Jewels v. Lewis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DIAMOND JEWELS,

Plaintiff,

MEMORANDUM AND ORDER

-against- 15-CV-5760 (KAM)(ST)

ADOLOFO LEWIS, CECILIA ELLIS, DIREN

O’BRYAN, HEARTSHARE HUMAN SERVICES OF

NEW YORK; MARK CASNER, GLORIA

ANTONSANTI, MARIBEL CRUZ, JENNIFER

FORTE, VALERIE RUSSO, individually and

as deputy Commissioner, and THE CITY OF

NEW YORK,

Defendants.

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MATSUMOTO, United States District Judge:

On March 10, 2017, plaintiff Diamond Jewels

(“plaintiff” or “Jewels”) filed a fourth amended complaint

against defendants the City of New York (“the City”), Mark

Casner, Gloria Antonsanti, Maribel Cruz, Jennifer Forte, Valerie

Russo, Heartshare Human Services of New York (“Heartshare”),

Adolfo Lewis, Cecilia Ellis, and Diren O’Bryan, bringing claims

pursuant to 42 U.S.C. § 1983 and asserting additional state law

claims under 28 U.S.C. § 1367. ECF No. 81, Fourth Amended

Complaint.

Plaintiff claims nine separate causes of actions

against the defendants: (1) that defendants violated plaintiff’s

personal security while plaintiff was in government custody by

failing to supervise plaintiff properly while she was in foster

care in violation of the Fourteenth Amendment; (2) that

defendants failed to properly train their city and foster care

employees in violation of the Fourteenth Amendment; (3) that

defendants acquiesced in the use of excessive force against

plaintiff, in violation of the Fourth and Fourteenth Amendments;

(4) that defendants failed to exercise the highest degree of

reasonable care during their supervision of plaintiff by failing

to protect her from abuse and failing to provide her with

adequate food, clothing, shelter, and funds; (5) that Heartshare

breached its contract with the City, of which plaintiff was a

beneficiary; (6) that the defendants departed substantially from

the standards of conduct of their profession; (7) that

defendants restricted plaintiff’s contact with her brother and

sister while they were residing in different foster homes; (8)

that the defendants failed to remit funds to plaintiff for

school, in violation of the Fourteenth Amendment; and (9) that

defendants retaliated against plaintiff for commencing this

litigation, in violation of the First Amendment.

After stipulations by the parties, the only claims

remaining are the first six causes of action against the City

and Russo (collectively “City defendants”) and Heartshare,

Lewis, and Ellis (collectively “Heartshare defendants”).

Pending before the court are plaintiff’s motion for partial

summary judgment; the City defendants’ motion for summary

judgment, and the Heartshare defendants’ motion for partial

summary judgment. For the reasons set forth below, the court

denies plaintiff’s motion, grants in part and denies in part the

City defendants’ motion, and denies the Heartshare defendants’

motion.

BACKGROUND

I. Factual Background

The facts in this section are taken from the

plaintiff’s Rule 56.1 statement (ECF No. 151), the defendants’

joint Rule 56.1 statement (ECF No. 136), plaintiff’s additional

Rule 56.1 statement (ECF No. 155), the parties’ responses to the

56.1 statements (ECF Nos. 137, 138, 155), and the parties’

declarations and exhibits in support of those statements. The

facts are considered in the light most favorable to the non-

moving party.

A. ACS & Agency Providers

The Administration for Children's Services (“ACS”) is

an agency of the City of New York responsible for protecting

children from harm, a task accomplished by investigating reports

of suspected child abuse, maltreatment, or neglect. ECF No.

136, Joint Defendants’ Local Rule 56.1 Statement (“Defs. 56.1”)

¶ 6. When children are removed from the homes of their natural

parents, the City contracts with private child care

organizations (“contract agencies"), such as defendant

Heartshare for the provision of foster care services. Id. ¶ 7.

The standards an agency must abide by in caring for foster

children are included in contracts between the agency and the

city. Id. ¶ 36. ACS has promulgated and maintains voluminous

regulations which articulate the standards, policies, and

procedures by which contract agencies and ACS employees are

expected to abide to ensure the safety of children in foster

care. Id. ¶ 35. ACS provides additional guidelines setting

forth requirements with respect to the general supervision of

foster children by contract agencies. Id. ¶ 48.

ACS has a division that is specifically dedicated to

investigating reports of neglect, abuse, and maltreatment of

foster children in foster homes. This division is currently

known as the Office of Special Investigations (“OSI”). Id. ¶

31. After an investigation, if OSI determines that credible

evidence was not discovered during the investigation to support

the allegations, OSI will deem the report unfounded; if there is

credible evidence that the allegations could be true, the report

will be “indicated.” Id. ¶ 32.

Agency Program Assistance (“APA”) is an office within

ACS which was, and still is, responsible for working with each

contract agency to monitor and improve contract agency casework

practices on a broad level. Id. ¶ 33. APA monitors meet with

contract agencies regularly to discuss and work to improve

performance issues agencies have. Id. ¶ 90. APA monitors track

the ability of agencies to assess the safety of foster homes,

and monitors consider the number and type of indicated cases an

agency has had in a given year when monitoring overall agency

performance. Id. ¶¶ 92-93.

APA staff members review certifications of indicated

cases of abuse or neglect, which are an agency’s written

explanation of its responses to indicated cases, to determine

whether the actions taken by an agency in response to an

indicated case were prudent, meaning that the actions were

responsive to the safety issues raised in the substantiated

case. Id. ¶ 94. If the APA staffer reviewing the certification

deemed that the agency’s action was not prudent, APA would

contact the agency to inquire about additional follow-up actions

and reassess whether those follow-up actions were prudent. Id.

95.

Prior to December 15, 2008, the Office of Contract

Agency Case Management (“OCACM”) was an ACS office that oversaw

and monitored contract agencies through review of mandatory

paperwork such as Family Assessment Service Plans (“FASP”). Id.

¶ 14. Prior to the implementation of an initiative called

Improved Outcomes for Children (“IOC”), which was publicly

announced on March 21, 2007, ACS employees in OCACM, Adoption

Case Management (“ACM”), and APA monitored and supervised

contract agencies. Defs. 56.1 ¶ 61; ECF No. 152-64, Pl. Ex. 64

at ACS 002555. APA assisted with the pre-IOC monitoring and

supervision of contract agency performance by conducting

performance evaluations known as EQUIP. Defs. 56.1 ¶ 72. IOC

replaced the functions of OCACM, and the latter ceased to exist

in 2008. Id. ¶ 73. IOC was a system-wide reform that aimed to

strengthen quality assurance for contract agencies generally and

APA particularly. Id. ¶ 74.

In approximately 2007, ACS transitioned from using the

EQUIP evaluations to yearly evaluations known as Scorecards.

Id. ¶ 81. Scorecards evaluate the overall performance of

contract agencies by measuring factors related to safety,

permanency, well-being, and foster parent support. Defs. 56.1 ¶

82; see, e.g., ECF No. 152-38, Pl. Ex. 38, Heartshare Scorecards

2008-2011. The Scorecards give letter grades (A through F) to

agencies on various aspects of each agency’s performance,

including protecting foster children from abuse. Pl. 56.1 ¶ 99.

The Scorecard process involves a review of a sample of

each contract agency's case records by an ACS Provider Agency

Measurement System (PAMS) unit for the purpose of evaluating the

casework of contract agency staff. Defs. 56.1 ¶ 83. If a PAMS

reviewer notices anything during a case record review that

raises a concern or a safety risk with respect to a particular

child, the reviewer should issue a safety alert. Id. ¶ 84. The

safety alert is sent to both the APA monitor and the contract

agency itself, and the agency must address the situation within

forty-eight hours. Id. ¶ 85.

Unsatisfactory performance on a Scorecard could result

in placement of a contract agency on one of several heightened

monitoring statuses or the closing of intake at the contract

agency, which would mean that no additional foster children

could be placed there. Id. ¶ 88. A contract agency’s failure

to improve its performance over time could result in the

contract with the City being terminated or reduced. Id. ¶ 89.

B. Plaintiff’s Placement in and Conditions of the

Shore Residence

Plaintiff was placed in foster care on May 7, 1997.

ECF No. 151, Plaintiff’s Local Rule 56.1 Statement (“Pl. 56.1”)

¶ 47. The foster care was managed and supervised by the City

through ACS. Id. She was placed in the care of Concord Family

Services (“Concord”) foster care agency, and she remained under

Concord’s supervision until the City ultimately terminated

Concord’s contract and the agency closed. Pl. 56.1 ¶¶ 48-49.

On December 15, 2008, with the City’s approval, 16

children, including plaintiff and her brother, were transferred

from Concord to Heartshare. ECF No. 155, Plaintiff’s Additional

Local Rule 56.1 Statement (“Pl. Supp.”) ¶ 195; Defs. 56.1 ¶ 5.

Plaintiff lived in the home of Dolores Shore at the time her

case was transferred from Concord to Heartshare. Defs. 56.1 ¶

105. Plaintiff had been placed into the home of Dolores Shore

by Concord and ultimately lived there until June 1, 2010, with

the exception of a transfer to two other foster homes between

January 2017 and May 2017. Pl. 56.1 ¶¶ 167-68. Shore’s two

sons, Max and Kyle, lived in the home when plaintiff was

transferred to Heartshare. Pl. 56.1 ¶ 170. While plaintiff

lived in the Shore home, Kyle was arrested and charged with

armed robbery. Id. ¶ 176. Shore reported to Heartshare on

February 6, 2009 that Kyle did not reside in the home because he

was incarcerated and had been so since January 2008. Id. ¶ 178.

He was released on August 2009. Id. ¶ 180.

Shore testified in her deposition that Kyle nominally

lived in her house or was listed as living in her house after he

was released, but that he actually stayed at his girlfriend’s

home. ECF No. 158-28, Dolores Shore Deposition Transcript

(“Shore Tr.) 30:5-16. However, she also testified that Kyle was

required to live in her home as a term of his probation. Shore

Tr. 37:2-4, 21-23. Shore testified that she took Kyle to

Heartshare when he was released from prison in August 2009 “to

report that he was out of jail . . . [and because] [h]e was

living in my home.” Shore Tr. 40:16-23. On August 26, 2009,

Kyle signed an addendum to the Heartshare foster parent

agreement stating that he was a “member of [the] household” who

had been “convicted of any crime.” ECF No. 152-21, Ex. 21 at

3797. Shore subsequently reported to Ellis, plaintiff’s

Heartshare caseworker, on January 28, 2010 that “her sons moved

out of her home.” ECF No. 152-25, Ex. 25 at ACS-DJ-00407.

Plaintiff testified at her deposition that Kyle Shore

sexually abused her while she was in the Shore household, both

before and after her case was transferred to Heartshare. ECF

No. 158-21, Diamond Jewels Deposition Transcript (“Jewels Tr.”)

20:10-15. Prior to the transfer, he would (through his

clothing) rub his penis against plaintiff’s feet, touch himself

while sitting next to her on the couch, and feel her legs. Id.

20:14-25. Plaintiff did not tell her prior caseworker at that

time about the abuse, but told her subsequent caseworker, Ellis,

about the abuse after Kyle was released from prison and the

abuse got worse. Id. 21:5-17.

Plaintiff testified that she told Ellis about the

current and prior abuse. Id. 22:14-23. She testified that Kyle

would masturbate in front of her, ask her to perform oral sex,

grab her, and expose his penis to her. Id. 23:6-16. She also

testified that when she reported this behavior to Ellis, Ellis

told her, outside of Shore’s presence, that the Shore home was

the best foster home plaintiff would ever be in and that she

should not complain because there were worse homes. Id. 23:20-

24:4. From January 2009 through May 2010, Heartshare

caseworkers visited the Shore home monthly, except for the

months of January 2009, April 2009, July 2009, and October 2009.

Def. 56.1 ¶ 108; ECF No. 155, Plaintiff’s Response to Joint

Defendants’ Local Rule 56.1 Statement (“Pl. Response to Defs.

56.1”) ¶ 108. Ellis’s case notes do not reflect plaintiff’s

complaint regarding Kyle. ECF No. 137, Joint Defendants’

Response to Plaintiff’s Local Rule 56.1 Statement (“Defs. Resp.

to Pl. 56.1”) ¶¶ 186-188.

Plaintiff also testified that Dolores Shore

emotionally abused her, though Shore denied doing so during her

deposition. Jewels Tr. 24:20-25:2; Shore Tr. 25:20-22.

