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WHELEHAN v. COUNTY OF MONROE

February 22, 1983

JAMES WHELEHAN, Individually, KATHLEEN WHELEHAN, Individually, MAURA WHELEHAN, by her Parents and Natural Guardians, James Whelehan & Kathleen Whelehan, MARGARET WHELEHAN, by her Parents and Natural Guardians, James Whelehan and Kathleen Whelehan, Plaintiffs,
v.
THE COUNTY OF MONROE, THE DEPARTMENT OF SOCIAL SERVICES OF THE COUNTY OF MONROE, THE MONROE COUNTY SHERIFF, GABRIEL T. RUSSO, Individually and in his capacity as Commissioner of the Department of Social Services of the County of Monroe, W. BURTON RICHARDSON, Individually and in his capacity as an employee of and/or Commissioner of the Department of Social Services of the County of Monroe, LEONORA SIMMONS, Individually and in her capacity as a Caseworker and Employee with and of the Department of Social Services of the County of Monroe, PAUL CACCAMISE, Individually and in his capacity as a Child Protective Supervisor and Employee of and with the Department of Social Services of the County of Monroe, CELESTE CIACCIA, Individually and as a Caseworker and Employee of and with the Department of Social Services of the County of Monroe, ANTHONY YAZBACK, Individually and in his capacity as Chief of Detectives and as an Employee of and with the Monroe County Sheriff, RONALD A. GIACOBBE, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, LEON HILL, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, PHILIP KNIGHT, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, RUSSELL COON, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, STEPHEN EPSTEIN, Individually and as Attorney for and Employee of the Department of Social Services of the County of Monroe, Defendants



The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

 BACKGROUND

 This civil rights litigation concerns events arising from determinations made in 1979 by certain pediatricians that the urine of infant plaintiff Maura Whelehan contained sperm cells. Upon lawful referral of this information to the authorities, various defendants allegedly took measures and conducted themselves in ways which plaintiffs assert deprived them of the due process of the law and resulted in injury to themselves. The jurisdiction of this court is invoked under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), and under the federal question jurisdictional statute, 28 U.S.C. § 1331. Pendent jurisdiction is sought for certain tort claims not constituting federally cognizable complaints.

 The actions complained of are alternatively alleged to have been performed either by policy-making personnel of the institutional defendants, or in accord with existing official policies, or due to the lack of such policies, or through failure to adhere to such policies. Certain acts are alleged to have been performed in accordance with official policy.

 Plaintiffs assert that defendants made statements concerning James Whelehan's supposed sexual conduct with his baby daughter, plaintiff Maura, to his employer, to news media and to various governmental agencies, with knowledge of their falsity and with malicious intention to harm James's reputation and to endanger his employment or impair his prospects of advancement. Such statements are said to have been made both by defendants The Monroe County Sheriff ("the Sheriff") and The Department of Social Services of the County of Monroe ("the Department"), through their employees and more particularly by defendant Anthony Yazback, Chief of Detectives.

 It appears that at one point after James had come under official suspicion of sexual misconduct with Maura, her pediatricians reported a third finding of sperm cells in her urine, upon which the Department's employees removed Maura from her home. After less than a week of Maura's absence an agreement was reached whereby James left his household and Maura was returned to her mother. It is not clear how long James remained away from his home. Plaintiffs assert that these disruptions of their family life were the result of negligent investigatory practices of the Department and the Sheriff's Department and deprived James and Kathleen of their mutual rights to consortium, and deprived all plaintiffs of their rights to the care, comfort, society and companionship of each other, in violation of their constitutional liberty and privacy interests in maintaining their family life. The procurement of these separations is also said to have lacked due process of law inasmuch as they were brought about through ex parte proceedings from which plaintiffs and their attorneys were purposely excluded, "and/or" by deliberate presentation of false or incomplete evidence and exclusion of exculpatory evidence, "and/or" by threats directed towards plaintiffs by defendants.

