Tylena M. v. Heartshare Children's Services

• Decision Date: 19 September 2005
• Docket Number: No. 02 Civ. 8401(VM).,02 Civ. 8401(VM).
• Citation: 390 F.Supp.2d 296
• Parties: TYLENA M. and Latisha M., by their mother Debra M., Plaintiffs, v. HEARTSHARE CHILDREN'S SERVICES, Eleanor Poole, Rosalyn Chernofsky, Vincent Adrien, Marilyn DeSevo, Brooke Trent, City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

390 F.Supp.2d 296

TYLENA M. and Latisha M., by their mother Debra M., Plaintiffs, v. HEARTSHARE CHILDREN'S SERVICES, Eleanor Poole, Rosalyn Chernofsky, Vincent Adrien, Marilyn DeSevo, Brooke Trent, City of New York, Defendants.

No. 02 Civ. 8401(VM).

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

September 19, 2005.

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Carolyn A. Kubitschek, Lansner & Kubitschek, New York, NY, for Plaintiffs.

John B. Higgins, Murphy & Higgins, L.L.P., New Rochelle, NY, Suzanne M. Halbardier, Barry, McTiernan & Moore, New York, NY, for Defendants.

DECISION AND ORDER

MARRERO, District Judge.

Plaintiffs Tylena M. ("Tylena") and Latisha M. ("Latisha") (together, "Plaintiffs"), through their adoptive mother, Debra M., filed this action pursuant to 42 U.S.C. § 1983 ("§ 1983") against Heartshare Children's Services ("Heartshare"), the City of New York (the "City"), and several of Heartshare's and the City's employees (collectively, "Defendants"). The complaint alleges that Defendants failed to protect Tylena and Latisha from abuse while they were in the custody of the City and Heartshare as foster children.

Plaintiffs assert five causes of action against the City and/or certain of its employees: (1) that the City, Vincent Adrien ("Adrien"), during the relevant time a caseworker for the City's Child Welfare Administration ("CWA"), presently known as the Administration for Children's Services ("ACS"), and Marilyn DeSevo ("DeSevo"), Adrien's supervisor during some of the relevant time, deprived Plaintiffs of their liberty and privacy and of their right to be free from unjustified intrusions on their personal security, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, by improperly supervising Plaintiffs and failing to protect them from abuse while they were in government-supported foster care; (2) that the City and Brooke Trent ("Trent"), who served as director of CWA during part of the relevant time, deprived Plaintiffs of their liberty and privacy and of their right to be free from unjustified intrusions on their personal security, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, by improperly training the City's foster care employees; (3) that the City, Adrien, DeSevo, and Trent acquiesced in the use of excessive force against Plaintiffs, in violation of the Fourth and Fourteenth Amendments; (4) that the City, Adrien, DeSevo, and Trent failed to exercise the highest degree of reasonable care during their supervision of Plaintiffs by failing to protect them from abuse; and (5) that Adrien and DeSevo violated their obligation to carry out social work duties in a competent, professional manner and that, as a result, Plaintiffs were subjected to repeated physical, sexual and emotional abuse.

Defendants have moved for summary judgment. By Decision and Order dated October 25, 2004, the Court denied summary judgment with respect to Plaintiffs' claims against Heartshare and its employees (the "Agency Defendants"). The Court now considers the summary judgment motion filed on behalf of the City and its employees (the "City Defendants"). For the reasons stated below, that motion is granted in part and denied in part.

Also before the Court is Plaintiffs' motion pursuant to Fed.R.Civ.P. 11 ("Rule 11") and 28 U.S.C. § 1927 for sanctions to be imposed against the Agency Defendants and their attorneys, Murphy & Higgins. Plaintiffs' motion is based on the allegation that the motion for summary judgment filed by the Agency Defendants and their attorneys was frivolous. For the reasons stated below, Plaintiffs' Rule 11 motion is denied.

I. FACTUAL BACKGROUND¹

CWA removed Tylena and Latisha from the custody of their biological mother on or about August 9, 1988 and January 27, 1989, respectively, and placed them in foster care. At the time of their placement in foster care, Tylena was one year and eight months old and Latisha was less than one month old. CWA took this action in response to substantiated allegations that their birth mother was using crack cocaine and allowing Tylena to be sexually abused.

