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December 5, 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:

 By memorandum and order dated July 11, 1996, reported at 932 F. Supp. 431 (E.D.N.Y. 1996), the motion for summary judgment made by the City of New York on behalf of itself and its individual employee defendants was granted. The remaining pendent state claims, including plaintiffs' claim against defendant Diane McGurn and Mrs. McGurn's counter-claims against the plaintiffs, were also dismissed.

 Plaintiffs have timely moved under Fed. R. Civ. P. 59(e) to reargue and vacate the judgment. Their motion falls roughly into two categories. First, plaintiffs offer an extensive analysis of what they view as errors in the opinion. The common thread in this portion of plaintiffs' motion is that I improperly "decided every factual issue against plaintiffs and [drew] every inference against plaintiffs," in violation of the well-established federal standards for summary judgment. Pls.' Mot. P 8. The second portion of the motion takes issue with the policy concerns for the effective operations of a child protective system expressed in the decision. See Dietz, 932 F. Supp. at 433, 460. In connection with this portion of their argument, plaintiffs have submitted copies of 1991, 1995 and 1996 New York State Department of Social Services ("state DSS") reports concerned with child protective services in New York City. Plaintiffs passionately express their concern for the harm that may have befallen families and children as the result of actions of the Child Welfare Administration ("CWA") on unsubstantiated reports of child abuse.

 In their reply papers on the motion for reargument, plaintiffs for the most part repeat arguments made in opposition to the motion for summary judgment. These include reiteration of their views that the defendants failed to comply with the New York Family Court Act hearing requirements; that the defendants failed in their duty to investigate Mrs. McGurn; and that the defendants (and the opinion) placed undue reliance on the initial abuse report. However, plaintiffs also raise several issues not discussed in their initial brief in support of their motion for reargument. *fn1" These include an argument that even if Mrs. Dietz had caused James's injuries by shaking, CWA was required to and failed "to determine the likelihood that she would injure or endanger him again" before making a determination that an emergency existed. Pls.' Reply at 4. Finally, the reply brief advances several new legal arguments that take issue with the initial decision and its analysis.

 The motion for reargument is granted; however, for the reasons stated below, the original decision granting summary judgment to the City defendants is adhered to. The following analysis presumes familiarity with the facts and legal reasoning found in the memorandum and order dated July 11, 1996.

 1. Summary Judgment was Appropriate

 The opinion relied greatly on van Emrik v. Chemung County, 911 F.2d 863 (2d Cir. 1990), and, to a lesser extent, on the more recent Defore v. Premore, 86 F.3d 48 (2d Cir. 1996). In both of these cases, the Second Circuit held that summary judgment was proper under similar circumstances. *fn2" It is notable that in their briefing of the summary judgment issue on this reargument motion plaintiffs make no reference to recent Second Circuit decisions concerned with child abuse proceedings. Plaintiffs first refer to this body of law in their reply brief where they make an effort to distinguish the facts of those cases from the facts presented here. See Pls.' Reply Br. at 11-12. Instead, their initial brief for reargument relies on a heterogeneous array of cases concerned with summary judgment motions in such areas as antitrust, police misconduct and Title VII. *fn3"

 However, application of summary judgment standards used in cases that were based on substantially different issues of law and fact still results in the grant of summary judgment to the City defendants because there is no genuine issue with regard to any material fact.

When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.

  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)(citations omitted). A recent Second Circuit decision, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), stated: "On appeal 'the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'" (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)).

 The critical issues in this case are: first, whether CWA had an objectively reasonable belief that an emergency existed that warranted placing a hold on James in the hospital on December 22, 1988 and restricting his discharge to his grandparents on December 23, 1988; second, whether a delay in providing an adversarial hearing of six court days (during most of which period James was in the hospital), violated constitutional due process protections; third, whether the CWA investigation was constitutionally inadequate in failing to eliminate the Dietzes from suspicion prior to Dr. Giridharan's letter of March 1989 and Dr. McHugh's undated opinion that was issued after the Family Court hearing; fourth, whether the filing of the Family Court petition against the Dietzes was constitutionally malicious, that is, lacking probable cause; and finally, if probable cause existed, whether the petition was filed in retaliation for the exercise of First Amendment rights and succeeding in chilling the Dietzes' exercise of those rights. Disagreements about facts that do not bear on these issues are not issues of material facts, and "[a] dispute as to an immaterial fact does not preclude summary judgment." 10A Charles A. Wright et al., Federal Practice and Procedure 2d ยง 2725 (1983) (citing cases).

 a. No Disputes Concerning Genuine Issues of Material Facts


 In this case there is no question that there is a dispute as to whether Dr. Giridharan, the treating neurologist, told Harold Damas, the case worker, on December 30, 1988 that the shaking occurred "a few" hours before the symptoms were manifested, as she testified at her deposition, or the "several" hours that Mr. Damas recorded in his notes. However, whichever formulation is accurate is of no moment because in the full context of Dr. Giridharan's deposition, she clearly and unequivocably testified that she refused to give Mr. Damas a time frame for the abuse and told him that "the investigation[] [is] up to him." Giridharan at 5, City Ex. F. Moreover, in her deposition, Dr. Giridharan confirmed that Mr. Damas had informed her of the importance of establishing a time frame for the abuse and that, even with that knowledge, she had refused to provide one. See id. at 28-29. Thus no genuine issue of fact exists as to Dr. Giridharan's refusal to narrow the time-frame in the relevant period, and this refusal is the material fact.

