rights based on Micha's temporary removal from her home. The other group of § 1983 claims allege malicious prosecution against various Defendants based on the decision to bring the child neglect petition. Since both groups of claims are premised on the Defendants' lack of probable cause at the time they acted, January 10 -13, 1992, the Court will analyze the availability of qualified immunity as to the County Defendants at that point in time.
Generally speaking, qualified immunity shields government officials from liability arising from their official conduct insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir. 1995) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). The qualified immunity standard requires a two-prong inquiry. The first prong inquires whether the right claimed to have been violated was clearly established at the time the Defendants acted. Rodriguez, 66 F.3d at 476 (citing Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991)). If the right is clearly established, the second prong of the inquiry asks whether the Defendants' conduct was still objectively reasonable given the circumstances. Lennon v. Miller, 66 F.3d 416, 423-24 (2d Cir. 1995)
2. Clearly Established Prong
The purpose of the first prong of the qualified immunity test is to ask whether the Defendant official should have been on notice that his conduct could implicate a "clearly established" constitutional or federal statutory right. See Shechter v. Comptroller of the City of New York, 79 F.3d 265, 270 (2d Cir. 1996) ("the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." quoting Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). The Second Circuit has suggested that the "clearly established" prong may be determined upon consideration of three factors: (1) whether the right in question was defined with "reasonable specificity;" i.e., the right must be defined narrowly enough so that a reasonable Defendant official would have truly been on notice of the relation between his conduct and the relevant case law; (2) whether the decisional law of the Supreme Court and the Second Circuit at the time of the alleged violation supported the existence of the right in question, and (3) whether, given the state of the law at the time of the alleged violation, a reasonable Defendant official would have understood that his or her acts were unlawful. Shecter, 79 F.3d at 271 (citations omitted).
In the present case, it is well established that a parent has a constitutional right to the custody of his or her children. This right has been found to exist under the First, Fourth, Fifth and Fourteenth Amendments. See Roberts v. United States Jaycees, 468 U.S. 609, 620, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984) (recognizing that family relationships implicate a protected First Amendment associational right); van Emrik v. Chemung County Dep't of Social Servs., 911 F.2d 863, 867 (2d Cir. 1990) (finding that the state's assumption of custody of the child is a seizure under the Fourth Amendment); Smith v. Org. of Foster Families For Equality and Reform, 431 U.S. 816, 842, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977) (recognizing that a procedural due process "liberty" interest does exist in maintaining family relationships). However, in 1992, it was and still is equally well established in Second Circuit case law that government "officials may temporarily deprive a parent of custody in emergency circumstances without parental consent or a prior court order." Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (citations omitted). Furthermore, in 1992 it was established law that such action was appropriate if the officials have been presented with evidence of serious ongoing sexual abuse and therefore have reason to fear imminent recurrence." Id. at 922.
Here, the Defendant officials relied on what they believed to be evidence of serious ongoing sexual abuse by Micha's father.
It certainly was not clearly established law in January 1992, that such allegations of sexual abuse as were reported here, even though communicated by means of an experimental communication technique such as facilitated communication, were necessarily unreliable. Nor was it clearly established law that such reports, taken together with the other existing circumstances, would be insufficient to trigger the type of emergency warranting immediate removal of a child from her home.
Likewise, it was not clearly established at that time that bringing a subsequent neglect petition as a result of such information would violate the Zappala's Constitutional rights.
Thus, the Court finds that the Defendants could not have been on notice that they were engaging in potentially unconstitutional conduct. As such, the County officials are entitled to qualified immunity based on the first prong of the qualified immunity standard.
2. Objective Reasonableness Standard
Even assuming the Defendants are not entitled to qualified immunity on the first prong of the standard, an analysis of the second prong of the qualified immunity standard yields the same result. "The Supreme Court has held that the objective reasonableness standard was specifically designed to 'permit the resolution of many insubstantial claims on summary judgment.'" Lennon, 66 F.3d 416 at 421 (quoting Harlow, 457 U.S. 800 at 818). "If there is no dispute about the material facts, the district court should assess the reasonableness of the Defendant's conduct under the circumstances presented . . . ." Id.
As stated, for the most part, the parties do not dispute the events that occurred, only what interpretation should be given to them. Under this prong, the Court must determine whether reasonable County officials could disagree about whether the temporary removal of Micha and initiation of a petition for neglect was a violation of the parents' constitutional rights based on the information available to the defendants. See Lennon, 66 F.3d at 424. Both sides have presented evidence with respect to the reliability of facilitated communication and the propriety of the defendants' actions in this matter.
