VITALIANO, District Judge.
Between 1986 and 1996, plaintiffs, ten individuals who were at the time special needs children, were placed in foster care with, and were subsequently adopted by, Judith Leekin, who abused, neglected, imprisoned, and denied them any education or medical care. Plaintiffs bring this action against the City of New York (the "City") and the private foster care agencies that placed them with Leekin, namely, St. Joseph Services for Children, Inc. ("SJSC"), Heartshare Human Services ("HHS"), and SCO Family of Services ("SCO") (together,
The following facts are drawn from the complaint and the submissions of the parties on the motion, including their statements of undisputed material fact filed pursuant to Local Civil Rule 56.1. The facts are construed, as they must be in the summary judgment context, in the light most favorable to plaintiffs, as the nonmoving parties. See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir.2007) (citation omitted). Any factual disputes are noted.
The story is undisputedly sad and tragic. From 1986 to 1994, plaintiffs were all classified as special needs children, and were removed from their homes and placed in the custody of the City. (Compl. ¶ 2.) The agency defendants were private child care agencies that provide foster care placement and other services for children in the custody of the City, pursuant to contracts with the City. (Compl. ¶¶ 47, 49, 51.) During this time, Leekin, using at least four false identities, obtained foster care custody of plaintiffs and numerous other special needs children from the City and the agency defendants. She subsequently adopted each plaintiff.
From the point when Leekin obtained custody of plaintiffs until they were released in July 2007, Leekin abused, tortured, neglected, and held plaintiffs in captivity, first in New York and then in Florida. It would be impossible here to describe in detail the brutality plaintiffs were subjected to over the course of their captivity, some for more than 15 years, but the following examples provide a glimpse of life in Leekin's house of horrors: Leekin routinely and for lengthy periods denied the children access to food and a toilet; handcuffed and restrained them for hours, including all night restraint with zip ties; trapped them in cribs held shut with boards and heavy objects; beat them with a belt, nightstick, and other objects; forced them to stand for hours on end, sometimes with their hands above their heads, as punishment; failed to protect them from sexual abuse; and repeatedly threatened them with a gun or with being beaten to death. (See Aff. of Dr. Peg McCart Hess, May 2, 2013, Ex. A ("Hess Report") at 3, 38-39, 62-64.) In New York, plaintiffs were often confined to the basement, where they were forced to sleep uncovered on the floor; in Florida, they generally slept on the floor of the garage. Id. If anyone came to the house where they were kept, plaintiffs were placed in a room and told to be quiet, and were threatened that if they did not remain quiet, they would be beaten.
Plaintiffs commenced this action on April 29, 2009. Plaintiffs allege that the
Preliminarily, there are factual disputes surrounding how Leekin came to obtain custody of plaintiffs so long ago. Bluntly, the aged and incomplete nature of the agency defendants' records makes it difficult at times to piece together the relevant events. It is undisputed, though, that in applying to be a foster parent under her various false identities, Leekin provided the agency defendants with false names, and at least in the case of SJSC and HHS, with one or more falsified documents such as birth certificates, W-2s, written references, and Social Security cards.
Plaintiffs further assert that the agency defendants failed to identify or investigate numerous inconsistencies and red flag representations on the face of the documents Leekin provided to each of them in connection with her applications and their investigations. For example, the information that Leekin provided was internally inconsistent as to whether, where, and for how long she was employed; her religion, which she sometimes reported as Catholic, sometimes as Protestant, sometimes as Baptist; the number of bedrooms in her home; whether she owned the home; and various facts about her family members, such as whether she had siblings, and her mother's name. (See, e.g., Pl.'s Stmt of Add'l Facts ¶¶ 48-52, 113-14, 140-42, 164, 174.) The agency defendants do not dispute the existence of these inconsistencies, but do dispute their materiality.
Plaintiffs also allege failures in monitoring while in foster care. For example, plaintiffs claim that HHS and SCO failed to make monthly visits to the plaintiffs they placed, a claim the agency defendants dispute. (See Def.'s 56.1 Stmt ¶ 108.) It appears to be undisputed, however, that the agency defendants failed to conduct unannounced visits to Leekin's home, as opposed to scheduled visits, and that Leekin often changed the dates and times of scheduled visits, failed to keep appointments for scheduled visits, or brought the children into the agency for visits that were supposed to take place in her home. (Compl. ¶¶ 184-85.) When the agency defendants did visit, plaintiffs allege that they failed to speak with plaintiffs outside of Leekin's presence, and that the visits were essentially nothing more than a rubber stamp. (See Compl. ¶¶ 186-87, 190.) Additionally, it is undisputed that SJSC placed five special-needs children between the ages of one and five with "Michelle Wells," who claimed to be a single woman working full-time, which SJSC acknowledged was "very unusual." (Conway Dep., 8/18/10, at 190:22).