Plaintiff did not, however, ever complain about this to her

caseworker. Jewels Tr. 25:6-8. Plaintiff testified that

Shore’s daughter and her three granddaughters attacked her,

which caused her to leave the home. Id. 31:22-32:16. Plaintiff

stated that Ellis knew about this attack and that she, her

brother, and Shore had called Ellis about it. Id. 32:19-33:2.

Dolores Shore requested that plaintiff be removed from

her home because she believed that plaintiff had stolen a

cellphone from her. Defs. 56.1 ¶ 120; Pl. Resp. to Defs. 56.1 ¶

120. Plaintiff was removed from the Shore home and placed in

the home of Gary Hoyte (“Mr. Hoyte”) on June 1, 2010. Pl. 56.1

¶ 198. Plaintiff then reported that she had been abused by Kyle

Shore in or about August 2009. Defs. 56.1 ¶¶ 121-22. On June

1, 2010, a report was made to the State Central Register Child

Abuse hotline stating that Kyle Shore, age 21, had been

“touching [plaintiff] age 15 on the legs and masturbating in

front of her” and that he had “also . . . been asking

[plaintiff] to perform oral sex on him.” ECF No. 152-36, Ex. 36

at ACS-DJ-000732. Plaintiff “told the foster mother Dolores

[Shore] of the sexual abuse” and “Dolores called [plaintiff] a

liar and took no action.” Id. at ACS-DJ-000735. Shore

testified at her deposition that plaintiff was never alone in

the house with Kyle. Shore Tr. 29:20-23.

On June 2, 2010, plaintiff needed to be taken to the

police station to be interviewed regarding her allegations

against Kyle Shore. Pl. Supp. ¶ 302. A CPS worker reported

that Ellis “refused to go to the school to pick up [plaintiff]”

to take her to the police station. Pl. Supp. ¶ 303.

Regardless, plaintiff was interviewed on that day, and one of

the police detectives who interviewed her about the allegation

told CPS that “masturbating in front of a child is

inappropriate[,] but because [Kyle] did not touch [plaintiff’s]

breast, butt, or vagina[,] no sexual crime was committed.” Ex.

36 at ACS-DJ-000742. The detective further stated that Kyle was

already in jail for another offense, so he would not pursue

plaintiff’s case and the case would be closed the same day. Id.

Plaintiff’s complaint was subsequently deemed unfounded. ECF

No. 152-7, Ex. 7.

C. Placement in and Conditions of Hoyte Residence

While plaintiff resided in the Shore residence, her

brother Cyris lived in the household of Gary Hoyte and Dadirai

Kapasura (frequently referred to throughout the case files as

“Dee” or “Dadirai Hoyte”), Gary Hoyte’s live-in girlfriend and

the mother of two of his children. Pl. 56.1 ¶¶ 2, 203, 209.

Six days after plaintiff and her brother were

transferred to Heartshare from Concord, Heartshare recertified

Mr. Hoyte as a foster parent before meeting with him and without

access to any of Concord’s records or records in the Connections

database, the database in which agency employees were required

to record their case notes for each foster child. Pl. 56.1 ¶¶

152, 255. The City caseworker assigned to a foster child has

contemporaneous access to and is supposed to read all entries in

the Connections database system which have been made by the

agency caseworker. Pl. 56.1 ¶ 396.

During the first Hoyte home visit by anyone from

Heartshare, on December 30, 2008, the home was observed to be

“inappropriate due to several holes in the walls,” including a

large hole in the wall in Cyris’s bedroom. Pl. 56.1 ¶ 256.

Plaintiff’s Heartshare case planner, Owen, observed the Hoyte

house on February 26, 2009 and noted the home was “in need of

many improvements. There are holes in the walls of the

stairwell and hallway, as well as in the [foster children’s]

bedrooms. . . . [Owen] asked to see the fire alarm and carbon

monoxide detector and the foster parent pulled it out of a

drawer. . . . The cabinets seemed to have very little food. . .

. The freezer had one or two frozen packs of meat, and was

filled with ice and frost.” Pl. 56.1 ¶ 269.

Mrs. Hoyte did not know where the fire alarm and

carbon monoxide detectors were during a visit on March 25, 2009,

though Owen also reported that the home was “free of safety

factors/hazards.” Ex. 35 at ACS 000417. When a Heartshare

caseworker next visited the household three months later on June

24, 2009, she reported that the alarm and detector were working,

there was adequate food in the home, and there were no present

safety/risk factors in the home. Id. at ACS 000422.

On September 9, 2009, Heartshare reauthorized Gary

Hoyte as a foster parent, but left blank a question about the

physical condition of the Hoyte home on the reauthorization

form. Pl. 56.1 ¶ 273. On November 23, 2009, Heartshare

caseworker Ellis observed that the bannister on the staircase

was defective and Mrs. Hoyte admitted that it needed repairs.

Pl. 56.1 ¶ 274. On April 28, 2010, a Heartshare home evaluation

for the Hoytes noted that the home was cluttered and that the

Hoytes did not provide the children with clothing or allowances.

Pl. 56.1 ¶ 275.

On June 1, 2010, plaintiff was transferred to the

Hoyte residence. Defs. 56.1 ¶ 137. That same day, Cyris told

Ellis that he did not have a good relationship with the Hoytes

and felt that they did not care about him. Pl. 56.1 ¶ 277. At

her deposition, plaintiff testified that she told Ellis that she

did not want to live in the Hoyte home because of the living

conditions, but she was told by Ellis that Mr. Hoyte had agreed

to take her already and that there was no other home for her.

ECF No. 158-21, Diamond Jewels Deposition Transcript (“Jewels

Tr.”) 51:15-52:3. Ellis’s case notes, however, state that

Diamond reported she was happy to live in the same home as her

brother and that she did not want to be in a home where she did

not know the family. Ex. 25 at ACS-DJ-000439. Plaintiff was

supposed to share a bedroom with another foster child, Louis, at

the Hoyte home, but instead shared a bed with Cyris and Cyris’s

girlfriend, when she actually slept in the Hoyte home, because

Cyris did not want her to share the room with the other foster

child. Jewels Tr. 53:23-54:20.

On June 7, 2010, based on a review of the Connections

notes, the City issued a safety alert to defendants Lewis,

Ellis, and Heartshare due to the lack of a smoke detector on the

Hoytes’ second floor. Pl. 56.1 ¶ 296. These safety alerts are

issued when the City workers are reading a case file and come

across something “so egregious or scary or . . . a lack of

documentation.” Pl. 56.1 ¶ 297. On July 7, 2010, Heartshare

reapproved the Hoyte residence. Id. ¶ 298.

Plaintiff testified that “there was no food ever” in

the household. Jewels Tr. 55:23-24. She stated there were

mites and fleas in the couch, mice and rats in the home, and

mold in the bathroom and around the house. Id. 55:24-56:3;

57:10-11. Plaintiff said there were rats and roaches

everywhere, including the kitchen, living room, and dining room.

Id. 57:4-11. She said they received many infections from the

mold. Id. 56:3.

Plaintiff also testified that Gary Hoyte was sexual

toward her, holding her arms and making flirtatious comments to

her when she visited Cyris before moving in to the Hoyte

household herself. Id. 56:9-14. His behavior got worse when

she moved in. Id. 56:14-16. He would sit in tight underwear on

the couch and try to make girls in the home sit on his lap. Id.

56:17-23. He never exposed his penis to plaintiff however. Id.

59:21-60:5.

Plaintiff testified that she did not receive

allowance, new clothes, or meals from the Hoytes. Id. 60:22-

61:9. She claims that she told Ellis that she was not receiving

food, as did Cyris. Id. 61:10-13. Plaintiff reported that she

was AWOL most of the time she was with the Hoytes. Id. 57:15.

She would engage in sexual activities outside the Hoyte home for

food and money, and then stay at the homes of the participants

in those sexual activities afterward. Id. 57:20-58:4. Ellis’s

case notes indicate that she asked plaintiff on July 13, 2010

where plaintiff received money from, but plaintiff told Ellis

“that she did not wish to disclose how she receive[d] her funds”

and “indicated that she receive[d] funds from [Mrs. Hoyte] and

other people.” Ex. 25 at ACS-DJ-000446. Mrs. Hoyte indicated

to Ellis that she was not sure where plaintiff was receiving

money and “state[d] that she believe[d] that [plaintiff was]

prostituting.” Id.

Plaintiff testified that she told Ellis that she was

sleeping in other places, including New Jersey, Long Island, the

Bronx, and Brooklyn. Jewels Tr. 58:13-22. She did not tell

Ellis that she was having sex with the individuals she was

staying with. Id. 58:23-59:1. According to plaintiff, Ellis

never asked what she was doing. Id. 59:4. Plaintiff would go

by the Hoyte household during the day, but believes that she

only stayed the night there for the first two weeks of her

placement. Id. 60:13-22. The Hoytes did not notify Heartshare

that plaintiff was not remaining in the home. Defs. 56.1 ¶ 142.

Plaintiff asked Ellis to make unannounced visits to

see the condition of the house and understand why plaintiff was

not staying there. Jewels Tr. 59:5-13. When plaintiff asked to

be relocated and was told by Ellis that there was no other place

to stay, she informed Ellis that she would continue to be AWOL.

Id. 59:17-20. During the deposition, plaintiff recognized

photos of the Hoyte home and confirmed that the conditions

depicted in them were consistent with what she experienced while

living there. See generally id. at 63-71; ECF No. 152-3, Ex. 3.

D. Investigation into the Hoyte Home

On August 5, 2010, an unidentified person reported to

the New York State Central Register of Child Abuse and

Maltreatment that Gary and Dadirai Hoyte had mistreated

plaintiff by failing to notify Heartshare that she had

disappeared a week earlier, that the Hoytes had left their

foster children unattended, and that Gary Hoyte behaved

inappropriately with the female foster children, including

slapping them on their buttocks. Pl. 56.1 ¶ 299. Based on

those allegations and plaintiff’s indication that she did not

feel safe at the Hoyte home and wished to be removed from the

Hoyte home, Heartshare moved plaintiff to a new foster home on

August 5, 2010. Id. ¶ 300.

On August 5, 2010, OSI began an investigation which

ultimately resulted in the plaintiff being removed from the

Hoyte home. Defs. 56.1 ¶ 139. An investigator from ACS

recorded the following during a visit to the Hoyte household on

August 5, 2010:

[H]oles in the wall and a dining table that

had ants crawling on it. . . . There were also

ants in the kitchen as well. [Investigator]

had a baby roach crawling on [Investigator’s]

black book while taking notes. . . . The sink

was filled with dirty dishes. . . . The door

to Cyrus’ [sic] room was broken. . . .

[Investigator] asked Mrs. Hoyte why there were

holes in the walls and she stated that she did

not even know that they were there. . . . Next

to Cyrus's [sic] room was [name redacted] and

Diamond's room. The walls in this room were

filthy. The floor was filthy as well. The

floor looked as if it had not been mopped in

years. . . . [Investigator] observed the

bathroom to have little bugs, [Investigator]

could not distinguish whether they were ants

or roaches.

ECF No. 152-1, Ex. 1 at ACS 0016340-41. Although

Ellis had previously visited the household on the same date, her

notes do not reflect any of these conditions. See ECF No. 152-

35, Ex. 35 at ACS 000148-49.

On August 6, 2010, plaintiff told the ACS investigator

that Mr. Hoyte was a pervert, that he had made sexual advances

to her, her girlfriend, and her brother’s girlfriend, that Mr.

Hoyte slapped her on the buttocks, and that he had asked her to

meet him at a motel. Pl. 56.1 ¶ 306. Diamond’s girlfriend and

Cyris’s girlfriend confirmed to the investigator that Mr. Hoyte

had made advances to them. Id. Plaintiff also told the

investigator that she did not report any of the concerns because

she had freedom to do whatever she wanted in the home. Defs.

Response to Pl. 56.1 ¶ 306. However, plaintiff testified at her

deposition that she had told Ellis that she did not want to be

relocated to the Hoyte home because of conditions there, and

that she told Ellis she was not staying at the Hoyte home for

those reasons. See, e.g., Jewels Tr. at 51:15-52:3; 58:13-22;

59:5-13; 59:17-20.

Plaintiff reported that she stayed out of the home and

was rarely there. Pl. 56.1 ¶ 307. She testified at her

deposition that she would trade sexual favors for food and a

clean place to sleep because the conditions at the Hoyte home

were so bad. Pl. 56.1 ¶ 308.

