Paul Wright v. Yacovone et al
Filing
16
OPINION AND ORDER granting in part and denying in part 3 Defendants' Motion to Dismiss. Signed by Chief Judge Christina Reiss on 11/2/2012. (pac)
U.S. DIST
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DISTRICT}
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
PAUL WRIGHT,
Plaintiff,
v.
DAVE YACOVONE, STEVE DALE,
LISA KELLER, RAYMOND KELLETT,
KELLI ZUMBRUSKI, GYLA DZIOBEK,
and JOHN DOES,
Defendants.
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2012 NOV -2 AM II: 48
CLERK
BY
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Case No. 5:12-cv-27
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION TO DISMISS
(Doc. 3)
Plaintiff Paul Wright brings this civil rights action pursuant to 42 U.S.C. §§ 1983
& 1988 against Defendants Dave Yacovone, Steve Dale, Lisa Keller, Raymond Kellett,
Kelli Zumbruski, Gyla Dziobek and John Does (collectively, "Defendants,,).1 Plaintiff
alleges that Defendants violated his constitutional rights to procedural due process and
equal protection when they substantiated him for child abuse and released a letter
informing his ex-wife of the substantiation with the alleged recommendation that she file
the letter in Vermont Family Court.
Presently before the court is Defendants' Fed. R. Civ. P. 12(b)(6) motion to
dismiss Plaintiff s Complaint for failure to state a claim upon which relief can be granted.
(Doc. 3.) The parties waived oral argument.
1 Plaintiff sues Defendants Steve Dale, Lisa Keller, Raymond Kellett, Kelli Zumbruski, and John
Does in both their individual capacities for monetary damages and in their official capacities for
injunctive and declaratory relief. He sues Defendant Dave Yacovone in his official capacity for
injunctive and declaratory relief and Defendant Gyla Dziobek in her individual capacity for
monetary damages.
Plaintiff is represented by Brian R.
Marsicovetere~
Esq. Defendants are
represented by Assistant Vermont Attorney General David R. Groff.
I.
Factual and Procedural Background.
A.
Plaintiff's Factual Allegations.
Plaintiff is a resident of Brattleboro, Vermont. On February 11,2005, Plaintiff
and Sandra Judd divorced. They have two children, C.W., who is fourteen years old and
F.W., who is twelve years old.
At all relevant times, Defendant Steve Dale was Commissioner of the Vermont
Department of Children and Families ("DCF"); Defendant Lisa Keller was Director of
DCF's Brattleboro field office; Defendant Raymond Kellett was a DCF "Casework
Supervisor" (Doc. I at ~ 7) in the Brattleboro field office; Defendant Kelli Zumbruski
was a DCF caseworker in the Brattleboro field office; and Defendant Gyla Dziobek was a
Supervisor in DCF's Central Intake Office. John Does are currently unknown state
officials who engaged in any acts or omissions that gave rise to Plaintiffs claims, and/or
who continue to perpetuate the alleged constitutional violations against Plaintiff.
Defendant Dave Yacovone is the current Commissioner of DCF .
When Plaintiff and Ms. Judd divorced, Ms. Judd was granted sole legal and
physical parental rights and responsibilities with regard to C.W. and F.W. pursuant tothe
parties' stipulation. Also pursuant to that stipulation, Plaintiffwas granted full access to
the children's medical, dental, law enforcement and school records and substantial
visitation rights with visitation occurring thereafter on a consistent basis.
In 2008, Ms. Judd sought to move to Oregon with their children. In response,
Plaintiff filed a motion seeking full physical and legal custody because the move would
undermine his visitation rights. Ms. Judd opposed the motion. Plaintiff alleges that, at
the custody hearing, the children's classroom and extracurricular teachers and numerous
other individuals testified that Plaintiff had a loving relationship with his children. He
also alleges that at no point did anybody, including Ms. Judd, allege that the children
were abused. The Family Court judge allegedly determined that Ms. Judd could not
2
move with the children to Oregon, and if she did, Plaintiff would receive full custody of
the children. Ms. Judd did not appeal this decision.
In 2009, Plaintiff discovered that C.W. was seeing a psychiatrist, Dr. Neil Senior,
who had prescribed him "Vyvance." Plaintiff, after consulting with the children's
primary care physician, was concerned about the drug's side effects, the quality of
C.W.'s mental health treatment, his diagnoses, and whether medication was the best
course of treatment. Plaintiff alleges that he became alarmed at changes in C.W.' s
behavior and demeanor that were allegedly consistent with the known side effects of the
medication. Thereafter, at the direction of Ms. Judd, the children's physicians and
counselors allegedly ceased communicating with Plaintiff and denied him access to the
children's medical records. In response, Plaintiff filed a verified motion to modify
parental rights and responsibilities in the Windham County Superior Court's Family
Court Division, requesting medical decision-making authority with regard to the children.
In Ms. Judd's opposition to Plaintiff's motion, she expressed concerns regarding
Plaintiff's alleged mistreatment of the children during visits, alleging that the children
reported being '''physically restrained at times by their father'" and '''in one instance ...
of being smothered and having difficulty breathing. '" Id. at ~ 23. Plaintiff alleges that
this was the first time he had been accused of any mistreatment of the children "[d]espite
bitterly contested litigation since 2004[.]" Id. Ms. Judd allegedly told the Family Court
that the allegations were not previously brought forth because she feared Plaintiff's
retribution against the children.
Following Ms. Judd's allegations of abuse, Plaintiff alleges that, upon information
and belief, on April 22, 2010, C.W.'s therapist, Susan Wagner, called DCF and reported
that Plaintiff was "controlling and abusive to the kids," was "upset by mom having full
custody" and "was currently [suing] for medical decisions regarding the [children]
because [he] is opposed to the kids taking medication." Id. at ~ 25. Ms. Wagner also
reported that C.W. reported to Ms. Judd who reported to Ms. Wagner that Plaintiff '''lies
on [F.W.] to restrain [him] to the point that he becomes terrified that he can't breathe and
screams.'" Id. at ~ 26. According to Ms. Wagner, F.W. became aggressive at school and
3
had nightmares following this alleged incident. 2 Ms. Wagner allegedly reported a
number of other claims regarding Plaintiff s alleged abuse, including accusations that
Plaintiff neglected the children and that the children were afraid of him. 3
In response to the Wagner report, DCF conducted an intake used to determine
what level of field response, if any, was necessary and allegedly documented "no report
ofinjur[y]" to the children. Id. at ~ 28. DCF's intake worker allegedly recommended
that Ms. Wagner's allegations not be accepted for assessment or investigation. Plaintiff
is allegedly referred to as an "Arab" in the intake report and only his race or ethnicity is
mentioned. The intake report also lists "cultural factors" as a "contributing factor" to the
alleged abuse. Id. at 32.
Plaintiff was born and raised in the United States and has no Arab ancestry. He
alleges that "Defendants Dziobek, Keller, Kellett and Zumbruski aU believed [PlaintiffJ
The Complaint states that '"the source of this particular hearsay is not known." Id at ~ 27.
Plaintiff attributes Ms. Wagner's report to information provided by Ms. Judd. Plaintiff further
alleges that Ms. Wagner had a financial interest in Plaintiff not obtaining medical decision
making authority because it would allow him to change health care providers. He alleges that at
least two claims made by Ms. Wagner to DCF are demonstrably false: "'Felix had a broken toe
and called mom saying that [Plaintiff] wouldn't take him to the doctor;' and ... '[Plaintiff] is an
Arab who may have been raised in the US.'" (Doc. 1 at ~ 30.)
2
3 Ms.
Wagner's report includes claims that:
A.
[F.W.] was not able to find [Plaintiff] for an unspecified amount of time
when they visited Universal Studios;
B.
[F.W.'s] lips have been cracked and he has had sores on his tongue after
visits with [Plaintiff], and on one visit of unspecified duration he lost two pounds;
C.
[F.W.' s] primary care physician noticed a "drop off in growth rate;"
D.
[F.W.] gets "very agitated" after visits with [Plaintiff];
E.
"The kids tell mom that they are afraid of dad;"
F.
"[B]oth boys told mom that [Plaintiff] told the boys ... that he would
rather pay for their funerals than for child support."
Id at ~ 29.
4
...
1 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _•
was an 'Arab,' and that Arabs are more prone to abuse children due to their race,
ethnicity and culture." ld. at, 33.
Despite the DCF intake worker's alleged recommendation, Defendants Dziobek
and Keller accepted the allegations for an assessment, 4 which Defendant Zumbruski
performed. Plaintiff alleges that they were motivated to do so by their false belief that he
was an "Arab" and their further belief that Arabs have a propensity to abuse their
children.
On April 29, 2010, Plaintiff alleges that Defendant Zumbruski interviewed Ms.
Judd who falsely claimed that she could not afford an attorney to alter the custody order.
Plaintiff contends that Defendant Zumbruski failed to verify this claim and that, had she
done so, would have discovered that Ms. Judd had been consistently represented by
counsel since she filed for divorce in 2004.
