Alford v. City of N.Y.

• Decision Date: 28 March 2018
• Docket Number: 11-CV-1583 (LDH) (SMG)
• Citation: 413 F.Supp.3d 99
• Parties: Patrick ALFORD, Sr. and J.A., a minor, by J.A. and her guardian ad litem, Sydell Mack, Plaintiffs, v. CITY OF NEW YORK; St. Vincent's Services, Inc.; Robert Salemi, individually and in his capacity as a Supervisor of Child Protective Specialists for the Administration for Children's Services; Carline Anderson, individually and in her capacity as a Case Worker for St. Vincent's Services, Inc.; Zoila Villalta, individually and in her capacity as a Supervisor of Case Workers for St. Vincent's Services, Inc.; and Natalia Rosado, individually and in her capacity as a Child Protective Specialist for the Administration for Children's Services, Defendants.
• Court: U.S. District Court — Eastern District of New York

413 F.Supp.3d 99

Patrick ALFORD, Sr. and J.A., a minor, by J.A. and her guardian ad litem, Sydell Mack, Plaintiffs,

v.CITY OF NEW YORK; St. Vincent's Services, Inc.; Robert Salemi, individually and in his capacity as a Supervisor of Child Protective Specialists for the Administration for Children's Services; Carline Anderson, individually and in her capacity as a Case Worker for St. Vincent's Services, Inc.; Zoila Villalta, individually and in her capacity as a Supervisor of Case Workers for St. Vincent's Services, Inc.; and Natalia Rosado, individually and in her capacity as a Child Protective Specialist for the Administration for Children's Services, Defendants.

11-CV-1583 (LDH) (SMG)

United States District Court, E.D. New York.

Signed March 28, 2018

As Amended April 3, 2018

ORDER ADOPTING REPORT AND RECOMMENDATION

LaSHANN DeARCY HALL, United States District Judge

BACKGROUND

Plaintiffs Patrick Alford, Sr. and J.A., a minor, by her guardian ad litem , Sydell Mack, bring this action against Defendants the City of New York (the "City"), Robert Salemi, Natalia Rosado, (together with the City and Salemi, "City Defendants"), St. Vincent's Services ("SVS"), Zoila Villalta, and Carline Anderson, pursuant to 42 U.S.C. § 1983, alleging violations of the Fourth Amendment, the Fourteenth Amendment, and various state laws.¹ (See generally Am. Compl., ECF No. 16.) A separate but related action was filed by Jennifer Rodriguez on behalf of herself and her minor son, P.A., against the same Defendants under similar legal theories (the "Related Action"). See Rodriguez v. Admin. for Children's Servs. , No. 10-cv-04661 (E.D.N.Y). The instant action and the Related Action were consolidated for the purpose of discovery. (Min. Entry, Dec. 15, 2011, ECF No. 42.)

All parties in the instant action and the Related Action moved for summary judgment on at least some claims in March and April 2014. On September 11, 2014, Judge Gleeson issued P.A. v. City of New York , 44 F. Supp. 3d 287 (E.D.N.Y. 2014), which decided the motions for summary judgment in the Related Action.² Judge Gleeson declined, however, to rule on motions brought in connection with Alford and J.A.'s claims (the subject of the instant motions) due to concerns about Alford's competency and his legal capacity to represent J.A. P.A. , 44 F. Supp. 3d at 315. Subsequently, a guardian ad litem and counsel were appointed to represent the interests of J.A. (Min. Entry, Oct. 25, 2016, ECF No. 162; Transcript, Oct. 25, 2016, ECF No. 167.) In view of the fact that J.A. had newly appointed counsel, the Court permitted J.A. to file a supplemental opposition to Defendants' motions on March 3, 2017. (Min. Entry, Feb. 24, 2017, ECF No. 174; J.A. Supp. Opp., ECF No. 177.) Defendants filed reply memoranda to that submission on April 3, 2017. (City Defs.' Supp. Reply, ECF No. 182; SVS Defs.' Supp. Reply, ECF No. 183.) Judge Gleeson referred the motions for summary judgment on claims asserted by Alford and J.A. to United States Magistrate Judge Steven Gold for a report and recommendation. (Order Referring Mot., Feb. 3, 2016, No. 10-cv-4661.)

On August 18, 2017, Magistrate Judge Gold issued a Report and Recommendation in which he recommended that this Court deny Plaintiffs' motion for summary judgment in its entirety, and grant, in part, and deny, in part, Defendants' motions for summary judgment. (See R. & R., ECF. No. 192.) Specifically, Magistrate Judge Gold recommended that: (1) Defendants' motions for summary judgment on Plaintiffs' procedural due process claims be granted; (2) Defendants' motions for summary judgment on Plaintiffs' substantive due process non-kinship placement claims be denied; (3) Defendants' motions for summary judgment on Plaintiffs' substantive due process quality of care claims be denied with respect to J.A. and granted with respect to Alford on grounds of qualified immunity; and (4) Defendants' motions for summary judgment on Plaintiffs' Monell claims be denied as to the City with respect to the City's alleged 20-day policy and granted in all other respects. (Id. at 24.) On September 22, 2017, Alford and City Defendants each timely filed an objection pursuant to Federal Rule of Civil Procedure 72(b)(2).³

The Court assumes the parties' familiarity with the facts and reviews Magistrate Judge Gold's report and recommendation de novo. See Fed. R. Civ. P. 72(b)(1), (3); 28 U.S.C. § 636(b)(1)(C).

