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TAYLOR v. EVANS
October 25, 1999
FAYE TAYLOR, INDIVIDUALLY AND ON BEHALF OF TAMIKA TAYLOR, AN INFANT, AND ARTNELL TAYLOR, PLAINTIFFS
KENNETH EVANS, INDIVIDUALLY AND AS CASEWORKER, CHILD WELFARE ADMINISTRATION, RAMONA PINCKNEY, INDIVIDUALLY AND AS CASEWORKER, CHILD WELFARE ADMINISTRATION, BARBARA SABOL, INDIVIDUALLY AND AS COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, ROBERT LITTLE, INDIVIDUALLY AND AS DEPUTY COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, AND THE CITY OF NEW YORK, DEFENDANTS.
The opinion of the court was delivered by: Haight, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Faye Taylor ("Taylor") brings this civil rights
action individually and on behalf of her children Tamika Taylor
and Artnell Taylor ("Tamika" and "Artnell") pursuant to
42 U.S.C. § 1983 and New York State law. The gravamen of plaintiffs'
complaint is the allegedly unlawful and unconstitutional removals
of Tamika and Artnell from their mother's custody on July 28,
1990 and August 3, 1990; the alleged strip search of Tamika on
July 28, 1990; and the prosecution and imprisonment of Taylor on
charges of assault and endangering the welfare of a child in 1991
and 1992. Plaintiffs name as defendants the City of New York and,
in their individual and official capacities: Kenneth Evans and
Ramona Pinckney, Child Welfare Administration ("CWA")
caseworkers, Barbara Sabol, then Commissioner of the Department
of Social Services (DSS), and Robert Little, then Director of
With discovery complete, defendants move for summary judgment
pursuant to Rule 56, Fed.R.Civ.P., on the ground that they did
not violate any of plaintiffs' constitutional rights. In the
alternative, defendants move for summary judgment in their
individual capacities on the basis of immunity. For the reasons
that follow, defendants' motion is granted in its entirety.
This lawsuit arises from the placement of an infant named Gary
Maund ("Gary") in Taylor's home and the events following Gary's
removal in July 1990. Gary was born in April 1989 with severe and
multiple handicaps, including arthrogryposis multiplex congenita,
HIV, Down's syndrome, asthma, talipses equinovarus, rhizomelic
short-limbed dwarfism, otitis, dysmorphic features, polycythemia,
drug withdrawal, and inability to speak. Gary immediately was
placed in the custody of the Department of Social Services, where
he remained until his death in 1993. As a result of his multiple
handicaps, Gary required regular treatment and observation from
physicians throughout his tragically short life.
In April 1990, Foundling Hospital placed Gary in Taylor's
foster care. On July 26, 1990, Foundling Hospital, believing that
Gary's health was too complicated for a foster parent to handle
alone, removed Gary from Taylor's home and returned him to
Incarnation Children's Center, where he had resided prior to his
placement with Taylor.*fn2 Total body x-rays taken on the
following day indicated that Gary had sustained multiple
fractures that were in various stages of healing. Dr. Sara
Abramson, a pediatric radiologist who examined the x-rays,
reported that the fractures were indicative of child abuse.
Foundling Hospital proceeded to file a "Report of Suspected Child
Abuse or Maltreatment" in the New York Central Registry pursuant
to New York Social Services Law § 413.
The report prompted the CWA's concern that Taylor's two natural
children, Tamika and Artnell, also might be at risk in Taylor's
custody. Tamika and Artnell had resided with their mother since
their births on June 27, 1987 and May 19, 1976 respectively. On
July 28, 1990, the CWA assigned defendant Evans, a CWA
caseworker, to investigate whether Taylor's children were at risk
Evans repaired first to the Incarnation Children's Center,
where he spoke with a nurse about Gary's condition and spent an
hour with Gary. In his deposition, Evans stated that he observed
that Gary had swelling in both arms, lacerations on his head and
throat area, scratches and abrasions on his back and legs, a
bruise on one shoulder, a mark on his groin, and what appeared to
be a fingernail scratch on his cheek. Evans Dep. at 111-12. By
contrast, social worker Dana Carney testified in Family Court
that Gary "appeared normal in every way," without any "fresh
marks" when he returned to the Incarnation Children's Center.
Plaintiffs' Exh. P at 29.