At the same time, the agency defendants present evidence that outside observers unanimously gave Leekin high marks as foster parent. For example, early progress notes state that after his placement with Leekin, plaintiff S.B. had "calmed down a lot," "interacted very well with everyone," and was "improving nicely," and caseworker reviews were positive. (See Def.'s 56.1 Stmt ¶ 49, 53.) A psychiatrist found that S.B. was improving under Leekin's care, (id. at ¶ 56), and S.B.'s court-appointed guardian ad litem issued a positive report about his relationship with Leekin. (Id. at ¶ 57). There were similarly positive reports for other of plaintiffs as well. (See id. at ¶¶ 82-86 (R.E.), 109-10, 114 (T.L. and J.L.)) Plaintiffs do not dispute these facts, but argue
The agency defendants move for summary judgment on several grounds. First, they argue that the claims of three of the plaintiffs are barred by the statute of limitations. Next, they argue that plaintiffs' § 1983 claim should be dismissed because the agency defendants are not state actors; because the agency defendants did not act with the required mental state; for lack of causation; and because the claim is precluded by the Rooker-Feldman doctrine. Finally, the agency defendants argue that they are entitled to judgment on plaintiffs' negligence claims.
A district court must grant summary judgment if "there is no genuine issue as to any material fact" such 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, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court's responsibility in assessing the merits of a summary judgment motion is not to try issues of fact, but rather to "determine whether there are issues of fact to be tried." Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir.1995) (quoting Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir.1984)). The moving party bears the burden of demonstrating that there is no genuine issue as to any material fact, see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005), and the Court will resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004); Gummo v. Vill. of Depew, 75 F.3d 98, 107 (2d Cir.1996) ("If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.").
If the moving party meets its initial burden of demonstrating the absence of a disputed issue of material fact, the burden shifts to the nonmoving party. See Fed. R.Civ.P. 56(e). The nonmoving party may not rely solely on "conclusory allegations or unsubstantiated speculation" in order to defeat a motion for summary judgment. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Rather, the nonmoving party must "make a showing sufficient to establish the existence of [each] element to that party's case .... since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. If the evidence favoring the nonmoving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505,
The agency defendants first argue that the claims of three plaintiffs, J.B., S.B., and S.W., are barred by the statute of limitations. As previewed above, plaintiffs bring two claims against the agency defendants: a civil rights claim under 42 U.S.C § 1983 and a common law negligence claim. "In section 1983 actions, the applicable limitations period is found in the `general or residual [state] statute [of limitations] for personal injury actions.'" Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir.1997) (quoting Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989)). The statute of limitations for plaintiffs' § 1983 claims is thus three years. N.Y. C.P.L.R. ("CPLR") § 214(5). Likewise, the statute of limitations on plaintiffs' negligence claims is three years. Id. When plaintiffs' claims accrued, however, is a more complex and hotly disputed question.
The accrual date of a § 1983 cause of action is a question of federal law. Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). A § 1983 claim "accrues once the `plaintiff knows or has reason to know of the injury which is the basis of his action.'" Veal v. Geraci, 23 F.3d 722, 724 (2d Cir.1994) (quoting Singleton v. New York, 632 F.2d 185, 191 (2d Cir.1980)). In other words, "the claim accrues when the alleged conduct has caused the claimant harm and the claimant knows or has reason to know of the allegedly impermissible conduct and the resulting harm." Veal, 23 F.3d at 724. This concept of accrual is known as the "discovery rule." Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002). The agency defendants argue that under this rule, each plaintiffs claim accrued as of the moment he or she first experienced abuse, because plaintiffs knew of their injuries as of that time. (Def.'s Mem. at 5-6). Acknowledging that plaintiffs were infants when that occurred, and as such their claims would have been tolled until they reached the age of majority, see CPLR § 208, the agency defendants argue that plaintiffs had three years after each of their 18th birthdays to file their complaint. That would mean that for three of the plaintiffs, J.B., S.B., and S.W., their claims are untimely, because they turned 21 on May 18, 2008, March 21, 2002, and June 16, 2008, respectively — all before the complaint was filed on April 29, 2009.
