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DIETZ v. DAMAS

July 11, 1996

LENORE DIETZ and WILLIAM DIETZ, individually and on behalf of JAMES DIETZ, an infant, Plaintiffs, against HAROLD DAMAS, individually and as caseworker, Child Welfare Administration, MARCIA LEWIS, individually and as supervisor, Child Welfare Administration, DANIEL ELMORE, individually and as supervisor, Child Welfare Administration, WILLIAM J. GRINKER, individually and as Commissioner of Social Services of the City of New York, BROOKE TRENT, individually and as Deputy Commissioner of Social Services of the City of New York, CITY of NEW YORK, and DIANE MCGURN, Defendants.


The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 This case presents the difficult dilemma faced by child protection workers, aptly characterized by the Second Circuit, in Van Emrik v. Chemung County, 911 F.2d 863, 866 (1990)(Newman, C.J.), in the following language: "If [protective services caseworkers] err in interrupting parental custody, they may be accused of infringing the parents' constitutional rights. If they err in not removing the child, they risk injury to the child and may be accused of infringing the child's rights." See also Defore v. Premore, 86 F.3d 48, 49(2d Cir. 1996)(citing Van Emrik)("Once again we confront a case in which publicly employed social workers are obliged to make the difficult choice between taking action to protect a child, thereby risking violation of the parents' rights, and declining to at, thereby risking violation of the child's rights.") In this case the child protection workers, when faced with just this dilemma -- under circumstances that almost certainly were the result of abuse that left an infant blind -- chose to intervene and interfere with the parents' rights in the belief that one of the parents may well have been responsible for the child's injury. That decision, it turns out, may have been wrong and has brought upon them a lawsuit seeking substantial damages. But, as unfortunate as the situation is, in a world in which child protective workers can not be expected to be omniscient, this court finds it hard to fault these workers. Indeed, under the facts here, if the modest restrictions placed on the parents' rights were improper, it is hard to conceive how an effective system child protection can be maintained.

 Thus, the claim in this case is a marked contrast to the usual situation where the Child Welfare Administration (CWA), *fn1" the City agency responsible for monitoring abused children, is condemned for inaction in the face of reported abuse or for the return of a child to its natural parents despite the agency's knowledge or suspicion of prior abuse of the child. *fn2" To the contrary, neither the child's parents nor the babysitter -- the only persons in contact with the child during the period when the injury occurred -- had any prior history of violent or abusive conduct. The record indicates that they were caring, responsible individuals. Thus, CWA is now accused of violating the constitutional rights of parents and their child by taking custody of the child, allegedly without probable cause, by its refusal to return a child to his parents' custody without restrictions, and by its failure to seek immediate court approval for its actions.

 Criminal charges were subsequently brought against the child's babysitter in September 1989, but that indictment was dismissed in March 1991. A second grand jury refused to issue an indictment. The babysitter, Diane McGurn, is a defendant in this action, on a pendent state claim, and has interposed counterclaims for defamation and malicious prosecution against plaintiffs.

 The City of New York (City), defendant, and the individual City defendants have moved for summary judgment on grounds that the actions of the City's agents, the individual City defendants, did not violate any constitutional rights of the plaintiffs and were, further, duly authorized under New York State law. In the alternative, the City individual defendants have moved for summary judgment in their personal capacities on the basis of qualified and absolute immunity. As a third alternative, the City offered plaintiffs $ 1.25 in damages as the full monetary value of any violation of procedural due process rights they may have suffered.