After visiting the Incarnation Children's Center, Evans spent
approximately two hours at the Taylor home. He observed that the
home was neat and adequately furnished, and that the children
appeared to be clean, well behaved, and in good
health. Evans questioned Taylor about how Gary received his
injuries and concluded that Taylor's explanations were
"inconsistent" with Gary's injuries. Evans also interviewed
Artnell. According to defendants, Evans "visually observed
Tamika's extremities for evidence of physical abuse." Defendants'
R. 56.1 Statement at ¶ 7. By contrast, plaintiffs allege that
Evans interrogated Tamika, and then "pulled up the oversized
T-shirt Tamika was wearing and exposed her back," and "pulled
down Tamika's underpants and exposed her buttocks." Taylor Aff.
at ¶¶ 7, 8. On the basis of Gary's serious and unexplained
injuries, Evans decided it was necessary to remove Tamika and
Artnell from their mother's home to protect them from an imminent
risk of harm.
Evans informed Taylor that he intended to place the two
children in foster care in the custody of the DSS. Taylor
requested that the two children be allowed to stay with her
mother, Joyce Taylor. After verifying with the CWA that Joyce
Taylor had no record of child abuse or neglect, Evans agreed to
temporarily place the children with her. Evans informed Taylor
that she could go to court to attempt to regain custody of her
On July 30, 1990, Taylor filed a petition under Family Court
Act § 1028 seeking a court order returning the children to her
custody. On August 1, 1990, Judge Zuckerman of the New York
County Family Court ordered that the children be returned to
Taylor's custody and that the CWA conduct a full child protective
investigation on behalf of the two children within forty-eight
hours. Pursuant to the court's order, defendant Pinckney, another
CWA caseworker, conducted an investigation and submitted a report
to the court. In it, she concluded that "[b]ased upon the
seriousness of the foster child(s) injuries with no plausible
explanation," the other children under Taylor's care "are also at
risk based on a derivative effect." Plaintiffs' Exh. Q. Pinckney
also indicated in her report that Taylor "is not complying with
CWA investigation to have her children x Ray [sic]." Id.
Plaintiffs contend that this was a deliberate falsehood. In
support of this contention, they cite an anonymous case report
indicating that the doctor who examined the children "didn't feel
x-ray [sic] were necessary." Plaintiffs' Exh. F.
On August 3, 1990, Judge Gage of the New York County Family
Court held a hearing and issued a preliminary order removing the
two children from their mother's custody after concluding that
removal was necessary to avoid imminent risk to their lives or
health. The children were again temporarily placed in their
grandmother's home. After a hearing on April 26, 1991, Judge Gage
dismissed the CWA petitions on behalf of the two children.
In August 1990, the New York City Police Department Detective
James Flaherty had begun to investigate allegations that Taylor
had abused Gary, based upon the hospital report. At no time did
Flaherty speak with anyone from CWA. Flaherty Dep. at 26. Taylor
subsequently was indicted on nine counts of assault and one count
of endangering the welfare of a child. On November 18, 1991, a
jury convicted Taylor of endangering the welfare of a child and
two counts of assault, but acquitted her of all other charges.
The prosecutor in that case has testified that the District
Attorney's Office was not urged or influenced by anyone from CWA
to prosecute Taylor. Riccardi Dep. at 71. Taylor was incarcerated
from November 18, 1991 until March 12, 1992, when a state
appellate court ordered her release.
On May 11, 1993, the Appellate Division reversed Faye Taylor's
conviction and remanded the matter for a new trial. The basis for
the Appellate Division's decision was that the trial court had
improperly responded to notes submitted by the jury during its
deliberations without first showing them to Taylor's counsel. The
Appellate Division noted in its opinion, however, that the
"evidence was legally sufficient to
establish the defendant's guilt, and the verdict was not against
the weight of the evidence." People v. Taylor, 192 A.D.2d 35,
36, 597 N.Y.S.2d 347, 348 (1st Dep't), app. denied, 82 N.Y.2d 708,
601 N.Y.S.2d 605, 619 N.E.2d 683 (1993). On November 18,
1993, the criminal proceedings against Taylor were terminated
when the District Attorney decided not to pursue the case and it
accordingly was dismissed by the court.
Plaintiffs' current action stems from their belief that
"defendants attempted to cover up their own misdeeds by blaming
the foster mother for [Gary's] injuries." Plaintiffs' Br. at 1.