On May 6, 2010, Defendant Zumbruski contacted Plaintiff to advise him of an
assessment into recent allegations that he abused the children but allegedly refused to
provide him with details regarding the allegations. Plaintiff advised Defendant
Zumbruski "that there had been extensive family court proceedings, and that he
successfully prevented Ms. Judd from moving to Oregon with the children. He informed
her that there were ample court records, replete with sworn witness testimony ...
available for inspection, and that the allegations of abuse were made in retaliation to his
motion for medical decision making authority and were not true." ld. at, 40. Plaintiff
advised Defendant Zumbruski that he would need to obtain legal advice, and declined to
speak further without notice of the allegations.
4
A DCF "assessment" is:
A response to a report of child abuse or neglect that focuses on the
identification of the strengths and support needs of the child and the
family, and any services they may require to improve or restore their
well-being and to reduce the risk of future harm. The child andfamily
assessment does not result in a formal determination as to whether the
reported abuse or neglect has occurred.
33 V.S.A. 4912(17) (emphasis supplied).
5
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I
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On May 14,2010, Defendant Zumbruski separately interviewed C.W. and F.W.,
and the principal from F.W.'s school. On that same date, Plaintiff's family law attorney
allegedly contacted Defendant Zumbruski who advised that an "assessment" was being
conducted but again refused to provide specifics about the allegations.
Plaintiff alleges that Defendant Zumbruski falsely attributed statements to some of
the parties she interviewed, including Dr. Senior, F.W.'s teacher, and C.W.'s school
counselor. In particular, Plaintiff alleges that Defendant Zumbruski falsely attributed to
Dr. Senior a statement about Plaintiff: "This guy is a boy. He is unbelievable," Id. at ~
42, which in deposition Dr. Senior denied under oath ever making. Plaintiff characterizes
the statement falsely attributed to Dr. Senior as "a racist statement that equates the
sociological status of adult ethnic men of color with that of male children." Id. at ~ 43. 5
Plaintiff alleges, upon information and belief, that Defendant Zumbruski falsely
claimed that F.W.'s teacher expressed concern that "'something' involving 'the father's
home environment' was negatively affecting the children." Id. at ~ 44. He alleges that,
upon information and belief, Defendant Zumbruski falsely claimed that C.Wo's school
counselor "stated that 'the school' did not believe [C.W.] should be having contact with
Mr. Wright." Id. at ~ 45.
On June 4,2010, Defendant Zumbruski recommended Ms. Wagner's report be
substantiated for emotional maltreatment ofC.W. and F.W. That same day, Defendant
Kellett substantiated Plaintiff for child abuse and then Defendants Kellett and Zumbruski
decided to close the case without further action. 6 Under Vermont law, "substantiation"
5 Plaintiff does not actually allege he is an ethnic man of color, which may be an important fact
for his racial discrimination claims.
6 Under Vermont law, after an assessment is completed, DCF generally offers a "plan of services
that reduces the risk of harm and improves or restores family well-being" which the family can
then accept or decline. 33 V.S.A. § 4915a(a)(3) & (c). "When an assessment case is closed,
there shall be no finding ofabuse or neglect and no indication of the intervention shall be placed
in the registry. However, the department shall document the outcome of the assessment." 33
V.S.A. § 4915a(d) (emphasis supplied).
6
may occur only after an "investigation.,,7 Also on June 4, 2010, Defendants Zumbruski
and Kellett allegedly sent letters to Ms. Judd and Plaintiff. In the letter to Ms. Judd, they
stated: "In April of 2010, [DCF] received a report of concern that caused us to open an
assessment into the safety of your children [C.W.] and [F.W.]. Based on information
we gathered; we have determined that a reasonable person would conclude that this
abuse did occur." Id. at,-r 50. Plaintiff alleges that Defendant Kellett placed a
handwritten note on the bottom of the letter to Ms. Judd, stating: "Please submit this to
Family Court if you want to modify the visitation order." Id. at,-r 53. Plaintiff alleges
that:
Defendants Kellett and Zumbruski intentionally manufactured false
evidence -- substantiations for child abuse they knew to be false -- so that
Ms. Judd could use them as ammunition to modify the family court's
visitation order and defeat Mr. Wright's attempt to obtain medical
decision[-]making authority over the children. They did so because of their
perception that Mr. Wright was an 'Arab,' and such people are prone to
abuse children.
Id. at,-r 54.
In the June 4, 2010 letter to Plaintiff, Defendants Zumbruski and Kellett advised
Plaintiff that he had been substantiated for child abuse, "specifically, 'emotional
maltreat[mentJ' of [C.W.] and [F.W.,]''' id. at,-r 55, and his failure to appeal the decision
would result in his placement on Vermont's Child Abuse and Neglect Registry. The
letter did not assert that an investigation was opened or conducted. On June 7, 2010,
Plaintiff appealed the substantiation to DCF's Child Abuse Registry Review Unit.
Plaintiff alleges that Defendants Zumbruski and Kellett did not follow the required
statutory procedures before substantiating him. First, Plaintiff alleges that DCF never
opened an investigation of the abuse and that only an assessment was conducted.
Second, he alleges that Defendants failed to follow certain statutory procedures required
Vermont law provides that a "substantiated report" "means that the commissioner or the
commissioner's designee has determined after investigation that a report is based upon accurate
and reliable information that would lead a reasonable person to believe that the child has been
abused or neglected." 33 V.S.A. § 4912(10) (emphasis supplied).
7
7
for an investigation,8 such as inspecting the scene of the alleged abuse. See 33 V.S.A. §
4915b(a)(1). Finally, he alleges that statutory procedures do not authorize DCF workers
8 Vennont
law provides:
(a) An investigation, to the extent that it is reasonable under the facts
and circumstances presented by the particular allegation of child
abuse, shall include all of the following:
(1) A visit to the child's place of residence or place of custody and to
the location of the alleged abuse or neglect.
(2) An interview with or observation of the child reportedly having
been abused or neglected. If the investigator elects to interview the
child, that interview may take place without the approval of the child's
parents, guardian, or custodian, provided that it takes place in the
presence of a disinterested adult who may be, but shall not be limited to
being, a teacher, a member of the clergy, a child care provider regulated
by the department, or a nurse.
(3) Detennination of the nature, extent, and cause of any abuse or
neglect.
(4) Detennination of the identity ofthe person alleged to be
responsible for such abuse or neglect.
(5)(A) The identity, by name, of any other children living in the same
home environment as the subject child. The investigator shall consider
the physical and emotional condition of those children and may
interview them, unless the child is the person who is alleged to be
responsible for such abuse or neglect, in accordance with the provisions
of subdivision (2) of this subsection.
(B) The identity, by name, of any other children who may be at risk
if the abuse was alleged to have been committed by someone who is not
a member ofthe subject child's household. The investigator shall
consider the physical and emotional condition of those children and may
interview them, unless the child is the person who is alleged to be
responsible for such abuse or neglect, in accordance with the provisions
of subdivision (2) of this subsection.
(6) A detennination of the immediate and long-tenn risk to each
child if that child remains in the existing home or other environment.
8
to encourage parents to file substantiation letters with a court prior to the accused parent's
exhaustion of administrative remedies. In the absence of such authorization, Plaintiff
contends the practice violates Vermont law.
In addition, although not required by statute, Plaintiff asserts that prior to
substantiation, he was not provided notice of the specific allegations, given an
opportunity to be heard, produce live witnesses or evidence on his behalf, examine his
accusers, or allowed to present the matter to a neutral and unbiased arbiter to decide
whether to substantiate the allegations. He contends that in substantiating him for child
abuse, Defendants Zumbruski and Kellett "willfully ignored the family court divorce
history," id. at ~ 63, and other evidence which would have revealed relevant information
regarding Plaintiffs relationship with his children.
Thereafter, Plaintiff alleges certain Defendants falsified additional evidence as
follows:
On June 17,2010, in an effort to cover up the gross substantive and
procedural errors associated with the false substantiations and
discrimination, Defendant Kellett instructed Aaron Pelton, a DCF
employee, to alter the original intake report that designated the matter for
an 'assessment.' Mr. Pelton wrote "[Appended on 611711010:52 a.m. by
apelton] per Ray Kellett: 'On June 3, 2010, the request for track
reassignment from JP A Assessment to investigation was approved by
District director Lisa Keller."
ld. at ~ 57. Plaintiff alleges that, upon information and belief, Defendant Keller did not
approve the reassignment but approved the alteration of the intake report and "was
complicit in Defendant Kellett's attempt to cover up the facUhat Mr. Wright was a victim
(7) Consideration of the environment and the relationship of any
children therein to the person alleged to be responsible for the suspected
abuse or neglect.
(8) All other data deemed pertinent.
33 V.S.A. § 4915b.
9
of discrimination and substantiated for child abuse without the initiation of an
investigation." Id. at,-r 58.
