the Family Court awarded custody of DJM to
Myers.
The Court finds that Plaintiff’s procedural due process
claim is traceable directly to the Family Court orders and that it
improperly invites review and rejection of these orders.
Thus,
Rooker-Feldman divests this Court of jurisdiction over Plaintiff’s
procedural due process claim.
See Kaminski v. Comm’r of Oneida
Cnty. Dept. of Soc. Servs., 804 F. Supp. 2d 100, 105-06 (N.D.N.Y.
Aug. 5, 2011) (holding that plaintiffs’ procedural due process
claim
that
complained
of
“false
evidence,
contradicting
statements, and perjured declarations” in the underlying Family
Court proceeding was barred by Rooker-Feldman).
Accordingly, the
plaintiff failed to allege termination of the proceeding in
plaintiff’s favor, a required element for a malicious prosecution
claim); Williams v. Jurow, No. 05-CV-6949, 2007 WL 5463418, at *15
(S.D.N.Y. June 29, 2007) (“Because plaintiff has not alleged that
the Family Court proceeding terminated in her favor, plaintiff’s
malicious prosecution claim fails to state a claim as to the
Municipal Defendants upon which relief may be granted.”) report
and recommendation adopted and modified on other grounds by 2008
WL 4054421 (S.D.N.Y. Aug. 28, 2008). Accordingly, this serves as
an additional basis for summary judgment in the County Defendants’
favor.
20
County Defendants’ motion for summary judgment on Plaintiff’s
procedural due process claim is GRANTED.7
Plaintiff’s substantive due process claim also suffers
from a lack of clarity but the Court interprets it as challenging
Weitzman’s
investigation
subsequent
prosecution
Plaintiff.
of
of
neglect
the
allegations
neglect
and
CPS’s
proceeding
against
This claim is also barred by Rooker-Feldman.
In light
of the “compelling government interest in the protection of minor
children,” the Second Circuit
has adopted a standard governing case workers
which reflects the recognized need for unusual
deference in the abuse investigation context.
An investigation passes constitutional muster
provided simply that case workers have a
“reasonable basis” for their findings of
abuse . . . . In applying a reasonableness
standard in the abuse context, courts must be
especially sensitive to the pressurized
circumstances
routinely
confronting
case
workers, circumstances in which decisions
between “difficult alternatives” often need to
be made on the basis of limited or conflicting
information.
7
Plaintiff’s procedural due process claim also fails on the
merits. As a general rule, before a parent is deprived of the
care, custody, or management of their children without consent,
procedural due process is ordinarily met through “a court
proceeding resulting in an order [approving], permitting[, or
ordering] removal” of the children. Graham v. City of N.Y., 869
F. Supp. 2d 337, 350 (E.D.N.Y. 2012) (citations omitted)
(alterations in original). The neglect proceeding in this case
complied with due process. Plaintiff was represented by counsel
throughout the proceeding and she had the opportunity to appeal
each and every order rendered by the Family Court but did not.
Accordingly, this serves as an additional basis for summary
judgment in the County Defendants’ favor.
21
Wilkinson v. Russell, 182 F.3d 89, 104-05 (2d Cir. 1999).
“[T]he
reasonable basis test places certain constitutional limitations on
case workers, i.e., their decisions to declare claims of abuse
substantiated must be consistent with some significant portion of
the evidence before them.”
Id. at 108.
Thus, for Plaintiff’s substantive due process claim to
succeed, Plaintiff would have to demonstrate that Weitzman and CPS
lacked
a
reasonable
basis
to
investigate
and
allegations of child neglect against Plaintiff.
prosecute
the
In order to reach
this finding, the Court would necessarily have to review the Family
Court’s order adjudging DJM to be a neglected child under the
Family Court Act and find that the Family Court wrongly decided
this issue.
Rooker-Feldman prohibits such a review.
