Velez v. Reynolds, 02 CIV.8315 JGK.

• Decision Date: 10 July 2004
• Docket Number: No. 02 CIV.8315 JGK.,02 CIV.8315 JGK.
• Citation: 325 F.Supp.2d 293
• Parties: Lisette VELEZ, on behalf of herself and her minor children John Velez and Steven Pagan, Plaintiffs, v. Marilyn REYNOLDS, William C. Bell, Nicholas Scoppetta, Child Development Support Corporation, the City of New York, Evelyn Ortiz, and Kathia Brown, Defendants.
• Court: U.S. District Court — Southern District of New York

325 F.Supp.2d 293

Lisette VELEZ, on behalf of herself and her minor children John Velez and Steven Pagan, Plaintiffs, v. Marilyn REYNOLDS, William C. Bell, Nicholas Scoppetta, Child Development Support Corporation, the City of New York, Evelyn Ortiz, and Kathia Brown, Defendants.

No. 02 CIV.8315 JGK.

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

July 10, 2004.

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Scott A. Bursor, Law Offices of Scott A. Bursor, New York, NY, for Plaintiffs.

Alan R. Meller, Bivona & Cohen, P.C., Stephen Kitzinger, Lisa Grumet, New York, NY, for Defendants.

OPINION and ORDER

KOELTL, District Judge.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 and arising out of the prosecution of Lisette Velez ("Velez" or "the plaintiff") for neglect and the removal and retention of her children, John Velez and Stephen Pagan, by the New York City Administration for Children's Services ("ACS"). The plaintiff alleges primarily that ACS removed her children pursuant to an alleged unconstitutional practice and policy of prosecuting battered mothers for neglect solely because they were victims of domestic violence.

The plaintiff, on behalf of herself and her minor children, asserts claims for violations of the Fourth, Ninth, Thirteenth Fourteenth, and Nineteenth Amendments against: the City of the New York ("the City"); ACS caseworkers Evelyn Ortiz and Kathia Brown in their individual and official capacities; and ACS Commissioner William C. Bell and former Commissioner Nicholas Scoppetta in their individual and official capacities (collectively, "the City defendants"). In addition, the plaintiff asserts constitutional claims, along with state law claims of intentional infliction of emotional distress and negligence, against the City Development Support Corporation ("CDSC")-an ACS contract agency assigned to the plaintiff's case-and CDSC's employee, social worker Marilyn Reynolds (collectively, the "CDSC defendants").

The City defendants have now moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 dismissing the claims against them on multiple grounds. The City defendants argue that the Court lacks subject matter jurisdiction over the constitutional claims under the Rooker-Feldman doctrine, that certain claims are barred by the statute of limitations, and that the plaintiffs cannot show that any City practice, policy, or custom caused the alleged violations. The City asserts qualified immunity with respect to the claims against Ortiz and Brown in their individual capacities, and it argues that that there is no basis for finding that any of the individual City defendants were personally involved in depriving the plaintiffs of any rights. The CDSC defendants similarly move for summary judgment dismissing claims against them.

I.

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. Ltd. P' ship, 22 F.3d 1219, 1223 (2d Cir.1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir.1998).

II.

The following facts are undisputed unless otherwise noted.

On September 17, 1998, pursuant to the New York Family Court Act § 1024, ACS removed the plaintiff's children, John Velez and Steven Pagan, from school after learning that the plaintiff had been assaulted the previous night by Steven Pagan, Sr. ("Pagan"), the father of one of her children. (See Am. Compl. ¶ 13, attached as Ex. A to Decl. of Kimberly Conway ("Conway Decl."), dated Oct. 17, 2003; City Defs.' Local Civil Rule 56.1 Statement of Undisputed Facts ("City Defs. 56.1 Stmt.") ¶ 1.) On September 18, 1998, ACS caseworker Evelyn Ortiz filed with the Bronx Family Court petitions for each child alleging neglect by the plaintiff and Pagan. (See City Defs. 56.1 Stmt. ¶ 2; Conway Decl. Ex. E (Petitions).)

