Treistman v. Wacks, Esq. et al
Filing
70
MEMORANDUM-DECISION and ORDER - ORDERED that municipal defendants' motion for judgment on the pleadings (Dkt. No. 55) is GRANTED IN PART and DENIED IN PART as detailed below; and it is further ORDERED that Treistman's seventh cause o f action (Compl. 300-03) is DISMISSED in its entirety; and it is further ORDERED that Treistman's thirteenth and sixteenth causes of action (Compl. 324-29, 342-44) are DISMISSED as against the County; and it is further ORDERED th at Treistman's sixth, seventh, eighth, tenth, twelfth, thirteenth, sixteenth, and eighteenth causes of action (Compl. 298-99, 300-03, 304, 308-14, 322-23, 324-29, 342-44, 350-55) are DISMISSED as against CPS, DSS, and MHD; and it is furthe r ORDERED that Treistman's sixteenth cause of action (Compl. 342-44) is DISMISSED in its entirety; and it is further ORDERED that Treistman's eighteenth cause of action (Compl. 350-55) is DISMISSED insofar as it alleges a violation of due process rights; and it is further ORDERED that Shelton's motion to dismiss (Dkt. No. 56) is GRANTED and he is TERMINATED from this action; and it is further ORDERED that Wacks' motion to dismiss (Dkt. No. 57) is GRANTED and she is TERMINATED from this action; and it is further ORDERED that the parties contact Magistrate Judge Christian F. Hummel in order to schedule further proceedings in this matter. Signed by Chief Judge Gary L. Sharpe on 11/26/2014. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BEN GARY TREISTMAN,
Plaintiff,
1:12-cv-1897
(GLS/CFH)
v.
VALERIE LYN WACKS, ESQ. et
al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Ben Gary Treistman
Pro Se
28 Garrison Road
Shady, NY 12409
FOR THE DEFENDANTS:
Valerie Lyn Wacks, Esq.
Pro Se
74 Mill Road
Olivebridge, NY 12461
Lawrence Shelton, Esq.
Pro Se
369 Washington Avenue
Kingston, NY 12401
Amy Greene, Kelly Whittaker, Elisabeth
Krisjanis, Esq., Jillian Jackson, Esq.,
Barbara Sorkin, Denise Woltman,
Charlene Boswell, Mary Ellen Schneider,
Joseph Bennett, and Ulster County
Municipality
Cook, Netter Law Firm
P.O. Box 3939
85 Main Street
P.O. Box 3939
Kingston, NY 12402
ERIC M. KURTZ, ESQ.
ROBERT D. COOK, ESQ.
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Ben Gary Treistman commenced this action against
defendants Amy Greene, Kelly Whittaker, Elisabeth Krisjanis, Esq., Jillian
Jackson, Esq., Barbara Sorkin, Denise Woltman, Charlene Boswell, Mary
Ellen Schneider, Joseph Bennett, Ulster County Municipality (collectively
“municipal defendants”), and unnamed Doe defendants, as well as
defendants pro se Valerie Lyn Wacks, Esq. and Lawrence Shelton, Esq.,
pursuant to 42 U.S.C. §§ 1983, 1985, the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), 1 and New York common law. (Compl.,
Dkt. No. 1.) Pending are municipal defendants’ motion for judgment on the
pleadings, (Dkt. No. 55), and motions to dismiss for failure to state a claim
by both Shelton, (Dkt. No. 56), and Wacks, (Dkt. No. 57). For the reasons
that follow, the motion of municipal defendants is granted in part and
1
See Pub. L. No. 104-191, 110 Stat. 1936 (codified in scattered sections of 18, 26, 29,
and 42 U.S.C.).
2
denied in part, and the motions of Shelton and Wacks are both granted.
II. Background
A.
Facts
At the outset, the court notes that Treistman’s complaint is eighty-
nine pages in length and contains 360 numbered paragraphs and over
thirty separate causes of action. (See generally Compl.) The profuse
number of allegations are not organized chronologically, and, in some
instances, hard to follow. Nonetheless, the court has endeavored to
arrange the facts in a manner here that makes them more readily
digestible, although, in places, they are still somewhat disjointed. The
factual background is divided between allegations that pertain to Wacks
and Shelton, and municipal defendants. The facts themselves are drawn
from Treistman’s complaint and presented in the light most favorable to
him.
1.
Wacks and Shelton
Treistman is the father of A.T., a minor, with whom he has enjoyed a
father-daughter relationship from her birth to age seven. (Compl. ¶¶ 14-22,
102.) Suzanne Cayley is A.T.’s mother. (Id. ¶ 103.) In February 2011,
Cayley filed a petition in New York State Family Court seeking full custody
3
of A.T. (Id. ¶ 104.) Cayley’s attorney in the underlying Family Court
matters was Shelton. (Id. ¶ 34.) As is required under New York law, see
N.Y. Family Ct. Act § 249, Family Court appointed an attorney for the child
in the custody proceeding; Wacks was appointed for that purpose. (Compl.
