Brennan v. County of Broome

Filing 49

DECISION AND ORDER denying Plaintiff's 38 Appeal of Magistrate Judge Decision; granting Defendant's 39 Motion for Summary Judgment and dismissing all claims in Plaintiff's Amended Complaint; denying Plaintiff's 41 Cross-Motion for a finding of contempt; and denying Plaintiff's 48 application for appointment of counsel. Signed by Senior Judge Thomas J. McAvoy on 6/1/2011. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
KEVIN JOSEPH GABRIEL BRENNAN,
Plaintiff,
3:09-CV-677
-against-

COUNTY OF BROOME IN THE STATE
OF NEW YORK,
Defendant.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
Plaintiff commenced this action pro se asserting that Defendant deprived him of his

right to constitutional due process in connection with a child neglect or abuse investigation,
and violated his rights under the Americans with Disabilities Act by failing to provide
adequate handicap parking near the Broome County Family and County Court building in
Binghamton, New York. See Am. Compl., dkt. # 15. Presently before the Court are: (1)
Plaintiff’s appeal of Magistrate Judge David E. Peebles’s January 11, 2011 Order, dkt. #
38; (2) Defendant’s motion for summary judgment, dkt. # 39; (3) Plaintiff’s cross-motion for
a finding of contempt of court against two non-party Broome County employees, dkt. # 41;
and (4) Plaintiff’s application for the appointment of counsel, dkt. # 48. The Court will

1

address the motions seriatim.
II.

APPEAL OF MAGISTRATE JUDGE DECISION
On January 11, 2011, after reviewing the parties’ papers and hearing oral

argument, Magistrate Judge Peebles denied Plaintiff’s discovery motions and Plaintiff’s
request for the designation of a private attorney general in this matter. See Jan. 11, 2011
Order, dkt. # 36. Plaintiff appeals this decision, essentially re-arguing the merits of his
motions before Magistrate Judge Peebles. See dkt. # 38. Defendant has filed opposition,
arguing that Plaintiff’s positions are without merit. See dkt. # 40.
A district court judge reviewing a magistrate judge's non-dispositive pretrial order,
as is in issue here, see Labarge v. Chase Manhattan Bank, N.A., 1997 WL 583122, at * 1
(N.D.N.Y. Sept. 3, 1997)(Pooler, D.J.)(“Pretrial disputes concerning discovery generally
are non-dispositive matters because they do not resolve parties' substantive claims for
relief as set forth in the pleadings.”)(citation omitted), may not modify or set aside any part
of that order unless it is clearly erroneous or contrary to law. Id. (citing 28 U.S.C. §
636(b)(1)(A); FED . R. CIV. P. 72(a); N.D.N.Y. LOCAL RULE 72.1(b)); Mathias v. Jacobs, 167
F. Supp.2d 606, 621-23 (S.D.N.Y. 2001). Findings are clearly erroneous when the
reviewing court is firmly convinced the lower court decided an issue in error. Lanzo v. City
of New York, 1999 WL 1007346, *2-3 (E.D.N.Y. Sept. 21, 1999). This standard imposes a
heavy burden on the objecting party, and only permits reversal where the district court
determines that the magistrate judge “abused his broad discretion over resolution of
discovery matters.” Labarge, 1997 WL 583122, at *1; see Mathias, 167 F. Supp.2d at
621-23; Lanzo, 1999 WL 1007346, *3.

2

The Court finds no error or abuse of discretion by Magistrate Judge Peebles in
issuing the January 11, 2011 Order. Plaintiff’s mere supposition that Broome County
computers might hold information different from that which was produced in discovery
despite sworn representations to the contrary, or that the room in which he was
interviewed by Broome County officials was equipped with audio and video surveillance
equipment despite sworn representations to the contrary, is insufficient to demonstrate
error or abuse of discretion by Magistrate Judge Peebles. There was also no abuse of
discretion in failing to require Defendant to produce (1) documents which are created or
maintained by a different entity over which Defendant has no control, or (2) documents
that Plaintiff already possesses. As to the case worker’s handwritten notes, Defendant
supplied an affidavit from the case worker asserting that the handwritten notes were
shredded once the information from the notes was entered into the state-maintained
Connections system,1 as was the case worker’s practice to do; that Plaintiff has been
provided a complete copy of the computer generated notes; and that the last entry into the
system (with the concomitant shredding of handwritten notes) occurred three months
before the commencement of this action. It was not error or abuse of discretion for
Magistrate Judge Peebles to deny Plaintiff’s motion to compel this discovery “without
prejudice to plaintiff’s right to request from the trial court the issuance of a spoliation jury
instruction” relative to these handwritten notes. See Jan. 11, 2011 Order.2
1

