Argro et al v. Osborne et al

Filing 72

MEMORANDUM-DECISION AND ORDER granting Defendant Marsh's 57 Motion for Summary Judgment; granting in part and denying in part the County Defendants' 64 Motion for Summary Judgment; Dismissing Defendants Marsh, LaVoie, O'Connor an d all the "Doe" defendants; granting the Plaintiffs' 65 Motion regarding discovery materials as stated; and directing the Clerk to designate documents [57-7] and [57-8] as "restricted". This case is trial-ready and the Court will notify the parties of a trial date. Signed by Senior Judge Norman A. Mordue on 3/30/2015. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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DARA ARGRO, CODY BESS AND
MYRNA HORSHINSKI ,
Plaintiffs,
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3:12-CV-910 (NAM/DEP)

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BETTE OSBORNE, Individually and as CHENANGO
COUNTY, NEW YORK COMMISSIONER OF SOCIAL
SERVICES; CRYSTAL CORNELL, in her individual
capacity and in her capacity as a Social Worker for the
Department of Social Services, Chenango County, New
York; LACE-ANN PORTER, in her individual capacity
and in her capacity as a Social Worker for the Department
of Social Services, Chenango County, New York; LINDA
SMITH, in her individual capacity and in her capacity as a
Social Worker for the Department of Social Services,
Chenango County, New York; DEB MUNYAN, in her
individual capacity and in her capacity as a Social Worker
for the Department of Social Services, Chenango County,
New York; JESSICA SMARSMACH, in her individual
capacity and in her capacity as a Social Worker for the
Department of Social Services, Chenango County, New
York; KATHY LaVOIE, in her individual capacity and in
her capacity as a Social Worker for the Department of Social
Services, Chenango County, New York; KELLY O’CONNOR,
in her individual capacity and in her capacity as a Social
Worker for the Department of Social Services, Chenango
County, New York; DET. MARSH of Norwich City Police
Department, Chenango County, New York, in his official and
individual capacities; JOHN DOE, Chenango County Social
Worker, in his individual and official capacities; JANE DOE,
#1 through JANE DOE#2, Chenango County Officers
and employees, to be determined in discovery,
Defendants.
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APPEARANCES:
Neroni Law Office
Tatiana Neroni, Esq.

203 Main Street
Delhi, New York 13753
Attorney for Plaintiffs
Levene, Gouldin & Thompson, LLP
Maria E. Lisi-Murray, Esq., of counsel
450 Plaza Drive
Vestal, New York 13850
and
Levene, Gouldin Law Firm
Erin E. Donnelly, Esq., of counsel
P.O. Box F-1706
Binghamton, New York 13902-0106
Attorneys for County Defendants
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Shantz & Belkin
M. Randolph Belkin, Esq., of counsel
26 Century Hill Drive
Suite 202
Latham, New York 12110
Attorney for Defendant Det. Marsh

Hon. Norman A. Mordue, Senior U.S. District Judge:
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MEMORANDUM-DECISION AND ORDER
INTRODUCTION
In this action under 42 U.S.C. § 1983, plaintiffs claim, inter alia, that defendants searched
their home on a number of occasions and threatened to arrest plaintiff Dara Argro, in violation of
various Federal Constitutional rights. The following motions are pending: motion for summary

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judgment by defendant Detective Rodney Marsh (Dkt. No. 57); motion for summary judgment by
all other named defendants (“County defendants”) (Dkt. No. 64); and motion by plaintiffs to
allow counsel to disclose confidential discovery materials to plaintiffs and a non-party (Dkt. No.
65). As set forth below, Detective Marsh’s motion for summary judgment is granted in its
entirety with prejudice; the County defendants’ motion for summary judgment is granted in part
and denied in part; and plaintiffs’ motion regarding confidential discovery materials is granted to

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the extent set forth herein.
PRIOR MOTIONS
On Detective Marsh’s prior motion (Dkt. No. 6) to dismiss the initial complaint, this Court
issued a decision (Dkt. No. 23) granting the motion to the extent it sought dismissal of the
conspiracy claim and all section 1983 claims against him in his official capacity, and otherwise
denied the motion. In the same decision, the Court granted the County defendants’ dismissal
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motion (Dkt. No. 12) to the extent it sought dismissal of the conspiracy claim and the intentional
infliction of emotional distress (“IIED”) claims arising from events on June 17, 2010 and
December 23, 2010, and otherwise denied the motion. The Court further permitted plaintiffs to
amend and supplement their complaint.
STANDARD ON SUMMARY JUDGMENT

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The party moving for summary judgment must show “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 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this
burden, the burden shifts to the non-movant to adduce evidence establishing the existence of an
issue of material fact. See Linares v. McLaughlin, 423 Fed.Appx. 84, 86 (2d Cir. 2011). If the

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non-movant fails to make such a showing, the movant is entitled to summary judgment. When
deciding a summary judgment motion, the Court must “resolve all ambiguities and draw all
factual inferences in favor of the party opposing the motion.” Johnson v. Killian, 680 F.3d 234,
236 (2d Cir. 2012) (citation omitted). Conclusory statements or mere allegations, however, are
not sufficient to defeat a summary judgment motion. Id. Summary judgment is appropriate
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the

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non-moving party[.]” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
DISCUSSION
Plaintiff Myrna Horshinski was in her 80’s at the time of the incidents alleged. She is the
mother of twins, Diane Davis and plaintiff Dara Argro. At the times in issue, Myrna Horshinski
owned a home in which she resided with Dara Argro, Diane Davis, Diane Davis’ son plaintiff
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Cody Bess, and a child D.T., the son of another of Diane Davis’ sons.
Burk Affidavit
In support of their motion, the County defendants rely in part on the affidavit of their
expert, Margaret A. Burk, Esq., to the effect that, accepting defendants’ version of events,
defendants DSS caseworkers’ conduct was proper. Burk states that it is her opinion that the

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caseworkers “properly investigated the Child Protective Services reports regarding the subject
minor child and properly performed home visits to plaintiffs’ residence in the course of their
investigation”; that there is no evidence “that corroborate[s] the allegations of plaintiffs” that
defendants “conducted an improper CPS investigation”; that “[i]n conducting the home visit as
part of the investigation there is no requirement that a Court Order or warrant is to be obtained”;
and that “[c]aseworkers are trained to request permission of the resident to enter the home by

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advising that an investigation has been commenced requiring a home visit.” Burk further states
that upon reviewing the record and the notes of the defendants caseworkers, there is no evidence:
a) that threats were made to Horshinski regarding placing her in a nursing home; b) that
Horshinski was in her bed or the bathroom at the time of any home visit; c) that a search of
plaintiffs’ underwear drawers was conducted; d) that medications were removed from their

