Hoisington v. County of Sullivan

• Decision Date: 23 June 1999
• Docket Number: No. 95 Civ. 10653(CM).,95 Civ. 10653(CM).
• Citation: 55 F.Supp.2d 212
• Parties: Nelida HOISINGTON, as Parent and Natural Guardian of Camara Hoisington, an Infant Under the Age of 14 Years, Plaintiff, v. COUNTY OF SULLIVAN and Sullivan County Department of Social Services, Bernadette Gilmore, Vincent Gilmore, Barbara Faust and Eloise Adams, Defendants.
• Court: U.S. District Court — Southern District of New York

55 F.Supp.2d 212

Nelida HOISINGTON, as Parent and Natural Guardian of Camara Hoisington, an Infant Under the Age of 14 Years, Plaintiff, v. COUNTY OF SULLIVAN and Sullivan County Department of Social Services, Bernadette Gilmore, Vincent Gilmore, Barbara Faust and Eloise Adams, Defendants.

No. 95 Civ. 10653(CM).

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

June 23, 1999.

Robert J. Camera, Finkelstein, Levine, Gittelsohn & Tetenbaum, Newburgh, NY, Nanette E. Decea, Cooper, Leibowitz, Royster & Wright, Elmsford, NY, for Camara Hoisington.

Michael Frey, Appelbaum, Bauman & Appelbaum, Esqs., Liberty, NY, for County of Sullivan, Sullivan County Department of Social Services.

Bernadette Gilmore, Monticello, NY, defendant pro se.

Vincent Gilmore, Monticello, NY, defendant pro se.

Barbara Faust, Hollis, NY, pro se.

Eloise Adams, Hollis, NY, pro se.

MEMORANDUM DECISION AND ORDER GRANTING COUNTY OF SULLIVAN AND SULLIVAN COUNTY SOCIAL SERVICES' MOTIONS FOR SUMMARY JUDGMENT DISMISSING THE FEDERAL CLAIMS AND DECLINING TO EXERCISE PENDENT JURISDICTION OVER THE REMAINING STATE CLAIMS AS AGAINST ALL DEFENDANTS

McMAHON, District Judge.

Background Facts

In November 1992, Nelida Hoisington, chronically inebriated and facing imminent arrest and imprisonment, voluntarily turned over custody and control of her two daughters, Camara and Cyre, to Bernadette and Vincent Gilmore. The Gilmores were not employees of Sullivan County or foster parents in the county's foster care program. Indeed, it was precisely to keep her children out of a governmentally-selected foster home that Nelida turned to her friends, the Gilmores, whose childrearing abilities she held in high regard. She was then incarcerated in the Sullivan County jail.

In January 1993, the Sullivan County Department of Social Services petitioned the Family Court of Sullivan County for a determination that Camara and her sister were neglected children. On June 25, 1993, the Family Court entered an Order of Fact-Finding and Disposition, which declared that Nelida Hoisington failed to provide proper supervision for the two children. The Court placed the girls in the care and custody of Bernadette Gilmore (with whom they had been living for some eight months) and directed that the Department of Social Services "... is to have supervision of Respondent and the household where the children reside ..." and "... is to provide preventive services to the household where the children reside...." See Order of Fact-Finding and Disposition, attached as Ex. D to Defendant's Motion for Summary Judgment.

On or about March 21, 1994, Camara Hoisington was burned in a bathtub while in the care and custody of Bernadette Gilmore. Mrs. Gilmore placed Camara in a bathtub with the water running and left the bathroom momentarily to prevent another child in the home from falling off a bed. While she was out of the bathroom, a third child turned on the water in the kitchen sink. This allegedly caused the temperature of the water running into the tub to rise, which scalded Camara.

Plaintiff commenced this action against Sullivan County and its Department of Social Services, alleging that they violated Camara's constitutional rights in violation of 42 U.S.C. § 1983. The Sullivan County defendants are also named in a common law negligence claim. Plaintiff asserted various common law causes of action against the individual defendants; there are no Federal claims pending against any of the four individuals.

In April 1999, this Court appointed Nanette Decea, Esq., of the law firm of Cooper & McCann, as guardian ad litem for Camara, after being advised that proceedings were pending in Travis County, Texas, to terminate Nelida's parental rights due to her continuing neglect of Camara.

