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POLITE v. BUTTON

April 3, 1998

ROSEANN POLITE, Individually and on behalf of CHARLES POLITE, an Infant, Plaintiff,
v.
DENNIS BUTTON, BARBARA BUTTON, LYNN SMITH, BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES, and BROOME COUNTY, Defendants.



The opinion of the court was delivered by: MCAVOY

 Defendants in this action, brought pursuant to 42 U.S.C. § 1983, move for summary judgment dismissing the Complaint. Plaintiff cross-moves for summary judgment and various other relief.

 A. Facts

 Plaintiff Roseann Polite ("plaintiff" or "Roseann") gave birth to a boy, Charles, on October 13, 1989, at Lourdes Hospital in Binghamton, New York. Plaintiff was 14 years old at the time of Charles' birth. Charles subsequently was transferred to Wilson Hospital in Johnson City, New York, because he required treatment for a cyst in his throat.

 On October 24, 1989, the Broome County Department of Social Services ("DSS") filed a neglect petition regarding Charles in the Broome County Family Court. Affidavit of Philomena M. Stamato, Asst. Broome County Attorney ("Stamato Aff.") P 3. A hearing on the petition was held March 20, 1990; Roseann admitted to the allegations in the petition. Def. Ex. H. In an order dated April 2, 1990, the Hon. Herbert B. Ray, Family Court Judge, awarded custody of Charles to DSS on a temporary basis and ordered Roseann to undergo a psychiatric and psychological evaluation at Broome County Mental Health Services. Id. The Family Court subsequently extended DSS' custody of Charles in 1991. Stamato Aff. P 6; Def. Ex. I; Smith Aff. P 4.

 On February 4, 1992, DSS filed a permanent neglect petition in Family Court regarding Charles, seeking to terminate Roseann's parental rights and free Charles for adoption. Stamato Aff. P 7; Def. Ex. J. In response to the petition, Roseann pleaded, inter alia, that her constitutional rights were being denied. Def. Ex. L. A hearing on the petition was held before Judge Ray on July 24, 1992. Stamato Aff. P 12; Def. Ex. O. In an order dated August 11, 1992, Judge Ray terminated plaintiff's parental rights and committed Charles to DSS for adoption placement. Def. Ex. P. Roseann did not appeal. Stamato Aff. P 14.

 B. Procedural History

 Plaintiff commenced this action by filing a complaint on May 12, 1995, alleging various federal and state causes of action against defendants Daniel Casella, Harvey Singer, Lynn Smith, the DSS, and Broome County. By orders dated September 26, 1995, and October 2, 1995, the Court dismissed plaintiff's claims in their entirety against defendants Singer and Casella, respectively, for lack of subject matter jurisdiction. By order dated October 18, 1995, the Court dismissed plaintiff's claims in part against defendants Smith, DSS, and Broome County for lack of subject matter jurisdiction and failure to a state a claim upon which relief may be granted; the Court retained only plaintiff's 42 U.S.C. § 1983 claim that defendants Smith, DSS and Broome County violated plaintiff's Fourteenth Amendment due process rights, and plaintiff's pendent state law claims for negligence. On December 22, 1995, pursuant to the order of Magistrate Judge Daniel Scanlon, Jr., plaintiff filed an Amended Complaint. The Amended Complaint named as defendants Smith, the DSS, Broome County and defendants Dennis and Barbara Button, Charles' adoptive parents. The Amended Complaint contains one claim for "deprivation of due process of law" under § 1983, and several state law claims for negligence.

 After much procedural wrangling, during which plaintiff obtained her present counsel, the parties stipulated on October 17, 1997, that plaintiff would file a Second Amended Complaint with the Court. To this day, she has failed to do so.

 On February 23, 1998, defendants moved for summary judgment. Plaintiff opposed the motion, and cross-moved for: (1) an order permitting her to file a Second Amended Complaint; (2) for summary judgment declaring that Broome County violated plaintiff's Fourteenth Amendment rights; and (3) for an order granting plaintiff leave to file a late notice of claim on Broome County.

 II. DISCUSSION

 A. Plaintiff's Cross-Motions

 Plaintiff's cross-motions may be disposed of relatively easily. First, plaintiff's motion for leave to file the Second Amended Complaint is denied. The relevant stipulation was so-ordered by this Court on October 16, 1997, and filed on October 27, 1997. On December 3, 1997, the Broome County Attorney's office wrote to plaintiff's counsel indicating that no Second Amended Complaint had yet been served. On December 15, 1997, the Broome County Attorney's office requested that the pretrial scheduling order be extended beyond the January 1, 1998 cutoff date for discovery, as ...


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