¶ 110.) Although not pertinent for reasons explained below, see infra Part
IV.B, the complaint contains several allegations faulting the conduct of
Shelton and Wacks in connection with certain Family Court matters in
which A.T. and Treistman were involved.
2.
Municipal Defendants
In May 2011, Cayley, took A.T. to Ulster County Mental Health
Department (MHD), an agency of the County Department of Social
Services (DSS). (Id. ¶ 23.) From MHD, “Cayley sought and obtained a
psychiatric drug prescription for . . . Geodon” to qwell A.T.’s supposed
temper tantrums. (Id. ¶ 25.) Geodon has not been approved by the Food
and Drug Administration for use on children, and “is known to have serious
side-effects.” (Id. ¶ 26.) None of the MHD employees involved with A.T.’s
case—Schneider, a licensed clinical social worker who was assigned as
A.T.’s social worker, Bennett, who was Schneider’s supervisor, or Dr.
Howard Gottlieb, the psychiatrist that prescribed Geodon for an “off-label
4
use”—consulted, advised, or contacted Treistman regarding his daughter’s
care or the fact that a psychotropic drug was prescribed for her. ( Id. ¶¶ 2731.) Cayley also instructed A.T. to withhold information about her
treatment from Treistman, leaving Treistman “completely ignorant of any of
these developments.” (Id. ¶¶ 32-33.)
On August 21, 2011, A.T. told Treistman that her mother gives her a
pill every morning and complained of several symptoms. (Id. ¶¶ 39-40.)
Treistman noticed excessive weight gain beginning in July 2011 and other
changes in his daughter, including loss of enjoyment for chess and loss of
stamina. (Id. ¶¶ 41-43.) In late August 2011, A.T. had an episode while
dancing; she told Treistman “that her heart was beating too fast and that
she was scared.” (Id. ¶ 43.) Treistman elected not to seek medical
intervention after carefully observing A.T. (Id. ¶ 44.) Following this
incident, A.T., who protested the medication, was forced by Cayley to
continue taking it. (Id. ¶¶ 48-49.)
The following month, Treistman called the New York State Central
Register Child Abuse and Maltreatment Hotline to report an incident
wherein Cayley left A.T. alone at her apartment and A.T. was locked out.
(Id. ¶¶ 51-56.) Greene, Ulster County Child Protective Services (CPS)
5
supervisor/caseworker, and Whittaker, CPS caseworker, determined that
Cayley was not neglectful in relation to the reported incident. (Id. ¶¶ 5, 6,
57.) Later in September, Whittaker telephoned Treistman regarding
charges of neglect lodged against him. (Id. ¶ 58.) Treistman was directed
to report to CPS. (Id. ¶ 59.) At the ensuing meeting, Greene and
Whittaker interrogated Treistman and threatened him with, among other
things, prosecution in Family Court, restraining orders forbidding contact
with A.T., and imprisonment unless he agreed to discontinue “the
interactions and parenting style . . . they . . . disapproved of,” which
included a laundry list of “activities.” (Id. ¶¶ 61-63.) At some unspecified
time, Greene, Whittaker, Krisjanis, DSS counsel, Jackson, DSS counsel,
and Sorkin, deputy commissioner of DSS, obtained a restraining order
prohibiting contact between A.T. and Treistman. (Id. ¶¶ 7, 8, 9, 64.) At the
time Treistman filed his complaint, the order was still in effect. (Id. ¶ 98);
however, during the litigation, the neglect proceedings were dismissed and
Treistman now enjoys unrestricted and unsupervised visitation with A.T.,
see Treistman v. Wacks, 578 F. App’x 18, 19 (2d Cir. 2014). The same
defendants who obtained the restraining order also petitioned a court to
find that Treistman had neglected and/or abused A.T. (Compl. ¶ 65.) Part
6
of the motivation of these defendants was to disrupt an ongoing custody
proceeding, referenced above, in Family Court, and because of “personal
and institutional gender discriminat[ion]” against fathers. (Id. ¶¶ 66, 68.)
As of October 11, 2011, and as a result of the foregoing, Treistman
was permitted only one hour of supervised visitation per week. (Id. ¶ 70.)
Defendants also curtailed the subjects of discussion during these limited
visits, but intentionally failed to convey the prohibited topics/behavior to
Treistman. (Id. ¶¶ 72-73.) From December 16, 2011 to January 10, 2012,
defendants encouraged Treistman to visit with A.T. at a McDonald’s. (Id.
¶ 74.) However, on January 6, Woltman, a CPS caseworker, changed the
visit date without notice, causing Treistman to fail to appear and upsetting
A.T. to the point that Woltman required A.T. to go to the emergency room
for treatment. (Id. ¶¶ 10, 75-78.) A.T.’s disability was blamed for this
incident and A.T. was punished because of her disability by no longer
being allowed to meet with Treistman at McDonald’s and, instead, having
only supervised visitation with her father. (Id. ¶¶ 78-79.)