 Background

 (1)

 Plaintiffs in this case are James Dietz and his parents, William and Lenore Dietz. It is undisputed that on the morning of December 20, 1988, James, then six months old, was shaken violently by an adult, and, as a result, James suffered massive hemorrhages in his skull which left him blind. No witnesses to this shaking have been identified. The finding that James' injuries were intentionally inflicted as the result of shaking by an adult was made by physicians based on James' symptomatology and medical tests, all indicating that James suffered Whiplash Shaken Infant Syndrome (WSIS). The shaking had to be vigorous and "to have to be at least a minute or longer" in duration. See Giridharan at 13, 17-23, City Ex. F., McHugh Ltr., City Ex. O. *fn4"

 James had been seriously ill for several days prior to December 20, 1988, with symptoms including vomiting and listlessness. In the early morning hours of Saturday, December 17, Mrs. Dietz called James' pediatrician at 1:30 a.m. and 3:00 a.m. and then again at 9:00 a.m. Mrs. Dietz stayed home for two days, Friday and Monday, because of James' illness. She was employed as director of merchandising for a jewelry company. Although James was better on Sunday, December 18, 1988, Mrs. Dietz stayed home on Monday to be sure of his recovery. She had taken James to his pediatrician when he was first ill and called the pediatrician six times during James' illness. She was up all night with him on Saturday, December 17, 1988. Mrs. Dietz stated that she and James woke at about 6:15 a.m. on Tuesday, December 20, 1988, and arrived at the babysitter about 7:15 a.m. L. Dietz Notes, Murray Reply Aff. dated August 2, 1995, Ex. AA. In her deposition in 1992, Dr. Giridharan, the neurologist who treated James at Brookdale Hospital, dismissed the suggestion that James' injury was a continuation of his prior illness. Giridharan at 15-16, City Ex. G.

 Mrs. McGurn reported that James was a little cranky when Mrs. Dietz brought him to her on December 20, 1988 about 7:15 a.m. She told Damas that Mrs. Dietz had "carried [James] like a football underarm." Damas case notes, City Ex. I at 6. (Later the ambulance attendants had to walk up to Mrs. McGurn's sixth floor apartment because the elevator was not working when they arrived. McGurn Police Interview, Pltf. Ex. A. However, there is no evidence that the elevator was not working when Mrs. Dietz arrived with James.) Mrs. McGurn reported that, after he arrived, James drank a bottle and then fell asleep. Id. and Damas case notes at 7.

 Later James awoke and Mrs. McGurn offered him more milk. There is an inconsistency in the records as to the amount of milk James took at this time. This discrepancy would later become critical to a determination of the time of abuse, but no evidence was presented that Mrs. McGurn or anyone else perceived that this was so in December 1988 when Mrs. McGurn was questioned about this subject. Detective Diggs, who conducted the police investigation of the abuse incident, noted that on December 22, 1988 Mrs. McGurn told him that James took seven ounces. While Mrs. McGurn was giving (or attempting to give) the second bottle to James he became stiff and made "funny sounds." Pltf. Ex. A. In contrast, Damas' case notes of his December 27, 1988 conversation with Mrs. McGurn state that she said only that she had tried to feed the child again. Damas case notes, City Ex. I. Damas stated at his deposition that Mrs. McGurn said that when she attempted to give him a second bottle, James had "started to get stiff, writhing like a snake." Damas I at 99-101, City Ex. H.

 When Mrs. McGurn observed James' distress, she called a private ambulance service directly and it came three minutes later. The ambulance records show that the call came at 10:33 a.m., the ambulance arrived at Mrs. McGurn's building at 10:36 a.m. and at Lutheran Hospital at 10:47 a.m. Because of the severity of James' condition, the ambulance attendants took James without waiting for McGurn to dress and obtain care for the other two children in her apartment. Police Interviews of Mrs. McGurn, Mr. Dietz, Bravo Ambulance official Kelly, Mrs. Byrne (neighbor who took care of children while McGurn at hospital), Pltf. Ex. A.

 After getting a neighbor to care for the other children, Mrs. McGurn phoned Mrs. Dietz at her place of employment and then took a taxi to the Lutheran Hospital. It is not clear whether Mrs. McGurn gave any information about James to the medical staff at Lutheran Hospital. After a while Mrs. Dietz arrived with a man who, Mrs. McGurn later learned, was Mrs. Dietz' boss. When, later, James was to be transferred to another hospital, Mrs. Dietz' sister Diane gave Mrs. McGurn a ride home. Id.

