Dietz v. Damas, Civil Action No. CV-91-5016 (DGT).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtRobert J. Poblete, Pellini & Poblete, New York City, for Defendant and Counter-claimant Diana McGurn
Citation932 F. Supp. 431
PartiesLenore DIETZ and William Dietz, individually and on behalf of James Dietz, an infant, Plaintiffs, v. Harold DAMAS, individually and as case-worker, Child Welfare Administration, Marcia Lewis, individually and as supervisor, Child Welfare Administration, Daniel Elmore, individually and as supervisor, Child Welfare Administration, William J. Grinker, individually and as Commissioner of Social Services of the City of New York, Brooke Trent, individually and as Deputy Commissioner of Social Services of the City of New York, City of New York, and Diane McGurn, Defendants.
Docket NumberCivil Action No. CV-91-5016 (DGT).
Decision Date11 July 1996


Carolyn A. Kubitschek, Lansner & Kubitschek, New York City, for Plaintiffs Lenore Dietz and William Dietz.

Paul A. Crotty, Corporation Counsel of the City of New York (Diana M. Murray, of Counsel), New York City, for Defendants Harold Damas, Daniel Elmore, Marcia Lewis, William J. Grinker, Brooke Trent and City of New York.

Robert J. Poblete, Pellini & Poblete, New York City, for Defendant and Counter-claimant Diana McGurn.


TRAGER, District Judge:

This case presents the difficult dilemma faced by child protection workers, aptly characterized by the Second Circuit, in van Emrik v. Chemung County, 911 F.2d 863, 866 (1990) (Newman, C.J.), in the following language: "If protective services caseworkers err in interrupting parental custody, they may be accused of infringing the parents' constitutional rights. If they err in not removing the child, they risk injury to the child and may be accused of infringing the child's rights." See also Defore v. Premore, 86 F.3d 48, 49 (2d Cir.1996) (citing van Emrik) ("Once again we confront a case in which publicly employed social workers are obliged to make the difficult choice between taking action to protect a child, thereby risking violation of the parents' rights, and declining to at, thereby risking violation of the child's rights.") In this case the child protection workers, when faced with just this dilemma — under circumstances that almost certainly were the result of abuse that left an infant blind — chose to intervene and interfere with the parents' rights in the belief that one of the parents may well have been responsible for the child's injury. That decision, it turns out, may have been wrong and has brought upon them a lawsuit seeking substantial damages. But, as unfortunate as the situation is, in a world in which child protective workers can not be expected to be omniscient, this court finds it hard to fault these workers. Indeed, under the facts here, if the modest restrictions placed on the parents' rights were improper, it is hard to conceive how an effective system of child protection can be maintained.

Thus, the claim in this case is a marked contrast to the usual situation where the Child Welfare Administration (CWA),1 the City agency responsible for monitoring abused children, is condemned for inaction in the face of reported abuse or for the return of a child to its natural parents despite the agency's knowledge or suspicion of prior abuse of the child.2 To the contrary, neither the child's parents nor the babysitter — the only persons in contact with the child during the period when the injury occurred — had any prior history of violent or abusive conduct. The record indicates that they were caring, responsible individuals. Thus, CWA is now accused of violating the constitutional rights of parents and their child by taking custody of the child, allegedly without probable cause, by its refusal to return a child to his parents' custody without restrictions, and by its failure to seek immediate court approval for its actions.

The injury to the child occurred on December 20, 1988, when he, then six months old, was blinded by being shaken violently. The child was hospitalized on the date of the incident, and the hospital, at the treating physician's direction, filed a report of abuse with the State Child Abuse and Maltreatment Register. Without seeking a court order, on Friday, December 23, 1988, the day after the initial report of abuse was received by CWA, after an evening visit with the parents and the grandparents in the grandparents' home, the CWA caseworker arranged for the child's release from the hospital over the Christmas weekend to his maternal grandparents with the parents given complete access to him, subject only to supervision by the maternal grandparents.3 During the following week, after the child was readmitted to the hospital on Wednesday, December 28th, for further treatment, CWA notified Mr. and Mrs. Dietz that it would seek court approval to restrict the parents' custody of the child and brought a petition to Family Court on Tuesday, January 3, 1989, the beginning of the following week. Until March 1989, the Dietzes were suspects in their child's abuse.

