Van Oss et al v. New York State et al
Filing
30
OPINION AND ORDER, defendants' cross-motion to dismiss is granted in part and denied in part. Defendants' cross-motion for summary judgment is denied. A preliminary injunction hearing has been scheduled for May 17, 2011, at 10:00 a.m. in Courtroom 15C. Counsel should be prepared to also discuss issues relating to class certification. The Clerk of the Court is directed to close defendants' cross-motions (Document # 13 ). SO ORDERED. (Signed by Judge Shira A. Scheindlin on 4/25/2011) (lnl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------)(
ELIZABETH VAN OSS, JOAN LUCIEN,
CHASHEM LUCIEN, JIMMIE PUGH, and
PATRICIA LOCKETT, each individually
and on behalf of all others similarly situated,
OPINION AND ORDER
10 Civ. 7524 (SAS)
Plaintiffs,
DELORESJACKSONandNATASHA
HERBERT, each individually and on behalf
of all others similarly situated,
I_-.~~.
Intervening Plaintiffs,
:
~,~::::-~,,,~,-~
;.,., .. ~-.-. .,',
,,-
(~:",.. ,.
•
- agamst -
, :,\'
j :
.\
'V
.t
\'
'
! .:
,\ l;-,r,c1
,,'
NEW YORK STATE; GLADYS CARRION \\\{:::"\,\'.". ,',
,\ .. :. '"
. . . .- \:
individually and in her capacity as the
.
.... ·.:-..'q[igV:-~
~fo~~:::n::;~~~~;;e~:~s~~~:~~~e
t
'~~~;~~-
SAMPLE, individually and in her capacity
as Director, State Central Register, New
York State Office of Children and Family
Services; and CHARLES CARSON,
individually and in his capacity as Assistant
Deputy Counsel and Supervisor, Child
Welfare Services Bureau,
Defendants.
-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
This putative class action, brought pursuant to 42 U.S.C. § 1983
1
("section 1983"), challenges the alleged failure by the State of New York to: (1)
determine whether indicated instances of child abuse and/or maltreatment are
relevant and reasonably related ("R&R") to child-related employment or other
child-related activities; and (2) use objective guidelines in conducting R&R
reviews. 1 Plaintiffs seek certification of this action as a class action and
certification of the following class, consisting of
all persons who are or will be the subjects of "indicated"
reports with the State Central Register and who have timely
requested, or will timely request, a "422" or "424-a"
amendment or expungement of the Report and who have
not had, or will not have, their Reports administratively
reviewed to determine whether the Report is reasonably
related to employment or licensure in the child care field. 2
Plaintiffs further seek a preliminary injunction:
A.
directing that for all
subjects whose reports
review their reports to
reasonably related to
licensure; and/or
current and future 424-a
are founded, the defendants
determine whether they are
child care employment or
See Guidelines for Determining Whether Indicated Instances of Child
Abuse and Maltreatment Are Relevant and Reasonably Related to Employment or
Licensure ("OCFS Guidelines"), Ex. B to the Declaration of Thomas Hoffman in
Support of Motion to Certify the Class and/or to Schedule a Hearing for a
Preliminary Injunction ("Hoffman Decl. I").
2
Notice of Motion to Certify the Class and/or to Schedule a Hearing for
a Preliminary Injunction at 1.
2
B.
directing defendants to conduct RR reviews using
the OCFS [G]uidelines for current and future class
members who timely request their report to be
amended or expunged; and/or
C.
directing defendants to conduct the administrative
review by a preponderance of the evidence for all
current and future 424-a clearance requests and to
make sure the report is reasonably related to
employment or licensure as a day care provider;
and/or
D.
enjoining the defendants from disclosing reports that
have not had an RR review. 3
Defendants have opposed plaintiffs' motions for class certification
and preliminary injunction and have cross-moved to dismiss this action for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule")
l2(b)(l) and, alternatively, for summary judgment pursuant to Rule 56(a). For the
reasons stated below, defendants' motion to dismiss is granted in part and denied
in part and defendants' motion for summary judgment is denied.
I.
BACKGROUND 4
A.
The Statutory Framework
The New York State Legislature has declared that "[a]bused and
3
Id. at 2.
The majority of this section was taken from the undisputed portions of
Defendants' Statement of Material Facts Pursuant to Local Civil Rule 56.1.
4
3
maltreated children in this state are in urgent need of an effective child protective
service to prevent them from suffering further injury and impairment" and that "[i]t
is the purpose of (the Child Protective Services Law] to encourage more complete
reporting of suspected child abuse and maltreatment and to establish in each county
of the state a child protective service capable of investigating such reports swiftly
and competently and capable of providing protection for the child or children from
further abuse or maltreatment .... "5 To accomplish these goals, the New York
State Office of Children and Family Services ("OCFS") supervises the child
protective services provided by local departments of social services. 6 Each local
social services department is required to establish a Child Protective Service
agency ("CPS") to investigate allegations of child abuse and maltreatment. 7 The
CPS for the City of New York is the Administration for Children's Services (the
"ACS,,).8
5
New York Social Services Law ("NY SSL") § 411.
See NY SSL § 421; N.Y. Compo Codes R. & Regs. Tit. 18, Ch. II,
Subch. C, Art. 2, Pt. 432 ("18 N.Y.C.R.R.").
6
7
See NY SSL § 423.