The limitations argument misses half the equation, however. Accrual is determined based on when plaintiffs knew of or had reason to know of both "the allegedly impermissible conduct and the resulting harm." Veal, 23 F.3d at 724 (emphasis added). Plaintiffs claim that their injuries were caused by the agency defendants' wrongful placement of them in Leekin's care; the abuse they suffered while in Leekin's care is merely the resulting harm. Even assuming that plaintiffs can be charged with awareness of their injuries as of their placement date, the pertinent question is when plaintiffs knew, or should have known, that the agency defendants had committed the conduct that plaintiffs allege led to their placement with Leekin. See Barrett v. United States, 689 F.2d 324, 328 (2d Cir.1982) ("... plaintiffs' cause of action accrued when they discovered or should have discovered the critical facts of [the victim's] injury and its cause. Since the injury was immediately known, the crucial question is when [the victim's] family should have discovered the critical facts relating to the cause of his death."); Sledge v. Guest, 107 F.3d 4 (2d Cir.1996) (reversing sua sponte dismissal of case because "though it is clear that
Plaintiffs argue, and the agency defendants do not contest, that they could not have personally been aware that they were wrongfully placed in foster care by the agency defendants until after their rescue and Leekin's arrest in July 2007. Indeed, the record indicates that while living with Leekin, plaintiffs did not even know they were in foster care at all. (See Pl.'s Br. in Opposition to Def.'s Mot. ("Pl.'s Opp.") at 39.) Even if plaintiffs should have learned that the agency defendants were responsible for their placement with Leekin as of the day they were released from her custody, their claims, filed on April 29, 2009, would be timely. Thus it is not necessary to determine when, exactly, accrual of each plaintiffs § 1983 claim occurred; it is sufficient to say that it could not have occurred while plaintiffs were in Leekin's custody. Accordingly, S.B., and S.W.'s § 1983 claims are timely.
J.B. presents a different situation. Given that he escaped Leekin's home earlier than the other plaintiffs, his physical domination ended at the latest in May 2005.
Plaintiffs' negligence claims are a different matter. Under New York law, which governs accrual of these claims, a negligence claim accrues "when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint," which is generally at the time that the plaintiff is injured. Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 432-33, 599 N.Y.S.2d 515, 615 N.E.2d 999, 1000-01 (1993); see Syms v. Olin Corp., 408 F.3d 95, 109 (2d Cir.2005) ("Historically, New York's statute of limitations generally began to run at the time of injury."). Plaintiffs argue that all elements of their claim could not be truthfully alleged until they became or could have become aware
The agency defendants again argue that each plaintiff's negligence claim accrued as of the first time that Leekin abused him or her, an event defendants contend occurred as soon as each plaintiff was placed in Leekin's custody. A "first injury" rule is not appropriate in this action, however. "In New York, `(d)espite the general principle that a cause of action accrues when the wrong is done, regardless of when it is discovered, certain wrongs are considered to be continuing wrongs, and the statute of limitations, therefore, runs from the commission of the last wrongful act.'" Leonhard v. United States, 633 F.2d 599, 613 (2d Cir.1980) (quoting advisory note to CPLR § 203). Plaintiffs' negligence claims allege just such a continuing wrong. Indeed, plaintiffs allege a series of negligent acts or omissions by the agency defendants over several years, of which their placement in foster care with Leekin was only the first. Other acts or omissions include the agency defendants' initial screening and investigation of Leekin, their placement of multiple special needs children in foster care with her, their deficient monitoring of plaintiffs after placing them in Leekin's care, and their handling of the adoption process. Plaintiffs allege that together, the combination of these pre-adoption wrongful acts resulted in their respective adoptions and the decade of abuse that followed. See Thomas v. New York City, 814 F.Supp. 1139, 1153 (E.D.N.Y.1993) (tort claims against foster care agencies based on abuse of children in their custody alleged a continuing wrong that did not accrue until "the continual negligent oversight by the defendants over the care of the infant plaintiffs while the children were in the defendants' custody" had ceased).
Notwithstanding, the continuing wrong exception does not save the day. The agency defendants' "last wrongful act" took place, at the latest, when plaintiffs were adopted by Leekin. Although Leekin continued to abuse and mistreat plaintiffs until 2007, the continuing violation doctrine "may only be predicated on continuing unlawful acts [by the tortfeasor] and not on the continuing effects of earlier unlawful conduct" Selkirk v. State, 249 A.D.2d 818, 819, 671 N.Y.S.2d 824, 825 (3d Dep't 1998) (rejecting argument that continuing wrong doctrine applied where plaintiff alleged that she continued to suffer effects of property seizure). It is a pathway to legal relief from continuing wrongdoing, not continuing suffering from stale wrongs. Plaintiffs allege no negligent conduct by the agency defendants after each of their adoptions were finalized.
The story does not end there, of course, since, as noted earlier, all plaintiffs were infants at the time of claim accrual. CPLR § 208 tolls the statute of limitations on any such accrued claim until three years after an infant plaintiff turns 18. The agency defendants concede that, in light of the infancy toll, five of plaintiffs' negligence claims are timely. However, they argue that J.B., S.B., and S.W.'s negligence claims are time-barred, given that the complaint was filed more than three years after their respective 18th birthdays.
