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Treistman v. Wacks

United States District Court, N.D. New York

November 26, 2014

VALERIE LYN WACKS, ESQ. et al., Defendants.

Ben Gary Treistman Pro Se Shady, NY, for the Plaintiff.

Valerie Lyn Wacks, Esq., Pro Se, Olivebridge, NY,

Lawrence Shelton, Esq., Pro Se, Kingston, NY,

Amy Greene, Kelly Whittaker, Elisabeth Krisjanis, Esq., Jillian Jackson, Esq., Barbara Sorkin, Denise Woltman, Charlene Boswell, Mary Ellen Schneider, Joseph Bennett, and Ulster County Municipality, >ERIC M. KURTZ, ESQ., ROBERT D. COOK, ESQ., Cook, Netter Law Firm, Kingston, NY. for the Defendants.


GARY L. SHARPE, District Judge.

I. Introduction

Plaintiff pro se Ben Gary Treistman commenced this action against defendants Amy Greene, Kelly Whittaker, Elisabeth Krisjanis, Esq., Jillian Jackson, Esq., Barbara Sorkin, Denise Woltman, Charlene Boswell, Mary Ellen Schneider, Joseph Bennett, Ulster County Municipality (collectively "municipal defendants"), and unnamed Doe defendants, as well as defendants pro se Valerie Lyn Wacks, Esq. and Lawrence Shelton, Esq., pursuant to 42 U.S.C. §§ 1983, 1985, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), [1] and New York common law. (Compl., Dkt. No. 1.) Pending are municipal defendants' motion for judgment on the pleadings, (Dkt. No. 55), and motions to dismiss for failure to state a claim by both Shelton, (Dkt. No. 56), and Wacks, (Dkt. No. 57). For the reasons that follow, the motion of municipal defendants is granted in part and denied in part, and the motions of Shelton and Wacks are both granted.

II. Background

A. Facts

At the outset, the court notes that Treistman's complaint is eighty-nine pages in length and contains 360 numbered paragraphs and over thirty separate causes of action. ( See generally Compl.) The profuse number of allegations are not organized chronologically, and, in some instances, hard to follow. Nonetheless, the court has endeavored to arrange the facts in a manner here that makes them more readily digestible, although, in places, they are still somewhat disjointed. The factual background is divided between allegations that pertain to Wacks and Shelton, and municipal defendants. The facts themselves are drawn from Treistman's complaint and presented in the light most favorable to him.

1. Wacks and Shelton

Treistman is the father of A.T., a minor, with whom he has enjoyed a father-daughter relationship from her birth to age seven. (Compl. ¶¶ 14-22, 102.) Suzanne Cayley is A.T.'s mother. ( Id. ¶ 103.) In February 2011, Cayley filed a petition in New York State Family Court seeking full custody of A.T. ( Id. ¶ 104.) Cayley's attorney in the underlying Family Court matters was Shelton. ( Id. ¶ 34.) As is required under New York law, see N.Y. Family Ct. Act § 249, Family Court appointed an attorney for the child in the custody proceeding; Wacks was appointed for that purpose. (Compl. ¶ 110.) Although not pertinent for reasons explained below, see infra Part IV.B, the complaint contains several allegations faulting the conduct of Shelton and Wacks in connection with certain Family Court matters in which A.T. and Treistman were involved.

2. Municipal Defendants

In May 2011, Cayley, took A.T. to Ulster County Mental Health Department (MHD), an agency of the County Department of Social Services (DSS). ( Id. ¶ 23.) From MHD, "Cayley sought and obtained a psychiatric drug prescription for... Geodon" to qwell A.T.'s supposed temper tantrums. ( Id. ¶ 25.) Geodon has not been approved by the Food and Drug Administration for use on children, and "is known to have serious side-effects." ( Id. ¶ 26.) None of the MHD employees involved with A.T.'s case-Schneider, a licensed clinical social worker who was assigned as A.T.'s social worker, Bennett, who was Schneider's supervisor, or Dr. Howard Gottlieb, the psychiatrist that prescribed Geodon for an "off-label use"-consulted, advised, or contacted Treistman regarding his daughter's care or the fact that a psychotropic drug was prescribed for her. ( Id. ¶¶ 27-31.) Cayley also instructed A.T. to withhold information about her treatment from Treistman, leaving Treistman "completely ignorant of any of these developments." ( Id. ¶¶ 32-33.)

On August 21, 2011, A.T. told Treistman that her mother gives her a pill every morning and complained of several symptoms. ( Id. ¶¶ 39-40.) Treistman noticed excessive weight gain beginning in July 2011 and other changes in his daughter, including loss of enjoyment for chess and loss of stamina. ( Id. ¶¶ 41-43.) In late August 2011, A.T. had an episode while dancing; she told Treistman "that her heart was beating too fast and that she was scared." ( Id. ¶ 43.) Treistman elected not to seek medical intervention after carefully observing A.T. ( Id. ¶ 44.) Following this incident, A.T., who protested the medication, was forced by Cayley to continue taking it. ( Id. ¶¶ 48-49.)