See Finch V. Office a/Children and Family Servs., 499 F. Supp. 2d
521,525-26 (S.D.N.Y. 2007).
8
4
The OCFS operates the Statewide Central Register of Child Abuse
and Maltreatment ("SCR,,).9
The purpose of the SCR is to have, in one central location,
the names of all known subjects of indicated reports of
child abuse and maltreatment in New York State so that the
information may be used when needed to conduct
appropriate investigations and database checks, either for
the protection of children named in those reports or for the
protection of other children who might come into contact
with the subject of the report. The SCR receives telephone
calls alleging child abuse or maltreatment. When any
allegations contained in such telephone calls could
reasonably constitute a report of child abuse or
maltreatment of a child located in the City of New York,
such allegations are immediately transmitted by the SCR to
the [CPS] for investigation. \0
Under the Social Services Law, inquiring agencies are required to request a search of
the SCR database before employing, certifying or licensing persons in the child care
field.!!
9
See id. § 422(1).
\0
Finch, 499 F. Supp. 2d at 526 (footnotes omitted).
I!
See NY SSL 424-a. While the existence of an indicated report does
not absolutely bar employment, certification or licensure in the child care field,
disclosure of an indicated report to an inquiring agency is done to prevent the
agency from unknowingly allowing a subject of an indicated report to have regular
and substantial contact with children cared for by that agency. See Finch, 499 F.
Supp. 2d at 527 n.26.
5
The CPS investigates allegations to determine whether a report of
child abuse/maltreatment is "indicated" or "unfounded."12 A report is "indicated"
if an investigation determines that there is some credible evidence of the alleged
abuse/maltreatment. 13 A report is "unfounded" if an investigation determines that
there is no credible evidence of alleged abuse/maltreatment. 14 The person
allegedly responsible for injuring, abusing or maltreating a child is referred to as
the "subject of the report" or the "subject."15
The CPS notifies the SCR of the result of its investigation - whether
the report of child abuse/maltreatment concerning was determined to be indicated
or unfounded. 16 If the CPS determines that the report is unfounded, the SCR
notifies the subject that the report was unfounded and has been sealed.17 If the CPS
determines that the report is indicated, the CPS notifies the subject that the report
was indicated and that the subject has the right to request that the report be
12
See NY SSL § 424(7).
13
See id. § 412(7).
14
See id. § 412(6).
15
ld. § 412(4)
16
See id. § 424(7); 18 N.Y.C.R.R. § 432.3(k).
17
See 18 N.Y.C.R.R. § 432.9(b).
6
amended or expunged. 18
Subjects of indicated reports have two opportunities to request
amendment of a report from indicated to unfounded: first, immediately after being
notified that the report was indicated; 19 and second, prior to the disclosure of an
indicated report in response to a request by an "inquiring agency.,,20 Requests for
amendment of an indicated report made at the time the report is indicated are
referred to as "422 requests" or "422 hearings." Requests for amendment of an
indicated report triggered by an inquiring agency's inquiry about a subject are
referred to as "424-a requests" or "424-a hearings."
Upon receipt of a request to amend an indicated report, the OCFS
obtains all records, reports and any other information maintained by the CPS
concerning an indicated repore 1 The OCFS reviews all of the materials
18
See id. § 432.3(k)(l).
19
See id. § 422(8)(a)(i).
See NY SSL § 424-a. "Inquiring agencies," which are comprised of
provider agencies, see id. § 424-a(3), and licensing agencies, see id. § 424-a(4), are
agencies that either employ, license or otherwise authorize adults to be involved
with children. Such agencies include adoption agencies, foster care agencies, child
day care providers, and providers of residential facilities for children.
20
21
See id. § 422(8)(a)(ii).
7
forwarded by the CPS (the "administrative review" or "AR,,)22 and determines
whether there is a fair preponderance of evidence to find that the subject
committed the act( s) of child abuse/maltreatment giving rise to the indicated
report.23 Although plaintiffs dispute whether and how R&R reviews are being
done by the CWSB, the OCFS is statutorily mandated to determine, on
administrative review and based on the OCFS Guidelines, whether the act(s) of
child abuse/maltreatment could be: (I) relevant and reasonably related to
employment of the subject by a provider agency; or (2) relevant and reasonably
related to the subject being allowed to have regular and substantial contact with
children cared for by a provider agency; or (3) relevant and reasonably related to
the approval or disapproval of an application submitted by the subject of an
indicated report to a licensing agency.24 If the administrative review determines
22
Administrative reviews are conducted by the Child Welfare Services
Bureau ("CWSB"), which is a unit of the OCFS. The AR is based on a document
only examination.
23
See id.
24
Although questions concerning the R&R determination are in dispute,
the OCFS is statutorily mandated to determine on administrative review, based on
the OCFS Guidelines, whether the act( s) of child abuse/maltreatment could be
relevant and reasonably related to employment of the subject by a provider agency,
or relevant and reasonably related to the subject being allowed to have regular and
substantial contact with children cared for by a provider agency, or relevant and
reasonably related to the approval or disapproval of an application submitted by
the subject of an indicated report to a licensing agency. See id. § 422(8)(a)(ii).