On or about June 18,2010, Ms. Judd filed in Family Court a Verified Emergency
Motion to Restrict Defendant's Parent/Child Contact and a Motion for Appointment of
Guardian Ad Litem. She attached Defendant Kellett's substantiation letter to support her
claim that there had been a substantial change in circumstances warranting the temporary
suspension of all visits. 9 The Family Court appointed guardians ad litem for C.W. and
F.W., who were allegedly informed that Plaintiff was substantiated for child abuse.
Plaintiff claims that the letter indicating Plaintiffs substantiation for child abuse
remains on file with the Family Court and is accessible for public inspection. He further
alleges that DCF refused his request to notify everyone who may have received notice of
the substantiation, that DCF ultimately reversed it.
After the foregoing events, Plaintiff abandoned his effort to obtain medical
decision-making authority over the children. Plaintiff claims that he spent approximately
$6,733.36 in attorney's fees and costs on that motion and incurred an additional
$7,632.45 in attorney's fees and costs in appealing DCF's substantiation. He contends
that he would not have incurred these fees but for Defendants' constitutional violations.
On September 21, 2010, the independent reviewer who heard Plaintiff s appeal
concluded that "the evidence d[id] not meet the current legal and policy standards for
substantiation." Id. at,-r 66. Plaintiff contends that the substantiation occurred "when
there was no accurate or reliable information that could have caused a reasonable person
to believe he abused and/or emotionally maltreated his children." Id. at,-r 67.
9 Under Vermont law, "[o]n motion of either parent ... and upon a showing of real, substantial
and unanticipated change of circumstances, the court may annul, vary or modify an order made
under this subchapter if it is in the best interests of the child[.]" 15 V.S.A. § 668(a).
10
B.
Plaintiff's Legal Claims.
Section 1983 "allows an action at law against a 'person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be
subjected, any citizen of the United States ... to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws. '" Demoret v. Zegarelli, 451 F.3d
140, 149 (2d Cir. 2006) (quoting 42 U.S.C. § 1983).
In his seven count Complaint, Plaintiff alleges a number of constitutional
violations for which he seeks declaratory, injunctive and!or monetary relief including
compensatory and punitive damages. In Count I, he alleges a violation of procedural due
process against Defendant Dale and Keller in their individual and official capacities,
alleging that he had a right to be notified that the substantiation report would be released
to Ms. Judd and recommended for filing with the Family Court and be heard on the
matter prior to DCPs public release of the substantiation. He contends that "[a]ll of the
Defendants at all relevant times were fully aware that DCF workers routinely recommend
in writing and through verbal communications that parents file substantiation letters in
family courts during a case of controversy, and that this happens prior to an accused's
exhaustion of administrative remedies." Id. at ~ 73. He further alleges that "Defendants
Dale and Keller acted with deliberate indifference" by not enacting procedures that would
prevent DCF workers from acting in the alleged manner and that as a proximate cause of
their actions, he was forced to abandon his efforts to obtain medical decision-making
authority and suffered "fmancial injury, humiliation and
embarrassme~t,
injury to his
reputation, and emotional distress." Id. at ~ 76. He alleges a continuing violation
because Defendant Kellett's substantiation letter remains on file with the court.
In Count II, Plaintiff alleges a violation of procedural due process against
Defendant Kellett in his individual and official capacities, stating that Defendant Kellett
knew that he had a duty to provide Plaintiff with notice and an opportunity to be heard
before releasing the substantiation letter, that he acted with deliberate indifference in
failing to perform this duty, and that he knew or should have known that the failure to
11
provide notice and opportunity to be heard would cause Plaintiff to suffer injuries. He
alleges the same theory of causation and injuries as set forth in Count I.
In Count III, Plaintiff alleges procedural due process claims against Defendants
Kellett and Zumbruski in their individual and official capacities, claiming they
substantiated him for child abuse "when there was no reasonable basis to believe that
abuse occurred." Id. at ~ 84. He alleges these defendants knew or should have known
the substantiation would cause him injury, and alleges the same theory of causation and
injuries as in the preceding counts.
Count IV alleges a violation of procedural due process against Defendant
Zumbruski in her individual and official capacities, alleging that she violated Plaintiff s
"right to be free from governmental defamation by causing him to be substantiated for
emotional maltreatment child abuse when she knew such to be false and no reasonable
person would have found that such abuse occurred." Id. at ~ 92. He alleges that his
"legal status was altered because he was forced to abandon his effort to seek medical
decision-making authority over the children and, instead, finance an appeal of the untrue
substantiation to ensure the judgment did not become final and he was not placed on
Vermont's Child Abuse Registry." Id. at ~ 93. He alleges the same theory of causation
and injuries as in the preceding counts.
Count V alleges a violation of equal protection against Defendants Dziobek and
Keller in their individual and official capacities, contending they violated Plaintiffs right
"not to be assessed or investigated for abuse based on [Plaintiff s] real or perceived race,
ethnic background, national origin or racial heritage." Id. at ~ 98. He contends these
defendants were motivated by their false belief that he was an "Arab" to override the
intake worker's recommendation and to pursue an assessment that wrongfully resulted in
Plaintiff being substantiated and "publicly branded a child abuser." Id. at ~ 102. Plaintiff
alleges the same theory of causation and injuries as in the preceding counts. Count VI
alleges a parallel violation of equal protection against Defendants Zumbruski and Keller
in their individual and official capacities.
12
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I
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Finally, in Count VII, Plaintiff alleges a violation of due process against
Defendants Yacovone, Keller, and Kellett in their official capacities, alleging that when
DCF substantiates a person for child abuse and, prior to that person's exhaustion of his or
her administrative remedies, causes the filing of the substantiation letter in court knowing
this will afford the public access to it. He contends that when the substantiation is later
reversed, "due process requires that DCF formally and specifically .. notifY each person
and institution it caused to be wrongly informed and expunged all internal records ofthe
substantiation." Id. at ~ 110. He alleges that "[a] public record of substantiation for
child abuse is stigmatizing and can be a barrier to employment," id. at ~ 110, that it is
relied upon by guardians ad litem in making recommendations regarding a child's best
interests. He alleges that he requested DCF to expunge the record and it not only refused
to do so, but DCF has no policies and procedures in place to do so. Again, he alleges a
continuing violation because the substantiation letter remains on file.
C.
Defendants' Motion to Dismiss.
Without differentiating between individual and official capacity claims,
Defendants seek a dismissal of all counts in Plaintiff s Complaint for failure to state a
claim upon which relief may be granted. They contend that Plaintiffs claims fail as a
matter of law because (1) Plaintiff fails to allege a violation of a constitutionally
protected liberty or property interest; (2) Plaintiff received all the process that was due;
(3) Plaintiff s claim that false evidence was submitted in an administrative proceedings
does not allege a constitutional violation; (4) Plaintiff fails to plausibly allege any factual
basis for his claim of discrimination; and (5) to the extent Plaintiff alleges a constitutional
claim, Defendants are entitled to qualified immunity. Plaintiff opposes dismissaL
II.
Conclusions of Law and Analysis.
A.
Standard of Review.
When assessing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court
assumes the complaint's "factual allegations to be true and draw[s] all reasonable
inferences in the plaintiffs favor." Harris v. Mills, 572 FJd 66, 71 (2d Cir. 2009). The
court's analysis is confined "to facts stated on the face of the complaint, in documents
13
appended to the complaint or incorporated in the complaint by reference, and to matters
of which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40,
44 (2d Cir. 1991).
"[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss. Determining whether a complaint states a plausible claim for relief ... [is] a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Ashcroft v. Iqbal, 556 U.S. 662,679 (2009) (internal citation
omitted). "When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief."
Id.; see also Bell At!. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
However, the court need not credit factual allegations that are speculative in
nature, see Twombly, 550 U.S. at 555, and "legal conclusions," or "[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice." Harris, 572 F.3d at 72 (quoting Iqbal, 556 U.S. at 678) (internal quotation
marks omitted). Plaintiffs allegations that Defendants collectively held undisclosed false
beliefs regarding the propensity of Arabs to abuse their children fall within the
speCUlative and conclusory category and must be disregarded. See Albert v. Carovano,
851 F.2d 561, 572 (2d Cir. 1988) ("[N]aked allegation that appellees 'selectively
enforc[ed] the College rules ... against plaintiffs ... because they are black [or] Latin' is
too conclusory to survive a motion to dismiss.").
Even where a claim for relief has been stated, Defendants are entitled to qualified
immunity for the claims against them in their individual capacities if their alleged
conduct does not "violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 817-18
(1982). "A court evaluating a claim of qualified immunity "must first determine whether
r
the plaintiff has alleged the deprivation of an actual constitutional right at all [.
Wilson
v. Layne, 526 U.S. 603, 609 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290
(1999». "In the event that this threshold determination reveals a possible constitutional
violation, [a] qualified immunity defense is established if (a) the defendant's action did
14
not violate clearly established law, or (b) it was objectively reasonable for the defendant
to believe his action did not violate such law." Wilkinson v. Russell, 182 F.3d 89, 103 (2d
Cir. 1999) (citation and internal quotation marks omitted). This· standard ensures that "all
but the plainly incompetent or those who knowingly violate the law" will be protected by
qualified immunity. Malley v. Briggs, 475 U.S. 335,341 (1986).