On August 9, 2010, the ACS investigator reviewed

available home finding records on the Hoyte home and recorded in

her report: “The home was noted to be substandard [in 2005] and

at recertification in November 2008. The same conditions noted

in the home in 2008 [were] observed by [investigator] this

month. It appears that the conditions of this home were not

addressed by either [Concord or Heartshare]. . . . The

conditions of this foster home [are] unacceptable.” Pl. 56.1 ¶

311. On August 10, 2010, the investigator noted that the

“[Hoyte] foster home is in very poor condition. This home has

been in this condition for years as it was [documented] in a

home assessment from Concord Agency in 11/2008[.] The home has

holes in the walls, ants, roaches, and the bedroom for the

foster children girls was filthy.” Pl. 56.1 ¶ 9. At a

conference with CPS on August 13, 2010, Cyris “submitted

photographs . . . in which the holes in the walls, a mouse in

the sink, and other poor conditions of the home were depicted.”

Ex. 1 at ACS001055; see also Ex. 3 (depicting these conditions).

The November 24, 2008 home assessment noted that there

were multiple holes in the walls and doors, including by the

front door, the dining area, the kitchen, and Cyris’s room. Pl.

56.1 ¶¶ 229-230. The 2009 home study, which had an

authorization date from December 30, 2009 to December 30, 2010,

contains the same “home study narrative” that was conducted on

September 22, 2005 by Concord. ECF 141-18, Ex. Z at 3023-3032;

see also ECF 152-19, Ex. 19 (the 2005 narrative). Although

there is an annual reauthorization narrative dated September 9,

2009, the narrative does not provide a response to the question

regarding the “physical condition of the home,” which would

address “a need for repairs” and “smoke detector[s] and their

locations.” Ex. Z at 3037.

Heartshare’s annual authorization form on December 30,

2009 reflects that the last State Central Register database

check on the Hoytes was conducted on September 4, 2005, more

than four years before the reauthorization date. Pl. 56.1 ¶

315. Heartshare never conducted a State Central Register

database check for the Hoytes when they received the home from

Concord in 2008 through at least the end of 2009, and did not

conduct a new State Central Register database check as part of

the reauthorization. Id. ¶ 316. On August 12, 2010, the ACS

investigator’s supervisor noted that an SCR search on the Hoytes

had revealed 7 prior cases, which were all unfounded. ECF No.

152-1, Ex. 1 at ACS-0016376. The supervisor stated that “[t]his

history raises a red flag in reference to parents[’] ability to

appropriately care for children in their home, although cases

were unfounded.” Id.

On September 10, 2010, a Foster Boarding Home

Replacement Review was held regarding the incidents of abuse and

neglect of plaintiff and other children who had been placed in

the Hoyte foster home. Pl. 56.1 ¶ 326. Defendant Lewis, Mrs.

Hoyte, the OSI investigator, and two additional Heartshare

employees attended the meeting. Id. ¶ 327. In her final

decision, the Foster Boarding Home Replacement Reviewer noted

that she had “serious concerns regarding the report made of Mrs.

Hoyte’s husband’s inappropriate gestures towards the former

female foster children that were placed in the home.” Id. ¶

329. The reviewer felt that the placement of children into the

Hoyte home “would not be in their best interest safety, welfare,

or well-being.” Id. ¶ 330. The reviewer recommended that the

Hoyte home remain closed and that no other foster children

should be placed there. Id.

On September 24, 2010, ACS substantiated the

allegation of sexual abuse and maltreatment, inadequate

guardianship, and lack of supervision against Gary Hoyte. Pl.

56.1 ¶ 331; Defs. 56.1 ¶ 148. This included a finding that the

Hoytes “continuously allowed [plaintiff] to remain away from the

home for extended periods of time without knowledge of her

whereabouts.” Ex. 1 at ACS001150. “The overall quality of care

provided to all of the foster children in the home was

substandard [and] [t]he conditions of the home were also

substandard as well.” Id. Mrs. Hoyte encouraged and gave

permission to plaintiff and another foster child to perform oral

sex, and Mr. Hoyte “repeatedly invited [plaintiff] to meet [him]

at motels and also to have [group sex] with him.” Id. ACS

recommended that the Hoyte home be closed immediately. Pl. 56.1

¶ 332. The indicated report regarding plaintiff does not appear

in Heartshare’s certification for the period of “January to

December 2010.” Ex. 1 at ACS-DJ-015873-889.

ACS also requested that Heartshare assign a new case

planner to plaintiff, after Ellis told plaintiff to “shut up” in

the middle of a conference. Id. 333. This occurred months

after an ACS Child Protective Supervisor had reported in her

case notes on June 8, 2010 that a conference needed to be

scheduled with Heartshare, noting that Heartshare had failed to

bring plaintiff to the police station for her interview

regarding the Kyle Shore allegations or shown up to the

interview to support her. ECF No. 152-61, Ex.61 at ACS-DJ-

000756. The ACS supervisor asked in her case note, “Why are

they not being supportive of this child?” Id.

E. Claims and Instant Litigation

The parties previously stipulated to dismiss with

prejudice Concord and a variety of other parties from this

litigation and to dismiss with prejudice claims accruing on or

before December 15, 2008 as to defendants the City of New York,

Mark Casner, Gloria Antonsanti, Valerie Russo, Jennifer Forte,

and Maribel Cruz.1 ECF No. 77, Feb. 17, 2017 Stipulation & Order

of Partial Dismissal with Prejudice. After the parties served

their opening briefs, the plaintiff subsequently stipulated to

dismiss with prejudice: (1) claims against defendants O’Bryan,

Antonsanti, Cruz, Casner, and Forte; (2) claims brought under

the seventh cause of action in the Fourth Amended Complaint

regarding sibling visitation; (3) claims brought under the

eighth cause of action in the Fourth Amended Complaint regarding

1 Throughout the parties’ Local Rule 56.1 statements, defendants object to the

c i t a t i o n o f f a c t s o c c u r r i ng prior to December 15, 2008. Although the

stipulation prevents these facts from serving as an independent cause of

action, they are relevant for establishing what information was available to

the parties later in time and whether that information could have (or should

have) influenced decisions made after December 15, 2008.

payment of college expenses; and (4) claims brought under the

ninth cause of action in the Fourth Amended Complaint regarding

retaliation. ECF No. 132, Nov. 20, 2008 Stipulation & Order of

Partial Dismissal.

Plaintiff’s remaining claims consist of the first six

causes of action in her Fourth Amended Complaint against the

Heartshare defendants (Heartshare, Lewis, and Ellis) and the

City defendants (the City of New York and Russo).

LEGAL STANDARD

I. Motion for Summary Judgment

Summary judgment is appropriate where “the movant

shows that there is no genuine dispute as to any material fact,”

Fed. R. Civ. P. 56(a), “and the facts as to which there is no

such issue warrant the entry of judgment for the moving party as

a matter of law.” Kaytor v. Electric Boat Corp., 609 F.3d 537,

545 (2d Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986). “All ambiguities must be resolved in favor

of the non-moving party and all permissible inferences from the

factual record must be drawn in that party's favor.” Zalaski v.

City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.

2010).

If the moving party can show that “there is no genuine

issue as to any material fact and that it is entitled to

judgment as a matter of law, the nonmoving party must come

forward with specific facts showing that there is a genuine

issue for trial.” Peterson v. Regina, 935 F. Supp. 2d 628, 634

(S.D.N.Y. 2013) (citing Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)). “When opposing parties

tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007).

To defeat a motion for summary judgment, the non-

moving party must identify probative, admissible evidence from

which a reasonable factfinder could find in his favor. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986). It

“requires the nonmoving party to go beyond the pleadings and by

[his or] her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific

facts showing that there is a genuine issue for trial.” 477

U.S. at 261 n.2 (citations omitted). “Only disputes over facts

that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment. . . .

[I]t is the substantive law’s identification of which facts are

critical and which facts are irrelevant that governs.” 477 U.S.

at 248. If, as to the issue on which summary judgment is

sought, there is any evidence in the record from any source from

which a reasonable inference could be drawn in favor of the

nonmoving party, summary judgment is improper. Chambers v. TRM

Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (citations

omitted).

II. 42 U.S.C. § 1983

Section 1983 provides a cause of action against any

“person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . subjects, or causes to be

subjected, any . . . person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws.” 42 U.S.C. § 1983; Whalen v.

Cnty. of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (“To state a

valid claim under 42 U.S.C. § 1983, the plaintiff must allege

that the challenged conduct (1) was attributable to a person

acting under color of state law, and (2) deprived the plaintiff

of a right, privilege, or immunity secured by the Constitution

or laws of the United States.”).

The Second Circuit has held that an individual placed

in foster care may pursue a claim under § 1983 for violations of

her constitutionally protected rights. Doe v. New York City

Dep't. of Soc. Servs., 649 F.2d 134, 141-42 (2d Cir. 1981)

(“When individuals are placed in custody or under the care of

the government, their governmental custodians are sometimes

charged with affirmative duties, the nonfeasance of which may

violate the constitution.”). In particular, “children in foster

care [have] a substantive due process right [under the

Fourteenth Amendment] to protection from harm.” Marisol A. by

Forbes v. Giuliani, 929 F. Supp. 662, 675 (S.D.N.Y. 1996); see

also Tylena M. v. Heartshare Children’s Servs., 390 F. Supp. 2d

296, 302 (S.D.N.Y. 2005). The right of foster children to be

free from harm “includes the right to essentials, such as

adequate food, shelter, clothing, and medical attention.”

Richards v. City of New York, 433 F. Supp. 2d 404, 422-23

(S.D.N.Y. 2006).

In cases regarding foster care, liability is often

based on the failure to act. “Liability for nonfeasance of such

affirmative duties by a governmental custodian requires that (1)

the omissions were a ‘substantial factor’ leading to the denial

of a constitutionally protected liberty or property interest,

and (2) the officials in charge of the agency being sued must

have displayed a mental state of ‘deliberate indifference.’”

Phillips ex rel. Green v. City of New York, 453 F. Supp. 2d 690,

722 (S.D.N.Y. 2006) (citing Doe, 649 F.2d at 141; Richards, 433

F. Supp. 2d at 423–24; Tylena M., 390 F. Supp. 2d at 302).

“[G]ross negligent conduct creates a strong presumption of

deliberate indifference.” Doe, 649 F.2d at 143.

Under Monell v. Dep’t of Social Servs., 436 U.S. 658

(978), the City cannot be held liable under § 1983 on a theory

of respondeat superior. See also Bd. of County Comm'rs v.

Brown, 520 U.S. 397, 403 (1997) (“A municipality may not be held

liable under § 1983 solely because it employs a tortfeasor.”).

Rather, there must be a “direct causal link between a municipal

policy or custom and the alleged constitutional deprivation,”

City of Canton v. Harris, 489 U.S. 378, 385 (1989), which can be

demonstrated by showing: “(1) a formal policy, promulgated or

adopted by the City; (2) that an official with policymaking

authority took action or made a specific decision which caused

the alleged violation of constitutional rights; or (3) the

existence of an unlawful practice by subordinate officials was

so permanent or well settled so as to constitute a ‘custom or

usage’ and that the practice was so widespread as to imply the

constructive acquiescence of policymaking officials.” Bradley

v. City of New York, No. 08–cv–1106, 2009 WL 1703237, at *2

(E.D.N.Y. June 18, 2009) (internal citations omitted).

A Monell claim may be based on inadequate supervision

where the plaintiff establishes: (1) defendants’ “duty to act by

proving they should have known their inadequate supervision was

so likely to result in the alleged deprivations so as to

constitute deliberate indifference under Walker [v. City of New

York, 974 F.2d 293 (2d Cir. 1992)]”; (2) that there were

“obvious and severe deficiencies in the . . . defendants’

supervision that reflect a purposeful rather than negligent

course of action”; and (3) that there was “a causal relationship

between the failure to supervise and the alleged deprivations to

plaintiff[].” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.

2007).

The Second Circuit “has identified three requirements

before a municipality’s failure to train or supervise

constitutes deliberate indifference.” Jenkins v. City of New

York, 478 F.3d 76, 94 (2d Cir. 2007). “First, the plaintiff

must show that a policymaker knows ‘to a moral certainty’ that

her employees will confront a given situation. Second, the

plaintiff must show that the situation either presents the

employee with a difficult choice of the sort that training or

supervision will make less difficult or that there is a history

of employees mishandling the situation. Finally, the plaintiff

must show that the wrong choice by the city employee will

frequently cause the deprivation of a citizen’s constitutional

rights.” Id. (internal citations and quotation marks omitted).

Courts have extended Monell's limitations on

respondeat superior liability to private organizations acting

under color of state law. See, e.g., Rojas v. Alexander's Dep't

Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990) (“Private

employers are not liable under § 1983 for the constitutional

torts of their employees, unless the plaintiff proves that

‘action pursuant to official . . . policy of some nature caused

a constitutional tort.’”) (quoting Monell, 436 U.S. at 691)

(internal citation omitted) (ellipsis and emphasis in original);

Mejia v. City of New York, 119 F. Supp. 2d 232, 275 (E.D.N.Y.

