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March 25, 1999


The opinion of the court was delivered by: Francis, United States Magistrate Judge.


The plaintiff, Chi Chao Yuan, brings this action individually and on behalf of her infant sons, Marc Lui and Derick Lui, pursuant to 42 U.S.C. § 1983 and New York state law, charging that the defendants unlawfully deprived her of custody of her children in violation of her due process, equal protection, and Fourth Amendment rights as well as state law. She also alleges that the unlawfully retaliated against her for exercising her First Amendment rights. The plaintiff alleges that these violations of her rights resulted from the City of New York's failure to train its employees or from its unlawful policies.

The parties consented to refer the case to me for all proceedings under 28 U.S.C. § 636(c). The defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is granted as to the plaintiffs' Fourth Amendment, equal protection, and retaliation claims; the individual claims against defendants Marva Hammons and Kathryn Croft; the failure to train claim against Ms. Hammons, Ms. Croft, and the City of New York; and the state law claims of interference with custody and unlawful imprisonment. The motion is denied as to the remaining claims.


In June of 1994, Ms. Chi lived in New York City with her husband, Hong Wei Lui, and their two sons, Marc, who was three years old, and Derick, who was approximately six weeks old. Ms. Chi provided the main financial support for the family. On June 28, 1994, while Ms. Chi was away on a business trip, Derick was taken by his father to the St. Luke's-Roosevelt Hospital Center where he was admitted and examined by medical personnel. (Defendants' Local Civil Rule 56.1 Statement ("Def. 56.1 Statement") ¶ 1; Plaintiff's Statement Pursuant to Local Rule 56.1 ("Pl. 56.1 Statement") ¶ 1). The following day, Dr. Anail Danavis filed an Initial Oral Report stating that Derick had sustained "an injury to the left inner eye, bruises on the face, fractured clavicle, and a fractured left tibia." (Def. 56.1 Statement ¶¶ 2-3; Pl. 56.1 Statement ¶ 1). In light of Mr. Lui's explanation that he dropped Derick twice in the bathtub, Dr. Danavis noted that the "injuries are suspicious." (Def. 56.1 Statement ¶ 3; Pl. 56.1 Statement ¶ 1; see State Central Register, attached as Exh. J to Declaration of Carolyn Kubitschek dated October 8, 1998 ("Kubitschek Decl.")). Hospital authorities reported the case to the New York State Central Registry,*fn1 which in turn notified the New York City Child Welfare Agency ("CWA"). On June 29, CWA assigned caseworker Rose Rivera to the case, to be overseen by Maria Concepcion, a supervisor, and Barbara Ditman, a manager.

On June 30, Ms. Rivera visited the hospital and met with Mr. Lui, Ms. Chi (who had returned to New York upon hearing that Derick was injured), and Dr. Elizabeth Watkins, one of the physicians treating Derick. (Deposition of Rose Rivera dated February 6, 1995, attached as Exh. A to Kubitschek Decl. ("First Rivera Dep."), at 10). Ms. Chi then traveled to Washington, D.C. on business and remained there from July 2 to July 7. (Def. 56.1 Statement ¶ 12; Pl. 56.1 Statement ¶ 6). On July 5, 1994, at 3:00 p.m., Derick was medically ready for discharge; however, Ms. Rivera had him held at the hospital. (Def. 56.1 Statement ¶ 8; Pl. 56.1 Statement ¶ 2). The following day, Derick's doctors ordered additional x-rays for a suspected cerebral hematoma. On July 7 Ms. Rivera filed a petition in Family Court against Ms. Chi and Mr. Lui. (Def. Rule 56.1 Statement ¶ 10; Pl. 56.1 Statement ¶ 4). The petition alleged generally that Ms. Chi and Mr. Lui had abused and neglected their son Derick. (Petition Child Abuse Case dated July 7, 1994, attached as Exh. B to Declaration of Chi Chao Yuan dated January 15, 1997 ("Chi Decl.")). Specifically, the petition described Derick's condition, recounted Mr. Lui's story, and stated that the injuries were inconsistent with Mr. Lui's explanation. The petition then stated that "[d]ue to injuries to Derick, the sibling MARC [sic] is at risk of being abused." No particular acts by Ms. Chi were alleged.

On the day the petition was filed, Family Court Judge Leah Ruth Marks held a preliminary hearing at which Ms. Chi and her husband were present. Based on the allegations in the petition, Judge Marks remanded both Derick and his brother Marc to CWA's custody. (Transcript of Family Court Proceedings, July 7, 1995 at 4, attached as Exh. E to Kubitschek Decl.). On July 8, Ms. Chi and her husband petitioned under § 1028 of the Family Court Act for their children's return. (Declaration of Barbara Ditman dated February 4, 1997 ("Ditman Decl."), Exh. D). Ms. Rivera testified at the hearing. (Transcript of Family Court Proceedings, July 8, 1994, attached as Exh. C to Kubitschek Decl.). Judge Marks denied the petition, and Marc and Derick (who was discharged from the hospital that day) were placed in foster care. Ms. Chi moved to dismiss the petition for facial insufficiency on July 19 (Ditman Decl., Exh. E), but the motion was denied. (Ditman Decl., Exh. H).

