The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiffs Amber Lynn ("Amber") and Julie B. commenced the instant action asserting causes of action for violations of their constitutional rights and various state law causes of action arising out of Amber's placement at the St. Anne Institute ("St. Anne"). Presently before the Court are motions for summary judgment pursuant to Fed. R. Civ. P. 56 by the Greene County Defendants*fn1 and the St. Anne Defendants*fn2 seeking dismissal of the Complaint in its entirety.
On July 24, 2000, Defendant Greene County Department of Social Services ("GCDSS") received a report that Amber was being sexually abused by her mother's boyfriend.*fn3 Plaintiff's mother did not believe Amber's allegations. On July 25, 2000, Defendant GCDSS Child Protective Services Case Worker Suzanne Paolino investigated the report and determined that Amber's allegations were founded. That same day, Plaintiff's mother consented to the temporary placement of Amber with the GCDSS. Amber was immediately removed from her mother's home by the GCDSS and placed in foster care at the home of Mary Francis and Robert Young. On July 31, 2000, Paolino filed a neglect and abuse petition in Greene County Family Court against Amber's mother. On July 31, 2000, the Greene County Family Court issued an order finding that it was necessary to remove Amber from the home because: (1) she had been sexually abused since the age of nine;*fn4 (2) the mother, despite being informed of the abuse, failed to take appropriate action; and (3) her mother smoked marijuana in Amber's presence. The Family Court ordered that Amber be temporarily placed in the custody of the GCDSS for placement in a certified home pending further proceedings.
On October 1, 2000, Amber disappeared from the Young home. Amber returned that same day, making allegations of inappropriate conduct by Mr. Young.*fn5 It was then determined that Amber would not remain in the Young home. On October 2, 2000, Amber was placed at the Family House of Woodstock. On October 10, 2000, Amber disappeared from the Family House of Woodstock. The Family House of Woodstock discharged Amber for having run away. Paolino and Defendant Sharon Regan then determined to place Amber at the Defendant St. Anne Institute. St. Anne was chosen because Amber had accused her mother's boyfriend of sexual abuse and there was alcohol and drug abuse in Amber's family and St. Anne offered alcohol, drug, and sex abuse programs.
On October 13, 2000, the GCDSS filed a petition requesting that Amber be adjudicated as a person in need of supervision ("PINS"). On October 27, 2000, Amber went absent without leave from St. Anne. On November 6, 2000, the Greene County Family Court held a hearing concerning the PINS petition. On November 8, 2000, the Greene County Family Court issued an order as follows:
[Amber is] a person in need of supervision who, while under sixteen years of age (is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority), and on the further ground that [Amber Lynn] requires supervision or treatment; and it is therefore . . . Ordered, that this proceeding be and the same hereby is disposed and [Amber Lynn] be and hereby is placed for a period of one year in the custody of the Commissioner of Social Services, for placement as the Department sees fit, subject to further orders of this Court. . . .
In November 2000, Defendant Kelly Potts became Amber's case worker. On November 30, 2000, the Greene County Family Court issued a finding of neglect against Amber's mother. The Court found: that facts sufficient to sustain the petition herein have been established that: Julie B did neglect said children by smoking marijuana in the presence of the children and it is hereby ADJUDGED that the above named children are neglected children as defined in . . . the Family Court Act . . . .
From October 13, 2000 through December 4, 2000, Amber resided in Nazareth Hall at St. Anne. On December 4, 2000, Amber was placed in Hubbard Hall at St. Anne. Amber met Defendant Charles Graham, who was then a St. Anne employee, while in Hubbard Hall.
On March 21, 2001, Amber's mother's boyfriend, Robert Twiss, pleaded guilty to Endangering the Welfare of a Child (smoking marijuana in the presence of Amber and her siblings) in full satisfaction of the charge of Second Degree Sexual Abuse. On March 25, 2001, the Greene County Family Court issued a finding of neglect against Twiss.
On July 1, 2001, the GCDSS and St. Anne's Institute entered into and extended their "Agreement for Purchase of Foster Care for Children." Throughout 2001, St. Anne was licensed by the New York State Office of Children and Family Services ("OCFS") and the State of New York Health and Educational Departments. St. Anne was a residential facility accredited by the OCFS.
In September 2001, St. Anne employee Elecia Rattray came into possession of a diary belonging to one of the student residents, Carla S. The diary recounted sexual relations between Carla S. and Graham. When Rattray confronted Carla S. regarding the veracity of the statements in the diary, Carla stated that they were not true. Rattray Dep. at 145.*fn6 Rattray similarly spoke to Graham who also denied the statements in the diary. Id. at 146. It does not appear that any further action was taken with respect to this incident.
On October 2, 2001, the GCDSS filed a petition to extend Amber's placement at St. Anne for an additional one year. GCDSS also requested a permanency hearing. The GCDSS filed an affidavit in support of the petition. The Greene County Family Court considered the petition on October 29, 2001. On February 21, 2002, the Greene County Family Court issued an order extending Amber's placement at St. Anne for one year.
In or about late November or early December 2001, Amber commenced a sexual relationship with Charles Graham. Amber and Graham engaged in sexual intercourse approximately ten times. It appears that, although Graham clearly abused his position of trust with respect to Amber, the relationship was voluntary to the extent that Amber did not object to Graham's advances, she willingly participated in the sexual activities, and she endeavored to keep their relations secret.*fn7 Amber testified at deposition that nobody from Greene County was aware of her relationship with Graham.
In April 2002, Potts (Amber's case worker) first learned of Amber and Graham's sexual relationship. Potts learned of this from Amber's mother.*fn8 The GCDSS then began making arrangements to have Amber removed from St. Anne. Amber was not actually removed from St. Anne until approximately five days after Potts first learned of the sexual relations.*fn9 OCFS and the police recommended that Amber remain at St. Anne during this period of time because they were fearful that, if Amber was allowed to go home, she would run away from her mother's home to be with Graham or she would alert Graham to the ongoing investigation.
On April 26, 2002, Amber was removed from St. Anne and returned to her mother's home. On November 6, 2002, Amber was discharged from the custody of the GCDSS.
The parties dispute whether, prior to the incident between Amber and Graham, there was more than one other known incident of inappropriate sexual contact between a St. Anne employee and a resident. Plaintiffs contend that the other prior incident involved more than one victim. Plaintiffs also contend that, prior to the Graham incident, Cleo Oliver sexually assaulted a St. Anne resident. There also is testimony in the record concerning allegations of a principal inappropriately touching a student and that a reading teacher was counseled by St. Anne for inappropriately touching a student. The Court will assume that Plaintiffs are correct and that these prior incidents did occur, although it does not appear that all of these prior incidents involved the degree of sexual contact at issue in this case.*fn10
It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 592 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the Court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant is able to establish a basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party, and draws all reasonable inferences in his favor. Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002). However, a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d. Cir. 1998).
a. Procedural Due Process, Fifth Amendment, Eighth Amendment, and 42 U.S.C. § 1981
In her memorandum of law, Plaintiff withdraws her claims of a violation of her procedural due process rights and for violations of the Fifth and Eighth Amendments and 42 U.S.C. ...