McLoughlin v. Rensselaer County Department of Social Services

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

WILLIAM MCLOUGHLIN, et al.,

Plaintiffs,

-against- 1:18-CV-0487 (LEK/CFH)

RENSSELAER COUNTY DEPARTMENT

OF SOCIAL SERVICES, et al.,

Defendants.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

The present action was brought by Plaintiffs William McLoughlin and Sovaira Mall on

behalf of themselves and their infant son, DM, against the Rensselaer County Department of

Social Services (RCDSS); two of its employees, Megan Golden and Jennifer Rosengart (the

“Individual Defendants”); and an unidentified “John Doe” defendant, who allegedly removed

DM from his parents’ custody for three days, ordered a CT scan of DM against his parents’

wishes, and filed an “indicated report” of child abuse against McLoughlin and Mall with the New

York State Child Abuse Registry.

Plaintiffs filed suit pursuant to 42 U.S.C. § 1983. Against each Defendant, they allege:

(1) violation of Plaintiffs’ due-process rights and DM’s Fourth Amendment rights for performing

the CT scan, (2) false imprisonment, (3) violation of the Plaintiffs’ due-process rights and DM’s

Fourth Amendment rights for removing DM from his parents’ custody, (4) violation of the

Eighth Amendment, (5) abuse of process, (6) malicious prosecution, (7) violation of Plaintiffs’

right to equal protection, and (8) violation of Plaintiffs’ substantive due-process rights. Dkt. No.

1 (“Complaint”) ¶¶ 58–90.

Defendants filed an answer and later moved for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c), arguing that the Complaint failed to state a Monell claim

against RCDSS, that the individual Defendants had qualified immunity against all eight claims,

and that all of the claims except the third and fifth failed to state a claim for relief. Dkt. Nos. 9

(“Answer”), 17-1 (“Defendants’ Memorandum”) at 8.1 For the following reasons, Plaintiffs’

claims against RCDSS are dismissed. For the remaining Defendants, Plaintiffs’ Eighth

Amendment, malicious prosecution, equal protection, and substantive due-process claims are

dismissed. For all other claims, the Defendants’ motion is denied.

II. BACKGROUND

Defendants contest many of Plaintiffs’ allegations in the Answer, but for the purposes of

the present motion the Court will only consider the facts as alleged in the Complaint. Hayden v.

Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Plaintiffs have also expressly incorporated a May 23,

2016 Decision After Hearing by the Bureau of Special Hearings of the State of New York Office

of Children and Family Services (the “Hearing Bureau”) into the Complaint. Dkt. Nos. 20

(“Plaintiffs’ Opposition”) at 7; 20-1 (“Hearing Bureau Decision”). Defendants agree that the

Hearing Bureau Decision is incorporated into the Complaint and can be considered on their Rule

12(c) motion. Dkt. No. 21 (“Defendants’ Reply”) at 5.

1 The cited page numbers for documents refer to those generated by the Court’s

electronic filing system (“ECF”).

2

McLoughlin and Mall are DM’s parents. Compl. 1-2. McLoughlin is “White

Caucasian” and Mall is Pakistani, meaning DM is a “mixed-race child.” Id. 3. At around

10:30 PM on April 21, 2015, McLoughlin was doing laundry and placed DM (then three months

old) on a clothes dryer. Id. 4] 8. DM “kicked and slid off the dryer” about six inches onto a nearby

table, and then another two or two-and-a-half feet onto the floor. Id. J 9. He suffered a bump on

his head and scrapes on his nose, knuckles, and knees. Id. § 10. McLoughlin brought DM into the

shower, which usually soothed DM when he was upset. Id. Eventually the infant “calmed down

and was not exhibiting any signs of stress.” Id. 4 11. McLoughlin left DM with his father so he

could pick up Mall from work. Id, According to McLoughlin’s father, DM was “smiling and

happy” and did not show “any signs of distress” during this time. Id, At 11:15 PM, Mall returned

with McLoughlin and decided to call DM’s pediatrician. Id. 4 12. The on-call service advised

McLoughlin and Mall to take DM to the emergency room. Id. ¥ 13.

The Plaintiffs arrived at the hospital around 12:10 AM and had DM examined by Dr.

Jason Adam Jacque. Id. 4] 14. Because DM only had a small bump on his head and was not

exhibiting any disconcerting symptoms, Dr. Jacque did not think it was worth administering a CT

scan and instead recommended that DM be kept for observation. Id. 14-15. Dr. Jacque

explained that the “exposure to the high levels of radiation associated with the CT scan could be

harmful to plaintiff DM and could cause cancer.” Id. J 15. The on-call physician from DM’s

pediatrician’s office, Dr. Kroopnick, conferred with Dr. Jacque and agreed that DM was

“clinically well” and only had to be kept for observation. Id. 16. Initially, Dr. Kathryn A.

