The Second Circuit has held that the equal protection clause
"directs state actors to treat similarly situated people alike."
See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). To
prove a violation of this clause, a plaintiff is required to
prove "purposeful discrimination directed at an identifiable or
suspect class." See id. (citations omitted).
Here, assuming without deciding that plaintiff Hardaway H.
belongs to a suspect class, plaintiffs have presented no
evidence of purposeful discrimination by St. Dominic Defendants
or of purposeful discrimination directed at the class in which
Hardaway H claims to be a member. Accordingly, plaintiffs' equal
protection claim is insufficient to withstand a motion for
2. Fourth Amendment
The Fourth Amendment inquiry requires the Court to determine
whether the St. Dominic Defendants' actions were objectively
reasonable in light of the facts and circumstances. See Graham
v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989). In determining the reasonableness of a seizure, "the
Fourth Amendment requires a careful balancing of `the nature and
quality of the intrusion on the individual's Fourth Amendment
interests' against the countervailing governmental interests at
stake." Id. at 396, 109 S.Ct. 1865 (quoting Tennessee v.
Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)).
In this case, plaintiffs argue that "the child DANIEL was
seized and unreasonably detained [in foster care] due to the
failure to notify his father." Plaintiffs' Memo at 23. The
original removal of Daniel H. from his natural mother's home and
later placement with the St. Dominic Defendants, however, was
pursuant to an order of the Family Court. See Reply Memo at
10; Defendants' Memo at 22. Under such facts, the St. Dominic
Defendants' actions were objectively reasonable; Daniel H.'s
Fourth Amendment rights were not violated.
3. Substantive Due Process
Plaintiffs claim that Daniel H. had "a Substantive Due Process
right to be free from harm" (see Plaintiffs Memo at 13); that
"the St. Dominic Defendants `failed to protect' him and failed
to provide basic services necessary to insure his reasonable
safety, including adequate medical care to keep him free from
both psychological and physical harm" (id. at 14); and that
"DANIEL H. suffered multiple physical and severe psychological
injuries because of the acts and omissions of the ST. DOMINIC'S
DEFENDANTS." Id. at 15. Plaintiffs further argue that inquiry
on this claim is guided by whether there has been a substantial
departure by the St. Dominic Defendants from accepted
professional judgment. See id. at 15-17. In support of their
motion, the St. Dominic Defendants have argued that the alleged
facts fail to meet the higher, proper standard of deliberate
indifference. See Defendants' Memo at 2, 4, 5, 15-19; Reply
Memo at 8. The Court now turns to consider the appropriate
In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976), the United States Supreme Court concluded that
deliberate indifference to a prisoner's serious medical needs
states a cause of action under Section 1983. Several years
later, the Supreme Court considered the security of
involuntarily committed mental patients and held that liability
may be imposed only when a decision by an appropriate
professional "is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate
that the person responsible actually did not base the decision
on such a judgment." See Youngberg v. Romeo, 457 U.S. 307,
323, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
In DeShaney v. Winnebago County Dep't of Soc. Servs.,
489 U.S. 189, 193, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the
Supreme Court considered whether a State was liable "by failing
to intervene to protect [a child] against a risk of violence at
his father's hands of which they knew or
should have known." While the Court concluded that a State's
failure to protect an individual against private violence did
not amount to a Due Process violation, it observed that "it is
the State's affirmative act of restraining the individual's
freedom to act on his own behalf — through incarceration,
institutionalization, or other similar restraint of personal
liberty — which is the `deprivation of liberty' triggering the
protections of the Due Process Clause. . . ." Id. at 200,
109 S.Ct. 998. Significantly, and particularly relevant to the facts
and issue before this Court, the Supreme Court stated:
Had the State by the affirmative exercise of its
power removed [the child] from free society and
placed him in a foster home operated by its agents,
we might have a situation sufficiently analogous to
incarceration or institutionalization to give rise to
an affirmative duty to protect. Indeed, several Court
of Appeals have held, by analogy to Estelle and
Youngberg, that the State may be held liable under
the Due Process Clause for failing to protect
children in foster homes from mistreatment at the
hands of their foster parents. See Doe v. New York
City Dept. of Social Services, 649 F.2d 134, 141-142
(C.A. 2 1981) (other citations omitted). We express no
view on the validity of this analogy, however, as it
is not before us in the present case.
Id. at 201, n. 9, 109 S.Ct. 998.
In Doe, 649 F.2d 134, which was decided before Youngberg
and DeShaney, the Second Circuit applied the deliberate
indifference standard to a Section 1983 claim when a state
agency placed a foster child in a foster home. Under the Doe
approach, plaintiffs here must demonstrate that "omissions must
have been a substantial factor leading to the denial of a
constitutionally protected liberty or property interest" and
that the St. Dominic Defendants "displayed a mental state of
`deliberate indifference.'" Id. at 141. Accordingly, the St.
Dominic Defendants may be found liable if they have "exhibited
deliberate indifference to a known injury, a known risk, or a
specific duty, and their failure to perform the duty or act to
ameliorate the risk or injury was a proximate cause of
plaintiffs deprivation of rights under the Constitution." Id.
