United States District Court, N.D. New York
Neroni Law Office, Tatiana Neroni, Esq. Delhi, New York, Attorney for Plaintiffs.
Levene, Gouldin & Thompson, LLP, Maria E. Lisi-Murray, Esq., of counsel, Vestal, New York, and Levene, Gouldin Law Firm, Erin E. Donnelly, Esq., of counsel, Binghamton, New York, Attorneys for County Defendants.
Shantz & Belkin, M. Randolph Belkin, Esq. counsel, Latham, New York, Attorney for Defendant Det. Marsh.
MEMORANDUM-DECISION AND ORDER INTRODUCTION
NORMAN A. MORDUE, District Judge.
In this action under 42 U.S.C. § 1983, plaintiffs claim, inter alia, that defendants searched their home on a number of occasions and threatened to arrest plaintiff Dara Argro, in violation of various Federal Constitutional rights. The following motions are pending: motion for summary judgment by defendant Detective Rodney Marsh (Dkt. No. 57); motion for summary judgment by all other named defendants ("County defendants") (Dkt. No. 64); and motion by plaintiffs to allow counsel to disclose confidential discovery materials to plaintiffs and a non-party (Dkt. No. 65). As set forth below, Detective Marsh's motion for summary judgment is granted in its entirety with prejudice; the County defendants' motion for summary judgment is granted in part and denied in part; and plaintiffs' motion regarding confidential discovery materials is granted to the extent set forth herein.
On Detective Marsh's prior motion (Dkt. No. 6) to dismiss the initial complaint, this Court issued a decision (Dkt. No. 23) granting the motion to the extent it sought dismissal of the conspiracy claim and all section 1983 claims against him in his official capacity, and otherwise denied the motion. In the same decision, the Court granted the County defendants' dismissal motion (Dkt. No. 12) to the extent it sought dismissal of the conspiracy claim and the intentional infliction of emotional distress ("IIED") claims arising from events on June 17, 2010 and December 23, 2010, and otherwise denied the motion. The Court further permitted plaintiffs to amend and supplement their complaint.
STANDARD ON SUMMARY JUDGMENT
The party moving for summary judgment must show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the burden shifts to the non-movant to adduce evidence establishing the existence of an issue of material fact. See Linares v. McLaughlin, 423 Fed.Appx. 84, 86 (2d Cir. 2011). If the non-movant fails to make such a showing, the movant is entitled to summary judgment. When deciding a summary judgment motion, the Court must "resolve all ambiguities and draw all factual inferences in favor of the party opposing the motion." Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citation omitted). Conclusory statements or mere allegations, however, are not sufficient to defeat a summary judgment motion. Id. Summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiff Myrna Horshinski was in her 80's at the time of the incidents alleged. She is the mother of twins, Diane Davis and plaintiff Dara Argro. At the times in issue, Myrna Horshinski owned a home in which she resided with Dara Argro, Diane Davis, Diane Davis' son plaintiff Cody Bess, and a child D.T., the son of another of Diane Davis' sons.
In support of their motion, the County defendants rely in part on the affidavit of their expert, Margaret A. Burk, Esq., to the effect that, accepting defendants' version of events, defendants DSS caseworkers' conduct was proper. Burk states that it is her opinion that the caseworkers "properly investigated the Child Protective Services reports regarding the subject minor child and properly performed home visits to plaintiffs' residence in the course of their investigation"; that there is no evidence "that corroborate[s] the allegations of plaintiffs" that defendants "conducted an improper CPS investigation"; that "[i]n conducting the home visit as part of the investigation there is no requirement that a Court Order or warrant is to be obtained"; and that "[c]aseworkers are trained to request permission of the resident to enter the home by advising that an investigation has been commenced requiring a home visit." Burk further states that upon reviewing the record and the notes of the defendants caseworkers, there is no evidence: a) that threats were made to Horshinski regarding placing her in a nursing home; b) that Horshinski was in her bed or the bathroom at the time of any home visit; c) that a search of plaintiffs' underwear drawers was conducted; d) that medications were removed from their bottles; e) that physical altercations with any of the plaintiffs occurred; f) that defendants caseworkers demanded or forced their way into a locked room; or g) that attempts to coerce Argro to make false statements occurred. Burk states: "It is within a reasonable degree of certainty, based on the defendant caseworkers' visits notes and recollections, that a proper investigation was conducted by the Chenango County Defendants, and there is no independent proof outside the allegations of plaintiffs that the investigation of the subject minor child by the Department of Social Services, Chenango County was improper." Burk's affidavit is based on the assumption that the questions of fact are resolved in defendants' favor, and thus does not support an award of summary judgment.