Hogan, another attending physician at the hospital, recommended giving DM a CT scan to check

for internal injuries, but she later agreed that DM should only be kept for observation unless his

condition deteriorated. Id. | 17. Dr. Hogan later testified that the decision to observe DM rather

than give him a CT scan did not place DM in “an imminent risk of harm.” Hr’g Bureau Decision

at 12.

Defendant Golden is a child protective services caseworker employed by RCDSS, and is

“White-Caucasian.” Id. 9] 5, 19. Defendant Rosengart is Golden’s supervisor and is also an

employee of RCDSS. Id. J 6. While Plaintiffs were at the hospital, a call was placed to the New

York State Central Abuse Register, and Golden was assigned to investigate the report. Id. J 19.

Golden insisted that DM receive a CT scan, but, based on Dr. Jacque’s advice, McLoughlin and

Mall refused unless DM’s condition deteriorated. Id. 4 20. Golden later testified that she was not

aware of the fact that DM’s doctors had chosen to keep DM for observation rather than

administer a CT scan. Hr’g Bureau Decision ¥ 24. Golden informed McLoughlin and Mall that if

they did not consent to a CT scan, she would remove DM from their custody. Compl. § 22.

Eventually Mall agreed to give her consent. Id. Nonetheless, Golden, with Rosengart’s approval,

removed DM from his parents’ custody because McLoughlin and Mall purportedly “refused to

consent to a CT scan of [P]laintiff DM.” Id. 4] 23-25 (internal quotation marks omitted). The CT

scan did not reveal any internal injuries. Id. ] 26.

Golden then placed DM in a foster home from April 21, 2015 until April 24, 2015, after

which he was returned to his parents. Id. 4] 29, 33. During the three days DM was separated from

McLoughlin and Mall he was “wailing, crying and reaching out for his parents.” Id. ] 49. Golden

also filed an “indicated report” of child abuse against McLoughlin and Mall. Id. 9 34. An

indicated report is a report with “some credible evidence of alleged abuse or maltreatment.” Hr’ g

Bureau Decision at 8. The report was at least in part “based on [McLoughlin and Mall’s] alleged

failure to follow through with the medical recommendation that [DM] receive a CT scan.” Id. at

11. Plaintiffs allege that during the investigation Golden “exhibited certain negative behavioral

gestures that were condescending towards plaintiff Mall,” and that “Golden’s unfavorable

treatment of all of the plaintiffs was motivated by defendant Golden’s racial animus and bias

against Plaintiffs Mall and DM as Pakistani and Bi-racial respectively.” Compl. ¶¶ 30–31.

At the time, McLoughlin was employed by the New York State Department of Victim

Services, which had informed him that he could be terminated if they received an indicated report

of child abuse. Compl. ¶¶ 35–36. The administrators of the little league baseball and basketball

teams that he coached also informed McLoughlin that he would lose his coaching position if they

received an indicated report. Id. McLoughlin and Mall requested a hearing challenging the

indicated report. Id. ¶ 37. The Hearing Bureau found that the allegations of maltreatment were

not supported by a fair preponderance of the evidence and amended the report from “indicated”

to “unfounded.” Hr’g Bureau Decision at 8, 13.

Plaintiffs filed the Complaint on April 19, 2018. Defendants answered on June 29, 2018,

asserting eight defenses, three of which form the basis of their Rule 12© motion. Answer

¶¶ 98–105. Defendants filed the present motion on September 14, 2018, asserting that (1) all

claims against RCDSS should be dismissed because the Complaint does not sufficiently allege a

Monell claim; (2) all claims against the individual Defendants are barred by the doctrine of

qualified immunity; and (3) six of the eight counts in the Complaint fail to state a valid

constitutional claim. Defs.’ Mem. at 8.

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III. LEGAL STANDARD

The standard for a motion for judgment on the pleadings pursuant to Rule 12© is the

same as the standard applied under Federal Rule of Civil Procedure 12(b)(6). Bank of N.Y. v.

First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). Therefore the Court will take all factual

allegations in the Complaint as true and draw all reasonable inferences in the non-movant’s

favor. Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018).

Plaintiffs cite Conley v. Gibson for the famously overturned proposition that a motion to

dismiss must be denied “unless it appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Pls.’ Opp’n at 14 (quoting 355 U.S.

41, 45–46 (1957)). Several of the claims in the Complaint as well as the arguments in Plaintiffs’

Opposition seem to have been drafted with this standard in mind. In Bell Atl. Corp. v. Twombly,

the Supreme Court “retire[d]” the Conley standard and replaced it with a requirement that the

complaint meet the “plausibility standard.” 550 U.S. 544, 563 (2007). Now, a plaintiff must

plead “factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court

must accept all factual allegations in the complaint as true, this does not extend to bare legal

conclusions. Id.; see also Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation to provide the

grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” (internal quotation marks and

alterations omitted)).