8
that there is no credible evidence that the subject committed the act(s) of child
abuse/maltreatment, the OCFS amends the report to reflect that the allegations
against the subject are unfounded and notifies the subject and the CPS forthwith.25
If the administrative review determines that there is some credible evidence that
the subject committed the act(s) of child abuse/maltreatment, the OCFS informs
the subject of its determination and refers the matter for an administrative
hearing?6
Indicated reports retained after administrative review are forwarded to
the Bureau of Special Hearings ("BSH"), a unit of the OCFS, for an administrative
hearing.27 Administrative reviews are conducted before an administrative law
judge ("ALJ,,).28 A11422 hearings address the issue of whether there is a fair
preponderance of evidence to support the finding of an indicated report of child
abuse/maltreatment. Upon a determination that the subject has been shown by a
fair preponderance of evidence to have committed the act( s) of child
See id. § 422(8)(a)(iii). In response to 424-a requests, the OCFS takes
the additional step of informing the inquiring agency that the person inquired about
is not the subject of an indicated report.
25
26
See id. § 422(8)(a)(v).
27
See id. § 422(8)(b).
28
See 18 N.Y.C.R.R. § 434.6(a).
9
abuse/maltreatment, the ALl then determines, based on the OCFS Guidelines,
whether such acts are R&R. 29 At 424-a hemings, the sole question before the ALl
is whether the subject who was denied access to the children cared for by a
provider agency has been shown by a fair preponderance of the evidence to have
committed the act or acts of child abuse/maltreatment giving rise to the indicated
reports. 30 In other words, the ALI does not conduct a separate R&R review at 424
a hearings. Consequently, a 422 requester gets two R&R reviews - the first at the
administrative review stage and the second at the administrative hearing - while a
424-a requester gets only one R&R review (at the time of the administrative
review). However, if the subject of an indicated report is dissatisfied with the
Commissioner's decision,3l after either a 422 hearing or a 424-a hearing, the
subject may seek judicial review through a proceeding brought pursuant to Article
78 of the New York Civil Practice Law and Rules.
B.
Plaintiffs' Allegations
Plaintiffs allege that R&R determinations are not made at the
29
See NY SSL § 422(8)(c)(ii).
30
Id. § 424-a(2)(d).
31
See 18 N.Y.C.R.R. § 434.11(a) ("Hearing decisions must be made and
issued by the [C]ommissioner .... The decision must be based exclusively on the
record of the hearing.").
10
administrative review leve1. 32 Plaintiffs also allege that the OCFS does not notify
the subject of an indicated report of the opportunity to submit, to the administrative
reviewers, information relevant to the R&R determination. 33 Finally, plaintiffs
allege that the CWSB does not use or consider the OCFS Guidelines to determine
if a report is R&R. 34 Plaintiffs' First Cause of Action states that "[t]here is no
standard of proof that the State applies to establish that a report is RR. ,,35 Plaintiffs
further allege that the
actions of each of the defendants in failing to apply
standards to the RR review or to undertake the RR review
delays the issuance of clearances and is an unlawful and an
unconstitutional deprivation of plaintiffs' property and
liberty interest without due process of law in violation of
the Fourteenth Amendment of the United States
Constitution. 36
Plaintiffs' Second Cause of Action states that the R&R review done at the
See Complaint dated October I, 2010 ~ 63 ("Despite the OCFS
[G]uidelines and despite the RR review being statutorily mandated, the RR is not
conducted."). See also id. ~~ 102, 104.
32
See id. ~ 66 ("While CWSB looks for RR information from the
subject, the subject is never told that such information should be submitted to the
administrative reviewer[.]").
33
See id. ~ 68 ("The reviewer does not use or consider guidelines that
have been issued by OCFS to determine if a report is RR.").
34
35
Id.
~
113.
36
Id.
~
115.
11
administrative review stage is arbitrary and capricious. 37 Consequently, the
actions of the defendants in disclosing reports without
having conducted an RR and failing to use objective criteria
and standards in conducting RR reviews is an
unconstitutional deprivation of plaintiffs' property and
liberty interests without due process of law in violation of
the due process and equal protection clause of the United
States Constitution. 38
In sum, plaintiffs complain that R&R reviews are not being done at the time of the
administrative review. Alternatively, plaintiffs complain that if the R&R review is
being done at the administrative review stage, the CWSB does not apply objective
criteria and standards, such as the OCFS Guidelines, in determining whether a
report is R&R. Plaintiffs do not allege that section 424-a, which prohibits an ALl
from conducting an R&R review at a 424-a hearing, is unconstitutional.
II.
LEGAL STANDARDS
A.
Lack of Subject Matter Jurisdiction Under Rule 12(b)(l)
"A case is properly dismissed for lack of subject matter jurisdiction
under Rule 12(b)( I) when the district court lacks the statutory or constitutional
power to adjudicate it."39 The plaintiff bears the burden of proving the existence of
37
See id.
38
Id.
39
~
~
117.
118.
Makarova v. United States, 201 F.3d 110,113 (2d Cir. 2000).
12
subject matter jurisdiction by a preponderance of the evidence. 4o "When
considering a motion to dismiss pursuant to Rule 12(b)( 1), the court must take all
facts alleged in the complaint as true and draw all reasonable inferences in favor of
plaintiff."41 In resolving a motion to dismiss under Rule 12(b)(1), a court may
consider evidence outside the pleadings, including affidavits submitted by the
parties, and is not limited to the face of the complaint. 42
B.
Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law."43 "An issue of fact is genuine if
'the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.' A fact is material if it 'might affect the outcome of the suit
See Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998) ("[T]he
party invoking federal jurisdiction bears the burden of proving facts to establish
that jurisdiction.").
40
41
Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004).
42
See Robinson v. Government o/Malaysia, 269 F.3d l33, 140-41 (2d
Cir.2001).
43
Fed. R. Civ. P. 56(c).
13
under the governing law.",44 "[T]he burden of demonstrating that no material fact
exists lies with the moving party .... "45 "When the burden of proof at trial would
fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a
lack of evidence ... on an essential element of the nonmovant's claim.,,46 In tum,
to defeat a motion for summary judgment, the non-moving party must raise a
genuine issue of material fact. To do so, the non-moving party must do more than
show that there is "'some metaphysical doubt as to the material facts,,,,47 and
'''may not rely on conclusory allegations or unsubstantiated speculation. ",48
However, '''all that is required [from the non-moving party] is that sufficient
evidence supporting the claimed factual dispute be shown to require a jury or judge
Roe v. City ofWaterbwy, 542 F.3d 31,35 (2d CiT. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
44
Miner v. Clinton County, 541 F.3d 464, 471 (2d CiT. 2008). Accord
Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,244 (2d CiT.
2004).
45
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d CiT. 2008).
Accord In re September 11 Litig., 500 F. Supp. 2d 356, 361 (S.D.N.Y. 2007)
("Where the nonmoving party bears the burden of proof at trial, the burden on the
moving party may be discharged by showing - that is, pointing out to the district
court that there is an absence of evidence to support the nonmoving party's
case.") (quotation marks and citations omitted).
46
Higazy v. Templeton, 505 F.3d 161, 169 (2d CiT. 2007) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,586-87 (1986)).
47
Jeffreys v. City ofNew York, 426 F.3d 549, 554 (2d CiT. 2005)
(quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423,428 (2d Cir. 2001 )).
48
14
to resolve the parties' differing versions of the truth at trial. ",49
"In ruling on a motion for summary judgment, a court must resolve
all ambiguities and draw all factual inferences in favor of the nonmoving party."50
However, "[i]t is a settled rule that '[c]redibility assessments, choices between
conflicting versions of the events, and the weighing of evidence are matters for the
jury, not for the court on a motion for summary judgment. ",51 Summary judgment
is therefore "appropriate only if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.,,52
III.
DISCUSSION
A.
Motion to Dismiss
1.
The Original Named Plaintiffs
The five named plaintiffs who were originally intended to represent
the proposed class are: Elizabeth Van Oss, Joan Lucien, Chashem Lucien, Jimmie
Pugh, and Patricia Lockett. Plaintiffs Van Oss and Pugh both made section 422
Kessler v. Westchester County Dep 't o/Soc. Servs., 461 F.3d 199,206
(2d Cir. 2006) (quoting Anderson, 477 U.S. at 248-49).
49
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citing
Anderson, 477 U.S. at 242,255).
50
51
Id. (quoting Fischl v. Armitage, 128 F.3d 50,55 (2d Cir. 1997)).
Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009). Accord Sledge v.
Kooi, 564 F.3d 105, 108 (2d Cir. 2009).
52
15
requests. The local CPS that investigated the allegations against Van Oss and Pugh
decided not to proceed against them at their administrative hearings. 53 The OCFS
therefore modified its records to reflect that the formerly indicated reports were
unfounded. 54 The indicated reports of plaintiffs Joan and Chashem Lucien were
unfounded at the administrative review stage. 55 In July of 2010, plaintiff Lockett
was advised of a 424-a inquiry. In response, Lockett exercised her right to have
her indicated report reviewed. On September 22, 2010, the administrative review
expunged Lockett's indicated report. 56 If 424-a inquiring agencies inquire about
Lockett, they will receive a "no hit" letter. 57
Thus, defendants argue that the claims of the 422 requesters Van Oss,
Pugh and the Luciens regarding the R&R review at the administrative review level
See Decision SH #: 60887 and Decision SH #: 61478, Ex. 0 to the
Declaration of Thomas Hoffman, dated January 28, 2011 ("Hoffman Decl. II").
53
54
See id.
55
See 1/26111 Letters from OCFS to the Luciens, Ex. P to Hoffman
Decl. II.
See 12116110 Declaration of Roberta J. Frederick ("Frederick Decl."),
Assistant Director of the SCR, '150.
56
See, e.g., 10/311 0 Letter from OCFS to Agency Liaison, Ex. 6 to
Frederick Dec!.
57
16
are moot. 58 Van Oss' and Pugh's indicated reports were determined to be
unfounded at the hearing stage. It is unclear from the record whether R&R review
was done at the administrative review level or if their reports were presumed to be
R&R. 59 The Luciens' indicated reports were determined to be unfounded at the
administrative review stage, which obviated the need to make an initial R&R
determination.
Plaintiffs' respond to defendants' mootness argument by invoking the
"relation back" doctrine. According to plaintiffs,
special mootness rules apply to class action representatives.
Exceptions to the general rule ofmootness apply where: (1)
a class has already been certified; and/or (2) where a
Because Lockett's claim regarding R&R became moot when her
report was expunged on administrative review, she too is dismissed from this
lawsuit.