Criminal charges were subsequently brought against the child's babysitter in September 1989, but that indictment was dismissed in March 1991. A second grand jury refused to issue an indictment. The babysitter, Diane McGurn, is a defendant in this action, on a pendent state claim, and has interposed counterclaims for defamation and malicious prosecution against plaintiffs.

The City of New York (City), defendant, and the individual City defendants have moved for summary judgment on grounds that the actions of the City's agents, the individual City defendants, did not violate any constitutional rights of the plaintiffs and were, further, duly authorized under New York State law. In the alternative, the City individual defendants have moved for summary judgment in their personal capacities on the basis of qualified and absolute immunity. As a third alternative, the City offered plaintiffs $1.25 in damages as the full monetary value of any violation of procedural due process rights they may have suffered.



Plaintiffs in this case are James Dietz and his parents, William and Lenore Dietz. It is undisputed that on the morning of December 20, 1988, James, then six months old, was shaken violently by an adult, and, as a result, James suffered massive hemorrhages in his skull which left him blind. No witnesses to this shaking have been identified. The finding that James' injuries were intentionally inflicted as the result of shaking by an adult was made by physicians based on James' symptomatology and medical tests, all indicating that James suffered Whiplash Shaken Infant Syndrome (WSIS). The shaking had to be vigorous and "to have to be at least a minute or longer" in duration. See Giridharan at 13, 17-23, City Ex. F., McHugh Ltr., City Ex. O.4 James first manifested symptoms of distress about 10:30 on the morning of December 20, 1988, at the home of his babysitter, Diane McGurn. His mother, Lenore Dietz, dropped James off at his babysitter's home between 7:00 and 7:30 a.m. on Tuesday, December 20, 1988. His father, William Dietz left for work at 6:30 a.m.

James had been seriously ill for several days prior to December 20, 1988, with symptoms including vomiting and listlessness. In the early morning hours of Saturday, December 17, Mrs. Dietz called James' pediatrician at 1:30 a.m. and 3:00 a.m. and then again at 9:00 a.m. Mrs. Dietz stayed home for two days, Friday and Monday, because of James' illness. She was employed as director of merchandising for a jewelry company. Although James was better on Sunday, December 18, 1988, Mrs. Dietz stayed home on Monday to be sure of his recovery. She had taken James to his pediatrician when he was first ill and called the pediatrician six times during James' illness. She was up all night with him on Saturday, December 17, 1988 Mrs. Dietz stated that she and James woke at about 6:15 a.m. on Tuesday, December 20, 1988, and arrived at the babysitter about 7:15 a.m. L. Dietz Notes, Murray Reply Aff. dated August 2, 1995, Ex. AA. In her deposition in 1992, Dr. Giridharan, the neurologist who treated James at Brookdale Hospital, dismissed the suggestion that James' injury was a continuation of his prior illness. Giridharan at 15-16, City Ex. G.

Mrs. McGurn reported that James was a little cranky when Mrs. Dietz brought him to her on December 20, 1988 about 7:15 a.m. She told Damas that Mrs. Dietz had "carried James like a football underarm." Damas case notes, City Ex. I at 6. (Later the ambulance attendants had to walk up to Mrs. McGurn's sixth floor apartment because the elevator was not working when they arrived McGurn Police Interview, Pltf. Ex. A. However, there is no evidence that the elevator was not working when Mrs. Dietz arrived with James.) Mrs. McGurn reported that, after he arrived, James drank a bottle and then fell asleep. Id. and Damas case notes at 7.

Later James awoke and Mrs. McGurn offered him more milk. There is an inconsistency in the records as to the amount of milk James took at this time. This discrepancy would later become critical to a determination of the time of abuse, but no evidence was presented that Mrs. McGurn or anyone else perceived that this was so in December 1988 when Mrs. McGurn was questioned about this subject. Detective Diggs, who conducted the police investigation of the abuse incident, noted that on December 22, 1988 Mrs. McGurn told him that James took seven ounces. While Mrs. McGurn was giving (or attempting to give) the second bottle to James he became stiff and made "funny sounds." Pltf. Ex. A. In contrast, Damas' case notes of his December 27, 1988 conversation with Mrs. McGurn state that she said only that she had tried to feed the child again. Damas case notes, City Ex. I. Damas stated at his deposition that Mrs. McGurn said that when she attempted to give him a second bottle, James had "started to get stiff, writhing like a snake." Damas I at 99-101, City Ex. H.

When Mrs. McGurn observed James' distress, she called a private ambulance service...

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