The opinion of the court was delivered by: Wexler, U.S District Judge
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
I. Factual Background and the Dismissal Opinion
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
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.
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
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
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
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 ...