B.
Whether Plaintiff States a Claim for Violation of Procedural Due
Process.
Plaintiff alleges that Defendants violated his right to due process when they
deprived him of three constitutionally protected interests: (1) access to the state courts;
(2) a relationship with his children; and (3) freedom from defamatory statements by state
officials.
A claimed violation of procedural due process involves a two-pronged analysis.
First, the court examines whether the state deprived Plaintiff of a constitutionally
protected interest. See Bd. ofRegents ofState Coils. v. Roth, 408 U.S. 564, 569 (1972).
Second, if Plaintiff has been deprived of a constitutionally protected interest, the court
determines "whether the procedures attendant upon that deprivation were constitutionally
sufficient." See Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004) (quoting Kentucky
Dep't ofCorrs. v. Thompson, 490 U.S.
454~
460 (1989» (internal quotation marks
omitted).
1.
Plaintiff's Allegation that he was Deprived of a Protected
Interest in Access to the State Courts.
Plaintiff asserts that he was deprived of his right to access the courts because he
was unable to pursue his motion for medical decision-making authority in Family Court.
In essence, he argues that he was forced to abandon his motion because he could no
longer afford legal counsel to pursue it as he was defending against false allegations of
child abuse.
15
It is well-established that there is a constitutional right to access the courts.
IO
See
Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 n.5 (1982) ("[H]aving made access to
the courts an entitlement or a necessity, the State may not deprive someone of that access
unless the balance<:9f state and private interests favors the government scheme."). A state
official's refusal to afford a party access to the courts, when such access "is the exclusive
precondition to the adjustment of a fundamental human relationship[,]" may thus violate
a party's procedural due process rights. See Boddie v. Connecticut, 401 U.S. 371, 383
(1971). A claim for denial of access to the courts requires an allegation "that defendant
'took or was responsible for actions that hindered [a plaintiffs] efforts to pursue a legal
claim.'" Davis v. Goord, 320 F.3d 346,351 (2d Cir. 2003) (quoting Monsky v.
Moraghan, 127 F.3d 243,247 (2d Cir. 1997)). Here, no such allegation exists.
Plaintiff sought and received access to the state courts to adjudicate his interests
related to medical decision-making authority with regard to his children. He does not
allege that the named Defendants interposed any obstacles to his access to the courts or
required him to pay fees or costs of any kind. He has also not alleged that he was
prohibited from pursuing his motion as a self-represented litigant. Accordingly, at best,
he alleges that Defendants interfered with his financial ability to continue pursuing his
motion with the legal counsel of his choice by allegedly providing false evidence that
could be used by his opponent and by effectively forcing him to direct his efforts to
appealing the child abuse substantiation. The courts have not recognized an impairment
of the right to access the courts on this basis. ll
The basis of this right has been found in several different sections ofthe Constitution. See
Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (explaining that the Court has grounded
decisions regarding the right to access the courts in the Privileges and Immunities Clause, the
Petition Clause, the Fifth and Fourteenth Amendment Due Process Clauses, and the Equal
Protection Clause).
10
11 In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court disclaimed certain elaborations on
prisoner's access to the courts, including suggestions that "the State must enable the prisoner ...
to litigate effectively once in court." ld. at 354. Other circuits have also distinguished between
difficulties continuing litigation and impediments to filing suit, concluding that the constitutional
right to access the courts does not protect a litigant against the former. See, e.g., Spitzmiller v.
16
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I __________________________________________________________________________________
~
Because Plaintiff does not allege Defendants prevented his access to the courts, he
fails to state a claim upon which relief may be granted. Plaintiff's due process claims, to
the extent they are based upon a denial of access to the courts, are therefore DISMISSED.
2.
Plaintiff's Allegation that he was Deprived of his Interest in a
Relationship with his Children without Due Process.
Plaintiff alleges that Defendants' actions also deprived him of his protected
interest in a relationship with his children. In support of this allegation, he points out that
he was forced to defend an emergency motion in Family Court seeking to suspend his
visitation rights which was, in part, occasioned by Defendant Kellett's unsolicited advice
to Ms. Judd that she file the substantiation letter with her motion. Plaintiff further points
out that the Family Court appointed guardians ad litem for C.W. and F.W., who were
allegedly informed that he had been substantiated for child abuse. Finally, he asserts that
he was forced to abandon his Family Court motion for medical decision-making
authority.
Defendants seek dismissal, asserting that Plaintiff fails to allege that his legal
relationship with his children was actually altered by any of their alleged acts or
omissions. They point out that no court has recognized a deprivation of procedural due
process based on the theory espoused by Plaintiff and even if such a claim could be
recognized, they would be entitled to qualified immunity with regard to it because it
could not be said to be "clearly established."
The relationship between parent and child is a constitutionally protected interest.
See ML.B. v. S.L.J., 519 U.S. 102, 116 (1996) ("Choices about marriage, family life, and
the upbringing of children are among associational rights this Court has ranked as 'of
basic importance in our society,' rights sheltered by the Fourteenth Amendment against
Hawkins, 183 F.3d 912,916 (8th Cir. 1999) (holding that plaintiff was not denied access to
federal courts when he in fact filed two federal lawsuits and allegations simply stated that
defendants withheld information and conducted private hearings); Foster v. City o/Lake
Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (finding that the right to access the courts
"encompassed a right to file an action, but not the right to proceed free of discovery abuses after
filing.").
17
---
I
______________________________________________________________________________
~
the State's unwarranted usurpation, disregard, or disrespect.") (quoting Boddie, 401 U.S.
at 376); see also Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999) ("Parents ...
have a constitutionally protected liberty interest in the care, custody and management of
their children."); Duchesne v. Sugarman, 566 F .2d 817, 825 (2d Cir. 1997) ("Th[ e] right
to the preservation of family integrity encompasses the reciprocal rights of both parent
and children."). However, "this interest is counterbalanced by the compelling
governmental interest in the protection of minor children, particularly in circumstances
where the protection is considered necessary against the parents themselves." Russell,
182 F.3d at 104.
The Second Circuit has recognized that child abuse investigations have the
potential to interfere with this interest in violation of both procedural and substantive due
processY See Southerland v. City o/New York, 680 F.3d 127, 142 (2d Cir. 2012) (ruling
that, where father sued child protective services caseworker for removal of child, "[ f]irst,
both the parents and the children may have a cause of action for violation of the
Fourteenth Amendment under a theory of denial of procedural due process ... Second, a
parent may also bring suit under a theory of violation of his or her right to substantive
due process.")Y Accordingly, "[a]s a general rule ... before parents may be deprived of
the care, custody, or management of their children without their consent, due process
ordinarily a court proceeding resulting in an order permitting removal - must be accorded
to them." Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (quoting Tenenbaum,
193 F.3d at 593) (internal quotation marks omitted).
12
Plaintiff does not allege a substantive due process violation.
Defendants rely on a prior version of Southerland for the proposition that "even the 'brief
removal of children from the custody of their parents for several days is not a due process
violation" (Doc. 3 at 14) (citing Southerlandv. City o/New York, 667 F.3d 87, 112-l3 (2d Cir.
2012). After Defendants' motion was filed, the cited Southerland opinion was superseded by an
opinion denying summary judgment in favor of a child protective services caseworker for a
parent's procedural due process claim and concluding that absent a true emergency, a parent
cannot be deprived of custody of his or her child without a pre-deprivation hearing. See
Southerland, 680 F.2d at 150-51.
13
18
Plaintiff does not allege that his visitation or other rights with regard to his
children were modified or diminished as a result of Defendants' substantiation and other
acts or omissions. Plaintiff cites no authority, and the court has found none, to support a
claim of deprivation of a constitutionally protected interest in relationship with children
without "some factual allegation indicating actual interference with the custody of a
child, i.e., removal." Skalaban v. Dep '( ofChildren & Families, 314 F. Supp. 2d 101,
110 (D. Conn. 2004) (granting defendants' motion to dismiss when plaintiff alleged that
defendants falsely accused him of abusing his son but failed to allege interference with
any rights he had with respect to his son); Daniels v. Murphy, 2007 WL 1965303, at *4
(E.D.N.Y. July 2,2007) (holding that "because plaintiff does not allege that a state actor
'remove[d] a child from a parent's custody,' the complaint fails to present circumstances
that would trigger plaintiff s entitlement to the 'procedures that must be afforded to a
parent when the coercive power of the State seeks to separate them' from their children.")
(citation omitted); Brennan v. County ofBroome, 2011 WL 2174503, at *7 (N.D.N.Y.
June 2, 2011) ("Plaintiff also fails to present a viable procedural due process claim
against Defendant based upon his liberty right to the custody of his son. Again, the claim
fails because Defendant did not remove the child from plaintiffs custody.").
While a court should be reluctant to dismiss novel claims, this reluctance fades
when the court is confronted with case law dismissing the precise claim for failure to
state a claim and where qualified immunity would apply even if the claim were permitted
to proceed. Accordingly, the court must DISMISS Plaintiffs procedural due process
claims, to the extent they are based on a deprivation of his interest in a relationship with
his children.