The Connections System is a state wide database used for docum enting abuse and neglect
investigations resulting from reports m ade to the New York State Office of Fam ily and Children’s Services’
Child Abuse and Neglect Hotline.
2

Magistrate Judge Peebles wrote: “Plaintiff’s m otion to com pel the defendant to produce further
discovery m aterials is DENIED, without prejudice to plaintiff’s right to request from the trial court the issuance

(continued...)
3

The Court also finds no error or abuse of discretion in Magistrate Judge Peebles’s
denial of Plaintiff’s motion for the appointment of a private attorney general in this matter.
Plaintiff’s newly minted argument that he should be afforded “private attorney general
status” because he seeks to protect the rights of disabled government employees or
“similarly situated” individuals who access the Broome County Family and County Court
Building is without merit because Plaintiff has not instituted a representational-capacity
suit.
For these reasons, Magistrate Judge Peebles January 11, 2011 Order is affirmed.
III.

SUMMARY JUDGMENT MOTION
The Court next turns to Defendant’s motion for summary judgment.
a. Standard Of Review
On a motion for summary judgment the Court must construe the properly disputed

facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct.
1769, 1776 (2007), and may grant summary judgment only where “there is no genuine
issue as to any material fact and . . . the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c)(2). An issue is genuine if the relevant evidence is such that
a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of
informing the Court of the basis for the motion and of identifying those portions of the
2

(...continued)

of a spoliation jury instruction with respect to handwritten notes of caseworker, Kathleen Bednar. This denial
is based upon the defendant’s assertion that all docum ents within its possession, custody or control
concerning an investigation of the plaintiff by the Broom e County Departm ent of Social Services have been
produced, other than three specified letters which cannot be retrieved, and the court’s finding that plaintiff has
copies of those letters and that he has not provided the court with any evidence that would underm ine the
credibility of defendant’s sworn assertions in this regard.”

4

record that the moving party believes demonstrate the absence of a genuine issue of
material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant is able to establish a prima facie basis for summary judgment, the
burden of production shifts to the party opposing summary judgment who must produce
evidence establishing the existence of a factual dispute that a reasonable jury could
resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). While the Court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in his favor, Abramson v. Pataki, 278
F.3d 93, 101 (2d Cir. 2002), a party opposing a properly supported motion for summary
judgment may not rest upon “mere allegations or denials” asserted in his pleadings.
Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994); Fed. R. Civ. P.
56(e).
The Local Rules of the Northern District provide a procedure for the efficient
resolution of summary judgment motions. See N.D.N.Y.L.R. 7.1(a)(3). This places the
onus on the parties to present the evidence that either supports or defeats the motion. A
movant must set forth the undisputed facts that, it contends, entitles it to summary
judgment in a Statement Of Material Facts. See N.D.N.Y.L.R. 7.1(a)(3). “Each fact listed
shall set forth a specific citation to the record where the fact is established.” Id.
Once a properly supported Local Rule 7.1(a)(3) Statement of Material Facts is
submitted, the non-moving party must “file a response to the [movant’s] Statement of
Material Facts.” Id. This requires a statement that "mirror[s] the movant's Statement of
Material Facts by admitting and/or denying each of the movant's assertions in matching
numbered paragraphs." Id. “Each denial shall set forth a specific citation to the record
5

where the factual issue arises.” Id. Conclusory denials unsupported by specific citations
to the record are insufficient. See N.Y. Teamsters Conference Pension & Ret. Fund v.
Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005).3 The Court deems as admitted
properly facts in a movant’s Statement of Material Facts that the opposing party has not
specifically or properly controverted. N.D.N.Y.L.R. 7.1(a)(3).
While the Court must construe a pro se litigant’s pleadings and papers liberally and
interpret them to raise the strongest arguments that they suggest, Govan, 289 F. Supp.2d
at 295;4 Veloz v. New York, 339 F. Supp.2d 505, 513 (S.D.N.Y. 2004), the application of
this lenient standard does not relieve a pro se litigant of the requirement to follow the
procedural formalities of Local Rule 7.1(a)(3). Govan, 289 F. Supp.2d at 295; see also
Faretta v. California, 95 S. Ct. 2525, 2541 n. 46 (1975)("The right of self-representation is
not a license . . . not to comply with relevant rules of procedural and substantive law.");
Edwards v. INS, 59 F.3d 5, 8 (2d Cir. 1995)(“While a pro se litigant's pleadings must be
construed liberally, . . . pro se litigants generally are required to inform themselves
regarding procedural rules and to comply with them.”); McNeil v. United States, 113 S. Ct.
1980, 1984 (1993))("[W]e have never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by those who proceed without
counsel.").
Simply stated, on a motion for summary judgment it is the duty of the parties, not
3