58
Plaintiffs allege that the CWSB does not determine whether indicated
reports are R&R. All reports are presumed to be R&R, the determination of which
is automatic. See Hoffman DecL I at '11'11 12-14. See also 4/2110 Declaration of
Charles Carson, Assistant Deputy Counsel of the CWSB, 'II 8 ("The attorneys
operate under the presumption that an indicated report is relevant and reasonably
related to employment or licensure in the child care field, unless there is
information in the record that addresses this issue. As there is almost never any
information in the record addressing this issue, the determination that an indicated
report is relevant and reasonably related to employment or licensure in the child
care field is automatically made in almost all cases."), Ex. C to Hoffman DecL I;
5120110 Deposition of Carson at 62 (stating that R&R review is done in every case
but that the R&R determination is "pretty much pro forma in those cases because
there is no basis to conclude that the case is not relevant and reasonably related"),
Ex. F to Hoffman Decl. I.
59
17
motion for class-certification is pending. The additional
rationale pertinent to this action, for the class exception rule
that certification relates "back to the filing of the
complaint" is to prevent defendants from 'picking off class
representatives and thereby allowing issues to evade
review. The "relation back doctrine" is invoked to preserve
the merits of the case for judicial resolution. 60
Defendants object to plaintiffs' application of the relation back doctrine on
ripeness grounds. According to defendants, if the 422 requesters' claims must be
seen to "relate back" to the date of the filing of the complaint or the class
certification motion, at a time when none of the indicated reports had yet been
determined to be unfounded, such claims would be premature and not ripe for
judicial review. Defendants thus argue that claims regarding R&R at the
administrative review stage, made by subjects with pending 422 requests for
administrative hearings, are not ripe for resolution as cases or controversies. 61
Plaintiffs' Memorandum of Law in Reply and in Answer to Cross
Motion for Summary Judgment ("PI. Reply") at 38 (citations omitted, quotation
marks in original, format condensed). Plaintiffs also make the following statement,
unsupported by any legal authority: "Even without injury, standing can be met
where there is a deprivation of a right." ld. at 15. This statement is less than
crystal clear. Perhaps plaintiffs are saying that the deprivation of a right is the
injury. But this interpretation ignores the first three words "even without injury."
60
To establish Article III standing, a plaintiff must demonstrate that a
"case or controversy" exists. Gladstone Realtors v. Village ofBellwood, 441 U.S.
91,99 (1979). To show that a case or controversy exists, a plaintiff must show
three elements: (l) injury in fact; (2) a causal nexus between the complained-of
conduct and the injury; and (3) redressability of the injury. See Lujan v. Defenders
of Wildlife, 504 U.S. 555,560-61 (1992).
61
18
A complaint about an R&R either not being done at all, or
being done in a way not satisfactory to a plaintiff who made
a 422 request, is not ripe for judicial review because (1) the
local CPS might not choose to proceed at the administrative
hearing stage, thereby unfounding the report; or (2) the ALJ
might weigh the evidence presented by both sides at the
hearing and unfound the report; or (3) the ALJ at any 422
administrative hearing may determine to retain an indicated
report and find that it is not R&R; or (4) a Supreme Court
Justice reviewing a 422 hearing decision that retains a
report and finds it to be R&R can either unfound the report
or find that the determination to retain was correct but the
R&R determination was incorrect. 62
Plaintiffs' answer to this argument is straightforward: "Although the
422 litigants' deprivation [of R&R review] may be eventually remedied by the
R&R review at the hearing, 422s still suffer a deprivation of a 'legally protected
interest' that is 'concrete and particularized.",63 Presumably, plaintiffs are
referring to the situation wherein the reports of some 422 requesters would have
been unfounded earlier, at the administrative review stage, if the R&R review had
been done at that stage. Forcing these 422 requesters to wait for an administrative
hearing to have their reports unfounded (based on no R&R) is the alleged "injury
in fact." But, unlike the situation with 424-a requests, there is no exigency
associated with 422 requests. Thus, the alleged injury in the context of a 422
Defendants' Reply Memorandum of Law in Further Support of Their
Cross-Motion for Summary Judgment ("Def. Reply") at 4-5.
62
63
PI. Reply at 16.
19
request is the 422 requester's fear or anxiety, during the interim period between the
time of the administrative review and the time of the administrative hearing, that an
indicated report will be retained. But any fear or anxiety could not possibly relate
to R&R review, or lack thereof, because the OCFS does not advise subjects of the
R&R review. 64 Thus, any alleged injury is simply too speculative to establish the
injury in fact needed for Article III standing. I therefore conclude that the claims
of the named 422 requesters - Van Oss, Pugh, and the Luciens - must be dismissed
for lack of jurisdiction. 65
2.
The Intervening Plaintiffs
The intervening plaintiffs, Delores Jackson and Natasha Herbert,
present a different situation. Plaintiffs allege that Jackson and Herbert were denied
R&R review at the administrative review stage. 66 This allegation must be assumed
See, e.g., 81211 0 Letter from OCFS to Lockett, Ex. I to Hoffman Decl.
I. This letter neither advises the subject that an R&R review will be done at the
administrative review, nor does it ask the subject to submit information relevant to
R&R.
64
Although plaintiffs' class certification motion will be addressed in a
separate Opinion and Order, these plaintiffs cannot represent the proposed class
given that their claims have been dismissed. Whether the proposed class should
exclude all 422 subjects who have pending requests for administrative hearings,
where the R&R review will be revisited, will be addressed therein.
