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Estiverne v. Esernio-Jenssen

July 31, 2008


The opinion of the court was delivered by: Gershon, United States District Judge


Plaintiffs Mario Estiverne and Nativida Antoine (the "Adult Plaintiffs"), individually and on behalf of their infant children, Andrew Estiverne, Dyan Estiverne, and Mario Estiverne, Jr. (the "Infant Plaintiffs"), bring this action alleging, as against defendants Debra Esernio-Jenssen, M.D., Long Island Jewish Medical Center ("LIJ"), and North Shore - Long Island Jewish Health Systems, Inc. (together, "Medical Defendants"), various violations of federal and state law stemming from the allegedly improper medical treatment and detention of the Infant Plaintiffs and, as against defendant John Johnson ("Johnson"), individually and as Commissioner of the New York State Office of Children and Family Services ("OCFS"), a violation of Adult Plaintiffs' federal due process right to work in their chosen profession. Plaintiffs also seek attorney's fees from Johnson with regard to injunctive relief previously granted by this court. Medical Defendants and Johnson move separately to dismiss all claims under Fed. R. Civ. P. 12(b)(6). For reasons set forth below, Defendant Johnson's motion is granted; Medical Defendants' motion is denied in its entirety.


I. Facts

The factual allegations in plaintiff's complaint are taken as true for purposes of this motion. On November 27, 2004, Antoine noticed her nine-month-old son, Andrew, favoring his right wrist, which was slightly swollen. She took Andrew to the emergency room of Schneider Children's Hospital ("Schneider"), operated by defendant LIJ.*fn1 Doctors at Schneider discovered a routine, minor fracture in Andrew's wrist and placed it in a cast. To determine whether he had bone disease, a pediatric orthopedic physician scheduled magnetic resonance imaging ("MRI") of Andrew's wrist for November 29, 2004.

Schneider doctors then asked Dr. Esernio-Jenssen to examine Andrew. The complaint alleges that, during the period November 2004 through September 2005, Dr. Esernio-Jenssen was a physician allegedly under contract with the Administration for Children's Services ("ACS"), a child protective service operated by the City of New York and authorized to investigate complaints of child abuse and neglect, as a medical expert to examine children in ACS's protective custody, to assist and advise ACS regarding the investigation and prosecution of cases of alleged child abuse and neglect, and to testify as an expert in child abuse and neglect cases in the New York family court.*fn2 During this same period, the complaint alleges, Dr. Esernio-Jenssen was under contract with LIJ and/or North Shore to examine and treat children who were patients at Schneider. The complaint further alleges the following:

Although licensed as a physician, defendant Esernio-Jenssen has become a zealot in detecting cases of supposed child abuse and in removing supposedly abused children from their parents. Defendant Esernio-Jenssen is well-known in the professional community for diagnosing children as suffering from child abuse, when the children have not been abused and where the children's medical signs and symptoms are inconsistent with child abuse. . . . Esernio-Jenssen is known for diagnosing children as having been severely shaken, even when the children do not show any medical signs of whiplash shaken infant syndrome, also known as 'shaken baby syndrome.'

According to plaintiffs, on November 29, 2004, Dr. Esernio-Jenssen conducted a hasty, superficial, and medically inadequate examination of Andrew. Dr. Esernio-Jenssen concluded that Andrew's fracture had been caused by child abuse; specifically, one or both adult plaintiffs held Andrew by the arm and shook him so violently that his arm fractured. However, according to plaintiffs, Andrew's fracture was not consistent with child abuse; he showed no medical signs or symptoms of having been shaken, and did not require inpatient care. Rather, they assert, Andrew's injury was "probably incurred accidentally, when [he] fell while learning to walk." Complaint ¶ 52. Dr. Esernio-Jenssen, along with defendants North Shore and LIJ, took Andrew into protective custody, refusing to discharge him to his parents. Dr. Esernio-Jenssen cancelled the MRI and ordered that Andrew be given a "skeletal survey," or a full body x-ray, without plaintiffs' consent and for investigative rather than medical reasons. Also, she reported to the New York State Central Register of Child Abuse and Maltreatment ("Central Register") that she suspected Andrew had been abused and that Estiverne and Antoine were the perpetrators.*fn3 According to plaintiffs, Dr. EsernioJenssen knew her allegations of abuse were false or made them with reckless disregard for the truth.

The Central Register forwarded Dr. Esernio-Jenssen's report to ACS for investigation. On November 29, 2004, ACS assigned the case to its Instant Response Team, which determined that no arrest or removal was necessary because the injury was accidental. On the same day, however, ACS sent an additional team (the "Second ACS Team") to investigate the allegations of abuse.*fn4 The Second ACS Team, together with Dr. Esernio-Jenssen, questioned Antoine about Andrew's condition. Antoine represented she did not know the cause of Andrew's injury. Dr. Esernio-Jenssen informed the Second ACS Team that Andrew could not have injured his wrist accidentally and that his injury must have been caused by an adult who grabbed him by the arm and shook him. Further, Dr. Esernio-Jenssen stated that Andrew's condition was not caused by bone disease. Plaintiffs assert that, as a pediatrician and not an orthopedist, Dr. Esernio-Jenssen was not qualified to offer such an opinion and, further, that the Second ACS Team knew or should have known that Dr. EsernioJenssen was unqualified to give this opinion.

According to the complaint, Dr. Esernio-Jenssen has a long history of giving incorrect and misleading diagnoses to ACS. Further, plaintiffs assert, the Second ACS Team knew or should have known that Dr. Esernio-Jenssen was an unreliable source of information.