 As noted, James was brought to Lutheran Hospital in late morning on December 20, 1988, but, later that same day, he was transferred to Brookdale Hospital. Two days after James' admission, on December 22, 1988, Brookdale Hospital notified the State Central Child Abuse and Maltreatment Register, using the 2221 report form, that James was a victim of child abuse, indicating that Mr. and Mrs. Dietz were suspected. City Ex. J. During her deposition, Dr. Giridharan acknowledged that it was she who, on December 21, 1988, directed hospital staff to initiate a child abuse report about James' condition. Giridharan at 22, City Ex. G.

 The initial child abuse report from Brookdale Hospital clearly overstated the case against Mr. and Mrs. Dietz by stating that "parents did not bring child to emergency room until 8:00 p.m. that same evening." The report also included the statement: "mother's apparent lack of bonding to the baby ie very distanced." City Ex. J. The CWA caseworker assigned, Harold Damas, testified: "I didn't even pay attention to that [initial child abuse report], really," noting that such reports frequently contain inaccuracies. Damas I at 55, City Ex. H. Upon questioning by Damas, the person who made the report for Brookdale admitted she was unaware of James' initial hospitalization in the morning at Lutheran hospital. *fn5" Damas case notes at 8, City Ex. I.

 The State Central Register then sent a copy of the 2221 report of abuse to CWA the same day it received it, December 22, 1988. CWA assigned Damas to investigate the case. Daniel Elmore was Damas' supervisor from December 22, 1988 through January 3, 1989, when the city filed a child abuse petition against Mr. and Mrs. Dietz in Family Court. After January 3, 1989, Damas was promoted to a supervisory position and transferred to another unit, where he was supervised by Marcia Lewis. Damas retained the Dietz case after his promotion and transfer. Damas, Elmore, and Lewis, along with then-HRA Commissioner Grinker and Deputy Commissioner Trent (who do not actually figure in these events) are all named defendants, and will be referred to as the "City individual defendants."

 After its receipt of the child abuse report from the State Register, on December 22, 1988, Dr. Grillo, the resident who was treating James at Brookdale Hospital, confirmed to Damas the diagnosis of Whiplash Shaken Infant Syndrome. Damas recorded in his notes that "Dr. Grillo said that he did not know anything. He would not guess as to who did this." CWA told Dr. Grillo to place a "hold" on James that required the hospital to keep James after he was deemed to be medically dischargeable. Damas also noted that Dr. Grillo stated that "he had utmost confidence in [the grandparents]." Damas case notes, City Ex. I. CWA wanted time to investigate the case before James was released to his parents.

 Damas tried to see Mr. and Mrs. Dietz on December 22, 1988 at their home. Although unsuccessful in his attempt, he left a W555C notice at their front door which notified them that they were named as subjects in a report of child abuse. The notice also informed them of their rights to request amendment or expungement if the report were found to be "indicated" *fn6" (i.e., substantiated), and provided Damas' name and telephone number. Damas I at 50-60, 65-72, City Ex. H, W-555C attached as City Ex. K.

 On December 23, 1988, Damas met with Mr. and Mrs. Dietz and Mrs. Dietz' parents, the Salmos, at the Salmos' home. Damas stated that he thought he went to the Salmos' home because they had called him, in response to the W555-C. Damas I at 75, City Ex. H. Damas received calls from Mr. and Mrs. Dietz and Mr. Salmo asking him to conduct the interview on December 23, 1988 rather than waiting until December 27, 1988, which would have been after the Christmas holiday. Mrs. Dietz acknowledged that one of her parents had suggested, in a phone conversation with Damas, that they could undertake to supervise James' contact with his parents. This was the reason that the home visit was conducted at the Salmo residence. L. Dietz at 19, City Ex. D, attached to Murray Aff. dated March 31, 1995. Mr. Damas refers to the concern of Mr. Elmore, his supervisor, that they lacked medical information sufficient to determine whether James could be released to his parents but had stated that it might be possible to discharge him to his grandparents if they were not listed in the Child Abuse Register, the home visit was favorable, and the Salmos and Dietzes agreed to CWA's conditions. Damas I at 76, 86, City Ex. H.

