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SUNDBYE v. OGUNLEYE

February 3, 1998

CATHERINE SUNDBYE, Plaintiff, against PATRICK OGUNLEYE, et al., Defendants.


The opinion of the court was delivered by: GLEESON

MEMORANDUM AND ORDER

 John Gleeson, United States District Judge:

 Catherine Sundbye brings this action pursuant to 42 U.S.C. § 1983, *fn1" claiming that defendants interfered with her parental rights in violation of her First, Fifth, Sixth and Fourteenth Amendment rights. Specifically, Sundbye contends that (1) defendants maliciously prosecuted her for complaining about the conduct of a New York City Child Welfare Administration caseworker, Patrick Ogunleye; (2) Ogunleye deprived her of her substantive due process rights by coercing her into signing a statement, which allegedly relinquished her custodial rights, and by making sexually harassing comments; and (3) defendants violated her procedural due process rights by removing her daughter from her custody without a hearing and in violation of New York State law. Plaintiff seeks compensatory and punitive damages and attorneys' fees. Defendants now move for summary judgment on all of plaintiff's claims. For the reasons set forth below, defendants' motion is granted in part and denied in part.

 FACTS

 Catherine Sundbye ("Sundbye") is the mother of two daughters, Alexandria Sundbye, age fifteen, and Janel Negron, age eighteen. Sundbye lives with her two children in Brooklyn, New York.

 Janel and Sundbye have a long history of discord and fighting. Although Sundbye denies that she ever hit Janel, Janel testified otherwise at her deposition. According to Janel, Sundbye has hit her on more than one occasion. After one incident, an employee at Janel's school called a child welfare agency because Janel was scared and didn't want to go home. As a result, she lived with her grandmother for two days. On another occasion, in September of 1990, Janel, while bleeding from her nose, told a security agent at her apartment building that her mother hit her. As a result of her injuries, Janel went to the hospital that evening.

 On December 31, 1991, Sundbye, Janel and Alexandria went out to dinner with Sundbye's brother, John Sundbye, his friend (now his wife) Kathleen Kelly and several other family members. The group planned to return to Kelly's house after dinner in order to celebrate the new year together. Before they left the restaurant, however, Janel told Sundbye that she wanted to go home because she was menstruating. Sundbye responded that she had feminine products with her. Nevertheless, Janel insisted on going home and Sundbye agreed to accompany her.

 After returning home, Sundbye and Janel got into an argument. Janel told Sundbye that she wanted to go to a party at a friend's house, but Sundbye did not want her to do so because she suspected that there would be no parental supervision at the party and Janel was too young to attend such a party. Janel then walked out of the apartment. Sundbye went to Kelly's house and remained there until after midnight.

 When Janel returned home at approximately 10:00 A.M. the next morning, January 1, 1992, Sundbye was on the telephone with Kelly. Kelly suggested that, in order to ease the tensions between Sundbye and Janel, Janel could live with her and John Sundbye for a short period of time. Sundbye agreed and immediately informed Janel that she would be "going to go stay with Uncle John." Sundbye Deposition at 36. Janel packed a bag with clothing, and John took her to his home later that day.

 Although Sundbye never told Janel how long she would be staying at her uncle's, Sundbye contends that she anticipated that Janel would stay there only for a couple of days. Sundbye hoped that, during that time, she and Janel could attend counseling sessions together in order to assist them in resolving their conflicts.

 On January 10, 1992, Patrick Ogunleye, a caseworker employed by the New York City Child Welfare Administration ("CWA"), went to plaintiff's home to investigate a report of child abuse and neglect (a "DSS-2221") filed that day on behalf of Janel by a staff member of Janel's school. *fn2" The allegation states, in relevant part:

 
Mom has been verbally and physically abusive to Jannell [sic] over the past several months, using her for housework and babysitting services. Mom becomes angry at Jannell who is half Puerto Rican *fn3" and mom is always throwing that fact in her face. Mom is prejudiced towards Puerto Ricans. Mom had been telling Jannell she wanted her out of the home by New Year's Day. . . . Jannell's been sent to live with grandmother, father, aunt all on mom's whim at the time. Mom recently tried to suffocate Jannell with a bookbag. Jannell says she can't take it anymore, she can't be shifted from relative to relative any longer. Mom's brother has Jannell now and Jannell is happy there and wishes to stay because she is emotionally drained due to mother's behavior. However, mom is threatening to make Jannell come home again and Jannell does not want to go back in mother's care.

