Whelehan v. County of Monroe, No. CIV-81-135B(E).

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtELFVIN
Citation558 F. Supp. 1093
Decision Date22 February 1983
Docket NumberNo. CIV-81-135B(E).
PartiesJames WHELEHAN, Individually, Kathleen Whelehan, Individually, Maura Whelehan, by her Parents and Natural Guardians, James Whelehan & Kathleen Whelehan, Margaret Whelehan, by her Parents and Natural Guardians, James Whelehan and Kathleen Whelehan, Plaintiffs, v. The COUNTY OF MONROE, the Department of Social Services of the County of Monroe, the Monroe County Sheriff, Gabriel T. Russo, Individually and in his capacity as Commissioner of the Department of Social Services of the County of Monroe, W. Burton Richardson, Individually and in his capacity as an employee of and/or Commissioner of the Department of Social Services of the County of Monroe, Leonora Simmons, Individually and in her capacity as a Caseworker and Employee with and of the Department of Social Services of the County of Monroe, Paul Caccamise, Individually and in his capacity as a Child Protective Supervisor and Employee of and with the Department of Social Services of the County of Monroe, Celeste Ciaccia, Individually and as a Caseworker and Employee of and with the Department of Social Services of the County of Monroe, Anthony Yazback, Individually and in his capacity as Chief of Detectives and as an Employee of and with the Monroe County Sheriff, Ronald A. Giacobbe, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, Leon Hill, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, Philip Knight, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, Russell Coon, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, Stephen Epstein, Individually and as Attorney for and Employee of the Department of Social Services of the County of Monroe, Defendants.

558 F. Supp. 1093

James WHELEHAN, Individually, Kathleen Whelehan, Individually, Maura Whelehan, by her Parents and Natural Guardians, James Whelehan & Kathleen Whelehan, Margaret Whelehan, by her Parents and Natural Guardians, James Whelehan and Kathleen Whelehan, Plaintiffs,
v.
The COUNTY OF MONROE, the Department of Social Services of the County of Monroe, the Monroe County Sheriff, Gabriel T. Russo, Individually and in his capacity as Commissioner of the Department of Social Services of the County of Monroe, W. Burton Richardson, Individually and in his capacity as an employee of and/or Commissioner of the Department of Social Services of the County of Monroe, Leonora Simmons, Individually and in her capacity as a Caseworker and Employee with and of the Department of Social Services of the County of Monroe, Paul Caccamise, Individually and in his capacity as a Child Protective Supervisor and Employee of and with the Department of Social Services of the County of Monroe, Celeste Ciaccia, Individually and as a Caseworker and Employee of and with the Department of Social Services of the County of Monroe, Anthony Yazback, Individually and in his capacity as Chief of Detectives and as an Employee of and with the Monroe County Sheriff, Ronald A. Giacobbe, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, Leon Hill, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, Philip Knight, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, Russell Coon, Individually and as an Employee, Assistant, Agent and/or Deputy of the Sheriff of the County of Monroe, Stephen Epstein, Individually and as Attorney for and Employee of the Department of Social Services of the County of Monroe, Defendants.

No. CIV-81-135B(E).

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

February 22, 1983.


558 F. Supp. 1094
COPYRIGHT MATERIAL OMITTED
558 F. Supp. 1095
Edwin R. Schulman, Rochester, N.Y., for plaintiffs

Nina T. Kermisch, Rochester, N.Y., for defendants.

MEMORANDUM and ORDER

ELFVIN, District Judge.

BACKGROUND

This civil rights litigation concerns events arising from determinations made in 1979 by certain pediatricians that the urine of infant plaintiff Maura Whelehan contained sperm cells. Upon lawful referral of this information to the authorities, various defendants allegedly took measures and conducted themselves in ways which plaintiffs assert deprived them of the due process of the law and resulted in injury to themselves. The jurisdiction of this court is invoked under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), and under the federal question jurisdictional statute, 28 U.S.C. § 1331. Pendent jurisdiction is sought for certain tort claims not constituting federally cognizable complaints.

The actions complained of are alternatively alleged to have been performed either by policy-making personnel of the institutional defendants, or in accord with existing official policies, or due to the lack of such policies, or through failure to adhere to such policies. Certain acts are alleged to have been performed in accordance with official policy.

