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Orlik v. Dutchess County

March 16, 2009

SHERYL ORLIK, INDIVIDUALLY AND ON BEHALF OF JARED ORLIK, MINOR CHILD, PLAINTIFFS,
v.
DUTCHESS COUNTY, STATE OF NEW YORK, ROBERT B. ALLERS, IN HIS CAPACITY AS COMMISSIONER OF SOCIAL SERVICES, ASHLEY TILTON, INDIVIDUALLY AND AS CASEWORKER, ANN WOOSLEY, INDIVIDUALLY AND AS SUPERVISOR, NETTER E. THOMAS, INDIVIDUALLY AND AS CASEWORKER, DAVID GARCIA, INDIVIDUALLY AND AS SUPERVISOR, IRENE MAGALSKI, INDIVIDUALLY AND AS DEPUTY COMMISSIONER, ALL OF THE DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES AND DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Conner, Senior D.J.

OPINION AND ORDER

ECF CASE

Plaintiff, Sheryl Orlik, individually and on behalf of her son, Jared Orlik ("Jared"), sues Dutchess County, State of New York; Robert B. Allers ("Allers"), in his capacity as Commissioner of Social Services; Ashley Tilton ("Tilton"), individually and in her capacity as case worker; Ann Woolsey ("Woolsey"), individually and in her capacity as supervisor; Netter E. Thomas ("Thomas"), individually and in her capacity as case worker; David Garcia ("Garcia" and, together with Allers, Tilton, Woolsey and Thomas, the "individual defendants"), individually and in his capacity as supervisor; and the Dutchess County Department of Social Services ("DSS" and, together with Dutchess County, State of New York and the individual defendants, the "defendants")*fn1 . Plaintiff sues under 42 U.S.C. § 1983, alleging various claims arising out of defendants' allegedly wrongful removal of Jared from the custody of plaintiff. Defendants now move for summary judgment, on the ground that the individual defendants are entitled to qualified immunity. For the reasons stated herein, defendants' motion is granted with respect to Tilton, Woolsey, Thomas and Garcia and considered moot with respect to Allers.

BACKGROUND

Unless otherwise indicated, the following facts are undisputed.

At all times relevant to this suit, Allers was the Commissioner of DSS; Thomas was a case worker at the Child Protective Services Unit ("CPS") of DSS and assigned to investigate a report of abuse or maltreatment of Jared; Garcia was a CPS case supervisor and Thomas's direct supervisor; Tilton was a case worker at the Foster Care Unit ("FCU") of DSS and assigned to Jared's case; and Woolsey was an FCU case supervisor and Tilton's direct supervisor. (Defs. R. 56.1 Stmt. ¶¶ 1-6.)

Jared was born at 35 weeks gestation on January 30, 2005 at Vassar Brothers Hospital (the "Hospital") in Poughkeepsie, New York. (Id. ¶¶ 7-8.) At that time, he was placed in the neonatal intensive care unit, where he remained until February 11, 2005. (Id. ¶¶ 8-9.) From February 11, 2005 to February 15, 2005, Jared was kept in the Hospital's "well baby nursery." (Id. ¶ 9.)

On February 3, 2005, the New York State Central Registry for Child Abuse and Maltreatment received a report from Andrea Pesavento ("Pesavento"), an employee of the Hospital, regarding plaintiff, which report stated that:

Mother appears overwhelmed with chronic pain, pre-occupied with her craving for medication, and unprepared for meeting the needs of her newborn son; consequently, there is a concern that Jared is at risk of harm in mother's care.

Mother has been "vague and evasive" in answering sources questions.

Mother has complained about headache and chronic pain and she has asked for particular medication to treat her pain; she has been examined by multiple specialists and medical findings are inconclusive. Mother has not notified Jared's father about his birth.

Jared was born at 35 weeks gestation; he will remain in neo-natal unit until next week. (Id. ¶ 10.) On February 15, 2005, Pesavento filed a report directly with DSS, in which she noted that medical staff from the Hospital expressed "concerns that [plaintiff] displayed 'drug seeking' behavior and had concerns about her providing for her newborn." (Id. ¶ 11.)*fn2

