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September 19, 2005.

TYLENA M. and LATISHA M., by their mother DEBRA M., Plaintiffs,

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Plaintiffs Tylena M. ("Tylena") and Latisha M. ("Latisha") (together, "Plaintiffs"), through their adoptive mother, Debra M., filed this action pursuant to 42 U.S.C. § 1983 ("§ 1983") against Heartshare Children's Services ("Heartshare"), the City of New York (the "City"), and several of Heartshare's and the City's employees (collectively, "Defendants"). The complaint alleges that Defendants failed to protect Tylena and Latisha from abuse while they were in the custody of the City and Heartshare as foster children.

Plaintiffs assert five causes of action against the City and/or certain of its employees: (1) that the City, Vincent Adrien ("Adrien"), during the relevant time a caseworker for the City's Child Welfare Administration ("CWA"), presently known as the Administration for Children's Services ("ACS"), and Marilyn DeSevo ("DeSevo"), Adrien's supervisor during some of the relevant time, deprived Plaintiffs of their liberty and privacy and of their right to be free from unjustified intrusions on their personal security, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, by improperly supervising Plaintiffs and failing to protect them from abuse while they were in government-supported foster care; (2) that the City and Brooke Trent ("Trent"), who served as director of CWA during part of the relevant time, deprived Plaintiffs of their liberty and privacy and of their right to be free from unjustified intrusions on their personal security, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, by improperly training the City's foster care employees; (3) that the City, Adrien, Desevo, and Trent acquiesced in the use of excessive force against Plaintiffs, in violation of the Fourth and Fourteenth Amendments; (4) that the City, Adrien, DeSevo, and Trent failed to exercise the highest degree of reasonable care during their supervision of Plaintiffs by failing to protect them from abuse; and (5) that Adrien and DeSevo violated their obligation to carry out social work duties in a competent, professional manner and that, as a result, Plaintiffs were subjected to repeated physical, sexual and emotional abuse.

  Defendants have moved for summary judgment. By Decision and Order dated October 25, 2004, the Court denied summary judgment with respect to Plaintiffs' claims against Heartshare and its employees (the "Agency Defendants"). The Court now considers the summary judgment motion filed on behalf of the City and its employees (the "City Defendants"). For the reasons stated below, that motion is granted in part and denied in part.

  Also before the Court is Plaintiffs' motion pursuant to Fed.R.Civ.P. 11 ("Rule 11") and 28 U.S.C. § 1927 for sanctions to be imposed against the Agency Defendants and their attorneys, Murphy & Higgins. Plaintiffs' motion is based on the allegation that the motion for summary judgment filed by the Agency Defendants and their attorneys was frivolous. For the reasons stated below, Plaintiffs' Rule 11 motion is denied.


  CWA removed Tylena and Latisha from the custody of their biological mother on or about August 9, 1988 and January 27, 1989, respectively, and placed them in foster care. At the time of their placement in foster care, Tylena was one year and eight months old and Latisha was less than one month old. CWA took this action in response to substantiated allegations that their birth mother was using crack cocaine and allowing Tylena to be sexually abused.

  CWA placed Tylena and Latisha under the direct supervision of Heartshare, formerly known as the Catholic Guardian Society, a not-for-profit corporation authorized by New York Social Services Law to provide foster care services. Heartshare in turn placed Tylena and Latisha in the home of Ora Heathington ("Heathington"), a certified foster parent. The children's primary caretaker at the Heathington home was Heathington's daughter, Monique Vizcarrando ("Monique"). Monique's husband, Jose Vizcarrando ("Jose"), also resided in the Heathington home.

  Plaintiffs allege that, while residing in the Heathington home, they were repeatedly beaten and locked in closets for long periods of time. They further allege that Jose repeatedly raped Tylena, attempted to rape Latisha, and forced both children to perform oral sex on him. Plaintiffs allege that this abuse occurred over a period of more than two years.