Because Doe has not been overturned by the Supreme Court and
still appears to set forth the relevant standard (see
Mosher-Simons v. County of Allegany, New York, 159 F.3d 1347,
1998 WL 537526 (2d Cir. 1998) (summary disposition); Vogelsang
v. County of Cayuga, No. 95 Civ. 1123, 1998 WL 146293 (N.D.N.Y.
March, 25, 1998) (Pooler, J.)), the Court adopts the more
rigorous constitutional standard and concludes that the St.
Dominic Defendants must have displayed a mental state of
deliberate indifference in order to be liable under Section
1983. While the Court has resolved ambiguities and has drawn all
reasonable inferences in favor of plaintiffs (see Plaintiffs'
Memo at 13-17), the Court does not find in the present record
evidence demonstrating that the St. Dominic Defendants were
deliberately indifferent to Daniel H.'s welfare. Accordingly,
the Court grants summary judgment to the St. Dominic Defendants
on this portion of the Ninth Claim.
4. Procedural Due Process
Plaintiffs argue that Daniel H. had a right "to have his
father notified of his whereabouts" (see Plaintiffs Memo at 2
n. 1) and that Hardaway H. had a right to be notified that
Daniel H. was placed in foster care and the subject of a child
abuse and neglect proceeding so that "he could attend court,
visit with or obtain the return of his child, or protect him
from the physical and psychological injuries the infant suffered
while in foster care." Id. at 1; see id. at 5-6, 10. Thus,
plaintiffs claim that the St. Dominic Defendants "deprived
father and son to their liberty interest to each other, without
following constitutionally adequate procedures." Id. at 7.
The St. Dominic Defendants argue that plaintiffs have not
demonstrated that they
failed to take adequate procedural safeguards to secure Daniel
H.'s constitutional rights or utilized constitutionally
inadequate procedures. See Defendants' Memo at 19-20. The St.
Dominic Defendants further argue that Daniel H.'s initial
removal from his mother was pursuant to court order; that his
placement with the St. Dominic Defendants was in accordance with
the court order; and that the St. Dominic Defendants "performed
diligent searches to locate Daniel H. on three separate
occasions, including one within six-months of Daniel's original
placement." See Defendants' Memo at 20.
A parent has a constitutionally protected liberty interest in
the custody of his child. See Stanley v. Illinois,
405 U.S. 645, 651-52, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In order to
state a claim for the violation of procedural due process,
plaintiffs must allege that the St. Dominic Defendants deprived
them of a protected liberty interest without following
constitutionally adequate procedures. See Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701,
33 L.Ed.2d 548 (1972). Due process requires that the state procedures
provide the parent an opportunity to be heard at a "meaningful
time and in a meaningful manner." See Armstrong v. Manzo,
380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). In the case
of an emergency removal of a child from a parent without a
hearing, "due process requires that the state procedures provide
the parent an opportunity to be heard at a reasonably prompt
time after the removal." See Gottlieb v. County of Orange,
84 F.3d 511, 520 (2d Cir. 1996).
Plaintiffs claim that Daniel H. was removed from custody
without proper procedural safeguards being afforded to them.
Issues of fact regarding this procedural complaint include, but
are not limited to, whether and to what extent the St. Dominic
Defendants actually attempted to locate and notify Hardaway H.
after Daniel H.'s 1991 removal from his mother and prior to his
eventual reunion with his father in 1995; to what extent the St.
Dominic Defendants were acting under emergency conditions; and
whether Hardaway H. abandoned Daniel H. thereby affecting the
required notice. The St. Dominic Defendants' claims of
organizing a "Diligent Search function . . . to locate
non-respondent birth parents" (see Affidavit of Bonni Rucker,
sworn to June 12, 1999, ¶ 10) and of conducting "diligent
searches for Hardaway H. on three occasions" (Defendants' Memo
at 4) are in sharp contrast to Hardaway H.'s claims that the St.
Dominic Defendants advised his son that he was dead when he was,
in fact, "easy to find," given his unusual name, continuous
Queens telephone listing and address, driver's license, Taxi and
Limousine Commission license and regular employment and payment
of taxes. See Plaintiffs' Memo at 8-9. This conflict in
material facts precludes granting summary judgment to the St.
Dominic Defendants on this claim.
CONCLUSION AND ORDER
For the foregoing reasons, the St. Dominic Defendants motion
for summary judgment is granted in part and denied in part.
Accordingly, it is hereby
ORDERED that the St. Dominic Defendants' motion for summary
judgment is granted as to the fifth and sixth claims in the
complaint; and it is further
ORDERED that the St. Dominic Defendants' motion for summary
judgment is granted only as to the equal protection, Fourth
Amendment and Substantive Due Process claims contained in the
ninth claim of the complaint; and it is further
ORDERED that the St. Dominic Defendants' motion is denied as
to the Procedural Due Process claim in the ninth claim of the
complaint; and it is finally
ORDERED that all parties are to appear for a final pre-trial
conference with the Court on October 6, 2000 at 9:00 a.m.