The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Plaintiffs, JC and LC, bring this action on behalf of their infant daughter, plaintiff TC, pursuant to 42 U.S.C. § 1983, alleging that defendants violated plaintiffs' due process and equal protection rights in interviewing TC without first notifying JC and LC. Plaintiffs further assert negligence and other analogous state law claims against Defendant, Mark Country Day School (the "Day School"); the Day School director, Janice Finkelstein; and a Day School teacher, Jill Coonelly (collectively the "School Defendants"). All defendants moved for summary judgment pursuant to Fed. R. Civ. P. 56. By order dated April 6, 2006, this Court referred the motions for summary judgment to U.S. Magistrate Judge William D. Wall ("Judge Wall"or "Magistrate Judge") who issued a Report and Recommendation ("R&R") dated July 13, 2006 recommending dismissal of this action.*fn2 After a de novo review of those portions of the R&R to which Plaintiffs object, see Fed. R. Civ. P. 72 (b); 28 U.S.C. § 636(b), this Court modifies the R&R to the extent that the Court finds no state action on the part of Coonelly in reporting TC's conduct to Child Protective Services ("CPS") and adopts Judge Wall's remaining findings and recommendation of dismissal. In addition, due to the sensitive and personal nature of the underlying facts, only the Plaintiffs' initials shall be used in the caption. Furthermore, with the exception of this Memorandum and Order, this action shall be sealed.
The largely uncontested relevant facts were discussed at length in Magistrate Judge Wall's R&R and will be amplified in the Court's discussion only to the extent necessary.
A court may adopt those portions of a report and recommendation to which the parties do not object and with which the court finds no clear error. See Fed. R. Civ. P. 72(b); see also Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). However, the district court applies a de novo standard of review to those parts of the report to which any party objects. See Fed. R. Civ. P. 72(b). Although the School Defendants submit that the Court should apply a clearly erroneous standard in reviewing Judge Wall's R&R because plaintiffs failed to submit "proper objections," see Reply to Objections at 1, plaintiffs, albeit minimally, adequately point to specific sections of Judge Wall's R&R to which they object. Accordingly, the Court reviews the R&R under a de novo standard. See United States v. Tortora, 30 F.3d 334, 338 (2d Cir. 1994). The Court considers such objections and may accept, reject, or modify the recommended decision. See Fed. R. Civ. P. 72(b).
Plaintiffs make the following four objections to the Magistrate Judge's R&R: (1) the Magistrate Judge erred in limiting its state action finding to Coonelly's report of the May 9, 2002 incident of alleged child abuse to CPS; (2) the Magistrate Judge failed to properly apply the summary judgment standard to plaintiffs' due process and equal protection claims; (3) the Magistrate Judge erred in finding no material facts were in dispute as to whether the School Defendants acted in bad faith, with malice or negligence in the reporting of plaintiffs to CPS; and (4) the Magistrate Judge erred in finding qualified immunity where the underlying material issues relating to intent, racial animus or motive were in dispute. See Objections at 2.
Plaintiffs contend that Judge Wall "erroneously limited the scope [of his finding of state] action to Coonelly's call to CPS." See Objections at 3. Specifically, plaintiffs contend that Finkelstein and the Day School were also state actors because Finkelstein conducted "investigatory" questioning of TC, "agreed with and approved Coonelly's actions of reporting the incident to CPS," and was involved in the CPS investigation, when she insisted that the senior caseworker McCray question TC. See Objections at 4. The Court disagrees with plaintiffs and further disagrees with the magistrate judge to the extent that he concluded that any of the School Defendants were state actors under the facts and circumstances of this case.
To establish a claim under § 1983, plaintiffs must demonstrate "(1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985). Traditionally, privately owned schools, which have be likened to other private corporations, such as nursing homes and hospitals, are not state actors. See Rendell-Baker v. Kohn, 457 U.S. 830, 840-43, 102 S.Ct. 2764, 73 L.Ed. 2d 418 (1983). However, in 2000, the Second Circuit held that where a traditionally private entity is acting as "reporting and enforcement machinery for  a government agency charged with detection and prevention of child abuse and neglect," such an entity is a state actor. See Kia v. McIntyre, 235 F.3d 749, 756-57 (2d Cir. 2000), cert. denied, Kia P. ex rel. Mora P. v. New York City, 534 U.S. 820, 122 S.Ct. 51, 151 L.Ed. 2d 21 (2001). In Kia, parents of a newborn baby filed a § 1983 action against a hospital for retaining the baby, who tested positive for methadone and exhibited methadone withdrawal symptoms, after releasing its mother. Id. at 751-53. A hospital social worker, a mandated reporter under state law, notified the local Child Welfare Administration ("CWA"), who began an investigation. Id. at 753. Approximately one week later, the hospital received negative test results from a second methadone test and the newborn was medically cleared for release. Id. However, the hospital did not release the baby until a few days later, when CWA informed the hospital that CWA was not going to seek custody of the newborn. Id. The Second Circuit found that retaining the baby for the first week for medical reasons did not render the hospital a state actor. Id. at 756-57. However, once the newborn received medical clearance and was not released, the hospital was acting as both a "reporting and enforcement machinery [emphasis added] for CWA" and was thus a state actor subject to § 1983 liability. Id.
