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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
v.
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 CWA.*fn1

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.

FACTS

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 of harm.

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.

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 children.

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.

STANDARD OF REVIEW

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 (1986).

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. 1998).

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).

DISCUSSION

I. § 1983 Claims

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 ...


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