  On August 5, 1991, plaintiff Debra M., Tylena's and Latisha's maternal aunt and now adoptive mother, brought the children to the Harlem Hospital because Latisha was complaining of pain in her vaginal area. A doctor there examined Latisha and determined that she had been sexually abused. Both children were admitted to the hospital for sexual abuse treatment. The City's Office of Confidential Investigations investigated the incident and concluded that both Latisha and Tylena had been sexually abused by Jose. After their admission to the Harlem Hospital on August 5, 1991, the children did not return to the Heathington home. On November 7, 1991, they were placed in the home of Debra M.



  In order to prevail on a motion for summary judgment, the moving party must demonstrate that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether genuine issues of material fact exist, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159 (1970)). The nonmovant, however, cannot create a genuine issue of fact through "conclusory allegations, conjecture and speculation." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).


  Section 1983 creates a cause of action against any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any . . . person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The Second Circuit has held that, "[w]hen individuals are placed in custody or under the care of the government, their governmental custodians are sometimes charged with affirmative duties, the nonfeasance of which may violate the constitution." Doe v. New York City Dep't. of Social Services, 649 F.2d 134, 141 (2d Cir. 1981). In particular, "children in foster care [have] a substantive due process right [under the Fourteenth Amendment] to protection from harm." Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 675 (S.D.N.Y. 1996).

  In order for a governmental custodian to be held liable under § 1983 for the nonfeasance of affirmative duties to those in its custody, two requirements must be satisfied: (1) "the omissions must have been a substantial factor leading to the denial of a constitutionally protected liberty or property interest;" and (2) "the officials in charge of the agency being sued must have displayed a mental state of `deliberate indifference' in order to `meaningfully be termed culpable' under s. 1983."*fn2 Doe, 649 F.2d at 141 (citing Rizzo v. Goode, 423 U.S. 362 (1976); quoting Turpin v. Mailet, 579 F.2d 152, 166 (2d Cir. 1978)).



  To the extent that Plaintiffs' claims are asserted against the City itself, they require proof that "the entity's policy or custom played a part in the violation of federal law." Hafer v. Melo, 502 U.S. 21, 25 (1991). Plaintiffs' claims against the individual defendants in their official capacity also require such proof because "[a] Section 1983 suit against a municipal officer in his official capacity is considered a suit against the municipality itself. . . ." McInnis v. Town of Weston, 375 F. Supp. 2d 70, 86 (D.Conn. 2005) (citing Brandon v. Holt, 469 U.S. 464, 472 (1985)).

  1. Failure to Supervise

  Municipal policymakers may be held liable in their official capacity under § 1983 for a failure to supervise if they "should have known that inadequate . . . supervision was `so likely to result in the violation of constitutional rights, that [they] . . . can reasonably be said to have been deliberately indifferent to the need.'" Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). Plaintiffs argue that the City's policies concerning the supervision of children in foster care were conducive to violations of constitutional rights.*fn3 The crux of Plaintiffs' claim in this regard is that the "City defendants established no mechanism by which to ensure that the information provided [to the City] by the [foster care] agency [concerning the welfare of children in foster care] was complete or verify that it was accurate." (Plaintiffs' Response to City Defendants' 56.1 Statement, dated November 30, 2004 ("Pls.' 56.1 Statement"), at 3.) As the City Defendants explain, New York "Social Services Law contemplates the use of private agencies to provide direct services [to children in foster care] under contract with the City of New York." (City Defendants' Reply Memorandum of Points and Authorities, dated December 30, 2004 ("Dfs.' Reply Mem."), at 1 (citing N.Y. Soc. Serv. L. § 371.10).) While the City thus delegates responsibility for the provision of direct foster care services to private entities, this delegation does not absolve the City of its ultimate responsibility to ensure that children in its custody receive adequate care and protection from harm.*fn4 See Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004) ("[A]llowing delegation, without more, to defeat municipal liability would contravene the remedial purposes of § 1983."); Covington v. Westchester County Jail, No. 96 Civ. 7551, 1998 WL 26190, at *3 (S.D.N.Y. Jan. 26, 1998) (quoting with approval statement by the Eleventh Circuit Court of Appeals that a government's obligation to provide medical care to incarcerated individuals "is not absolved by contracting with [a private entity]. . . . Although [the private entity] has contracted to perform an obligation owed by the county, the county itself remains liable for any constitutional deprivations caused by the policies or customs of the [the private entity]. In that sense, the county's duty is non-delegable.") (quoting Ancata v. Prison Health Servs. Inc., 769 F.2d 700, 705 (11th Cir. 1984)).