The following month, Treistman called the New York State Central Register Child Abuse and Maltreatment Hotline to report an incident wherein Cayley left A.T. alone at her apartment and A.T. was locked out. ( Id. ¶¶ 51-56.) Greene, Ulster County Child Protective Services (CPS) supervisor/caseworker, and Whittaker, CPS caseworker, determined that Cayley was not neglectful in relation to the reported incident. ( Id. ¶¶ 5, 6, 57.) Later in September, Whittaker telephoned Treistman regarding charges of neglect lodged against him. ( Id. ¶ 58.) Treistman was directed to report to CPS. ( Id. ¶ 59.) At the ensuing meeting, Greene and Whittaker interrogated Treistman and threatened him with, among other things, prosecution in Family Court, restraining orders forbidding contact with A.T., and imprisonment unless he agreed to discontinue "the interactions and parenting style... they... disapproved of, " which included a laundry list of "activities." ( Id. ¶¶ 61-63.) At some unspecified time, Greene, Whittaker, Krisjanis, DSS counsel, Jackson, DSS counsel, and Sorkin, deputy commissioner of DSS, obtained a restraining order prohibiting contact between A.T. and Treistman. ( Id. ¶¶ 7, 8, 9, 64.) At the time Treistman filed his complaint, the order was still in effect. ( Id. ¶ 98); however, during the litigation, the neglect proceedings were dismissed and Treistman now enjoys unrestricted and unsupervised visitation with A.T., see Treistman v. Wacks, 578 F.App'x 18, 19 (2d Cir. 2014). The same defendants who obtained the restraining order also petitioned a court to find that Treistman had neglected and/or abused A.T. (Compl. ¶ 65.) Part of the motivation of these defendants was to disrupt an ongoing custody proceeding, referenced above, in Family Court, and because of "personal and institutional gender discriminat[ion]" against fathers. ( Id. ¶¶ 66, 68.)

As of October 11, 2011, and as a result of the foregoing, Treistman was permitted only one hour of supervised visitation per week. ( Id. ¶ 70.) Defendants also curtailed the subjects of discussion during these limited visits, but intentionally failed to convey the prohibited topics/behavior to Treistman. ( Id. ¶¶ 72-73.) From December 16, 2011 to January 10, 2012, defendants encouraged Treistman to visit with A.T. at a McDonald's. ( Id. ¶ 74.) However, on January 6, Woltman, a CPS caseworker, changed the visit date without notice, causing Treistman to fail to appear and upsetting A.T. to the point that Woltman required A.T. to go to the emergency room for treatment. ( Id. ¶¶ 10, 75-78.) A.T.'s disability was blamed for this incident and A.T. was punished because of her disability by no longer being allowed to meet with Treistman at McDonald's and, instead, having only supervised visitation with her father. ( Id. ¶¶ 78-79.)

In December 2011 and January 2012, Treistman hired Dr. Kathleen Caproni for evaluation and parent-child counseling. ( Id. ¶ 80.) In late January, Bennett and Schneider demanded that Dr. Caproni cease therapy, which caused her to withdraw from her treatment of A.T. "due to... repeated pressure from Bennet, Schneider and other[s], " "citing a concern to not have institutional friction or interference with other patients with [MHD]." ( Id. ¶ 81.)

Treistman alleges other facts to demonstrate that defendants interfered with his parental rights. On February 15, 2012, Woltman forbade Treistman from photographing or videotaping A.T. during their visits. ( Id. ¶ 82.) In June 2012, Woltman accused Treistman of engaging in prohibited coversations with A.T., demanded that the conversations stop, and threatened to discontinue all visitation. ( Id. ¶¶ 83-87.) In the same month, at an Office of Children and Family Services administrative hearing, Whittaker, Greene, and unnamed others, submitted false evidence against Treistman for the purpose of prejudicing Treistman; the charges against him were ultimately deemed unfounded. ( Id. ¶¶ 88-90 & at 22 n.3.) Again in June, Schneider told Treistman and A.T. that they could not discuss certain topics, and that, if they did, they may never be reunited. ( Id. ¶ 91.) Finally, in December 2012, Woltman and Boswell, a CPS supervisor, though not directly present, accused Treistman of disciplining A.T. by "pinch[ing] her on the buttock." ( Id. ¶¶ 11, 96.) Consequently, Woltman required Treistman to attend parenting classes and threatened sanctions. ( Id. ¶ 97.)

B. Procedural History

Treistman filed this action in late December 2012 asserting claims on behalf of A.T. and himself. ( See generally Compl.) After joinder of issue, (Dkt. Nos. 6, 8, 10), Treistman sought a temporary restraining order and preliminary injunction by order to show cause that would prohibit defendants "from interfering with [p]laintiffs actions of association and free speech, " (Dkt. No. 12, Attach. 3 at 4). Appreciating a potential issue regarding Treistman's purported representation of A.T., the court stayed Treistman's motion and ordered the parties to further brief the representation issue. (Dkt. No. 13.) The court ultimately determined that Treistman was not a proper representative of A.T. for purposes of the litigation, and appointed a guardian ad litem to represent A.T. (Dkt. Nos. 19, 27.) A.T.'s guardian ad litem reported to the court that A.T. desired to have all claims asserted on her behalf dismissed. (Dkt. No. 31.) The court dismissed all claims asserted on A.T.'s behalf and denied Treistman's application for a preliminary injunction. (Dkt. No. 32.) Treistman's untimely motion for reconsideration was denied, (Dkt. No. 37), and he appealed, (Dkt. No. 38). The Second Circuit eventually dismissed the appeal as moot, explaining that Treistman informed the Court during oral argument "that the neglect proceedings against him have been dismissed, and that he currently has unrestricted and unsupervised visitation with his child." Treistman, 2014 WL 4626596, at *1.

Before the Circuit's resolution of Treistman's appeal, defendants filed the pending motions. (Dkt. ...

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