In December 2011 and January 2012, Treistman hired Dr. Kathleen
Caproni for evaluation and parent-child counseling. (Id. ¶ 80.) In late
January, Bennett and Schneider demanded that Dr. Caproni cease
7
therapy, which caused her to withdraw from her treatment of A.T. “due to
. . . repeated pressure from Bennet, Schneider and other[s],” “citing a
concern to not have institutional friction or interference with other patients
with [MHD].” (Id. ¶ 81.)
Treistman alleges other facts to demonstrate that defendants
interfered with his parental rights. On February 15, 2012, Woltman forbade
Treistman from photographing or videotaping A.T. during their visits. (Id.
¶ 82.) In June 2012, Woltman accused Treistman of engaging in prohibited
coversations with A.T., demanded that the conversations stop, and
threatened to discontinue all visitation. (Id. ¶¶ 83-87.) In the same month,
at an Office of Children and Family Services administrative hearing,
Whittaker, Greene, and unnamed others, submitted false evidence against
Treistman for the purpose of prejudicing Treistman; the charges against
him were ultimately deemed unfounded. (Id. ¶¶ 88-90 & at 22 n.3.) Again
in June, Schneider told Treistman and A.T. that they could not discuss
certain topics, and that, if they did, they may never be reunited. ( Id. ¶ 91.)
Finally, in December 2012, Woltman and Boswell, a CPS supervisor,
though not directly present, accused Treistman of disciplining A.T. by
“pinch[ing] her on the buttock.” (Id. ¶¶ 11, 96.) Consequently, Woltman
8
required Treistman to attend parenting classes and threatened sanctions.
(Id. ¶ 97.)
B.
Procedural History
Treistman filed this action in late December 2012 asserting claims on
behalf of A.T. and himself. (See generally Compl.) After joinder of issue,
(Dkt. Nos. 6, 8, 10), Treistman sought a temporary restraining order and
preliminary injunction by order to show cause that would prohibit
defendants “from interfering with [p]laintiffs actions of association and free
speech,” (Dkt. No. 12, Attach. 3 at 4). Appreciating a potential issue
regarding Treistman’s purported representation of A.T., the court stayed
Treistman’s motion and ordered the parties to further brief the
representation issue. (Dkt. No. 13.) The court ultimately determined that
Treistman was not a proper representative of A.T. for purposes of the
litigation, and appointed a guardian ad litem to represent A.T. (Dkt. Nos.
19, 27.) A.T.’s guardian ad litem reported to the court that A.T. desired to
have all claims asserted on her behalf dismissed. (Dkt. No. 31.) The court
dismissed all claims asserted on A.T.’s behalf and denied Treistman’s
application for a preliminary injunction. (Dkt. No. 32.) Treistman’s untimely
motion for reconsideration was denied, (Dkt. No. 37), and he appealed,
9
(Dkt. No. 38). The Second Circuit eventually dismissed the appeal as
moot, explaining that Treistman informed the Court during oral argument
“that the neglect proceedings against him have been dismissed, and that
he currently has unrestricted and unsupervised visitation with his child.”
Treistman, 2014 WL 4626596, at *1.
Before the Circuit’s resolution of Treistman’s appeal, defendants filed
the pending motions. (Dkt. Nos. 55, 56, 57.)
III. Standard of Review
“The standard for addressing a Rule 12(c) motion for judgment on the
pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for
failure to state a claim.” Wright v. Monroe Cmty. Hosp., 493 F. App’x 233,
234 (2d Cir. 2012) (internal quotation marks and citation omitted). For a full
discussion of the governing standard, the court refers the parties to its prior
decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218
(N.D.N.Y. 2010).
IV. Discussion
The following nineteen claims, asserted on Treistman’s behalf,
survived the dismissal of A.T.’s causes of action: (1) Wacks conspired with
Whittaker, Green, Krisjanis and Jackson to deny Treistman “the right to
10
equal opportunity to parent his child” based on gender in violation of the
Fourteenth Amendment, (Compl. ¶¶ 231-34); (2) Schneider denied
Treistman his right of access to courts, freedom of speech, and freedom of
association, in violation of the First Amendment, by prohibiting Treistman
from speaking with A.T. about legal or court matters, or future or past visits,
(id. ¶¶ 83, 259-64); (3) Scheinder, Woltman, and Boswell violated
Treistman’s right of access to courts, freedom of speech, and the right to
parent-child association by refusing to lift certain constraints unless
Treistman refrained from talking about future visits and when they would be
reunited, (id. ¶¶ 265-70); (4) Schneider violated Treistman’s rights
protected by HIPAA and N.Y. C.P.L.R. 4504 by releasing protected
information to third parties without Treistman’s authorization, (id. ¶¶ 27172); (5) Woltman, Boswell and others denied Treistman a host of rights in
violation of the First and Fourteenth Amendments by prohibiting
discussions with A.T. about court matters, discussions about future or past
visits, and photographs or video of A.T., (id. ¶¶ 294-97); (6) CPS and the
County failed to properly train Woltman, Boswell, Greene, Whittaker, and
others “that demanding the suspension of guaranteed legal rights and
privileges is a violation of [Treistman]’s constitutional and other rights,” ( id.