On November 30, 2004, the Second ACS Team asked the Pediatric Radiologist at Schneider who had reviewed Andrew's x-rays, Dr. Barley, whether Andrew's injury was deemed suspicious or indicative of abuse, to which Dr. Barley replied "I didn't say abuse. I'm sticking with my observation of the fracture." That same day, the Second ACS Team took Andrew into the custody of the City of New York and instructed Schneider and Dr. Esernio-Jenssen not to allow adult plaintiffs to remove Andrew from the hospital. Plaintiffs assert that this order was illegal and that defendants knew or should have known of the illegality.

On December 1, 2004, ACS commenced child protective proceedings in New York Family Court, charging that plaintiffs had abused the infant plaintiffs.*fn5 Based on allegedly false representations made to it, the Family Court ordered Infant Plaintiffs removed from Adult Plaintiffs' custody and placed in foster care. Beginning December 2004 and until August 2005, ACS required Adult Plaintiffs to receive instruction on parenting skills and anger management, and to receive individual psychotherapy before allowing Infant Plaintiffs to be returned to their care. On September 16, 2005, ACS withdrew the Family Court petition against plaintiffs and the case was dismissed.

Meanwhile, on January 25, 2005, ACS notified Adult Plaintiffs that a report had been made against them in the Central Register and found indicated.*fn6 Plaintiffs were informed they had 90 days to request expungement, see N.Y.S.S.L. § 422(8), which they failed to do. However, nearly a year later, on January 6, 2006, plaintiffs asked Johnson to seal or expunge their records in the Central Register or, in the alternative, provide adult plaintiffs a name-clearing hearing. Because 90 days had passed since Adult Plaintiffs received notice, Johnson denied the request to seal the records.

II. Procedural History

Plaintiffs filed the instant complaint on December 13, 2006. In addition to Medical Defendants and Johnson, the complaint also named the City of New York, its commissioner, John Mattingly, and several of its caseworkers and supervisors (the "City Defendants"). On July 5, 2007, the Court dismissed with prejudice the action against the City Defendants pursuant to a stipulation of dismissal between them and plaintiffs.

On July 6, 2007, the court held oral argument on plaintiffs' motion for a preliminary injunction against Johnson in his official capacity seeking an order that the State immediately provide Antoine with a name-clearing hearing. Antoine, representing she was then scheduled to begin a clinical rotation in pediatric nursing in August 2007, argued she would suffer irreparable injury if her prospective employer, upon submitting a mandatory inquiry to the Central Register with regard to her application, was not timely informed that Antoine was not the subject of an indicated report.*fn7 If the State waited to provide a hearing until receiving an inquiry, she argued, the inevitable delay between inquiry and response would, in effect, put that employer on notice of an indicated report. The court found Antoine had shown a clear likelihood of success on the merits of her due process claim and ordered Johnson, inter alia, to provide her an immediate hearing on her application to amend and seal her child abuse report in the Central Register and issue a determination by July 31, 2007. See Order, July 6, 2007, Docket Entry 67. As a result of this order, Antoine received a hearing which resulted in the amendment of her report from "indicated" to "unfounded."


I. Standard of Review

On a motion to dismiss, plaintiff's factual allegations must be accepted as true, and the court must draw all reasonable inferences in favor of plaintiff. Zinermon v. Burch, 494 U.S. 113, 118 (1990). The court's function is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, ___ U.S.___, 127 S.Ct. 1955, 1964 (2007) (internal quotation marks, citations, and alterations omitted). Indeed, a plaintiff must assert "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. This "plausibility standard" is a flexible one, "oblig[ing] a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir. 2007).

II. Claims Against Johnson

Of the thirteen claims asserted in the complaint, only Counts XI, XII, and XIII are against Johnson. In their opposition to his motion to dismiss, plaintiffs withdraw Counts XI and XII. Count XIII alleges that Johnson "has a policy of failing to provide individuals whose names are listed on the Central Register with name-clearing hearings prior to disclosing said names to prospective employers and licensing organizations." Based on this claim, plaintiffs seek damages from Johnson in his personal capacity.*fn8 Plaintiffs also seek a declaration that defendant Johnson's practice of denying a name-clearing hearing to plaintiffs violates the First and 14th Amendments.

OCFS has provided plaintiff Antoine a hearing in accordance with this court's order of July 6, 2007 granting plaintiff's request for preliminary injunctive relief. As a result of this hearing, the status of the report concerning adult plaintiffs in the Central Register was amended from "indicated" to "unfounded." Therefore, plaintiffs' request for permanent injunctive relief is moot.

Further, although "[i]n certain circumstances it may be possible for a claim of declaratory relief to survive, notwithstanding the mootness of a companion claim for an injunction," Campbell v. Greisberger, 80 F.3d 703, 706 (2d Cir. 1996), such circumstances are not present here. Indeed, "[a] litigant may not use the declaratory judgment statute to secure judicial relief of moot questions."

Christopher P. v. Marcus, 915 F.2d 794, 802 (2d Cir. 1990). "In determining whether a controversy has become moot, the relevant inquiry is 'whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Id., quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). Here, the controversy between plaintiffs and Johnson is not only without immediacy, but fully resolved. The declaratory relief sought, if granted, would be without practical implication. Id.; see also Browning Debenture Holders' Comm. v. Dasa Corp., 524 F.2d 811, 817 (2d Cir. 1975) (where "the remedy sought is a mere declaration of law without implications for practical enforcement upon the parties, the case is properly dismissed"). Therefore, plaintiffs' request for declaratory relief is also moot.*fn9

Accordingly, claims against Defendant Johnson for permanent injunctive and declaratory relief are dismissed as moot. His motion to dismiss these claims is therefore granted, not on the merits, ...

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