United States District Court, N.D. New York
THE PLAINTIFF: Ben Gary Treistman Pro Se
THE DEFENDANTS: Valerie Lyn Wacks, Esq. ERIC SCHNEIDER, ESQ.
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. Karin Hubbs and Pamela Joern, Esq. ERIC M. KURTZ,
L. Sharpe Senior District Judge
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),
New York common law. (Compl., Dkt. No. 1.) Pending are
Wacks' motion to dismiss for failure to state a claim,
(Dkt. No. 109), and municipal defendants' motion for
summary judgment, (Dkt. No. 90), and Triestman's cross
motion for summary judgment, (Dkt. No. 94). For the reasons
that follow, Wacks' motion is granted, the motion of
municipal defendants is granted in part and denied in part,
and Triestman's motion is denied.
Motion for Summary Judgment
familiarity with the facts is presumed from the court's
earlier Memorandum-Decision and Order. (Dkt. No. 70 at 3-9.)
Treistman and Suzanne Cayley are the parents of A.T. and have
been in a custody dispute in Ulster County Family Court since
February 2011. (Defs.' Statement of Material Facts (SMF)
¶¶ 1, 16, Dkt. No. 90, Attach. 3.) A.T. was seven
years old at the time the dispute began and is diagnosed with
pervasive developmental disorder, a type of developmental
delay. (Dkt. No. 90, Attach. 2 at 3 ¶ 7, 17 ¶ 3.)
In October 2011, a neglect petition was filed against
Treistman in Family Court. (Id. ¶ 13; Dkt. No.
90, Attach. 7 at 3-7.) Treistman alleges that the petition
was filed in retaliation for reporting neglectful conduct by
Cayley, which was investigated by Ulster County Department of
Social Services (DSS) and determined to be unfounded. (2d Am.
Compl. ¶¶ 68-71, 87, Dkt. No. 98.) Triestman also
complains that temporary restraining orders, which were
entered as a result of the petition, unlawfully restricted
his visitation and the topics he could speak about with A.T.
(Id. ¶ 88.)
Greene, Woltman, and Boswell are caseworkers or supervisors
at Child Protective Services (CPS), a division of DSS.
(Defs.' SMF ¶¶ 3-5, 9-10.) Jackson, Krisjanis,
and Joern are attorneys for DSS. (Defs.' SMF ¶¶
7-8; 2d Am. Compl. ¶ 10b.) Schneider and Bennett are
licensed clinical social workers with the County's
Department of Mental Health (DMH). (Id.
¶¶¶ 11-12.) Finally, Sorkin is the deputy
commissioner of DSS and Hubbs is the assistant director of
children and family services of DSS. (Id. ¶ 6;
2d Am. Compl. ¶ 10c.)
Whittaker and Greene
and Greene both work within the investigations unit of CPS.
(Dkt. No. 90, Attach. 2 at 6 ¶ 12, 7 ¶ 1.) In
September 2011, Whittaker investigated a complaint lodged by
Treistman against Cayley and determined it to be unfounded.
(Dkt. No. 90, Attach. 2 at 2-3 ¶ 6.) As part of the
investigation, Whittaker interviewed Cayley who made her own
allegations against Treistman. (Id. ¶ 7.) Those
allegations asserted that Treistman asked A.T. about custody
related issues while videotaping her, gave her energy drinks,
and told A.T. that her mother gave her medication that would
“kill her and make her heart explode in her
chest.” (Id.) Some of these allegations were
corroborated by a social worker from A.T.'s school.
(Id.) Greene and Whittaker later met with Treistman
to investigate the allegations. (Id. ¶ 9.)
Based on their investigation, they recommended that a neglect
petition be filed against him. (Id. ¶ 10.)
counseled Treistman and advised him to take parenting classes
but never threatened or prevented him from being with his
daughter. (Id. ¶ 13.) Greene's last contact
with Treistman was on November 4, 2011 when she arranged a
supervised visit, and Whittaker's last contact with
Treistman was on November 8, 2011 when she supervised that
visitation. (Id. ¶ 12; Dkt. No. 90, Attach. 2
at 10 ¶ 10.) The case was then transferred to the
Mandated Preventive Care Unit at DSS. (Dkt. No. 90, Attach. 2
at 6 ¶ 12.)
Woltman and Boswell
and Boswell work in the Mandated Preventive Care Unit at DSS.
(Dkt. No. 90, Attach. 2 at 11 ¶ 1, at 21 ¶ 1.)
Woltman supervised visits between Treistman and A.T. starting
in November 2011. (Id. at 12 ¶ 1.) She attended
court hearings, ensured that Treistman complied with the
temporary orders of protection, and spoke with mental health
professionals involved in the case. (Id.