11
¶¶ 298-99); (7) CPS and the County failed to properly train Woltman,
Boswell, Greene, Whittaker, and others as required by New York Social
Services Law § 421, (id. ¶¶ 300-03); (8) CPS and the County interfered
with Treistman’s freedom of association and the right to parent-child
familial association in violation of the First and Fourteenth Amendments by
promulgating rules that prohibit “the giving of gifts to each other,” ( id.
¶ 304); (9) Woltman and Boswell violated Treistman’s right to freely
associate and parent without state interference by accusing Treistman of
pinching A.T.’s buttock, asserting that Treistman did not have the right to
discipline A.T., threatening sanctions unless Treistman forwent his rights,
and retaliating against Treistman by ordering him to attend parenting
classes in violation of the First and Fourteenth Amendments, (id. ¶¶ 30507); (10) Whittaker, Greene, Krisjanis, and Jackson, and CPS and the
County as employers that negligently trained those defendants, negligently
inflicted emotional distress by “negligently appl[ying] improper laws and . . .
standards as a premise to separate and cause [Treistman and A.T.] to be
taken from each other,” (id. ¶¶ 308-14); (11) Whittaker, Green, Krisjanis,
Jackson, and Sorkin violated Treistman’s right to parent his child by
imposing certain rules “limiting his association with his daughter” in
12
violation of his First and Fourteenth Amendment rights, (id. ¶¶ 63, 315-21);
(12) Whittaker, Greene, Krisjanis, Jackson, Sorkin, CPS, DSS, the County,
and others discriminated against Treistman on the basis of gender in
violation of his equal protection rights, (id. ¶¶ 322-23); (13) Whittaker,
Green, Sorkin, CPS, and the County discriminated against Treistman on
the basis of gender as retaliation for Treistman’s reporting of suspected
child abuse or neglect by Cayley in violation of New York law and the Due
Process Clauses of the Fifth and Fourteenth Amendments, (id. ¶¶ 324-29);
(14) Krisjanis, Jackson, and others maliciously prosecuted Treistman by
charging him with abuse or neglect in a quasi-criminal proceeding, ( id.
¶¶ 330-35); (15) Whittaker, Greene, and others maliciously prosecuted
Treistman by charging him with maltreatment in a quasi-criminal
administrative action, (id. ¶¶ 336-41); (16) Krisjanis, Jackson, Sorkin, CPS,
DSS, and the County subjected Treistman to cruel and unusual
punishment and/or excessive punishment in violation of the Eighth
Amendment, (id. ¶¶ 342-44); (17) MHD, Schneider, Bennett, and others
tortiously interfered with contractual relations by contacting Dr. Caproni and
commanding that she cease therapy with Treistman and A.T., (id. ¶¶ 34549); (18) MHD, Schneider, Bennett, and others interfered with Treistman’s
13
right to choose a therapist by commanding Dr. Caproni to cease treatment
in violation of his parental rights under the Fourteenth Amendment and due
process, (id. ¶¶ 350-55); (19) Whittaker, Greene, Krisjanis, Jackson,
Sorkin, the County, and others defamed Treistman “by casting aspersions
of moral turpitude, and besmirching his character, professional standing,
moral creed and constitution, fatherhood and personhood, where the
premise and allegations of legal violation and other defamation were untrue
and false,” (id. ¶¶ 356-57). For the sake of clarity, the court will hereafter
refer to Treistman’s causes of action by the numbers designated here.
A.
Municipal Defendants
Municipal defendants argue that dismissal is appropriate because
various forms of immunity shield the individual defendants, (Dkt. No. 55,
Attach. 3 at 2-17), Treistman has failed to state a Monell2 claim because
there is no proof of a formal policy that authorized unconstitutional conduct,
(id. at 18-19), and the Rooker-Feldman3 doctrine divests this court of
jurisdiction of what is in essence an appeal of a judgment of Family Court,
(id. at 23-24). Aside from these global reasons for dismissal, municipal
2
See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).
3
See D.C. Ct. of App. v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Trust Co., 263
U.S. 413 (1923).
14
defendants contend that Treistman’s Eighth Amendment and substantive
due process claims are infirm. (Id. at 20-22.)
Before digging into the substance of municipal defendants’
arguments, it is noteworthy that they have submitted a statement of
material facts in support of their motion. (Dkt. No. 55, Attach. 1.) While the
document appears to merely restate as fact some of the allegations
contained in the complaint, (id.), it is procedurally improper. Only motions
for summary judgment require a statement of material facts, see N.D.N.Y.
L.R. 7.1(a)(3), and a motion brought pursuant to Rule 12(c) relies on only
the pleadings and a select few other items, see Daniels ex rel. Daniels v.
