The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Sonny Southerland, Sr. ("Southerland") commenced this action, on his own behalf and on behalf of his children, Venus, Sonny Jr., Nathaniel, Emmanuel, Kiam, and Elizabeth ("plaintiff children"), against defendants the City of New York ("City"), Timothy Woo ("Woo"), and John Does 1-9, seeking compensatory and punitive damages for injuries allegedly caused by a decision of the New York State Family Court, Kings County, to remove Southerland's children from his custody. Plaintiffs allege in their amended complaint*fn1 that defendants are liable under 42 U.S.C. § 1983 for violations of plaintiff's rights under the Fourth and Fourteenth Amendments.*fn2 Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, defendants' motion is granted.
The following facts are drawn from the parties' depositions, affidavits, exhibits, and Local Rule 56.1 statements. Disputes are noted.
On May 29, 1997, a school guidance counselor reported to the New York State Central Registry ("SCR") child abuse hotline that Ciara Manning, who was sixteen years old at the time, . . . is emotionally unstable. Fa[ther] fails to follow through with mental health referrals. On May 12, 1997, the ch[ild] swallowed a can of paint. F[ather] failed to take the ch[ild] for medical attention. Fa[ther] is unable to control or supervise the ch[ild]. She may be staying out of the home in an improper environment.
Def. Exh. A, Intake Report of Office of Children and Family Services Child Protective Services, May 29, 1997. Ciara Manning is the daughter of plaintiff, Sonny Southerland, and Diane Manning. On May 29, 1997, the report was transmitted to the Brooklyn Field Office of the Administration for Children's Services ("ACS"). Fritz Balan ("Balan"), an ACS supervisor, assigned ACS caseworker Timothy Woo to investigate the allegations in the report.
Woo immediately began an investigation based on the report. Because ACS had already opened a case with respect to Ciara's mother, Diane Manning, Woo looked at those files first. Based on those files, Woo determined that Ciara had several younger siblings and that Ciara was reported to be living with her father, Sonny Southerland, in Brooklyn.*fn3 Woo Affidavit ¶ 5; Balan Affidavit ¶ 4. Woo contacted the school guidance counselor who had called in the report, and the counselor informed him that Ciara had swallowed paint at school, that she was being aggressive, was acting out, and expressing thoughts of suicide. According to Woo's notes from the telephone conversation with the counselor, the counselor had "problems trying to get fa[ther's] attention," and the "father did not approve of the place where [Ciara] was staying."*fn4 Plaintiff's Exh. A, Woo's Notes from Telephone Conversation.
That same day, on May 29, 1997, Woo attempted to visit the Southerland apartment where he believed Ciara was residing. Since no one answered the door, he left a note with his contact information. On May 30, 1997, Southerland telephoned Woo. The parties dispute whether Southerland refused to permit Woo to visit the home during their telephone conversation. Plaintiff Southerland described Ciara as a runaway who would not listen, see Woo Declaration, ¶ 8, and suggested he come down to ACS to discuss the investigation with Woo.
Southerland came to the ACS office later that day and, according to Woo and Balan, was "quite belligerent and confrontational." He stated that Ciara did not require psychiatric help, that "she was only acting the way she did to get attention." Woo Declaration, ¶ 10; Balan Declaration, ¶ 7. Southerland testified that he told Woo that Ciara had run away, that he had obtained PINS warrants against her, and advised Woo to speak with the school officials. Plaintiff's Exh. F, Southerland Dep., p. 139. Woo reported in his case notes that when he asked Southerland why he did not seek medical attention for Ciara, Southerland did not answer.*fn5 Def. Exh. B, Woo's Progress Notes of Case, p. 1. According to Southerland's deposition testimony, Southerland asked to speak with Balan, who told him that if he did not do as Balan asked, Balan would take Southerland's children away and he would never see them again.