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bottles; e) that physical altercations with any of the plaintiffs occurred; f) that defendants
caseworkers demanded or forced their way into a locked room; or g) that attempts to coerce Argro
to make false statements occurred. Burk states: “It is within a reasonable degree of certainty,
based on the defendant caseworkers’ visits notes and recollections, that a proper investigation was
conducted by the Chenango County Defendants, and there is no independent proof outside the
allegations of plaintiffs that the investigation of the subject minor child by the Department of
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Social Services, Chenango County was improper.” Burk’s affidavit is based on the assumption
that the questions of fact are resolved in defendants’ favor, and thus does not support an award of
summary judgment.
First Cause of Action
The first cause of action of the second amended complaint states a claim by Myrna

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Horshinski and Cody Bess against Chenango County (“County”) and DSS caseworkers Linda
Smith and Deb Munyan.1 Horshinski and Bess allege that on June 17, 2010, Smith and Munyan
came to the home without a search warrant or court order and searched the residence, including
bedrooms and bureau drawers, without permission and despite the protests of plaintiff Dara
Argro, who was present during the search; that Smith and Munyan stated they had a right to
search because that was the “protocol” – apparently referring to a DSS policy; that Smith “hinted

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to” Horshinski that she could “arrange” to have her placed in a nursing home, thus causing
Horshinski great distress; and that this conduct violated the privacy rights of Horshinski and Bess
and their protection against unreasonable searches and seizures, citing the Fourth, Fifth, and
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The caption of the second amended complaint does not name Chenango County Department of
Social Services as a defendant, although plaintiffs name it as a defendant in the heading to the first cause
of action. The Chenango County Department of Social Services is not a proper defendant, and any claim
against it is dismissed.

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Fourteenth Amendments.
Essentially, this cause of action states a claim under the Fourth Amendments’ prohibition
of unreasonable searches, made applicable to the states by the Fourteenth Amendment. “Freedom
from intrusion into the home or dwelling is the archetype of the privacy protection secured by the
Fourth Amendment.” Payton v. New York, 445 U.S. 573, 587 (1980) (citation omitted). Plaintiffs
also cite the Fifth Amendment, presumably intending to state a substantive due process claim.
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The claim is, however, properly analyzed under the Fourth Amendment, and not as a substantive
due process claim. See United States v. Lanier, 520 U.S. 259, 272, n.7 (1997) (“[I]f a
constitutional claim is covered by a specific constitutional provision, such as the Fourth...
Amendment, the claim must be analyzed under the standard appropriate to that specific provision,
not under the rubric of substantive due process.”); Albright v. Oliver, 510 U.S. 266, 273 (1994)

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(“Where a particular Amendment provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that Amendment, not the more generalized
notion of substantive due process, must be the guide for analyzing these claims.” (citation and
internal quotation marks omitted)). Therefore, to the extent that the first cause of action of the
second amended complaint asserts a substantive due process claim, it is dismissed.2
In support of their motion for summary judgment, defendants rely on the affidavit of Deb

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Munyan stating that she did not go to or search the home on June 17, 2010. Munyan further
states that on June 22, 2010, she and Linda Smith conducted a home visit; that Myrna Horshinski,
Diane Davis, and Dara Argro were present; that at no time did any plaintiff refuse to allow them
to enter or request them to leave; that while at the home on June 22, 2010, Munyan and Smith

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Any purported claim under the Ninth Amendment is also dismissed.

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spoke with Davis and Argro about allegations in a Child Protective Services (“CPS”) report
concerning D.T.; that Munyan and Smith did not search the bedrooms and dresser drawers of
Horshinski or Bess; and that she never witnessed Smith threaten to place Horshinski in a nursing
home. She does not allege that they had a court order or warrant or that exigent circumstances
existed.
The deposition testimony of Myrna Horshinski, Dara Argro, and Cody Bess is sufficient
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to raise material questions of fact on the issues of whether Smith and Munyan entered the home
without permission or other justification; whether Smith obtained Horshinski’s permission to
enter and search by threatening to place her in a nursing home; and whether they searched
Horshinski’s and Bess’s bedrooms and bureau drawers.
Resolving all ambiguities and drawing all factual inferences in favor of plaintiffs, the

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Court denies summary judgment dismissing the first cause of action against Smith and Munyan.
The Court also allows the claims against the County to remain, as discussed below in connection
with the sixth cause of action.
Second Cause of Action
The second cause of action, by Myrna Horshinski and Cody Bess against a DSS
caseworker Jessica Szarmach (incorrectly sued as Jessica Smarsmach) and John Doe, claims that

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between December 14 and December 23, 2010, Szarmach and John Doe entered the home
without consent, exigent circumstances, a court order, or a warrant; “burst” into Myrna
Horshinski’s bedroom where she was resting in bed; searched Horshinski’s medicine bottles by
opening them, removing all the pills and counting them; and searched Horshinski’s drawers,
despite the protests of Horshinski and Argro.

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In support of their summary judgment motion, defendants rely on the affidavit of Jessica
Szarmach stating that on December 16, 2010 she received a telephone call from Diane Davis
requesting a home visit; that in response to the request, Szarmach made a home visit to the
residence to investigate a Child Protective Services report which required a safety assessment at
the home where D.T. resided; that on that date Diane Davis and Dara Argro did not refuse
permission to enter but rather let her into the home and agreed to show her around; that Myrna
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Horshinski was not in bed during the visit; and that there was no search of any pill bottles or
dresser drawers. She does not allege that they had a court order or warrant or that exigent
circumstances existed.
As with the first cause of action, to the extent that the second amended complaint asserts a
substantive due process claim, it is dismissed. The deposition testimony of Myrna Horshinski and

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Dara Argro is sufficient to raise a question of fact on the issues of whether Diane Davis requested
the visit and whether Szarmach entered the home and searched Horshinski’s bedroom, pill bottles,
and bureau drawers without permission in violation of the Fourth Amendment. Resolving all
ambiguities and drawing all factual inferences in favor of plaintiffs, the Court denies summary
judgment dismissing the second cause of action against Szarmach under the Fourth Amendment.
The claim against John Doe is dismissed without prejudice.

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Third Cause of Action
The third cause of action, on behalf of all three plaintiffs, is asserted against DSS
caseworkers Crystal Cornell and Lace-Ann Porter. Plaintiffs claim that in December 2010,
Cornell and Porter searched the house without consent, exigency, a court order, or a warrant; that
they advanced towards the bathroom where Horshinski was showering; that when Dara Argro

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protested, Porter pushed Argro against a washing machine, causing bruising; and that Porter then
“burst into the shower” and searched the bathroom. The second amended complaint also claims
that Cody Bess had installed a padlock on his bedroom door, prohibited entry into his bedroom,
left a key available, and instructed his family members to use the key only in case of fire; that
Argro informed Cornell and Porter of Bess’ instructions; and that Porter grabbed the key, opened
the padlock, and proceeded to search the room thoroughly, including looking under the mattress
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and in the bureau drawers. At the time of the search, Porter and Cornell allegedly stated that the
non-consensual search of the entire house, bedrooms, and personal effects of all inhabitants was
part of the agency’s “protocol.” Porter allegedly added that “her government job has absolutely
no responsibility and no accountability to the general public whatsoever, and that’s what makes it
such a great job.”

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All plaintiffs claim infringement of their rights to privacy and protection against
unreasonable search. As stated above, such claims are Fourth Amendment claims. With respect
to Dara Argro’s claim that Porter pushed her against the washing machine, causing a bruise, the
law is that where, as here, the plaintiff does not assert that she was arrested or seized, her claim
for excessive force falls outside the Fourth Amendment and instead is governed by the Due
Process Clause of the Fourteenth Amendment. See Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir.

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1998) (“[O]utside the context of an arrest, a plaintiff may make claims of excessive force under §
1983 under the Due Process Clause of the Fourteenth Amendment.”); Tierney v. Davidson, 133
F.3d 189, 199 (2d Cir. 1998) (same). To determine whether the use of force violated the
plaintiff’s due process rights, the Court must determine whether the force used “shocks the
conscience” by considering the following factors: “[1] the need for the application of force, [2]

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the relationship between the need and the amount of force that was used, [3] the extent of injury
inflicted, and [4] whether force was applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing harm.” Tierney, 133 F.3d at 199
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (brackets in Tierney)). “If the
force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted
were not permanent or severe.” Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987); accord Piper
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v. City of Elmira, 12 F.Supp.3d 577, 587-89 (W.D.N.Y. 2014).
In support of their motions for summary judgment, defendants submit the affidavit of
Crystal Cornell stating that she was not at plaintiffs’ residence in December 2010. She stated that
on March 23, 2011, Diane Davis telephoned her requesting that a caseworker come to the home to
meet with her and D.T.; that on March 28, 2011, Dara Argro telephoned her requesting that a

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caseworker meet with Cody Bess; that on March 29, 2011, Cornell conducted a home visit at the
residence; that she was granted permission to enter for the requested meeting; and that at no time
during the visit was she asked to leave the premises.
Defendants also submit the affidavit of Lace-Ann Porter, stating that in December 2010
she was not present at the residence, she did not search the house, she did not enter the home, she
was not in the vicinity of the home, and she did not conduct a home visit.

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In opposition to the motion, plaintiffs rely on the deposition testimony of Dara Argro, who
stated that Porter came to her house only once, though she was not sure of the date; that during
the incident in question, Cornell and Porter entered without permission; that when Argro told
them to leave, they said they could not leave because they had to investigate; that Porter then
stated: “I love my government job, because ... I have no responsibility to the general public or

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accountability”; that when they started towards door to the first-floor bathroom, Argro attempted
to block them; that Porter then “shoved [her] to the right, not very hard” causing her to bump into
the washing machine; that Cornell then ran into the bathroom; that Argro heard Horshinski
yelling “get out”; and that Porter and Cornell then went upstairs, searched the bedrooms, and,
using Bess’ key which was hanging by the door, thoroughly searched his room despite Argro’s
protests. Horshinski testified that it was Porter who entered the bathroom and looked into the
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shower, and that Horshinski told her to “get out of here.”
The deposition testimony of Argro and Horshinski is sufficient to raise material questions
of fact regarding whether Porter and Cornell conducted a search without consent, exigency, a
court order, or a warrant, including entering the bathroom and Cody Bess’s locked room.
Therefore, plaintiffs’ claims for unreasonable search under the Fourth Amendment withstand

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summary judgment.
Considering the Tierney factors, the Court also finds that Dara Argro’s testimony is
sufficient to raise a question of fact regarding whether Porter used excessive force by pushing
Argro against the washing machine. Accepting the truth of plaintiffs’ allegations for purposes of
this motion, the Court cannot hold as a matter of law that there was a need for the application of
force, that the amount of force used was appropriate in view of the need, and that the force was

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applied in a good faith effort to maintain or restore order. Thus, the third cause of action presents
a substantive due process claim of excessive force sufficient to resist summary judgment.
The Court recognizes that as a result of plaintiffs’ apparent error regarding the date of the
alleged incident, which plaintiffs now claim occurred in July 2011 instead of December 2010, the
affidavits of Crystal Cornell and Lace-Ann Porter are directed towards the wrong date.

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Defendants argue that they “have been denied the opportunity during discovery to search their
files and obtain pertinent records relative to the new alleged date”; “have been denied the
opportunity to properly investigate plaintiffs’ claims with respect to the ‘new date’”; and have
been “denied the opportunity to properly oppose plaintiffs’ claims in the present motion.” The
County defendants do not explain how they would have conducted discovery differently if they
had known the correct date. Their affidavits in support of the summary judgment motion are
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based solely on their own records, and, even if their affidavits set forth denials and averments
directed towards July 2011 instead of December 2010, such affidavits would not warrant an
award of summary judgment dismissing the claims against them, because plaintiffs’ allegations
raise material questions of fact. In addition, their attorney thoroughly cross-examined plaintiffs
regarding the incident, and indeed at one point Dara Argro stated that she thought the incident

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occurred in the summer, not the winter. On this record, the Court does not find that the error
caused prejudice to the County defendants that would warrant dismissal of the cause of action.
Summary judgment dismissing this cause of action is denied.
Fourth Cause of Action
Myrna Horshinski and Cody Bess assert the fourth cause of action against Jane Doe #1
and Jane Doe #2. The cause of action alleges that in September 2011 the Jane Doe defendants

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“attempted to search the house, which attempt was denied to them, and then went on to search
Cody Bess’ vehicle without his consent and over a direct prohibition not to do that.” No one was
able to identify the Jane Doe defendants in their depositions. This cause of action is dismissed in
its entirety without prejudice.
Fifth Cause of Action

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In the fifth cause of action, Dara Argro asserts various federal constitutional violations
and a state law IIED claim against Detective Marsh and DSS caseworkers Kathy LaVoie and
Kelly O’Connor. The second amended complaint alleges that in December 2011, “Detective
Rodney Marsh, acting under the color of state law, together with Social Workers Kelly O’Connor
and Kathy LaVoie, attempted to coerce Dara Argro to make a false incriminating statement
against her identical twin sister with whom Defendant Marsh knew Dara Argro resided together
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and was very close, and threatening that if Dara Argro refuses to do so, she will go to jail.” The
second amended complaint continues: “When making his threats Detective Marsh, as well as
Defendants O’Connor and LaVoie were aware that they were trying to elicit from Dara Argro a
false statement against ... [Diane Davis.]”
In support of their motion for summary judgment, defendants submit the affidavit of

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Kathy LaVoie stating that in December 2011, she did not have any conversation with Dara Argro;
that she did not have or witness any conversation with Argro and Detective Marsh or Kelly
O’Connor in which they were attempting to coerce Argro to make false incriminating statements
in lieu of going to jail; and that at no time has she ever had conversations with Detective Marsh or
Kelly O’Connor that involved threats to incarcerate Argro for refusing to sign papers that
involved Diane Davis.