Comm’r of Soc. Sec., 456 F. App’x 40, 41 (2d Cir. 2012) (“In deciding a
motion under Rule 12(c), the district court may consider only the contents
of the pleadings themselves, documents attached to the pleadings as
exhibits or incorporated by reference, and items of which judicial notice
may be taken.”). Moreover, the court notes that several of municipal
defendants’ contentions rely upon the existence and terms of an order or
orders of Family Court. (See, e.g., Dkt. No. 55, Attach. 3 at 13, 16-17.)
While Treistman generically refers to Family Court orders in his complaint,
(see, e.g., Compl. ¶¶ 64, 70, 73, 98, 113, 169), the order or orders and its
15
or their terms are not part of the record. As such, given the posture of the
pending motion, brought pursuant to Rule 12(c) and early on in the
litigation, reference to matters outside of the pleadings is excluded from the
court’s consideration. See Fed. R. Civ. P. 12(d). With these issues in
mind, the court turns to municipal defendants’ arguments.
1.
Krisjanis and Jackson
Municipal defendants first assert that Krisjanis and Jackson, both of
whom are DSS counsel, (Compl. at 5), are entitled to absolute immunity as
agency lawyers. (Dkt. No. 55, Attach. 3 at 3-7.) While it is settled in this
Circuit that, just like prosecutors, agency lawyers are “accorded absolute
immunity from [§ 1983] claims arising out of the performance of [their]
duties,” Walden v. Wishengrad, 745 F.2d 149, 152 (2d Cir. 1984); see
Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir. 2010), at this juncture, the
claims against Krisjanis and Jackson cannot be dismissed because of
immunity.
There are several reasons for this conclusion. First, the factual
allegations in the complaint do not squarely show that Krisjanis and
Jackson were acting solely in the performance of their duties, as opposed
to in an administrative or investigatory capacity, under which conditions
16
they would not be shrouded with absolute immunity. See Van de Kamp v.
Goldstein, 555 U.S. 335, 342-43 (2009). Indeed, the factual allegations
appear to go beyond conduct for which agency lawyers enjoy immunity,
i.e., initiating proceedings and presenting the state’s case. See Walden,
745 F.2d at 151. Second, absolute immunity, as contemplated by Walden,
applies only to § 1983 claims, whereas Treistman has nominally alleged
claims pursuant to §§ 1983 and 1985 and state common law as against
Krisjanis and Jackson. (Compl. ¶¶ 231-34, 308-14, 315-21, 322-23, 33035, 342-44, 356-57.) Municipal defendants have entirely failed to address
if and how immunity would apply to the claims alleged pursuant to authority
other than § 1983.4 Notwithstanding the foregoing, on a more developed
factual record, it may be so that Krisjanis and Jackson are entitled to
absolute immunity for at least some of Treistman’s claims; accordingly,
municipal defendants are free to raise this argument again at an
appropriate time.
2.
Sorkin, Greene, and Whittaker
4
The court notes that, while there is some authority that suggests that prosecutorial
immunity extends to § 1985 claims as well, see, e.g., Hayes v. Hall, 604 F. Supp. 1063, 1068
(W.D. Mich. 1985), defendants have not made this argument, and, accordingly, the court will
not endeavor to resolve it on an undeveloped record.
17
On similar logic to the argument advanced on behalf of Krisjanis and
Jackson, municipal defendants assert that Sorkin, Greene, and Whittaker
are absolutely immune, as agency officials, from all claims asserted by
Treistman. (Dkt. No. 55, Attach. 3 at 7-10.) The court disagrees.
Although it is true “that agency officials performing certain functions
analogous to those of a prosecutor should be able to claim absolute
immunity with respect to such acts,” Butz v. Economou, 438 U.S. 478, 515
(1978), the nature of this litigation—at a time prior to any meaningful
discovery, (Dkt. Nos. 60, 67)—is and Treistman’s allegations are such that
the court will not dismiss any claims on the basis of immunity with respect
to Sorkin, Greene, or Whittaker. Additionally, municipal defendants’
contention that these three defendants are entitled to immunity suffers from
the same deficiencies identified above: there is no argument that immunity
applies to the § 1985 or common law claims asserted against them. See
supra Part IV.A.1; (Compl. ¶¶ 231-34, 300-03, 308-314, 315-21, 322-23,
324-29, 336-41, 342-44, 356-57.) Again, at an appropriate time and on an
appropriate record, municipal defendants are free to raise this argument
again.
3.
Schneider, Bennett, Woltman, and Boswell
18
Municipal defendants next contend that Schneider, Bennett,
Woltman, and Boswell are entitled to absolute judicial immunity because
they were acting as arms of the court in carrying out an order of Family
Court. (Dkt. No. 55, Attach. 3 at 10-17.) Again, the court disagrees that
dismissal is warranted at this juncture.
Treistman has alleged four claims against Schneider, one claim
against Bennett, and three claims each against Woltman and Boswell.
(Compl. ¶¶ 259-64, 265-70, 294-97, 305-07, 345-49, 350-55.) In support of
their argument, municipal defendants rely exclusively on New York case
law, see Mosher-Simons v. Cnty. of Allegany, 99 N.Y.2d 214, 220-21
(2002). (Dkt. No. 55, Attach. 3 at 10-17.) While the New York Court of
Appeals indeed upheld the dismissal of a negligence action on immunity
grounds—in particular, by finding that a caseworker essential to the judicial
decision-making process who functions as an arm of the court is immune
from liability for negligence—municipal defendants fail to explain why or
how the New York ruling mandates dismissal of all claims against these
defendants in this federal action.
At best, it seems, Mosher-Simons could support dismissal of the
common law claim of tortious interference with contractual relations
19
asserted against Schneider and Bennett. (Compl. ¶¶ 345-49.) And the
problem with dismissal of that claim, as mentioned above, see supra Part
IV.A, is that the Family Court order relied upon by municipal defendants is
not part of the record and its terms are not pleaded in the complaint. (Dkt.
No. 55, Attach. at 13, 16.) Indeed, municipal defendants’ contention that
Schneider, Bennett, Woltman, and Boswell were merely “carrying out the
Family Court order” may prove to be true, but it is unclear at this juncture
whether the complained of conduct was specifically authorized or required
by the order. (Id.)
It is also noteworthy that regardless of whether immunity shields her,
Treistman’s fourth cause of action against Schneider for violations of
HIPAA and N.Y. C.P.L.R. 4504, (Compl. ¶¶ 271-72), must be dismissed.
Indeed, neither HIPAA nor C.P.L.R. 4504 give rise to a private cause of
action. See Colon v. Cnty. of Nassau, No. 12-CV-4466, 2014 WL
4904692, at *10 (E.D.N.Y. Sept. 26, 2014) (“HIPAA does not provide for
either an express or implied private right of action.” (internal quotation
marks and citation omitted)); Burton v. Matteliano, 81 A.D.3d 1272, 1275
(4th Dep’t 2011) (“[T]here is no private cause of action pursuant to CPLR
4504.”).
20
5.
The County, DSS, CPS, and MHD
Municipal defendants assert that claims against the County must be
dismissed because Treistman has failed to plead facts to demonstrate that
the County had an unconstitutional policy in compliance with the
requirements of Monell. (Dkt. No. 55, Attach. 3 at 18-19.) For the reasons
explained below, some of Treistman’s claims against the County must be
dismissed while others survive the motion.
To establish municipal liability pursuant to § 1983, a plaintiff must
allege: “(1) that the County’s failure to train its employees amounted to
deliberate indifference to constitutional rights; (2) that there was a
persistent and widespread unconstitutional governmental policy or custom;
or (3) that a County policymaker approved any constitutional violation.”
Carter v. Inc. Vill. of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014)
(citations omitted). As to the second avenue of liability, a plaintiff must
“‘plead and prove three elements: (1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.’”
Zherka v. City of N.Y., 459 F. App’x 10, 12 (2d Cir. 2012) (quoting Wray v.
City of N.Y., 490 F.3d 189, 195 (2d Cir. 2007)). Moreover, while this rule
“does not mean that the plaintiff must show that the municipality had an
21
explicitly stated rule or regulation, a single incident alleged in a complaint,
especially if it involved only actors below the policy-making level, does not
suffice to show a municipal policy.” Ricciuti v. N.Y.C. Transit Auth., 941
F.2d 119, 123 (2d Cir. 1991) (citations omitted).
Treistman has named the County as a defendant in eight of his
claims. Two of the causes of action, which require little discussion, are
alleged as New York common law claims of negligent infliction of emotional
distress and defamation. (Compl. ¶¶ 308-14, 356-57.) Other than a single
unavailing argument addressed fully below, see infra Part IV.A.6, municipal
defendants have not offered a basis for the dismissal of those claims and
the court declines to dismiss them at this juncture.
Two other claims are characterized as § 1983 causes of action
alleging a failure to train Woltman, Boswell, Greene, Whittaker, and others
who are unnamed in the complaint. (Id. ¶¶ 298-99, 300-03.) The first of
those two claims is supported by Treistman’s contention that the County
failed to properly train the identified defendants that it was unconstitutional
for them to demand that Treistman forego certain constitutional rights. ( Id.
¶ 298.) These allegations minimally support a theory of liability for the
County, i.e., “that the County’s failure to train its employees amounted to
22
deliberate indifference to constitutional rights.” Carter, 759 F.3d at 164.
The second failure to train claim is premised upon Treistman’s allegation
that the County failed to train its employees as required by New York
Social Services Law § 421. (Compl. ¶¶ 300-03.) Because a violation of
state law, as relied upon by Treistman, cannot support a claim under
§ 1983, see Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (“Section
1983 provides a remedy only for the deprivation of ‘rights, privileges, or
immunities secured by the Constitution and laws’ of the United States.”