Seeking to avoid this result, plaintiffs ask the Court to treat their negligence claim as a claim for false imprisonment, which in New York does not accrue until the plaintiffs release from confinement. See Whitmore v. City of New York, 80 A.D.2d 638, 639, 436 N.Y.S.2d 323, 324 (2d Dep't 1981). Plaintiffs advance the afterthought theory that this is the appropriate lens through which to view their claim. The confection rests on plaintiffs' claimed confinement against their will, incompetence to comprehend their loss of liberty, and inability to protect their rights until after they had been released. (See Pl.'s Opp. at 40, 42.) Notwithstanding that there are, indeed, factual parallels, plaintiffs have interposed a negligence claim, not a false imprisonment claim, and, importantly, do not bring a claim against the individual who imprisoned them. In any event, this is, at bottom, simply another way of asking the Court to apply a discovery rule where New York law does not. The Court sees no ground on which to apply the law of false imprisonment to plaintiffs' negligence claims.
The next straw is equity. Plaintiffs alternatively argue that equitable tolling should be invoked to toll the statute of limitations. Under federal law, equitable tolling may be available "as a matter of fairness where a plaintiff has been prevented in some extraordinary way from exercising his rights." Pearl v. City of Long Beach, 296 F.3d 76, 85 (2d Cir.2002) (internal quotation omitted); see also Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir.2003) ("[E]quitable tolling is only appropriate in rare and exceptional circumstances ...") (internal quotations and alterations omitted). However, while the facts of this case might well merit such extraordinary intervention, plaintiffs' negligence claim is governed by state law, and New York law does not recognize the federal rule of equitable tolling.
All else failing, a specific additional pitch is made that J.B., alone, is eligible for tolling on insanity grounds under CPLR 208, which provides, in relevant part, that
CPLR § 208. Thus, for insanity, as opposed to infancy, CPLR § 208 only tolls the statute of limitations for a maximum of ten years from accrual of the otherwise time-barred claim. J.B.'s negligence claim accrued when he was adopted by Leekin, under the alias "Michelle Wells," on June 7, 1994, so at the latest, his claim was tolled pursuant to the insanity relief of § 208 until June 7, 2004. This is actually an earlier bar date than the one that arises under the separate and non-cumulative infancy toll — May 18, 2008, three years after J.B.'s 18th birthday.
In sum, J.B., S.B., and S.W.'s negligence claims are barred by the statute of limitations, and they are dismissed.
The agency defendants also move substantively for summary judgment
Two requirements must be satisfied in order for a state actor to be held liable for failing to protect a child in its custody. First, the alleged acts and omissions "must have been a substantial factor leading to the denial" of the constitutional right. Doe, 649 F.2d at 141. Second, "the officials in charge of the agency being sued must have displayed a mental state of `deliberate indifference.'" Id. (quoting Turpin v. Mailet, 579 F.2d 152, 166 (2d Cir. 1978)). The agency defendants argue that they are entitled to summary judgment on plaintiffs' § 1983 claims because plaintiffs cannot demonstrate (1) that they acted "under color of state law" in placing plaintiffs with Leekin; (2) that they demonstrated "deliberate indifference;" (3) that their conduct was a "substantial factor" leading to the harm plaintiffs suffered; and, in any case, (4) because the Rooker-Feldman doctrine deprives the Court of subject matter jurisdiction.
The agency defendants first argue de rigueur that, as private foster care agencies, they are not "state actors," and, as a consequence, plaintiffs cannot establish the "under color of state law" element of their claim.
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir.2008) (citing Brentwood Acad. v. Tenn. Secondary
In Perez v. Sugarman, the Second Circuit determined that private childcare agencies perform the "public function" of "accepting and retaining custody of children alleged to have been `neglected' or `abandoned,'" and thus that they are "state actors" for purposes of § 1983 claims. Perez v. Sugarman, 499 F.2d 761, 765 (2d Cir.1974); see also Duchesne v. Sugarman, 566 F.2d 817, 822 (2d Cir.1977) (reaffirming this decision in light of the intervening Supreme Court opinion in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). The Second Circuit came to this conclusion based in part on New York's Social Services Law ("SSL"), which, according to the court, makes clear that "it is the State which in effect is providing the care through the private institutions."