Plaintiffs assert that defendants made statements concerning James Whelehan's supposed sexual conduct with his baby

558 F. Supp. 1096
daughter, plaintiff Maura, to his employer, to news media and to various governmental agencies, with knowledge of their falsity and with malicious intention to harm James's reputation and to endanger his employment or impair his prospects of advancement. Such statements are said to have been made both by defendants The Monroe County Sheriff ("the Sheriff") and The Department of Social Services of the County of Monroe ("the Department"), through their employees and more particularly by defendant Anthony Yazback, Chief of Detectives

It appears that at one point after James had come under official suspicion of sexual misconduct with Maura, her pediatricians reported a third finding of sperm cells in her urine, upon which the Department's employees removed Maura from her home. After less than a week of Maura's absence an agreement was reached whereby James left his household and Maura was returned to her mother. It is not clear how long James remained away from his home. Plaintiffs assert that these disruptions of their family life were the result of negligent investigatory practices of the Department and the Sheriff's Department and deprived James and Kathleen of their mutual rights to consortium, and deprived all plaintiffs of their rights to the care, comfort, society and companionship of each other, in violation of their constitutional liberty and privacy interests in maintaining their family life. The procurement of these separations is also said to have lacked due process of law inasmuch as they were brought about through ex parte proceedings from which plaintiffs and their attorneys were purposely excluded, "and/or" by deliberate presentation of false or incomplete evidence and exclusion of exculpatory evidence, "and/or" by threats directed towards plaintiffs by defendants.

The plaintiffs assert further that the negligent investigatory practices of defendants culminated in a Family Court proceeding against James and Kathleen, instituted in accord with official policies of the institutional defendants, in which the adult plaintiffs were charged with child abuse and neglect. Plaintiffs claim this proceeding was commenced and continued with knowledge of its groundlessness and characterize this conduct both as a deprivation of due process and as malicious prosecution. Plaintiffs also claim that, in the course of these proceedings and the preliminaries thereto, defendants deliberately and wrongfully refused and neglected to furnish plaintiffs and the court with exculpatory evidence to which plaintiffs were entitled and also negligently or deliberately supplied plaintiffs' attorneys and the court with false and misleading information.1

Plaintiffs further allege violations of the constitutionally protected right to privacy of James and Kathleen through interrogations, by false representations as to the results of lie detector tests voluntarily taken, which false representations were made to prompt a confession of wrongdoing from James Whelehan (which representations caused him to divulge intimate details of his life) and by forcing James and Kathleen to undergo psychiatric testing. Plaintiffs complain also of defendants' alleged attempts to obstruct plaintiffs' efforts to have the records of the Family Court proceedings expunged and their names removed from lists of child neglecters and molesters kept by various agencies.

Finally, plaintiffs complain that defendants The County of Monroe ("the County")

558 F. Supp. 1097
and Yazback have deliberately made false accusations and used innuendo against James in a state court action that James instituted against these defendants charging them with libel and slander.2

In addition to the injuries recited in the foregoing recapitulation of plaintiffs' claims, it is alleged that as consequences of defendants' conduct James and Kathleen were forced to sell their home and purchase new premises, were psychologically damaged and have incurred expenses in defending against the charges of child abuse and neglect and securing the return of their family to a condition of normalcy.

Plaintiffs each seek $1,000,000 for actual damages and $5,000,000 for punitive damages and request that defendants be ordered to take certain actions aimed at restoring plaintiffs' reputations.

Defendants have moved to dismiss plaintiffs' claims or, alternatively, for summary judgment. In view of the extensive extra-pleading materials that have been submitted by both sides on this motion, it will be treated as one for summary judgment under Fed.R.Civ.P. rule 56. Defendants contend that the instant action is time-barred by the applicable statute of limitations, that the Complaint fails to state a cause of action under 42 U.S.C. § 1983, that the Department is not a legal entity which may be sued, that the County, the Department, the Sheriff, defendant Gabriel T. Russo and defendant W. Burton Richardson are not liable under the theory of respondeat superior and that all defendants are protected from the instant suit by either absolute or qualified immunity.