2000).

DISCUSSION

I. Heartshare’s Status a State Actor

The Heartshare defendants’ motion for summary judgment

focuses on the argument that Heartshare is entitled to summary

judgment on plaintiff’s § 1983 claims because it is not a state

actor subject to liability under § 1983.2 ECF No. 135,

Memorandum of Law in Support of Heartshare Defendants’ Motion

for Partial Summary Judgment (“Heartshare Mem.”) at 4-9.

This court previously held that Heartshare acts under

color of state law under the public function and joint action or

close nexus tests. See Jewels v. Casner et al., Case No. 12-cv-

1895, ECF No. 281, Sep. 30, 2017 Memorandum & Order (“Casner

Order”) at 24-28. The court concluded that the Second Circuit’s

decision in Perez v. Sugarman, 499 F.2d 761 (2d Cir. 1974),

which determined that private foster care agencies are state

actors for § 1983 claims, remains good law and is binding.

2 The court notes that Heartshare moved for summary judgment on other grounds

i n i t s m o t i o n , b u t t h a t t hose arguments were mooted by the parties’

stipulation. See ECF No. 132, Nov. 20, 2008 Stipulation & Order of Partial

Dismissal.

The Heartshare defendants identify two decisions

issued since the court issued the Casner Order, in which

district courts rejected Perez and determined that private

foster care agencies are not state actors, and argue that Perez

should be reconsidered based on this recent case law.

Heartshare Mem. at 7-8. Although some courts in this Circuit

have questioned Perez’s continued force “in light of more recent

Supreme Court decisions emphasizing the exclusivity element of

the public function test . . .[,] they have found that it

remains good law unless and until the Second Circuit holds

otherwise, and they have found private foster agencies to be

state actors.” Mortimer v. City of New York, 2018 WL 1605982,

at *13 (S.D.N.Y. Mar. 29, 2018). This court relies on its

previous analysis and reaches the same conclusion that Perez

remains good law and that Heartshare is a state actor subject to

liability under § 1983.

The Heartshare defendants’ motion for partial summary

judgment is denied.

II. Section 1983 Claims against Heartshare and City Defendants

A. Individual Defendants Lewis & Ellis (Heartshare)

Based on the record evidence, the jury must resolve

disputes of fact as to whether Lewis and Ellis knew or should

have known of the risks of harm that plaintiff would face in the

Hoyte household, both before and after she was placed there, and

whether they properly discharged their duties toward her.

Ellis was employed by Heartshare from June 2009 until

October 2010. ECF No. 158-14, Cecilia Ellis Deposition

Transcript (“Ellis Tr.”) 13:24-14:2. She believed that she was

responsible for an average of 15 cases and 20 children during

her tenure at Heartshare. Ellis Tr. 18:10-17. Lewis provided

her a case summary for each of her cases. Id. 24:17-25:7.

Lewis was responsible for making sure that she followed the

City’s policies. Id. 26:24-27:4.

Ellis believed that Lewis instructed her to input case

notes in Connections within two weeks after an occurrence.

Ellis Tr. 38:8-18. She was taught by Heartshare and ACS not to

cut and paste the same case notes in Connections. Id. 41:7-19.

Ellis denied that she ever did so or that anyone at Heartshare

ever discussed with her whether she had duplicate notes. Id.

38:19-39:2. Ellis also believed that she input all of her

contacts with plaintiff into Connections, which was her regular

practice. Id. 42:19-43:2.

Ellis had a meeting with Natalie Barnwell, the

Director of Foster Care at Heartshare, in which Barnwell told

her that she needed to enter her case notes on time. Id. 64:18-

65:25. Ellis reiterated that she believed the time frame for

entering her notes was less than a week or less than two weeks.

Id. 66:2-8. Between December 15, 2008 and August 5, 2010, Ellis

entered her case notes regarding home visits to plaintiff within

two weeks only six times (for visits conducted on March 12,

2009; November 23, 2009; January 28, 2010; April 27, 2010; July

13, 2010; and August 5, 2010). Ex. 25 at ACS-DJ-000373, ACS-DJ-

000399-400, ACS-DJ-000407, ACS-DJ-000425-25, ACS-DJ-000446-47,

ACS-DJ-000450-51. Ellis’s other home visit case notes were

submitted between 16 and 76 days after the visit. See generally

Ex. 25.

Ellis suggested to Lewis that her caseload be reduced

and felt that having ten cases would have been reasonable, but

Lewis told her that a reduction would not be possible because

there were not enough case planners. Ellis Tr. 91:5-24. Ellis

felt she did not receive adequate support from Heartshare to

properly perform the tasks required by her job, though she did

not believe that her caseload impaired her ability to properly

care for the children assigned to her. Id. 98:9-99:3.

Regarding plaintiff’s time spent in the Shore home,

Ellis testified that plaintiff told her that she had a good

relationship with Shore’s son—that they were like brother and

sister. Ellis Tr. 114:6-16-25. Because Shore was considering

adopting plaintiff, “there was never any indication that there

was an issue or threat between [plaintiff and Kyle Shore.]” Id.

114:13-16. As to plaintiff’s subsequent placement, Ellis

testified that the Hoyte home was clean and tidy, and that she

never saw mice, roaches, or mold in the home. Id. 145:8-19.

Lewis testified that he was responsible for

supervising the Heartshare case planners assigned to plaintiff,

which included ensuring that the case planners made visits,

entered their case notes into the Connections system within 24

to 72 hours of the event recorded, ensured that the children

attended school, and obtained mental health treatment. Pl. 56.1

¶ 251. Despite this testimony, between December 15, 2008 and

August 5, 2010, the shortest amount of time Ellis took to enter

case notes for her home visits to plaintiff was 4 days

(recording a January 28, 2010 visit on February 1, 2010 and

recording an August 5, 2010 visit on August 9, 2010). Ex. 25 at

ACS-DJ-000407, ACS-DJ-000450.

Lewis supervised four individuals and monitored their

work of monitoring foster children and families. ECF No. 158-23

Lewis August 12, 2015 Deposition Transcript (“Lewis 1 Tr.”).

33:11-24. He was responsible for making sure that each case

planner followed Heartshare’s policies. Lewis 1 Tr. 38:5-9.

Lewis also testified that he met with case planners weekly to

discuss case dynamics. Id. 46:25-47:17. Each case planner had

15-20 cases, and a case could have more than one child included

in the case. Id. 35:21-36:3. Lewis estimated that he was

supervising 60-80 children. Id. 36:9-11. Lewis agreed that the

eventual change to reduce the number of cases per caseworker had

a positive improvement on child outcomes. ECF 158-24, Lewis

June 21, 2017 Deposition Transcript (“Lewis 2 Tr.”) 12:9-16.

Lewis could determine whether a case planner was

entering case notes in a timely fashion by checking Connections.

Lewis 1 Tr. 45:5-13. Lewis generally reviewed case notes once a

week, which allowed him to see whether they were entered timely.

Lewis 1 Tr. 45:14-46:11. He also reviewed the content and

quality of the weekly notes in his review. Id. 48:6-24. He

also checked to determine whether the notes were identical,

because duplicating notes was not allowed. Id. 48:25-49:15.

But the substantive text of Ellis’s case notes for her home

visits to Cyris Jewels on July 23, 2009 and August 26, 2009 are

identical, except that the July 23, 2009 entry ends with a line

stating that the next home visit is scheduled for August 26,

2009. Ex. 25 at 130-32. And on November 2, 2009, APA sent a

letter to Heartshare recapping a meeting on September 15, 2009

in which the parties discussed duplication of progress notes as

an area in need of improvement for the agency. ECF No. 152-33,

Ex. 33 at ACS-DJ-011709-710. Lewis described Ellis as an

average case planner and claimed that she did her job to the

best of her abilities, despite some concerns about her “doing

progress notes on time . . . and doing home visits, school

visits, that sort of thing[.]” Lewis 2 Tr. 59:11-25.

Lewis testified that he did not review a case file

when plaintiff and her siblings were transferred to Heartshare

because he was never given a case file for them. Lewis 1 Tr.

89:12-20. Lewis asked his director, Natalie Barnwell for a case

file when the case was transferred, but never received one,

despite asking three or four times through March 2009. Id.

92:17-94:8. Lewis also did not have access to the Connections

database for four to six months after plaintiff’s case was

transferred to Heartshare. Id. 36:22-37:19. Heartshare

employees could not access the plaintiff’s case file in

Connections until March 2009. Id. 95:13-96:13. When Lewis

reviewed the file, it was incomplete and did not cover the full

history of plaintiff’s time in foster care, and instead the file

only contained about six months of information. Id. 96:8-97:2.

Lewis testified that he never learned of any findings

that the Hoyte home had physical deficiencies such as holes in

the wall, mold, dirt, and clutter. Lewis 1 Tr. 106:16-20. It

is the obligation of a case planner to be aware of physical

defects in a home that bear on the safety and well-being of a

foster child, and it is the case planner’s obligation to

document such defects. Id. 121:18-122:4. A case planner should

report such defects to her supervisor, and Lewis did not recall

any case planners bringing defects in the Hoyte home to his

attention or seeing any in the case notes. Lewis 1 Tr. 122:5-

18.

Based on the presented evidence, there are disputes of

fact for a jury to resolve regarding whether Lewis and Ellis

knew or should have known of the risks plaintiff faced and

failed to discharge their duties to her. The parties dispute

whether Ellis was aware of the conditions of the Hoyte home both

before and at the time of plaintiff’s transfer there. Ellis’s

case notes reflecting that plaintiff was happy to move to the

Hoyte home conflict with plaintiff’s testimony that she informed

Ellis she did not with to stay in the Hoyte home due to the

conditions of the home. The parties dispute whether Ellis was

aware that plaintiff was not staying in the Hoyte household.

Plaintiff testified that she would not remain in the home due to

its conditions, which she asked Ellis to see. And although the

case notes reflected “adequate food” in the home when Ellis made

scheduled visits, plaintiff testified that there often was not

and that she informed Ellis of this.

Regarding Lewis’s supervision of Ellis, she requested

a reduction in caseload and was denied one. Whether she could

adequately handle her caseload is an open question, especially

considering that she frequently failed to timely file case

notes. Even assuming Lewis reviewed Ellis’s untimely filed case

notes, the veracity of these notes is in question in part due to

plaintiff’s testimony that Ellis avoided inspecting the Hoyte

home thoroughly and due to the fact that Ellis’s notes do not

reflect the conditions of the home that were documented by the

City’s investigator on August 5, 2010, after Ellis had visited

the home earlier in the day (and which were noted to have been

the same as conditions reported years before). The veracity, or

sufficiency, of the case notes is especially called into

question due to the fact that Ellis’s case notes from August 5,

2010 do not mention the presence of bugs and other conditions

throughout the home on the same day that the City’s investigator

reported them. Although the court notes that some of the

offered evidence appears to establish liability of the

defendants, such as Ellis’s case note reporting that Ellis did

not know how plaintiff was obtaining money and that Mrs. Hoyte

reported to Ellis that she thought plaintiff was engaging in

prostitution, the court recognizes that it would have to weigh

evidence to rule in either party’s favor at this stage.

The disputes regarding what Ellis and Lewis knew or

should have known, as well as what they did with the information

they had, are material for determining whether the individual

Heartshare defendants were deliberately indifferent to the risks

plaintiff faced. Accordingly, plaintiff is denied summary

judgment regarding her § 1983 claims against the individual

Heartshare defendants.

B. Heartshare’s Liability

There are disputed facts as to whether Heartshare had

a policy or practice of failing to monitor foster homes in its

care and was deliberately indifferent to the needs of children

under its supervision. Even after resolving the disputes as to

Ellis and Lewis’s conduct, there is a broader question of fact

whether what occurred in plaintiff’s case is an exception to

Heartshare’s otherwise appropriate practices or indicative of

Heartshare’s policy. Resolution of this issue requires weighing

evidence by the jury.

Plaintiff argues that failures by Ellis and Lewis

arose from Heartshare’s practice of overloading caseworkers with

responsibility for more children than professional standards or

the City allowed. Pl. Mem. at 28. Although Ellis testified

that she requested a reduced caseload and did not feel

adequately supported, she also testified that she felt her

ability to do her job was ultimately not impaired. There is a

dispute regarding whether any of Ellis’s failures were due to an

excessive caseload, as well as whether caseworkers were

consistently overloaded.