The agency defendants do not deny the existence of this longstanding precedent. Rather, they argue that Perez is no longer good law and should not be applied here. In particular, they argue that current jurisprudence has narrowed the applicability of the "public function" test, undermining Perez's holding that private childcare agencies perform a "public function" of the state. In so arguing, the agency defendants rely heavily on a recent decision in this district that questioned the continuing viability of Second Circuit precedent designating private foster care agencies as state actors. See Phelan ex rel. Phelan v. Torres, 843 F.Supp.2d 259, 268 (E.D.N.Y.2011) ("[T]he Supreme Court has so dramatically changed the legal landscape in this area that [Perez and Duchesne] are arguably no longer good law."); see id. at 268-72 (expressing doubt as to whether the foster placement role is "exclusively reserved to the state, as is now required of a public function under the Supreme Court's current jurisprudence.") (emphasis in original). Ultimately, however, the court in Phelan determined that it was bound to treat the foster agency defendant as a state actor, "until the Second Circuit holds otherwise." Id. at 274. The Second Circuit affirmed, noting that it, too, would assume without deciding that the foster care agency defendant was a state actor. Phelan ex rel. Phelan v. Mullane, 512 Fed.Appx. 88, 90 (2d Cir.2013). Without expressing any opinion on the Phelan court's misgivings as to the validity of Perez, this Court agrees with its result: until the Second Circuit holds otherwise, the law in this
The agency defendants alternatively seek summary judgment on plaintiffs' § 1983 claim on the ground that plaintiffs cannot demonstrate that the agencies acted with "deliberate indifference" in placing plaintiffs with Leekin. As the Second Circuit held in Doe,
Nonetheless, "`deliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Ordinary negligence by itself cannot constitute deliberate indifference, but "gross negligent conduct creates a strong presumption of deliberate indifference." Doe, at 143; see also id. at 142 ("repeated acts of negligence could be evidence of indifference."); Phillips, 453 F.Supp.2d at 739 ("The Second Circuit has "often equated gross negligence with recklessness, and [has] defined it as the `kind of conduct ... where [the] defendant has reason to know of facts creating a high degree of risk of physical harm to another and deliberately acts or fails to act in conscious disregard or indifference to that risk.'"") (quoting Poe v. Leonard, 282 F.3d 123, 140 n. 14 (2d Cir.2002)). The pertinent question, then, is whether plaintiffs have demonstrated a disputed issue of material fact as to whether each of the agency defendants was at least grossly negligent with regard to "a known injury, a known risk, or a specific duty," in placing plaintiffs in the charge of Leekin.
As to the agency defendants' deliberate indifference to a specific duty, Plaintiffs argue that this can be inferred from their violation of a series of statutes and regulations governing the investigation of potential foster parents. The Court can "infer[] deliberate unconcern for [plaintiffs'] welfare from a pattern of omissions revealing deliberate inattention to specific duties imposed for the purpose of safeguarding plaintiffs from abuse." Doe, 649 F.2d at 145; see also id. (Defendants can be "`charged with knowledge' of unconstitutional conditions when they persistently violated a statutory duty to inquire about such conditions and to be responsible for them."). Whether deliberate indifference can be inferred from breach of a statutory duty in part depends on the nature of the statute. "The more a statute or regulation clearly mandates a specific course of conduct, the more it furnishes a plausible basis for inferring deliberate indifference from a failure to act, even without any specific knowledge of harm or risk." Id. at 145-46 (finding triable issue of fact as to deliberate indifference based on foster agency's failure to report suspected child abuse in violation of SSL § 413); cf. Phillips, 453 F.Supp.2d at 740 (deliberate indifference could not be found based on agency's failure to comply with "a contract describing duties and responsibilities undertaken by the foster parents," rather than the agency.).
To demonstrate deliberate indifference of the agency defendants to these statutes and regulations, and to the known risk inherent in failing to properly screen an applicant, plaintiffs set forth a passel of specific failings by the agency defendants in connection with approving Leekin as a foster and adoptive parent. Among other things, plaintiffs assert that each of the three agencies failed to verify Leekin's identity by not requesting photo identification from her, and failed to verify the Social Security numbers Leekin gave them, or in some cases even ask for a Social Security number at all.
While not all of the failures that plaintiffs raise would necessarily amount to gross negligence individually — and some may not have been negligent at all — taken together, they unquestionably present disputed issues of fact as to whether the agency defendants engaged in "repeated acts of negligence" sufficient to constitute deliberate indifference. Contrary to the defendants' argument, the alleged acts and omissions go well beyond mere "bureaucratic inaction," and demonstrate failure to comply with specific laws and policies designed to protect foster children and to take other reasonable precautions, in a way that provides a "plausible basis for inferring deliberate indifference from a failure to act." Doe, 649 F.2d at 145-46. The agency defendants respond with evidence that Leekin consistently presented as an excellent parent, provided them with fake references, W-2s, and Social Security cards that would have fooled any reasonable investigator, and also provide testimony that their policies and practices were reasonable for the era. And, it may be so. This is a classic disputed issue of fact. See, e.g., Ingrao v. Cnty. of Albany, N.Y., No. 01-cv-730, 2006 WL 2827856, at *10 (N.D.N.Y. Oct. 2, 2006) ("Because a reasonable jury might conclude that the conglomeration of these instances evince a pattern, practice, or custom of deliberate indifference to [plaintiff's] rights, Defendant's motion for summary judgment must be denied.").