On July 26, Dr. Watkins wrote a letter to Ms. Ditman expanding and correcting her findings. (Def. 56.1 Statement ¶ 4; Pl. 56.1 Statement ¶ 1; Letter of Elizabeth Watkins dated July 26, 1994, attached as Exh. A to Declaration of Michele Lerner dated August 28, 1998 ("Lerner Decl.")). Derick, she wrote, was admitted "with a fractured left clavicle (collar-bone), and oblique fracture through the mid-diaphysis (mid shaft) of the left tibia (medial long bone of the lower leg)"; follow-up x-rays showed "new bone formation about the distal left humerus (elbow end of the long bone of the upper arm) with an associated buckle handle fracture of the distal left humerus, and bruising on the right and left sides of his face." (Def. 56.1 Statement ¶ 5; Pl. 56.1 Statement ¶ 1). Dr. Watkins observed that the bruising on the right side of Derick's face appeared smaller and older than the bruises on the left cheek. (Def. 56.1 Statement ¶ 6; Pl. 56.1 Statement ¶ 1). She noted that a neuroradiologist who reviewed the MRI concluded that what was initially interpreted to be a cerebral hematoma caused by an earlier injury may have been only a manifestation of slow blood flow in the area. (Lerner Decl., Exh. A). However, Dr. Watkins concluded that the injuries were "characteristic of abusive fractures," and that the bruises and fractures occurred on separate occasions. (Def. Rule 56.1 Statement ¶ 7; Pl. 56.1 Statement ¶ 1; Lerner Decl., Exh. A).

On August 28, CWA filed a report stating that "Mr. Lui admitted he dropped Derick twice in the bathtub" and "mother neglected children when left while child Derick was still in the hospital and was not available when child became ready to [be] discharged." (Def. 56.1 Statement ¶ 28, Pl. 56.1 Statement ¶ 17). This information was entered in the State Central Registry.

On September 9, CWA amended the Family Court petition to include allegations specific to Ms. Chi: "The respondent mother placed the children at risk in that after being informed of the injuries to the child Derick she left the home and told the caseworker that the father would care for the children." (Chi.Decl., Exh. C). On September 19, Ms. Chi moved for custody of Marc and Derick and asserted that Mr. Lui no longer lived in their home. (Def. 56.1 Statement ¶ 34; Pl. 56.1 Statement ¶ 22). The following day the matter was further adjourned until September 26, when the case was again put over for Ms. Rivera to file a report to the court. (Ditman Decl., Exh. D). On October 3, with the defendants' consent, the court paroled the children to Ms. Chi's care under CWA's supervision. (Def. 56.1 Statement ¶ 38; Pl. 56.1 Statement ¶ 25).

Trial began on March 3, 1995 and continued in May. (Ditman Decl., Exh. D). Judge Marks issued a decision on August 31, 1995 finding that Mr. Lui abused Derick and that "Marc was in danger of being abused as a result of his father's actions prior to the petition's filing." (Lerner Decl., Exh. L at 3). However, Judge Marks dismissed the petition against Ms. Chi, finding "no evidence that Marc was ever harmed by the acts or omissions of either parent prior to [the time Derick was injured]" and "no evidence that Mr. Lui should have been considered an improper caretaker at the time he was left to care for the children in June 1994." (Lerner Decl., Exh. L at 2). Accordingly, the judge concluded: "There is no proof on which to base any finding of abuse or neglect by Chi Chao Yuan. . . . That she did not foresee what would happen in her absence is regrettable, but she cannot be blamed for that." (Lerner Decl., Exh. L at 3).

The plaintiff filed a notice of claim with the New York City Law Department on November 29, 1995. (Lerner Decl., Exh. N). She then filed the present action on August 30, 1996, setting forth seven causes of action. In the first three, the plaintiff claims that the individual defendants Rose Rivera, Barbara Ditman, and Maria Concepcion (1) removed Marc and Derick from her and detained them without probable cause, without due process of law, and based on legal standards different from those applied to fathers; and unlawfully interfered with Ms. Chi's liberty interest in the care and custody of Marc and Derick, in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution (Complaint ¶¶ 46-47); (2) removed and detained her children without probable cause and based on constitutionally inadequate investigation of the child abuse charges (Complaint ¶ 56); (3) initiated abuse and neglect proceedings maliciously and without probable cause in violation of her Fourth Amendment right to be free of unlawful searches and seizures (Complaint ¶¶ 62-63); and (4) retaliated against Ms. Chi for exercising her First Amendment right to criticize the conduct of child abuse investigations. (Complaint ¶¶ 62-63).