Taylor alleges that Foundling Hospital failed to properly train
her to care for Gary given his special needs. According to
Taylor, the only training she received took place on the day that
Gary was placed in her home.
Specifically, plaintiffs contend that it was precisely the type
of physical therapy that Taylor had been instructed to give by
Foundling Hospital, Incarnation Children's Center, and/or Harlem
Hospital that led to Gary's injuries. From the age of eight
months, Gary received daily physical therapy in the form of
manipulation of his arms and legs. The purpose of the therapy was
to counteract the effects of arthrogryposis multiplex congenita.
While Gary lived in Taylor's home, Taylor took Gary to physical
therapy sessions at Harlem Hospital first once and then twice a
week. Taylor also was instructed that Gary should receive therapy
at home twice a day, and both she and her son Artnell performed
this therapy. In her deposition, Taylor indicated that she asked
the agency for help with Gary's physical therapy, but was not
given any assistance. Taylor Dep. at 139. Taylor also stated that
she was upset by the therapy that Harlem Hospital was performing
on Gary and that she voiced this concern to the health
coordinator, to Dr. Stephen Nicholas, and to Gary's social
worker, Dana Carney. Id. at 140. However, according to Taylor,
the therapist at Harlem Hospital directed her to continue with
the therapy and not to "spoil" Gary. Id. at 100.
Taylor now suggests that the fractures revealed by the x-rays
resulted directly from the therapy. According to the Family Court
testimony of Dr. Kwame Ansane-Yeboa, arthrogryposis multiplex
congenita makes bones more susceptible to fracture, and as a
result, physical therapy prescribed for a child with
arthrogryposis multiplex congenita must consist of "a careful set
of exercises." Plaintiffs' Exh. Z at 14, 17. Dr. Ansane-Yeboa
indicated that he thought the injuries reflected in Gary's x-rays
were most likely caused by vigorous handling in physical therapy.
Id. at 28-29. Taylor also suggests that any facial injuries
that Gary sustained resulted from problems with the nebulizer
mask that she had brought to the attention of Gary's social
worker. Plaintiffs' Br. at 25; Plaintiffs' Exh. B at 14.
The principles governing the grant or denial of summary
judgment under Fed. R.Civ.P. 56 are well established. "[S]ummary
judgment is appropriate where there exists no genuine issue of
material fact and, based on the undisputed facts, the moving
party is entitled to judgment as a matter of law." D'Amico v.
City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied,
524 U.S. 911, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998). In
addressing a motion for summary judgment, "[t]he court must view
the evidence in the light most favorable to the party against
whom summary judgment is sought and must draw all reasonable
inferences in his favor." L.B. Foster Co. v. America Piles,
Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The party seeking
summary judgment bears the initial burden of showing that no
genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
While on a motion for summary judgment all facts must be
construed in favor of the non-moving party, a party opposing
summary judgment "may not rest upon the mere allegations or
denials of the adverse party's pleadings, but . . . must set
forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). In so doing, the "non-moving party
may not rely on conclusory allegations or unsubstantiated
speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.
Moreover, while the party resisting summary judgment must show
a dispute of fact, it also must be a material fact in light of
the substantive law. "Only disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). However, "[t]he mere existence of a scintilla of evidence
in support of the [non-movant's] position will be insufficient"
to defeat a properly supported motion for summary judgment. Id.
at 252, 106 S.Ct. 2505. Instead, the non-movant must offer
"concrete evidence from which a reasonable juror could return a
verdict in his favor." Id. at 256, 106 S.Ct. 2505. Summary
judgment should only be granted if no rational factfinder could
find in favor of the non-moving party. Heilweil v. Mount Sinai
Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
Rule 56(e) further provides that "[s]upporting and opposing
affidavits shall be made on personal knowledge . . . and shall
show affirmatively that the affiant is competent to testify to
the matters stated therein." Accordingly, it is insufficient for
a party opposing summary judgment "merely to assert a conclusion
without supplying supporting arguments or facts." BellSouth
Telecommunications, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615
(2d Cir. 1996) (internal quotations omitted).
To state a cause of action under § 1983, a plaintiff must
allege that the defendant has deprived him of a federal right
while acting under color of state law. See Gomez v. Toledo,
446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Plaintiffs
allege that defendants violated their rights under the Fourth,
Fifth and Fourteenth Amendments.*fn3 I address each of
plaintiffs' claims in turn; first with respect to the caseworkers
in their ...