First Cause of Action
The first cause of action of the second amended complaint states a claim by Myrna Horshinski and Cody Bess against Chenango County ("County") and DSS caseworkers Linda Smith and Deb Munyan. Horshinski and Bess allege that on June 17, 2010, Smith and Munyan came to the home without a search warrant or court order and searched the residence, including bedrooms and bureau drawers, without permission and despite the protests of plaintiff Dara Argro, who was present during the search; that Smith and Munyan stated they had a right to search because that was the "protocol" - apparently referring to a DSS policy; that Smith "hinted to" Horshinski that she could "arrange" to have her placed in a nursing home, thus causing Horshinski great distress; and that this conduct violated the privacy rights of Horshinski and Bess and their protection against unreasonable searches and seizures, citing the Fourth, Fifth, and Fourteenth Amendments.
Essentially, this cause of action states a claim under the Fourth Amendments' prohibition of unreasonable searches, made applicable to the states by the Fourteenth Amendment. "Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment." Payton v. New York, 445 U.S. 573, 587 (1980) (citation omitted). Plaintiffs also cite the Fifth Amendment, presumably intending to state a substantive due process claim. The claim is, however, properly analyzed under the Fourth Amendment, and not as a substantive due process claim. See United States v. Lanier, 520 U.S. 259, 272, n.7 (1997) ("[I]f a constitutional claim is covered by a specific constitutional provision, such as the Fourth... Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process."); Albright v. Oliver, 510 U.S. 266, 273 (1994) ("Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." (citation and internal quotation marks omitted)). Therefore, to the extent that the first cause of action of the second amended complaint asserts a substantive due process claim, it is dismissed.
In support of their motion for summary judgment, defendants rely on the affidavit of Deb Munyan stating that she did not go to or search the home on June 17, 2010. Munyan further states that on June 22, 2010, she and Linda Smith conducted a home visit; that Myrna Horshinski, Diane Davis, and Dara Argro were present; that at no time did any plaintiff refuse to allow them to enter or request them to leave; that while at the home on June 22, 2010, Munyan and Smith spoke with Davis and Argro about allegations in a Child Protective Services ("CPS") report concerning D.T.; that Munyan and Smith did not search the bedrooms and dresser drawers of Horshinski or Bess; and that she never witnessed Smith threaten to place Horshinski in a nursing home. She does not allege that they had a court order or warrant or that exigent circumstances existed.
The deposition testimony of Myrna Horshinski, Dara Argro, and Cody Bess is sufficient to raise material questions of fact on the issues of whether Smith and Munyan entered the home without permission or other justification; whether Smith obtained Horshinski's permission to enter and search by threatening to place her in a nursing home; and whether they searched Horshinski's and Bess's bedrooms and bureau drawers.
Resolving all ambiguities and drawing all factual inferences in favor of plaintiffs, the Court denies summary judgment dismissing the first cause of action against Smith and Munyan. The Court also allows the claims against the County to remain, as discussed below in connection with the sixth cause of action.
Second Cause of Action
The second cause of action, by Myrna Horshinski and Cody Bess against a DSS caseworker Jessica Szarmach (incorrectly sued as Jessica Smarsmach) and John Doe, claims that between December 14 and December 23, 2010, Szarmach and John Doe entered the home without consent, exigent circumstances, a court order, or a warrant; "burst" into Myrna Horshinski's bedroom where she was resting in bed; searched Horshinski's medicine bottles by opening them, removing all the pills and counting them; and searched Horshinski's drawers, despite the protests of Horshinski and Argro.
In support of their summary judgment motion, defendants rely on the affidavit of Jessica Szarmach stating that on December 16, 2010 she received a telephone call from Diane Davis requesting a home visit; that in response to the request, Szarmach made a home visit to the residence to investigate a Child Protective Services report which required a safety assessment at the home where D.T. resided; that on that date Diane Davis and Dara Argro did not refuse permission to enter but rather let her into the home and agreed to show her around; that Myrna Horshinski was not in bed during the visit; and that there was no search of any pill bottles or dresser drawers. She does not allege that they had a court order or warrant or that exigent circumstances existed.