Additionally, it is worth noting that much of plaintiffs' argument assumes that when a particular procedure or occurrence — such as a home visit — is not reflected in the agency defendants' records, it did not take place. In this context, the absence from the agency defendants' voluminous records of any evidence of the procedures in question being completed is sufficient to demonstrate disputed issues of fact as to whether they ever were completed. The agency defendants may ultimately present evidence that these deficiencies in their records resulted not from the failure to actually take the necessary steps, but rather from a failure to properly record the steps taken, or to retain the relevant records in the intervening decades. Whether that is the case, and whether plaintiffs can demonstrate that, on balance, the agency defendants' failures amounted to deliberate indifference, is an issue for the fact finder.
To survive summary judgment, plaintiffs also must demonstrate that there is a genuine dispute concerning whether the agency defendants' deliberate indifference was "a substantial factor leading to the denial" of their right to be protected from harm while in foster care. Doe, 649 F.2d at 141 (citing Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)); see id. at 145 (formulating the requirement as one of proximate causation). For deliberate indifference to be a substantial factor in the violation of a constitutional right under § 1983, the policy at issue must be "closely related to the ultimate injury," and it must appear that the injury could have been avoided had the policy not been "deficient in the identified respect." Richards, 433 F.Supp.2d at 426.
The agency defendants seek summary judgment on this issue, on the ground that plaintiffs' theory is too hypothetical to demonstrate that the agency defendants proximately caused their injuries. The agency defendants argue that it is impossible to determine, on the record before the Court, whether the agency defendants ever followed up on the claimed inconsistencies with Leekin; and that Leekin, a successful con artist, would most likely have been able to easily correct or deal with such inconsistencies if they had. But these propositions, even putting aside their own essential speculativeness and assuming the existence of admissible evidence establishing their truth, do not demonstrate the absence of any issue of fact as to causation; indeed, they actually pose disputes as to issues of material fact, and are thus insufficient to carry the agency defendants' burden on summary judgment. See Jeffreys, 426 F.3d at 553.
The agency defendants also protest that Leekin's extensive fraud was an intervening force "so bizarre, unique and unforeseeable" that it broke the causal chain needed to impose liability on the agency defendants. (Def.'s Mem. at 45.) Under New York law, "[w]here the acts of a third person intervene between the defendant's conduct and the plaintiffs injury,... liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence." Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666, 670 (1980). "Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences,... these issues generally are for the fact finder to resolve." Id. That is the case here. Whether it is foreseeable that plaintiffs would have been harmed by Leekin, after being placed her care without proper screening and investigation — if plaintiffs can prove that the screening here was grossly negligent — is an issue for the fact finder. Again, the agency defendants fail to demonstrate the absence of a dispute of fact.
To be clear, the burden does not shift to plaintiffs to demonstrate a disputed issue of fact as to causation. They do so anyway. Specifically, plaintiffs offer that causation exists because if the agency defendants had verified Leekin's self-reported information as required, they would have uncovered her lies, and, presumably, would never have placed plaintiffs with her. They proffer evidence that the agency defendants, pursuant to their own policies and testimony, would not have placed foster children with an applicant who had provided them with false information as to her identity. (See Pl.'s Opp. at 35-36.)
The agency defendants next argue that the Rooker-Feldman doctrine divests this Court of subject matter jurisdiction over plaintiffs' § 1983 claim, because the claim is based on events that took place after they were adopted by Leekin. Under the Rooker-Feldman doctrine, "federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments." Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir.2005).
Id. at 85 (2d Cir.2005) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)) (footnote omitted). In Exxon Mobil, the Supreme Court unanimously narrowed the Rooker-Feldman doctrine in response to what it saw as overly broad applications by the circuit courts, and set out the four requirements above. Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517.
The Rooker-Feldman argument advanced by the agency defendants rests on the New York Family Court and Surrogate's Court decrees finalizing plaintiffs' adoptions by Leekin. They argue that any of plaintiffs' claims arising out of the post-adoption period necessarily invite this Court to review and invalidate those adoption decrees. In what could generously be called an overreach, the agency defendants then argue that Rooker-Feldman bars this Court's review of plaintiffs' § 1983 claim in its entirety, because the injury for which plaintiffs seek relief is, in part, their post-adoption abuse.
The agency defendants purport to rely for this argument on the Seventh Circuit's decision in Lewis v. Anderson, 308 F.3d 768 (7th Cir.2002), a case in which individuals sued officials of the Wisconsin Department of Health and Human Services ("WDHHS") under § 1983 for improperly placing them with foster parents who abused them. Invoking Rooker-Feldman, the Seventh Circuit in Lewis stated that "[t]o the extent that the plaintiffs in this case contend that their constitutional rights were violated by the defendants during the pre-adoption period, they may proceed; to the extent that they challenge the decision to approve the Lewises as adoptive parents, they may not (as the latter decision was taken under the supervision of the state courts)." Lewis, 308
The parallel, for sure, is strong. As in Lewis, the allegations in the complaint focus on the agency defendants' selection and approval of Leekin as a foster parent, the monitoring of plaintiffs prior to their adoptions, and other pre-adoption procedures. Thus, even applying Lewis, plaintiffs' claims would not be barred by Rooker-Feldman. Moreover, to the extent that plaintiffs' claims do arise out of incidents that took place post-adoption, Rooker-Feldman still does not bar jurisdiction in this action, because plaintiffs' claims do not meet at least two of the Rooker-Feldman requirements: plaintiffs did not lose in state court and they do not "invite district court review and rejection" of a state court judgment. Green v. Mattingly, 585 F.3d 97, 102 (2d Cir.2009) (quoting Hoblock, 422 F.3d at 85).