 The plaintiffs assert further that the negligent investigatory practices of defendants culminated in a Family Court proceeding against James and Kathleen, instituted in accord with official policies of the institutional defendants, in which the adult plaintiffs were charged with child abuse and neglect. Plaintiffs claim this proceeding was commenced and continued with knowledge of its groundlessness and characterize this conduct both as a deprivation of due process and as malicious prosecution. Plaintiffs also claim that, in the course of these proceedings and the preliminaries thereto, defendants deliberately and wrongfully refused and neglected to furnish plaintiffs and the court with exculpatory evidence to which plaintiffs were entitled and also negligently or deliberately supplied plaintiffs' attorneys and the court with false and misleading information. *fn1"

 Plaintiffs further allege violations of the constitutionally protected right to privacy of James and Kathleen through interrogations, by false representations as to the results of lie detector tests voluntarily taken, which false representations were made to prompt a confession of wrongdoing from James Whelehan (which representations caused him to divulge intimate details of his life) and by forcing James and Kathleen to undergo psychiatric testing. Plaintiffs complain also of defendants' alleged attempts to obstruct plaintiffs' efforts to have the records of the Family Court proceedings expunged and their names removed from lists of child neglecters and molesters kept by various agencies.

 Finally, plaintiffs complain that defendants The County of Monroe ("the County") and Yazback have deliberately made false accusations and used innuendo against James in a state court action that James instituted against these defendants charging them with libel and slander. *fn2"

 In addition to the injuries recited in the foregoing recapitulation of plaintiffs' claims, it is alleged that as consequences of defendants' conduct James and Kathleen were forced to sell their home and purchase new premises, were psychologically damaged and have incurred expenses in defending against the charges of child abuse and neglect and securing the return of their family to a condition of normalcy.

 Plaintiffs each seek $1,000,000 for actual damages and $5,000,000 for punitive damages and request that defendants be ordered to take certain actions aimed at restoring plaintiffs' reputations.

 Defendants have moved to dismiss plaintiffs' claims or, alternatively, for summary judgment. In view of the extensive extra-pleading materials that have been submitted by both sides on this motion, it will be treated as one for summary judgment under Fed.R.Civ.P. rule 56. Defendants contend that the instant action is time-barred by the applicable statute of limitations, that the Complaint fails to state a cause of action under 42 U.S.C. § 1983, that the Department is not a legal entity which may be sued, that the County, the Department, the Sheriff, defendant Gabriel T. Russo and defendant W. Burton Richardson are not liable under the theory of respondeat superior and that all defendants are protected from the instant suit by either absolute or qualified immunity.

 ANALYSIS

 I. Statute of Limitations

 Defendants do not contend that plaintiffs' cause of action is time-barred under the three-year statute of limitations that the United States Court of Appeals for the Second Circuit has consistently held applicable to suits brought under 42 U.S.C. § 1983 (e.g., Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980), cert. denied, 450 U.S. 920, 67 L. Ed. 2d 347, 101 S. Ct. 1368 (1981); Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980); Meyer v. Frank, 550 F.2d 726 (2d Cir. 1977), cert. denied, 434 U.S. 830, 54 L. Ed. 2d 90, 98 S. Ct. 112 (1977). Defendants contend rather that the propriety of applying the three-year statute, borrowed from New York's Civil Practice Law and Rules ("CPLR") § 214(2), requires reexamination in light of the decisions in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 60 L. Ed. 2d 508, 99 S. Ct. 1905 (1979), State v. Cortelle Corp., 38 N.Y.2d 83, 378 N.Y.S.2d 654, 341 N.E.2d 223 (1975), and Staffen v. City of Rochester, 80 A.D.2d 16, 437 N.Y.S.2d 821 (4th Dept. 1981). Defendants urge that these decisions require the rejection of CPLR § 214(2) in favor of the one-year-and-ninety-days period for bringing suits against municipalities provided by New York's General Municipal Law § 50-i, and the one-year limitations period for suits against a sheriff and his deputies under CPLR § 215(1).

 In response to this claim of defendants it suffices to note that it has recently been thoroughly analyzed and rejected by our Court of Appeals, in Pauk v. Board of Trustees of City University of New York, 654 F.2d 856, 861-867 (2nd Cir. 1981). Accordingly, the three-year period provided by CPLR § 214(2) must be held applicable to plaintiffs' claims, which are predicated upon alleged conduct which occurred no longer ago than mid-1979 and are therefore not time-barred.