The plaintiff alleges that the individual caseworkers acted pursuant to policies maintained by the City of New York, Marva Hammons (the Commissioner of the Department of Social Services of the City of New York ("DSS")), and Kathryn Croft (the Deputy Commissioner of DSS and the Director of CWA). (Complaint ¶¶ 44-45, 55, 62). In the alternative, the plaintiff charges that these defendants failed to adopt adequate policies regarding the removal and detention of children from their parents, including policies for the investigation of child abuse charges and the filing of child protective proceedings. (Complaint ¶¶ 49-52, 57-58, 64-65). The plaintiff also alleges that the City of New York, Ms. Hammons, and Ms. Croft provided grossly inadequate and unprofessional training to their employees. (Complaint ¶ 59).

The fourth and fifth causes of action are state law tort claims for interference with custody and unlawful imprisonment. (Complaint ¶¶ 67-72). The seventh cause of action charges defendants with gross deviation from accepted professional standards. (Complaint ¶¶ 82-83).

In the sixth cause of action Ms. Chi alleges that Ms. Rivera, Ms. Conception, and Ms. Ditman violated her rights to privacy, liberty, and reputation, and impeded her ability to obtain employment by informing the State Central Registry that she was an abusive parent. (Complaint ¶ 74). She further claims that the City of New York, Ms. Croft, and Ms. Hammons had a policy of labeling parents as abusive based upon improper, secret standards even though the parents' conduct did not amount to abuse or maltreatment under New York Law. (Complaint ¶¶ 75-79).

On January 13, 1998, the Honorable Leonard Bernikow, to whom the case was then assigned, dismissed the sixth cause of action against all defendants. However, Judge Bernikow ruled that the plaintiffs could relitigate the Family Court's finding that Mr. Lui abused Derick and rejected the defendants' argument that that finding conclusively established probable cause to remove the children. Chi v. Rivera, No. 96 Civ. 6628, 1998 WL 63404 (S.D.N.Y. Feb. 17, 1998). The defendants now move for summary judgment.


A. Standard for Summary Judgment

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and may discharge this burden by demonstrating to the court that there is an absence of evidence to support the nonmoving party's case on which that party would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party then has the 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." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) (citations omitted); see also Adickes, 398 U.S. at 158-59, 90 S.Ct. 1598. But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted), and grant summary judgment where the non-movant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50, 106 S.Ct. 2505. 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 Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

B. Claims under 42 U.S.C. § 1983

The plaintiff seeks damages pursuant to 42 U.S.C. § 1983 against the City of New York and individual City employees. Section 1983 provides a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege, or immunity secured by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Adickes, 398 U.S. at 150, 90 S.Ct. 1598; Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Because "section 1983 `is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred[,]' [t]he first step in any such claim is to identify the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)); see Sykes, 13 F.3d at 519. To prevail, the plaintiffs must establish that the person depriving them of these rights acted under color of state law. See 42 U.S.C. § 1983, Gomez v. Toledo, 446 U.S. 635, 639, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Sykes, 13 F.3d at 519.

The plaintiff alleges that the defendants violated her and her children's Fourteenth Amendment due process rights, their Fourth Amendment rights to be free from unlawful seizure and malicious prosecution, their equal protection rights, and their First Amendment rights. To recover against the City employees in their individual capacities, the plaintiff must also overcome the affirmative defense of qualified immunity.

C. Due Process

The plaintiff's procedural and substantive due process claims derive from the liberty interest implicated whenever the state intrudes upon "the most essential and basic aspect of familial privacy — the right of the family to remain together without the coercive interference of the awesome power of the state." Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977); see also Joyner v. Dumpson, 712 F.2d 770, 777-78 (2d Cir. 1983). "It is the interest of the parent in the `companionship, care, custody and management of his or her children,' and of the children in not being dislocated from the `emotional attachments that derive from the intimacy of daily association,' with the parent [.]" Duchesne, 566 F.2d at 825 (internal citations omitted); see also Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) ("parents have a fundamental, constitutionally protected liberty interest in the custody of their children"); Kia P. v. McIntyre, 2 F. Supp.2d 281, 289 (E.D.N.Y. 1998); Defore v. Premore, 863 F. Supp. 91, 94 (N.D.N.Y. 1994), aff'd, 86 F.3d 48 (2d Cir. 1996).

1. Procedural Due Process

To establish a claim for violation of procedural due process, the plaintiff must prove that the defendants deprived her or her children of a liberty interest without following constitutionally adequate procedures. See Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Morrissey v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Parents, before being deprived of the custody of their children, are generally entitled to a predeprivation hearing. Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987). However, it is well established that in an "emergency," officials may deprive a parent of custody "without parental consent or a prior court order." Id. (quoting Duchesne, 566 F.2d at 826 (emphasis in original)); see also Gottlieb, 84 F.3d at 517; Cecere v. City of New York, 967 F.2d 826, 830 (2d Cir. 1992) ("temporary assertions of custodial authority in the face of a reasonably perceived emergency do not violate due process"). An "emergency" is a situation where "the child is immediately threatened with harm, or where the child is left bereft of care and supervision, or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence[.]" Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991), (internal citations omitted); see also Robison, 821 F.2d at 922. There must be an objectively reasonable basis for the belief that an emergency exists. Gottlieb, 84 F.3d at 520. "Where `there [is] no room for any inference that there was not an ...

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