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December 9, 1997

MORRIS SCHWIMMER, et al., Plaintiffs, against GREGORY KALADJIAN, et al., Defendants.

The opinion of the court was delivered by: KRAM


 Plaintiffs Morris Schwimmer and Rifka Schwimmer (collectively, the "Schwimmers") bring this action challenging the allegedly unlawful removal of their minor son, plaintiff Yoel Schwimmer ("Yoel"), the allegedly unlawful x-rays taken of Yoel and the non-consensual physical examinations of minor plaintiffs Devorah Schwimmer, Berish Schwimmer, Faiga Dina Schwimmer, David Schwimmer, Yoel Schwimmer and Rachel Yachet Schwimmer (collectively, the "Schwimmer children"). Plaintiffs also challenge the defendants' practices, patterns and policies regarding the removal of children whose parents are suspected of child abuse, and the treatment of those children who have been removed. Defendants Barbara Sabol, Robert Little, Mary Harris and Joseph Guilford (collectively, the "Defendants") move, pursuant to Federal Rule of Civil Procedure 56, for summary judgment. For the reasons set forth below, the Defendants' motion is granted with respect to the federal claims. The remaining counts are dismissed pursuant to 28 U.S.C. § 1367(c)(3).

 During the relevant time period, defendant Barbara Sabol ("Sabol") was the Administrator of the New York City Human Resources Administration ("HRA"), charged by law with investigating reports of alleged child abuse within her jurisdiction. Defendant Robert L. Little ("Little") was employed by the HRA as Executive Deputy Commissioner of the Child Welfare Administration ("CWA"). Defendant Mary Harris ("Harris") was employed by HRA as a manager of CWA. Defendant Joseph Guilford ("Guilford") was employed by HRA as a supervisor of CWA. All Defendants are sued in their official capacity, and Guilford is also sued individually.

 On June 22, 1991, Yoel, then 27 months old, lost his balance and fell backward down several wooden steps. Mrs. Schwimmer examined Yoel, and observed several bruises on his forehead and cheeks. Upon determining that he did not suffer any serious injury, Mrs. Schwimmer did not seek the services of a doctor.

 Subsequently, on June 24, 1991, Mr. Schwimmer took Yoel and two other Schwimmer children to Dr. Gerald Rood, a private physician for treatment of minor ailments. During the examination, Dr. Rood questioned Mr. Schwimmer as to the origins of Yoel's bruises. Mr. Schwimmer's explanation that Yoel had probably received the bruises playing with his older brother and cousins did not satisfy Dr. Rood. Therefore, Dr. Rood informed Mr. Schwimmer that because Yoel had more than three bruises, he was required to report the incident to the New York State Central Registry of Child Abuse and Maltreatment (the "Central Registry"). Pursuant to New York law, the Central Registry summarizes and submits such reports to the agency responsible for investigation on a form known as the DSS-2221 ("the 2221"). See N.Y. Soc. Serv. Law § 415 (McKinney 1992). Later that day, two CWA caseworkers visited the Schwimmers' home. The caseworkers noted bruises on Yoel's body but observed no bruises on the other Schwimmer children. The caseworkers recommended that the agency conduct a follow-up visit.

 On the morning of June 25, 1991, a CWA employee, Audrey Dragich ("Dragich"), visited the Schwimmers' home and examined the Schwimmer children. Thereafter, she met with her supervisor, Guilford and the Child Protective Manager in charge, Javita Banks ("Banks"). At the meeting, Banks made the determination that all of the Schwimmer children should be medically examined.

 At approximately 7:30 p.m., three CWA workers went to the Schwimmer home to effect the medical examination of the Schwimmer children. At approximately 9:00 p.m., officers from the New York City Police Department came to the Schwimmer home at the caseworkers' request. After extensive negotiations, the caseworkers and two police officers escorted Yoel to the Beth Israel Medical Center ("Beth Israel").