(upholding grant of sum m ary judgm ent where “[t]he district court, applying Rule 7.1(a)(3) strictly,
reasonably deem ed [m ovant’s] statem ent of facts to be adm itted” because the non-m ovant subm itting a
responsive Rule 7.1(a)(3) statem ent that “offered m ostly conclusory denials of [m ovant’s] factual assertions
and failed to include any record citations.”)
4

To construe pleadings liberally m eans the Court m ust view the subm issions by a m ore lenient
standard than that accorded to “form al pleadings drafted by lawyers.” Govan, 289 F. Supp.2d at 295.

6

the Court, to sift through the record and bring to the Court's attention the pertinent
information that may create or defeat a triable issue of fact. See Amnesty America v.
Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002); Monahan v. New York City
Dep’t of Corrections, 214 F.3d 275, 291 (2d Cir. 2000). Summary judgment will be
granted when it is apparent on the facts presented that no rational trier of fact could find in
favor of the nonmoving party because evidence supporting the essential elements of the
non-movant’s claim is lacking. FED . R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322.
b. Background5
Plaintiff brings causes of action sounding in the denial of constitutional due process
related to a Department of Social Services child abuse or neglect investigation, and
sounding in a violation of the Americans With Disabilities Act related to the availability of
handicap parking near the Broome County Family and County Court Building in
Binghamton, New York. The Court will address the factual background pertinent to these
claims separately.
1. Department of Social Services Investigation
In December 2008, Rachel Anesi, the mother of Plaintiff’s then-15 year old son filed
a visitation modification petition in Broome County Family Court. The petition alleged that
the son feared Plaintiff because of the verbal abuse directed at the child, and that
Petitioner’s conduct was causing deleterious effects on the child’s well-being, including
gastrointestinal distress. See April 8, 2010 Modified Decision and Order by Hon. John F.

5

Unless indicated otherwise, the following facts are taken prim arily from Defendants’ Statem ent of
Material Facts [dkt. # 39-11] containing facts that are either adm itted by Plaintiff or which are not properly
controverted. See Resp. 7.1(a)(3) Stat. [dkt. # 43].

7

Lambert, Broome County Family Court Judge, dkt. # 44-2.6 On December 18, 2008
Family Court Judge Spiro Pines ordered the Broome County Department of Social
Services to conduct an investigation pursuant to Family Court Act § 1034 to determine
whether Plaintiff had abused or neglected the child. The Broome County Department of
Social Services (“DSS”) received the Order on January 6, 2009. Also on January 6, 2009,
the Child Protective Services (“CPS”) Unit of the Broome County DSS received notice of
an abuse or neglect complaint filed against Plaintiff with the New York State Office of
Family and Children’s Services’ Child Abuse and Neglect Hotline (“Hotline”). The
investigation into the Hotline allegation and the FCA § 1034 Order was assigned to
Barbara Barry, a supervisor in the Broome County CPS Unit. The investigation was also
assigned to Kathleen Bednar, one of the case workers under Ms. Barry’s supervision.
From January 6, 2009 through March 6, 2009, Ms. Bednar conducted an
investigation that included: two home visits to Ms. Anesi’s house; several discussions with
the 15 year old son; an interview with Ms. Anesi and her husband; an interview and home
visit with Plaintiff; a call to the son’s school to check on his attendance, grades and
whether the school had any concerns about the child; and an interview with the mother of
Plaintiff’s daughter.
The son advised Ms. Bednar, inter alia, that: Plaintiff would regularly scream at him
using vulgarity; Plaintiff appeared to be smoking illegal drugs while the son was visiting;7
6

The petition by Ms. Anesi, who was granted legal and physical custody of the son on June 23, 2000,
was in the m idst of fifteen Fam ily Court petitions filed by Plaintiff. See 4/8/10 Mod. Dec. Ord. of Judge
Lam bert.
7

The son stated that he has observed Mr. Brennan on occasion blowing into a bowl and m etallic pipe
and then blowing the sm oke into a pillow Mr. Brennan had on his face. The son stated that Mr. Brennan’s