It is also not clear whether an excessive caseload is

what caused Ellis to file her case notes late. The submission

of timely (and accurate) case notes would have allowed

supervisors or other Heartshare managers to determine that cases

were being monitored and to identify any red flags unaddressed

by a caseworker. Although Ellis often filed her notes late, she

testified that she was told by the Director of Foster Care that

she needed to timely update her case notes and Lewis testified

that this was an area of concern regarding Ellis’s performance.

The late entry of case notes by Ellis raises a dispute whether

Heartshare allowed caseworkers to ignore their responsibility to

timely update case files.

Heartshare accepted the transfer of children from

Concord without the complete case files and without access to

the Connections case note database system to review the case

notes for the children whose safety was entrusted to Heartshare.

Pl. 56.1 ¶ 140. Despite lacking access to these records,

Heartshare certified Mr. Hoyte as a foster parent six days after

the transfer without meeting him or inspecting his home.

Heartshare did not conduct a State Central Register database

check for reports of abuse by the Hoytes when Heartshare

received plaintiff’s case in 2008, waiting until late 2009 to do

so. Whether such failures to inspect new homes and foster

parents was a common practice is not clear from the record.

Although plaintiff has not established at this stage

that Heartshare had a policy or practice of deliberate

indifference to the children in its care, the court notes that

there is evidence from which a jury could conclude so. Prior to

the transfer of plaintiff’s case to Heartshare, the City

submitted a letter to Heartshare on September 3, 2008 that

identified an increase in OSI cases as a challenge for

Heartshare to address. ECF No. 152-7, Ex. 27 at 8011-12.

Whatever actions Heartshare took to address this problem, for

fiscal years 2008, 2010, and 2011, ACS gave Heartshare a

Scorecard rating of zero on a scale of zero to one hundred (with

zero being the worst possible rating) for “frequency of OSI

indicated cases.” Pl. 56.1 ¶ 100. Heartshare was aware of

those ratings. Id. ¶ 101. Whether these scores resulted from

ignoring red flags or from incidents that occurred despite

Heartshare’s appropriate efforts is a question for the jury to

decide.

Because a jury could find that Heartshare’s policy was

one of deliberate indifference, the court denies plaintiff’s

motion for summary judgment as to Heartshare’s § 1983 liability.

C. Individual Defendant Russo (City of New York)

There is also a dispute as to whether defendant Russo

can individually be held liable for her conduct.

“Municipal policymakers may be held liable in their

official capacity under § 1983 for a failure to supervise if

they should have known that inadequate . . . supervision was so

likely to result in the violation of constitutional rights, that

[they] . . . can reasonably be said to have been deliberately

indifferent to the need.” Tylena M. v. Heartshare Children's

Servs., 390 F. Supp. 2d 296, 303 (S.D.N.Y. 2005) (citing Walker

v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (internal

quotation marks omitted)). “An individual cannot be held liable

for damages under § 1983 ‘merely because he held a high position

of authority,’ but can be held liable if he was personally

involved in the alleged deprivation.” Back v. Hastings On

Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004)

(citation omitted). “The personal involvement of a supervisory

defendant may be shown by evidence that: (1) the defendant

participated directly in the alleged constitutional violation,

(2) the defendant, after being informed of the violation through

a report or appeal, failed to remedy the wrong, (3) the

defendant created a policy or custom under which

unconstitutional practices occurred, or allowed the continuance

of such a policy or custom, (4) the defendant was grossly

negligent in supervising subordinates who committed the wrongful

acts, or (5) the defendant exhibited deliberate indifference to

the rights of [individuals] by failing to act on information

indicating that unconstitutional acts were occurring.” Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

Russo was the Deputy Commissioner of the Division of

Quality Assurance. ECF No. 158-27, Valerie Russo Deposition

Transcript (“Russo Tr.”) at 17. As the Deputy Commissioner,

Russo managed and further developed the functions of the ACS

training academy, the Office of Agency Program Assistance, the

Office of Quality Improvement, and the Office of Research and

Development. Defs. 56.1 ¶ 9. She was “responsible for

coordinating the Commissioner’s Improved Outcomes for Children

work.” Russo Tr. at 18. According to Russo, she “managed and

supervised[,] and also coordinated. [She] really led the

Commissioner’s effort around Improved Outcomes for Children[,]

which was a systemwide reform.” Russo Tr. 19:9-20. Russo’s

duties did not include direct supervision of children in foster

care. Defs. 56.1 ¶ 12.

When asked to confirm that Scorecard was an initiative

she led, Russo stated she “would say a transition from Equip to

Scorecard.” Russo Tr. 80:5-9. She reported directly to the

Commissioner of ACS. Id. 26:4-6. Agency performance was

measured by EQUIP before transfer to Scorecard. Id. 57:24-

58:11. The qualities being measured were basically the same.

Id. 58:16-24. She led the transition from EQUIP to Scorecard.

Id. 65:11-14. She “wasn’t technically creating actual

measurements, but [she] was involved in figuring out which ones

fit in safety, which ones fit in permanency . . . and being

clear that those were the kinds of things that were being

measured.” Id. 80:17-23. But she said she and the Commissioner

approved the technical parameters of how things were being

measured. Id. 80:24-81:6.

“[A]s Deputy Commissioner, [Russo] was involved in the

decision to end [Concord Family Services’] contract[.]” Russo

Tr. 100:9-18. Regarding the transfer of Concord cases to other

agencies, Russo made recommendations to the Commissioner of ACS

based upon the work performed by staff in multiple ACS

divisions. Defs. 56.1 ¶ 13. Russo stated that geography was a

factor in the transfer decisions, as well as “overall

performance of the organization.” Russo Tr. 106:19-24; see also

ECF No. 158-5, Frank Callagy Apr. 26, 2016 Deposition Transcript

(“Callagy 1 Tr.”) 60:7-18 (In transferring a case to a new

agency, geography and performance were considered, which

included checking that the agency was not on some type of status

that would prevent it from being able to receive any cases.);

ECF No. 158-10, Erin Clark Deposition Transcript (“Clark Tr.”)

34:7-20 (When agencies closed and children were moved to other

agencies, different factors including geography and performance

would be considered.).

“[Russo] wouldn’t have been involved in a case

specific [sic].” Russo Tr. 107:98-10. She “wouldn’t have known

about the special circumstances on a case by case basis” as to

assigning a child. Id. 108:7-9. Russo stated that she would

not have been involved in the transfer of case files; rather,

her purview was broadly determining the distribution of cases.

Id. 115:7-24.

The parties have not provided sufficient evidence for

the court to determine as a matter of law whether Russo is a

policymaker. Although a title alone cannot establish

policymaking status, it is not clear whether her role in fact

involved making policy. She described herself as managing,

coordinating, and supervising Improved Outcomes for Children and

stated that she led the efforts around this reform for measuring

agency performance. This is in tension with her testimony that

she did not create measurements for the new Scorecard agency

grading, but simply organized the measures (although presumably

this organization was designed to improve the City’s ability to

monitor agencies). Russo further stated that she approved the

technical measurements with the Commissioner, but it is not

clear whether her suggestions were rubberstamped by the

Commissioner, considered as part of a collaborative discussion,

or accepted or rejected entirely without her input.

In addition to the City’s method of monitoring and

rating agencies, there are disputed issues of fact as to Russo’s

involvement in plaintiff’s transfer to Heartshare. Russo

testified that she was not involved in individual cases, but

that she made recommendations regarding the transfer of cases

from Concord, based on work that considered overall performance

of the receiving agencies. There is a dispute as to whether

safety and risk to plaintiff and the other children transferred

from Concord to Heartshare were actually considered in this

process. There is testimony that overall performance was a

factor, the barest evidence offered by the defendants that

safety was a consideration in transferring Concord cases.

Plaintiffs, by contrast, offer evidence that the City

defendants were aware of problems with Heartshare at the time of

the transfer from Concord to Heartshare. As noted above, the

City had sent a letter to Heartshare a few months before the

transfer noting that Heartshare had had an increase in OSI

cases. Plaintiffs also highlight that a Corrective Action Plan

(CAP) had been issued to the Hoyte household and could not have

run its course at the time of transfer. ACS had issued a CAP on

October 3, 2008, which stated, among other things, that Concord

“should closely monitor the home[,] . . . includ[ing] making

unannounced visit [SIC] to the home from one of their announced

visit [SIC] for a period of six months.” Ex. 4 at ACS011371.

The six-month period could not have ended by the time of

transfer.

Defendants cite December 29, 2008 case notes in

Connections that reflect Concord’s response to the CAP, see

Defs. Response to Pl. 56.1 ¶ 240, but these notes do not provide

proof that Concord engaged in close monitoring or that any

unannounced visits occurred. The notes actually state that the

foster parents “ha[d] not made themselves available to the [case

planner] nor the agency” and suggests that there was still

concern regarding whether the Hoytes were failing to provide

clothing, food, or allowance to foster children. Ex. 4 at

ACS011373. Lewis testified that he would have wanted to know if

a home assigned to him had a CAP in place and that he did not

know there was a CAP in place for the Hoyte home at the time of

transfer. Pl. 56.1 ¶¶ 241, 243. Although defendants assert

that the CAP and Concord’s response to the CAP were in

Connections, Lewis did not have access to the Connections

database at the time of the transfer or for several months

after.

There are disputed issues regarding Russo’s role in

plaintiff’s transfer to Heartshare and her involvement in

creation of the agency monitoring system in existence while

plaintiff was at Heartshare. Therefore, plaintiff’s summary

judgment motion and the City defendants’ summary judgment motion

regarding Russo’s individual liability are denied.

1. Qualified Immunity

“[Q]ualified immunity shields government employees

acting in their official capacity from suits for damages under

42 U.S.C. § 1983, unless their conduct violated clearly

established rights of which an objectively reasonable official

would have known.” Lowth v. Town of Cheektowaga, 82 F.3d 563,

568-69 (2d Cir. 1996). “The ‘dispositive inquiry in determining

whether a right is clearly established is whether it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.’” Hernandez v. Mesa, 137 S.Ct.

2003, 2008 (2017) (quoting Saucier v. Katz, 533 U.S. 194, 202

(2001)). Courts should determine whether qualified immunity

applies “long before trial” and “at the earliest possible stage

in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 228 (1991)

(per curiam).

The court cannot determine that Russo is entitled to

qualified immunity at this stage because of the disputes

regarding her role in plaintiff’s assignment to Heartshare. If

it is true that agency performance was considered in the Concord

transfer and that Russo recommended plaintiff’s assignment after

a process in which safety was considered, Russo may be entitled

to qualified immunity even if the transfer was negligent. But

if Russo made the recommendations without consideration of

safety, it cannot be said that her actions were objectively

reasonable in carrying out her duty to protect foster children

from harm. A determination that Russo is entitled to qualified

immunity as a matter of law is inappropriate when there are

questions as to whether Russo was aware or should have been

aware of a risk to plaintiff and acted without regard to that

risk.

D. City’s Liability

Although the court recognizes that the parties have

stipulated that the defendants cannot be held liable solely for

acts occurring prior to December 15, 2008, the court also

recognizes that the City had knowledge of or access to

information concerning events that occurred before that date and

which could have informed its actions. Some of these events are

described below.

On September 20, 2006, a Concord caseworker went to

the Hoyte household for a scheduled visit and reported that

neither of the Hoytes was home. ECF No. 152-37, Ex. 37 at ACS-

0016736. The home “was in total disarray.” Id. The living

room had garbage on the floor, the “kitchen sink had dishes

piled on the top[,] and garbage was all over the floor.” Id.

The children were also home alone unsupervised for over three

hours. Id. at ACS-0016739.

On June 27, 2008, a caseworker visited the home and

recorded that the cabinets and refrigerator had food, but not

enough for the number of individuals who resided in the home.

Id. at ACS-0016885. On September 16, 2008, a case planner told

the Hoytes that she was looking into removing a foster child

from the home in part due to the foster parent’s “lack of

provision for the child” regarding clothing and allowance. Id.

at ACS-00016864. Two other children reported that they had not

received allowance or sneakers for school, and the case planner

informed the Hoytes that they “ha[d] not been meeting the

children’s needs[.]” Id. On October 3, 2008, ACS created a CAP

that directed the agency to closely monitor the Hoyte household

and to make unannounced visits for a period of 6 months. ECF

No. 152-4, Ex. 4 at 3101.

On October 23, 2008, one of the children in the Hoyte

home stated that he sometimes stole because the foster parents

did not buy him clothing or food and did not give him an

allowance. Id. at 16934. The Concord case planner observed

that the clothing the child wore was bought by his mother and

noted that she occasionally bought food or gave carfare to the

child because the child had no money with which to eat or buy

food. Id. at 16934-35.