The Motions for Summary Judgment

In November 1998, Sullivan County and its Department of Social Services moved for summary judgment dismissing the Federal claims against them and either dismissing the State law negligence claim on the merits or asking the Court not to exercise supplemental jurisdiction over the State causes of action. That motion, which is opposed by Plaintiff, is currently before the Court. It will be granted only if there is no genuine issue of material fact and the moving parties are entitled to judgment as a matter of law, Fed.R.Civ.P. 56(c). Of course, this Court must resolve all ambiguities and draw all reasonable inferences in favor of Camara, the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). But unless there is sufficient evidence — of a non-conclusory and non-speculative nature favoring the non-moving party — for a jury to return a verdict for that party, summary judgment is warranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Having reviewed the record and the legal arguments of counsel, I conclude that the motion to dismiss all of Plaintiff's claims against the Sullivan County Department of Social Services must be granted, as must the motion to dismiss Plaintiff's § 1983 claims against Sullivan County.

Motion by Defendant Sullivan County Department of Social Services

The Department of Social Services' motion for summary judgment dismissing all claims against it, under both Federal and State law, is granted. Federal courts must look to state law to determine whether a government department may be sued. Fed.R.Civ.P. 17(b). Under New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit, see, e.g. Adams v. Galletta, 966 F.Supp. 210, 212 (S.D.N.Y.1997); Umhey v. County of Orange, 957 F.Supp. 525, 530-31 (S.D.N.Y. 1997), and no claims lie directly against the Department. In order to forestall the filing of further claims against the DSS and the motion practice that will inevitably result, the Court agrees to exercise supplemental jurisdiction over the common law claim against the Department (Count 2) for the sole purpose of dismissing it with prejudice.

Motion to Dismiss Federal Claims Against Sullivan County

To recover damages under 42 U.S.C. § 1983, Plaintiff cannot simply allege that the local government, through an employee or agent, inflicted some injury on Camara. Rather, she must demonstrate that Camara was deprived of her constitutional rights pursuant to some policy, practice or custom of the County. Monell v. Department of Social Svcs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

There are two ways to approach that question: by determining whether Plaintiff has adduced evidence establishing the existence of a policy, practice or custom, see, e.g., Monell, 436 U.S. at 694-95, 98 S.Ct. 2018; Goldberg v. Town of Rocky Hill, 973 F.2d 70, 72 (2d Cir.1992) (holding that city's legislative decision to eliminate supernumerary police officer was municipal policy and therefore, under Monell, the town was not entitled to immunity), or by looking at whether any violation of the Constitution took place at all, see, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (holding that government officials may be subject to civil liability if their conduct violates clearly established statutory or constitutional rights of which a reasonable person should be aware); Lewis v. Cowen, 165 F.3d 154, 166 (2d Cir.1999) (granting city officials qualified immunity because the plaintiff, a spokesperson for the state lottery agency, did not have a First Amendment right to disregard his supervisor's instructions); Montville v. Lewis, 87 F.3d 900, 902-03 (7th Cir.1996) (holding that city building inspectors were entitled to qualified immunity because the inspectors had a reasonable basis for believing that a building search was consented to and did not, therefore, violate the Fourth Amendment). Defendants rely on the former argument. They note that the "policy, practice or custom" identified by Plaintiff is Sullivan County's alleged failure to train its social workers and foster parents about the dangers of scalding and how to prevent it, and they contend that this failure (assuming it to be true) does not amount to "deliberate indifference" to the rights of County inhabitants, which is the showing required for lack of training to rise to the level of an actionable policy or practice. See Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Walker v. City of New York, 974 F.2d 293, 297 (2d Cir.1992).

While there would appear to be much to commend the County's argument, it is not necessary to reach it. Viewing the allegations of the complaint most favorably to Camara, she does not allege, or provide evidence to support any finding of, a constitutional violation. That being so, she cannot recover under § 1983.

The gravamen of Plaintiff's complaint is fourfold: first, that Gilmore, an individual who had been placed under the supervision of the Department of Social Services by the Sullivan County Family Court, negligently permitted Camara to be scalded; second, that the County was aware of the risk of scalding generally and negligently failed to train its employees in how to prevent it; third, that the County was aware of a particular risk to Camara because the building inspector was advised about the Gilmore's quirky hot water system; and last, that the County, which inspected the home during Camara's placement there, negligently failed to check the condition of the water heater while being aware that there was a problem with the hot water system. On the record before me, at least the third (and key) part of Plaintiff's argument is factually fallacious. While Bernadette Gilmore testified at her deposition that she knew use of hot water in one location would cause the temperature to rise in the bathroom—indeed, she testified that she herself had...