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IV. DISCUSSION

A. Monell Claims Against RCDSS

When a plaintiff brings a § 1983 claim against a municipality they must not only show

that their constitutional rights were violated, but also that the injury stemmed from the

“execution of [the municipality’s] policy or custom.” Monell v. Dep’t of Soc. Servs. of City of

N.Y., 436 U.S. 658, 694 (1978). A municipality cannot be held liable under § 1983 “solely on the

basis of respondeat superior,” so “a single incident alleged in a complaint, especially if it

involved only actors below the policy-making level, does not suffice to show a municipal

policy.” Hillary v. St. Lawrence County., No. 17-CV-659, 2019 WL 977876, at *7 (N.D.N.Y.

Feb. 28, 2019) (quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122–23 (2d Cir. 1991)).

Plaintiffs make three separate attempts to establish Monell liability: (1) a formal municipal

policy; (2) approval and ratification of illegal activity; and (3) failure to train or supervise, all of

which fail. Compl. ¶¶ 43–46.

Plaintiffs asserts that “RCDSS has a policy and practice of wrongfully using legitimate

legal processes to achieve illegitimate collateral objectives,” and that Golden was acting “in

accordance with the policies, practices, customs and usages established by defendants Rosengart

and RCDSS.” Id. ¶¶ 44–45. However they do not support these conclusory allegations with any

facts, such as other instances in which RCDSS employees abused legal processes.

Plaintiffs also assert that RCDSS “approved and ratified each and every unlawful act of

defendant Golden” because it later denied a request to amend the indicated report and defended

itself and Golden on appeal before the Bureau of Special Hearings. Id. ¶ 43, Hr’g Bureau

Decision ¶ 3, Pls.’ Opp’n at 20. However, merely approving of a single unlawful act after the fact

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does not establish that the municipality “ratified” the behavior in the meaning of Monell. Waller

v. City of Middletown, 89 F. Supp. 3d 279, 287 n. 3 (D. Conn. 2015); cf. Batista v. Rodriguez,

702 F.2d 393, 397 (2d Cir. 1983) (“[Only] persistent failure to discipline subordinates who

violate civil rights could give rise to an inference of an unlawful municipal policy of ratification

of unconstitutional conduct within the meaning of Monell.”) (emphasis added).

The Complaint states “[u]pon information and belief, defendant RCDSS failed to

property train and/or supervise defendant Golden.” Compl. ¶ 46. Plaintiffs can also establish

Monell liability by showing a failure to train or supervise subordinates that demonstrates

“deliberate indifference to constitutional deprivations caused by subordinates, such that the

official’s inaction constitutes a ‘deliberate choice.’” Amnesty Am. v. Town of West Hartford,

361 F.3d 113, 126 (2d Cir. 2004) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

“Mere negligence” is insufficient. Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011).

However, the Complaint lacks any factual allegations that establish that RCDSS was conscious

of but indifferent to the risk of a constitutional violation, or how any alleged insufficiency in

Golden’s training or supervision led to the claimed violations. Therefore the claims against

RCDSS must be dismissed.

B. Qualified Immunity

The Individual Defendants assert they “are entitled to qualified immunity as a matter of

law since they did not violate any of the Plaintiffs’ constitutional rights, and moreover, none of

their alleged actions violated clearly established law as of April 21, 2015.” Defs.’ Mem. at 11.

Qualified immunity shields government employees from liability under § 1983 in two

circumstances: “(1) their conduct did not violate clearly established rights of which a reasonable

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person would have known, or (2) it was objectively reasonable to believe that their acts did not

violate these clearly established rights.” Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir. 2010)

(alterations and internal quotation marks omitted). This “second . . . prong provides substantial

protection for [child services] caseworkers, which is necessary because protective services

caseworkers must choose between difficult alternatives.” Id. (citations, alterations, and internal

quotation marks omitted). However, qualified immunity is an affirmative defense and the burden

is on Defendants to demonstrate that they are entitled to it for each claim. See Gomez v. Toledo,

446 U.S. 635, 640 (1980) (“[A] plaintiff [need not] allege bad faith in order to state a claim for

relief . . . . It is for the official to claim that his conduct was justified by an objectively reasonable

belief that it was lawful.”). Therefore, the Court will consider qualified immunity along with the

merits of each claim.

C. Violation of the Fourth Amendment and Procedural Due Process by Removing

DM from his Parents’ Custody

Plaintiffs claim Defendants’ decision to remove DM from his parents’ custody violated

Plaintiffs’ right to due process2 and DM’s Fourth Amendment rights. Compl. ¶¶ 66–71.

Defendants do not contest that the Complaint states a constitutional claim, but maintain that they

are entitled to qualified immunity. Defs.’ Mem. at 8 n.1, 11–14.