On November 24, 2008, a Concord home assessment

revealed that the wall by the entrance door of the home had a

hole that was covered with plaster and that there were three

holes in the dining area. ECF No. 152-14, Ex. 14 at 3005. A

wall close to the refrigerator in the kitchen had a hole, and a

glass patio door in the living room was broken. Id. One of the

bedrooms had four holes in the walls, including one on the door

which was falling apart. Id. Cyris’s room had three holes in

the wall. Id. Some of the holes in the home were covered with

plaster, but the damage and the condition of the home were

obvious. Id.

Meanwhile, on September 3, 2008, Heartshare’s APA

Monitor and Consultant sent Heartshare a letter recapping a

meeting on August 7, 2008. ECF No. 152-7, Ex. 27 at 8011.

Although the letter lists the agency’s areas of strength,

included among the “challenges Heartshare should aggressively

address in the coming year” was an “increase in OSI cases.” Id.

at 8011-12. The letter indicates that Heartshare had identified

the challenge of a “6% increase in OSI reports in the last year”

and notes that one of the consequences was that they were

“required to close more homes as a result of indicated OSI

cases.” Id. at 8014. It is unclear whether the City or the

agency required that the homes be closed.

Plaintiff’s expert, Dr. Michael Sobel, authored two

reports under penalty of perjury in which he analyzed the rate

of abuse of New York City foster children and children in

Heartshare’s care using data produced in discovery and published

by the City in its Child Welfare Indicators Annual Reports for

the years 2007-2010. ECF No. 152-10, Ex. 10, Dec. 5, 2017 Sobel

Report; ECF No. 152-11, Ex. 11, Sep. 26, 2018 Sobel Report. Dr.

Sobel’s second report reanalyzed the data to address the fact

that people sometimes remain in foster care after turning

eighteen, though Dr. Sobel’s ultimate conclusions were not

altered. Ex. 11 at 1. According to Dr. Sobel’s analysis of the

data collected by the City, the rate of abuse and/or neglect by

New York City foster children by foster parents was higher than

the rate of abuse and/or neglect of New York children in the

general population. Pl. 56.1 ¶¶ 16; 82.

From 2007 through 2010, the number of indicated

abuse/neglect events involving children under the age of 18

under Heartshare’s supervision increased. ECF No. 152-5, Ex. 5.

The rate of abuse and neglect of Heartshare foster children was

higher than average among foster care agencies. Pl. 56.1 ¶ 21.

In 2007, there were 27 State Central Register (“SCR”) reports of

abuse, neglect, or maltreatment and 5 indicated cases for

Heartshare foster children out of a total of 423 children. ECF

No. 152-6, Ex. 6, Amended Responses to Plaintiff’s Third Set of

Interrogatories, Exhibits A-C at ACS-DJ-014251-53. In 2008,

there were 53 SCR reports and 14 indicated cases for Heartshare

foster children out of a total of 437 children. Id. In 2009,

there were 64 SCR reports and 17 indicated cases for Heartshare

foster children out of a total of 448 children. Id. In 2010,

there were 49 SCR reports and 16 indicated cases for Heartshare

foster children out of a total of 387 children. Id.

Dr. Sobel concluded that Heartshare’s rate of abuse

and neglect of its foster children was three times that of the

rate in the general population and worse than 90% of the other

foster care agencies in New York City. Pl. 56.1 ¶¶ 22; 81. For

fiscal years 2008, 2010, and 2011, ACS gave Heartshare a

Scorecard rating of zero on a scale of zero to one hundred (with

zero being the worst possible rating) for “frequency of OSI

indicated cases.” Pl. 56.1 ¶ 100. The 2008 preliminary

Heartshare Scorecard was distributed in November 2008, prior to

the City’s decision to transfer plaintiff to Heartshare. Pl.

Supp. ¶ 204.

The defendants assert that prior to 2013, ACS’s

regular custom was to adhere to the guidelines promulgated by

OCFS with respect to the maximum number of foster children who

could be assigned to each contract agency caseworker. Defs.

56.1 ¶ 96; see also ECF No. 165-6, Ex. G at ACS 01692 (“The

Contractor shall make every effort to maintain sufficient

qualified staff . . . in accordance with the Regulations of

OCFS.”); ECF No. 165-7, Ex. H at ACS-DJ-011886 (“Proposers

should develop staffing ratios that are appropriate for their

program models and aligned with requirements of the NYS OCFS

Standards of Payment for the specific rate model being proposed

for their program.”). Beginning in 2006, the OCFS Standards of

Payment manual provided for staffing ratios of 12 children to

each caseworker. ECF No. 152-28, Ex. 28 at ACS-0015601. The

12:1 ratio was consistent with the Child Welfare League of

America Standard No. 3.48, of 12 to 15 children per caseworker,

which defendant Lewis believed was the standard to which all

agencies were required to adhere. Pl. 56.1 ¶¶ 120-21.

The defendants do not dispute that Ellis had

approximately 15 cases and 20 children under her supervision,

and that Lewis supervised four caseworkers and between 60-80

children. Defendants also stated that ACS monitored the

contract agency caseloads. Defs. 56.1 ¶ 99. If ACS had a

concern that an agency did not have enough case planners to

adequately cover their cases, ACS could contact the agency and

could close intake if the agency did not immediately address the

concern. Id. ¶¶ 101-03.

1. Certification of Indicated Cases

When a case of abuse, neglect, or endangerment of a

foster child is confirmed, a foster care agency is required to

submit to the City a written discussion of the case and an

explanation of the actions that the agency took in response to

the incident of confirmed abuse. Pl. 56.1 ¶ 104. For every

explanation, the City must decide whether the agency’s response

to the confirmed report was prudent. Id.

Frank Callagy, who worked in APA within ACS, testified

that he had experience reviewing foster care agency

certification of substantiated cases, which he did from

approximately 2010 through 2013. ECF No. 158-6, Frank Callagy

Dec. 12, 2017 Deposition Transcript (“Callagy 2 Tr.”) 30:15-19;

30:24-31:15. Callagy would review a sheet that had the number

of indicated cases for a particular time period and the agency’s

response of what it did related to those cases. Callagy 2 Tr.

30:24-31:9. He would review the responses and recommend to his

boss whether the actions taken by the agency were prudent. Id.

31:9-11. Agencies were required to make these certifications

once a year. Id. 31:21-32:2.

To determine whether the agency actions were prudent,

Callagy and his peers, did not use written criteria, but relied

on their experience in foster care and determined whether the

agencies were responsive to any safety issues. Callagy 2 Tr.

34:9-19. If an agency response was deemed not prudent, the

certification would be sent back to the agency with questions.

Id. 37:20-38:3. There would be a reassessment after the agency

responded to determine if the follow up actions taken by the

agency were prudent. Id. 39:4-16.

Michael Walker, who worked in the office of

procurement at ACS and processed foster care agency contracts,

did not recall that the APA ever found an agency’s action in

response to an indicated report not to be prudent. ECF No. 158-

29, Michael Walker Deposition Transcript (“Walker Tr.”) 19:20-

24. Camelia Anders, an assistant commissioner in ACS, testified

in her deposition that sometimes additional information was

needed from an agency to determine whether an agency’s response

was prudent, but she did not ever find that an agency’s response

was not prudent after receiving such information. ECF No. 158-

1, Camelia Anders Deposition Transcript (“Anders Tr.”) 31:16-23.

Callagy testified that that during the time that he was

evaluating certifications, he found agency responses not to be

prudent fewer than ten times. Callagy 2 Tr. 37:11-19.

Callagy did not suggest actions the agency should take

to prevent further incidents of abuse or neglect. Callagy 2 Tr.

39:20-40:2. An agency’s APA monitor or supervisor would be the

person responsible for suggesting such actions, though the

suggested action would be based on overall performance, not

based on the certification process. Id. 40:3-14. Callagy never

took a course or training on what constituted a prudent response

to an indicated case of child abuse and his supervisors never

provided him with any training on the issue. Id. 54:4-13.

APA’s monitoring included looking at all of the Scorecard

measures, and the ones related to foster homes and safety in

general would lead to conversations with agencies about their

performance. Id. 55:11-23. Callagy did not consider the number

of indicated cases as a factor in evaluating certifications.

Id. 59:23-60:4. Callagy testified, however, that the APA

monitors would consider the indicated cases as part of overall

performance of an agency. Id. 60:5-23.

2. Scorecard & APA review

A Scorecard is the mechanism the City uses to assess

agencies uniformly. ECF No. 158-10, Erin Clark Deposition

Transcript (“Clark Tr.”) 6:24-7:3. Scorecards, which came into

use in 2007, rely on case record review portions called Provider

Agency Measurement System (PAMS). Clark Tr. 7:3-8, 22-25. They

are used to evaluate quality and compliance measures using a

uniform system. Id. 8:2-8. All foster care agencies are

evaluated using the Scorecard annually. Id. 7:9-21. The cards

created a system that both the agencies and ACS could understand

and were designed so people could be held accountable. Id. 8:9-

17.

PAMS reviews cases and sends the data to the agency

and APA. Clark Tr. 64:16-21. PAMS is a uniform case record

review tool that looks at areas of safety, permanency, and well-

being in the case records for a six-month case period. Id.

64:22-65:4. This is done by reviewing a sample of cases from an

agency in the time period based on documented work by agency

staff in the Connections database. Id. 65:5-22. A PAMS

reviewer could issue an alert if he or she saw an issue in a

specific child’s file. Id. 96:19-97:12. These reports would be

sent to a supervisor, an agency’s point person for PAMS, and the

APA monitor, with a request for follow up from the agency within

48 hours. Id. 97:13-98:8. APA could issue alerts in its

reviews as well. Id.

Action toward an agency would not be taken based on

one score, but would be based on the whole scope of the work and

the issues the score represented. Clark Tr. 12:7-20. When an

agency did poorly, an APA monitor would work with the agency to

improve the practice at issue. Id. ACS could close intake for

an agency without an agency asking for it. Clark Tr. 49:9-13.

The City did not have a checklist for what would require

heightened monitoring because agencies were evaluated in the

overall context. Id. 68:15-69:10.

The director of APA compared the performance of the

various agencies on their Scorecards. Clark Tr. 32:15-20. But

agencies doing better would not necessarily be given more

children in the following contract. Id. 33:23-34-2. The APA

could place an agency on heightened monitoring status and would

give the agency written notice of that status. Id. 51:11-19.

An agency would be given written notice if it were being taken

off of, or continuing on, heightened monitoring status. Id.

54:4-20.

One of the ratings on the Scorecard was for “Frequency

of OSI indicated cases.” When asked whether a score of zero for

“Frequency of OSI indicated cases” was considered a bad rating

on a Scorecard, Clark stated that as an APA monitor she would

not consider the score as a zero percent, because it was “in the

context of the entire work that is done with the agency in all

of the measures[, and one would] never lift one measure out by

itself.” Clark Tr. 14:17-15:11. She testified that she would

look at the information for the Scorecard categories together in

context. Id. 16:2-25. If looking at the Frequency of OSI

indicated cases score, she would also consider scores for items

such as Foster Parent Support. Id. 17:2-7. Clark confirmed,

however, that a score of zero did not represent zero cases of

child abuse, that the scores ran from zero to one hundred, and

that zero was the lowest possible score an agency could get in a

particular category. Id. 15:12-22.

No particular score on the “Frequency of OSI indicated

cases” factor alone would trigger heightened monitoring. Id.

75:2-13. Clark reiterated that the frequency of indicated cases

score would not be isolated as the sole basis for action. Id.

83:25-84:24. A score of zero would lead to a follow-up

conversation about the data. Id. 86:8-17. “You would look at

the children behind the data, the types of OSIs that were

substantiated, . . . the size of the agency, you would take that

whole picture and you would look at how they did in some of the

other measures, you would definitely look at it, but you

wouldn’t jump right to heightened monitoring.” Id. 86:16-24.

To Clark’s knowledge, the score of Frequency of OSI indicated

reports would never by itself result in heightened monitoring.

Id. 88:8-13.

One bad Scorecard could lead to termination of a

contract, though not usually, and Clark did not know whether an

agency was ever terminated because of a bad Scorecard. Clark

Tr. 9:13-25. An agency could be terminated for a series of bad

scores when there was no improvement or the scores became worse

over time. Id. 10:2-8. The City could not reduce the number of

children sent to a foster care agency based on one Scorecard,

but a reduction could be based on a series of bad Scorecards.

