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STORCK v. SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES

November 27, 2000

ELLEN STORCK, AARON DREW STORCK, COURTNEY DREW, DANA DREW AND JOSHUA DREW, PLAINTIFFS,
V.
SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, GARY ROSENTHAL, INDIVIDUALLY AND AS AN ASSISTANT COUNTY ATTORNEY WITH THE SUFFOLK COUNTY ATTORNEY'S OFFICE, ARZA FELDMAN, INDIVIDUALLY AND AS THE LAW GUARDIAN APPOINTED FOR THE INFANTS COURTNEY, DANA AND JOSHUA STORCK, ANDREA MCKENZIE, INDIVIDUALLY AND AS THE LAW GUARDIAN APPOINTED FOR THE INFANT, AARON DREW STORCK, HEIDI HILTON, INDIVIDUALLY AND AS THE LAW GUARDIAN APPOINTED FOR THE INFANT, AARON DREW STORCK, VIVIEN MISSHULA, INDIVIDUALLY AND AS A CASE WORKER EMPLOYED BY THE SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, MARY PEABODY, INDIVIDUALLY AND AS A CASE WORKER EMPLOYED BY THE SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, DR. MAYER SAGY, INDIVIDUALLY AND AS THE CHIEF OF PEDIATRIC INTENSIVE CARE UNIT OF SCHNEIDER'S CHILDRENS HOSPITAL, DR. PHILIP LANZKOWSKI, INDIVIDUALLY AND AS CHIEF OF STAFF OF SCHNEIDER'S CHILDRENS HOSPITAL, DR. GERALD NOVACK, INDIVIDUALLY AND AS A MEMBER OF PEDIATRIC NEUROLOGY STAFF OF SCHNEIDER'S CHILDRENS HOSPITAL, DR. LAURA NIMKOFF, INDIVIDUALLY AND AS A RESIDENT OF THE PEDIATRIC INTENSIVE CARE UNIT OF SCHNEIDER'S CHILDRENS HOSPITAL, DR. HERBERT SCHREIER, INDIVIDUALLY AND AS A WITNESS FOR THE WEST PAGE 393 SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, AND JOHN DOE AND ALL OTHERS AS YET UNIDENTIFIED AGENTS OF THE COUNTY OF SUFFOLK, WHO HAVE ACTED IN VIOLATION OF THE RIGHTS OF THE PLAINTIFFS HEREIN, DEFENDANTS.



The opinion of the court was delivered by: Wexler, U.S District Judge

MEMORANDUM AND ORDER

This is a civil rights case the facts of which arise out of a 1992 Suffolk County Family Court petition charging Plaintiff Ellen Storck ("Plaintiff') with neglect of her son, Aaron Storck. The facts surrounding the neglect proceedings and the subsequent placements of Aaron Storck are discussed, in great detail, in the opinion of this court dated August 10, 1999, which ruled on the defendants' motions to dismiss Plaintiff's complaint (the "Dismissal Opinion"). Presently before the court are the motions of the defendants that remain in this lawsuit, for summary judgment. For the reasons set forth below, the motions for summary judgment are granted in part. All claims are dismissed except for Plaintiff's first cause of action. That cause of action will be the subject of briefing on the merits according to the schedule set forth below.

BACKGROUND

I. Factual Background and the Dismissal Opinion

Familiarity with the Dismissal Opinion is assumed and the court will reiterate the facts only to the extent necessary for the disposition herein. Briefly stated, however, the 1992 neglect petition charged that Ellen Storck suffered from Munchausen Syndrome by Proxy ("MSP"), a psychological disorder in which a person fabricates symptoms of illness in her child for the purpose of gaining the attention of medical personnel. As a manifestation of her MSP, Ms. Storck was alleged to have put Aaron Storck's health in danger on repeated occasions. When doctors treating Aaron suspected MSP, that fact was reported to appropriate officials and the neglect proceeding began.

As a result of a state court trial and extensive opinion, Aaron Storck was removed from the custody of Ellen Storck and was placed in foster care in Suffolk County. That placement was later changed and Aaron was placed in the care of relatives living in Ohio. Aaron Storck now resides with his mother in the state of Florida.

Plaintiffs' complaint alleged individual claims and claims of conspiracy pursuant to 42 U.S.C. § 1983 and 1985.*fn1 These claims sounded in an alleged deprivation, without due process of law, of Plaintiff's liberty interest in the custody of her children. Plaintiff originally named as defendants virtually every person (including law guardians and physician witnesses) involved in the family court proceedings regarding the custody of Aaron Storck. As a result of the Dismissal Opinion, Plaintiff's claims have been significantly reduced. Remaining as defendants are: (1) Gary Rosenthal, the Suffolk County Attorney charged with prosecuting the case against Ellen Storck; (2) the Suffolk County Department of Social Services, ("Suffolk DSS"); and (3) Vivien Misshula and Mary Peabody, case workers employed by Suffolk DSS (collectively with Suffolk DSS, the "Suffolk DSS Defendants").

In addition to reducing the number of defendants, the Dismissal Opinion reduced the number of claims. The factual claims remaining in this lawsuit follow.

A. Claims Against Gary Rosenthal

The Dismissal Opinion disposed of several claim against Gary Rosenthal on the ground of absolute prosecutorial immunity. The narrow claims remaining against Rosenthal are: (1) that during a 1993 meeting (while Aaron Storck was in the care of Suffolk County foster parents) Rosenthal threatened Aaron with "real trouble" if he told his mother's attorney the truth about ill treatment he was receiving while in foster care, and (2) that Rosenthal improperly interfered with and acted to have Ellen Storck's welfare payments suspended.

B. Claims Against the Suffolk DSS Defendants

Plaintiffs claims against Misshula and Peabody arise out of their roles as Suffolk DSS caseworkers assigned to Aaron Storck's case. Misshula was the first caseworker assigned to Aaron's case. Peabody became involved when custody was transferred to Ellen Storck's cousins residing in Ohio.

Plaintiff alleges that Misshula and Peabody failed to intervene or protect Aaron Storck from psychological abuse he allegedly suffered while in foster care in Suffolk County. Second, Plaintiff claims that Misshula and Peabody filed false reports concerning their interviews of Ellen Storck and her children so that Aaron Storck would not be returned to the custody of Ellen Storck.

Next, Plaintiff claims that the caseworkers withheld Aaron's Supplemental Security Income ("SSI") funds as well as funds received from Aaron's natural father and Medicaid funds. Such funds are alleged to have been properly payable to Aaron Storck's Ohio foster parents. In a related claim, Plaintiff alleges that Misshula and Peabody "deceived" the Ohio Department of Children's Services regarding their receipt of SSI, support and Medicaid payments for Aaron, claiming that these funds had been received by Aaron's attorney.

Finally, Plaintiff alleges that Misshula and Peabody "harassed" Plaintiff's children by interfering with their rights to participate in school activities, obtaining a court order that the children could seek medical attention only by physicians approved by Suffolk DSS and by violating their right to maintain the privacy of their school records.

All actions of Suffolk DSS, Misshula and Peabody are alleged to have been taken in retaliation against Plaintiff for her resistance of the neglect proceedings.

C. FERPA Claim

In addition to the claims referred to above, there remains in this case a claim alleged against Rosenthal, Misshula and Peabody pursuant to the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232 ("FERPA"). This cause of action alleges that these defendants violated 20 U.S.C. § 1232(g)(6)(2), when Aaron's siblings' educational records were subpoenaed. These "unlawful subpoenas" are alleged to have deprived the Storck children of their "federally protected privacy rights to their educational and counseling records, humiliation, and interference with their education."

DISCUSSION

I. Legal Principles

A. Standards for Granting Motions For Summary Judgment

A motion for summary judgment is properly granted only if the court determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FRCP 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking judgment bears the burden of demonstrating that no issue of fact exists. McLee v. Chrysler Corp. 109 F.3d 130, 134 (2d Cir. 1997). However, when the nonmoving party fails to make a showing on an essential element of its case with respect to which it bears the burden of proof, summary judgment will be granted. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party resisting summary judgment must not only show a disputed issue of fact, but it must also be a material fact in light of the substantive law. Only disputed facts that "might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 242, 106 S.Ct. 2505.

When a moving party demonstrates the absence of a genuine issue of fact, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Additionally, affidavits in support of or in opposition to summary judgment must be made on personal knowledge and set forth facts as would be admissible in evidence. Id.

Summary judgment is not defeated by vague assertions of unspecified disputed facts. Western World Ins. Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir. 1990). Moreover, conclusory allegations are insufficient to defeat summary judgment. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). With these standards in mind, the court turns to ...


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