As with the first cause of action, to the extent that the second amended complaint asserts a substantive due process claim, it is dismissed. The deposition testimony of Myrna Horshinski and Dara Argro is sufficient to raise a question of fact on the issues of whether Diane Davis requested the visit and whether Szarmach entered the home and searched Horshinski's bedroom, pill bottles, and bureau drawers without permission in violation of the Fourth Amendment. Resolving all ambiguities and drawing all factual inferences in favor of plaintiffs, the Court denies summary judgment dismissing the second cause of action against Szarmach under the Fourth Amendment. The claim against John Doe is dismissed without prejudice.
Third Cause of Action
The third cause of action, on behalf of all three plaintiffs, is asserted against DSS caseworkers Crystal Cornell and Lace-Ann Porter. Plaintiffs claim that in December 2010, Cornell and Porter searched the house without consent, exigency, a court order, or a warrant; that they advanced towards the bathroom where Horshinski was showering; that when Dara Argro protested, Porter pushed Argro against a washing machine, causing bruising; and that Porter then "burst into the shower" and searched the bathroom. The second amended complaint also claims that Cody Bess had installed a padlock on his bedroom door, prohibited entry into his bedroom, left a key available, and instructed his family members to use the key only in case of fire; that Argro informed Cornell and Porter of Bess' instructions; and that Porter grabbed the key, opened the padlock, and proceeded to search the room thoroughly, including looking under the mattress and in the bureau drawers. At the time of the search, Porter and Cornell allegedly stated that the non-consensual search of the entire house, bedrooms, and personal effects of all inhabitants was part of the agency's "protocol." Porter allegedly added that "her government job has absolutely no responsibility and no accountability to the general public whatsoever, and that's what makes it such a great job."
All plaintiffs claim infringement of their rights to privacy and protection against unreasonable search. As stated above, such claims are Fourth Amendment claims. With respect to Dara Argro's claim that Porter pushed her against the washing machine, causing a bruise, the law is that where, as here, the plaintiff does not assert that she was arrested or seized, her claim for excessive force falls outside the Fourth Amendment and instead is governed by the Due Process Clause of the Fourteenth Amendment. See Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) ("[O]utside the context of an arrest, a plaintiff may make claims of excessive force under § 1983 under the Due Process Clause of the Fourteenth Amendment."); Tierney v. Davidson, 133 F.3d 189, 199 (2d Cir. 1998) (same). To determine whether the use of force violated the plaintiff's due process rights, the Court must determine whether the force used "shocks the conscience" by considering the following factors: " the need for the application of force,  the relationship between the need and the amount of force that was used,  the extent of injury inflicted, and  whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Tierney, 133 F.3d at 199 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (brackets in Tierney )). "If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe." Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987); accord Piper v. City of Elmira, 12 F.Supp.3d 577, 587-89 (W.D.N.Y. 2014).
In support of their motions for summary judgment, defendants submit the affidavit of Crystal Cornell stating that she was not at plaintiffs' residence in December 2010. She stated that on March 23, 2011, Diane Davis telephoned her requesting that a caseworker come to the home to meet with her and D.T.; that on March 28, 2011, Dara Argro telephoned her requesting that a caseworker meet with Cody Bess; that on March 29, 2011, Cornell conducted a home visit at the residence; that she was granted permission to enter for the requested meeting; and that at no time during the visit was she asked to leave the premises.
Defendants also submit the affidavit of Lace-Ann Porter, stating that in December 2010 she was not present at the residence, she did not search the house, she did not enter the home, she was not in the vicinity of the home, and she did not conduct a home visit.
In opposition to the motion, plaintiffs rely on the deposition testimony of Dara Argro, who stated that Porter came to her house only once, though she was not sure of the date; that during the incident in question, Cornell and Porter entered without permission; that when Argro told them to leave, they said they could not leave because they had to investigate; that Porter then stated: "I love my government job, because... I have no responsibility to the general public or accountability"; that when they started towards door to the first-floor bathroom, Argro attempted to block them; that Porter then "shoved [her] to the right, not very hard" causing her to bump into the washing machine; that Cornell then ran into the bathroom; that Argro heard Horshinski yelling "get out"; and that Porter and Cornell then went upstairs, searched the bedrooms, and, using Bess' key which was hanging by the door, thoroughly searched his room despite Argro's protests. Horshinski testified that it was Porter who entered the bathroom and looked into the shower, and that Horshinski told her to "get out of here."