CWA placed Tylena and Latisha under the direct supervision of Heartshare, formerly known as the Catholic Guardian Society, a not-for-profit corporation authorized by New York Social Services Law to provide foster care services. Heartshare in turn placed Tylena and Latisha in the home of Ora Heathington ("Heathington"), a certified foster parent. The children's primary caretaker at the Heathington home was Heathington's daughter, Monique Vizcarrando ("Monique"). Monique's husband, Jose Vizcarrando ("Jose"), also resided in the Heathington home.

Plaintiffs allege that, while residing in the Heathington home, they were repeatedly beaten and locked in closets for long periods of time. They further allege that Jose repeatedly raped Tylena, attempted to rape Latisha, and forced both children to perform oral sex on him. Plaintiffs allege that this abuse occurred over a period of more than two years.

On August 5, 1991, plaintiff Debra M., Tylena's and Latisha's maternal aunt and now adoptive mother, brought the children to the Harlem Hospital because Latisha was complaining of pain in her vaginal area. A doctor there examined Latisha and determined that she had been sexually abused. Both children were admitted to the hospital for sexual abuse treatment. The City's Office of Confidential Investigations investigated the incident and concluded that both Latisha and Tylena had been sexually abused by Jose. After their admission to the Harlem Hospital on August 5, 1991, the children did not return to the Heathington home. On November 7, 1991, they were placed in the home of Debra M.

II. LEGAL STANDARDS

A. SUMMARY JUDGMENT

In order to prevail on a motion for summary judgment, the moving party must demonstrate that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether genuine issues of material fact exist, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). The nonmovant, however, cannot create a genuine issue of fact through "conclusory allegations, conjecture and speculation." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998).

B. LIABILITY UNDER § 1983

Section 1983 creates a cause of action against any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any... person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The Second Circuit has held that, "[w]hen individuals are placed in custody or under the care of the government, their governmental custodians are sometimes charged with affirmative duties, the nonfeasance of which may violate the constitution." Doe v. New York City Dep't. of Social Services, 649 F.2d 134, 141 (2d Cir.1981). In particular, "children in foster care [have] a substantive due process right [under the Fourteenth Amendment] to protection from harm." Marisol A. by Forbes v. Giuliani, 929 F.Supp. 662, 675 (S.D.N.Y.1996).

In order for a governmental custodian to be held liable under § 1983 for the nonfeasance of affirmative duties to those in its custody, two requirements must be satisfied: (1) "the omissions must have been a substantial factor leading to the denial of a constitutionally protected liberty or property interest;" and (2) "the officials in charge of the agency being sued must have displayed a mental state of `deliberate indifference' in order to `meaningfully be termed culpable' under § 1983."² Doe, 649 F.2d at 141 (citing Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); quoting Turpin v. Mailet, 579 F.2d 152, 166 (2d Cir.1978)).

III. DISCUSSION

A. SECTION 1983 CLAIMS AGAINST THE CITY AND THE CITY EMPLOYEES IN THEIR OFFICIAL CAPACITY

To the extent that Plaintiffs' claims are asserted against the City itself, they require proof that "the entity's policy or custom played a part in the violation of federal law." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Plaintiffs' claims against the individual defendants in their official capacity also require such proof because "[a] Section 1983 suit against a municipal officer in his official capacity is considered a suit against the municipality itself...." McInnis v. Town of Weston, 375 F.Supp.2d 70, 86 (D.Conn.2005) (citing Brandon v. Holt, 469 U.S. 464, 472, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)).

1. Failure to Supervise

Municipal policymakers may be held liable in their official capacity under § 1983 for a failure to supervise if they "should have known that inadequate ... supervision was `so likely to result in the violation of constitutional rights, that [they] ... can reasonably be said to have been deliberately indifferent to the need.'" Walker v. City of New York, 974 F.2d 293, 298 (2d Cir.1992) (quoting City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Plaintiffs argue that the City's policies concerning the supervision of children in foster care were conducive to violations of constitutional rights.³ The crux of Plaintiffs' claim in this regard is that the "City defendants established no mechanism by which to ensure that the information provided ...