On February 3, 2005, Garcia was the "supervisor on call to receive Central Registry referrals" and "[h]e assigned the investigation of the [Hospital] report to [] Thomas." (Id. ¶ 12.) Thomas then carried out an investigation, pursuant to which she learned that Dr. Benjamin Abastillas, a psychiatrist, had a consultation with plaintiff on February 1, 2005, while plaintiff was hospitalized, from which consultation Dr. Abastillas had "'questions about [plaintiff's] ability to care for her newborn infant,'" felt that she was "'evasive and self-contradictory'" and suspected "'drug seeking behavior.'"*fn3 (Id. ¶ 13.) Thomas also learned that, on February 1, 2005, plaintiff had a pain consultation with an anesthesiologist, who noted that she had "'15-20 ER visits c/o HA always requesting Demerol'" and also noted that she was currently on a "Duragesic Patch." (Id.) Thomas also spoke with Denise Bolds ("Bolds") of MVP, plaintiff's insurance carrier, from whom Thomas learned that plaintiff had made two emergency room visits to Benedictine Hospital in Kingston, New York and several other emergency room visits to Vassar Brothers Hospital. (Id. ¶ 14.) Bolds also told Thomas that plaintiff "had been advised to obtain a primary care physician to manage her pain issues, she went to the emergency room frequently complaining of migraines and would request Morphine and that she was not in compliance with the advice of her OB/GYN, Dr. [Dean] Bloch."*fn4 (Id. ¶¶ 15, 17.)

Thomas also "obtained correspondence and records from [the Hospital] with respect to [plaintiff's] numerous visits to its emergency room during her pregnancy." (Id. ¶ 16.) Those correspondence and records revealed the following: (1) on August 20, 2004, plaintiff complained of a migraine headache and toothache and was given Demerol; (2) on August 31, 2004, plaintiff complained of a migraine headache and vomiting and was given Demerol and advised to follow up with the Hospital's OB/GYN clinic; (3) on September 17, 2004, plaintiff complained of a migraine headache "since [that] morning," was given Demerol and was advised to follow up with her doctor if she had further problems; (4) on September 20, 2004, plaintiff complained of a migraine headache, neck pain and nausea, was given Demerol and advised to follow up at the Hospital's clinic and with a neurologist; (5) on September 22, 2004, plaintiff complained of "migraine and jaw pain since 'this AM,'" was given Demerol and told to "'follow up with primary'"; (6) on October 3, 2004, plaintiff complained of migraines "since AM" with abdominal pain, was given an initial shot of Demerol and a second shot one hour later "after reporting no relief," and was also referred to her OB/GYN physician, Dr. Herde, who was Dr. Bloch's partner and who had, one month earlier, "warned her to limit her narcotic use and had given her a prescription for Percocet"; (7) on October 24, 2004, plaintiff complained of a headache "since AM" and was given "an initial IV of Demerol and then[,] two hours later[,] a second IV"; (8) on October 26, 2004, plaintiff went to the emergency room "with complaints of tooth pain wanting 'pain relief,'" the hospital record notes that she was "a pregnant Demerol user; informed that [the Hospital] cannot facilitate her analgesic needs due to her pregnancy and possible SE on fetus . . . [p]atient is offered Vidocaine and injected locally"; (9) on December 4, 2004, plaintiff complained of a migraine headache "since this am," and received Demerol; (10) on December 6, 2004, plaintiff complained of a "migraine and neck pain," the "ER staff noted that she was 'well known to ED,'" and she was given Demerol and Percocet; (11) on January 7, 2005, plaintiff went to the emergency room complaining of a "migraine with jaw and neck pain," she was given Demerol and told to follow up with her personal physician and a neurologist; (12) on January 22, 2005, plaintiff went to the emergency room complaining of a migraine headache with vomiting, she was given Demerol and Hospital staff discussed with plaintiff "issues of narcotic treatment in pregnancy including possible PTC and post-partum withdrawal by fetus. Patient is aware of risks and requests narcotics despite risks. Will give low dose Demerol/Phenergan if patient can procure a ride home." Before leaving, plaintiff told the Hospital staff that she wanted additional medication because her pain "remained"; (13) on February 6, 2005, which was six days after the birth of Jared, plaintiff "went to the emergency room complaining of a migraine headache and she received an initial dose of Demerol and then a second before leaving." (Id.)

Defendants aver that Thomas, in connection with her investigation, spoke with Dr. Bloch and obtained records from him; however, plaintiff "denies that [] Thomas spoke with Dr. Bloch before the removal of [] Jared." (Id. ¶ 17; Pls. R. 56.1 Counterstmt. ¶ 17.) According to Dr. Bloch, plaintiff came to his practice prior to Jared's birth, on August 30, 2004 for a "'consult to see if she would like our practice.'" (Defs. R. 56.1 Stmt. ¶ 18.) Dr. Bloch avers that, during that visit, she inquired about "'Tylenol 3's for pain relief.'" (Id.) Dr. Bloch's chart also reflects that his staff "'discussed office policies [with plaintiff] - Narcotic pain relief definitely not recommended for chronic conditions [without] expectation of resolving soon. Strongly advise - getting a PCP*fn5 who can COORDINATE all health issues and work [with] us in pregnancy care.[']" (Id. ¶ 19 (emphasis in original).) Plaintiff returned to Dr. Bloch on September 2, 2004 and was seen by Dr. Christine Herde, whose records reflect that she "'[d]iscussed plan for pregnancy [with plaintiff] and that narcotic usage must be limited. Plan to develop agreement to only use approx. 3 to 4 pills daily at maximum." (Id. ¶ 20.) According to defendants, Dr. Bloch also advised Thomas that "he was not in agreement with [plaintiff's] behavior and that he wanted her to get a primary care physician but she failed to do so. He also disagreed with her constant visits to the emergency room."*fn6 (Id. ¶ 21.) Dr. Bloch also sent a letter to Thomas concerning plaintiff, in which letter Dr. Bloch expressed "concerns about [plaintiff's] need for pain medicine and the strong possibility of addictive behavior."*fn7 (Defs. Mot. Summ. J., Ex. X.)