In delineating the meaning of the Supreme Court's decision in Exxon Mobil, the Second Circuit has made clear that the "core requirement" of Rooker-Feldman is that "federal plaintiffs are not subject to the Rooker-Feldman bar unless they complain of an injury caused by a state judgment." Hoblock, 422 F.3d at 87 (emphasis in original). The requisite causal connection between the state court judgment and the source of the injury may be satisfied under two circumstances: "(1) where ... the state court judgment itself rather than some action by the defendant in the prior state court litigation is the source or cause of the injury the federal plaintiff complains about in the federal suit, or (2) where ... the underlying harmful action the federal plaintiff complains about was actually taken by a third party in compliance with an order embodied in a judgment rendered by a state court" Glatzer v. Barone, 614 F.Supp.2d 450, 463-64 (S.D.N.Y.2009) aff'd, 394 Fed.Appx. 763 (2d Cir.2010). Either way, the causation must be direct. "[A] plaintiff who seeks in federal court a result opposed to the one he achieved in state court does not, for that reason alone, run afoul of Rooker-Feldman." Id. Indeed, even if the claimed injury has been previously presented to a state court, "[t]he fact that the state court chose not to remedy the injury does not transform the subsequent federal suit on the same matter into an appeal, forbidden by Rooker-Feldman, of the state-court judgment," although the subsequent federal suit could, of course, be barred by ordinary preclusion principles. Id. at 87-88.
Under this reasoning, the injuries alleged in the complaint were not "caused" by a state-court judgment. Plaintiffs do not complain that their injuries were brought about directly by the state court decrees finalizing their adoptions, but rather by the agency defendants' pre-adoption conduct in making the foster placements and supporting those adoptions; nor do they base their claims on conduct the
Additionally, plaintiffs are not "state court losers" by virtue of having had their adoptions finalized in the state courts. Even if the agency defendants could be considered prevailing parties in plaintiffs' adoption proceedings, which is not at all clear, a Florida court has already declared at least three of the adoptions to be void ab initio, under New York law, on account of Leekin's misrepresentations to the New York Family Court regarding her identity. (See Kapell Decl. Ex. 9 at PLF00849-851 (Order for Adjudication of Dependency, In the interest of: [R.W., T.W., and J.G.], Fl. Cir. Ct. 19th Cir. (Sept. 15, 2008).)) Thus, to the extent plaintiffs were "state court losers" following their adoption proceedings, the Florida proceeding has since converted them to "state court winners." See Green, 585 F.3d at 102 (2d Cir.2009) (Reversing a dismissal on Rooker-Feldman grounds on the basis that, "[b]ecause the Family Court issued a superseding order [in a second proceeding] returning plaintiffs child to her, and because the Family Court proceedings were ultimately dismissed, we conclude that plaintiff was not a `state-court loser[].'"). For these reasons, in sum, Rooker-Feldman does not bar plaintiffs' claims.
Two of the ten plaintiffs — L.J. and J.G. — were placed in foster care by the City, rather than by any of the agency defendants. The agency defendants argue that they cannot be held liable to these two plaintiffs under § 1983. In this regard, the agency defendants are correct.
In general, "a State's failure to protect an individual against private violence," such as Leekin's abuse of the plaintiffs, "simply does not constitute a violation of the Due Process Clause," and thus cannot form the basis of a § 1983 claim. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (holding that state had had no duty under the Due Process Clause to protect a child against beatings by his father even though the state had received reports that the father physically abused the child). There are two exceptions to this broad rule. A § 1983 action may arise out of a private harm if: "(1) the victim of private conduct was in a `special relationship' with the State or (2) the state or its agents `in some way assisted in creating or increasing the danger to the victim.'" Campbell v. Brentwood Union Free Sch. Dist., 904 F.Supp.2d 275, 280 (E.D.N.Y.2012) (quoting Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008)).
As the agency defendants acknowledge, the "special relationship" required for the first exception may exist between the state and a child when a state official places the child in foster care. See, e.g., Doe ex rel. Johnson v. S. Carolina Dep't of Soc. Servs., 597 F.3d 163, 172-73 (4th Cir.2010); Doe, 649 F.2d at 141 (pre-DeShaney). However, it is undisputed that the agency defendants did not place L.J. or J.G. in foster care. Accordingly, L.J. and J.G. cannot assert a § 1983 claim against the agency defendants based on the "special relationship" exception. L.J. and J.G. argue, nonetheless, that they can assert a § 1983 claim against the agency defendants based on the "state-created danger" exception.