(continued...)
8

Plaintiff would punch the walls, cabinets, and car windows when he was screaming and
that his mood was getting worse; on two occasions Plaintiff took the son with him when
Plaintiff appeared to enter a building to purchase illegal drugs; and when the son was at
Plaintiff’s residence for visitation he spent most of his time in his room.
Ms. Anesi advised Ms. Bednar that Plaintiff had been known to use illegal drugs in
the past and that, in her opinion, the son was negatively affected by Plaintiff’s screaming.
Ms. Anesi also advised Ms. Bednar that Plaintiff had previously been court-ordered to
attend anger management therapy. Am. Compl. ¶ 22.
Plaintiff told Ms. Bednar that: the son always “cries wolf;” he does not yell at the son
until the fourth or firth time he has to tell the son to do something; he smoke cigars but not
when the children are in the house; and he had no prior Child Protective Services history.
Plaintiff’s apartment appeared clean to Ms. Bednar. Plaintiff’s daughter was also present
at the time of the visit. The daughter appeared to Ms. Bednar to be clean and adequately
cared for. On two occasion (February 17, 2009 & March 5, 2009), after Plaintiff consented
to submit to drug screening tests, Plaintiff failed to appear for the tests.
A social worker at the son’s school advised Ms. Bednar that the son’s attendance
and grades were excellent and he had no disciplinary issues. Ms. Bednar was advised
that the school had no concerns about the son.8 The mother of Plaintiff’s daughter told

7

(...continued)

house always had a “bland/funky” weird sm ell to it. The son also observed a m uddy looking, “black tar”
substance in Mr. Brennan’s ash tray which did not appear to be cigarette ashes.
8

On March 16, 2009, Ms. Bednar spoke with a social worker who was seeing Plaintiff’s son. She
advised Ms. Bednar that when the son was having visitation with Mr. Brennan he appeared to regress socially
and em otionally. It is not clear in the record whether this discussion occurred after the FCA §1034 report was
prepared and presented to the Fam ily Court, and whether it occurred after DSS personnel subm itted the

(continued...)
9

Ms. Bednar that she did not have any concerns with the daughter visiting Plaintiff and that
she had not heard about problems between Plaintiff and his son.
On March 6, 2009, Ms. Bednar determined that the case should be “indicated” for
inadequate guardianship and drug/alcohol use.9 Ms. Bednar had the “Connections”
computer system generate “Notice of Indication” letters and forwarded the file to her
supervisor Barbara Barry for review. On March 16, 2009, Ms. Bednar met with Ms. Barry.
They discussed the case and the Family Court Act § 1034 report was prepared and
submitted to the Family Court. It was also determined that the case would be “indicated”
against Plaintiff for inadequate guardianship and drug/alcohol use, and the Notice of
Indication was sent to Plaintiff.
On April 13, 2009, Plaintiff filed a request with the New York State Office of
Family and Children’s Services for an expungement hearing on the indicated report. The
initial appearance on the expungement hearing, which was held before an Administrative
Law Judge (“ALJ”) employed by the New York State Office of Family and Children’s
Services, was held on September 29, 2009. Another hearing was held on December 30,
2009 at which Plaintiff testified. Prior to the start of the December 30, 2009 hearing, Ms.
Anesi’s Family Court attorney appeared and requested from the ALJ permissions to sit in

8

(...continued)

“indicated” report of child abuse or m altreatm ent against Plaintiff to New York’s Central Register (see text,
infra).
9

See N.Y. Soc. Servs. Law § 412 (“An ‘indicated report’ m eans a report m ade pursuant to this title if
an investigation determ ines that som e credible evidence of the alleged abuse or m altreatm ent exists.”);
Kenific v. Oswego County, 2010 W L 2977267, at * 11 (N.D.N.Y. July 23, 2010) (“Such credible evidence m ay
consist, in part or whole, of hearsay.”) (citing cases).

10

on the hearing, which was denied based upon Plaintiff’s objection. A further hearing date
was scheduled for May 4, 2010 and was adjourned. The hearing was rescheduled for
August 4, 2010 and was adjourned at Mr. Brennan’s request. The hearing was
rescheduled for March 1, 2011.
On June 26, 2009, the Broome County Family Court held a hearing on the various
petitions involving Plaintiff including Ms. Anesi’s petition to modify Plaintiff’s visitation with
his son. Plaintiff did not attend the hearing. Broome County Family Court Judge John F.
Lambert determined to proceed in Plaintiff’s absence. After hearing evidence, Judge
Lambert made findings that Plaintiff hurled curses and invectives at his son amounting to
verbal abuse that struck fear in the child, and that Plaintiff’s actions were detrimental to
the health and well being of the son. See April 8, 2010 Modified Decision and Order of
Judge John F. Lambert, Family Court Judge (attached as Plt. Ex. 2, dkt. # 44-2). Plaintiff’s
visitation with his son was suspended and made contingent upon further application to the
Court. Id. Plaintiff asserts in his memorandum of law that he has not visited with his son
in two years.
2. Americans With Disabilities Claim
According to the allegations in the Amended Complaint, Plaintiff suffers from
certain physical impairments caused by a 1995 work-related injury that requires Plaintiff to
utilize crutches when he walks.
The Broome County Family and County Court Building was designed in 1997 and
was constructed on Hawley Street in the City of Binghamton next to the George Harvey