Pursuant to her investigation, Thomas "also checked the Town of Poughkeepsie police records" and learned that Jesse Russel, Jared's father, had "kicked [plaintiff] in the back and had kicked her in the stomach [on January 22, 2005,] when she was five months pregnant." (Defs. R. 56.1 Stmt. ¶ 23 (citing Defs. Mot. Summ. J., Ex. Y).) Defendants state that, "[d]espite this history, [plaintiff] listed [] Russell on the [Hospital] emergency room form as either her primary contact or spokesperson." (Defs. R. 56.1 Stmt. ¶ 24.)

Thomas also made an unannounced visit to plaintiff's home during the course of Thomas's investigation. (Defs. Mot. Summ. J., Ex. H at 3.) Thomas's report reflects that, during that visit, plaintiff "stated that Dr. Bloch gave her pain medication once and a lady Dr. gave her pain medication once," that, at present, "she was taking . . . Vicodyn" and that, when asked "if she took Vicodyn during the time she was pregnant," plaintiff said that she did not.*fn8 (Id.) Defendants aver that "[Hospital] records revealed that [plaintiff] was currently taking Ativan, Percocet and wore a fentanyl patch" and that "[e]mergency [r]oom records . . . documented [plaintiff's] continued receipt of Demerol at each emergency room visit during her pregnancy[,] which she did not acknowledge when asked about drug use during her pregnancy." (Defs. R. 56.1 Stmt. ¶¶ 26-27.) Thomas also spoke to plaintiff's mother, Angela Orlik, who "stated that she yells at her [daughter, plaintiff] about her drug use." (Defs. Mot. Summ. J., Ex. H at 3.) Angela Orlik disputes this portion of Thomas's report and states that "[t]he allegation that [she] yelled at [her] daughter about her drug use is not true." (A. Orlik Aff. ¶ 2.)

Thomas and her supervisor, Garcia, decided that they had obtained enough information to request that DSS "file a petition seeking temporary removal of Jared." (Defs. R. 56.1 Stmt. ¶¶ 30-31.) "It is [DSS] that brings the [temporary removal] proceeding, not the individual assigned caseworker or individual case supervisor."*fn9 (Allers Aff. ¶ 7.) "In this case[,] the matter was reviewed by counsel [for DSS] and discussions were also held with [] Magalski, the Deputy Commissioner, and Ms. Bonnerworth, the head of the Children's Services Unit."*fn10 (Defs. R. 56.1 Stmt. ¶ 33.) Defendants aver that, after the matter was reviewed, "the decision was made to proceed to court and [] Thomas's affidavit and the supporting petition were prepared and brought to [] Allers for final review and signature"*fn11 because Allers, as the Commissioner of DSS, is the individual designated under DSS policy to sign all petitions. (Id. ¶¶ 34-35.) Allers neither directly participated in nor supervised this case; rather, he relied on the "expertise and thoroughness of staff of CPS and supervisors and the review by counsel." (Id. ¶¶ 36-37.)

On February 10, 2005, DSS sent a letter, via facsimile transmission, to the Hospital, wherein DSS stated that "[it was] placing an administrative hold on [Jared] . . . [and] requesting that the child not be released[] from the [H]ospital at this time, even if he has been medically cleared." (Id. ¶ 38; Defs. Mot. Summ. J., Ex. Z.) Also on February 10, 2005, DSS filed a "petition for temporary removal of Jared pursuant to [the] Family Court Act § 1027 and supporting affidavit of [] Thomas . . . with the Dutchess County Family Court" (the "Family Court"). (Defs. R. 56.1 Stmt. ¶ 40.) A hearing before the Family Court commenced at 4:15 p.m. on that day (the "February 10 Hearing"). (Id. ¶ 41.) Plaintiff was present at that hearing and had consulted with counsel, however, counsel was not present and plaintiff avers that she "did not have a meaningful opportunity" ...


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