65
On September 28,2010 and October 5, 2010, the requests by Jackson
and Herbert to seal or expunge their reports were denied after administrative
reviews were completed. See 9/28/10 Letter from the SCR to Jackson ("Jackson
66
20
to be true for purposes of deciding subject matter jurisdiction. 67 Both Jackson and
Herbert are now awaiting administrative hearings where the only question to be
addressed is whether the subject committed the act(s) of child
abuse/maltreatment. 68 While it is true that their indicated reports might be
unfounded at the administrative hearing stage, they will not be unfounded on the
basis of not being R&R. Accordingly, both Jackson and Herbert have suffered a
concrete injury in fact in being deprived of R&R review at the administrative
review stage, the deprivation of which will not be remedied by any subsequent
hearing. 69 Given these injuries, the claims of Jackson and Herbert are ripe for
resolution and will not be dismissed for lack of subject matter jurisdiction.
3.
The Eleventh Amendment
The Eleventh Amendment to the United States Constitution bars a
Letter") and 10/511 0 Letter from the SCR to Herbert ("Herbert Letter"), Exs. E and
I to Hoffman Dec!. II, respectively.
67
68
See supra Part ILA.
See Herbert Letter and Jackson Letter at 1 ("The only question to be
addressed at such a hearing is whether it has been shown by a fair preponderance
of the evidence that you committed the act or acts of child abuse or maltreatment
on which the indicated report is based.").
"If it had been found at the initial review that the act was 'Not R&R,'
Herbert would have received her license to operate a group day care facility with
her daughter." PI. Reply at 17 (citing Intervenor's Complaint ~~ 33-35).
69
21
federal suit by a citizen against a state, or one of its agencies, absent consent to suit
or an express statutory waiver of immunity.70 It is well-settled that the State of
New York has not consented to suit in federal coure l and the provisions of section
1983 were not intended to override a state's immunity. 72 This Court's jurisdiction
over the individual State defendants is limited to potentially redressing, on a
prospective basis only, ongoing violations of federallaw. 73 To the extent that
plaintiffs have not withdrawn their claims against the State of New York, those
claims must be dismissed. 74
a.
Retrospective Relief
The Eleventh Amendment "applies only to prospective relief [and]
does not permit judgments against state officers declaring that they violated federal
See Pennhurst State Sch. & Hasp. v. Halderman, 465 U.S. 89, 100
(1984); Alabama v. Pugh, 438 U.S. 781 (1978).
70
See Trotman v. Palisades Interstate Park Comm 'n, 557 F.2d 35, 38-40
(2d Cir. 1977).
71
72
See Quern v. Jordan, 440 U.S. 332, 343 (1979).
See Kentucky v. Graham, 473 U.S. 159,167 n.14 (1985)
("[I]mplementation of state policy or custom may be reached in federal court only
because official-capacity actions for prospective relief are not treated as actions
against the State.") (citing Ex parte Young, 209 U.S. 123 (1908».
73
Id. ("Unless a State has waived its Eleventh Amendment immunity or
Congress has overridden it, ... a State cannot be sued directly in its own name
regardless ofthereliefsought.") (citing Alabama v. Pugh, 438 U.S. 781,782
(1978) (per curiam».
74
22
law in the past."75 Plaintiffs contend that they are not seeking retrospective relief
and that the injunctive relief sought "seeks to remedy the ongoing R&R
deprivation without due process of law.,,76 However, the last category of injunctive
relief sought - enjoining defendants from disclosing reports that have not had an
R&R review - may necessitate retrospective relief in some circumstances. For
example, assume a 424-a indicated report was retained after an administrative
hearing. Assume further that the R&R review that was supposed to be done at the
administrative review stage was either nonexistent or rubber-stamped. Prohibiting
future disclosure of such report would, in effect, force the OCFS to either seal an
otherwise indicated report or conduct a separate R&R review for that report. In
choosing the latter, the OCFS would be forced to rectify past federal constitutional
violations, a result prohibited by the Eleventh Amendment. Therefore, plaintiffs'
claims implicating this sort of injunctive relief must be denied. 77
b.
Enforcement of State Law
The Eleventh Amendment also bars federal courts from granting relief
Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 146 (1993) (citing Green v. Mansour, 474 U.S. 64, 73 (1985)).
75
76
PI. Reply at 18.
77
Plaintiffs' request for injunctive relief will be addressed in more detail
after a preliminary injunction hearing is held.
23
against state officials for alleged violations of state law. 78 In this regard, the
Supreme Court has stated:
A federal court's grant ofrelief against state officials on the
basis of state law, whether prospective or retroactive, does
not vindicate the supreme authority of federal law. On the
contrary, it is difficult to think of a greater intrusion on
state sovereignty than when a federal court instructs state
officials on how to conform their conduct to state law.
Such a result conflicts directly with the principles of
federalism that underlie the Eleventh Amendment. 79
Defendants argue that plaintiffs, by alleging that defendants do not make R&R
determinations at administrative reviews, are seeking the enforcement of state law.