Under this exception, "state actors may be liable under section 1983 if they affirmatively created or enhanced the
The Second Circuit has recognized that "[d]istinguishing between `active' and `passive' facilitation can of course sometimes be difficult," id. at 110, and a review of relevant cases demonstrates how fine the line can be. See Dwares, 985 F.2d at 99 (state-created danger existed where police officers explicitly told assailants they would not interfere with an attack and thus gave "prearranged official sanction" to the private violence); Matican v. City of New York, 524 F.3d 151, 157-58 (2d Cir. 2008) (police failure to inform confidential informant of a suspect's violent criminal history or release on bail is too passive to constitute state-created danger; but sting operation planned in a manner that would lead the suspect to learn about the informant's involvement was sufficiently affirmative); Okin, 577 F.3d at 429-30 (state-created danger existed when police officers, in responding to plaintiffs complaints of domestic violence, "openly expressed camaraderie with [the assailant] and contempt for [the plaintiff]" and expressed a "dismissive and indifferent attitude" toward her complaints.); Pena, 432 F.3d at 111 (state-created danger exists when "state officials communicate to a private person that he or she will not be arrested, punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others."); Hemphill v. Schott, 141 F.3d 412, 419 (2d Cir.1998) (state-created danger where police officers gave a handgun to a retired officer who then shot a fleeing robber).
Plaintiffs argue that the conduct of the agency defendants falls on the "affirmative conduct" side of the line. By improperly screening Leekin as a foster and adoptive parent, continuing to place more and more special needs children in the Leekin home, and failing to discover plaintiffs L.J. and J.G. during any of their required visits to or inspections of the home, plaintiffs argue that the agency defendants increased the risk that L.J. and J.G. would be harmed by Leekin. Plaintiffs also appear to argue that by repeatedly demonstrating to Leekin that she would not be even minimally investigated, screened, or monitored, the agency defendants affirmatively communicated to her that she could abuse the children in her custody with impunity, thus increasing the risk of harm to all of the children she subsequently harmed.
Even so, precedent suggests that a more deliberate — though not explicit — communication to the private actor sanctioning her misconduct than the one plaintiffs allege here is required. Indeed, in finding that the defendants had encouraged the private violence against the plaintiff in Pena, the court there noted that "[s]ometimes deliberate silence is equivalent to explicit permission." Id. at 112 (emphasis added). Plaintiffs do not argue that the agency defendants intended by their incompetence to communicate to Leekin that she could abuse the children in her custody at will.
The Court, accordingly, with no material facts in dispute, holds that the agency defendants' conduct did not create the danger to L.J. and J.G. from Leekin. Those two plaintiffs cannot maintain a § 1983 claim against the agency defendants, and the claim is dismissed as to them.
Finally, the agency defendants seek summary judgment on plaintiffs' common law negligence claims.
The agency defendants first argue that, as a matter of law, they did not act negligently — i.e., breach their duty of care to plaintiffs. In support of this argument, the agency defendants point to evidence that, in addition to deceiving them, Leekin duped numerous law enforcement and financial institutions over the years, whose employees had specialized training and experience in fraud detection. (See Def.'s 56.1 Stmt ¶ 34). This fact, the agency defendants plead, "defeats any claim that the foster care professionals here failed to exercise reasonable care in their oversight of plaintiffs' foster care or adoptions." (Def.'s Mem. at 44). In other words, the agency defendants claim that the fact that Leekin defrauded multiple institutions is conclusive proof that none of these entities were negligent in their interactions with her. Put another way, had they looked with 20/20 vision, they would not have seen Leekin's deficiencies. Far from a matter of law, of course, at most the agency defendants' argument raises an issue of fact as to whether Leekin's skill at deception prevented them — along with others — from discovering the truth, despite having exercised due care. Similarly unpersuasive, the agency defendants present reports
The agency defendants also seek judgment on the ground that plaintiffs cannot establish causation, relying on the same arguments they made regarding causation under § 1983. For the same reasons discussed earlier in connection with the § 1983 claim, plaintiffs have demonstrated the existence of a triable issue of fact as to causation, and judgment on this ground is denied.
For the foregoing reasons, J.B., S.B., and S.W.'s negligence claims are dismissed as untimely, and L.J. and J.G.'s § 1983 claims are dismissed. In all other respects, the motion is denied. Consequently, the § 1983 action continues with respect to plaintiffs S.W., T.G., J.L., S.B., R.E., J.B., C.B., and T.L., and the negligence action continues with respect to plaintiffs T.G., J.L., R.E., C.B., and T.L.
SO ORDERED.