(quoting 42 U.S.C. § 1983)), this claim must be dismissed.
The four remaining causes of action asserted against the County are
also alleged pursuant to § 1983. (Compl. ¶¶ 304, 322-23, 324-29, 342-44.)
While Treistman’s eighth and twelfth causes of action plainly alleged
policies or customs that caused him to be denied constitutional rights, ( id.
¶¶ 304,5 322-236), his thirteenth and sixteenth causes must be dismissed
5
In his eighth cause of action, Treistman alleges that the County interfered with his
freedom of association, and right of familial association by “promulgating administrative rules
of, and the imposition of prohibiting the giving of gifts to each other” and that these rules
caused a deprivation of rights. (Compl. ¶ 304.) While the claim is not a model of clarity, the
basis for dismissal argued by municipal defendants does not provide the court with a valid
basis to dismiss.
6
In his twelfth cause of action, Treistman alleges that the County discriminated against
him based on his gender “as part of an ongoing conduct, practice and pattern of discrimination
against male parents” and that said policy forced him to be separated from his daughter in
violation of constitutional rights. (Compl. ¶ 322.)
23
as against the County. Indeed, no custom or policy is alleged with respect
to those claims and no other basis of municipal liability is pleaded or
otherwise apparent.
Finally, the court notes that, while municipal defendants have failed to
so argue, Treistman’s allegations against CPS, DSS, and MHD must be
dismissed because “a department of a municipal entity is merely a
subdivision of the municipality and has no separate legal existence.”
Varela v. City of Troy, No. 1:10-cv-1390, 2014 WL 2176148, at *6
(N.D.N.Y. May 22, 2014) (internal quotation marks omitted). Accordingly,
the claims asserted against those departments of Ulster County are
dismissed as against them.
6.
Rooker-Feldman Doctrine
Municipal defendants argue that subject matter jurisdiction is lacking
under the Rooker-Feldman doctrine because Treistman’s claims are
merely an attack on a state court judgment. (Dkt. No. 55, Attach. 3 at 2324.) On the present record, the court cannot agree.
In essence, the Rooker-Feldman doctrine bars “what in substance
would be appellate review of the state judgment in a United States district
court, based on the losing party’s claim that the state judgment itself
24
violates the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997,
1005-06 (1994). The Second Circuit has outlined four requirements for
determining whether this doctrine applies: (1) the plaintiff now in federal
court must have lost in state court; (2) the injuries of which the plaintiff
complains must have been caused by a state court judgment; (3) the
plaintiff must invite district court review and rejection of that judgment; and
(4) the state court judgment must have been rendered before the district
court proceedings commenced. See Hoblock v. Albany Cnty. Bd. of
Elections, 422 F.3d 77, 85 (2d Cir. 2005) (citations omitted).
Here, it is again unclear whether this argument could be successful
on a more fully developed record. Aside from allegations in the complaint
which indicate that certain Family Court orders were entered with respect
to Treistman and A.T., those orders are not part of the record and their
terms have not been disclosed. At this juncture, it is impossible to say that
Rooker-Feldman has any apparent application; it is particularly unclear
whether Treistman’s injuries were caused by the state court judgment
because the terms of Family Court’s order(s) are not part of the record. It
may be true that some of the conduct complained of herein was
countenanced by Family Court orders and that Treistman’s real complaint
25
is with a judgment of a New York court. On the present record, this
argument must be rejected, however.
7.
Cruel & Unusual Punishment
Municipal defendants assert that Treistman’s Eighth Amendment
claim must be dismissed because it is “abundantly clear that the
proscription against cruel and unusual punishment confirms that it was
designed to protect those convicted of crimes,” and Treistman does not
allege that he was arrested or that criminal charges were filed against him.
(Dkt. No. 55, Attach. 3 at 20-21.) Treistman counters that “there is no
touchstone in law that demarcates criminal from civil deprivations of th[e]
Constitutional protection” afforded by the Eighth Amendment. (Dkt. No. 63
at 15.) Contrary to what Treistman may believe, because the protection
afforded by the Eighth Amendment “is not applicable to purely civil
penalties,” Zwick v. Freeman, 373 F.2d 110, 119 (2d Cir. 1967),
Treistman’s claim that various defendants violated his right to be free from
cruel and unusual punishment, (Compl. ¶¶ 342-44), must be dismissed.
8.
Substantive Due Process
Lastly, municipal defendants assert that Treistman’s substantive due
process claim must be dismissed because “liability can no longer be
26
attributed to the officers, or the department in supervising the officers after
there has been court confirmation of the reduced visitation, which occurred
on October 11, 2011.” (Dkt. No. 55, Attach. 3 at 21-22.) 7 This argument is
premised upon municipal defendants’ interpretation of Schweitzer v.
Crofton, 935 F. Supp. 2d 527 (E.D.N.Y. 2013). (Dkt. No. 55, Attach. 3 at
21-22.) The court disagrees that dismissal is required at this time.