The apparent disagreement between the experts over whether facilitated communication is a reliable form of communication, in and of itself, demonstrates that reasonable officials could disagree about the propriety of the Defendants' actions which were based substantially on reports derived from facilitated communication.
These reports formed the basis of the probable cause which triggered the chain of events which caused the temporary custody deprivation at issue, and also triggered the child neglect petition brought against the Zappalas. It seems clear that given all the circumstances present, if Micha had verbally communicated the allegations which were elicited through facilitated communication, all the individual Defendants would be entitled to qualified immunity.
The gravamen of the Plaintiffs' claim, however, is that facilitated communication is so fundamentally unsound, relying on it to seize Micha was analogous to having no evidence at all. Even if the Plaintiffs are correct in their assessment of the reliability of facilitated communication,
at the time the Defendant County officials acted, its reliability was not known to be discredited, nor was there any guiding precedent in the then existing Second Circuit and Supreme Court case law. Thus, based on the record before the Court, it is clear that the Defendants' actions were objectively reasonable, as a matter of law. As such, the Court finds that the individual County Defendants are entitled to qualified immunity as a matter of law under the second prong of the qualified immunity standard, as well.
II. § 1983 Conspiracy Claim
The only evidence offered by the Defendants of a separate conspiracy are the alleged unconstitutional acts themselves. Since the Defendants are entitled to qualified immunity on all the individual Constitutional claims, a separate conspiracy claim based only on the exact same conduct fails as well. See Singer v. Fulton County Sheriff, 63 F.3d 110, 119-20 (2d Cir. 1995). Thus, Plaintiffs § 1983 conspiracy claims fail as a matter of law.
III. Monell Claims
Plaintiffs allege that Defendant Onondaga County is liable under § 1983 for violation of the Plaintiffs' Constitutional rights because the County had custom or policy of inadequately training their police officers and social workers concerning facilitated communication. Plaintiffs further argue: (1) that the County is liable because it had no policy for joint investigations with the Sheriff's Department and the Department of Social Services, (2) that the County is liable for failing to review, assess, or evaluate the Abused Person's Unit ("APU") since 1979, (3) that the APU personnel receive no specialized training in how to deal with the developmentally disabled, (4) that the Sheriff's department is generally untrained, (5) and that the failure to conduct an internal review of this incident is evidence of a general unconstitutional policy.
Municipalities are liable for the unconstitutional acts of non-policy making municipal employees only when the employee's acts are the direct result of a municipal custom or policy. See Monell v. City of New York Dept. of Social Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). A claim of "inadequate training" will trigger municipal liability only when "the failure to train amounts to deliberate indifference to the rights" of those with whom the employees will come into contact. Canton v. Harris, 489 U.S. 378, 388, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). Deliberate indifference implies that the city made a "deliberate choice" not to train its employees from among various alternatives. Id. at 389. Furthermore, liability will not attach unless the training inadequacy is closely related to the ultimate injury. Id. at 391.
Plaintiffs allege that the Onondaga County DSS, APU, and Sheriff Department failed to train its personnel in facilitated communication causing the specific alleged violations of the Plaintiffs' constitutional rights. Plaintiffs fail to establish a Monell claim for several reasons,
but most importantly, there is no causal link between the alleged policies and the alleged deprivation, as required by Canton. The underlying premise of the Plaintiffs' constitutional deprivation is that facilitated communication is a hoax. Thus, any training received by the Defendants in facilitated communication prior to January 1992 may have made them more knowledgeable about facilitated communication, but would not have revealed that facilitated communication was patently false, as Plaintiffs contend.
Therefore, the Court finds that Onondaga County's policy of failing to train its officials in facilitation, even if true, could not have caused the specific deprivation alleged by the Plaintiffs. Likewise, all of the other "policies" alleged by the Plaintiffs lack a causal link as well. As such, the Plaintiffs have not met their summary judgment burden of demonstrating that there is a material issue of fact as to their alleged Monell claims, and therefore, the County of Onondaga is entitled to summary judgment as a matter of law.
IV. Unauthorized Medical Testing:
Plaintiffs also allege that each Defendant violated their constitutional rights by allowing Micha to be medically examined without their consent. Although the Plaintiffs do not explicitly cite it, they apparently rely on their Fourteenth Amendment due process liberty interest in making decisions about their children's medical care, see Parham v. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979), and their parental assertion of Micha's Fourth Amendment right not to be subject to an invasive bodily exam. See Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972).
Generally, even when the state takes temporary custody of child in "emergency situations," an investigative medical examination may not be undertaken without parental notice and judicial authorization. See van Emrick, 911 F.2d at 863; Tenenbaum v. Williams, 862 F. Supp. 962, 972 (E.D.N.Y. 1994).