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Defendants also submit the affidavit of Kelly O’Connor, stating that in or about December
2011 she did not have any conversation with Dara Argro; that in December 2011 she did not
witness a conversation between Argro, Detective Marsh and/or Kathy LaVoie in which they
attempted to coerce Argro to make false incriminating statements in lieu of going to jail; that she
did not at any time submit any papers to Argro for her signature that set forth allegations against

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Diane Davis; and that she did not at any time have any conversations with Detective Marsh
regarding Argro or Davis that involved threatening to incarcerate Argro for refusing to sign a
document.
Regarding this incident, Dara Argro testified in her deposition by counsel for the County
defendants:

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A. But, Kelly O’Connor and well, the whole CPS wanted to take [D.T.] from
Diane and give him to his father, his biological father. And they kept trying
to find reasons, searching, trying to find things that they could use against
Diane to take [D.T.]. And Kelly O’Connor told my sister, Diane, in front of
me that she saw Detective Marsh, and she’s going to be arrested, that
Detective Marsh was going to call her. We didn’t know whether they were
just telling, you know, one of their fibs again or not. So, we didn’t really take
much to heart about it. Diane went and saw [D.T.]. That’s when she had
weekly visits at the County Office Building. And I’d drop her off and I would
pick her up.... So, after that visit, that Kathy LaVoie came to me in the parking
lot holding papers, and all I saw on that paper was Diane did not feed – I
forgot how it went now properly – something about she didn’t feed him or
clothe him, in a sophisticated way of writing, and something else, that she
beats him, in a sophisticated way, like she was, didn’t say beat but it had, what
it meant was she didn’t feed him, clothe him and she beat him. I wasn’t going
to sign it. So, Kathy LaVoie says “you’re sister’s going to jail and you’re
going to jail if you don’t sign this”. I said “I’m not signing anything” and I
left. Then the next day at one o’clock in the afternoon, I remember what time
it was, guess who called the house? Detective Marsh.
Q. Okay.
A. Told Diane – oh, no, I don’t know if it was one – told Diane she had a one
o’clock appointment to see him. Anyway, he made an appointment for Diane
to see him. I knew I was going because ... Detective Marsh called and told
Diane she had to be there. I was shaking in my boots. I know it, because
Kathy LaVoie said if I didn’t sign it I’d be going to jail. And Detective Marsh
called. I was so upset. ... So, I still to this day don’t know whether Detective
Marsh was going to put us in jail if Diane went down there or if he wasn’t.
I think he was in the middle of CPS trying to scare us into signing papers. I
don’t know, I just feel bad for Detective Marsh. He got in this for, I don’t
know what his part was, but he never threatened me. He never said anything
about a confession to me. That was Kathy LaVoie. But Detective Marsh did
call and that’s when we were afraid to come down there. And we never came
and he never came and never arrested us. We never called and canceled and
we never showed up.
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***
Q. Was anyone else with Kathy LaVoie when this conversation with her
occurred?
A. I was leaving this way (indicating). She was behind me with the papers in
my face. I don’t know if somebody was with her or not.
***
Q. Okay. So, the only person you had a conversation with directly about this
alleged statement at the County Office Building was Kathy LaVoie?
A. I think Kathy LaVoie admitted that she wanted me to sign that, didn’t she,
somewhere? I think she did.
***
Q. All right. So, Kelly O’Connor had nothing to do with this incident?
A. Kelly O’Connor is the one that saw Detective Marsh to get Diane in there.
I don’t know why, what she said to get her in there. But Kelly O’Connor told
Diane in front of me if she doesn’t do something or -- anyway, that Detective
Marsh was going to call her, or arrest her, going jail. I don’t know exactly.
I take everything back. What they told Diane I wasn’t – that was hearsay that
Diane told me and I don’t know. But what Kathy LaVoie told me was “your
sister is going to jail”.
Q. Okay. With respect to – so, now you’re telling me you take it back; the
conversations that anyone had with your sister with respect to going to jail
you had no direct knowledge of, you did not overhear?
A. No, what I heard, when I went in the building Kathy LaVoie, Kelly
O’Connor was with [D.T.] when Diane was on the supervised visit with
[D.T.]. I was out, I was not there yet. When I came back to pick Diane up,
Diane was still in there and that’s when, when I was walking in that’s when
she came running out with that paper in her hand saying “Diane’s going to jail
and you’re going to jail too”.
Q. When you say she, this is –
A. Kathy LaVoie.
Q. – Kathy LaVoie?
A. She’s the only one that threatened me. I don’t know of anybody who was
with her because I didn’t turn around to look.
Q. Okay. So, to the best of your understanding, the only one that threatened
you with this false statement was Kathy LaVoie?
A. Yeah, but Kelly O’Connor said the Detective was going to call, was going
to arrest us.
Q. And she said that to you personally?
A. No, she told that to Diane.
Q. But you weren’t there for that –
A. No.
Q. – conversation?
A. No.
Q. So you don’t know that directly?
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A. But I know that Kathy LaVoie –
Q. You don’t know that directly?
A. What I know directly is Kelly O’Connor saw Detective Marsh.
Q. Okay.
A. That’s what I know directly.
Q. All right.
A. I know that, because she said it.
Q. But you weren’t present for the conversations between your sister and
Kelly O’Connor?
A. Diane told me Kelly O’Connor told her she’s going to Detective Marsh to
get her arrested.
Q. I understand that. But you weren’t present between any conversations
between your sister and Kelly O’Connor?
A. No, but after Kelly O’Connor told that to Diane Kathy LaVoie told me the
same thing, that I’m going to jail if I don’t sign it, and about Detective Marsh.
So, guess what, Detective Marsh called. What Kelly O’Connor and Kathy
LaVoie said, I guess, was true.
***
Q. That’s fine. But at some point thereafter though you left the County Office
Building parking lot and went home?
A. Yeah.
Q. Okay, and then when you’re at home is when you received, or someone in
your household received a phone call that you think was from Detective
Marsh?
A. It was from Detective Marsh.
Q. Okay. Who receives that call?
A. I did.
Q. Okay.
A. I picked up the phone.
Q. And just tell me what that conversation consisted of?
A. Detective Marsh, I believe, said that he had talked to Kelly O’Connor and
that Diane needs to be there, I think, at one o’clock the next day.
Q. Diane needs to be where?
A. At the police station.
Q. Okay.
A. At the City police station at one o’clock. I believe it was one o’clock the
next day.
Q. Okay. Did they tell you what that was for?
***
A. He would not say. I asked him.
***
Q. And did he say you had to be there at one o’clock or just your sister?
A. They mentioned my sister Diane but Kelly, Kathy LaVoie told me I was
going to jail too.
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Q. No. I know that. I just want to stay on the conversation. Detective Marsh
told you on the phone that Diane needed to be at the City Police Department
at one p.m. the next day?
A. Yes.
Q. Did he tell you you needed to be there the next day?
A. No. ....
Q. Okay, and did that conclude your conversation with him?
A. Yeah, that was it.
***
A. But we never heard from him either, up to today. I still haven’t heard from
Detective Marsh.
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When deposed by counsel for Detective Marsh, Dara Argro testified:

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Q. Other than that one phone call that you said when he called your house –
A. Yes.
Q. – have you ever had any other contact with Detective Marsh?
A. No. ...
***
Q. Well, Kathy LaVoie is the one that came out of the building with the
papers, right?
A. Yeah.
Q. She said “Detective Marsh will be calling you”?
A. She said they were going to jail, but – I’m trying to do this right. They told
Diane that Kelly O’Connor saw Detective Marsh about Diane. Diane told me
that before, you know, I saw her that day. But then Kathy LaVoie came out
with paperwork for me to sign saying if I don’t sign it I’m going to jail too. So
–
Q. So, at some point had you ever heard of Detective Marsh’s name before?
A. Never in my life.
Q. Before Kathy LaVoie mentioned it?
A. Never before in my whole entire life.
***
Q. And what happened next [after Dara Argro refused to sign the papers and
Kathy LaVoie left]?
A. Then Diane came out. After a little while Diane came out and Diane told
me that Kelly O’Connor saw Detective Marsh and said that I’m going to jail.
I told her “they said I’m going to jail too”. I said “because I didn’t sign the
paperwork”....
Q. So, when Diane came out this is when she mentioned that about Kelly
O’Connor saying Detective Marsh?
A. Yeah, I think so. I think that’s after she came out. I’m trying to piece it
together. It happened so quick and it happened so long ago. All I know is
Detective Marsh definitely called that house and told Diane she had to be
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there at one o’clock.
Q. After Diane came out the two of you got in the car and then –
A. I told her what happened about the paperwork.
Q. Right.
A. And Diane mentioned something about the, I think she told me about
Detective Marsh, about Kelly O’Connor. I don’t know how it all went
together, but this is how this went. Kelly O’Connor went to Detective Marsh,
said something about Diane. Kathy LaVoie came to me to sign those papers,
those false statements, or I would be going to jail. We didn’t think much of it
because they’ve threatened us before. We came home.
***
Q. And how long were you home before you got this phone call?
A. I think it was like an hour, maybe half an hour. ...
***
A. I answered the phone.
Q. What’s the voice on the other end say? ...
A. I said “hello” and he said “this is Detective Marsh calling from the
Norwich City Police Department”.
***
Q. What else was said?
A. He asked if Diane was there. ... She wasn’t there when the phone call came.
***
Q. Okay. So, this person asks for Diane and then your response was?
A. “She’s not here right now”.
Q. Okay, and then what was the next thing that was said?
A. Well, “tell her that she needs to come down to the City police station at one
o’clock” to see him, you know, Detective Marsh, the next day.
***
Q. What else was said in that phone conversation?
A. I said “what’s it about”. He said he talked to Kelly O’Connor, but he
wouldn’t disclose what the conversation, what the problem was. He wouldn’t
discuss it. Diane had to be there she said.
Q. You asked “what’s it about”? He said “I have spoken to Kelly O’Connor”?
A. No. When I said “did Kelly O’Connor speak with you”, he said “I can’t
disclose any” – because we already knew that Kelly O’Connor talked to him.
So, I said “did Kelly O’Connor talk to you?” He said “I can’t disclose any
information, but Diane needs to see me at one o’clock”.
Q. So, you asked this person, essentially, “what’s this about, did you speak to
Kelly O’Connor”?
A. Yes. I said, I said “Kelly O’Connor spoke to you because that’s what we
were told”. I said “Kelly O’Connor spoke to you, right? Is it about what
Kelly O’Connor told you”, something like that I told him. I wanted to know
what Kelly O’Connor said, why Diane was being arrested, and he wouldn’t
disclose that information.
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Q. Okay. What was said next?
A. Nothing. I said “I’ll tell her”.
Q. Okay.
A. And I hung up.
Q. How long was the conversation?
A. Oh, not long. A minute, maybe less.
Q. Did the person on the other end of the phone threaten to arrest you?
A. No.
Q. Did the person on the other end of the phone threaten to put you in jail?
A. No. Kathy LaVoie did.
Q. And did the person on the other end of the phone say that you had to be
there at one o’clock in the afternoon that next day?
A. No, but Kathy LaVoie said I was being arrested too.
***
Q. And you were never arrested?
A. Never.
***
Q. And you’ve had no further contact with Detective Marsh other than this
one phone call?
A. Yeah, I never met the man. All I know is Kelly O’Connor told him to call,
I guess. I don’t know what, that’s speculation. I don’t want to speculate. But,
I do speculate that Kelly O’Connor went to Detective Marsh, probably wanted
Detective Marsh maybe to scare Diane into signing papers like Kathy LaVoie
did to me, you know. I don’t know what the problem, I don’t know why
Detective Marsh, why CPS went to him. I still don’t know. And I don’t know
what that one o’clock thing was all about.
When Dara Argro’s deposition testimony is stripped of speculation, it is evident that her
cause of action is based solely on what Kathy LaVoie allegedly said to her in the parking lot.
With respect to Detective Marsh and Kelly O’Connor, there is no claim that they were present in

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the parking lot, nor did Argro hear them make any statements at any time regarding the alleged
matter to Kathy LaVoie or anyone else. Detective Marsh’s alleged telephone call to the home
later the same day, during which he merely asked to speak to Davis and requested that Davis
come see him the next day, does not aid Argro in stating a cognizable claim. Dara Argro’s
deposition testimony does not support a claim against Detective Marsh or Kelly O’Connor.
As for her claim against Kathy LaVoie, Dara Argro alleges only that LaVoie approached
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her in the parking lot and told her she could be arrested if she did not sign a statement against
Davis. LaVoie did not threaten to arrest Argro on the spot; indeed, Argro knew that LaVoie was
a DSS caseworker, not a police officer. Argro did not sign the statement. Rather, she simply
walked away and went home. Neither Argro nor Davis was arrested by Detective Marsh or
anyone else. This brief encounter is the only such incident alleged. Thus, there is no coerced
statement, no consequence for refusing to sign, no detention, no lengthy or repeated incidents, no
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public humiliation or defamation, and no other basis to find a Constitutional violation.
In opposition to the motion, plaintiffs submit the affidavit of Diane Davis stating as
follows:

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25. In December of 2011 I came to the County Building to visit with my
grandson [D.T.] according to the schedule of visitation.
26. There I was not given visitation, but I was searched and interrogated.
27. I was interrogated at that time by Kelly O’Connor and Kathy Lavoie.
28. Kelly O’Connor told me that she was going to see Detective Marsh about
me and that I was going to jail.
29. Both Kelly O’Connor and Kathy Lavoie tried to make me admit that I did
not provide proper clothing, care or food to my grandson.
30. I denied it because it was not true.
31. At some point during interrogation Kathy Lavoie left the room, while
Kelly O’Connor remained.
32. Later on my sister Dara told me that Kathy Lavoie confronted her in the
parking lot and tried to have her sign a statement against me about the same
issues, that I did not provide proper clothing, food or care to my grandson.
33. The next day after I got home, the phone rang and it was Detective Marsh.
34. My sister Dara told me before that Detective Marsh called earlier.
35. Detective Marsh told me that Kelly O’Connor talked with him and he
needs to see me down at the police station.
36. I asked whether I was going to be arrested if I come, and Detective Marsh
did not give me a “yes” or “no” and simply told me to come.
Even accepted as true, Diane Davis’ allegations do not add anything to Argro’s claim. Assuming
for the sake of argument that they support a claim by Davis, she is not a party.
Also in opposition to Detective Marsh’s summary judgment motion, Dara Argro submits
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an affidavit stating:

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3. The deposition of April 3, 2014 was one-sided, only the Defendants’
attorneys were asking questions, and my attorney did not have an opportunity
to ask me questions and bring out the details that I am putting into this
affidavit.
4. I was not allowed to elaborate if questions covering additional details were
not asked.
5. When social worker Kathy Lavoie tried to coerce me to sign papers against
my twin sister Diane, she said that social worker Kelly O’Connor saw
detective Marsh and that Diane is going to jail, and that if I do not sign the
paperwork against her, I will be going to jail, too.
6. I understood that there was at that point an agreement between the social
services and Detective Marsh and the Norwich City Police Department to put
my twin sister Diane in jail anyway, and that I was going to be put in jail by
Detective Marsh and social services unless I sign the paper they were insisting
that I should sign.
7. When Defendant Marsh called me the next day after that conversation, no
matter what he said, I perceived it as a threat and as a follow-up on my
conversation with CPS, and I [became ill].
***
16. When Kathy Lavoie told me that I will be going to jail unless I sign
incriminating papers against Diane, while I knew that the Norwich City Police
already started investigation against Diane, and already interrogated her, it
appeared very real to me.
17. I was scared because of the ongoing police investigation against Diane
where I was present at her interrogation, and now I was directly threatened
when Kathy Lavoie told me that social worker Kelly O’Connor, a
Co-Defendant herein, already talked to Detective Marsh, and I believed that
they already reached the agreement to pursue me and put me in jail, as Kathy
Lavoie claimed.
18. When Detective Marsh called the next day and invited Diane to the police
station, the same way she was invited previously, Detective Marsh knew or
should have known that I accompany her everywhere.
19. Moreover, Detective Marsh asked specifically whether I was going to be
bringing Diane and was going to be present.
20. I had a real ground to fear that the “invitation” was to carry out the threat
and put both of us in jail, me for refusing to falsely incriminate my sister, as
Kathy Lavoie stated to me it will happen because of what Kelly O’Connor
told her after her conversation with Detective Marsh.
This attempt to salvage Argro’s claim is unavailing. It adds only that, while the two were
in the parking lot, LaVoie told Argro that “Kelly O’Connor saw Detective Marsh and that Diane
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is going to jail, and that if I do not sign the paperwork against her, I will be going to jail, too.”
Inasmuch as Argro – who knew LaVoie was a DSS caseworker and not a police officer – did not
sign, simply walked away, and was not seized, the Court finds no First or Fourth Amendment
violation. Nor is there a substantive due process claim; this single brief incident falls far short of
satisfying the “shocks the conscience” standard. Rochin v. California, 342 U.S. 165, 172 (1952).
In addition, any state law claim for IIED also fails. Kathy LaVoie’s alleged statements do not
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meet the “high threshold for conduct that is ‘extreme and outrageous’ enough to constitute
intentional infliction of emotional distress.” Bender v. City of New York, 78 F.3d 787, 790–91 (2d
Cir. 1996).
The Court adds that, to the extent that the allegations in Dara Argro’s affidavit differ from
her deposition testimony and may be more favorable to her, it is well established in this circuit

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that “a party may not create an issue of fact by submitting an affidavit in opposition to a summary
judgment motion that, by omission or addition, contradicts the affiant’s previous deposition
testimony.” Kennedy v. City of New York, 570 Fed.Appx. 83, 84-85 (2d Cir. 2014). Argro
attempts to “explain away” her deposition testimony by stating in her affidavit that she was
“extremely upset at the time of the deposition” due to the medical condition of her mother Myrna
Horshinski, who had already been deposed the same day. Argro states that defendants’ attorneys

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refused to conduct the deposition at a location near their home; that plaintiffs had to pay for
medical transport; and that the deposition was “an extreme physical hardship on [her] mother.”
Myrna Horshinski also submits a statement in opposition to summary judgment setting forth her
medical condition, the difficulty of making the trip to the location of the deposition, and her pain
and confusion during the deposition. These allegations do not warrant disregarding the portions

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of Dara Argro’s deposition that do not favor plaintiffs. Specifically with respect to the location of
the deposition, the record shows that plaintiffs’ attorney had requested (Dkt. No. 44) that the
depositions of plaintiffs be held in Oxford, New York. Magistrate Judge Peebles issued a Text
Scheduling Notice (Dkt. No. 45) scheduling a telephone conference on January 22, 2014 to
address this and other issues. The Text Minute Entry (Dkt. No. 46) for the January 22, 2014
telephone conference shows that plaintiffs’ counsel failed to appear and had not made a request to
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be excused from the telephone conference; that plaintiffs’ depositions were scheduled to occur in
Binghamton, New York; that Magistrate Judge Peebles scheduled another telephone conference
for February 6, 2014; and that he “admonished [plaintiffs’ counsel] that failing to appear for
future conferences could possibly result in the issuance of sanctions.” By email to Magistrate
Judge Peebles’ chambers on January 23, 2014 (Dkt. No. 47) plaintiffs’ counsel requested that the

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admonishment be vacated and that the February 6, 2014 telephone conference be adjourned, but
did not request a change in the location of the depositions. By Text Order the same day (Dkt. No.
48) Magistrate Judge Peebles denied the request to withdraw the admonishment and granted the
request to adjourn the telephone conference. On January 24, 2014 (Dkt. No. 51) plaintiffs’
attorney requested reconsideration of the denial of vacatur of the admonishment; again she did not
request a change in the location of the depositions. On the same day (Dkt. No. 52) Magistrate

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Judge Peebles denied the reconsideration request. Plaintiffs’ attorney did not appeal to this Court.
On this record, plaintiffs cannot complain of the location of the depositions. Moreover, a review
of the deposition transcripts reflects that plaintiffs’ attorney was present throughout the
depositions and that numerous breaks were taken. In addition, with respect to Myrna Horshinski,
the Court does not rely on her deposition with respect to any rulings against plaintiffs on this

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motion, nor does Horshinski set forth anything in her affidavit that contradicts her deposition
testimony in any significant manner. The Court rejects plaintiffs’ attorney’s opinion that the
deposition testimony given by Dara Argro and Myrna Horshinski “may be considered invalid.”
There is no evidence upon which a rational trier of fact could find for Argro on the fifth
cause of action. The fifth cause of action is dismissed.
Sixth Cause of Action
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All three plaintiffs assert the sixth cause of action against the Chenango County
Commissioner of Social Services, Bette Osborne, in both her individual and official capacities.
The second amended complaint claims that at the times in issue, Bette Osborne was a policy
maker; that she “knew that [DSS] employees are routinely entering people’s homes and
conducting searches”; that she failed to establish “proper training policies of her personnel

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regarding individual’s constitutional right against self-incrimination, coercion, as well as
constitutional right to privacy, including but not limited to privacy in individual’s person,
personal effects and documents, vehicles and homes and against unreasonable search and
seizure”; and that she established an unwritten policy or “protocol” pursuant to which DSS
employees “were allowed to enter anybody’s home without a search warrant or court order and
without care for protestations of privacy and objections to searches, and do whatever they like.”

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In moving for summary judgment, Bette Osborne submits an affidavit stating:
3. At all times relevant, my duties were in a supervisory capacity of the named
defendant caseworkers.
4. At no time did I have personal involvement or contact with any of the
named plaintiffs.
5. I did not participate directly with the numerous investigations that were
commenced as a result of Child Protective Services reports made.
6. I did not create the policies in which defendant caseworkers adhered to in
conducting their investigations in response to Child Protective Services
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reports made.
7. At all times relevant, I am not aware of any improper investigations
performed by defendant caseworkers with respect to the Child Protective
Services reports involving plaintiffs.
8. I was not apprised of any violation as a result of improper investigation by
the named defendant caseworkers through a report or verbal acknowledgment.
9. At all times relevant, I never personally made a home visit to the residence
of plaintiffs, nor was involved in any conferences or meetings with regard to
the progress of plaintiffs’ case or fielded any phone calls from plaintiffs or
involving plaintiffs’ case.
The Court first addresses plaintiffs’ claims against Bette Osborne in her individual
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capacity. It is well established that “Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). To recover against a government-official defendant, the
plaintiff must show that each official, “through the official’s own individual actions, has violated
the Constitution.” Id.

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The Second Circuit’s formulation in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), has
long been the law in the Second Circuit regarding supervisory liability. Colon held that personal
involvement of a supervisory defendant may be shown by evidence that he or she: (1) participated
directly in the alleged constitutional violation, (2) failed to remedy a violation after learning of it
through a report or appeal, (3) created a policy or custom under which unconstitutional practices

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occurred, or allowed the continuance of such policy or custom, (4) was grossly negligent in
managing subordinates who committed constitutional violations, or (5) exhibited deliberate
indifference by failing to act on information indicating that unconstitutional acts were occurring.
See Colon, 58 F.3d at 873. The impact on Colon of the Supreme Court’s decision in Iqbal is still
an open question in this circuit. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir.
2013) (noting that Iqbal “may have heightened the requirements for showing a supervisor's
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personal involvement with respect to certain constitutional violations,” but declining to reach the
issue).
Under Iqbal, the allegation in the second amended complaint that Bette Osborne “knew
that [DSS] employees are routinely entering people’s homes and conducting searches” does not,
without more, support a claim for supervisory liability. Iqbal expressly rejected as a basis for
liability government officials’ “knowledge and acquiescence in” their subordinates’
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unconstitutional conduct, because such liability would amount to holding the officials
“accountable for the misdeeds of their agents.” Id. at 677. Plaintiffs allege more than knowledge
and acquiescence, however. They allege that, while knowing of the unconstitutional conduct of
her subordinates, Bette Osborne failed to establish proper training policies concerning
constitutional rights and established a policy or “protocol” pursuant to which DSS employees

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“were allowed to enter anybody’s home without a search warrant or court order and without care
for protestations of privacy and objections to searches, and do whatever they like.” If proven,
such allegations would amount to a showing that, through her own individual actions in carrying
out her responsibilities as DSS Commissioner, Bette Osborne caused the constitutional violations
of which plaintiffs complain. Imposing liability based on such a showing would be consistent
with Iqbal, id. at 676, and would satisfy Colon’s third category, i.e., that Bette Osborne “created a

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policy or custom under which unconstitutional practices occurred, or allowed the continuance of
such policy or custom.”3 58 F.3d at 873.
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The effect of Iqbal on “policy or custom” claims under the third Colon category is unsettled.
The Court agrees with the district court in Bellamy v. Mount Vernon Hosp., 2009 WL 1835939, *6
(S.D.N.Y. Jun. 26, 2009), aff’d 387 Fed.Appx. 55 (2d Cir. 2010), that the third category “pass[es] Iqbal’s
muster” to the extent that the supervisor may be held liable if he or she creates a policy or custom under
which unconstitutional practices occurred. Whether the reasoning in Iqbal also allows for liability where
the supervisor “allowed the continuance of such policy or custom” in the type of situation presented by

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Plaintiffs have presented sufficient evidence to create a question of fact and withstand
summary judgment on the claim that Bette Osborne violated their constitutional rights through
her own individual actions in establishing and continuing an unconstitutional policy or custom.
According to plaintiffs, Deb Munyan, Linda Smith, Crystal Cornell, and Lace-Ann Porter told
them that DSS “protocol” authorized them to conduct searches without consent, a court order, or
a warrant. Dara Argro also testified that Lace-Ann Porter stated: “I love my government job,
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because ... I have no responsibility to the general public or accountability.” Moreover, plaintiffs
allege repeated violations of similar nature committed by a number of different DSS caseworkers.
Summary judgment dismissing the sixth cause of action as to defendant Bette Osborne in her
individual capacity is denied.
The claim against Bette Osborne in her official capacity is a claim against the County.

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“[A] municipality cannot be held liable solely because it employs a tortfeasor – or, in other words,
a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v.
New York City Dept. of Social Servs., 436 U.S. 658, 691 (1978). “Instead, it is when execution of
a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts

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the instant case is less clear. Compare Bellamy, 2009 WL 1835939 at *6 (“[A] supervisor is only held
liable ... if that supervisor creates a policy or custom under which unconstitutional practices occurred.”
(emphasis added)), with Butler v. Suffolk County, 289 F.R.D. 80, 94 (E.D.N.Y. 2013) (stating that a
supervisory official can be held liable if he created a policy or custom under which the unconstitutional
practices occurred, or allowed the continuance of such a policy or custom); also see discussion in Doe v.
New York, 2015 WL 1221495, *5 (E.D.N.Y. Mar. 16, 2015). This Court is inclined to view the entire
third category in Colon as proper under Iqbal’s reasoning; liability for allowing the continuance of an
unconstitutional department-wide policy or custom amounts to liability for the supervisor’s own
misconduct, not merely for the misdeeds of the supervisor’s agents. See Iqbal, 556 U.S. at 677.
Likewise, in circumstances such as those presented here, providing improper training which authorizes
unconstitutional conduct would seem to amount to misconduct by the supervisor. In any event, because
the question of whether or to what extent Iqbal affects Colon with respect to the third category is
unresolved, the Court treats the entire third category of Colon as good law.

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may fairly be said to represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983.” Id. at 694; accord Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000)
(“[T]he court must determine whether that official had final policymaking authority in the
particular area involved.”). Defendants do not deny that, as County DSS Commissioner, Bette
Osborne is the official with final policymaking authority in the particular area of social services in
the County. Therefore, summary judgment dismissing the sixth cause of action as to Bette
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Osborne in her official capacity is also denied.
Qualified Immunity
Defendants also argue that they are entitled to summary judgment on the ground that their
actions were protected by qualified immunity. Government officials performing discretionary
functions enjoy a qualified immunity shielding them from civil damages liability as long as their

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actions could reasonably have been thought consistent with the rights they are alleged to have
violated. See Anderson v. Creighton, 483 U.S. 635, 639 (1987).
Defendants here contend that, accepting their version of events, their conduct was proper.
If the jury accepts plaintiffs’ version of events, however, defendants could not reasonably have
believed that their conduct was consistent with plaintiffs’ rights. Indeed, neither defendants nor
their expert, Margaret A. Burk, Esq. assert that, if plaintiffs’ allegations are true, defendants could

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reasonably have believed that the actions complained of did not violate plaintiffs’ rights.
Accordingly, summary judgment on the ground of qualified immunity is denied.
Sealed Documents
Finally, the Court addresses plaintiffs’ motion (Dkt. No. 65) for leave to show certain
materials filed under seal (Dkt. No. 64-2) to her clients and an unspecified non-party. In view of

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the grounds upon which the Court decides the summary judgment motions, these documents are
not relevant to the Court’s determinations herein. Even if the Court were to consider these
documents, they would not result in different rulings, because the record sufficiently raises
material questions of fact on the causes of action as to which summary judgment is denied, and
the documents do not bear on the reasons for summary judgment dismissing the those causes of
action that are dismissed. Thus, there is no prejudice to plaintiffs. If necessary in preparation for
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trial, plaintiffs’ counsel may show the materials to plaintiffs provided that they sign the
confidentiality agreement as noted in the letter (Dkt. No. 69) from counsel for the County
defendants. As for non-parties, counsel are directed to agree to a solution on a case-by-case basis
prior to trial.
Restricted Documents

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The Court directs the Clerk of the Court to designate the following documents as
“Restricted” because the name of D.T., a child born in 2005, has not been redacted: Dkt. Nos. 577, 57-8. Counsel are directed to advise the Court immediately if they notice any other docket
entries that should be restricted.
CONCLUSION
It is therefore

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ORDERED that the motion for summary judgment (Dkt. No. 57) by Detective Marsh is
granted in its entirety with prejudice; and it is further
ORDERED that the motion by the County defendants for summary judgment (Dkt. No.
64) is granted in part and denied in part as follows:
•

The First Cause of Action may proceed solely on the Fourth Amendment
claims by Myrna Horshinski and Cody Bess against Chenango County, Linda
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Smith, and Deb Munyan;
The Second Cause of Action may proceed solely on the Fourth Amendment
claims by Myrna Horshinski and Cody Bess against Jessica Szarmach
(incorrectly sued as Jessica Smarsmach); and the claims against the “John
Doe” defendant are dismissed without prejudice;

•

The Third Cause of Action may proceed solely on all three plaintiffs’ Fourth
Amendment claims against Crystal Cornell and Lace-Ann Porter, and on Dara
Argro’s Fourteenth Amendment Substantive Due Process Claim against LaceAnn Porter;

•

The Fourth Cause of Action is dismissed in its entirety without prejudice;

•

The Fifth Cause of Action is dismissed in its entirety with prejudice; and

•

The Sixth Cause of Action may proceed on behalf of all plaintiffs against
Bette Osborne in her individual and official capacity; and

•

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•

All other claims are dismissed with prejudice;

and it is further
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ORDERED that defendants Detective Marsh, Kathy LaVoie, Kelly O’Connor, and all
“Doe” defendants are dismissed from the case; and it is further
ORDERED that the motion by plaintiffs (Dkt. No. 65) regarding discovery materials is
granted to the extent set forth herein; and it is further
ORDERED that the Court directs the Clerk of the Court to designate the following

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documents as “Restricted” because the name of D.T., a child born in or about 2005, has not been
redacted: Dkt. Nos. 57-7, 57-8; and counsel shall advise the Court immediately if they notice any
other docket entries that should be restricted; and it is further
ORDERED that the case is trial-ready, and the Court will notify the parties of a trial date.
IT IS SO ORDERED.

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DATED: March 30, 2015
Syracuse, New York

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