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Treistman v. Wacks

United States District Court, N.D. New York

February 16, 2017

BEN GARY TREISTMAN, Plaintiff,
v.
VALERIE LYN WACKS, ESQ. et al., Defendants.

          FOR THE PLAINTIFF: Ben Gary Treistman Pro Se

          FOR 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, ESQ.

          Gary L. Sharpe Senior District Judge

         MEMORANDUM-DECISION AND ORDER

         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.[1] and Lawrence Shelton, Esq., pursuant to 42 U.S.C. §§ 1983, 1985, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), [2] and 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.

         II. Background

         A. Facts

         1. Motion for Summary Judgment[3]

         General 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.)

         Whittaker, 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.)

         a. Whittaker and Greene

         Whittaker 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.)

         Whittaker 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.)

         b. Woltman and Boswell

         Woltman 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.)

         c. Krisjanis and Jackson

         Krisjanis 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.)

         d. Schneider and Bennett

         Schneider 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. (Id.)

         In 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.)

         e. Sorkin

         Sorkin 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.)

         f. Hubbs

         Hubbs 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.)

         2. Motion to Dismiss[4]

         Wacks 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. ΒΆ 123.) Specifically, Wacks represented to unnamed others in an unknown manner that Treistman was dangerous, abused and ...


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