Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ZAPPALA v. ALBICELLI

October 15, 1997

MICHAEL ZAPPALA and VERONICA ZAPPALA, individually and as parents and legal guardians of ANTHONY ZAPPALA and MICHA ZAPPALA, infants under the age of Eighteen Years, Plaintiffs,
v.
LINDA ALBICELLI, MARGARET COLLIGAN, RICHARD E. PARISI, JEROME F. MELVIN, LIVERPOOL CENTRAL SCHOOL DISTRICT, CATHERINE HAAS, CHRIS LARKIN, THOMAS ALBANI, BONNIE ENGLEBRECHT, ROBERT J. STONE, CARL W. DENGEL II, RENE ROBERTS, M.C. ROMAS, PETER VAN PATTEN, JOHN C. DILLON, JON A. GERBER, and ONONDAGA COUNTY, Defendants.



The opinion of the court was delivered by: SCULLIN

 Introduction

 This action arises out of a report of suspected child abuse lodged by Liverpool School District personnel with the New York State Child Abuse Central Registry ("NYSCACR"). Subsequent to this report, personnel from the Onondaga County Department of Social Services ("DSS") along with the Onondaga Sheriff's Department temporarily removed the alleged victim from her parents' care, and initiated a child abuse and neglect petition against the alleged victim's parents. The alleged victim, her parents, and her brother all join in bringing this action against all of the public officials involved in this incident pursuant to 42 U.S.C. § 1983, alleging a violation of their constitutional right to remain together as a family. In a previous decision, the Court dismissed the Plaintiffs' claims against all the Defendants affiliated with the Onondaga County Department of Social Services and the Sheriff's Department, leaving only the Defendants affiliated with the Liverpool School District remaining. Presently before the Court is a motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure by the remaining Defendants. The following decision assumes familiarity with the facts and reasoning set forth in our previous decision in this matter.

 Background

 Plaintiffs' remaining claims relate to the conduct of Defendant Micha Zappala's teacher and speech therapist, Defendants Linda Albicelli and Margaret Colligan, respectively. In October of 1991, these two Defendants utilized facilitated communication, an experimental communication technique, to communicate with Micha. Based on messages received from Micha through facilitated communication, Defendants Albicelli and Colligan began to suspect that Micha was possibly a victim of child abuse. Defendants raised their concerns with the School Principal, Defendant Richard Parisi, who determined that there was reasonable cause to report the situation to the NYSCACR. Even though the Plaintiffs acknowledge that these Defendants took no part in the decision to remove Micha from her parents, the Plaintiffs allege that their constitutional deprivation was a reasonably foreseeable consequence of the Defendants' action.

 Additionally, the Plaintiffs sue Defendant Jerome F. Melvin, the Superintendent of the Liverpool School District, and the Liverpool School District itself for failure to train their employees in proper child abuse reporting procedures and practices.

 In our previous decision, the Court dismissed the claims brought against eleven of the individual Defendants who were affiliated with Onondaga County, finding that they were entitled to qualified immunity because it was not clearly established that their conduct was violative of a constitutional right, and in any event their conduct was objectively reasonable given the circumstances present. See Zapalla v. Albicelli, 954 F. Supp. 538, 545-46 (N.D.N.Y. 1997) ("Zappala I "). Additionally, the Court dismissed the Monell claim brought against the County of Onondaga because the Plaintiffs had failed to demonstrate a material issue of fact as to existence of an unconstitutional policy or practice. See id. at 547.

 Discussion

 Under Rule 56(c), summary judgment is warranted if, when viewing the evidence in a light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 457, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). To survive a motion for summary judgment the non-movant must do more than present evidence that is merely colorable, conclusory, or speculative. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-movant must offer evidence that demonstrates that there are issues of fact that must be decided by a fact finder because "they may reasonably be decided in favor of either party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Thus, the Court will examine the Plaintiffs' claims against the remaining Defendants pursuant to this standard.

 I. DEFENDANTS ALBICELLI, COLLIGAN, AND PARISI

 Plaintiffs' § 1983 claims against Defendants Albicelli, Colligan, and Parisi allege that their conduct in reporting Micha's facilitated messages to the NYSCACR and their subsequent provision of assistance to the County officials investigating the allegations, eventually led to the temporary removal of Micha from her parents and the filing of a child abuse and neglect petition against them.

 For substantially the same reasons stated in our previous decision, Defendants Albicelli, Colligan, and Parisi are entitled to qualified immunity. Qualified immunity shields government actors from liability for performing discretionary functions where their conduct does not violate clearly established statutory or constitutional. rights which a reasonable person would have known. See Doe v. Marsh, 105 F.3d 106, 109 (2d Cir. 1997). As Defendants point out, New York law mandates that school officials report allegations of child abuse to the NYSCACR when there is "reasonable cause" to suspect that child abuse has occurred. See N.Y. Soc. Serv. Law § 413 (1997). In fact, the state legislature has determined that such decisions should be statutorily immune from liability. See N.Y. Soc. Serv. Law § 419 (1997). Furthermore, the failure of educators to carry out their duties under the Social Services Law could subject them to § 1983 liability for not reporting suspected child abuse where there is reasonable cause. See Doe v. New York City Dep't of Soc. Serv., 649 F.2d 134, 145-46 (2d Cir. 1981) (finding that in a § 1983 action, the mandatory reporting requirements of N.Y. Soc. Serv. L. § 413 furnish a plausible basis for a jury to find deliberate indifference on the part of a defendant who failed to report suspected child abuse). Thus, it is clear that an educator has an obligation to report suspected child abuse where there is reasonable cause to believe it occurred.

 The record in the present case reflects that Defendants Albicelli, Colligan, and Parisi relied substantially on evidence derived through facilitated communication in determining that it was necessary to file a report with the NYSCACR. However, even if the Court accepts the Plaintiffs' inference that, in this case, the facilitated communication yielded false information, the Defendants' actions were still objectively reasonable because at the time, they had no reason to believe that the facilitated communication did yield false results, or even that it was highly suspect. See Zappala I, 954 F. Supp. at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.