3.
Plaintiff's Allegation that he was Deprived of an Interest in his
Reputation.
Finally, Plaintiff claims that Defendants' actions deprived him of a
constitutionally protected interest in his reputation by defaming him and imposing on him
a legal duty to both defend himself against the substantiation of child abuse and respond
to the motion in Family Court to suspend his visitation rights. He alleges that all of the
19
Defendants are aware that DCF workers routinely advise parents to file substantiation
letters to gain an advantage in a state court custody dispute even when the accused child
abuser has not exhausted his or her administrative remedies which is precisely what
occurred in his case. He alleges that Defendants Zumbruski, Kellett, and Keller also
fabricated evidence against him. Defendants respond that Plaintiffhas not and cannot
state a claim because he was not deprived of a tangible interest.
There is a constitutional right to be free from a false stigmatizing statement if it is
coupled with the "deprivation ofa tangible interest[.]" Algarin v. Town o/Wallkill, 421
F.3d 137, 138 (2d Cir. 2005); see also Paul v. Davis, 424 U.S. 693, 708-09 (1976)
(requiring both the "stigma" resulting from a defamatory statement plus an alteration in
legal status in order to find deprivation of a liberty interest warranting the safeguards of
procedural due process). In Vega v. Lantz, the Second Circuit explained:
To establish a 'stigma plus' claim, a plaintiff must show (1) the
utterance of a statement sufficiently derogatory to injure his or her
reputation, that is capable of being proved false, and that he or she claims is
false, and (2) a material state-imposed burden or state-imposed alteration of
the plaintiff's status or rights. This state-imposed alteration of status or
burden must be in addition to the stigmatizing statement. Thus, even where
a plaintiff's allegations would be sufficient to demonstrate a government
imposed stigma, such defamation is not, absent more, a deprivation .of a
liberty or property interest protected by due process.
Vega, 596 F.3d 77,81 (2d Cir. 2010) (internal citations and quotation marks omitted).
In his Complaint, Plaintiff alleges that he suffered a stigma when Defendants
disseminated a letter to Ms. Judd that "falsely" substantiated him for child abuse and
suggested that Ms. Judd file the letter in Family Court. He points out the substantiation
was based on statements that Defendant Zumbruski allegedly falsely attributed to Dr.
Senior, F.W.'s teacher, and C.W.'s school counselor, respectively. He further alleges that
this created a public record of the false substantiation, which caused "humiliation and
embarrassment, [and] injury to [Plaintiff's] reputation." (Doc. 1 at ~ 95.)
Satisfaction of the first prong of "stigma plus" requires a "stigma, that is, in 'public
opprobrium' and damage to [plaintiff's] reputation." Valmonte v. Bane, 18 F.3d 992,999
20
(2d Cir. 1994). The stigmatizing statement must also be false. See Balentine v.
Tremblay, 2012 WL 1999859, at *5 (D. Vt. June 4,2012) (dismissing plaintiffs "stigma
plus".claim, noting that plaintiff did not claim a false statement).
"[B]randing [a person] as a child abuser ... certainly calls into question [his or
her] 'good name, reputation, honor, or integrity.'" Valmonte, 18 F.3d at 1000 (quoting
Roth, 408 U.S. at 573). Assuming the veracity of Plaintiffs allegations, that Defendant
Zumbruski "manufactured false evidence" (Doc. 1 at ~ 54) in order to justify
substantiating him for child abuse, Plaintiff satisfies the first prong of the "stigma plus"
test. However, Plaintiff must also allege that there was a state-imposed burden or
alteration of his rights in order to satisfy the "plus" prong of the test. See Velez v. Levy,
401 F.3d 75,87-88 (2d Cir. 2005) (explaining that, by itself "[a] free-standing
defamatory statement ... is not a constitutional deprivation, but is instead properly
viewed as a state tort of defamation [.]") (citation and internal quotation marks omitted).
Courts have not clearly defined when a particular burden or alteration of rights
fulfills the "plus" prong of the "stigma plus" doctrine. See Neu v. Corcoran, 869 F.2d
662,667 (2d Cir. 1989) ("[I]t is not entirely clear what the 'plus' is."). However, some
examples that meet the requirement include: deprivation of professional privileges, 14
termination of government employment,I5 removal from a community board,I6 and
legally imposed burdens on obtaining private employment. I7 The Second Circuit has
14 See Greenwoodv. NY, Office o/Mental Health, 163 F.3d 119,124 (2d Cir. 1998) (finding
"plus" prong was satisfied where plaintiff was deprived of "a property interest in clinical
privileges.").
15 See Patterson v. City o/Utica, 370 F.3d 322,336 (2d Cir. 2004) ("A stigma-plus
claim ... requires that a plaintif:f s interest in his reputation be implicated in connection with his
termination from government emp10yment.").
See Velez, 401 F.3d at 90 (finding that removal from office as a school board member based on
stigmatizing statements satisfied "plus" prong ofthe "stigma plus" interest).
16
See Valmonte, 18 F.3d at 1002 (concluding that plaintiff satisfied the "plus" prong when
employers were statutorily required to justify hiring plaintiff because of her inclusion on the
child abuse registry).
17
21
explained that, to satisfy the "plus" prong, "deleterious effects which flow directly from a
sullied reputation would normally ... be insufficient. These would normally include the
impact that defamation might have onjob prospects, or, for that matter, romantic
aspirations, friendships, self-esteem, or any other typical consequence of a bad
reputation." 18 Valmonte, 18 F.3d at 1001. Instead, "the damage [to one's reputation]
must be accompanied by some significant deprivation[.]" O'Neill v. City ofAuburn, 23
F.3d 685,691 n.2 (2d Cir. 1994).
There is no constitutional right to be free from an erroneous child abuse
substantiation. See Southerland, 680 F.3d at 152 (recognizing the competing interests
between the parents and the government, the court explained that "[a]n investigation [of
child abuse] passes constitutional muster provided simply that case workers have a
'reasonable basis' for their findings of abuse.") (quoting Russell, 182 F.3d at 104); see
also Cornigans v. Mark Country Day Sch., 2006 WL 3950335, at *16 (E.D.N.Y. July 12,
2006) ("[W]ell-intentioned reports that are ultimately ruled unfounded are to be expected
in the efforts to identify and combat child abuse.").
Moreover, in reviewing "stigma plus" claims in cases of child abuse
substantiations, the majority of courts have also concluded that the "plus" element is not
satisfied simply because a person is the subject of an investigation or is listed on a child
abuse registry. See, e.g., Behrens v. Regier, 422 F.3d 1255, 1260-61 (lIth Cir. 2005)
(acknowledging that inclusion on the child abuse registry was stigmatizing, but affirming
the district court's dismissal of plaintiffs "stigma plus" claim because state law did not
recognize any right to adopt an unrelated child, which was plaintiffs alleged "plus");
Miller v. California, 355 F.3d 1172, 1178-79 (9th Cir. 2004) (recognizing that plaintiffs
identified a triable issue of fact regarding whether being falsely listed as a suspected child
See, e.g., Tafuto v. NY State Office for Children and Family Servs., 2012 WL 4459803, at *7
(S.D.N.Y. Sept. 25, 2012) (concluding that allegations of day care provider that state notified
parents "that their children were the subject of an indicated report ... at best, make out a simple
defamation claim." The court went on to explain that "[w]hile [p]laintiffmay have lost business
as a result of these disclosures, those losses are examples of the'deleterious effects which flow
directly from a sullied reputation.") (quoting Valmonte, 18 F.3d at 1001).
18
22
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1 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _
------------------------------------
abuser was defamatory, but denying plaintiffs' "stigma plus" claim because plaintiffs
experienced no change in legal status following the listing); Glasford v. NY. State Dep't
ofSoc. Servs., 787 F. Supp. 384, 387-88 (S.D.N.Y. 1992) (dismissing plaintiffs "stigma
plus" claim, explaining that the "complaint ... does not allege that plaintiffs
employment prospects suffered as a result of the report in the [child abuse register.]").
Here, however, Plaintiff does not merely contend that he was erroneously
substantiated for child abuse based upon a good faith investigation. To the contrary, he
alleges that the investigation was not conducted in good faith, was never opened or
conducted as a statutory investigation, included fabricated evidence, was motivated by
ethnic discrimination, and included willfully bypassing statutory procedures and then
amending DCF's records evidence to suggest otherwise. Plaintiff further asserts that the
allegedly false substantiation gave rise to obstacles that he would not have otherwise
faced. These include DCF's alleged interference in his Family Court proceedings on
behalf of Ms. Judd by suggesting she file the substantiation letter in court,19 when
Defendants knew or should have known that Plaintiff had yet not exhausted his rights to
administrative review and thus the substantiation was not final. This allegedly resulted in
a state-created false public record of child abuse. Plaintiff alleges that, as the proximate
result of Defendants' acts and omissions, he suffered quantifiable monetary damages in
addition to the damage to his reputation.
