Grippe et al v. City of New York et al, No. 1:2012cv00893 - Document 68 (E.D.N.Y. 2013)
Court Description: ORDER denying 44 Motion for Summary Judgment; granting 50 Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 8/13/2013. (Levy, Joshua)
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Grippe et al v. City of New York et al Doc. 68 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x YVETTE PUMA-GRIPPE, MEMORANDUM AND ORDER Plaintiff, 12 Civ. 8 93 (ILG) (LB) - against CITY OF NEW YORK, et al., Defendants. ------------------------------------------------------x GLASSER, Sen ior United States District J udge: Plaintiff Yvette Pum a-Grippe brings this action against the City of New York (“City”), New York City Adm inistration for Children’s Services (“ACS”), and current and form er ACS em ployees (“individual defendants,” collectively “defen dants”), alleging that her m inor daughter, V.G., was wrongfully rem oved from her custody in violation of her federal an d state constitutional rights. Currently before the Court is plaintiff’s m otion for sum m ary judgm ent pursuant to Rule 56 of the Federal Rules of Civil Procedure, and defendants’ cross-m otion for sum m ary judgm ent. For the reasons set forth below, plaintiff’s m otion is hereby DENIED, and defendants’ m otion is hereby GRANTED. BACKGROU N D I. Facts Unless otherwise noted, the following facts are undisputed. Plaintiff m et Anthony Grippe in 1999 and they m arried in 20 0 2. Rauchberg Decl. ¶ 7, Ex. F at ACS 243 (Dkt. No. 57-6). On March 9, 20 0 1, they had a daughter, V.G. Id. ¶ 6, Ex. E at SI FC 281. Plaintiff and Mr. Grippe separated in August 20 0 7, and plaintiff m aintained custody of V.G. Id. ¶¶ 10 , 26, Exs. I (Nov. 8 , 20 0 7 Hr’g), Y (Pum a-Grippe Dep.) at 59- 1 Dockets.Justia.com 60 . This led to years of contentious fam ily court proceedings that included claim s of neglect, dueling fam ily offense petitions, orders of protection, and disputes over visitation rights. Id. ¶¶ 6, 10 , Exs. E, I. Durin g the course of these proceedings, attorney Richard Katz was appointed as V.G.’s law guardian to represent her interests. Id. ¶ 10 , Ex. I (Nov. 15, 20 0 7 Hr’g) at 4. A. ACS In ve s tigatio n On March 5, 20 0 8, ACS received a report about plaintiff alleging that: Mother is paranoid and is hallucinating and is failing to provide a safe environm ent for [V.G.]. Mother is abusing drugs and is getting high on oxicodine [sic] while she is the sole caretaker of the child. On Monday 3/ 3/ 0 8 m other was observed high and the child was with her. Mother feel [sic] that the landlord is poisoning her and that he is taping her. Due to m other’s m ental state there is great concern for child’s safety. Id. ¶ 2, Ex. A at ACS 4-6. Plaintiff was just shy of her seventh birthday at the tim e of the report. Id. ¶ 7, Ex. F at ACS 277. In response to the report, Majidah Shabazz, a caseworker in the ACS Staten Island office, was assigned to investigate. Pl.’s Ex. A (Shabazz Dep.) at 18-19 (Dkt. No. 63). During the investigation, V.G. told Shabazz that she has a regular relationship with her m other, “has never observed anything bizarre,” and “is happy an d likes school.” Rauchberg Decl. ¶ 3, Ex. B at ACS 13, 15. V.G.’s teachers agreed that V.G. “seem s to be very happy” and “seem ed to be very taken care of.” Id. at ACS 12; Pl.’s Ex. A at 23. However, V.G. also stated that plaintiff “has a secret and told her not to tell anyone what it is.” Rauchberg Decl. ¶ 3, Ex. B at ACS 13. Mr. Grippe told Shabazz that although he never observed plaintiff m istreat V.G. or act bizarrely, “she is known to m ake false allegations,” including accusing him of “poisoning her and videotaping her.” Id. at ACS 15. Sim ilarly, a social worker who m et with plaintiff on March 3, 20 0 8 to discuss her 2 possible eviction stated that plaintiff is “very strange and unusual” because she is worried that “people are poisoning her, videotaping her, and chasing her.” Id. at ACS 11. 1 The social worker thought that plaintiff was not sufficiently m entally stable to care for V.G. Id. Finally, V.G. stated that she was alm ost struck by a bus while with plaintiff a few days earlier. Rauchberg Decl. ¶ 11, Ex. J at 20 . According to Dom inique Gagliardo, plaintiff’s adult daughter from a previous relationship, on March 9, 20 0 8, plaintiff took V.G. out of the car while stopped at a red light and walked into oncom ing traffic because she believed that som eone was chasing her. Id. ¶¶ 3, 11, Ex. B at ACS 30 , Ex. J at 19-20 . 2 Based on the allegations in the report and Shabazz’s investigation, ACS determ ined that V.G.’s safety was in danger due to plaintiff’s paranoia, delusions, and hallucinations, an d Shabazz’s supervisor directed her to rem ove V.G. from plaintiff’s custody. Id. ¶ 5, Ex. D at ACS 45; Pl.’s Ex. A at 25. On March 11, 20 0 8, Shabazz and ACS caseworker Stephanie Nieves rem oved V.G. from school and tem porarily placed her with her teacher. Rauchberg Decl. ¶ 3, Ex. B at ACS 29. Plaintiff was then inform ed that V.G. had been rem oved from her custody. Id. B. Fam ily Co u rt Pro ce e d in gs The next day, ACS filed a neglect petition in Staten Island Fam ily Court in accordance with Article 10 of the New York Fam ily Court Act, stating that V.G.’s 1 ACS later learned that plaintiff’s landlord evicted her on March 20 , 20 0 8 due to these allegations. Rauchberg Decl. ¶ 5, Ex. D at ACS 45. 2 Plaintiff denies drivin g V.G. that day, but Shabazz was unable to interview her despite several attem pts. Id. ¶¶ 3, 11, Ex. B at ACS 11-16, Ex. J at 35-36, 43-44. Nonetheless, plaintiff stated that on a separate occasion a car followed her while driving V.G. hom e from school, tailgated her, and forced her to swerve into oncom ing traffic. Id. ¶ 26, Ex. Y at 120 -24. 3 em ergen cy rem oval was required because plaintiff “suffers from m ental illness which renders her incapable of providing m inim ally adequate care for the child.” Id. ¶ 7, Ex. F at ACS 277-85. The case was brought before J udge McElrath, who held an evidentiary hearing at plaintiff’s request. Id. ¶ 11, Ex. J at 3-6. After hearing testim ony from both Shabazz and plaintiff, J udge McElrath noted the sim ilarity between plaintiff’s accusations against her landlord and Mr. Grippe, determ ined that plaintiff exhibited “a certain am ount of paranoia,” an d concluded that “leaving the child in the hom e or rem aining in the hom e would be contrary to the best interest and welfare of the child and present im m inent risk to the child.” Id. at 58-59. J udge McElrath then rem anded V.G. to ACS with weekly visitation for plaintiff and Mr. Grippe, ordered psychiatric evaluation of plaintiff, and directed ACS to in vestigate Mr. Grippe “as a possible resource for the child.” Id. at 59-61. On March 27, 20 0 8, the parties again appeared before J udge McElrath who appointed Katz as V.G.’s law guardian since he had previously served as such. Id. ¶ 12, Ex. K at 3. ACS then recom m en ded, based on its investigation, placing V.G. with Mr. Grippe. Id. at 4. Plaintiff objected, so J udge McElrath stayed his order releasing V.G. to Mr. Grippe to “allow respondent m other the opportunity to seek appellate relief.” Id. at 6. The Appellate Division den ied plaintiff’s application for a stay, and, on April 2, 20 0 8, V.G. was placed with Mr. Grippe. Id. ¶¶ 4, 13, Ex. C at ACS 8 4, Ex. L at 4. On April 18 , 20 0 8, plaintiff was evaluated by both a psychiatrist and a psychologist who concluded that plaintiff’s “inability to handle her affairs, and her poor reality testing suggest she m ay have som e ‘psychotic thinking,’ possibly drug related.” Id. ¶ 7, Ex. F at ACS 248. Nonetheless, at the next court appearance on April 24, 20 0 8, J udge McElrath perm itted plaintiff to have weekly, supervised visitation with V.G. Id. ¶ 13, Ex. L at 6-8. 4 On J une 9, 20 0 8, plain tiff requested adm inistrative review of ACS’s findings against her; however, the New York State Office of Children an d Fam ily Services (“OCFS”) decided to confirm the findings. Id. ¶ 5, Ex. D at ACS 266. In late J une or early J uly 20 0 8, Shabazz left ACS and the case was assigned to Tchara Harris under Steven Taub’s supervision. Pl.’s Ex. A at 7; Rauchberg Decl. ¶ 4, Ex. C at 92, 95, 10 6. On August 11, 20 0 8, plaintiff accused Mr. Grippe of leaving V.G. with her halfsister Gagliardo, who allegedly used drugs in front of the child and had a crim inal record. Rauchberg Decl. ¶ 14, Ex. M at 15. J udge McElrath directed ACS to investigate the allegations, an d Harris and Taub concluded that although Gagliardo occasionally cared for V.G., there was no evidence of drug use or a crim inal history. Id. ¶¶ 7, 14, Ex. F at ACS 274-76, Ex. M at 16. Plaintiff later provided eviden ce that Gagliardo twice pleaded guilty to disorderly conduct, which is a violation. Pl.’s Ex. G. From Septem ber 20 0 8 through J anuary 20 10 , the case was repeatedly adjourned. Rauchberg Decl. ¶¶ 15-21, Exs. N-T. During this tim e, plaintiff m oved for unsupervised visitation, while V.G. indicated that “visits with [plaintiff] are not going very well and she wanted it to end.” Id. ¶¶ 7, 19, Ex. F at ACS 275, Ex. R at 4-5. In February 20 10 , J udge Wolff replaced J udge McElrath on the m atter, and she considered plaintiff’s m otion for unsupervised release. Id. ¶¶ 22-23, Exs. U-V. Although ACS did not oppose plaintiff’s request, Mr. Grippe “vehem ently” opposed the application and Katz subm itted an affidavit stating that V.G. “is adam antly opposed to unsupervised visits and had expressed fear of her m other.” Id. ¶¶ 8, 22-23, Ex. G at SI FC 46, Ex. U at 3-4, Ex. V at 15-25. Based largely on Katz’s affidavit “expressing the position of the child,” J udge Wolff denied plaintiff’s m otion for unsupervised visitation on March 15, 20 10 . Id. ¶ 8 , Ex. G at SI FC 45-47. 5 On March 17, 20 10 , ACS m ade an application to withdraw its neglect petition. Id. ¶ 24, Ex. W at 4. ACS stated that it believed plaintiff “was exhibiting bizarre behavior” that affected V.G. at the tim e, but that since plaintiff cooperated with ACS supervision, “she’s m entally stable and capable of caring for the child.” Id. Over Katz’s objection, J udge Wolff dism issed the petition based on ACS’s withdrawal. Id. ¶¶ 8 , 24, Ex. G at SI FC 14, Ex. W at 6-7, 10 . However, V.G. rem ained with Mr. Grippe pending a custody determ ination. Id. ¶ 24, Ex. W at 18 -22. On August 25, 20 10 , Gagliardo inform ed the court that Mr. Grippe had fallen gravely ill and petition ed for custody of V.G., em phasizing that V.G.’s grandm other would “help out.” Id. ¶ 25, Ex. X (Aug. 25, 20 10 Hr’g) at 5-6. Katz supported granting custody to Gagliardo, arguing that Gagliardo and V.G.’s grandm other would provide “a situation where she can start school and be stable.” Id. at 15-16. Over plaintiff’s objections, Referee Oakes awarded Gagliardo tem porary custody of V.G. but perm itted plaintiff to have supervised visitation. Id. ¶¶ 9, 25, Ex. H at SI FC 8 9, Ex. X (Aug. 25, 20 10 Hr’g) at 18-19, Ex. X (Sept. 21, 20 11 Hr’g) at 5. 3 Mr. Grippe passed away on Septem ber 13, 20 10 . Id. ¶ 25, Ex. X (Sept. 15, 20 10 Hr’g) at 4. On March 30 , 20 11, plaintiff’s visitation rights were suspen ded “because of the child’s extrem e discom fort,” and the suspension was continued on Septem ber 21, 20 11 for plaintiff’s “non-participation in the forensic evaluation and her continued failure to appear” in court. Id. ¶ 25, Ex. X (Sept. 21, 20 11 Hr’g) at 5-7. 4 As of October 18, 20 12, 3 Referee Oakes appears to have taken over the case from J udge Wolff som etim e between March 20 10 and August 20 10 . 4 From Septem ber 20 11 through May 20 12, Gagliardo was briefly awarded custody of V.G. based on plaintiff’s default, which was later vacated. Id. ¶ 9, Ex. H at SI FC 147-49, 152-53, 158, 241-43, 259, 271-73. 6 the m ost recent court appearance for which there is a record, V.G. rem ains in Gagliardo’s custody an d is “absolutely adam ant . . . that she does not wish contact with [plaintiff].” Id. ¶ 25, Ex. X (Oct. 18, 20 12 Hr’g) at 5-6. II. Pro ce d u ral H is to ry On August 3, 20 10 , plaintiff served a notice of claim on the Com ptroller of the City of New York alleging that V.G. was wrongfully rem oved from plaintiff’s custody, which was rejected as untim ely. Pl.’s Ex. Q. Plaintiff also requested a fair hearing by OCFS to prevent disclosure of the ACS case. Pl.’s Ex. S. The hearin g was held on Septem ber 15, 20 11, and Adm inistrative Law J udge (“ALJ ”) Wasko concluded that because ACS subm itted no evidence at the hearing, it “did not establish by a fair preponderance of the evidence that [plaintiff] com m itted the acts of [child] m altreatm ent alleged,” so “the existence of the report . . . m ay not be disclosed.” Id. Plaintiff filed this action on February 23, 20 12 on behalf of both herself and V.G. seeking declaratory, m onetary, and injunctive relief. Dkt. No. 1. On Decem ber 3, 20 12, plaintiff stipulated to discontinue her claim s on behalf of V.G. and for injunctive relief. Dkt. No. 37. Plaintiff m oved for sum m ary judgm ent on Decem ber 26, 20 12, and defendants opposed plaintiff’s m otion and cross-m oved for sum m ary judgm ent on April 27, 20 13. Pl.’s Mem . (Dkt. No. 44); Defs.’ Mem . (Dkt. No. 50 ). On J une 7, 20 13, plaintiff filed her opposition to defendants’ m otion and reply brief in support of her m otion. Pl.’s Opp’n (Dkt. No. 60 ); Pl.’s Reply (Dkt. No. 61). Defendants filed their reply on J une 28, 20 13. Defs.’ Reply (Dkt. No. 66). D ISCU SSION I. Le gal Stan d ard s A. Su m m ary Ju d gm e n t 7 Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to an y m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the eviden ce is such that a reasonable jury could return a verdict for the nonm oving party. A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (quotation om itted). The m oving party bears the burden of establishing the absence of any genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court deciding a m otion for sum m ary judgm ent m ust “construe the facts in the light m ost favorable to the non-m oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quotation om itted). When the burden of proof at trial would fall on the nonm oving party, it ordinarily is sufficient for the m ovant to point to a lack of evidence to go to the trier of fact on an essential elem ent of the non-m ovant’s claim . Celotex, 477 U.S. at 322-23. To defeat a m otion for sum m ary judgm ent, the non-m oving party “m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot “rely on conclusory allegations or unsubstantiated speculation.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 20 11) (quotation om itted). B. Plain tiff’s Claim s Plaintiff alleges that defendants violated her Fourth and Fourteenth Am endm ent rights by rem oving V.G. from her custody and bringing a n eglect petition in fam ily court, and cites a laundry list of provisions of the Civil Rights Act: 42 U.S.C. §§ 1981, 1983, 198 5, and 1986. Second Am . Com pl. ¶¶ 1-3 (Dkt. No. 19). Plaintiff appears to claim that 8 defendants violated her substantive due process right to raise her daughter under the Fourteenth Am endm ent; procedural due process rights under the Fourteenth Am endm ent by m aliciously bringing a neglect proceeding without probable cause; equal protection rights under the Fourteenth Am endm ent by rem oving her daughter from her custody; Fourth Am endm ent rights against m alicious prosecution by initiating a neglect proceeding without probable cause; Fourth Am endm ent rights by seizing her daughter without probable cause; and concom itant state constitutional rights. Id. ¶¶ 68-129. “Section 1983 governs civil rights action s against a person acting under color of state law who ‘subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities secured by the Constitution and laws of the United States.’” Bazile v. N.Y.C. Dep’t of Educ., No. 12 Civ. 6267, 20 13 WL 3495936, at *3 (E.D.N.Y. J uly 11, 20 13) (quoting 42 U.S.C. § 1983). “‘The statue itself is not a source of substantive rights but m erely provides a m ethod for vindicating federal rights elsewhere conferred,’ here the [Fourth] and Fourteenth Am endm ents.” Pleasure Island, Inc. v. City of New York, No. 12 Civ. 4699, 20 13 WL 2311837, at *4 (E.D.N.Y. May 24, 20 13) (quoting Reyes, 20 12 WL 37544, at *3). “Section 1985 prohibits conspiracy to interfere with civil rights, and § 198 6 creates a cause of action for neglecting to prevent an actionable conspiracy under § 198 5.” Id. (quotation om itted). i. Fo u rte e n th Am e n d m e n t Claim s The Due Process Clause of the Fourteenth Am endm ent provides that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law.” “Parents ‘have a constitutionally protected liberty interest in the care, custody, and m anagem ent of their children,’ and fam ily m em bers have a fundam ental right under 9 the Fourteenth Am endm ent to stay together.” Green ex rel. T.C. v. Mattingly, No. 0 7CV-1790 , 20 10 WL 38 24119, at *7 (E.D.N.Y. Sept. 23, 20 10 ) (quoting Tenenbaum v. William s, 193 F.3d 581, 593 (2d Cir. 1999)) (internal quotation om itted). However, “this interest is counterbalanced by the com pelling governm ental interest in the protection of m inor children, particularly in circum stances where the protection is considered necessary as against the parents them selves.” Wilkinson ex rel. Wilkinson v. Russell, 18 2 F.3d 8 9, 10 4 (2d Cir. 1999) (Sotom ayor, J .) (quotation om itted). “The difficulty of balancing [these] weighty interests . . . has prom pted courts to im pose few concrete restrictions on case workers[] in exercising their discretion.” Id. “The liberty interests of parent and child in continued care and com panionship ha[ve] both procedural as well as substantive elem ents.” Graham v. City of New York, 8 96 F. Supp. 2d 337, 349 (E.D.N.Y. 20 12) (quotation om itted). “Procedural due process generally requires a hearing prior to depriving a parent of custody or a prom pt postdeprivation hearing if the child is rem oved under em ergency circum stances.” Green, 20 10 WL 3824119, at *8 (quotation om itted). “To dem onstrate a violation of substantive due process rights, plaintiff[] m ust show that the rem oval of [the child] ‘was so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accom panied by full procedural protection.’” Id. at *10 (quoting Tenenbaum , 193 F.3d at 60 0 ). However, given the “need for unusual deference” in ACS investigations, “[a]n investigation passes constitutional m uster provided sim ply that case workers have a ‘reasonable basis’ for their findings.” Wilkinson, 182 F.3d at 10 4-0 5 (citing Van Em rick v. Chem ung Cnty. Dep’t of Soc. Servs., 911 F.2d 8 63, 866 (2d Cir. 1990 )). ii. Fo u rth Am e n d m e n t Claim s 10 The Fourth Am endm ent protects against “unreasonable searches an d seizures,” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirm ation, and particularly describing . . . the persons or things to be seized.” “Rem oval of a child . . . m ay be construed as a ‘seizure’ under the Fourth Am endm ent,” but Fourth Am endm ent rights can only be asserted by a parent on behalf a child, “and not vicariously on behalf of the parent herself.” Green, 20 10 WL 3824119, at *11 (citing Tenenbaum , 193 F.3d at 60 2). Sim ilarly, “a claim for m alicious prosecution under § 198 3 m ay only arise where there has been a violation of the plaintiff’s Fourth Am endm ent rights.” Graham , 8 69 F. Supp. 2d at 356 (citing Washington v. Cnty. of Rockland, 373 F.3d 310 , 315-16 (2d Cir. 20 0 4)). II. Plain tiff’s Mo tio n Plaintiff m oves for sum m ary judgm ent on all claim s, arguing that ALJ Wasko’s decision that ACS “did not establish by a fair preponderance of the evidence that [plaintiff] com m itted the acts of m altreatm ent alleged” requires fin ding defen dants liable under the doctrine of collateral estoppel. Pl.’s Mem . at 1-2, 9-10 . “Collateral estoppel applies when ‘(1) the iden tical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was n ecessary to support a valid and final judgm ent on the m erits.’” Reyes v. City of New York, No. 10 -cv-1838, 20 12 WL 37544, at *4 (E.D.N.Y. J an. 9, 20 12) (quoting Ball v. A.O. Sm ith Corp., 451 F.3d 66, 69 (2d Cir. 20 0 6)). ALJ Wasko considered ACS’s proof of plaintiff’s alleged m altreatm ent; conversely, as discussed m ore fully below, this action deals with whether ACS em ployees reasonably believed 11 that V.G.’s health and safety were in im m inent danger in plaintiff’s custody. 5 Since the issues are not “identical,” the doctrine of collateral estoppel is inapplicable and plaintiff’s m otion is denied. III. D e fe n d an ts ’ Mo tio n Defendants m ove for sum m ary judgm ent on all claim s, arguing that m any of plaintiff’s claim s are legally barred, while the rem ain der are not supported by evidence in the record. Defs.’ Mem . at 1-2. A. Fo u rth Am e n d m e n t, Equ al Pro te ctio n , an d State Law Claim s Plaintiff lacks standing to bring Fourth Am endm ent claim s for V.G.’s rem oval because she stipulated to withdraw all claim s on behalf of V.G. See Graham , 8 69 F. Supp. 2d at 355 (citing cases). Sim ilarly, plaintiff cannot bring a claim for m alicious prosecution because her Fourth Am endm ent rights were not violated. See id. at 356. Therefore, sum m ary judgm ent is granted for defendants on plaintiff’s Fourth Am endm ent claim s. There is no evidence in the record to support a claim for discrim ination under 42 U.S.C. § 1981 or the Equal Protection Clause of the Fourteenth Am endm ent, and plaintiff does not raise any argum ents against their dism issal. See Pl.’s Opp’n; Reyes, 20 12 WL 37544, at *2. Accordingly, sum m ary judgm ent is granted for defendants on these claim s. Finally, “[d]istrict courts in this circuit have consistently held that there is no private right of action under the New York State Constitution where, as here, rem edies are available under § 1983.” Hershey v. Goldstein, --- F. Supp. 2d ----, 20 13 WL 5 Plaintiff appears to recognize this. See Pl.’s Opp’n at 10 -11, 14-17 (arguing that “any reasonable case worker would have concluded that the rem oval was objectively unreasonable”). 12 1431422, at *22 (S.D.N.Y. Apr. 9, 20 13) (quoting Cam pbell v. City of New York, No. 0 9CV-330 6, 20 11 WL 6329456, at *5 (E.D.N.Y. Dec. 15, 20 11)). Therefore, sum m ary judgm ent is granted for defendants on plaintiff’s state law claim s, and the Court considers only plaintiff’s rem aining due process claim s. B. Mu n icip al D e fe n d a n ts Plaintiff brings claim s against the City and ACS. “ACS is an agency of the City of New York and cannot be sued in dependently.” Graham , 8 69 F. Supp. 2d at 348. Rather, claim s against ACS m ust “be brought in the nam e of the city of New York.” Id. (quoting N.Y.C. Charter ch. 17, § 396). Accordingly, sum m ary judgm ent is granted for ACS. “In order to establish m unicipal liability for unconstitutional acts by m unicipal em ployees, a plaintiff m ust show that the violation of her constitutional rights results from a m unicipal policy, custom , or practice.” Bazile, 20 13 WL 3495936, at *3 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). “The failure to train or supervise city em ployees m ay constitute an official policy or custom if the failure am ounts to ‘deliberate indifference’ to the rights of those with whom the city em ployees interact.’” Id. (quotation om itted). “In addition, plaintiff ‘m ust dem onstrate a direct causal link between the m unicipal action and the deprivation of federal rights.’” Id. (quoting Bd. of Cnty. Com m ’rs v. Brown, 520 U.S. 397, 40 4 (1997)). There is no evidence in the record indicating that any City or ACS policy, custom , or practice resulted in harm to plaintiff. To the extent plaintiff argues that ACS has a policy of rem oving children without prior court review, Pl.’s Opp’n at 17-18 , she “fail[s] to produce proof of any sort to support [her] conclusory allegations.” Porter v. City of New York, No. 1:0 3-cv-6463, 20 0 7 WL 1791149, at *7 (E.D.N.Y. J une 19, 20 0 7). 13 Sim ilarly, plaintiff’s reliance on Tenenbaum is m isplaced. In Tenenbaum , the child was rem oved for a m edical exam ination prior to obtaining a court order, which the City conceded was “accom plished pursuant to City policy.” 193 F.3d at 591, 597. Here, there is no such concession, so plaintiff is required to show “that the rem oval was effected pursuant to a City policy or custom .” Id. at 597. Finally, there can be no genuine dispute that plaintiff’s intim ations that Shabazz lacked sufficient training to identify m ental illness do not rise to the level of “deliberate indifference” and did not cause ACS to determ ine that V.G.’s health and safety were in danger. Pl.’s Ex. A at 13; see Monell, 436 U.S. at 694 (requiring official policy or custom to be “the m oving force [behind] the constitutional violation”). Therefore, sum m ary judgm ent is granted for the City. C. In d ivid u al D e fe n d a n ts Plaintiff brings claim s against current an d form er ACS em ployees Shabazz, Nieves, Harris, and Taub. i. Sh abazz an d N ie ve s Plaintiff’s claim s against Shabazz an d Nieves are tim e-barred. “The statute of lim itations for actions brought pursuant to §§ 1983 and 1985 is three years. For actions brought pursuant to § 1986, the lim itations period is one year.” Paige v. Police Dep’t of Schen ectady, 264 F.3d 197, 199 n.2 (2d Cir. 20 0 1) (citations om itted). The statute of lim itations runs from “the tim e that plaintiff knows, or has reason to know, of the injury that is the basis of her action.” Brevot v. N.Y.C. Dep’t of Educ., No. 0 4 Civ. 7959, 20 0 7 WL 690 130 , at *5 (S.D.N.Y. Mar. 6, 20 0 7) (citing J aghory v. New York State Dep’t of Educ., 131 F.3d 326, 332 (2d Cir. 1997)). Plaintiff learned that V.G. was rem oved on March 11, 20 0 8, and the fam ily court approved the rem oval the next day. “[O]nce such court confirm ation of the basis for rem oval is obtained, any liability for the continuation 14 of the allegedly wrongful separation of parent and child can no longer be attributed to the officer who rem oved the child.” Southerland v. City of New York, 680 F.3d 127, 153 (2d Cir. 20 12) (quotation om itted). Therefore, plaintiff’s claim s accrued on March 11, 20 0 8. 6 Plaintiff filed this action on February 23, 20 12, which is m ore than three years after March 11, 20 0 8. Accordingly, sum m ary judgm ent is granted for Shabazz and Nieves. 7 ii. H arris an d Tau b Plaintiff’s claim s against Harris and Taub are m eritless. There is no genuine dispute that Harris and Taub had no personal involvem ent in rem oving V.G. See Celestin v. City of New York, 581 F. Supp. 2d 420 , 428 -29 (E.D.N.Y. 20 0 8 ). Indeed, Harris assisted with withdrawing ACS’s neglect petition against plaintiff, Rauchberg 6 Plaintiff’s invocation of the “continuing violation doctrine” to extend the date of accrual to March 10 , 20 10 , the date the neglect petition was term inated, Pl.’s Opp’n at 34, is inapposite because the doctrin e requires a policy or practice which, as discussed above, is unsupported by the evidence in the record. See Cangem i v. United States, --F. Supp. 2d ----, 20 13 WL 1332842, at *8 (E.D.N.Y. Mar. 29, 20 13). Moreover, Shabazz’s involvem ent ended in J une or J uly 20 0 8 and Nieves was only involved on March 11, 20 0 8. Pl.’s Ex. A at 6-7, Ex. C (Nieves Dep.) at 25-29. 7 Even if plaintiff’s claim s against Shabazz and Nieves were tim ely, there can be no genuine dispute that Shabazz an d Nieves had “reasonable cause to believe” that continuing V.G. in plaintiff’s custody presented “an im m inent danger to the child’s life or health.” N.Y. Fam . Ct. Act § 10 24; see also Wilkinson, 182 F.3d at 10 5 (affirm ing grant of sum m ary judgm ent for defendants because “courts m ust apply the ‘reasonable basis’ test to perm it in vestigators considerable discretion” such that “even a faulty investigation does not necessarily rise to the level of an unconstitutional investigation”). There was insufficient tim e to seek prior judicial authorization for rem oval because, am ong other things, V.G. told Shabazz that she was alm ost struck by a bus a few days earlier when plaintiff was “trying to get away from som eone she believed was chasing her.” Rauchberg Decl. ¶ 11, Ex. J at 20 ; see Gottlieb v. Cnty. of Orange, 8 4 F.3d 511, 520 (2d Cir. 1996). Moreover, plaintiff received a post-deprivation evidentiary hearing before the fam ily court the very next day. Rauchberg Decl. ¶ 7, Ex. F. 15 Decl. ¶ 4, Ex. C at ACS 124, so there can be no genuine dispute that she did not harm plaintiff’s interest in the care, custody, and m anagem ent of V.G. Finally, there is no eviden ce in the record supporting plaintiff’s conspiracy claim s. Accordingly, sum m ary judgm ent is granted for Harris and Taub. CON CLU SION For all of the foregoing reasons, plaintiff’s m otion is hereby DENIED, and defendants’ m otion is hereby GRANTED. SO ORDERED. Dated: Brooklyn, New York August 13, 20 13 / s/ ILG _ I. Leo Glasser Senior United States District J udge 16
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