 II. Claims Against the Governmental Defendants and the Department's Employees

 A. Malicious Prosecution and Related Claims

 1. Liability of Individual Defendants

 Certain allegations of plaintiffs' first "cause of action" may be taken to allege the common law tort of malicious prosecution. A malicious prosecution under color of state law may give rise to a federal cause of action under 42 U.S.C. § 1983 only if injuries of federal constitutional dimensions are involved. Norton v. Liddel, 620 F.2d 1375, 1378 (10th Cir. 1980); Hampton v. Hanrahan, 600 F.2d 600, 630 (7th Cir. 1979); Beker Phosphate Corp. v. Muirhead, 581 F.2d 1187, 1189 (5th Cir. 1978); Nesmith v. Alford, 318 F.2d 110, 125-126 (5th Cir. 1963); Pyles v. Keane, 418 F. Supp. 269, 276 (S.D.N.Y. 1976). Compare, Dellums v. Powell, 490 F. Supp. 70, 72 (D.D.C. 1980). Here one or more preliminary protective orders of the Family Court disrupted the familial relationships of plaintiffs (First Answering Affidavit of Edwin R. Schulman, attorney for plaintiffs, Exhibit B, at 4-5), clearly implicating federally protected rights of high order (see, e.g., Duchesne v. Sugarman, 566 F.2d 817, 824-826 (2d Cir. 1977).

 Although plaintiffs have thus stated a section 1983 cause of action for malicious prosecution, it is nonetheless necessary to conclude that plaintiffs' claim in this regard is barred as to the individual defendants by the federal *fn3" immunity doctrine.

 The individual defendants involved -- the agents of the Department -- are protected from liability for the alleged malicious prosecution under the absolute immunity doctrine enunciated in Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). Imbler noted that, if a prosecutor were exposed to liability for his or her official actions, the performance of prosecutorial duties would be hampered by the need to safeguard against incurring liability and by the dissipation of the prosecutor's energies toward the defense of civil suits. 424 U.S. at 424-25. Analyzing further the exigencies of the prosecutorial task and the potential for impairment of the judicial process if prosecutors could be sued for malicious prosecution, the Court concluded that these considerations "dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law" (424 U.S. at 427).

 Applying the reasoning of Imbler to the instant case, it is necessary to conclude that the roles of the employees of the Department are sufficiently like the role of a prosecutor to warrant coverage by absolute immunity under Imbler. The great importance of the child-protective function served by these defendants is beyond question. If these defendants, and others who serve like functions in society, were forced to execute their duties with one eye constantly regarding the possibility of incurring liability for their conduct, the detriment to society and the judicial system would be at least as great as if they were prosecutors of the kind specifically protected by Imbler. In Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978), the Court, applying considerations equally applicable to state and federal officers (438 U.S. at 504), extended the rule of Imbler to provide absolute immunity for "agency officials performing certain functions analogous to those of a prosecutor" (438 U.S. at 515). The Court reasoned that "there is a serious danger that the decision to authorize proceedings will provoke a retaliatory response" (cf., Imbler, supra, 424 U.S. at 425), and that "the defendant in an enforcement proceeding has ample opportunity to challenge the legality of the proceeding itself" and to "present his evidence to an impartial trier of fact and obtain an independent judgment as to whether the prosecution is justified" (438 U.S. at 515-516). All these considerations and conclusions are fully justified in the instant case.

 The Court in Butz rejected an attempt to distinguish Imbler on the grounds that in an administrative action the initiating officials do not "act under 'serious constraints of time and even information'" as do prosecutors, noting that "the key point is that administrative personnel, like prosecutors 'often must decide, especially in cases of wide public interest, whether to proceed to trial where there is a sharp conflict in the evidence.'" 438 U.S. at 516, n.40. Although the "serious constraints of time and even information" were characterized as "not central" to Imbler, that is a relevant consideration which is fully operative in the context of the instant case, where a prompt decision to remove a child from a home and to seek protective orders in Family Court may be crucial to the life and health of the child. Thus Butz v. Economou requires a fortiori that the employees of the Department be protected by absolute immunity for their actions performed within the scope of their child-protective duties.