In applying Kia, the Magistrate Judge found that the School Defendants' "actions in regard to the report to CPS, a report mandated by state law, constituted state action." R&R at 18. The Magistrate Judge did not reach the question of whether Finkelstein or the Day School acted under color of state law because he recommended that plaintiffs' § 1983 action be dismissed for other reasons. Id. The Court disagrees with the Magistrate Judge's finding that Coonelly was a state actor subject to § 1983 liability. The Second Circuit's holding in Kia, turns on the pivotal fact that the hospital retained the newborn even after the newborn received medical clearance for release. Kia, 235F.3d at 756-57. Once the hospital medically cleared the baby for release and continued to retain the baby, the hospital became both a "reporting and [emphasis added] enforcement machinery" for CWA, and thus, a state actor liable under § 1983. Id. at 757.
Here, Coonelly did nothing more than report the incident to CPS. There is no evidence that TC was removed from school or held from her parents by Coonelly, Finkelstein, or any other School employee. In order to constitute state actors, the School Defendants must have served as both a reporting and enforcement mechanism for CPS. See Kia, 235F.3d at 757. Although Coonelly and arguably, the remaining School Defendants, took on a reporting role, they did not take on an enforcement role. Thus, Coonelly and the remaining School Defendants are not state actors and cannot be subject to § 1983 liability.
Moreover, courts have repeatedly found that reporting suspected child abuse alone does not constitute state action. Mione v. McGrath, 435 F. Supp. 2d 266, 272 (S.D.N.Y. 2006) (finding that hotel employees did not act under color of state law when they contacted state child welfare authorities to report suspected child abuse by a hotel guest); Storck v. Suffolk County Dep't of Soc. Servs., 62 F. Supp. 2d 927, 941 (E.D.N.Y. 1999) (finding physicians who reported their suspicions of child abuse pursuant to state statute did not render such doctors state actors); Deckon v. Chidebere, No. 93 Civ. 7965, 1995 WL 555684, at * 3-4 (S.D.N.Y. Sept. 19, 1995) (finding no state action where hospital reported suspected child abuse to government agency when newborn baby tested positive for cocaine and retained the baby because she did not meet minimum weight requirements for discharge); Thomas v. Beth Israel Hosp., 710 F. Supp. 935 (S.D.N.Y. 1989) (finding no state action where hospital reported suspected child abuse pursuant to NYS Child Protective Services Act). Courts have also found that a private person does not become involved in joint action with a law enforcement agency simply by furnishing information to officers or the agency. See Johns v. Home Depot U.S.A., Inc., 221 F.R.D. 400, 404 (S.D.N.Y. 2004) (private party who calls for police assistance is not rendered a state actor under § 1983 even if the call caused plaintiff's detainment); see also Gallo Loecks ex rel. T.L. v. Reynolds, 34 Fed. Appx. 644, 650 (10th Cir. 2002); Lockhead v. Weinstein, 24 Fed. Appx. 805, 806 (9th Cir. 2001).
Plaintiffs also contend that Finkelstein and the Day School constitute state actors because Finkelstein conducted "investigat[ive]" questioning of TC and that Finkelstein "agreed with and approved Coonelly's actions of reporting the incident to CPS." Objections at 4. However, Finkelstein's questioning of TC took place prior to Coonelly's report to CPS and was not on behalf of CPS. Moreover, no School Defendant was present during any CPS or County official interview of TC. See McCray Dep. at 30-31.
Plaintiffs further contend that Finkelstein insisted a CPS senior case worker question TC a second time, thereby furthering CPS' investigation. See Objections at 4 (citing McCray Dep. at 36-37). However, the case worker testified that, upon questioning TC a second time, the case worker herself wanted to clarify a situation that "happened with another child." Id. When the case worker was asked who she met with before questioning TC a second time, she responded, "I don't recall." Id. No reasonable inference can be drawn that Finkelstein insisted the case worker question TC a second time, let alone that the case worker met with Finkelstein before the case worker questioned TC a second time. Thus, Finkelstein's actions cannot be considered an enforcement role on ...