Here, the Defendants have offered evidence that the medical examination of Micha was undertaken pursuant a judicial order of the Family Court, was stipulated to by the Zappalas, and was conducted in the presence of Micha's mother.
(See Botash Aff. Ex. AA; Family Court Transcript, Ex. Y). Plaintiffs have offered no evidence refuting these facts nor do they even deny them. Thus, because there was both parental notice and judicial authorization of Micha's medical examinations, Plaintiffs have not asserted a constitutional injury as to those examinations. Therefore, Defendants are entitled to summary judgment on this claim as a matter of law.
V. Other Motions
1. Defendants' Motion to Stay Proceedings (Discovery) and Plaintiffs' Motions to Compel Discovery, and to Strike Defendants' Answer
Because the Court is granting the County Defendants' motion for summary judgment as to all of the Plaintiffs' claims, the Defendants' motion to stay discovery and the Plaintiffs' motion to compel discovery and to strike Defendants' answer are dismissed as moot.
2. Plaintiffs' Motion for Sanctions, Attorneys' Fees and Costs Associated with Bringing the Motion to Compel Discovery
Plaintiffs move for sanctions, attorney's fees and costs associated with bringing their motion to compel discovery, pursuant to Fed. R. Civ. P. 37(d). They allege that the Defendants willfully failed to comply with discovery demands because they took four months to respond to the Plaintiffs' interrogatories, and that when served, their responses were inadequate.
Fed R. Civ. P. 37 provides in part:
if a party . . . fails . . . to serve answers or objections to interrogatories . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just. . . . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that circumstances make the award of expenses unjust.
Fed. R. Civ. P. 37(d) (1996). The appropriateness of a given sanction is not guided by any clearly defined rule or doctrine but should be just, in accordance with the terms of Rule 37(d), and should serve the guidelines outlined in Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67 (2d Cir. 1988). Williams v. National Housing Exchange Inc., 165 F.R.D. 405, 408 (S.D.N.Y. 1996). Update Art outlined three purposes of Rule 37 sanctions: (1) they ensure that a party will not benefit from failure to comply with discovery requests, (2) they are specific deterrents in a case to a particular party, and (3) they have "a general deterrent effect on the case at hand and on other litigation . . . ." Id. (citing Update Art, 843 F.2d at 71).
Here, the record indicates that the Defendants have made a good faith effort to comply with the Plaintiffs' voluminous discovery requests, that the Defendants have not "failed" to answer the interrogatories as required under Rule 37(d), and that the Defendants' interrogatory responses were timely under the pre-trial management order. The Court further notes that the Plaintiffs took three months to respond to Defendants' interrogatories and completely failed to respond to the Defendants' requests for clarification on some of those responses. As such, the Plaintiffs are not entitled to Rule 37(d) sanctions, and their motion is denied.
3. County Defendants' Motion for Sanctions, Attorneys' Fees and Costs
The County Defendants move for an award of sanctions against the Plaintiffs based on the Plaintiffs' motion for sanctions which the Defendants characterize as frivolous. The Defendants do not cite to the authority under which they seek sanctions, so the Court will assume that they do so under the inherent discretionary authority of the Court.
A federal district court has the inherent authority to assess attorney's fees for willful disobedience of a court's order, or when a party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). The Defendants have offered no facts supporting a finding that Plaintiffs have brought their motion in bad faith, vexatiously, wantonly, or for oppressive reasons. As such, the Court denies their motion for sanctions.
The Court has reviewed all the parties' submissions, supporting evidence, and the applicable law and finds that the County Defendants are entitled to qualified immunity, and that the Plaintiff has failed to demonstrate an issue of material fact as to the County's municipal § 1983 liability. Therefore, it is hereby
ORDERED, that the County Defendants' motion for summary judgment is GRANTED, and all the claims against Catherine Haas, Chris Larkin, Thomas Albani, Bonnie Englebrecht, Robert Stone, Carl W. Dengel, II, Rene Roberts, M.C. Romas, Peter Van Patten, John C. Dillon, Jon A. Gerber and Onondaga County are DISMISSED. It is further
ORDERED, that County Defendants' motion to stay proceedings is DENIED as moot. It is further
ORDERED that Plaintiffs' motion to strike the Defendants' answer is DENIED as moot. It is further
ORDERED that Plaintiffs' motion for sanctions, attorneys' fees and costs is DENIED. Finally, It is further
ORDERED that Defendants motion for sanctions, attorneys' fees and costs is DENIED.
IT IS SO ORDERED.
Date: February 10, 1997
Syracuse, New York
Frederick J. Scullin, Jr.
United States District Judge