11

Justice Building and across the street from the Governmental Plaza.10 The building was
opened to the public in August 1999. The property is bordered by Collier Street on the
west and Exchange Street on the east. Behind the Family and County Court building is
the Broome County Courthouse. Hawley Street, Collier Street and Exchange Street are
streets under the jurisdiction of the City of Binghamton and Broome County does not set
parking regulations for these streets. There is no on-site public parking for the Family and
County Court Building.
The City of Binghamton provides on-street metered public parking on Exchange
Street next to the Family and County Court Building. There is a metered handicapped
parking spot on Exchange Street in front of the former Broome County Library. The City of
Binghamton provides metered parking with a designated metered handicapped parking
spot on Isabella Street which abuts the Broome County Office Building and runs
perpendicular to Hawley Street across from the Family and County Court Building. The
City provides metered handicapped parking spaces on Hawley Street in front of
Binghamton City Hall. The City provides public parking in a parking garage on Collier
Street which is across the street from the George Harvey Justice Building. There are
handicapped parking spaces in this garage. The garage is approximately three hundred
yards to the entrance of the Family and County Court Building.
Plaintiff contends that while there are handicap parking spots (a) across the street
from the Broome County Family and County Court Building, Am. Compl. ¶ 55, (b) public
paid parking on Isabella Street on the side of the Broome County Family and County Court

10

The Governm ental Plaza consists of the Broom e County Office Building, the State Office Building
and Bingham ton City Hall.

12

Building, Am. Compl. ¶ 51, and (c) two handicap parking spaces in front of the George
Harvey Justice Building next door to the Broome County Family and County Court Building
(these spots being purportedly installed based upon Plaintiff’s request, Am. Compl. ¶¶ 52,
67), “one more [spot] is authorized [in front of the George Harvey Justice Building] and
there is still no spot in front of the Family Court Building.” Am. Compl. ¶ 68 (First Cause of
Action). Although Plaintiff has been able to attend Broome County Family Court
proceedings, see Am. Compl. ¶¶ 28, 55, and was aware of the existing handicap parking
spots at the time of his Family Court proceedings, see Am. Compl. ¶¶ 60-67, he asserts
that he “refused to attend” his Family Court proceeding on November 13, 2009 “due to the
fact that there is no handicapped parking in front of the Family Court Building.” Am.
Compl. ¶ 62.
c. Discussion
Plaintiff asserts both substantive and procedural due process claims related to the
Department of Social Services’s investigation.
1. Substantive Due Process
It is well-settled that the Due Process clause guarantees “the interest of a parent in
the custody of his or her children as ‘a fundamental, constitutionally protected liberty
interest.'“ Kia P. v. McIntyre, 235 F.3d 749, 758 (2d Cir. 2000)(quoting Gottlieb v. County
of Orange, 84 F.3d 511, 518 (2d Cir.1996)). Here, however, Defendant did not interrupt
Plaintiff’s protected liberty interest in the custody of his child. Rather, any interruption of
Plaintiff’s custody rights to his son was effectuated by the independent determination of
Family Court Judge Lambert based on Ms. Anesi’s visitation modification petition instituted

13

before DSS became involved.11 Thus, Plaintiff has no substantive due process deprivation
claim against Defendant based on the liberty interest in the custody of his son. See
Daniels v. Murphy, 2007 WL 1965303, at * 4 (E.D.N.Y. July 2, 2007).12 Moreover, Plaintiff
fails to make sufficient allegations of a municipal “policy” for imposition of § 1983 liability
on Defendant. See Tenenbaum v. Williams, 193 F.3d 581, 597 (2d Cir. 1999)(citing Monell
v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978));
see also Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir.1991)(In order
to establish municipal liability, “a plaintiff must show that the violation of his constitutional
rights resulted from a municipal custom or policy.”).
Even assuming, arguendo, that a fact finder could conclude that Defendant
facilitated the deprivation of Plaintiff’s liberty interest, perhaps by the failure to properly
train or supervise its case workers, the facts fail to support a viable substantive dues
process claim. As Judge Suddaby wrote,
It has long been settled in this Circuit that “a parent's interest in the custody
of a child [is] a constitutionally protected liberty interest subject to due
process protection.” Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104
(2d Cir. 1999) (internal quotation marks and citation omitted ). “To prevail on
a claim that this right has been violated, plaintiffs must demonstrate that the
government action was so shocking, arbitrary, and egregious that the Due
Process Clause would not countenance it even were it accompanied by full
procedural protection.” Sutton v. Tompkins County, 617 F. Supp.2d 84, 93