The deposition testimony of Argro and Horshinski is sufficient to raise material questions of fact regarding whether Porter and Cornell conducted a search without consent, exigency, a court order, or a warrant, including entering the bathroom and Cody Bess's locked room. Therefore, plaintiffs' claims for unreasonable search under the Fourth Amendment withstand summary judgment.
Considering the Tierney factors, the Court also finds that Dara Argro's testimony is sufficient to raise a question of fact regarding whether Porter used excessive force by pushing Argro against the washing machine. Accepting the truth of plaintiffs' allegations for purposes of this motion, the Court cannot hold as a matter of law that there was a need for the application of force, that the amount of force used was appropriate in view of the need, and that the force was applied in a good faith effort to maintain or restore order. Thus, the third cause of action presents a substantive due process claim of excessive force sufficient to resist summary judgment.
The Court recognizes that as a result of plaintiffs' apparent error regarding the date of the alleged incident, which plaintiffs now claim occurred in July 2011 instead of December 2010, the affidavits of Crystal Cornell and Lace-Ann Porter are directed towards the wrong date. Defendants argue that they "have been denied the opportunity during discovery to search their files and obtain pertinent records relative to the new alleged date"; "have been denied the opportunity to properly investigate plaintiffs' claims with respect to the new date'"; and have been "denied the opportunity to properly oppose plaintiffs' claims in the present motion." The County defendants do not explain how they would have conducted discovery differently if they had known the correct date. Their affidavits in support of the summary judgment motion are based solely on their own records, and, even if their affidavits set forth denials and averments directed towards July 2011 instead of December 2010, such affidavits would not warrant an award of summary judgment dismissing the claims against them, because plaintiffs' allegations raise material questions of fact. In addition, their attorney thoroughly cross-examined plaintiffs regarding the incident, and indeed at one point Dara Argro stated that she thought the incident occurred in the summer, not the winter. On this record, the Court does not find that the error caused prejudice to the County defendants that would warrant dismissal of the cause of action. Summary judgment dismissing this cause of action is denied.
Fourth Cause of Action
Myrna Horshinski and Cody Bess assert the fourth cause of action against Jane Doe #1 and Jane Doe #2. The cause of action alleges that in September 2011 the Jane Doe defendants "attempted to search the house, which attempt was denied to them, and then went on to search Cody Bess' vehicle without his consent and over a direct prohibition not to do that." No one was able to identify the Jane Doe defendants in their depositions. This cause of action is dismissed in its entirety without prejudice.
Fifth Cause of Action
In the fifth cause of action, Dara Argro asserts various federal constitutional violations and a state law IIED claim against Detective Marsh and DSS caseworkers Kathy LaVoie and Kelly O'Connor. The second amended complaint alleges that in December 2011, "Detective Rodney Marsh, acting under the color of state law, together with Social Workers Kelly O'Connor and Kathy LaVoie, attempted to coerce Dara Argro to make a false incriminating statement against her identical twin sister with whom Defendant Marsh knew Dara Argro resided together and was very close, and threatening that if Dara Argro refuses to do so, she will go to jail." The second amended complaint continues: "When making his threats Detective Marsh, as well as Defendants O'Connor and LaVoie were aware that they were trying to elicit from Dara Argro a false statement against... [Diane Davis.]"
In support of their motion for summary judgment, defendants submit the affidavit of Kathy LaVoie stating that in December 2011, she did not have any conversation with Dara Argro; that she did not have or witness any conversation with Argro and Detective Marsh or Kelly O'Connor in which they were attempting to coerce Argro to make false incriminating statements in lieu of going to jail; and that at no time has she ever had conversations with Detective Marsh or Kelly O'Connor that involved threats to incarcerate Argro for refusing to sign papers that involved Diane Davis.
Defendants also submit the affidavit of Kelly O'Connor, stating that in or about December 2011 she did not have any conversation with Dara Argro; that in December 2011 she did not witness a conversation between Argro, Detective Marsh and/or Kathy LaVoie in which they attempted to coerce Argro to make false incriminating statements in lieu of going to jail; that she did not at any time submit any papers to Argro for her signature that set forth allegations against Diane Davis; and that she did not at any time have any conversations with Detective Marsh regarding Argro or Davis that involved threatening to incarcerate Argro for refusing to sign a document.