Although a novel claim for relief, the court cannot conclude, as a matter of law,
that Plaintiff has failed to identify state-imposed burdens that arguably satisfy the "plus"
prong of the "stigma plus" test. See Adato v. Kagan, 599 F.2d 1111, 1117 (2d Cir. 1979)
("Tenuous theories of liability are better assayed in the light of actual facts than in
pleader's supposition."); see also Braden v. Univ, ofPittsburgh, 477 F.2d 1,4-5 (3d Cir.
1973) ("Very important constitutional questions are presented and the Supreme Court has
repeatedly informed us that such difficult issues should not be decided except upon a full
19 While the statute required DCF to inform Ms. Judd of the substantiation, see 33 V.S.A. §
4921 (b), it did not require Defendants to advise her to file the substantiation letter in Family
Court.
23
record and after adequate hearing."). Accordingly, this portion of Plaintiffs claim
survives Defendants' motion to dismiss. Concluding that Plaintiff has adequately alleged
that he was deprived of constitutionally protected interest in his reputation, the court next
determines whether Plaintiff adequately alleges that Defendants failed to employ due
process in the alleged deprivation of that interest. See Shakur, 391 F.3d at 118.
4.
Plaintiff's Allegations of a Denial of Due Process.
As Defendants correctly point out, Plaintiff concedes that he was contacted by
Defendant Zumbruski prior to the substantiation and was provided with some notice of
the subject matter of the allegations albeit without specific details. DCF interviewed
various individuals, including C.W. and F.W., prior to the substantiation. Plaintiff also
admits that DCF sent him a letter advising him of the substantiation and the basis for it,
and also notified him of his right to appeal, and the consequences of a failure to appeal.
Finally, Plaintiff concedes that he successfully appealed the substantiation, and "the
independent reviewer ... concluded that 'the evidence [did] not meet the current legal
and policy standards for substantiation.'" (Doc. 1 at ~ 66.) Defendants contend that this
is all the process Plaintiff was due. Plaintiff disagrees and claims that, at a minimum,
Defendants should be required to follow their own procedures before it created a public
and allegedly false record of child abuse substantiation. Here, the only issue is the
adequacy of Plaintiff s pleading.
The Supreme Court has held that simple negligence is insufficient to support a due
process claim. Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding "[t]he Due
Process Clause is not implicated by a state official's negligent act causing unintended
loss of or injury to life, liberty or property."). "The circuit courts have responded
accordingly in requiring a state of mind element such as recklessness or gross
negligence." Brown v. Montoya, 662 F.3d 1152, 1170 (10th Cir. 2011) (citing Chambers
v. Sch. Dist. ofPhi/a. Bd. ofEduc., 587 F.3d 176, 196 (3d Cir. 2009) (requiring that, for a
procedural due process claim, a plaintiff "at a minimum, prove recklessness or gross
negligence") (quotation omitted); Howardv. Grinage, 82 F.3d 1343,1350 (6th Cir. 1996)
(requiting "conduct undertaken with something more than negligence")).
24
In his Complaint, Plaintiff alleges that Defendants Zumbruski, Kellett, and Keller
each had personal involvement in the alleged due process violation,20 and that they acted
willfully and intentionally in an effort to discriminate against Defendant based upon his
perceived status as an "Arab." For purposes of pleading, Plaintiff has thus alleged a state
of mind beyond simple negligence.
As Defendants point out, regardless of their alleged state of mind, Plaintiff cannot
base a claim of violation of due process solely on allegations that state actors failed to
follow state law or procedures. See Holcomb v. Lykens, 337 F.3d 217,225 (2d Cir. 2003)
("The defendants may have breached Vermont law or their own procedures, and their
conduct may have been deplorable for that reason, but it did not violate the Fourteenth
Amendment."); Robison v. Via, 821 F.2d 913,922 (2d Cir. 1987) (explaining that "a
violation of state law neither gives [plaintiff] a § 1983 claim nor deprives defendants of
the defense of qualified immunity to a proper § 1983 claim," because, "[f]ederai
constitutional standards rather than state statutes define the requirements of procedural
due process"); Pol/now v. Glennon, 757 F.2d 496,501 (2d Cir. 1985) ("[I]t is
unnecessary for us to determine whether appellees violated any applicable state law.
Clearly, a violation of state law is not cognizable under § 1983."). Defendants are
incorrect, however, in their further assertion that compliance with applicable statutory
procedures is "irrelevant." See Doc. 3 at 20 ("Plaintiffs various allegations suggesting
that the investigation did not comport with state procedures are irrelevant to his due
process claims."). The Second Circuit has held that "[o]ur precedent indicates that a
failure to abide by established procedures or standards evince an improper objective."
Shakur v. Selsky, 391 F.3d 106, 116 (2d Cir. 2004); see also Kuck v. Danaher, 2012 WL
4904387, at *30 (D. Conn. Oct. 16,2012) ("[T]his court has found that Plaintiffs have
plausibly stated a due process violation .. '. [and1 that a failure to follow statutory
procedures can rise to the level of a due process violation.").
20 See Wright v. Smith, 21 F.3d 496,501 (2d Cir. 1994) ("It is well settled in this Circuit that
'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.'') (citation omitted).
25
If Plaintiffs allegations are accepted as true, Plaintiff was arguably
"substantiated" for child abuse based upon an "assessment" in violation of Vermont law.
While not dispositive, such noncompliance with applicable statutory procedures is clearly
relevant to whether he was afforded procedural due process. The constitutional
deprivation Plaintiff alleges is based upon Defendants' pre-substantiation acts and
omissions and the publication of the substantiation before he had exhausted his
administrative remedies.
"[T]he fundamental requisite of due process of law is the opportunity to be heard.
This right to be heard has little reality or worth unless one is informed that the matter is
pending and can choose for himself whether to appear or default, acquiesce or contest."
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (internal citations
and quotation marks omitted). The opportunity to be heard must thus occur "at a
meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319,333
(1976). Moreover, 'procedural due process rules are shaped by the risk of error inherent
in the truthfinding process as applied to the generality of cases." Id. at 344. "In other
words, the requirement of a hearing or other procedural safeguard typically will not
depend on the quantum of evidence possessed by the government in anyone particular
case." Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000).
Courts must balance a number of facts in determining whether due process has
been afforded:
[I]dentification of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private interest that will be
affected by the official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and fmally, the
Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
ld at 335.
"Under Mathews the cases inevitably tum on their particular facts[.]" McKithen v.
Brown, 481 F.3d 89, 107 (2d Cir. 2007); see also Ciambriello v. Cnty. ofNassau, 292
26
F.3d 307,319 (2d Cir. 2002) ("The determination of whether one is entitled to a pre
deprivation hearing is fact-specific, as 'due process is flexible and calls for such
procedural protections as the particular situation demands.''') (quoting Mathews, 424 at
334).
In this case, the facts are not established, nor do the parties agree as to the pre
deprivation process that was afforded to Plaintiff. Instead, the court is faced with
allegations that Defendant Zumbruski allegedly fabricated evidence in support of the
substantiation while motivated by a discriminatory belief that she was investigating an
"Arab" and that "cultural factors" were contributing to the alleged abuse. Plaintiff further
alleges that Defendant Kellett advised Ms. Judd to use the substantiation against Plaintiff,
knowing that it was neither final nor the product of an "investigation." Finally, Plaintiff
alleges that Defendant Kellett and Keller participated in an alteration ofDCF's records to
cover up these facts. Accepting these allegations as true, the court cannot determine, as a
matter of law, that due process was afforded Plaintiff prior to the deprivation he claims as
the basis for his stigma-plus claim.
Where the facts material to the determination of a due process claim have not been
established, a court may deny a motion to dismiss until the factual record is developed.
See Kuckv. Danaher, 600 F.3d 159,167 (2d Cir. 2010) (noting that pleadings did not
establish that due process was afforded, concluding that a procedural due process claim
had been stated, and observing that "[w]hether discovery will bear out [t]his claim is a
matter for the district court to determine on remand.").
The court thus DENIES Defendants' motion to dismiss Plaintiff's stigma-plus
procedural due process claims against them for failure to state a claim. However, even if
Defendants violated Plaintiff' sconstitutionally protected right to due process, Plaintiff's
claims must be dismissed if Defendants are entitled to qualified immunity because that
right was not clearly established.
C.
Whether Plaintiff's Due Process Claim was Clearly Established.
Qualified immunity protects government officials from lawsuits over errors made
while reasonably performing their duties, whether resulting from "a mistake of law, a
27
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1 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
mistake of fact, or a mistake based on mixed questions of law and fact." Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)
(Kennedy, J., dissenting». The privilege is "an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As
a result, the Supreme Court has "stressed the importance of resolving immunity questions
at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991).