Id. 11:16-25. Clark, however, did not know whether the City had

ever reduced the number of children based on a series of bad

Scorecards. Id. 12:2-6.

According to Clark, agencies existed on a continuum

which included regular monitoring, heightened monitoring,

corrective actions status, and probationary corrective action

status. Clark Tr. 99:4-100:4. If there were continued

noncompliance by an agency or a failure after an agency was

placed on probationary corrective action status, ACS could

terminate the contract. Id. 100:5-10. It was possible for an

agency to skip a level of monitoring status. Id. 101:12-19.

3. Contract Renewal

The City’s decision regarding the prudence of the

agency’s response impacts whether the City will renew its

contract with the foster care agency. Pl. 56.1 ¶ 105. Michael

Walker testified in his deposition that the City’s contract

renewal process included annual performance evaluations. Walker

Tr. 7:17-9:2; 12:24-13:7. This process requires submission of

certifications of substantiated cases of abuse and neglect by

contract agencies for each contract. Defs. 56.1 ¶ 42.

The finding that the action a foster care agency took

was not prudent, in response to an indicated report, would not

alone preclude an agency from having its contract renewed.

Walker Tr. 19:25-20:6. If APA determined that a foster care

agency’s response to an indicated report was not prudent, the

agency would be found not responsible, or placed on a corrective

action plan, after which the agency might be found responsible

if it followed the plan. Id. 20:7-17.

Procurement did not always see an agency’s Scorecard,

but the Scorecards were sometimes used to show improvement on a

CAP. Walker Tr. 23:8-16. Procurement did not consider the

comparative performance of agencies or the caseloads of agency

caseworkers in renewing the contracts. Id. 35:25-36:11. APA,

rather than Procurement, was responsible for determining whether

the information about incidents was accurate. Id. 40:15-23. An

agency’s low score on its Scorecard for one year would not be a

basis for modifying its contract. Id. 40:24-41:4.

After twice exercising options to renew Heartshare’s

contract with the City for additional three-year terms through

February 28, 2009, the parties extended the Heartshare contract

for the following time periods: March 1, 2009 through February

28, 2010; March 1, 2010 through June 30, 2010; July 1, 2010

through September 30, 2010; and October 1, 2010 through June 30,

2011. ECF No. 152-41, Ex. 41 at ACS 001870. The Mayor’s Office

of Contract Services Contract Performance Evaluation concerning

the period between March 1, 2010 and February 28, 2011 states in

the Comments on Performance Quality that “[Heartshare] received

a D in Safety and F in Foster Parent Support Areas.

[Heartshare] is engaged in performance improvement with ACS.

[Heartshare] is not on Corrective Action Status.” ECF No. 141-

1, Ex. I at ACS-DJ-015892–894. Heartshare had a Poor

subcategory rating for Performance Quality for the time period

March 1, 2010 through February 28, 2011. Id. at ACS-DJ-015894.

As described above, the City had a number of policies

regarding how contract agencies should be monitored over time.

What remains in dispute is whether the City actually monitored

the agencies and took enforcement actions to hold the agencies

accountable. It is not clear whether the number of indicated

cases an agency had actually mattered for the City’s continued

relationship with an agency. The City transferred additional

cases to Heartshare after the City had acknowledged that

Heartshare needed to reduce the number of indicated cases

occurring with children in its care. And despite Heartshare’s

continued, repeated low scores on the metric of frequency of

indicated cases, Heartshare was never put on any heightened

monitoring status and the City continued to renew its contract

with Heartshare.

Even if the court accepted the defendants’ assertion

that focus on indicated cases in isolation is inappropriate for

evaluating an agency, there is a dispute of material fact

regarding whether the City actually verified agency

certifications of indicated cases. Heartshare’s certification

for the period of “January to December 2010” does not reflect

plaintiff’s case. Ex. 1 at ACS-DJ-015873-889. Although this

court knows that plaintiff was moved to an appropriate home, the

fact that her case is missing from the data calls into question

whether the City actually knew that indicated abuse cases had

been appropriately handled by an agency. Defendants do not

identify a Heartshare certification that includes plaintiff’s

case. Moreover, the data defendants produced reporting annual

indicated cases by agency reflects that there were 16 indicated

cases by Heartshare in 2010, the same number of indicated cases

reported in the Heartshare certification that omitted

plaintiff’s case. See Ex. 6 at ACS-DJ-014253.

A jury could credibly find that the City’s policy was

one of indifference, as evidenced by the City’s failure of

taking concrete action like requiring enhanced monitoring,

removing children, or closing intake. Whether a failure to

appropriately monitor Heartshare reflected the City’s policy

broadly or an exception to the usual rule is not clear.

Plaintiff’s expert Dr. Sobel concluded that the rate of abuse

and/or neglect involving New York City foster children by foster

parents was higher than the rate of abuse and/or neglect of New

York children in the general population. Although not decisive

for this motion, Dr. Sobel’s conclusion could support a jury’s

finding that poor supervision of Heartshare reflected a policy

of indifference to abuse throughout the foster care system,

masked by the City’s focus on overall context for agency

performance.

The court denies summary judgment on plaintiff’s

motion and the City defendants’ motion as to the City’s

liability.

III. Breach of Contract Claim against Heartshare

Plaintiff argues that Heartshare breached its contract

with the City and that Heartshare is liable to the plaintiff as

a third-party beneficiary who was injured by the breach. Pl.

Mem. at 29. Heartshare argues that there was no breach and that

there is an issue of fact regarding whether plaintiff is a

third-party beneficiary. Heartshare Opp. at 9-12.

The court agrees that plaintiff was a third-party

beneficiary of the contract between the City and Heartshare.

See Richards v. City of New York, 433 F. Supp. 2d 404, 430

(E.D.N.Y. 2006) (“There can be no dispute that [foster children]

are the third-party beneficiaries of the contract between ACS

and [the foster care agency]; they are the people for whom the

delegated services are to be provided.”); see also ECF No. 152-

40, Ex. 40 at ACS 001695 (“ACS and the Contractor agree that the

fundamental purpose of this Agreement is to provide the best

available services, care and treatment to those Public Charges

[foster children] who are entrusted to the Contractor’s care and

further to ensure that the health, welfare and fundamental

rights of the children in its care shall be the guiding

principle for all decisions which affect their lives.”).

Because, however, there are disputed facts regarding

Heartshare’s actions with regard to its services under the

contract, as discussed above, the court denies plaintiff summary

judgment on the breach of contract claim.

IV. Negligence Claims against Heartshare and City Defendants

A. Exercise of Supplemental Jurisdiction

The City defendants argue that the court should

decline to exercise supplemental jurisdiction over plaintiff’s

state law claims because dismissal of those claims would be

appropriate upon dismissal of the federal claims. For the

reasons stated above, the court has not granted the defendants’

motions for summary judgment on the federal claims, and

plaintiff’s federal claims remain for resolution at trial.

Moreover, this case has been consolidated with Jewels v. Casner

et al., Case No. 12-cv-1895, for trial, and there are federal

claims remaining in that case. The court, therefore, will

continue to exercise supplemental jurisdiction over the state

law claims.

The court denies the City defendants’ motion on this

ground.

B. Negligence Claims

Generally, to prevail on a negligence claim under New

York law, a plaintiff must establish “that the defendant: (1)

owed a duty of care; (2) breached that duty; and (3) that the

breach was the proximate cause of the plaintiff's injuries.”

Vega v. Fox, 457 F. Supp. 2d 172, 183 (S.D.N.Y. 2006); see

Alfaro v. Wal–Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.

2000).

1. Negligence Claim Against Heartshare

A foster care agency defendant can establish that it

is entitled to summary judgment for negligence by showing that

it “did not have sufficiently specific knowledge or notice of

the alleged dangerous conduct which caused the . . . injuries.”

Keizer v. SCO Family of Servs., 120 A.D.3d 475, 476-77, 991

N.Y.S.2d 103 (N.Y. App. Div. 2014) (“In other words, the

[defendant] had to show that the third-party acts could not have

been reasonably anticipated.”). Moreover, although New York

courts have held that actual or constructive notice to an

institution of prior similar conduct is “generally” required,

see Mirand v. City of New York, 614 N.Y.S.2d 372, 637 N.E.2d

263, 266 (N.Y. 1994), even absent actual or constructive notice,

in other circumstances the danger and risk of harm could have

been reasonably foreseen and prevented by the institution. See

Garcia v. City of New York, 222 A.D.2d 192, 646 N.Y.S.2d 508,

510–11 (N.Y. App. Div. 1996) (holding that a school could be

liable for an assault by an older student on a five-year-old

kindergarten student who was sent into a public bathroom

unescorted, despite no notice of prior acts by the older

student, because it was reasonably foreseeable that sending a

five-year-old into a public bathroom unaccompanied could create

a risk of assault); see also Murray v. Research Found., 184

Misc.2d 453, 707 N.Y.S.2d 816, 821 (N.Y. Sup. Ct. 2000) (“Where

the actions to be taken by the school are so obvious and could

easily have prevented the harm notice is not necessarily an

issue.”).

There are disputed facts as to whether Heartshare was

aware of the conditions of the Hoyte home, both before and while

plaintiff lived there. Heartshare case notes reflected at

various times that there was not sufficient food in the home and

that the physical conditions of the home were subpar. Moreover,

case notes failed to reflect physical conditions of the Hoyte

home that were present in both early case notes and at the time

of plaintiff’s removal from the Hoyte home. Notably, the

conditions missing from Ellis’s case notes from her visit on

August 5, 2010 include the presence of bugs and filth that were

reported by the City’s investigator when the investigator

visited the Hoyte home later on the same day. The parties

disagree whether plaintiff told Ellis that she wanted to live in

the Hoyte home and whether Ellis was aware that plaintiff was

not staying in the home after she was placed there.

Based on the disputed material facts, the court denies

plaintiff’s motion for summary judgment on the negligence claims

against the Heartshare defendants.

2. Negligence Claims against City

Plaintiff argues that the City defendants were

negligent by breaching their duty to adequately supervise

plaintiff, which resulted in her injury. Pl. Mem. at 6-7.

Plaintiff argues that the City defendants were on notice that

Heartshare had poor performance issues and that there were

problems with the Hoyte home, and thus should not have

transferred plaintiff to Heartshare, which placed her in the

Hoyte home that was subsequently closed by the City. Pl. Mem.

at 9-12, 14-15.

The City defendants argue that plaintiff’s injuries

were not reasonably foreseeable. City Opp. at 2-3. They argue

that the sexual harassment plaintiff faced in the Hoyte home was

not known and that plaintiff did not report it. Id. at 2.

Defendants argue that the case notes at various times noted no

physical problems with the home or indicated the home was safe,

and reflected that early complaints about the lack of food were

remedied. Id. at 3. Defendants argue that prior unfounded OSI

and Domestic Incident reports did not make plaintiff’s injury

more foreseeable and that the case records as a whole could not

have put the City defendants on notice of conduct similar to the

wrongful conduct that caused plaintiff’s injuries. Id. at 3-5.

The City defendants further argue that they did not fail to

exercise due care and that plaintiff fails to identify conduct

that was the proximate cause of the injuries plaintiff suffered.

Id. at 5-6.

The City defendants argue, however, that if the court

finds that they breached a duty to plaintiff and the breach

proximately caused plaintiff’s injuries, plaintiff’s claim would

be barred by governmental immunity. City Opp. at 6. Having

already discussed the disputes of fact regarding whether

defendants adequately monitored agencies and were aware, or

should have been aware, of the risks plaintiff faced, the court

focuses on the governmental immunity question regarding

plaintiff’s negligence claim against the City.

The City defendants argue that they did not have a

special relationship with plaintiff and that the actions they

took were discretionary, which would entitle them to

governmental immunity for any negligence. City Opp. at 5-9;

City Mem. at 25-26. The City defendants assert that McLean v.

City of New York, 12 N.Y.3d 194 (2009) clarified how

governmental immunity attaches to discretionary acts and

prevents defendants from being held liable under a theory of

negligent supervision of children in foster care. City Mem. at

23-24. McClean explained that “[g]overnment action, if

discretionary, may not be a basis for liability, while

ministerial actions may be, but only if they violate a special

duty owed to the plaintiff, apart from any duty to the public in

general.” McLean v. City of New York, 12 N.Y.3d 194, 203

(2009). “[D]iscretionary . . . acts involve the exercise of

reasoned judgment which could typically produce different

acceptable results whereas a ministerial act envisions direct

adherence to a governing rule or standard with a compulsory

result.” Tango v. Tulevech, 61 N.Y.2d 34, 41 (1983).