 Defendants' Exhibit C (emphasis in original). *fn4"

 Ogunleye and Sundbye present radically different accounts of what transpired during their meeting on January 10. I of course must accept plaintiff's version as true for purposes of this motion. She contends that Ogunleye, during that visit, talked very little about Janel and a great deal about personal matters, and that he made comments to her that she found intimidating, embarrassing and sexually harassing. Ogunleye also told Sundbye and Alexandria that if he "needed" to take Alexandria out of the house, he could do it. Sundbye Deposition at 78. *fn5"

 According to Sundbye, Ogunleye asked her whether she was married, who she was married to and for details about her former husband. He also told her that he no longer wanted to have anything to do with his wife because she was "all used up" after having had several sexual encounters with other men. Ogunleye further told plaintiff about an incident in which two people in the back of the taxi cab he was driving asked him to slow down so they could have sex, and how a woman once offered him sex, but he refused because he was afraid that she would say that he raped her. Ogunleye told Sundbye that when a woman and a man first have sex, she should tell him how to do it "so he can get it right the following times after that." Id. at 71-72. Finally, Ogunleye told Sundbye, who weighs more than 200 pounds, that men from his country like large women. Id. at 70.

 Sundbye made numerous oral complaints about Ogunleye's behavior to Anthony Lanza, Director of the Human Resources Administration's Brooklyn field offices, and to defendant Novella Anderson, Ogunleye's supervisor. Plaintiff claims that, in response to her complaints, Anderson "laughed in [her] face" and failed to take any action against Ogunleye. Sundbye Affidavit at P 20.

 After Janel left Sundbye's home, Sundbye frequently visited her at the home of John Sundbye and Kelly. She stopped doing so in the later half of January 1992, because, as she put it, "I just didn't feel that I wanted to. I wanted Janelle [sic] to come home, and I wanted to see Janelle away from them, outside of their home." Sundbye Deposition at 157-58.

 On January 22, 1992, Ogunleye visited Janel at the home of John Sundbye and Kelly. While there, Janel confirmed to Ogunleye that her mother had assaulted her. Specifically, Janel told Ogunleye that she and her mother were fighting one day and

 
she had my face pushed against the floor so I couldn't get up and there was a bag, my bookbag was on the floor and my face was pressed against the bag. She didn't try to choke me. I couldn't breathe because the bag and my nose was [sic] pressed against [the floor]. *fn6"

 Id. at 86-87. Janel stated to Ogunleye that she wanted to stay with her uncle for the "time being." Id. at 94.

 That same day, following his visit with Janel, Ogunleye and John Sundbye went to plaintiff's home. *fn7" Plaintiff wrote and signed a letter stating:

 
I, Catherine Sundbye agree to leave my daughter Janel Negron in the care of my brother John Sundbye and Kathleen Kelly his wife to be, until my daughter Janel and I can resolve our problems in therapy or counseling. For that period of time I agree to leave my daughter with my brother who resides at 1688 East 49th Street, Brooklyn, New York. I am voluntarily leaving my daughter there because of my current situations. [Signed] Catherine Sundbye, 1/22/92.

 Defendants' Exhibit F. Plaintiff contends that Ogunleye coerced her into signing the letter by (1) threatening to remove Alexandria from her custody; and (2) asserting his authority in such a way as to remind her of his prior sexually harassing conduct. Specifically, Sundbye states that Ogunleye said, "I'm not asking for any sexual favors, like I'm not asking, like he sort of generalized it. He didn't say it directly to me because my brother was there." Sundbye Deposition at 136. Sundbye further claims that she "felt like [she] was giving up [her] rights by writing this letter," Sundbye Deposition at 146, but she "agreed to sign it, and [she] regretted it later." Sundbye Deposition at 136. *fn8"

 Sundbye claims that, at this January 22 meeting, she requested that (1) she and Janel be placed in family counseling sessions together; and (2) Janel return home with these services in place. According to Sundbye, Ogunleye refused this request. Plaintiff's Affidavit at P 15.

 On March 9, 1992, after having replaced Ogunleye with defendant Helen Nwameme as Sundbye's caseworker, CWA initiated a child abuse proceeding against Sundbye. On that day, Family Court Judge, Joseph A. Esquirol, ordered that Janel be placed in the custody of the Commissioner of Social Services pending further proceedings. Janel continued to live with her uncle.

 In October 1992, Sundbye received a letter from the New York State Department of Social Services stating that the case against her was unfounded. On December 21, 1992, Sundbye, with the assistance of counsel, moved to dismiss the abuse petitions. On January 5, 1993, the motion was denied.

 Thereafter, Janel was transferred from her uncle's home to a foster home. At that time, Janel indicated that she wanted to return to her mother's home at some point, but not yet. Janel returned to Sundbye's home on February 16, 1993.

 On March 30, 1993, the petitions filed against Sundbye were adjourned in contemplation of dismissal. On April 21, 1993, ...


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