Appeal from an order of the United States District Court for the Western District of New York, Telesca, J., granting defendants' motion for summary judgment in plaintiff's action brought under 42 U.S.C. § 1983 (1982). Affirmed.
Before: MESKILL, KEARSE and CARDAMONE, Circuit Judges.
This is an appeal from an order of the United States District Court for the Western District of New York, Telesca, J., granting the motion for summary judgment by the defendants, Marcia H. Wishengrad, the Monroe County Department of Social Services (the Department) and the County of Monroe (the County), in plaintiff Beatrice Walden's action for damages brought under 42 U.S.C. § 1983 (1982). Walden v. Wishengrad, 573 F. Supp. 1115 (W.D.N.Y. 1983). We affirm.
Walden is a former child protective caseworker with the Department. She left the Department in July, 1979.Her responsibilities consisted primarily of investigating cases of child abuse and neglect. Washengrad is an attorney employed by the Department, concentrating in child protective work and foster care. Her duties require her to represent the interests of the Department and its employees in Family Court.
In August 1979, Wishengrad was representing the Department in a case involving the termination of parental rights. Walden had participated in the investigation of the matter prior to her separation from the Department. On August 8, Walden was served with a subpoena requiring her to appear in Family Court on August 13 and on any recessed or adjourned date in connection with the case. Walden appeared in court on the 13th and testified as required. However, the case was adjourned before she was cross-examined.
The case was subsequently scheduled to resume on March 6, 1980. Wishengrad learned of the rescheduled date in advance, possibly as early as December 7, 1979. Nonetheless, no attempt was made to contact Walden until March 5. Wishengrad and her legal assistant, Joseph Dennison, tried repeatedly to call Walden on March 5 to arrange for her to appear in court the following day. Their efforts were unsuccessful.
Wishengrad finally reached Walden at home at approximately 9:00 a.m. on the morning of March 6. Wishengrad told Walden to appear in court as soon as possible because the proceeding was being reopened and opposing counsel wished to cross-examine her. Walden refused to appear on such short notice, stating that she was expecting a furniture delivery and she had to pick up a new car. Wishengrad said that she knew an official of the furniture company and that she could try to arrange the delivery to accommodate Walden's schedule, but Walden refused the offer. Wishengrad warned Walden that Judge Bonadio, the presiding judge in the Family Court proceeding, would be displeased with her refusal to appear and might send the police or the sheriff to arrest her. Walden stated, in essence, that the judge would do as he pleased.
Wishengrad's secretary and legal assistant attempted to contact Walden during the afternoon of March 6 to see if she had completed her business, but they were unable to reach her at home. Wishengrad informed Judge Bonadio that Walden would not appear that day, and the proceeding was adjourned until March 10.
Wishengrad called Walden on the morning of March 7 to inform her of the new date. Walden did not definitely state whether she would appear on March 10. She informed Wishengrad that she had contracted a sore throat and that she probably would not appear if her condition worsened. Wishengrad reminded Walden that Judge Bonadio would note her absence. Walden replied that the Judge would do as he saw fit.
Wishengrad reported this conversation to Judge Bonadio later that day. Judge Bonadio asked Wishengrad if she had any reason to believe that Walden would not appear on March 10. She replied in the affirmative basing her opinion on Walden's failure to appear on the previous day and on the difficulty she had reaching Walden by telephone. The Judge ascertained that the subpoena required Walden to be available on the adjourned date and then in response to Wishengrad's request, directed that a warrant issue, to be served on the morning of March 10, to ensure Walden's presence in Family Court on that day.
Walden was arrested by a deputy sheriff at about 9:00 a.m. on March 10. She was placed in a cell in the Rochester Public Safety Building for approximately one hour and was then taken in handcuffs to Family Court. Upon her arrival, the handcuffs were removed and her police escort left the area. Walden then completed her testimony and left the court.
In May 1980, Walden brought this action against Wishengrad, the Department and the County pursuant to 42 U.S.C. § 1983 in the United States District Court for the Western District of New York. She alleged that her arrest violated the Fourth, Sixth and Fourteenth Amendments. She claimed that Wishengradhad acted with "malice" in causing her arrest and that Wishengrad's acts were "attributable" to the Department and the ...