¶¶ 2-3.) On several occasions, Woltman advised
Treistman to avoid discussions that upset A.T.; in
particular, conversations about his federal court case,
custody issues, and A.T.'s medication. (Id.
¶¶ 4-5.) Treistman insisted he had a constitutional
right to speak to his daughter about any topic. (Id.
¶ 6.) Despite Woltman's warnings, Treistman
continued to speak with A.T. about such topics.
(Id.; Dkt. No. 90, Attach. 15.) Consequently,
Woltman and Boswell, her supervisor, decided to forward
Woltman's case notes to the legal department to support a
new neglect petition. (Id.) As a result, Family
Court issued a new temporary order of protection prohibiting
Treistman from speaking about “the federal lawsuit,
” “rules of visitation, ” “custody,
” “medication or side effects, ” or the
“mother and [maternal] grandmother” with A.T.
during their supervised visits. (Id.; Dkt. No. 90,
Attach. 14 at 3-5.) Woltman never told A.T. that Treistman
would be arrested or go to jail if he spoke about restricted
topics. (Dkt. No. 90, Attach. 2 at 14 ¶ 6.)
Krisjanis and Jackson
and Jackson are DSS attorneys who filed the October 2011 and
February 2013 neglect petitions against Treistman.
(Id. at 5 ¶ 10, 25 ¶ 13.) Jackson appeared
on behalf of the County at Family Court proceedings on
October 12, 20, and 26, 2011, November 3, 2011, and February
3, 2013. (Dkt. No. 90, Attachs. 7, 9-10, 13, 16.) Neither
Krisjanis nor Jackson were involved in investigating the
allegations against Treistman. (Dkt. No. 90, Attach. 2 at 5
¶ 10, 25 ¶ 13.)
Schneider and Bennett
and Bennett are licensed social workers at DMH. (Defs.'
SMF ¶¶ 11-12.) Schneider began treating A.T. in
January 2011 after A.T. was referred by her school's
social worker due to her physical outbursts. (Dkt. No. 90,
Attach. 2 ¶ 3.) Schneider continued to see A.T. for
weekly therapeutic treatment and determined she needed a
psychiatric evaluation. (Id. ¶ 4.) In June
2011, Dr. Howard Gottlieb performed an evaluation and
recommended that A.T. be prescribed medication. (Id.
¶ 8.) Although Schneider did not inform Treistman about
Dr. Gottlieb's recommendation due to his custody status,
she advised Cayley to share this information with him.
December 2011, Schneider learned that Treistman arranged for
A.T. to see Dr. Kathy Caproni, a private psychologist.
(Id. ¶ 11.) Schneider spoke with Dr. Caproni in
January 2012 about her evaluation of A.T. and her
recommendation that she supervise family therapeutic visits
between A.T. and Treistman. (Id.) Shortly
thereafter, Schneider, Bennett, her supervisor, and Dr.
Gottlieb met and discussed A.T.'s duplicative treatment
with Dr. Caproni. (Id.) The team decided that
Schneider would provide family therapy to Treistman and A.T.
(Id.) In an individual session, A.T. expressed to
Schneider that she was distressed when her father spoke about
his court case and feared he may go to jail. (Id.
¶¶ 12, 13.) Schneider advised Treistman to avoid
these conversations because A.T. became anxious.
(Id. ¶ 13.) However, he continued to assert his
right to speak with his daughter about any topic.
(Id.) Schneider also informed A.T.'s caseworker
that Treistman's discussions about such topics were
detrimental to her psychological well-being. (Id.)
is the deputy commissioner of DSS and oversees adult and
children's services for the county. (Dkt. No. 90, Attach.
2 at 22 ¶ 4.) She was not directly involved in
A.T.'s supervised visitation. (Id.)
is the assistant director of children and family services at
DSS. (2d Am. Compl. ¶ 10c.) On May 31, 2012, she
attended a meeting with members of the Mandated Preventive
Care Unit and DMH to discuss which agency would determine
when Treistman could have unsupervised visits with A.T. (Dkt.
No. 90, Attach. 2 at 23 ¶ 7.)
Motion to Dismiss
is the attorney who was assigned to represent A.T. in the
custody proceeding. (2d Am. Compl. ¶ 30.) Between
February 14, 2011 and April 3, 2015, Wacks conveyed false
statements about Treistman's parental fitness to unnamed
others. (Id. ¶ 123.) Specifically, Wacks
represented to unnamed others in an unknown manner that
Treistman was dangerous, abused and ...