See Park,
2003 WL 133232, at *10 (holding that plaintiffs’ substantive due
process claim challenging children’s services’ decision to remove
children from plaintiff’s custody was barred by Rooker-Feldman
because the Family Court decided such issue when it found the
children to be neglected under the Family Court Act). Accordingly,
the County Defendants’ motion for summary judgment on Plaintiff’s
substantive due process claim is GRANTED.8
8
Additionally, the undisputed facts demonstrate that Weitzman had
not only a reasonable, but overwhelming, basis to support a finding
of neglect as she herself observed Plaintiff display irrational
and paranoid behavior on several occasions. Not only did Weitzman
observe this behavior, but she also corroborated her observations
with allegations and evidence provided by DJM’s father, Myers, and
22
2.
Involuntary Transportation to the NUMC
Plaintiff alleges that she was falsely arrested when
Officer Petterson “handcuffed” her and transported her to the NUMC
for
a
psychiatric
evaluation.
(Compl.
at
3.)
The
County
Defendants argue that summary judgment on this claim is appropriate
because (1) Officer Petterson’s decision to send Plaintiff for a
psychiatric evaluation was privileged pursuant to New York Mental
Hygiene Law § 9.41, (Cnty. Defs.’ Br., Docket Entry 157, at 1214);
and
(2)
Officer
Petterson
is
in
any
event
qualified immunity, (Cnty. Defs.’ Br. at 20-22).
entitled
to
As discussed
below, the Court cannot say based on the record before it that
Officer Peterson’s decision to involuntarily transport Plaintiff
to the NUMC was privileged under Section 9.41.
However, the Court
does find that Officer Petterson is entitled to qualified immunity.
“A § 1983 claim for false arrest, resting on the Fourth
Amendment right of an individual to be free from unreasonable
seizures . . . is substantially the same as a claim for false
the school psychologist, Guarton.
Additionally, Plaintiff was
twice admitted involuntarily to the NUMC where she was diagnosed
with psychotic disorders. She was hospitalized the second time
after failing to follow through with recommended treatment and she
refused to take her prescribed anti-psychosis medication.
The
Court therefore finds that Weitzman conducted her investigation in
a proper manner. Thus, this ground serves as an alternative basis
for summary judgment on Plaintiff’s substantive due process claim
in the County Defendants’ favor.
23
arrest under New York law.”
Cir. 1996).
Weyant v. Okst, 101 F.3d 845, 852 (2d
Under New York law, the elements of false arrest are:
“‘(1) the defendant intended to confine [the plaintiff], (2) the
plaintiff was conscious of the confinement, (3) the plaintiff did
not consent to the confinement and (4) the confinement was not
otherwise privileged.’”
Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995) (alteration in original) (quoting Broughton
v. State, 37 N.Y.2d 451, 456, 335 N.E.2d 310, 373 N.Y.S.2d 87
(1975)).
The Fourth Amendment prohibits “unreasonable searches
and seizures.”
U.S. CONST. amend. IV.
A “seizure” for Fourth
Amendment purposes occurs “when government actors have, ‘by means
of physical force or show of authority, . . . in some way restrained
the liberty of a citizen.’”
Glass v. Mayas, 984 F.2d 55, 58 (2d
Cir. 1993) (quoting Graham v. Connor, 490 U.S. 386, 395 n. 10, 109
S. Ct. 1865, 1871 n. 10, 104 L. Ed. 2d 443 (1989)).
protection
against
unreasonable
applies in the civil context.”
searches
and
seizures
“[T]he
fully
Soldal v. Cook Cnty., Ill., 506
U.S. 56, 67 n. 11, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992); accord
Glass, 984 F.2d at 58 (“That [the plaintiff’s] seizure occurred in
the
civil
context
inapplicable.”).
does
not
render
the
Fourth
Amendment
Thus, under the Fourth Amendment, “a competent
adult [can]not be seized and transported for [medical] treatment
24
unless she present[s] a danger to herself or others.”