To determine whether a right is clearly established, the court will look to "(1)
whether the right was defined with reasonable specificity; (2) whether Supreme Court or
court of appeals case law supports the existence of the right in question, and (3) whether
under preexisting law a reasonable defendant would have understood that his or her acts
were unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). The standard does
not mean that "an official action is protected by qualified immunity unless the very action
in question has previously been held unlawful[.]" Anderson v. Creighton, 483 U.S. 635,
640 (1987). Instead, the question is whether pre-existing law from this and other circuits
provides officers with "fair warning" that the conduct in question is unlawful. Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (examining "whether the state of the law [at the time]
gave respondents fair warning that their alleged treatment of [plaintifI] was
unconstitutional"); see also Scott, 616 F.3d at 105 (explaining that courts may rely on
precedent from other circuit courts of appeals in deciding whether a right is clearly
established).
Defendants contend that they are entitled to qualified immunity with respect to
Plaintiffs due process claims because the reputational interest which he alleges amounts
to a new extension of the law. Plaintiff responds that his right to be free from a "stigma
plus" deprivation of his rights was clearly established. He further argues that Defendants
Zumbruski, Kellett, and Keller in particular, should not be entitled to qualified immunity
because they falsified and fabricated evidence.
"[Q]ualified immunity operates to ensure that before they are subjected to suit,
officers are on notice their conduct is unlawful." Hope, 536 U.S. at 739. In situations
28
where "[t]he state of the law was at best undeveloped at the relevant time ... officers
cannot have been expected to predict the future course of constitutional law." Wilson v.
Layne, 526 U.S. 603, 605 (1999). While the Second Circuit has "applied the 'stigma
plus' test many times," Doe v. Dep't ofPub. Safety ex reI. Lee, 271 F.3d 38, 50 (2d Cir.
2001), rev'd on other grounds, Conn. Dep't ofPublic Safety v. Doe, 538 U.S. 1 (2003), it
has stated that "it is not entirely clear what the plus is." Neu, 869 F.2d at 667. "[The
Second Circuit] often elide[ s] the issue of whether the defendant had deprived the
plaintiff of a [stigma plus] interest, concluding that the defendant was in any event
entitled to prevail on grounds of qualified immunity because any such interest was not
clearly established at the time of the alleged violation." Doe v. Dep't ofPub. Safety, 271
F.3d at 50.
Plaintiff cites no precedent that the "plus" prong ofthe "stigma plus" analysis may
be satisfied in the manner he proposes in this case. Because of this lack of precedent, the
court cannot conclude that the right was clearly established at the time that Defendants
substantiated Plaintiff for child abuse. Accordingly, the court GRANTS Defendants'
motion to dismiss Plaintiffs stigma-plus procedural due process claims against
Defendants Dale and John Doesin their individual capacities. Plaintiff's claims against
Defendants Zumbruski, Kellett, and Keller, however, require additional scrutiny.
If, as Plaintiff alleges, Defendant Zumbruski, Kellett, and Keller fabricated
evidence in support of the substantiation, it would not have been objectively reasonable
for them to believe the substantiation of Plaintiff for child abuse based on such evidence
was lawful. In cases where there is a plausible claim of state-fabricated material
evidence, the fmder of fact must first determine whether the alleged fabrication occurred
before the court can determine whether qualified immunity is available. See Southerland,
630 F .3d at 146 ("[W]e do not ... agree with the district court's conclusion that no
reasonable juror could find that [the child protective services caseworker] did not
knowingly or recklessly make false statements-the immunity inquiry. We think that
several disputed facts, taken together and viewed in the light most favorable to the
plaintiffs, would permit a reasonable factfmder to find otherwise."). Indeed, in a parallel
29
context, the Second Circuit has repeatedly held that qualified immunity is not available
where the constitutional deprivation at issue is alleged to have occurred "as a result of the
fabrication ofevidence by a government officer acting in an investigation capacity[.]"
Zahrey v. Coffey, 221 F.3d 342,342 (2d Cir. 2000); Scotto v. Almenas, 143 F.3d 105, 113
(2d Cir. 1998) ("On the present record, Almenas cannot establish his entitlement to
qualified immunity as a matter of law. Scotto alleges that Almenas fabricated a parole
violation and arrested him knowing he lacked probable cause to do so. Such conduct, if
proved, would plainly violate Scotto's clearly established right to be free from arrest in
the absence of probable cause."); Ricciuti v. NYC Transit Auth., 124 F.3d 123,129 (2d
Cir. 1997) (reversing grant of summary judgment because "plaintiffs' evidence could
support view" that defendants cooperated in an unlawful arrest and then "falsifIied] the
circumstances, although they knew there was no probable cause to justifY the arrest.");
see also Sakoc v. Carlson, 2012 WL 3929904, at *13 (D. Vt. Sept. 10,2012) (denying
motion to dismiss based on qualified immunity because the material facts were in dispute,
including whether evidence in support of probable cause was fabricated which would
render it unreasonable for law enforcement officer to believe that an arrest based upon
such evidence was lawful).
For the foregoing reasons, the court DENIES Defendants' motion to dismiss
Plaintiffs stigma-plus procedural due process claims against Defendants Zumbruski,
Keller and Kellett.
D.
Whether Plaintiff has Adequately Alleged Equal Protection Claims
Against Defendants.
In Counts V and VI of the Complaint, Plaintiff alleges Defendants Zumbruski,
Dziobek, Kellett, and Keller violated his right to equal protection, claiming that each
made decisions while investigating and substantiating him for child abuse based on his or
her mistaken belief that he was an "Arab." He alleges that the laws related to the
assessment, investigation, and substantiation of reports of child abuse were facially
neutral, but his rights were infringed because these laws were applied in a discriminatory
manner based upon perceived ethnicity.
30
...
1 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _
In support of his equal protection claim, Plaintiff makes several factual assertions,
including: (1) the intake form stated that Plaintiff was an "Arab;" (2) only Plaintiffs
perceived ethnicity is indicated on the form, although other individuals are mentioned;
(3) the form lists "cultural factors" as a "contributing factor" to the alleged abuse (Doc. 1
at ~ 32); and (4) Defendant Zumbruski falsely attributed an allegedly racist statement to
Dr. Senior, that Plaintiff "is a boy" and "is unbelievable." Id.
at~. 43.
"The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall 'deny to any person within its jurisdiction the equal protection of the laws,'
which is essentially a direction that all persons similarly situated should be treated alike."
City o/Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler
v. Doe, 457 U.S. 202, 216 (1982)); see also Yick Wo v. Hopkins, 118 U.S. 356,373
(1886) ("Though the law itself be fair on its face, and impartial in appearance, yet, if it is
applied and administered by public authority with an evil eye and an unequal hand, so as
practically to make unjust and illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal justice is still within the
prohibition ofthe [C]onstitution."). In equal protection cases, the plaintiff must establish
that the conduct "had a discriminatory effect and that it was motivated by a
discriminatory purpose." Wayte v. United States, 470 U.S. 598, 608 (1985).
"When pleading a violation of the Equal Protection Clause, it is sometimes
necessary to allege the existence of a similarly situated group that was treated
differently." Brown v. City o/Oneonta, N.Y., 221 F.3d 329,337 (2d Cir. 2000).
However, the Second Circuit has clarified that, "[a] plaintiff alleging an equal protection
claim under a theory of discriminatory application of the law ... generally need not plead
or show the disparate treatment of other similarly situated individuals." Pyke v. Cuomo,
258 F.3d 107, 108-09 (2d Cir. 2001); see also Winfield v. Trottier, 2011 WL 4442933, at
*16 (D. Vt. Sept. 21, 2011) ("Pyke 'dispenses with the need to [show] that a similarly
situated group was treated differently because,' whenever 'racially discriminatory intent
infects the application of a neutral law or policy, ... adverse [discriminatory] effects can
be presumed."') (quoting Doe v. Vi!!. 0/ Mamaroneck, 462 F. Supp. 2d 520,543
31
(S.D.N.Y. 2006)); Coward v. Town and Vill. o/Harrison, 665 F. Supp. 2d 281,303
(S.D.N.Y. 2009) (finding plaintiff alleged a prima facie equal protection violation when
he was arrested for harassment, which he asserted did not occur, and he was "the only
African-American in the [p]ark at the time of his arrest").
In this case, the court's inquiry is further complicated by the fact that it is not clear
from Plaintiff's Complaint whether Plaintiff in fact belongs to a protected class as an
"adult ethnic [man] of color" (Doc. 1 at,-r 43), but does not possess Arab ethnicity, or
whether he does not belong to any protected class and thus bases his equal protection
claim solely upon the Defendants' erroneous assumption that he does. In either case,
Plaintiff does not allege that he was discriminated against based on his actual race and
ethnicity, but on what Defendants perceived as his Arab ethnicity.
