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SPENCER v. LAVOIE

November 29, 1997

SPENCER, LEONA, mother SPENCER, DARRELL, son, FORNEY, KATRINA, daughter, PETCHENIK, STEVEN, parent sub, Plaintiffs,
v.
LAVOIE, KATHRYNE, caseworker COMFORT, HUGH and MARY, foster parents, DOWD, KEVIN, Judge, Family Court, KIMIECIK, STANLEY J., Comm. Chenango County Social Services, PRINZO, ROSS, Comm. New York State Dept. of Social Services, Defendant.



The opinion of the court was delivered by: MCAVOY

 In this civil rights action filed pursuant to 42 U.S.C. § 1983, defendants Kathryne Lavoie and Stanley J. Kimiecik move for summary judgment based on qualified immunity. Defendants Hugh and Mary comfort move for summary judgment based upon lack of supplemental jurisdiction.

 I. BACKGROUND

 A. Facts:

 Plaintiffs Darrell Spencer ("Darrell"), born March 4, 1983, and Katrina Forney ("Katrina"), born July 1, 1981, are the children of plaintiff Leona Spencer ("Leona"). At all relevant times, plaintiff Steven Petchenik was Leona's boyfriend, with whom she, Darrell and Katrina resided. Petchenik was not the adoptive father of either Darrell or Katrina.

 On November 18, 1992 Petchenik's daughter from a prior marriage, Marsha Sue Lanfair, made on oral complaint to the Chenango County Department of Social Services ("DSS") regarding abuse and/or neglect of Darrell and Katrina by Leona and Petchenik, including allegations of excessive corporal punishment, sexual abuse, and inadequate guardianship. The same day, Lavoie was assigned as the caseworker to investigate the complaint. Lavoie's first move was to review any prior reports or files concerning the individuals involved, both to obtain background information and to assess any risks to the children. *fn1" Lavoie then spoke to her supervisor, Denise Bodie, who told her to contact Lanfair and set up a meeting between Lavoie, Lanfair and the state police to get a written statement.

 Lavoie interviewed Lanfair on November 19. The next day, Lanfair gave a statement to the New York State Police. In that statement, Lanfair made the following allegations:

 1) that Leona and Petchenik told her Darrell slept in a cot outside the house when he wet his bed;

 3) that she had seen Leona strike Darrell five to eight times in the head on one occasion;

 4) that she had witnessed Leona and Petchenik use a form of discipline referred to as "assume the position," in which the children were forced to stand on their toes facing the wall; on one such occasion, Darrell fell asleep, at which point Leona struck him with a ping-pong paddle;

 5) that she had witnessed both children get slapped in the head by Leona and Petchenik;

 6) that as a form of discipline, Darrell had been forced to keep hot pepper in his mouth for five minutes;

 &) that she had heard Petchenik address the children as "fucking assholes" or "fucking animals."

 Lanfair's statement also recounted a number of instances in which Leona or Petchenik made sexually-oriented remarks to the children or in their presence. In one instance, Petchenik allegedly told Darrell that if he did not put on his pajamas, Petchenik would "fuck him in the ass." On several occasions, the conduct revolved around Petchenik, Leona and another woman, Sharon Simmons, whom Lanfair alleged was the "live-in lover" of both Leona and Petchenik. Leona allegedly told Lanfair, while the children were in earshot, that if "[Petchenik]" wanted to have sex with Sharon or if Sharon wanted to have sex with [Petchenik], that Sharon had to have sex with [Leona] first." On another occasion, the children allegedly witnessed Leona and Sharon "kissing on the mouth" and "fooling around."

 In addition to these instances revolving around the children, Lanfair recounted her own alleged history of abuse at the hands of Petchenik. That history included instances in which Petchenik, among other things, slapped her, put a gun to her ...


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