The opinion of the court was delivered by: MCAVOY
Presently before the Court is defendant Sandra Walsemann's
motion to dismiss the plaintiff's Amended Complaint, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the ground that the Eleventh Amendment bars the Court from exercising subject matter jurisdiction. Walsemann also moves to dismiss the Amended Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that (1) plaintiff's Amended Complaint fails to state a claim for negligence; (2) defendant is entitled to qualified immunity; and (3) supplemental jurisdiction over plaintiff's state claim is improper.
Plaintiff, in turn, contends that the Amended Complaint states a claim against Walsemann in negligence. Specifically, plaintiff argues that Walsemann failed to provide or refer him to psychological and psychiatric assessment and treatment, or properly report the alleged acts of child abuse and maltreatment. Plaintiff further asserts that his supplemental state claim is proper.
For the reasons that follow, defendant Walsemann's motion to dismiss is DENIED.
On September 4, 1994, plaintiff John Doe, a seven year old child, was placed in the custody of the Jefferson County Department of Social Services ("JCDSS"). The Jefferson County Family Court ordered that the plaintiff remain in the care of JCDSS as a result of a finding of parental neglect.
Sometime before 1995, plaintiff began attending the Watertown Collaborative Day Treatment Program ("Watertown"). Here, plaintiff received educational and related therapy services. Defendant Sandra Walsemann, a certified social worker, acted as plaintiff's therapist at all relevant times during his attendance at Watertown.
According to the Amended Complaint, during January and February of 1995, plaintiff began appearing at Watertown unkept, with dark circles under his eyes and bruises and scrapes on his body. Sometime between February 10 and May 2, 1995, Walsemann reported to the New York State Central Registry various acts of abuse disclosed by the plaintiff to her.
According to the Plaintiff, Walsemann failed to provide him with or refer him to adequate psychological and psychiatric assessment and treatment. Plaintiff claims that such treatment was necessary for his physical, psychological and educational conditions, including, but not limited to, his seizures, possible attention deficit disorder and physical abuse, sexual assault and neglect suffered in JCDSS foster care. Plaintiff further alleges that Walsemann failed to make proper reports of the alleged child abuse and maltreatment.
On May 2, 1995, plaintiff claims that an independent investigation was conducted by Paul Miller of the St. Lawrence County Department of Social Services recommending the removal of the plaintiff from the Marnell foster home as a result of findings of abuse and maltreatment. According to the Amended Complaint, plaintiff's mother also repeatedly requested JCDSS to remove the plaintiff from the Marnell's care. On July 3, 1995, plaintiff alleges that JCDSS informed his mother that between February 11, 1995 and July 3, 1995 the plaintiff was repeatedly sexually assaulted by another child at the Marnell home.
In November 1995, JCDSS returned the plaintiff to his mother. On March 3, 1996, JCDSS removed the plaintiff from his mother's care, placing the plaintiff in the care of his grandmother. Two weeks later, plaintiff allegedly was hospitalized at the Benjamin Rush institution. Presently, plaintiff remains under the care of JCDSS.
Plaintiff, by his guardian ad litem, filed this action against numerous defendants claiming various constitutional and state law violations. Pending before this Court is defendant Walsemann's ...