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October 17, 1997

AMINE BABA-ALI, Plaintiff, against THE CITY OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Court.


 Plaintiff and his wife were involved in a bitter divorce and custody dispute. (Compl. P 24, citing People v. Baba-Ali, 179 A.D.2d 725, 578 N.Y.S.2d 633 (N.Y. App. Div. 2d Dep't. 1992). His wife was awarded temporary custody of their daughter and Plaintiff was awarded visitation privileges. (Compl. P 24, Pl.'s Mem. In Opp'n at 1, Def.'s Mem. Law at 2). Plaintiff's wife moved from their marital residence in Queens into Manhattan and sent their daughter to live with her maternal grandparents in Pennsylvania. (Compl. P 24). Plaintiff had to seek enforcement of his visitation rights and his wife was threatened with sanctions if she did not comply with the visitation order. (Compl. P 24). As a result, Plaintiff's wife would drive to Pennsylvania after work on Fridays and, on Saturdays, would drive the child to Queens. (Compl. P 24). On Sunday evenings, the wife would pick up the child and meet the maternal grandparents at a designated location on the New Jersey Turnpike and, from this location, the grandparents would take the child back to their home in Pennsylvania. (Compl. P 24).

 On February 12, 1988, after six of such weekend visits, the grandmother brought the child to her pediatrician, Dr. Dada, claiming that she suspected Plaintiff of child sexual abuse. (Compl. P 24). Dr. Dada examined the child, but his examination was inconclusive because he could not perform a comprehensive gynecological examination. (Compl. P 24). As a result, Dr. Dada contacted the appropriate authorities and referred the child to Crozer-Chester Medical Center (Crozer) for further evaluation. (Compl. P 24). The medical records from Crozer indicated that the child's genitalia and rectum were normal and that the attending physician had attempted to insert a Q-tip into the child's vagina but the opening was too small. (Compl. P 24). A notation, "no Signs of SA [sexual abuse]," was made on the record. (Compl. P 24).

 Plaintiff's wife testified that she was dissatisfied with the examination her daughter received at Crozer and, on February, 15, 1988, she took her daughter to Children's Hospital of Philadelphia (CHOP). (Compl. P 24). Next to the boxes marked rectum and genitalia, the attending physician wrote "no external signs of abuse." (Compl. P 24). The CHOP medical records indicated that the child had been examined for approximately an hour and a half. (Compl. P 24).

 Plaintiff's last visitation with his daughter was on February 7, 1988. All three subsequent examinations were inconclusive or showed no physical evidence of sexual abuse. (Compl. P 24, Pl.'s Mem. in Opp'n at 1-2, Def.'s Mem. Law at 2). Plaintiff's wife then contacted a New York police detective in the Queens Sex Crimes Squad, who referred the child for another medical examination. (Compl. P 24). On May 26, 1988, the child was examined by Dr. Nadine Sabbagh, an employee of the New York City Department of Health. (Compl. P 24, Pl.'s Mem in Opp'n at 2, Def.'s Mem. Law at 2). In the three and a half months between the child's examination at CHOP and Dr. Sabbagh's examination, the child had not been taken to see any other physician. (Compl. P 24). In that three and a half month period, Plaintiff had no contact with his child. (Compl. P 24).

 In January of 1992, the Appellate Division for the Second Judicial Department of the State of New York ("Appellate Division") reversed Plaintiff's conviction, on the ground of prosecutorial misconduct (based on the People's withholding of CHOP records which contained potentially exculpatory evidence). (Compl. P 22, Pl.'s Mem. in Opp'n at 4, Def. Mem. Law at 4). The Appellate Division also made a finding of ineffective assistance of defense counsel, citing as support the facts that the defense counsel had failed to subpoena the physicians who had performed the earlier examinations and also failed to secure independent expert medical testimony. (Compl. P 24).

 Following the reversal, the Queens District Attorney's Office moved to amend the Appellate Division's finding of prosecutorial misconduct. (Compl. P 26). The Assistant District Attorney (A.D.A.) who prosecuted the case, Elizabeth J. Loconsolo, stated that she had given the CHOP and Crozer records to Plaintiff's counsel within a few days of receiving them, several months before trial. (Compl. P 26). Plaintiff alleges that A.D.A. Loconsolo's affirmation was perjurious and that the trial jacket, on which Loconsolo claims to have noted handing over the records, was falsified. (Compl. P 26, Def. Mem. at 5). The Appellate Division denied the motion to amend. (Compl. P 23, Pl.'s Mem. in Opp'n at 6, Def. Mem. at 5).

 In May 1992, Plaintiff was facing re-trial and the Queens District Attorney's Office had the child examined at the New York Hospital by another doctor, Philip Hyden, M.D. (Pl.'s Mem. in Opp'n at 6). Dr. Hyden found that Plaintiff's daughter did in fact have a hymen, contrary to Dr. Sabbagh's Assertion in court in 1989. (Compl. P 28, Pl.'s Mem. in Opp'n at 6, Def. Mem. Law at 3). Shortly thereafter, the District Attorney moved to dismiss the indictment against Plaintiff, and the motion was granted. (Compl. P 28, Pl.'s Mem. in Opp'n at 6).



 The standard for granting a motion for judgment on the pleadings pursuant to Rule 12(c) of the Fed. R. Civ. P. is the same as that governing a motion to dismiss the complaint made pursuant to Rule 12(b)(6) Fed. R. Civ. P. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816, 115 S. Ct. 73, 130 L. Ed. 2d 28 (1994) (citing Ad Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987); Volberg v. Pataki, 917 F. Supp. 909, 913 (S.D.N.Y. 1996). "On a motion to dismiss under Rule 12(b)(6) the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff." Bolt v. Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995) (citations omitted); Scheuer v. Rhodes, 416 U.S. 232, 237, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The district court should grant "such a motion only if, after viewing the plaintiff's allegations in the this favorable light, 'it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle him to relief.'" Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119 (2d Cir. 1991), cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993)). This standard is applied "with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).


 Plaintiff alleges that Defendant, City of New York, was deliberately indifferent to his constitutional rights in failing adequately to train, supervise, and discipline its prosecutors, doctors, police officers, and validators in matters involving alleged child sexual abuse and custody disputes. (Compl. P 42, 46, 53 and 57). In order to prove deliberate indifference on the part of a municipality, Plaintiff must demonstrate that the violation of his constitutional rights resulted from a municipal custom or policy. Covington v. City of New York, 916 F. Supp. 282, 287 (S.D.N.Y. 1996). Plaintiffs asserting liability against a supervisor under § 1983 need not show that the municipality had an explicitly stated rule or regulation. Covington, 916 F. Supp. at 287. Instead, an inference that such a policy existed can be drawn from plaintiff's ...

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