Id. p. 140. When Woo said he needed to make a home visit, Southerland responded, "as long as he notified me no problem." Plaintiff's Exh. F, Southerland Dep., p. 207. Southerland further states that Woo said he would call Southerland, but Woo never called again. Also during Southerland's visit at ACS, Woo explained the services that were available to assist Southerland and his children, such as family counseling, assistance obtaining food, furniture, or clothing. Southerland refused such assistance.
On June 2, 1997, Woo attempted to visit the Southerland apartment a second time. A woman answered the door and said that Southerland was not at home. On June 3, 1997, Woo again went to the apartment, heard noises inside, but no one answered the door. On June 4, 1997, Woo waited in the hall outside the apartment for several minutes until about 9:30 am, when Southerland came out of the apartment with five school-age children, Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam, and said he was taking them to school.*fn6 Southerland stated that he did not have time to talk because he had to take the children to school. Woo gave Southerland an ACS business card and informed Southerland that if he continued to be uncooperative, then ACS would seek court action. See Plaintiff's Exh. B, Woo's Progress Notes of Case.
On June 6, 1997, based on the directions of his supervisor, Balan, Woo applied to Family Court for an order to enter the Southerland apartment pursuant to Family Court Act § 1034(2).*fn7
ACS policy is to investigate and assess the home environment of the child named in a report of suspected abuse or maltreatment of the type referred to in Section 1034(2) and of any other children residing in the same home. See Def. Exh. B, Child Protection Services memo from Assistant Administrator Special Services for Children, p. 5 (stating that "[l]ocal commissioners or Social Services have been delegated the responsibility to investigate or cause to be investigated reports of suspected abuse and maltreatment of children . . . . The law also mandates that, if necessary, such cases should be brought before the Family Court for adjudication"). On the application, Woo listed Ciara and the children of Ciara Manning's mother, who were named in the open case regarding Ciara's mother, but failed to list the names of the children he had met with Southerland on June 4, 1997.*fn8 The Manning children, however, were not the children living in the Southerland apartment.*fn9 The Family Court issued the Order to Enter the same day, June 6, 1997.
On the evening of June 9, 1997, Woo and another caseworker entered the Southerland apartment with the assistance of officers from the New York Police Department ("NYPD"). Woo determined that there were six children between the ages of three and nine residing in the apartment. He listed their names as Venus, Sonny Jr., Nathaniel, Emmanuel, Kiam, and Elizabeth Felix. Soon after beginning his evaluation of the home, Woo called his supervisor on his cell phone, described his observations, and answered his supervisor's questions. Woo reported that the four boys slept on the floor in one bedroom and the two girls slept on a cot in another bedroom.*fn10 The children appeared as though they had not been bathed in days and their clothing was malodorous.*fn11
In the refrigerator, Woo found only beer, a fruit drink, and English muffins. Woo did not examine the contents of the kitchen cupboards.*fn12 The other caseworker observed that one child, Venus, was limping because of a foot injury. The child stated that she had stepped on a nail.*fn13 The caseworker concluded that Southerland had not sought medical attention for her. Woo reported that the only light source in the bedroom area was from a blank television screen. Woo observed an electric lamp on the floor, without a shade, connected to an outlet in the living room by means of several extension cords along the floor.*fn14 Woo reported that another room contained stacks of electronic equipment.*fn15 Woo and his supervisor concluded that the children's safety was threatened, and Balan directed Woo to remove the children from the home.