The petitions explained that ACS had received three reports from a source of "ongoing domestic violence between [the plaintiff and Pagan] that occurs in the presence of the children." (See Conway Decl. Ex. E.) The source alleged that the domestic violence was inhibiting John's education and also alleged drug and alcohol abuse by the plaintiff. (See id.; City Defs. 56.1 Stmt. ¶ 3.) Although not explicitly stated in the petitions, the reports were that the plaintiff was being abused by Pagan. (See generally Pl.'s Local Rule 56.1 Statement of Material Facts ("Pl. 56.1 Stmt.") ¶¶ 1-2, 28, 39-42; Decl. of Scott A. Bursor ("Bursor Decl."), dated Oct. 30, 2003, Ex. 10 (State Central Registry ("SCR") Summary Report).) Ortiz had been assigned to the case since the first report on November 19, 1997; she had visited Velez's family multiple times and had provided referrals for domestic violence counseling and drug screening. (See Pl. 56.1 Stmt. ¶¶ 4, 50-51.)

The same day that the petitions were filed, September 18, 1998, the Bronx Family Court held a preliminary hearing pursuant to Family Court Act § 1027. (See City Defs. 56.1 Stmt. ¶ 4. See generally Tr. of Sept. 18, 1998 Hearing ("Sept. 1998 Tr."), attached as Bursor Decl. Ex. 14.) The plaintiff was present and represented by counsel, but the plaintiff disputes that she received any legal advice from her court-appointed counsel, Karen Steinberg. (See id.; Decl. of Lissette Velez ("Velez Decl."), dated Oct. 20, 2003, ¶¶ 2-3.) Legal Aid counsel represented the children until the court appointed Norton Pinzer as legal guardian for the children. (See City Defs. 56.1 Stmt. ¶ 4.) At the conclusion of the hearing, with the plaintiff's consent expressed by her attorney, the court ordered the children removed and remanded to ACS custody pending further proceedings. (See id. ¶ 5; Conway Decl. Ex. G (Orders).)

On November 30, 1998, the family court held a fact-finding and dispositional hearing pursuant to Family Court Act § 1047. (See City Defs. 56.1 Stmt. ¶ 10; Tr. of Nov. 30, 1998 Hearing ("Nov. 1998 Tr."), attached as Bursor Decl. Ex. 17.) The plaintiff was not present and claims she was not notified of the hearing. (See Velez Decl. ¶ 5.) A court-appointed attorney named Sara Somers appeared on the plaintiff's behalf, but the plaintiff claims that she never met with Somers or authorized her representation. (See id. ¶ 6.) Somers requested an adjournment so that her client could be present, but the request was denied, and Somers thereafter did not participate in the proceedings. (See Nov. 1998 Tr. at 3-4, 12.) Ortiz was called as the sole witness, and she repeated the allegations of domestic violence in the home, educational neglect, and drug and alcohol abuse. (See id. at 4-9.) Ortiz was not cross-examined; Pinzer, appearing on behalf of the children, asked no questions and joined in ACS's application. (See id. at 9-10; City Defs. 56.1 Stmt. ¶ 11.) Based on Ortiz's testimony, the court ordered the children removed from the plaintiff's custody and placed with ACS to reside with their respective paternal grandmothers for a period of twelve months; the orders also required the plaintiff and Pagan to complete drug, parental skills, and domestic violence programs. (See City Defs. 56.1 Stmt. ¶¶ 13-15; Conway Decl. Ex. J (Orders of fact-finding and disposition).)

After the children's initial removal, ACS made arrangements with CDSC, a foster care agency under contract with ACS, to provide services to the plaintiff. (City Defs. 56.1 Stmt. ¶ 6.) As of December 2000, Marilyn Reynolds was the CDSC social worker assigned to the case. (See Am. Compl. ¶ 17; Tr. of Dep. of Marilyn Reynolds ("Reynolds Dep."), dated July 28, 2003, at 17,...