11

The facts indicate that DSS becam e involved after Fam ily Court Judge Pines ordered a FCA
Section 1034 investigation based on Ms. Anesi’s allegations, and after a Hotline report was generated to the
CPS Unit.
12

(“However, plaintiff's com plaint fails to allege that the CPS defendants interrupted plaintiff's parental
custody, and thereby im plicated plaintiff's due process rights. Indeed, at oral argum ent, plaintiff asserted that
she has never lost custody of her son Thom as, and, thus, that the instant com plaint is unrelated to any
custody proceedings that have occurred in state court. Therefore, because plaintiff has failed to allege any
conduct by the CPS defendants that threatened plaintiff's interest in the custody of her child, the com plaint
fails to state a claim under Section 1983 for violation of plaintiff's substantive due process rights.”).

14

(N.D.N.Y. 2007) (Mordue, C.J.) (internal quotation marks and citation
omitted).
***
“This Circuit has adopted a standard governing case workers which reflects
the recognized need for unusual deference in the abuse investigation
context.” Id. “An investigation passes constitutional muster provided simply
that case workers have a ‘reasonable basis' for their findings of abuse.” Id.
(citation omitted). “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.” Id. at 105 (citation omitted). “[A] mere failure to
meet local or professional standards, without more, should not generally be
elevated to the status of constitutional violation.” Id. at 106 [citation omitted].
“As a result, even a faulty investigation does not necessarily rise to the level
of an unconstitutional investigation.” Id.
This conscious-shocking requirement constitutes one of the elements
necessary to state a claim for a violation of the Fourteenth Amendment
under 42 U.S.C. § 1983. Among the other elements (which include the fact
that the defendants were acting under the color of state law and the fact that
defendants' conduct caused an injury to the plaintiff) is the requirement that,
when they acted, defendants possessed a state of mind more blameworthy
than carelessness or negligence. Specifically, Defendants must have
possessed a state of mind that rose to the level of intent or deliberate
indifference-a state of mind akin to criminal recklessness.
Kenific v. Oswego County, 2010 WL 2977267, at * 13 (N.D.N.Y. July 23, 2010).
Nothing the DSS case workers did in this case arose to the conscious-shocking
level and, as evidenced by the independent finding of Family Court Judge Lambert, the
case workers’ conclusions that there was some credible evidence to believe that Plaintiff
engaged in maltreatment of his son was amply supported by the evidence existing at the
time. Thus, the case worker’s conclusions were reasonable under the circumstances, and
Plaintiff’s complaints of inadequacies in the investigation fail to bring the claim into the
conscious-shocking realm. Similarly, the fact that Ms. Anesi’s Family Court attorney
showed up at the expungement hearing asking, unsuccessfully, to sit in, even if told of the
15

proceeding by the DSS attorney, does not arise to the level of conscious-shocking conduct
such to make out a substantive due process violation.13
Plaintiff’s speculation that DSS case workers conspired with Ms. Anesi to deprive
Plaintiff of his custodial rights to his child is not only unsupported by the evidence, but
contrary to the undisputed facts that DSS became involved after Family Court Judge Pines
ordered DSS to investigate Plaintiff’s conduct and after a Hotline report was generated
regarding Plaintiff’s conduct. Accordingly, the facts demonstrate that Defendant acted in
accordance with its public function and obligation relative to the underlying matter.
Moreover, the underlying facts, as demonstrated by Family Court Judge Lambert’s
findings, supported the case workers’ conclusions regarding Plaintiff’s conduct. No
reasonable fact finder could conclude that the case workers acted with the intent to
improperly deprive Plaintiff of his constitutional right to custody or son, or acted with
deliberate indifference to that right. Accordingly, Plaintiff’s substantive due process claims
are dismissed.
2. Procedural Due Process
Plaintiff also fails to present a viable procedural due process claim against
Defendant based upon his liberty right to the custody of his son. Again, the claim fails
because Defendant did not remove the child from Plaintiff’s custody. Daniels, 2007 WL
1965303, at * 4 (“Similarly, because plaintiff does not allege that a state actor ‘remove[d] a
child from a parent's custody,’ the complaint fails to present circumstances that would
trigger plaintiff's entitlement to the ‘procedures [that] must be afforded to a parent when

13

Defendant asserts that Ms. Anesi’s Fam ily Court attorney attended the expungem ent hearing at Ms.
Anesi’s request because Plaintiff subpoenaed Ms. Anesi to testify at the hearing.