 From the foregoing it is plain that I do not agree with the decision in Doe v. County of Suffolk, 494 F. Supp. 179 (E.D.N.Y. 1980), holding that a social worker charged with malicious prosecution based upon child protective proceedings is entitled only to a qualified "good faith" immunity. The basis of the court's decision was that unlike a prosecutor a social services worker has "virtually no discretion" regarding the institution of a child protective prosecution, once "given information warranting such a prosecution," and is therefore more akin to a policeman than a prosecutor. This rationale reflects the Supreme Court's concern as expressed in Imbler and Butz for preserving the discretion of prosecutorial officials, but gives too little weight -- indeed no weight -- to the other factors that persuaded the highest court to extend absolute immunity to such officials -- namely, the frequency with which malicious prosecution actions against prosecutors would likely be initiated, the consequent diversion of a prosecutor's attention from his or her "pressing duty of enforcing the criminal law," the prosecutor's probable "greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials" due to the need to make many pressured decisions that could give rise to colorable constitutional claims, the effect that potential liability would have on the use of evidence at trial, and the potential for coloration of post-trial procedures by the reviewing judge's awareness that a decision in favor of the accused might lead to liability for the prosecutor (424 U.S. at 425-427). Upon reviewing the relevant provisions of New York's Family Court Act and Social Services Law, I conclude that a social services worker is indeed called upon to exercise discretion at crucial points in cases of suspected child abuse or neglect -- i.e., in deciding whether the available information warrants removal of a child from the home either by order of a court or as an emergency measure, and the filing of a petition charging child abuse or neglect, thereby initiating court proceedings. If social services workers were required to guard against possible section 1983 claims arising from such decisions, their evaluation of the information at hand could easily be colored and, it may be expected, sometimes at the expense of the life or well-being of abused or neglected children. Such a result cannot be countenanced for the administration of remedial child-protective laws any more than for prosecutors' enforcement of the criminal laws. *fn4"

 It is necessary at this point to consider whether any recognizable exception to the Imbler and Butz absolute immunity rule is present in the instant case.

 In Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981), the court apparently endorsed the rule espoused in Helstoski v. Goldstein, 552 F.2d 564 (3d Cir. 1977), that a prosecutor's "dissemination of false information to the press" causing damage to reputation would not be covered by absolute immunity under Imbler, but at most by a qualified good faith immunity. Paragraph XIX of the instant Complaint alleges that the accusations made by the defendants in court proceedings and to the public at large were provided to the news media without further specificity as to which defendants provided the same, or at what time, or to whom precisely, or as to the particular information allegedly released. Consequently, although certain of the plaintiffs may theoretically be able to state a viable claim that certain defendants in the course of executing their prosecutorial duties released defamatory statements to the public media, at this time the bare allegations of the Complaint to any such end or effect must be dismissed without prejudice under Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976), for failure to allege specific facts showing that a constitutional violation of civil rights has occurred. *fn5"

 Plaintiffs have offered no grounds showing that the conduct of the defendant employees of defendant Department of Social Services in the instant case comes within any other recognized exception to the rule of Imbler. There has been no suggestion that defendants' actions were taken primarily to further a private purpose in filing charges known to be false or were beyond the scope of their duties. Beard v. Udall, 648 F.2d 1264, 1271 (9th Cir. 1981). But, see, Jennings v. Shuman, 567 F.2d 1213, 1221-22 (3d Cir. 1977).

 The distinction, based on Imbler, between purely investigative and primarily prosecutorial functions of the prosecutor, as drawn in Lee v. Willins, 617 F.2d 320, 322 (2d Cir.), cert. denied, 449 U.S. 861, 66 L. Ed. 2d 78, 101 S. Ct. 165 (1980), if broadly read into the instant case tenably could support an argument that the employees of the Department might be liable for otherwise culpable fault in the early phases of their investigation, culminating in the obtaining of preliminary protective orders. To so read either Imbler or Lee v. Willins would severely distort their holdings and wrongly fail to incorporate the full scope of the duties of these defendants within the Imbler and Butz rule. Those duties of responding to and investigating reports of suspected child abuse or neglect, and acting upon them in the interests of children, must be seen as "intimately associated with the judicial phase" of the Family Court's jurisdiction over such matters, under the functional approach espoused in Imbler (424 U.S. at 430). To roughly equate on the basis of a superficial similarity the removal of a child from a home wherein it is suspected that there is imminent danger to the child's well-being, with a search and seizure conducted in connection with a criminal case, and thereby to invoke the exception to absolute prosecutorial immunity recognized in Lee v. Willins whereby a prosecutor who conducts an illegal search may be liable for violating Fourth Amendment privacy rights, would greatly blur necessary distinctions and imperil the strong public interest in the protection of children.

 It is necessary therefore to conclude that plaintiffs' claim regarding the conduct of the employees of the Department, be it characterized as one for malicious prosecution or otherwise, *fn6" must be dismissed, the defense of ...


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