Woo and Balan state that various factors contributed to this determination, including the seriousness of the original allegation, which involved a suicide attempt by Ciara, a teenager, Southerland's failure to seek medical assistance for her after she swallowed paint, his apparent resistance to allowing ACS to visit his home, and his refusal to accept any services or assistance in obtaining food, furniture, or clothing for the children. Those facts, in addition to the conditions observed in the home with respect to plaintiff children, including lack of food, Southerland's failure to seek medical attention for the child with the injured foot, lack of adequate light, the dangerous use of multiple extension cords for the electronic equipment, the children's dirty clothes, established in Balan's and Woo's minds that Southerland could not parent the children responsibly.*fn16
In the early morning of June 10, 1997, at Balan's direction, Woo carried out an emergency removal of the children from Southerland's apartment. Woo took the children to the ACS pre-placement emergency shelter and arranged for emergency foster care. During the course of the investigation,*fn17 Woo also interviewed Ciara Manning, who he found living with a friend. She reported that her father had sexually abused her over the course of eight years and threatened to kill her if she told anyone.*fn18 Also, after their removal, the Southerland children told caseworkers that their father and a female companion, Vendetta Jones, hit them with belts and other objects, causing welts and bruises.*fn19
On June 13, 1997, verified petitions pursuant to Article Ten of the Family Court Act were filed in family court against Southerland and Jones. The petitions alleged that Southerland had been abusing his daughter, Ciara, since she was eight years old, and that the other children's "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of their parents . . . to exercise a minimum degree of care." Def. Exh. E, Petition. The petition also alleges that respondents did not provide adequate shelter, that the children were at risk of injury from dangerous conditions at home, that they were provided inadequate food and clothing, were subject to neglect of hygiene, untreated medical conditions, and failure to cooperate with the ACS investigation. On June 27, 1997, amended verified petitions included allegations that Southerland had used excessive corporal punishment on the children, including the use of broom sticks, exercise equipment, and other objects that caused welts and bruises. He allegedly punished the children for taking food without permission by hitting them. Respondent Jones allegedly hit the children with a Nike belt and the children had observed Southerland hit Jones on several occasions.
On July 1, 1998, after a five day trial, the Family Court determined that Southerland had engaged in excessive corporal punishment, abused and neglected his children, and had sexually abused his daughter Ciara. The Court ordered that the children remain in foster care. The Appellate Division, Second Department, affirmed these orders, and the Court of Appeals denied leave to appeal.
A year later, in June 1999, plaintiff Southerland, proceeding pro se, filed this complaint against more than 40 defendants for the allegedly wrongful removal of the children from his custody by ACS in June 1999. On February 1, 2000, this Court granted defendants' motion to dismiss the complaint. Plaintiff appealed, and in April 2001, the Second Circuit affirmed in part, reversed in part, and remanded the action. The Second Circuit agreed that this Court was precluded from "review of the New York state family court decisions subsequent to the seizure of Southerland's children." Southerland v. Rudolph Giuliani, et al., 4 Fed. Appx. 33, 37 (2d Cir. 2001). However, the Second Circuit reversed this Court's dismissal of plaintiff Southerland's complaint alleging claims under Section 1983 for violation of his procedural and substantive due process rights under the Fourteenth Amendment.*fn20
The Circuit Court remanded the case, noting that "[Southerland's] allegation that his children were abused in foster care by Joyce Baldwin may state an additional due process claim." Id. Because plaintiffs have not made this claim in their Amended Complaint following the remand and Joyce Baldwin and Saint Joseph for Children and Family Services*fn21 have been dismissed as defendants in this action, I conclude that the plaintiffs have abandoned this claim.
The Circuit's holding was limited to the claims brought directly by Southerland because Southerland, as a non-attorney parent, must be represented by counsel when bringing an action on behalf of his children. Southerland v. Rudolph Giuliani, et al., 4 Fed. Appx. 33, 36 (2d Cir. 2001)(citing Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)).*fn22 Subsequent to the remand, I appointed counsel to represent Southerland and his children. Through appointed counsel, Michael G. O'Neill ("O'Neill"), plaintiffs filed an amended complaint in November 2002, asserting the claims under Section 1983 listed above. The amended complaint named caseworker Timothy Woo and the City of New York and added John Does 1-9 as defendants.
In March 2004, Sonny, Jr. and Venus returned to live in their father's home.
In April 2004, I granted O'Neill's request to withdraw as counsel for Southerland who elected to proceed pro se. Counsel continued, however, to represent the children. I also appointed a guardian ad litem to represent the children's interests.
In October 2004, Nathaniel was discharged from the juvenile justice system by the Office of Children and Family Services. Around the same time, Emmanuel was also discharged from a juvenile justice facility. Both boys returned to the Southerland home. Kiam and Elizabeth remain in foster care. ACS has ...