While this argument may have some initial appeal, it does not hold up on close
scrutiny. Plaintiffs argue that the failure of state officials to conduct R&R reviews
is a constitutional due process violation. Thus, plaintiffs are not seeking to direct
state officials to comply with state law. Rather, plaintiffs are seeking to compel
state officials to comply with constitutional due process safeguards before denying
subjects of their statutorily-created right to an R&R review. Although it is a subtle
distinction, the Eleventh Amendment's prohibition against the enforcement of state
law is inapplicable here.
78
See Pennhurst, 465 U.S. at 103.
79
Id. at 106.
24
4.
Injunctions Against Officers in Their Judicial Capacity
Defendants argue that plaintiffs' claims to compel ALJs to conduct
R&R reviews in the first instance, or conduct them in a certain manner, must be
dismissed as they seek to enjoin conduct ofjudicial officers in their judicial
capacity, relief which is unavailable under section 1983. 80 In Montero v. Travis,
the Second Circuit stated that it is
well established that officials acting in a judicial capacity
are entitled to absolute immunity against § 1983 actions,
and this immunity acts as a complete shield to claims for
money damages. This immunity also extends to
administrative officials performing functions closely
associated with the judicial process because the role of the
"hearing examiner or administrative law judge . . . IS
'functionally comparable' to that of a judge."81
This immunity extends to injunctive relief as well as money damages.
Absolute immunity bars not only Montero's § 1983 claim
for damages but also his claim for injunctive relief. The
1996 amendments to § 1983 provide that "in any action
brought against a judicial officer for an act or omission
taken in such officer's judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was
See Defendants' Memorandum of Law in Support of Their CrossMotion for Summary Judgment and in Opposition to Plaintiffs' Motions fro Class
Certification and a Preliminary Injunction ("Def. Mem.") at 18-19 (citing Montero
v. Travis, 171 F.3d 757, 760 (2d Cir. 1999)).
80
81
Montero, 171 F.3d at 760 (quoting Butz v. Economou, 438 U.S. 478,
513 (1978)).
25
violated or declaratory relief was unavailable."82
Plaintiffs respond that because the named defendants (Carrion, Sample and
Carson) are not "judicial officers" acting in a 'judicial capacity," there is no bar to
section 1983 injunctive relief. The issue, however, is not as clear cut as plaintiffs
portray. While it is true that the Commissioner of the OCFS (Carrion), the
Director of the State Central Register (Sample), and the Supervisor of the CWSB
(Carson) are not judicial officers acting in a judicial capacity, it is conceivable that
the injunctive relief requested may necessitate action on the part of the ALJs. For
example, the third category of injunctive relief 3 may require ALJs to conduct R&R
reviews at 424-a hearings if this Court were to find that R&R reviews were not
conducted, or were conducted in a less than satisfactory manner, at the
administrative review stage which has occurred for certain subjects with current
424-a clearance requests. Thus, to the extent that the relief requested by plaintiffs
does, in fact, implicate the conduct of the ALJs, such relief must be denied and any
Id. at 761 (quoting Federal Courts Improvement Act of 1996, §
309(c), Pub. L. No. 104-317,110 Stat. 3847,3853 (1996)).
82
The third category seeks a preliminary injunction directing defendants
to conduct the administrative review by a preponderance of the evidence for all
current and future 424-a clearance requests and to ensure the report is reasonably
related to employment or licensure as a day care provider.
83
26
claims requesting such relief must be dismissed. 84
5.
The Availability of Article 78 Proceedings
Defendants argue that plaintiffs' claims should be dismissed because
they are more properly reviewable in New York State court pursuant to Article 78.
Plaintiffs argue that the R&R deprivation is systemic and that where the
deprivation is systemic, litigants have a well-established right to pursue their
claims in federal court without resorting to state judicial remedies. Although
plaintiffs could bring their individual claims in state court under Article 78, they
are not required to do so.
[I]nasmuch as plaintiffs claim that the federal Constitution
requires the state court to offer a remedy that is currently
not available under state or local law, this constitutional
challenge need not proceed through the state court before
it reaches the federal courts. See Kraebel v. N. Y. City Dep 't
of Hous. Pres. & Dev., 959 F.2d 395, 404-06 (2d CiT.
1992) (addressing the claim that an Article 78 proceeding
provided all the process plaintiff was due, and finding that
"[i]t is well-established that [42 U.S.C.] § 1983 generally
allows plaintiffs with federal or constitutional claims the
right to sue in federal court without first resorting to state
judicial remedies")[.]85
Thus, the availability of Article 78 proceedings is not a ground on which to dismiss
As stated previously, the scope of the preliminary injunctive relief to
be afforded plaintiffs will be addressed in further detail after the preliminary
injunction hearing.
84
85
Krimstock v. Kelly, 306 FJd 40, 60 (2d CiT. 2002).
27
plaintiffs' federal constitutional claims.
B.
Summary Judgment
1.
Lack of Discovery
In response to defendants' motion for summary judgment, plaintiffs
state that "[t]he State's motion is made before any discovery has been
undertaken."86 This Court subsequently directed plaintiffs' counsel to file a Rule
56(1) affidavit outlining the types of discovery needed for plaintiffs to properly
oppose the motion. In distinguishing this case from a previous case before this
Court, plaintiffs' counsel stated as follows:
Before fact discovery could begin, the State defendants
moved for summary judgment. The State's motion relies
upon some of the facts developed in discovery in Finch v.