Green v.
City of N.Y., 465 F.3d 65, 85 (2d Cir. 2006).
The County Defendants first argue that summary judgment
on
the
false
Petterson’s
arrest
decision
claim
to
is
send
appropriate
Plaintiff
for
because
a
Officer
psychiatric
evaluation was privileged pursuant to New York Mental Hygiene Law
§ 9.41.
(Cnty. Defs.’ Br. at 12-14.)
Section 9.41 states in
relevant part:
Any peace officer, when acting pursuant to his
or her special duties, or police officer who
is a member of the state police or of an
authorized police department or force or of a
sheriff’s department may take into custody any
person who appears to be mentally ill and is
conducting himself or herself in a manner
which is likely to result in serious harm to
the person or others. Such officer may direct
the removal of such person or remove him or
her to any hospital specified in subdivision
(a) of section 9.39 or any comprehensive
psychiatric emergency program specified in
subdivision (a) of section 9.40 . . . .
N.Y. MENTAL HYG. LAW § 9.41.
The phrase “likely to result in serious
harm” is defined as:
(a) a substantial risk of physical harm to the
person as manifested by threats of or attempts
at suicide or serious bodily harm or other
conduct demonstrating that the person is
dangerous to himself or herself, or (b) a
substantial risk of physical harm to other
persons as manifested by homicidal or other
violent behavior by which others are placed in
reasonable fear of serious physical harm.
Id. § 9.01.
25
If Officer Petterson’s decision to transport Plaintiff
to the NUMC was legally justified under the Section 9.41, then
Plaintiff’s seizure was privileged and her federal and state law
claims fail as a matter of law.
Amato v. Hartnett, 936 F. Supp.
2d 416, 435 (S.D.N.Y. 2013) (citing Glowczenski v. Taser Int’l
Inc., No. 04-CV-4052, 2010 WL 1936200, at *5 (E.D.N.Y. May 13,
2010)); Bayne v. Provost, No. 04-CV-0044, 2005 WL 1871182, at *6
(N.D.N.Y. Aug. 4, 2005) (citations omitted).
For the Section 9.41
privilege to apply, Officer Petterson must have possessed probable
cause to conclude that Plaintiff was acting in a manner that would
justify a [Section 9.41] seizure.”
Bayne, 2005 WL 1871182, at *6
(citing Sanchez v. Town of Greece, No. 98-CV-6433, 2004 WL 1964505,
at * 4 (W.D.N.Y. Sept. 1, 2004)) accord Amato, 936 F. Supp. 2d at
435.
In determining whether probable cause exists under Section
9.41, courts apply the same objective reasonableness standard
applied in the Fourth Amendment context.
See Kerman v. City of
N.Y., 261 F.3d 229, 240 n.8 (2d Cir. 2001) (“We interpret [§
9.41] . . . consistently with the requirements of the Fourth
Amendment
and
therefore
assume
that
the
same
objective
reasonableness standard is applied to police discretion under this
section.
Therefore, our constitutional analysis controls this
state law issue as well.”).
In this context, the probable cause
inquiry asks “whether the facts and circumstances known to the
officers at the time they seized Plaintiff were sufficient to
26
warrant a person of reasonable caution to believe that [she] might
be mentally ill and conducting [herself] in a manner likely to
result in serious harm to [herself or others].”
Amato, 936 F.
Supp. 2d at 435 (quoting Nicholas v. City of Binghamton, No. 10CV-1565, 2012 WL 3261409, at *5 (N.D.N.Y. Aug. 8, 2012).
The Court cannot say based on the record before it that
Officer Petterson had probable cause to believe that Plaintiff was
acting in a manner that would justify a Section 9.41 seizure.