 At Beth Israel, two sets of x-rays were taken of Yoel, both skull and skeletal series. Thereafter, Yoel was admitted to the hospital. On June 26, 1991, a caseworker took photographs of Yoel. The next day, the family court ordered that Yoel remain in CWA custody and that he be placed with Mr. Schwimmer's brother. The remaining Schwimmer children were paroled into the Schwimmer's custody. The family court also ordered medical examinations of all the Schwimmer children.

 On June 28, 1991, two caseworkers went to the Schwimmer home and physically examined the Schwimmer children other than Yoel. After a court hearing on July 1, 1991, Yoel was returned to the Schwimmers' custody. On August 7, 1991, CWA withdrew its petitions in family court, having decided that there was no credible evidence that Yoel was abused or neglected.

 The amended complaint alleges thirty-five causes of action, divided into "Constitutional, Statutory and Regulatory Causes of Action" (Counts 1 through 12) and "Tort Causes of Action" (Counts 13 through 35). *fn2" Specifically, plaintiffs allege that the Defendants violated their constitutional rights under the Fourth, Fifth, Ninth and Fourteenth Amendments. The violations were allegedly perpetrated by (1) physically examining the Schwimmer children for evidence of child abuse without either a search warrant, court order, probable cause or a reasonable suspicion that the Schwimmer children were victims of such abuse, and without advising the Schwimmers of their right to refuse these examinations; (2) coercing the Schwimmers to consent to have Yoel x-rayed at the hospital; (3) involuntarily removing Yoel from his home without reasonable cause to believe that he was in "imminent danger;" (4) subjecting Yoel to involuntary medical examinations at the hospital; and (5) failing to provide either adequate training or supervision to workers involved in the investigation of child abuse.

 On October 7, 1993, the Court granted defendant Gregory Kaladjian's motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). *fn3" See Schwimmer v. Kaladjian, 834 F. Supp. 93 (S.D.N.Y. 1993). The Court also dismissed those portions of the plaintiffs' claims seeking injunctive and/or declaratory relief against defendants Sabol, Little, Harris and Guilford. Id. Defendants now move, pursuant to Federal Rule of Civil Procedure 56, for summary judgment.


 I. Summary Judgment

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The nonmoving party then must meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial," id. at 322.

 The Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). But the Court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative, id. at 249-50; Knight v. United States Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987). To determine whether the nonmoving party has met his or her burden, the Court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion, see Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

 Once the nonmoving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment must be denied unless the moving party comes forward with additional evidence sufficient to satisfy his or her ultimate burden under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. at 330 n.2 (Brennan, J., dissenting). In sum, if the Court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1969)).

 II. Qualified Immunity

 The Schwimmers seek damages pursuant to 42 U.S.C. § 1983. To recover, they must show (1) "that some person has deprived [them] of a federal right" and (2) "that the person who has deprived [them] of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980). As an employee of the City of New York, sued in his individual capacity, Guilford has raised the affirmative defense of qualified immunity to this suit under Section 1983.

 Issues regarding the qualified immunity of defendants "should be resolved at the earliest possible stage of litigation." Anderson v. Creighton, 483 U.S. 635, 646 n.6, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987); see Robison v. Via, 821 F.2d 913, 920 (2d Cir. 1987). Qualified immunity shields government officials whose "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Thus, the doctrine of qualified immunity promotes the "public interest in encouraging the vigorous exercise of official authority" by protecting officials performing discretionary functions. Id. at 807. The question of whether a public official is entitled to qualified immunity is separate from the merits of the underlying action. Washington Square Post No. 1212 v. Maduro, 907 F.2d 1288, 1292 (2d Cir. 1990). Summary judgment will be granted with respect to qualified immunity if "it was objectively reasonable for the defendants to make the decision they made, and no rational jury could find that it was not." van Emrik v. Chemung County Dep't of Social Svcs., 911 F.2d 863, 866 (2d Cir. 1990). A government official may establish his qualified immunity from liability for violating those rights by, inter alia, showing that it was "objectively reasonable for the ...

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