16

the coercive power of the State seeks to separate them’ from their children.”)(quoting Kia
P., 235 F. 3d at 759). Also like the substantive due process claim, Plaintiff fails to make
sufficient allegations of a municipal “policy” causing the alleged procedural due process
violations. See Tenenbaum, 193 F.3d at 597.
Even assuming, arguendo, that a fact finder could conclude that Defendant played
some role in depriving Plaintiff of his constitutional right to custody, the procedural due
process claim fails because Plaintiff was afforded adequate due process by the Family
Court proceeding. See Tenenbaum, 193 F.3d at 593 (“As a general rule ..., before parents
may be deprived of the care, custody or management of their children without their
consent, due process-ordinarily a court proceeding resulting in an order permitting
removal-must be accorded to them.”); Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987)
(due process “would generally require a predeprivation hearing”). The record indicates
that Plaintiff’s custody rights to his son, in the form of a visitation modification order
suspending his visitation, was effectuated after a hearing on then-pending Family Court
petitions including Ms. Anesi’s petition to modify Plaintiff’s visitation rights. That Plaintiff
elected not to attend the hearing does not change the fact that the pre-deprivation hearing
was available to him. Further, there is no indication in the record that Plaintiff sought a
rehearing of the Family Court matter because of his absence, or that he appealed the
Family Court’s determination to the Appellate Division the New York State Supreme Court.
To the extent that Plaintiff asserts that his liberty interest in his good name and
reputation was impaired by the “indicated” report of maltreatment, and assuming without
deciding that Plaintiff satisfies the “stigma-plus” requirement of such a claim, see Paul v.

17

Davis, 424 U.S. 693, 711-12, 96 S. Ct. 1155, 47 L. Ed.2d 405 (1976);14 Valmonte v. Bane,
18 F.3d 992, 999 (2d Cir.1994),15 the claim fails because Plaintiff was afforded a nameclearing expungement hearing before the New York State Office of Family and Children’s
Services ALJ. This hearing allowed Plaintiff to challenge the basis of the case worker’s
determination to “indicate” the report against Plaintiff from the Hotline. To the extent that
Plaintiff asserts that his liberty interest in his good name and reputation was violated by
the content to the FCA § 1034 report provided to the Family Court, Plaintiff was afforded a
name clearing hearing in the Family Court wherein Plaintiff could challenge the results of
the FCA § 1034 investigation.
Plaintiff has failed to establish that he has a constitutional protected property or
liberty interest in any of the state regulations or procedures which, he contends, he was
deprived. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir. 1998)(“Without
more, the fact that defendants violated New York procedural requirements does not
support liability under § 1983.”). For these reasons, Plaintiff’s procedural due process
claims are dismissed.
3. Americans with Disabilities Act
Plaintiff also alleges that Defendant violated the Americans with Disabilities Act
because it did not provide adequate handicapped parking at the Broome County
Family and County Court Building. See Am. Compl. ¶ 68. It is undisputed, however, that

14

(Dam age to a person's reputation is not “by itself sufficient to invoke the procedural protection of the
Due Process Clause.” Rather, loss of reputation m ust be coupled with som e other tangible elem ent in order
to rise to the level of a protectible liberty interest.)
15

(The Second Circuit has interpreted Paul v. Davis’s holding to m ean that “stigm a plus” is required to
establish such a constitutional deprivation).