State, (04 CIV 1668) (SAS). However, the issues in Finch,
are different that those raised in Van Oss. The two central
Finch issues were the timeliness of hearing and the
improper termination of requests for hearings. The Van
Oss question is whether subjects are afforded due process
when the Administrative Review ("AR") determines, as
required under the law, if the Report is relevant to child
care. Only where relevant is a Report disclosable to a
prospective employer or licensing agency.87
Despite the above statements complaining about a lack of fact discovery, plaintiffs
have opposed defendants' summary judgment motion. Furthermore, defendants'
86
PI. Reply at 23 n.18.
87
Rule 56(1) Declaration of Thomas Hoffman ~ 3.
28
counsel is of the view that further fact discovery would be futile.
To put the defendants' position briefly, further discovery is
futile because plaintiffs already know, and have presented
to this Court, the issues of fact that have lead to the instant
complaint. Plaintiffs' exhibits contain the transcript of Mr.
Carson, whom plaintiff acknow ledges is the representative
ofdefendants most knowledgeable about the R&R process.
His statements are not equivocal. Similarly, plaintiffs have
attached copies of challenged notices to Mr. Hoffman's
declarations as exhibits. The discovery proposed in
plaintiffs' counsel's Declaration will yield much more of
the same.
Because I agree with defendants' counsel, I will now address the merits of the
motion.
2.
Disputed Issues of Material Fact
Having both Defendants' Statement of Material Facts Pursuant to
Local Civil Rule 56.1 ("Def. 56.1") and Plaintiffs' Counter Statement of Material
Facts Pursuant to Local Civil Rule 56.1 ("PI. 56.1 "), I will summarize some of the
more salient issues of material fact that are in dispute.
Plaintiffs' 56.1
Defendants' 56.1
7.
7.
The CPS that investigates the
allegations notifies subjects of
the investigation in writing of
the existence of the report and
their respective rights in regard
to amendment.
29
Controverted. The CPS does not
advise subjects of their right to
submit information regarding
whether the act(s) were relevant
to child care.
28.
28.
Where the administrative review
finds that there is a fair
preponderance of evidence to
support the finding that the
report IS indicated, the
administrative reVIew also
determines whether, based on
guidelines developed by the
OCFS, such act or acts could be
relevant and reasonably related
to employment of the subject of
the report by a provider agency,
or relevant and reasonably
related to the subject of the
report being allowed to have
regular and substantial contact
with children cared for by a
provider agency, or relevant and
reasonably related to the
approval or disapproval of an
application submitted by the
subject of the report to a
licensing agency. (emphasis in
original).
Controverted.
The
administrative review does not
apply the OCFS guidelines to
determine whether the report is
R&R.
31. Controverted. The SCR does not
notify the subject of the
administrative review's separate
determination about whether the
report is or is not R&R to child
care.
31. The SCR notifies the subject that
the matter has been referred for a
hearing SInce the SCR
determined that there was
sufficient evidence to retain the
indicated report, and also notifies
the subject of the administrative
review's separate determination
about whether the indicated
report is or is not R&R to child
care activity.
30
58.
R&R determinations are made at
every administrative review.
58.
Controverted. Determinations of
whether the act( s) are related to
child care are not made at the
administrative review.
59.
Administrative reviewers use the
OCFS guidelines when making
R&R determinations.
59.
Controverted.
Administrative
reviewers do not apply the OCFS
guidelines.
6l.
Administrative reviewers "do an
R&R, but lacking information
upon which to really assess that,
it is a pro forma determination in
practically every case."
6l.
Controverted. It is controverted
that administrati ve reVIewers
conduct a review to determine
whether the act( s) are R&R to
child care.
Thus, there are disputed issues of material fact regarding: (I) whether
the OCFS conducts R&R reviews at the administrative review stage; and (2) if it
does, whether the OCFS applies its guidelines in conducting those R&R reviews.
Assuming that the OCFS fails to do either, or both, the next question is whether
that failure results in a violation of due process. This constitutional inquiry
represents the penultimate issue to be decided in this case. The purpose of
summary judgment is to determine whether there are material issues of fact that
must be decided by the trier of fact; it is not to decide those facts. Plaintiffs have
requested a jury trial in the Complaint. Thus, whether plaintiffs have been
deprived of their right to R&R review without due process of law is a question to
31
be decided by a jury, not this Court. 88
IV.
CONCLUSION
For the reasons stated above, defendants' cross-motion to dismiss is
granted in part and denied in part. Defendants' cross-motion for summary
judgment is denied. A preliminary injunction hearing has been scheduled for May
17,2011, at 10:00 a.m. in Courtroom 15C. Counsel should be prepared to also
discuss issues relating to class certification. The Clerk of the Court is directed to
close defendants' cross-motions (Document # 13).
Dated:
New York, New York
April 25, 2011
Both sides have devoted substantial portions of their briefs in
addressing this question. See Def. Mem. at 19-23, PI. Reply at 23-30, Def. Reply
at 8-9. This briefing would be helpful if the parties opted for a bench trial but it is
irrelevant in deciding the summary judgment motion.
88
32
- Appearances
For Plaintiffs:
Thomas Hoffman, Esq.
Law Offices of Thomas Hoffman, P.C.
250 West 57th Street, Suite 1020
New York, NY 10107
(212) 581-1180
For Defendants:
Robert L. Kraft
Assistant Attorney General
120 Broadway, 24th Floor
New York, NY 10271
(212) 416-8632
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?