United States District Court, N.D. New York
THE PLAINTIFF: Ben Gary Treistman Pro Se
THE DEFENDANTS: Amy Greene, Kelly Whittaker, Denise Woltman,
Charlene Boswell, Mary Ellen Schneider, Joseph Bennett, Karin
Hubbs, and Pamela Joern, Esq.
M. KURTZ, ESQ., ROBERT D. COOK, ESQ.
MEMORANDUM-DECISION AND ORDER
L. SHARPE U.S. DISRTICT JUDGE.
January 4, 2016, plaintiff pro se Ben Gary Treistman
filed a second amended complaint against defendants Amy
Greene, Kelly Whittaker, Denise Woltman, Charlene Boswell,
Mary Ellen Schneider, Joseph Bennett, Karin Hubbs, and Pamela
Joern, Esq., which consisted of eighteen counts from his
original complaint, (Compl., Dkt. No. 1), and ten
supplemental counts pursuant to 42 U.S.C. §§ 1983,
1985 and New York common law, (2d Am. Compl., Dkt. No. 98).
The court previously disposed of both parties' motions
for summary judgment, (Dkt. Nos. 90, 94), and ordered them to
file supplemental briefs after identifying alternative
grounds for summary judgment, (Dkt. No. 115).
the court directed the parties to brief whether qualified
immunity applies and the viability of state law claims. (Dkt.
No. 115 at 24.) Additionally, the court gave each party an
opportunity to supplement their original filings in light of
the subsequent addition of Hubbs and Joern as parties. (Dkt.
No. 115 at 18, n.8.)
considering the parties' supplemental papers, (Dkt. Nos.
116, 117, 120), and for the reasons that follow, the court
grants summary judgment in favor of defendants and dismisses
all remaining claims.
court presumes a basic familiarity with the undisputed
material facts of this case from the court's previous
summary judgment decision, (Dkt. No. 115 at 3-9), which guide
the present analysis.
the procedural posture of this case has been fully outlined
in the court's previous summary judgment decision,
(id. at 10-12), wherein the court granted Valerie
Lynn Wacks Esq.'s motion to dismiss, (Dkt. No. 109), and
defendants' motion for summary judgment, (Dkt. No. 90),
with respect to Krisjanis, Jackson, and Sorkin in their
individual capacities and all defendants in their official
capacities,  and denied plaintiff's cross motion
for summary judgment, (Dkt. No. 94; Dkt. No. 115 at 26). As
such, the remaining defendants are state child care workers,
Greene, Whittaker, Woltman, Boswell, Schneider, Bennett, and
Hubbs, and an attorney for the Ulster County Department of
Social Services, Joern. The parties' supplemental briefs
are now before the court for consideration. (Dkt. Nos. 116,
Standard of Review
Federal Rule of Civil Procedure 56(f), district courts have
discretion to grant summary judgment sua sponte
“[a]fter giving [parties] notice and a reasonable time
to respond” and “after identifying for the
parties material facts that may not be genuinely in
dispute.” Fed.R.Civ.P. 56(f), (f)(3); see,
e.g., Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg
L.P., 756 F.3d 73, 80 (2d Cir. 2014).
standard of review pursuant to Fed.R.Civ.P. 56 is well
established and will not be repeated here. For a full
discussion of the standard, the court refers the parties to
its decision in Wagner v. Swarts, 827 F.Supp.2d 85,
92 (N.D.N.Y. 2011), aff'd sub nom. Wagner v.
Sprague, 489 F. App'x 500 (2d Cir. 2012).
immunity is intended to “strike a fair balance between
(1) the need to provide a realistic avenue for vindication of
constitutional guarantees, and (2) the need to protect public
officials who are required to exercise their discretion and
the related public interest in encouraging the vigorous
exercise of official authority.” Jemmott v.
Coughlin, 85 F.3d 61, 66 (2d Cir.1996) (internal
quotation marks and citation omitted).
“[T]o submit all officials, the innocent as well as the
guilty, to the burden of a trial and to the inevitable danger
of its outcome, would dampen the ardor of all but the most
resolute, or the most irresponsible, in the unflinching
discharge of their duties. Again and again the public