As
noted above, a Section 9.41 seizure must be based on (1) a
substantial
risk
of
physical
harm
to
the
person
seized
“as
manifested by threats of or attempts at suicide or serious bodily
harm or other conduct demonstrating that the person is dangerous
to himself or herself” or (2) a substantial risk of physical harm
to other persons “as manifested by homicidal or other violent
behavior by which others are placed in reasonable fear of serious
physical harm.”
The only evidence the County Defendants have
provided regarding the moments leading up to Officer Petterson’s
decision to involuntarily hospitalize are Weitzman’s progress
notes describing the encounter on August 20, 2008.
Although the
progress notes do indicate that Plaintiff was mentally unstable,
they
present
no
evidence
that
Officer
Petterson
or
Weitzman
witnessed Plaintiff threaten her own life or display behavior
indicating that she was considering harming herself.
In fact,
Weitzman only learned that Plaintiff had attempted suicide the day
27
after
Officer
Plaintiff
to
Petterson
the
NUMC.
and
Weitzman
(See
Fernandez
decided
Decl.
to
Ex.
transport
C
at
8.)
Additionally, there is no evidence that Plaintiff “manifested
homicidal or other violent behavior” placing DJM at risk of serious
physical harm.
Accordingly, the Court cannot say that no rational
jury could find that Officer Peterson lacked probable cause to
believe that Plaintiff was acting in a manner that would justify
a Section 9.41 seizure.
However, the Court does find that Officer Petterson’s
actions are entitled to qualified immunity.
Under the doctrine of
qualified immunity, police officers are immune from liability for
false arrest claims if either “‘(a) it was objectively reasonable
for the officer to believe that probable cause existed, or (b)
officers of reasonable competence could disagree on whether the
probable cause test was met.’”
Lennon v. Miller, 66 F.3d 416,
423-24 (2d Cir. 1995) (quoting Golino v. City of New Haven, 950
F.2d 864, 870 (2d Cir. 1991)).
Accordingly, summary judgment is
appropriate if “a rational jury could not find that the officers’
judgment was so flawed that no reasonable officer would have made
a similar choice.”
Id. at 420-25.
“The doctrine of qualified
immunity serves to protect police from liability and suit when
they
are
required
circumstances.”
to
make
on-the-spot
judgments
in
tense
Id. at 424 (citing Calamia v. City of N.Y., 879
F.2d 1025, 1034–35 (2d Cir. 1989)).
28
In
this
Court’s
view,
based
on
Officer
Petterson’s
observations and the fact that he was accompanying Weitzman to
Plaintiff’s home as part of a continuing CPS investigation of
allegations of child neglect, it was objectively reasonable to
believe that Plaintiff posed a danger to herself and DJM even if
she did not directly threaten suicide or act in a violent manner
towards DJM.
Plaintiff was hostile and uncooperative and refused
to allow Weitzman to interview DJM unless the police officers
arrested her.
She became progressively irrational and the County
Defendants were already aware that Plaintiff had displayed unusual
behavior in the past.
The Court has already ruled in this case
that the NUMC psychiatrists who involuntarily committed Plaintiff
were entitled to qualified immunity on Plaintiff’s claim that she
was wrongfully hospitalized, and the Court similarly finds that
Officer Petterson is entitled to qualified immunity as well.
Accordingly, summary judgment is GRANTED on Plaintiff’s false
arrest claim.
B.
State Law Claims
The County Defendants assert that Plaintiff’s state law
claims must be dismissed for failure to serve a notice of claim as
required by New York General Obligations Law §§ 50–i, 50–e.
The
Court agrees.
New
York
General
Municipal
Law
§
50–e
requires
a
plaintiff to file a notice of claim prior to commencing an action
29
in tort against a municipality or one of its employees but no more
than ninety days after the cause of action accrued.
See N.Y. GEN.
MUN. LAW §§ 50–e, 50–i; cf. Warner v. Vill. of Goshen Police Dep’t,
256 F. Supp. 2d 171, 175 (S.D.N.Y. 2003) (“The notice of claim
requirements apply equally to state tort claims brought as pendent
claims in federal civil rights actions.” (citation omitted)).