18

Defendant does not provide public on-site parking at the Broome County Family and
County Court Building; that the City of Binghamton controls the parking on the streets
adjacent to the Broome County Family and County Court Building; and that there were
handicapped parking spaces on the streets and in the parking garage in close proximity to
the Broome County Family and County Court Building that Plaintiff was aware of and
which he utilized to attend some Family Court proceedings. Plaintiff’s claim that the
handicapped spots were inadequate because they were not “in front of the Family Court
Building,” Am. Compl. ¶ 68, fails to state a viable claim under Title II of the Americans with
Disabilities Act. See 42 U.S.C. § 12132.16
To make out a prima facie case under Title II, Plaintiff must allege facts sufficient to
establish that (1) he is a ‘qualified individual' with a disability; (2) that Defendant is subject
to the ADA; and (3) that Plaintiff was denied the opportunity to participate in or benefit
from Defendant's services, programs, or activities, or was otherwise discriminated against
by Defendant, by reason of Plaintiff’s disability. Henrietta D. v. Bloomberg, 331 F. 3d 261,
272 (2d Cir. 2003). Assuming, arguendo, that Plaintiff satisfies the first element, he fails
to satisfy the third element inasmuch as he was able to attend Broome County Family
Court proceedings at the Broome County Family and County Court Building by parking in
available handicap parking spots located in close proximity to the building. Moreover,
according to Plaintiff’s allegations, Broome County officials acted upon Plaintiff’s request
for additional and closer handicap parking spots near the Broome County Family and

16

(Title II of the ADA prohibits discrim ination in public services and specifically provides that “no
qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, program s or activities of a public entity, or be subjected to discrim ination
by any such entity.”)

19

County Court Building by requesting of City of Binghamton officials to instal additional
handicap parking spots. This purportedly resulted in two spots being installed next door to
the Broome County Family and County Court Building and which prompted Plaintiff to
contact Broome County officials to thank them for their efforts. See Am. Compl. 67. In
light of the fact that Defendant did not have authority over the streets surrounding the
Broome County Family and County Court Building, these efforts constituted a reasonable
accommodation under the circumstances and no reasonable fact finder could conclude
otherwise. See Meekins v. City of New York, 524 F. Supp.2d 402, 407 (S.D.N.Y. 2007) (In
determining what constitutes “reasonable accommodations,” the Court looks to federal
regulations implementing both Title II); 28 C.F.R. Pt. 35, App. A. ( “[A] public entity should
provide an adequate number of accessible parking spaces in existing parking lots or
garages over which it has jurisdiction.”)(emphasis added); Ehrlich v. Gatta, 2009 WL
3213715, *3 (S.D.N.Y. Oct. 05, 2009)(“More significantly, nothing in Ehrlich's Complaint
demonstrates that nine handicapped spaces is not “reasonable accommodation” and
therefore sufficient under the ADA.”) see also Henrietta D ., 331 F.3d at 271 (To establish
a reasonable accommodation claim under the ADA, “the relevant inquiry asks not whether
the benefits available to persons with disabilities and to others are actually equal, but
whether those with disabilities are as a practical matter able to access benefits to which
they are legally entitled.”). Accordingly, Plaintiff’s Americans with Disabilities Act claim is
dismissed.
IV.

CROSS-MOTION FOR FINDING OF CONTEMPT
Plaintiff has filed a Notice of Motion seeking, in additional to denial of Defendant’s

20

summary judgment motion, a finding of contempt of court against Kathleen Bednar and
Defendant’s attorney, Robert Behnke, Esq. See dkt. # 41. Other than this mention of
contempt in the Notice of Motion, Plaintiff does not address this issue in his affidavit or
memorandum of law. Inasmuch as Plaintiff has provided no factual or legal basis for his
cross-motion, the motion for a finding of contempt of court is denied.
V.

APPLICATION FOR APPOINTMENT OF COUNSEL
Plaintiff’s application for the appointment of counsel to aid in the drafting of a

second complaint is denied for the reasons stated in Magistrate Judge Peebles’s April 16,
2010 Decision and Order denying the appointment of counsel, dkt. # 14, and because
Plaintiff has failed to timely moved to amend his complaint for a second time. See
Uniform Pretrial Scheduling Order, ¶ 5, dkt. # 12 (“Any application to amend any pleading
in this action shall be made on or before APRIL 30, 2010.”)(emphasis in original).
VI.

CONCLUSION
For the reasons discussed above,
(1) Plaintiff’s appeal of Magistrate Judge David E. Peebles’s January 11, 2011

Order, dkt. # 38, is DENIED and Magistrate Judge Peebles’s January 11, 2011 Order is
AFFIRMED;
(2) Defendant’s motion for summary judgment, dkt. # 39, is GRANTED and all
claims in Plaintiff’s Amended Complaint are DISMISSED;
(3) Plaintiff’s cross-motion for a finding of contempt of court against Ms. Bednar and
Attorney Behnke, dkt. # 41, is DENIED;
and

21

(4) Plaintiff’s application for the appointment of counsel, dkt. # 48, is DENIED.
The Clerk of the Court is directed to close the file in this matter.
IT IS SO ORDERED
DATED:June 1, 2011

22