Treistman’s thirteenth and eighteenth claims allege violations of his
“due process” rights. (Compl. ¶¶ 324-29, 350-55.) The first of those
claims, which asserts that Whittaker, Green, and Sorkin discriminated
against Treistman by filing a neglect petition targeting him on the basis of
gender as retaliation for his reporting of suspected child abuse by Cayley,
and resulted in A.T. “being taken away from him,” (id. ¶¶ 325-27), facially
meets the pleading requirement for a substantive due process claim.
Indeed “parents have a ‘constitutionally protected liberty interest in the
care, custody and management of their children,’ and . . . the deprivation of
this interest is actionable on a substantive due process theory,”
Southerland v. City of N.Y., 680 F.3d 127, 152 (2d Cir. 2012) (quoting
7
Municipal defendants also make an argument for the dismissal of a procedural due
process claim, (Dkt. No. 55, Attach. 3 at 21); however, Treistman concedes that he “does not
contend [that] there were any procedural due process violations,” (Dkt. No. 63 at 16).
27
Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999)), provided “that
the state action was so egregious, so outrageous, that it may fairly be said
to shock the contemporary conscience,” id. at 151 (internal quotation marks
and citations omitted).
The court recognizes that “unusual deference” applies to case
workers in the context of abuse and neglect investigations. Id. at 152
(internal quotation marks and citation omitted). In fact, the Second Circuit
has explained that as long as a case worker has a “reasonable basis” for
her abuse or neglect finding, the “investigation passes constitutional
muster.” Id. (internal quotation marks and citation omitted). On the facts
now before the court, which are drawn from the pleading and presented in
the light most favorable to Treistman, it is unclear if the deferential standard
applies. Indeed, Treistman alleges that he “was exonerated on the merits,
of any neglect or maltreatment allegations,” (Compl. ¶¶ 334, 340), which, at
this juncture, may suggest that a reasonable basis for the caseworkers’
neglect finding was lacking.
The second claim in which Treistman mentions due process clearly
implicates procedural due process rights. Indeed, Treistman alleges that
“[d]efendants actions violated due process, as there was no process at all
28
adhered to, it was simply and directly effectuated ad hoc.” (Id. ¶ 353.)
However, this “due process” allegation drops out of the case because
Treistman “does not contend [that] there were any procedural due process
violations.” (Dkt. No. 63 at 16.) Treistman’s concession amounts to a
withdrawal of any procedural due process claims.
B.
Shelton and Wacks
Shelton and Wacks separately seek dismissal for failure to state a
claim. (Dkt. Nos. 56, 57.) Treistman “opposes th[ese] motions on the sole
grounds that they are premature, and that this court may not have
jurisdiction over the [d]efendants or their arguments and claims for
dismissal” because “[t]he question of A.T.’s termination is currently
[pending] before the Second Circuit.” (Dkt. No. 63 at 21.) The court notes
that none of Treistman’s claims are pressed against Shelton and only one
claim targets Wacks. (Compl. ¶¶ 231-34.) Regardless, in light of
Treistman’s concession that his only gripe with the dismissal of Shelton
and Wacks is that the district court was divested of jurisdiction during the
pendency of his appeal, which has since been decided, Shelton and Wacks
are both terminated from this action.
C.
Other Observations
29
Given the sheer number of claims and piecemeal way in which the
court was forced to address them, it would benefit everyone involved in this
litigation if Treistman sought to file an amended pleading succinctly setting
forth his claims not specifically dismissed by this order.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that municipal defendants’ motion for judgment on the
pleadings (Dkt. No. 55) is GRANTED IN PART and DENIED IN PART as
detailed below; and it is further
ORDERED that Treistman’s seventh cause of action (Compl. ¶¶ 30003) is DISMISSED in its entirety; and it is further
ORDERED that Treistman’s thirteenth and sixteenth causes of action
(Compl. ¶¶ 324-29, 342-44) are DISMISSED as against the County; and it
is further
ORDERED that Treistman’s sixth, seventh, eighth, tenth, twelfth,
thirteenth, sixteenth, and eighteenth causes of action (Compl. ¶¶ 298-99,
300-03, 304, 308-14, 322-23, 324-29, 342-44, 350-55) are DISMISSED as
against CPS, DSS, and MHD; and it is further
ORDERED that Treistman’s sixteenth cause of action (Compl.
30
¶¶ 342-44) is DISMISSED in its entirety; and it is further
ORDERED that Treistman’s eighteenth cause of action (Compl.
¶¶ 350-55) is DISMISSED insofar as it alleges a violation of due process
rights; and it is further
ORDERED that Shelton’s motion to dismiss (Dkt. No. 56) is
GRANTED and he is TERMINATED from this action; and it is further
ORDERED that Wacks’ motion to dismiss (Dkt. No. 57) is GRANTED
and she is TERMINATED from this action; and it is further
ORDERED that the parties contact Magistrate Judge Christian F.
Hummel in order to schedule further proceedings in this matter; and it is
further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 26, 2014
Albany, New York
31
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