 Damas conducted his interview with Mr. and Mrs. Dietz and Mr. and Mrs. Salmo, all together, at the Salmos' home. Damas noted that Mrs. Dietz, while Mr. Dietz was speaking, "went to the kitchen and stayed there for a few seconds, running her fingers through her hair and returned to living room." Damas case notes, City Ex. I.

 The City claims that it was agreed by everyone that James would be released to the Salmos, and that the parents could stay with James, subject to the grandparents' supervision. In her deposition, Mrs. Dietz stated that the arrangement to place James in the custody of her parents was arranged "out of desperation," at the suggestion of her father, because "Mr. Damas told [her] that the baby was not going to be released to our care." L. Dietz Dep. at 18, City Ex. D, attached to Murray Aff. dated March 31, 1995.

 Damas recalled that the Dietzes "really didn't have any objection to James going there." Damas I at 80, City Ex. H. Mrs. Dietz acknowledged that the family was very concerned about the approaching Christmas holiday. "We were very concerned with coming home with James for Christmas." L. Dietz Dep. at 20, City Ex. D attached to Murray Aff. dated March 31, 1995. Damas, after talking with the Salmos and Dietzes and inspecting the Salmos' home, gave the Salmos a letter that would authorize the hospital to release James to them. Damas also recorded in his notes of this meeting that he requested "that they [Salmos and Dietzes, presumably] should keep him inform (sic) of any changes that child was going through." Damas case notes, City Ex. I.

 James was released to his grandparents on Saturday, December 24, 1988. The Salmos and Mr. and Mrs. Dietz had a very close relationship. The Salmos were at both Lutheran and Brookdale Hospital with Mr. and Mrs. Dietz. Mr. Salmo had contacted Damas on Mr. and Mrs. Dietz' behalf. Mr. and Mrs. Dietz had planned to spend the Christmas holidays with the Salmos prior to James' injury. L. Dietz at 18, City Ex. D, attached to Murray Aff. dated March 31, 1995. Mr. and Mrs. Salmo took care of James for one week when he was two months old and Mrs. Dietz went to the Orient on business. During the Salmos' care for James at that earlier time, Mr. Dietz visited daily but did not stay over-night with James. Id. at 36. During James' second hospitalization, Mr. and Mrs. Dietz continued to stay at the Salmos' house. Id. at 30.

 (2)

 On December 28, 1988, Damas learned of James' readmission to Brookdale Hospital from the Brookdale staff member who was also the source for the original report of abuse and its errors. (Based on Damas' notes and testimony, neither the Dietzes nor the Salmos appear to have notified CWA about James' readmission to the hospital nor the reasons for it. Damas called Mr. Salmo and told him again, as he had on December 23, 1988, to keep him informed.) This Brookdale Hospital staff-member told Damas that James had not been medically ready for discharge on December 24, 1988 and that the parents had been less concerned with James' condition than with obtaining his release for the holidays. This staff-member also stated that she found Mrs. Dietz somewhat distant when she questioned her, and that Mrs. Dietz had said that Mrs. McGurn was very good with James. Damas case notes, City Ex. I. On Damas' questioning, this staff-member acknowledged that she had not known that James' admission to Brookdale had been as a transfer from Lutheran Hospital. Id.

 Also, on December 28, 1988, Damas spoke to Detective Diggs who informed him "that he was unable to determine who committed this act against child. [Diggs] said that he could not establish any time frame as to when incident happened. . . . [Diggs] said he had no proof that that babysitter did anything to child. . . . [Diggs] said that he went around and questioned a few people. They only had high praise for Mrs. McGurn." Id.

 Damas attempted to reach Dr. Giridharan, the treating physician, without success on December 29, 1988. Damas case notes, City Ex. I. On December 30, 1988, Damas spoke to Dr. Giridharan, but despite Damas' pointed questioning, she refused to pinpoint the time of occurrence. Damas I at 124-130, 133-35, City Ex. H, Giridharan at 5-6, City Ex. F. Damas testified at his deposition: "The case solely depended on Dr. Giridharan's statement, nothing else. It was 'When did it happen? When did that person shake James?' That's the whole basis for the case." Damas I at 130, City Ex. H..

 Detective Diggs had interviewed Dr. Giridharan on December 22, 1988. His report also noted Dr. Giridharan's refusal to limit the time in a way that would exclude Mr. and Mrs. Dietz from suspicion: "The Doctor [Giridharan] said it had to of [sic] happened on that day Tuesday but she could not give a time." Giridharan Police Interview, Pltf. Ex. A.

 Dr. Giridharan's deposition testimony also confirms Damas' account: "[Early in the conversation I had pointed out to Mr. Damas that my role is to take care of the medical aspects and that I would leave the investigations up to him. Not wanting to be specific, I wanted to say 'few' [hours before the symptoms became manifest]." Giridharan at 5, City Ex. F. Also: "[Damas] asked me [to be more specific as to a time frame] and I repeated I could not be specific." Id. at 26. Q: "Did Mr. Damas inform you of the importance of establishing a time frame during this conversation? A: "Of course." Q: "And still based on that you would not give him a time frame?" A: "No." Id. at 28-29.

 On December 29, 1988, Elmore, Damas' supervisor, noted calls from Ms. Angela Christofidef of the Neighborhood Stabilization Board, a division of the City Human Rights Commission, from Mr. Fred Molloy of Councilman Sal Albanese's office, and from Mr. Salmo, all expressing concern about the continuing suspicion of the Dietzes. Elmore also received a call from Detective Diggs, who reported that the same people had called him. Elmore case notes, Pltf. Ex. J.

 Damas' notes indicate that CWA's second "hold" was placed on December 30, 1988. Damas' notes record a conference with Elmore and Mr. Fenton, the Zone Director, at which Fenton directed that a petition should be filed and that the "child should not be returned to grands. He said to let the judge make the decision." There is a reference to Fenton having contact with "Dr. Margaret McCue *fn7" from Bellevue Hosp. who's an expert in the field of pediatrics and is also regarded as an expert in ct. Dr. McCue wanted to know the estimation of blood in brain." There is also a notation that Fenton wanted the diagnosis changed to Battered Child Syndrome. However, Damas' notes continue that when Elmore called Dr. Giridharan, she refused to change the diagnosis. Damas case notes at 10-11, City Ex. I.

 (3)

 Although the complaint, P 30, states that James was ready for medical discharge only on January 3, 1989, Mrs. Dietz' notes, provided at her deposition, indicate that James received medical clearance for discharge on December 31, 1988, a Saturday. *fn8" City Ex. AA at 10, attached to Murray Aff. dated August 21, 1995. Dr. Giridharan's notes confirm that a third spinal tap was performed on James on December 30, 1988. It is undisputed that James remained in the hospital until January 3, 1989. Mrs. Dietz and other members of her family, including Mr. and Mrs. Salmo, were with James in the hospital around the clock. L. Dietz at 29-30, City Ex. D, attached to Murray Aff. dated March 31, 1995. If James was ready for medical discharge on Saturday, December 31, 1988, the CWA hold prevented his release from that date until the hearing on Tuesday, January 3, 1989, the next day Family Court was in session. *fn9"

 On January 3, 1989, the CWA child abuse petition was heard in Family Court and James was released to the custody of his grandparents. Plaintiff alleges that, at the hearing, the City requested that the court remand James to the custody of the Commissioner of Social Services. The court, however, "remanded James with the privilege of parole to the custody of [the Salmos and] . . . granted unlimited supervised visitation rights to Lenore and William Dietz." Parker Aff. dated July 29, 1992 P 10. Parker was the CWA attorney responsible for the petition in Family Court. The docket sheet included the notation that James should have "no unsupervised contact with his parents." City Ex. M.

 In his deposition, Parker explained that he, although a supervisor, was assigned to the case because "220 Church Street," HRA headquarters, had requested that a more experienced person be assigned. "It was an unusual case and . . . the parents were being represented by a private attorney who was a friend of somebody at central office." Parker I at 23. Parker identified the person at central office as Gene Skarin, not a named defendant. Id. at 26.

 It is undisputed that Mr. and Mrs. Dietz were never denied contact with their son, but that this contact was subjected to supervision by the Salmos from James' initial release on Saturday, December 24, 1988, to his hospital readmission on Wednesday, December 28, 1988, and, with the approval of Family Court, from his release from the hospital on Tuesday, January 3, 1989 until April 7, 1989.

 Mr. and Mrs. Dietz' case came to Family Court again on February 16, 1989, where the discharge to the Salmos and restriction on unsupervised contact by the Dietzes was reconfirmed and the case adjourned to April 7, 1989. Parker Aff. P12, attached to City Mot. For Summ. J. dated July 31, 1992, Family Court docket sheet, City Ex. M.

 The uncertainty about the identity of the abuser arose because the symptoms of WSIS may become manifest several hours after the baby is shaken. CWA was not sure, throughout the period both prior to and following the Family Court hearing on January 3, 1989, whether Mr. or Mrs. Dietz or Mrs. McGurn was the person who caused James' injury. Only in March 1989, when Dr. Giridharan wrote Parker and limited the time frame to exclude Mr. and Mrs. Dietz was there any basis on which a determination could be made as to the culprit. Thereafter, "the Court paroled James on April 7, 1989 to the care and custody of his parents and put the case over until June 8, 1989 pending the obtaining of a second opinion from an independent expert." Parker Aff. P 14. The Family Court remand on April 7, 1989 included the direction that "[CWA] to supv. strictly." Family Court docket sheet, City Ex. M.

 Mr. and Mrs. Dietz retained Dr. McHugh for this purpose. She was the Director, Child Protection Team, Bellevue Hospital Center. (Damas recorded in his notes that the Zone Director, Mr. Fenton, had contacted Dr. Margaret McCue (sic) on December 30, 1988. City Ex. I.) Based on her review of the records and placing especial emphasis on Det. Diggs' report that Mrs. McGurn stated that James took eight ounces of milk immediately prior to his manifestation of symptoms, Dr. McHugh opined, in an undated letter: "Such injuries [with "subarachnoid hemorrhage and bilateral retinal hemorrhages"] would result in a listless, if not comatose, child who could not have fed well three hours later." *fn10" City Ex. O.

 After Mr. and Mrs. Dietz submitted Dr. McHugh's undated letter, the CWA attorney, Parker, on June 8, 1989, "withdrew the abuse petition against Lenore and William Dietz without prejudice with three months supervision." Id. P 16. Following the period of supervision (which lasted longer than three months, possibly as the result of Mrs. Dietz' absence on a trip to Hong Kong), the case was closed after a final visit by CWA staff on October 31, 1989. Mrs. Dietz' request for expungement of the child abuse report in the State Child Abuse and Maltreatment Register was granted on March 12, 1992. Pltf. Ex. H.

 (5)

 Although Mr. and Mrs. Dietz place full blame for the incident on the child's babysitter, Diane McGurn, Detective Diggs told Damas on December 28, 1988 that he was unable to determine who committed the act. The police formally concluded on January 21, 1989 that they were unable to establish who committed the assault on James. *fn11" Pltf. Ex. A, Det. Diggs' Report dated January 21, 1989. Subsequently, in a letter dated March 8, 1989, James' physician, Dr. Radha Giridharan, narrowed the window of time in which he might have been shaken and, thereby, eliminated Mr. and Mrs. Dietz from suspicion. In her letter, Dr. Giridharan stated: "In my clinical judgment and evaluation the bleeding occurred within a couple of hours (2) prior to his presenting to the Lutheran Medical Center." City Ex. N. In her deposition, Dr. Giridharan explained how she came to write the letter:

 
And as time went on, because he was given to the grandparents and the decision had to be made, and by that time I was very comfortable with the Salmos and the Dietzes . . .. [Upon their request] if this is going to be interpreted as three, four and five, which I never said, I said okay, I am willing to make it as a couple, which will then narrow it down.

 Giridharan at 34, City Ex. F.

 On September 24, 1989, Mrs. McGurn was indicted for the crime. (Indictment attached as City Ex. T.) The District Attorney did not call Dr. Giridharan to the Grand Jury, but used Dr. Margaret McHugh as its WSIS medical expert. Justice Anne G. Feldman dismissed the indictment in March 1991, noting that: ". . . it was apparently Mrs. Dietz who brought Dr. McHugh's opinion to the attention of the prosecutor." Mem. Sup. Kings County, March 19, 1991, City Ex. U. Mrs. McGurn's indictment was dismissed because the prosecutor failed to present any evidence to the grand jury that implicated Mrs. Dietz in the abuse and permitted Mrs. Dietz to testify that "James was released to her care on both [releases from hospitalization]." *fn12" Id. The prosecutor also failed to instruct the grand jury properly with regard to the weight to be given the expert testimony presented. Id. Upon resubmission of the case against Mrs. McGurn to a grand jury, it refused to indict.

 Present Action

 Mr. and Mrs. Dietz brought this suit on their own behalf and on behalf of their son, alleging constitutional and state law violation cognizable under 42 U.S.C. § 1983 on December 18, 1991 against the City and City individual defendants. They also have alleged pendent state claims against the City as well as a pendent state tort claim in negligence against Mrs. McGurn. In her answer, Mrs. McGurn has asserted counterclaims against Mr. and Mrs. Dietz for malicious prosecution and defamation, founded specifically on Mrs. Dietz' testimony to the Grand Jury concerning the conditions under which James was released from the hospital and has asserted that any harm that befell James Dietz occurred while he was in their exclusive control.

 Plaintiffs allege eleven causes of action. The first, second, third, fifth, sixth, seventh and eighth (against the City and individual City defendants) arise under 42 U.S.C. § 1983, the fourth (also against the City and individual City defendants) under the United States Adoption Assistance and Child Welfare Act, 42 U.S.C. § 671(a), and the ninth and tenth claims (against the City and the individual City defendants) are pendent state law claims sounding in negligence and libel. The plaintiff's eleventh cause of action is a state law claim sounding in negligence against the babysitter, Mrs. McGurn, as a pendent party. Mrs. McGurn's counter-claims are also asserted under state law.

 The § 1983 causes of action asserted against the City and the City individual defendants allege:

 First: under "a policy of removing and detaining children from their parents without probable cause and without due process of law," Compl. P 48, they wrongfully took "custody" of James without providing Mr. and Mrs. Dietz timely notice and an opportunity to be heard.

 Third: their actions against Mr. and Mrs. Dietz were pursuant to a malicious and retaliatory policy, in violation of Mr. and Mrs. Dietz' First Amendment rights, because the Dietzes had complained to CWA supervisors and management and some politicians about the way the CWA was conducting its investigation.

 Fourth: they violated the United States Adoption Assistance and Child Welfare Act, 42 U.S.C. § 671(a). *fn13"

 Fifth: they violated New York statutes and regulations, cognizable under § 1983, "requiring Department of Social Services employees to provide services to preserve families prior to removing children and to reunify families subsequent to the children's removal;" Compl. P 78.

 Sixth: they unlawfully interfered with parental rights;

 Seventh: they unlawfully imprisoned the infant;

 Eighth: they abused governmental power in labeling Mr. and Mrs. Dietz child abusers, thereby violating Mr. and Mrs. Dietz' rights to privacy, ...


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