  In light of the City's retention of this ultimate responsibility for care and protection, the factual issue of whether the City had any means of verifying the accuracy or ensuring the completeness of the information provided by private foster care agencies concerning the welfare of children under their direct supervision is material to Plaintiffs' § 1983 claim. If there existed no means, or insufficient means, for the City to corroborate its contract agencies' own representations concerning the welfare of children in their custody, then the City's delegation of responsibility to such agencies for the provision of direct services to foster children arguably would be tantamount to an impermissible or unreasonable delegation of the City's ultimate obligation for the welfare of those children.

  It is undisputed that the City monitored foster care placements by requiring employees of the private agencies with which it contracted for direct foster care services ("agency caseworkers") to submit reports, called uniform case records ("UCRs"), to the City every six months. Plaintiffs contend that the UCRs were constitutionally inadequate because they "did not ask foster care agencies for basic information on the health or safety or daily care of foster children." (Plaintiffs' Memorandum of Law in Opposition to City Defendants' Motion for Summary Judgment dated November 30, 2004 ("Pls.' Mem.") at 15.) The City Defendants dispute this characterization of the UCRs. The Court's own review of the UCRs submitted by the parties reveals that, while the questions asked by the UCRs may prompt some agency caseworkers to provide information concerning the "health or safety or daily care" of the children, the UCRs do not contain specific questions concerning these matters.*fn5

  Even if the UCRs did specifically require or could reasonably be read to request such information, though, such a requirement would not address Plaintiffs' primary contention — that the City's policies did not provide any means by which the information provided in the UCRs could be verified by the City or by any interested third party with sufficient standing. In support of this claim, Plaintiffs cite to the deposition of non-party Diana Cortez ("Cortez"), who was employed as a Borough Manager by ACS at the time of her deposition. Cortez affirmed that "once a child was placed with a foster agency and [the City's Office of Contract Agency Case Management ("OCACM")] was assigned to the case, . . . all the information that ACS or OCACM would receive on the child would come from the foster care agency in the form of a UCR or written communication." (Deposition of Diana Cortez, October 9, 2003, at 16 (attached as Ex. 34 to Kubitschek Decl.).) Cortez further stated, in response to the question "[h]ow did OCACM workers ensure that the information being provided by the foster care agency was true," that they "have to rely on the information received on paper," presumably meaning the UCR. (Id.)

  Defendant DeSevo made similar statements in her deposition. In response to the question, "[o]ther than the situation where a foster care worker would call up your caseworker to discuss issues with them, how would you know whether information was discussed fully in the UCR," DeSevo stated: "We wouldn't know." (Deposition of Marilyn DeSevo, September 29, 2003, at 46 (attached as Ex. 36 to Kubitschek Decl.).)

  The City Defendants dispute Plaintiffs' claim that there was no mechanism by which to verify or ensure the accuracy of the information contained in the UCRs. They explain that "the contract agency had to include all state-regulated information in the bi-annual uniform case records to report on the health and welfare of the foster children in their care" and that defendant "Adrien or other OCACM workers would also review all documents sent by the agency, call with questions, or respond to agency phone calls, and make sure all legal paperwork was up to date." (City Defendants' Reply Rule 56.1 Statement dated December 30, 2004 ("Defs.' Reply ...

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