Some courts have recognized that intentional discrimination based on a
misperception that a plaintiff belongs to a protected class of persons can form the basis of
an equal protection violation. See Stemler v. City o/Florence, 126 F.3d 856,874 (6th
Cir. 1997) (reversing dismissal of plaintiff's claims, finding that plaintiff had alleged that
"the defendants violated the core principle of the Equal Protection Clause by choosing to
exercise the power of the state against [plaintiff] solely for the reason that they
disapproved of her perceived sexual orientation") (emphasis supplied); Major Tours, Inc.
v. Co lore I, 799 F. Supp. 2d 376,392-93 (D.N.I. 2011) (explaining that an equal
protection violation can be found if "a reasonable factfinder could infer that the State
Defendants knew, or operated on their belieft about, the race of the remaining four bus
company owners") (emphasis supplied); Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 134
(D. Conn. 2010) (finding allegations that "defendant officers targeted a primarily Latino
neighborhood, arrested people who appeared Latino, [and] detained one plaintiff solely
because he spoke Spanish and appeared Latino" were sufficient for an equal protection
claim) (emphasis supplied). At least one court, however, has concluded that there can be
no constitutional claim based solely upon a perceived membership in a protected class.
See Longmire v. City o/Oakland, 2010 WL 4510854, at *6 (N.D. Cal. Nov. 2,2010)
("[T]hough there may be sufficient factual allegations to assert a discrimination claim
32
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1 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _
under Title VII based on the perception of [p]laintiff as a member of a certain religion,
neither [p]laintiff nor the [c]ourt have found any authority to support the claim under a
constitutional rubric .... [T]here is no authority for the perception theory of liability in
the constitutional arena.").
Plaintiff bears the burden of proving intentional discrimination;21 however, at this
juncture, he has sufficiently alleged that Defendants engaged in intentional discrimination
by treating him differently in applying facially neutral laws because of their mistaken
belief that he was an "Arab." Pyke, 258 F.3d at 110 (recognizing equal protection claim
where "facially neutral law or policy has been applied in an intentionally discriminatory
race-based manner[.]"); see also Aikman v. Cnty. o/Westchester, 491 F. Supp. 2d 374,
377,383 (S.D.N.Y. 2007) (finding allegations that officers conducted surveillance on
plaintiff prior to traffic stop, used a broken side-view mirror as a pretext to pull plaintiff
over, and stopped plaintiff because he was African-American, were sufficient to survive a
motion to dismiss).22 Although neither the United States Supreme Court nor the Second
Circuit have recognized an equal protection violation based upon perceived ethnicity, at
this nascent stage in the proceedings, the claim is sufficiently plausible to survive a
motion to dismiss. See Adato, 599 F .2d at 1117; see also Elec. Constr. & Maint. Co. v.
Maeda Pac. Corp., 764 F.2d 619,623 (9th Cir. 1985) ("The court should be especially
reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is
novel or extreme, since it is important that new legal theories be explored and assayed in
See Pyke, 258 F.3d at 110 ("Plaintiffs will, of course, be required to substantiate their claim
that the [decision] was motived by racial discrimination."); Howard v. Senkowski, 986 F.2d 24,
25 (2d Cir. 1993) ("The claimant always has to prove discriminatory motivation.").
21
22 Courts in the Second Circuit have also denied motions to dismiss and motions for summary
judgment for equal protection claims wherein a plaintiff alleges that the defendant used racial or
ethnic epithets toward the plaintiff. See, e.g., Snoussi v. Bivona, 2010 WL 3924683, at *5
(E.D.N.Y. Sept. 29, 2010) (finding plaintiff's allegations that defendants "called him a 'fucking
Arab,' a 'fucking terrorist: and other 'derogatory comments aimed athis religious, ethnic and
racial background' [were] sufficient to state a claim of intentional discrimination."); Vilkhu v.
City o/New York, 2008 WL 1991099, at *5 (E.D.N.Y. May 5, 2008) ("[A] reasonable juror
could fmd that the use of racial epithets supports the detennination that the defendants violated
plaintiff's right to equal protection.").
33
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1 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _
the light of actual facts rather than a pleader's suppositions.") (quoting 5 C. Wright & A.
Miller, Federal Practice and Procedure § 1357 (3d ed. 1969)) (internal quotation marks
omitted); Sherman v. St. Barnabas Hosp., 535 F. Supp. 564, 571 (S.D.N.Y. 1982)
(acknowledging that no successful claim had previously been made, the court found that
in a "developing area of the law it would be imprudent at the pleading stage to dismiss
categorically the possibility.").
Defendants contend that even if Plaintiff does adequately allege an equal
protection violation, they are entitled to qualified immunity because they did not violate a
clearly established right.
E.
Whether Plaintiff's Right to be Free from Discrimination Based on
Perceived Ethnicity was Clearly Established.
There is scant authority addressing whether discrimination against an individual
based on a misperception that the individual belongs to a suspect class violates the Equal
Protection Clause. Defendants are entitled to qualified immunity if Plaintiff s right to be
free from such discrimination was not clearly established at the time of the violation. See
Tracy v. Freshwater, 623 F.3d 90,99 n.5 (2d Cir. 2010). "The contours ofthe right must
be sufficiently clear that a reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, the
lack of controlling precedent and a split in authority would alone dictate a finding that the
right is not clearly established. See Morgan v. Swanson, 659 F.3d 359,372 (5th Cir.
2011) ("Where no controlling authority specifically prohibits a defendanf s conduct, and
when the federal circuit courts are split on the issue, the law cannot be said to be clearly
established.") (citing Wilson v. Layne, 526 U.S. 603, 617-18 (1999)).
However, in this case, the detennination is rendered more complex by two factors.
First, Plaintiff may in fact belong to a protected class - just not the one that Defendants
allegedly intended to discriminate against. In that circumstance, Plaintiff s right to be
free from intentional racial or ethnic discrimination would be clearly established. See
Patterson v. Balsamico, 440 F.3d 104, 115 (2d Cir. 2006) (finding equal protection claim
arising from race-based discrimination "involved 'clearly established statutory or
34
constitutional rights of which a reasonable person would have known."') (quoting
Harlow, 457 U.S. at 818).
A much closer and more nuanced question is whether a defendant violates a
clearly established right when he or she is alleged to have intended to engage in
prohibited ethnic discrimination, but is simply mistaken in the belief that the intended
recipient of that discrimination belongs to a protected class. In such instances, the
intentional discrimination is clearly directed towards violating a clearly established right
but it misses its target because the recipient is not part of a protected class. It would be
objectively unreasonable for Defendants Zumbruski, Dziobek, Kellett, and Keller to
believe they could discriminate against Plaintiff because of his perceived ethnicity in
substantiating him for child abuse, regardless of the accuracy of their perceptions. See
Whren v. United States, 517 U.S. 806, 813 (1996) ("[T]he Constitution prohibits selective
enforcement of the law based on considerations such as race."); Elliot-Parkv. Manglona,
592 F.3d 1003, 1006-07 (9th Cir. 2010) (affirming district court's denial of motion to
dismiss § 1983 claims against law enforcement officers who allegedly discriminated
based on victim's race, explaining that "[t]he right to non-discriminatory administration
of protective services is clearly established.")~ Vakilian v. Shaw, 335 F.3d 509, 521 (6th
Cir. 2003) ("Although investigators have considerable discretion as to how they conduct
investigations and enforce the law, a reasonable officer ... would have recognized that
selective enforcement on the basis of a suspect's race or ethnicity is unconstitutional.").
Defendants address their claim for qualified immunity for Plaintiffs equal
protection claims in a single statement. See Doc. 3 at 27 ("At the least, the Defendants
are entitled to qualified immunity. "). Plaintiff s response is only slightly less succinct.
See Doc. 14 at 13 ("No reasonable official could have believed it was lawful to accept the
report for an assessment or substantiate Mr. Wright for child abuse based on beliefs that
he was an 'Arab' and that 'Arabs' are more prone to abuse children."). This issue
requires a more comprehensive examination by both parties. In the absence of adequate
35
briefing, the court declines to address the issue on a motion to dismiss. 23 Accordingly,
the court DENIES Defendants' motion to dismiss Plaintiffs equal protection claims.
CONCLUSION
F or the reasons stated above, the court GRANTS Defendants' motion to dismiss
the claims against Defendants, whether in their individual or official capacities, based
upon alleged interference in Plaintiffs access to the courts and in his relationship with his
children, for failure to state a claim. The court further GRANTS Defendants' motion to
dismiss the stigma-plus procedural due process claim against Defendants Dale and John
Does in their individual capacities based upon qualified immunity. The court denies all
other remaining aspects of Defendants' motion to dismiss (Doc. 3).
SO ORDERED.
Dated at Rutland, in the District of Vermont, this
2;1~ay of November, 2012.
Chns~ge
United States District Court
See Jimmo v. Sebelius, 2011 WL 5104355, at *22 n.13 (D. Vt. Oct. 25, 2011) (declining to
address grounds for dismissal that were only cursorily addressed in the briefing); Ibarra v. City
ojChicago,2011 WL 4583785, at *8 (N.D. IlL Sept. 28, 2011) ("Given the complexity of the
legal issues, the parties' cursory treatment of the issues, and the current stage of the litigation, the
Court declines to dismiss Count II at this time."); Allstate Ins. Co. v. Heil, 2007 WL 4270355, at
*2 n.2 (D. Haw. Dec. 6, 2007) ("Because the parties have not briefed the Rule 702 issue in
anything more than a cursory way as part of their summary judgment arguments, the court
declines to resolve the expert admissibility issues on the record before it.").
23
36
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