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KOLTZ v. BEZMEN

June 1, 1993

CHARLES J. KOLTZ, JR., Plaintiff,
v.
CAROLE BEZMEN, PATRICIA NILSON, THE COUNTY OF SUFFOLK and THE SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendants.



The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Charles Koltz, Jr. ("Koltz" or "plaintiff"), brought suit against Dr. Patricia Nilson ("Nilson" or "defendant") and others, alleging that Nilson and the others violated his due process rights by maliciously reporting that he sexually abused his daughters. Plaintiff alleges that Nilson's motive for making this report was to help Barbara Koltz, plaintiff's ex-wife, in the couple's divorce and child custody proceedings. Plaintiff also alleges causes of actions against Nilson sounding in medical malpractice and negligence.

 Nilson moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil procedure. This Court contacted the parties and advised them that it was considering converting the motion to dismiss to one for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure *fn1" For the reasons stated below, defendant's motion to dismiss the civil rights action and the negligence action is granted without prejudice. The medical malpractice action is dismissed with prejudice. Summary judgment is denied with respect to all causes of actions.

 I. BACKGROUND

 In 1988, plaintiff and his then wife, Barbara Koltz, were in the midst of divorce proceedings. In November 1988, Barbara Koltz brought the couple's two children, Barbara Ann and Bonnie Marie, to the Suffolk County Department of Social Services claiming that she suspected that the girls had been sexually abused. Carol Bezmen, a social worker employed by Social Services, referred Barbara Koltz to Nilson, a licensed clinical psychologist. Bezmen requested that Nilson conduct tests to determine whether the children had been sexually abused. Nilson met with Barbara Ann five times, while Bonnie Marie was never evaluated because of her young age.

 Nilson administered a battery of psychological tests to Barbara Ann. In her report, Nilson concluded that there was reason to suspect that the child had been sexually abused. Nilson reported her findings both to Social Services *fn2" and to plaintiff's ex-wife. Furthermore, on March 2, 1990, Nilson was deposed in connection with a child custody hearing. At her deposition, Nilson testified that based upon her tests there was reason to believe that Barbara Ann was sexually abused by her father. Subsequently, plaintiff was denied unsupervised visitation with his children. In November 1990, Child Protective Services determined that the sexual abuse charges against plaintiff were unfounded.

 II. DISCUSSION

 A. Civil Rights Claim

 Plaintiff's first cause of action against defendant is brought under 28 U.S.C. § 1983. Plaintiff alleges that Nilson and co-defendants deprived him of due process when they maliciously reported the sexual abuse. In order to state a claim under § 1983, plaintiff must allege that a defendant, acting under the color of state law, deprived him of a right secured by the Constitution or laws of the United States. Defendant argues that the § 1983 claim against her should be dismissed because she is a private citizen and not a state actor. Furthermore, defendant argues that the complaint alleges the constitutional violation in such a conclusory fashion, without any substantiating facts, that the claim must be dismissed on this ground as well.

 It is well settled that private parties are subject to liability under § 1983 if they conspire with or willfully engage in joint activity with the state or its agents. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Thus, Nilson may be sued under § 1983, despite the fact that she is not a government actor, if plaintiff can show that she acted in concert with state actors. Although Nilson's co-defendants are state actors, the complaint does not contain any allegation that Nilson conspired with them in order to deprive plaintiff of his constitutional rights. Moreover, even were this Court to construe the complaint as alleging a conspiracy between Nilson and her co-defendants, the complaint is absolutely devoid of any facts supporting such a theory. Indeed, the complaint utterly fails to offer any factual support for the allegation that Nilson made her report in bad faith.

 In order to survive a motion to dismiss, a civil rights complaint must contain "more than naked improbable unsubstantiated assertions without any specifics." Neustein v. Orbach, 732 F. Supp. 333, 346 (E.D.N.Y. 1990); see also Leon v. Murphy, 988 F.2d 303, 310 (2d Cir. 1993) (quoting Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) ("'A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot survive a motion to dismiss'")). Although Nilson is the only moving party, because the complaint contains no facts supporting a civil rights claim ...


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