A. Procedural Due Process Claim

Magistrate Judge Gold recommended dismissal of Plaintiffs' procedural due process claims. (R. & R. at 11.) In objection, Alford maintains that Magistrate Judge Gold reached his decision by wrongly "grafting onto Mr. Alford's claim the result reached by Judge Gleeson on Rodriguez's due process claim." (Pl. Alford's Obj., 9, ECF No. 197.) That is, according to Alford, because his claims relate to the events after the removal of the children whereas Rodriguez's procedural due process claim relates to the initial removal of the children from her, each claim warrants a different analysis, and by extension, a different outcome. (Id. at 6-7.) Alford's argument misses the mark.

The driving inquiry in any procedural due process analysis is whether a plaintiff was afforded notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ("The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ") (quoting Armstrong v. Manzo , 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) ). Thus, the viability of Alford's procedural due process claim is not dependent upon the point at which the children were removed from Rodriguez, as he suggests. Rather, the operative question is whether Alford was provided notice and an opportunity to be heard. Id. Magistrate Judge Gold correctly found that on the record, there was insufficient evidence to support the claim that Alford was denied constitutional process. Instead, he concluded Alford "make[s] passing references throughout [his] submissions to claimed deprivations of procedural due process" but fails to "identify any occasion on which [he] [was] denied notice or an opportunity to be heard."⁴ (R. & R. at 11.) The Court agrees. Accordingly, Alford's objection is overruled.

B. Substantive Due Process

1. Personal Involvement

City Defendants argue that Magistrate Judge Gold erred in denying their motion for summary judgment as to the § 1983 claims against Robert Salemi, an Administration for Children's Services ("ACS") supervisor, and Natalia Rosado, a Child Protective Specialist, on the grounds that they lacked personal involvement in J.A.'s foster care placement and daily monitoring of same. (City Defs.' Obj., 3-4, ECF. No 196.)

City Defendants correctly note that Plaintiffs must show personal involvement of an individual defendant to sustain a § 1983 action against him or her. Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994) ("[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983."). In their objection, City Defendants contend that Magistrate Judge Gold somehow overlooked or ignored this requirement. (City Defs.' Obj. at 3-4.) Such is not the case. As City Defendants assuredly know, the question of personal involvement is a question of fact, often precluding determination on summary judgment. Williams v. Smith , 781 F.2d 319, 323 (2d Cir. 1986) ("Since personal involvement is a question of fact we are governed by the general rule that summary judgment may be granted only if no issues of material fact exist and the defendant[ ] is entitled to judgment as a matter of law."). Indeed, personal involvement can be predicated on a variety of facts. Wright , 21 F.3d at 501. A party may have directly participated in the alleged constitutional deprivation. Id. In some cases, a person will be considered personally involved, though not directly involved, if he or she is a supervisor but failed to remedy a wrong after learning of the violation. Id. In other cases, a supervisor may be liable if he or she created the policy or custom under which unconstitutional practices occurred, or failed to end such a policy or custom if already in existence. Id. Likewise, a supervisor may be liable if he or she was grossly negligent in managing subordinates who committed the constitutional violation. Id.

In recommending that Defendants' motions for summary judgment be denied, Magistrate Judge Gold outlined a host of facts that could lead a reasonable jury to find that Salemi and Rosado were personally involved in Plaintiffs' alleged violations of Plaintiffs' substantive due process. (See R. & R. at 12-20.) For example, with respect to Plaintiffs' non-kinship placement claim, ACS records indicate that Salemi noted on the date of the Initial Child Safety Conference ("ICSC") that ACS would "explore kinship resource[s]" and would "make a visit to the father['s] current shelter to see if his children can be paroled to him" (R. & R. at 13.) However, it was approximately two to three weeks before Rosado or anyone from ACS came to the shelter to investigate. (Id. ) When Rosado finally visited the shelter, she informed Alford that there was no reason why his children could not be placed with him, yet the placement was still not made. (Id. ) Moreover, a year prior to Rodriguez's allegation that Alford's girlfriend abused the children, both Salemi and Rosado noted that Rodriguez was untrustworthy and a liar. (Id. at 15.) Likewise, with respect to J.A.'s quality of care claim, Magistrate Judge Gold noted that Rosado emailed others at ACS about P.A., including that P.A. said "he would hurt himself if he can't go home, and that he was going to hurt/kill his sister [J.A.] because she keeps getting him in trouble." (Id. at 18.) In addition, Salemi testified that he had access to J.A. and P.A.'s progress notes that...