ANALYSIS

I. Statute of Limitations

Defendants do not contend that plaintiffs' cause of action is time-barred under the three-year statute of limitations that the United States Court of Appeals for the Second Circuit has consistently held applicable to suits brought under 42 U.S.C. § 1983 (e.g., Singleton v. City of New York, 632 F.2d 185 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); Taylor v. Mayone, 626 F.2d 247 (2d Cir.1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir.1980); Meyer v. Frank, 550 F.2d 726 (2d Cir.1977), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977). Defendants contend rather that the propriety of applying the three-year statute, borrowed from New York's Civil Practice Law and Rules ("CPLR") § 214(2), requires reexamination in light of the decisions in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), State v. Cortelle Corp., 38 N.Y.2d 83, 378 N.Y.S.2d 654, 341 N.E.2d 223 (1975), and Staffen v. City of Rochester, 80 A.D.2d 16, 437 N.Y.S.2d 821 (4th Dept.1981). Defendants urge that these decisions require the rejection of CPLR § 214(2) in favor of the one-year-and-ninety-days period for bringing suits against municipalities provided by New York's General Municipal Law § 50-i, and the one-year limitations period for suits against a sheriff and his deputies under CPLR § 215(1).

In response to this claim of defendants it suffices to note that it has recently been thoroughly analyzed and rejected by...

To continue reading

Request your trial
52 practice notes
  • Pitts v. County of Kern, No. F021678
    • United States
    • California Court of Appeals
    • October 8, 1996
    ...from liability stemming from any act for which its employees have absolute immunity, citing Whelehan v. County of Monroe (W.D.N.Y.1983) 558 F.Supp. 1093, 1108. Second, County has no ability to hire, fire, or discipline Jagels, who is an elected public official. We will conclude that neither......
  • Callahan v. Lancaster-Lebanon Intermediate Unit 13, Civ. A. No. 93-CV-4250.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 5, 1994
    ...and Youth Service, 702 F.Supp. 1184 (E.D.Pa.1988); Mazor v. Shelton, 637 F.Supp. 330 (N.D.Cal.1986); Whelehan v. County of Monrow, 558 F.Supp. 1093 (W.D.N.Y. 1983), we need not address the issue at this point since we have already granted defendants qualified immunity. We are mindful, howev......
  • Millspaugh v. WABASH CTY. DEPT. OF PUBLIC WELFARE, No. S86-53
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 31, 1990
    ...M. v. Matava, 668 F.Supp. 703 (D.Mass.1987); Fogle v. Benton County SCAN, 665 F.Supp. 729 (W.D.Ark.1987); Whelehan v. Monroe County, 558 F.Supp. 1093 (W.D.N.Y.1983), while other courts have given qualified immunity to those administrative and investigative functions of case workers, Babcock......
  • In re Scott County Master Docket, No. Civ. 3-85-774
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 2, 1985
    ...liability. To support this contention, they rely on Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984), and Whelehan v. County of Monroe, 558 F.Supp. 1093 (W.D.N.Y.1983). Both of these cases held that social workers investigating sexual abuse allegations were absolutely immune. These courts r......
  • Request a trial to view additional results
52 cases
  • Pitts v. County of Kern, No. F021678
    • United States
    • California Court of Appeals
    • October 8, 1996
    ...from liability stemming from any act for which its employees have absolute immunity, citing Whelehan v. County of Monroe (W.D.N.Y.1983) 558 F.Supp. 1093, 1108. Second, County has no ability to hire, fire, or discipline Jagels, who is an elected public official. We will conclude that neither......
  • Callahan v. Lancaster-Lebanon Intermediate Unit 13, Civ. A. No. 93-CV-4250.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 5, 1994
    ...and Youth Service, 702 F.Supp. 1184 (E.D.Pa.1988); Mazor v. Shelton, 637 F.Supp. 330 (N.D.Cal.1986); Whelehan v. County of Monrow, 558 F.Supp. 1093 (W.D.N.Y. 1983), we need not address the issue at this point since we have already granted defendants qualified immunity. We are mindful, howev......
  • Millspaugh v. WABASH CTY. DEPT. OF PUBLIC WELFARE, No. S86-53
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 31, 1990
    ...M. v. Matava, 668 F.Supp. 703 (D.Mass.1987); Fogle v. Benton County SCAN, 665 F.Supp. 729 (W.D.Ark.1987); Whelehan v. Monroe County, 558 F.Supp. 1093 (W.D.N.Y.1983), while other courts have given qualified immunity to those administrative and investigative functions of case workers, Babcock......
  • In re Scott County Master Docket, No. Civ. 3-85-774
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 2, 1985
    ...liability. To support this contention, they rely on Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984), and Whelehan v. County of Monroe, 558 F.Supp. 1093 (W.D.N.Y.1983). Both of these cases held that social workers investigating sexual abuse allegations were absolutely immune. These courts r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT