Dietz v. Damas

Page 198

948 F.Supp. 198

Lenore DIETZ and William Dietz, individually and on behalf of James Dietz, and infant, Plaintiffs, v. Harold DAMAS, et al., Defendants.

Civil Action No. CV-91-5016.

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

December 5, 1996.

Carolyn A. Kubitschek, David J. Lansner, Lansner & Kubitschek, New York City, for Plaintiffs Lenore Dietz and William Dietz.

Paul A. Crotty, Corporation Counsel of the City of New York (Lawrence Wolff and Diana M. Murray, of counsel), New York City, for Defendants Harold Damas, Daniel Elmore, Marcia Lewis, William J. Grinker, Brooke Trent and City of New York.

Robert J. Poblete, Pellini & Poblete, New York City, for Defendant and Counter-Claimant Diane McGurn.

MEMORANDUM AND ORDER

TRAGER, District Judge:

By memorandum and order dated July 11, 1996, reported at 932 F.Supp. 431 (E.D.N.Y. 1996), the motion for summary judgment made by the City of New York on behalf of itself and its individual employee defendants was granted. The remaining pendent state claims, including plaintiffs' claim against defendant Diane McGurn and Mrs. McGurn's counter-claims against the plaintiffs, were also dismissed.

Plaintiffs have timely moved under Fed. R.Civ.P. 59(e) to reargue and vacate the judgment. Their motion falls roughly into two categories. First, plaintiffs offer an extensive analysis of what they view as errors in the opinion. The common thread in this portion of plaintiffs' motion is that I improperly "decide[d] every factual issue against plaintiffs and [drew] every inference against plaintiffs," in violation of the well-established federal standards for summary judgment. Pls.' Mot. ¶ 8. The second portion of the motion takes issue with the policy concerns for the effective operations of a child protective system expressed in the decision. See Dietz, 932 F.Supp. at 433, 460. In connection with this portion of their argument, plaintiffs have submitted copies of 1991, 1995 and 1996 New York State Department of Social Services ("state DSS") reports concerned with child protective services in New York City. Plaintiffs passionately express their concern for the harm that may have befallen families and children as the result of actions of the Child Welfare Administration ("CWA") on unsubstantiated reports of child abuse.

In their reply papers on the motion for reargument, plaintiffs for the most part repeat arguments made in opposition to the motion for summary judgment. These include reiteration of their views that the defendants failed to comply with the New York Family Court Act hearing requirements that the defendants failed in their duty to investigate Mrs. McGurn; and that the defendants (and the opinion) placed undue reliance on the initial abuse report. However, plaintiffs also raise several issues not discussed in their initial brief in support of their motion for reargument.¹ These include an argument that even if Mrs. Dietz had caused James's injuries by shaking, CWA was required to and failed "to determine the likelihood that she would injure or endanger him again" before making a determination that an emergency existed. Pls.' Reply at 4. Finally, the reply brief advances several new legal arguments that take issue with the initial decision and its analysis.

The motion for reargument is granted; however, for the reasons stated below, the original decision granting summary judgment to the City defendants is adhered to. The following analysis presumes familiarity with the facts and legal reasoning found in the memorandum and order dated July 11, 1996.

1. Summary Judgment was Appropriate

The opinion relied greatly on van Emrik v. Chemung County, 911 F.2d 863 (2d Cir.1990), and, to a lesser extent, on the more recent Defore v. Premore, 86 F.3d 48 (2d Cir.1996). In both of these cases, the Second Circuit held that summary judgment was proper under similar circumstances.² It is notable that in their briefing of the summary judgment issue on this reargument motion plaintiffs make no reference to recent Second Circuit decisions concerned with child abuse proceedings. Plaintiffs first refer to this body of law in their reply brief where they make an effort to distinguish the facts of those cases from the facts presented here. See Pls.' Reply Br. at 11-12. Instead, their initial brief for reargument relies on a heterogeneous array of cases concerned with summary judgment motions in such areas as antitrust, police misconduct and Title VII.³

However, application of summary judgment standards used in cases that were based on substantially different issues of law and fact still results in the grant of summary judgment to the City defendants because there is no genuine issue with regard to any material fact.

When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). A recent Second Circuit decision, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996), stated: "On appeal `the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'" (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).

The critical issues in this case are: first, whether CWA had an objectively reasonable belief that an emergency existed that warranted placing a hold on James in the hospital on December 22, 1988 and restricting his discharge to his grandparents on December 23, 1988; second, whether a delay in providing an adversarial hearing of six court days (during most of which period James was in the hospital), violated constitutional due process protections; third, whether the CWA investigation was constitutionally inadequate in failing to eliminate the Dietzes from suspicion prior to Dr. Giridharan's letter of March 1989 and Dr. McHugh's undated opinion that was issued after the Family Court hearing; fourth, whether the filing of the Family Court petition against the Dietzes was constitutionally malicious, that is, lacking probable cause; and finally, if probable cause existed, whether the petition was filed in retaliation for the exercise of First Amendment rights and succeeding in chilling the Dietzes' exercise of those rights. Disagreements about facts that do not bear on these issues are not issues of material facts, and "[a] dispute as to an immaterial fact does not preclude summary judgment." 10A Charles A. Wright et al., Federal Practice and Procedure 2d § 2725 (1983) (citing cases).

a. No Disputes Concerning Genuine Issues of Material Facts

(1)

In this case there is no question that there is a dispute as to whether Dr. Giridharan, the treating neurologist, told Harold Damas, the case worker, on December 30, 1988 that the shaking occurred "a few" hours before the symptoms were manifested, as she testified at her deposition, or the "several" hours that Mr. Damas recorded in his notes. However, whichever formulation is accurate is of no moment because in the full context of Dr. Giridharan's deposition, she clearly and unequivocally testified that she refused to give Mr. Damas a time frame for the abuse and told him that "the investigation[] [is] up to him." Giridharan at 5, City Ex. F. Moreover, in her deposition, Dr. Giridharan confirmed that Mr. Damas had informed her of the importance of establishing a time frame for the abuse and that, even with that knowledge, she had refused to provide one. See id. at 28-29. Thus no genuine issue of fact exists as to Dr. Giridharan's refusal to narrow the time-frame in the relevant period, and this refusal is the material fact.

Significantly, both in their original brief and in their reply brief, plaintiffs raise no objection concerning the opinion's analysis of and conclusions as to these undisputed facts about Dr. Giridharan's statements to Detective ("Det.") Diggs and Mr. Damas, her letter in March 1989, and her deposition testimony.⁴ Here, the opinion accepted the plaintiffs' view that Dr. Giridharan told Mr. Damas on December 30, 1988 that the shaking had to have occurred within a "few" hours of the manifestation of symptoms. Plaintiffs have not, however, challenged the finding that Dr. Giridharan's testimony establishes that, when she spoke to Mr. Damas on December 30, 1988, knowing the importance of the time frame to determining who the abuser was, she refused to narrow the time frame to exonerate the Dietzes. Plaintiffs have also not challenged the finding that the police investigative reports submitted by the plaintiffs confirm that Dr. Giridharan had also told Det. Diggs on December 22, 1988, that "it had to of happened on that day Tuesday but she could not give a time." Pls.' Ex. A. Plaintiffs also do not challenge Dr. Giridharan's credentials as an expert in the field of WSIS or her expert knowledge of James's condition from her role as treating neurologist.⁵

This is the crux of the case. Contrary to plaintiffs' assertion, Pls.' Reply Br. at 3, who, in fact, was responsible for James's injuries is not the issue. Nor is this action a proceeding designed to provide the plaintiffs with a forum to seek public exoneration. The issue here is whether the City defendants' initial action in asserting custody of James was objectively reasonable. Plaintiffs' argument that the decision made several erroneous inferences is irrelevant to this issue; none of these allegedly erroneous inferences bear on material facts. The undisputed facts are that James was severely injured as the result of deliberate shaking; that Dr. Giridharan refused to limit the time frame in...