 Significantly, both in their original brief and in their reply brief, plaintiffs raise no objection concerning the opinion's analysis of and conclusions as to these undisputed facts about Dr. Giridharan's statements to Detective ("Det.") Diggs and Mr. Damas, her letter in March 1989, and her deposition testimony. *fn4" Here, the opinion accepted the plaintiffs' view that Dr. Giridharan told Mr. Damas on December 30, 1988 that the shaking had to have occurred within a "few" hours of the manifestation of symptoms. Plaintiffs have not, however, challenged the finding that Dr. Giridharan's testimony establishes that, when she spoke to Mr. Damas on December 30, 1988, knowing the importance of the time frame to determining who the abuser was, she refused to narrow the time frame to exonerate the Dietzes. Plaintiffs have also not challenged the finding that the police investigative reports submitted by the plaintiffs confirm that Dr. Giridharan had also told Det. Diggs on December 22, 1988, that "it had to of happened on that day Tuesday but she could not give a time." Pls.' Ex. A. Plaintiffs also do not challenge Dr. Giridharan's credentials as an expert in the field of WSIS or her expert knowledge of James's condition from her role as treating neurologist. *fn5"

 This is the crux of the case. Contrary to plaintiffs' assertion, Pls.' Reply Br. at 3, who, in fact, was responsible for James's injuries is not the issue. Nor is this action a proceeding designed to provide the plaintiffs with a forum to seek public exoneration. The issue here is whether the City defendants' initial action in asserting custody of James was objectively reasonable. Plaintiffs' argument that the decision made several erroneous inferences is irrelevant to this issue; none of these allegedly erroneous inferences bear on material facts. The undisputed facts are that James was severely injured as the result of deliberate shaking; that Dr. Giridharan refused to limit the time frame in which the abuse might have occurred to eliminate Mr. and Mrs. Dietz from suspicion on December 22, 1988 to Det. Diggs; and that Dr. Giridharan again refused to narrow the time frame in a conversation with Mr. Damas on December 30, 1988. Once the defendants confirmed that Dr. Giridharan continued to hold the view that the child was the victim of abuse and that she could not give a time frame that eliminated the Dietzes as a possible source of the abuse, no issue of material fact remains. At this point in time, CWA continued to have an objectively reasonable belief that Mr. and Mrs. Dietz represented a danger to their severely injured son. In filing a petition in Family Court CWA could reasonably rely solely on Dr. Giridharan's refusal to narrow the time frame. The other information they obtained during this period served to reinforce CWA's reasonable belief that the Dietzes were responsible. This other information -- positive reports concerning Mrs. McGurn, from her neighbors, from other parents for whom she babysat, and even from Mrs. Dietz (as reported by the hospital social worker) -- did not give CWA or the police a reason to suspect Mrs. McGurn. The absence of evidence against Mrs. McGurn at this time, in turn, made it reasonable for both Det. Diggs and Mr. Damas to rely on Mrs. McGurn's statements.

 Dr. Giridharan's position also led the police (whose investigation has been praised by the plaintiffs), to close the case on January 21, 1989, as "NON-AMENABLE there is no way to prove that any one person had Exclusive Opportunity." Pls.' Ex. A, emphasis in original. But in no way does this later action by the police undercut CWA's conclusion that an emergency situation existed and that they reasonably could believe that Mrs. Dietz was responsible. The police report clearly indicated that a crime had occurred but they could not definitively identify the culprit.


 In their reply brief, plaintiffs argue for the first time that, even if CWA had reason to believe that Mrs. Dietz had blinded James by shaking him severely, it had to make the further prediction "that she would injure or endanger him again." Pls.' Reply Br. at 4. The only authority plaintiffs have cited for this asserted rule is Gottlieb, which does not stand for any such proposition. The significance of Gottlieb is the Second Circuit's statement of the rule that "where . . . there is an objectively reasonable basis for believing that parental custody constitutes a threat to the child's health or safety, government officials may remove a child from his or her parents' custody at least pending investigation." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (citations omitted). The initial decision here is completely consistent with the rule articulated in Gottlieb.

 Plaintiffs' argument that caseworkers must make an additional determination is also directly refuted by van Emrik v. Chemung County, 911 F.2d 863 (2d Cir. 1990), a case factually much closer to plaintiffs'. *fn6" In van Emrik, as here, a child was indisputably injured, but the caseworkers were unable to determine whether the parents or the babysitter caused the injury. There was no indication that the child would be injured again, or that the abuse was part of a pattern. *fn7" Nevertheless, caseworkers obtained an order from a Family Court judge allowing them to ...

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