Plaintiff argues that discretionary decisions that are

implemented negligently can subject a municipality to liability

and that the City was grossly negligent in its transfer of

plaintiff from Concord to Heartshare. Pl. Reply to City Opp. at

3. Plaintiff also questions whether the decision to close

Concord was discretionary. Id. Plaintiff asserts that the

City’s disregard for the Heartshare abuse data, placement of

plaintiff with Heartshare, ignoring the conditions of the Hoyte

home, and allowing plaintiff to be placed in the Hoyte home

reflect that there was not an exercise of reasoned judgment

consistent with discretionary acts. Pl. Opp. to City Mem. at

21. Plaintiff argues that the act of making a decision alone

cannot be the basis for immunity and that decisions must be made

in accordance with accepted professional standards. Id. at 21-

23.

This court previously held that the City and its

agents have a special duty to protect foster children and that

there is a special relationship between the City and its agents

and foster children. See Casner Order at 65-69. “[T]he special

duty rule assists a plaintiff in establishing a duty of care and

. . . operates independently of the governmental function

immunity defense, which precludes liability even when all

elements of a negligence claim—including duty—have been proved.”

Valdez, 18 N.Y.3d at 77. To prevail on a governmental immunity

defense, a “municipality must do much more than merely allege

that its employee was engaged in activities involving the

exercise of discretion.” Id. at 79.

The court agrees with defendants that the decisions

the City defendants made regarding plaintiff involved the

exercise of discretion. Although plaintiff identifies

professional standards, such as those of the CWLA, that provide

guidelines regarding best practices for foster care oversight,

it is not clear that there were any standards which commanded a

specific result. While this court has expressed concern

regarding the actions taken by those responsible for plaintiff,

it is not clear that there were standards requiring a

“compulsory result.” To be clear, plaintiff may still argue

that actions taken by defendants were so ineffective or

negligible as to amount to deliberate indifference under Section

1983, but that is a different question than whether defendants

were authorized to determine which action was most appropriate

as a discretionary matter. The decision to place plaintiff with

or allow plaintiff to remain with a particular agency in a

particular household involves the exercise of discretion.

“[G]overnmental immunity does not attach to every

action of an official having discretionary duties but only to

those involving an exercise of that discretion.” Mon v. City of

New York, 78 N.Y.2d 309, 313 (1991). “That the departmental

responsibilities of the [City defendants] . . . were

sufficiently discretionary to receive immunity does not end the

inquiry, however.” Id. at 314. “Immunity could not apply

unless the negligent [action] resulted from the exercise of

their discretion.” Id.

In Mon, the New York Court of Appeals considered the

question of governmental immunity for two police officers, Kelly

and Springer, who were responsible for “investigating and

evaluating the background and qualifications of police officer

candidates and making the recommendations and final decisions

for such appointments[.]” Id. The officers were responsible

for the hiring of a third officer, Shankman, who had committed

an unjustified shooting. Id. at 311-12.

Shankman applied for a position with the N.Y.P.D., but

omitted a prior arrest in which Shankman’s companion fired a gun

in the drugstore where Shankman worked and for which Shankman

pleaded guilty to disorderly conduct. Id. at 312. Kelly

investigated Shankman’s family, education, military and

educational background, and found nothing unfavorable. Id.

Despite Shankman’s earlier arrest, and over the arresting

officer’s strenuous objection to Shankman’s application, Kelly

recommended Shankman’s approval based on his review of

Shankman’s entire applicant file and forwarded his

recommendation and the applicant file to Springer. Id. After

reviewing the applicant file, Springer approved Shankman’s

appointment. Id.

In concluding that Shankman’s negligent hiring

resulted from an exercise of discretion, the court noted that

Kelly was required to make a judgment in evaluating the

biographical and background information derived from the

Shankman’s application and interview. Id. at 314-15. When he

learned of the prior arrest and conviction, Kelly was “faced

with making discretionary decisions concerning the seriousness

of the incident leading to the disorderly conduct conviction and

how much, if any, additional investigation was warranted.” Id.

at 315. “Whether to make a favorable recommendation in spite of

the [prior] incident and Shankman's failure to disclose it

necessarily required Officer Kelly to exercise discretion in

weighing these factors against Shankman's otherwise favorable

record.” Id. And “Springer’s decision to accept Officer

Kelly’s recommendation and to overlook the disorderly conduct

conviction--while unwise, as it turned out--was nevertheless

based on the exercise of judgment.” Id. The court found that

the City and the two officers were entitled to governmental

immunity. Id. at 316.

The Court of Appeals had previously found there was no

governmental immunity in a case which involved a civil suit

brought against the New York City Parks Department for the

negligent retention of an ex-convict who raped the plaintiff as

a child. Haddock v. City of New York, 75 N.Y.2d 478, 480

(1990). The ex-convict was hired through a program passed as

part of a welfare reform package which allowed benefits

recipients, including ex-convicts, to work in public and private

nonprofit agencies. Id. at 481. During his intake interview

and on his fingerprint submission, the ex-convict represented

that he had not been convicted of any crime, including moving

violations, and he was subsequently hired as a Parks Department

worker, a position the City considered not to involve public

contact or working with children. Id. at 481-82. When the ex-

convict’s fingerprints were processed, several months after he

began working, the Personnel Department received his “rap

sheet,” which reflected a substantial criminal past. Id. at

482.

Responding to the City’s argument for governmental

immunity over its decision to retain the ex-convict, the court

noted that the “difficulty with the City's contention that it

[was] entitled to a cloak of immunity for the discretionary

decision to retain [the ex-convict] in his status [was] that

there [was] no evidence that, prior to the rape, the City in

fact made any such decision or exercised any such discretion.”

Id. at 485. As opposed to making an error in judgment by

retaining the ex-convict, there was “no indication that, before

the attack on plaintiff, the City made any effort to comply with

its own personnel procedures for employees with criminal

records, and no indication that it made a judgment of any sort

when it learned that [the ex-convict] both had a criminal record

and lied egregiously about it.” Id. The “key fact [was] that

no City employee in the relevant time frame weighed the impact

of [the ex-convict’s] record on his work assignment or made a

judgment that he should be retained.” Id.

This court must determine whether the City exercised

discretion, perhaps properly or improperly, or whether the City

failed to exercise discretion at all. Although there are

disputed issues of fact regarding what the City defendants knew

or should have known regarding the risks plaintiff (and other

children) faced during placement with Heartshare, to the extent

that there were decisions inviting discretion by the City and

its agents, it is not clear from this record that the defendants

actually exercised discretion.

For example, regarding plaintiff’s transfer to

Heartshare, Russo, Clark, and Callagy testified at their

depositions that geography and agency performance were

considered in transferring cases. This bare testimony does not

further elaborate what specifically was considered regarding

Heartshare or any other agency that received cases from Concord.

At the time of plaintiff’s transfer, Heartshare’s preliminary

Scorecard had already been released and reflected that

Heartshare had the worst score of zero for Frequency of OSI

indicated cases. Whether Russo, Clark, Callagy, or any other

City employee involved in the transfer process determined that

Heartshare was an appropriate agency to receive additional cases

despite a safety record resulting in such a score is not

apparent from the record.

It is also not clear whether the City’s subsequent

decisions involving Heartshare were the result of an exercise of

discretion. Clark explained at her deposition that agency

performance was evaluated in overall context and that isolating

any individual Scorecard score would not be an appropriate way

to evaluate an agency. She also testified that City did not

have a checklist for what would trigger heightened monitoring.

This raises the question of whether the City considered

Heartshare’s higher incidence of OSI indicated cases, including

zero ratings on its Scorecard in 2008, 2010, and 2011 for

frequency of indicated cases, and nonetheless decided to

continue allowing children to be placed with Heartshare despite

that issue or whether Heartshare ignored such data, resulting in

a failure to require heightened monitoring, termination of the

contract, or some other consequence.

Defendants have not demonstrated in the current record

that they actually exercised discretion. If the defendants are

not precluded from establishing at trial that specific

information was considered regarding Heartshare in its

decisionmaking, they may renew their governmental immunity

defense then. The court, however, is unlikely to allow the

parties to proffer previously undisclosed evidence. As stated

above, the court finds that there are disputed issues of fact

and both parties are denied summary judgment on plaintiff’s

negligence claims against the City defendants.

V. Punitive Damages against City

The City defendants argue that plaintiff cannot

recover punitive damages against a municipality in a § 1983

action as a matter of law. City Mem. at 27. The City

defendants also argue that plaintiff cannot identify any willful

or malicious conduct by individual defendant Russo that would

make punitive damages appropriate in this case. Id. at 27-28.

“A lthough a municipality itself is immune from a claim

for punitive damages [in § 1983 cases], see City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 258–68 . . . (1981), that

immunity does not extend to a municipal official sued in his

individual capacity, see, e.g., Smith v. Wade, [461 U.S. 30, 55–

56 (1983)].” New Windsor Volunteer Ambulance Corps, Inc. v.

Meyers, 442 F.3d 101, 122 (2d Cir. 2006). The New York Court of

Appeals has “held that the State and its political subdivisions

are not subject to punitive damages.” Clark-Fitzpatrick, Inc.

v. Long Island R. Co., 70 N.Y.2d 382, 386 (1987) (citing

Sharapata v Town of Islip, 56 N.Y.2d 332 (1982)). The court

concludes that plaintiff cannot recover punitive damages against

the City under either § 1983 or state law claims.

As to individual defendant Russo, punitive damages may

be assessed “in an action under § 1983 when the defendant’s

conduct is shown to be motivated by evil motive or intent, or

when it involves reckless or callous indifference to the

federally protected rights of others.” Smith v. Wade, 461 U.S.

30, 56 (1983). An award of punitive damages under New York law

is appropriate “where the wrongdoer's actions amount to willful

or wanton negligence, or recklessness, or where there is ‘a

conscious disregard of the rights of others or conduct

so reckless as to amount to such disregard.’” Chauca v.

Abraham, 30 N.Y.3d 325, 329 (2017) (citing Home Ins. Co. v. Am.

Home Prod. Corp., 75 N.Y.2d 196, 203 (1990)). “Such conduct

need not be intentionally harmful but may consist of actions

which constitute willful or wanton negligence or recklessness.”

Home Ins. Co. at 204 (citation omitted).

“[S]ummary judgment on the issue

of punitive damages is inappropriate where there is enough

evidence to permit the jury to find that defendants acted with

wanton and reckless or malicious intent.” Morales v. Kavulich &

Assocs., P.C., 294 F. Supp. 3d 193, 199 (S.D.N.Y. 2018). As

discussed above, there is a dispute regarding Russo’s

involvement in IOC and the development of Scorecard, a system in

which an agency could repeatedly score poorly on a measure

regarding reports of neglect and abuse without being subjected

to any meaningful or serious measures. Russo also made

recommendations to the Commissioner of ACS based upon the work

performed by staff in multiple ACS divisions regarding the

transfer of cases from Concord to Heartshare, but there is a

dispute as to whether safety was considered in this process as

part of agency performance. Because Russo was not granted

summary judgment on the § 1983 or state negligence claims and a

jury could find in plaintiff’s favor, Russo is not entitled to

summary judgment on the punitive damages claim.

VI. Waived Claims

The City defendants argue that the plaintiff offered

no argument in opposition to their motion regarding her failure

to train and acquiescence in the use of excessive force claims

and that those claims should be deemed abandoned. City Reply at

1. “[A] a partial opposition may imply an abandonment of some

claims or defenses. . . . Where abandonment by a counseled party

is not explicit but such an inference may be fairly drawn from

the papers and circumstances viewed as a whole, district courts

may conclude that abandonment was intended.” Jackson v. Fed.

Exp., 766 F.3d 189, 196 (2d Cir. 2014). Because plaintiff did

not raise arguments in opposition to defendants’ motion, in

contrast to her thorough defense of her other claims, the court

finds that plaintiff has abandoned her failure to train and

excessive force claims.

CONCLUSION

For the foregoing reasons, the court: (1) denies

plaintiff’s motion for summary judgment in its entirety; (2)

grants the City defendants’ motion as to punitive damages

against the City, the failure to train claim, and acquiescence

in the use of excessive force claim; (3) denies the City

defendants’ motion regarding plaintiff’s Section 1983 and state

law claims and the punitive damages claim against Russo; and

denies the Heartshare defendants’ motion in its entirety. The

parties are directed to file a joint status report regarding

this case, as well as the related case Jewels v. Casner et al.,

Case No. 12-cv-1895, including an update on any settlement

discussions, within thirty days of this Memorandum & Order.

SO ORDERED.

Dated: November 12, 2019

Brooklyn, New York

_________/s/_________________

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York