Here, Plaintiff never filed a notice of claim, nor did she ever
request an extension of time to do so.
As such, Plaintiff’s state
law claims against the County Defendants must be dismissed.
See
Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 61–62, 473 N.E.2d 761,
763,
484
N.Y.S.2d
533,
535
(1984)
(“Failure
to
comply
with
provisions requiring notice and presentment of claims prior to
commencement
of
litigation
ordinarily
requires
dismissal.”
(citation omitted)).
Accordingly, the Court GRANTS the County Defendants’
motion for summary judgment with respect to Plaintiff’s state law
claims.
III. Myers’ Motion for Summary Judgment
As noted, the Court reads the Complaint to assert a state
law defamation claim against Myers.
While it is not entirely
clear, Plaintiff appears to allege that Myers defamed her when he
made “false allegations” of “abuse of neglect with respect to
[DJM]”
to
CPS
and
to
the
Family
Court.
(Compl.
at
5.)
Additionally, Plaintiff also appears to allege that Myers made
30
defamatory statements in the March 29, 2009 Family Offense Petition
that he filed in the Family Court.
(Compl. at 5.)
As discussed
below, summary judgment is appropriate on all allegations against
Myers.
First, Plaintiff’s claim that Myers defamed her when he
made false allegations to CPS and the Family Court is barred by
the Rooker-Feldman doctrine because the Family Court relied on
these statements in reaching its finding that DJM was a neglected
child as defined under the Family Court Act.
Although Plaintiff’s
claim is one “dressed up” as a defamation claim, Plaintiff really
seeks to reverse the Family Court’s orders.
See Chase v. Czajka,
No. 04-CV-8228, 2005 WL 668535, at *5 (S.D.N.Y. Mar 23, 2005)
(holding
that
defamation
claim
was
barred
by
Rooker-Feldman
because “the basis of [plaintiff’s] complaint concerns decisions
made or pending before the Family Court”).
Second, the statements that Myers made in the Family
Offense Petition cannot form the basis of Plaintiff’s defamation
claim because they are absolutely privileged under New York law.9
9
As the Court previously held in its order denying Myers’ motion
to dismiss Plaintiff’s defamation claim, the Rooker-Feldman
doctrine does not apply to Plaintiff’s defamation claim arising
out of the Family Offense Petition because the Family Court
dismissed the Family Offense Petition for failure to state a claim.
Thus, with respect to this petition, Plaintiff was not a state
court loser and Rooker-Feldman therefore does not apply. Johnson
v. Myers, No. 10-CV-1964, 2011 WL 809999, at *8-9 (E.D.N.Y. Feb.
23, 2011).
31
“Under New York law, ‘in the context of a legal proceeding,
statements
by
parties
and
their
attorneys
are
absolutely
privileged if, by any view or under any circumstances, they are
pertinent to the litigation.’”
O’Brien v. Alexander, 898 F. Supp.
162, 171 (S.D.N.Y. 1995) (citing Grasso v. Mathew, 164 A.D.2d 476,
564 N.Y.S.2d 576, 578 (3d Dept. 1991)).
The absolute privilege
applies to, inter alia, statements made in pleadings and in court.
Id. (citation omitted).
The statements at issue were made in a
pleading submitted to the Family and therefore are absolutely
privileged.
Accordingly,
summary
judgment
on
Plaintiff’s
defamation claim against Myers is GRANTED.
CONCLUSION
For the foregoing reasons, the County Defendants’ and
Myers’ motions for summary judgment are GRANTED.
The Clerk of the
Court is directed to enter judgment accordingly and CLOSE this
case.
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 purpose of an
appeal.
Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.
Ct. 917, 8 L. Ed. 2d 21 (1962).
32
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:
June _ 16__, 2014
Central Islip, NY
33
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