Regarding this incident, Dara Argro testified in her deposition by counsel for the County defendants:
A. But, Kelly O'Connor and well, the whole CPS wanted to take [D.T.] from Diane and give him to his father, his biological father. And they kept trying to find reasons, searching, trying to find things that they could use against Diane to take [D.T.]. And Kelly O'Connor told my sister, Diane, in front of me that she saw Detective Marsh, and she's going to be arrested, that Detective Marsh was going to call her. We didn't know whether they were just telling, you know, one of their fibs again or not. So, we didn't really take much to heart about it. Diane went and saw [D.T.]. That's when she had weekly visits at the County Office Building. And I'd drop her off and I would pick her up.... So, after that visit, that Kathy LaVoie came to me in the parking lot holding papers, and all I saw on that paper was Diane did not feed - I forgot how it went now properly - something about she didn't feed him or clothe him, in a sophisticated way of writing, and something else, that she beats him, in a sophisticated way, like she was, didn't say beat but it had, what it meant was she didn't feed him, clothe him and she beat him. I wasn't going to sign it. So, Kathy LaVoie says "you're sister's going to jail and you're going to jail if you don't sign this". I said "I'm not signing anything" and I left. Then the next day at one o'clock in the afternoon, I remember what time it was, guess who called the house? Detective Marsh.
A. Told Diane - oh, no, I don't know if it was one - told Diane she had a one o'clock appointment to see him. Anyway, he made an appointment for Diane to see him. I knew I was going because... Detective Marsh called and told Diane she had to be there. I was shaking in my boots. I know it, because Kathy LaVoie said if I didn't sign it I'd be going to jail. And Detective Marsh called. I was so upset.... So, I still to this day don't know whether Detective Marsh was going to put us in jail if Diane went down there or if he wasn't. I think he was in the middle of CPS trying to scare us into signing papers. I don't know, I just feel bad for Detective Marsh. He got in this for, I don't know what his part was, but he never threatened me. He never said anything about a confession to me. That was Kathy LaVoie. But Detective Marsh did call and that's when we were afraid to come down there. And we never came and he never came and never arrested us. We never called and canceled and we never showed up.
Q. Was anyone else with Kathy LaVoie when this conversation with her occurred?
A. I was leaving this way (indicating). She was behind me with the papers in my face. I don't know if somebody was with her or not.
Q. Okay. So, the only person you had a conversation with directly about this alleged statement at the County Office Building was Kathy LaVoie?
A. I think Kathy LaVoie admitted that she wanted me to sign that, didn't she, somewhere? I think she did.
Q. All right. So, Kelly O'Connor had nothing to do with this incident?
A. Kelly O'Connor is the one that saw Detective Marsh to get Diane in there. I don't know why, what she said to get her in there. But Kelly O'Connor told Diane in front of me if she doesn't do something or - anyway, that Detective Marsh was going to call her, or arrest her, going jail. I don't know exactly. I take everything back. What they told Diane I wasn't - that was hearsay that Diane told me and I don't know. But what Kathy LaVoie told me was "your sister is going to jail".
Q. Okay. With respect to - so, now you're telling me you take it back; the conversations that anyone had with your sister with respect to going to jail you had no direct knowledge of, you did not overhear?
A. No, what I heard, when I went in the building Kathy LaVoie, Kelly O'Connor was with [D.T.] when Diane was on the supervised visit with [D.T.]. I was out, I was not there yet. When I came back to pick Diane up, Diane was still in there and that's when, when I was walking in that's when she came running out with that paper in her hand saying "Diane's going to jail and you're going to jail too".
Q. When you say she, this is -
A. Kathy LaVoie.
Q. - Kathy LaVoie?
A. She's the only one that threatened me. I don't know of anybody who was with her because I didn't turn around to look.
Q. Okay. So, to the best of your understanding, the only one that threatened you with this false statement was Kathy LaVoie?
A. Yeah, but Kelly O'Connor said the Detective was going to call, was going to arrest us.
Q. And she said that to you personally?
A. No, she told that to Diane.
Q. But you weren't there for that -
Q. - conversation?
Q. So you don't know that directly?
A. But I know that Kathy LaVoie -
Q. You don't know that directly?
A. What I know directly is Kelly O'Connor saw Detective Marsh.
A. That's what I know ...