1. Procedural Due Process in the Child Services Removal Context

2 Plaintiffs have a separate claim for “substantive due process interference with

plaintiffs’ parent/child relationship.” Compl. at 15. The Court understands ¶¶ 66–71 to refer to

procedural due process only. Because the Defendants have moved to dismiss the substantive due-

process claim for failure to state a claim and qualified immunity, the Court will consider that

claim separately.

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Parents have “a constitutionally protected liberty interest in the care, custody and

management of their children,” Southerland v, City of N.Y., 680 F.3d 127, 142 (2d Cir. 2012)

(quoting Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999)), and children have “a

parallel constitutionally protected liberty interest in not being dislocated from the emotional

attachments that derive from the intimacy of daily family association,” id. (quoting Kia P. v.

McIntyre, 235 F.3d 749, 759 (2d Cir. 2000)). Therefore, ordinarily it violates both the parents’

and child’s procedural due-process rights to remove a child without judicial process.

Southerland, 680 F.3d at 142. However, as the state also has a “compelling interest in protecting

children from abuse and neglect,” Kia P., 235 F.3d at 759, it may act without a court order in

“emergency circumstances,” but only when “danger to the child is .. . so imminent that there is

[not] reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise.”

Tenenbaum, 193 F.3d at 594. This requires more than “the mere possibility of danger” or a

“suspicion that the child might have been abused.” Id. (citations and internal quotation marks

omitted).

2. The Fourth Amendment in the Child Services Removal Context

A child is “seized” in the meaning of the Fourth Amendment when they are removed

from their parent’s custody by a child services caseworker. Tenenbaum, 193 F.3d at 602. The

Second Circuit has not articulated a single standard for whether removal of a child without a

warrant violates the Fourth Amendment, but has held that two potential “modes” of analysis are

“exigent circumstances” and “probable cause.”* Southerland, 680 F.3d at 157-58. Both

> The Second Circuit has also considered the possibility of applying a lower “special

needs” standard, which only requires “reasonable cause.” Southerland, 680 F.3d at 158-59;

Tenenbaum, 193 F.3d at 604. While the court did not foreclose the possibility that such a

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exceptions to the warrant requirement require that “information possessed by a state officer

would warrant a person of reasonable caution in the belief that a child is subject to the danger of

abuse if not removed . . . before court authorization can reasonably be obtained.” Tenenbaum,

193 F.3d at 604–05. Therefore the standard for whether the removal violates the child’s Fourth

Amendment rights is “similar to the procedural due-process standard,” namely that the child be

in “imminent danger.” Id. In both cases the danger to the child must be sufficiently serious, such

as “the peril of sexual abuse, the risk that children will be left bereft of care and supervision, and

immediate threats to the safety of the child.” Southerland, 680 F.3d at 149–50 (citations omitted).

A removal will not violate constitutional rights “where there is evidence of serious ongoing

abuse and the officials have reason to fear imminent recurrence.” Id. (citations omitted).

3. Qualified Immunity Analysis

Defendants claim “none of their alleged actions violated clearly established law as of

April 21, 2015.” Defs.’s Mem. at 11. However, Defendants have failed to demonstrate that the

rights they allegedly infringed were not clearly established, and therefore they are not entitled to

qualified immunity under the “first prong.” In Southerland, which concerned a child-services

removal in 1997, the Second Circuit vacated a ruling granting summary judgment to defendant

caseworkers because (1) it was already “clearly established” law that due process required a court

order or the presence of emergency circumstances for a child to be removed and (2) the “relevant

standards” on what constituted an emergency had been sufficiently developed. 680 F.3d at

standard could ever be applied in the child services context, this Court sees no reason to find that

“the requirement of obtaining the equivalent of a warrant where practicable [would] impose

intolerable burdens” on the Defendants in this case. Southerland, 680 F.3d at 159 (quoting

Tenenbaum, 193 F.3d at 604) (alterations omitted). Therefore, as in Southerland and Tenenbaum,

the Court will not consider whether Defendants had “reasonable cause” to remove DM.

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149–50 (citing Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991)) (“Emergency circumstances

mean circumstances in which the child is immediately threatened with harm, for example, where

there exists an immediate threat to the safety of the child, or where the child is left bereft of care

and supervision, or where there is evidence of serious ongoing abuse and the officials have

reason to fear imminent recurrence.”). In the Fourth Amendment context, it noted that although

the issue of “whether probable cause or exigent circumstances must be established to justify a

warrantless seizure” had not been settled, a child’s “Fourth Amendment rights against

unreasonable seizure were clearly established.” Id. at 160–61. If the relevant law in this area was

clearly established by 1997, or at least by 2012 when Southerland was decided, then it was

clearly established when DM was removed in April 2015.

Defendants would still be entitled to qualified immunity under the “second prong” if they

could demonstrate that it was objectively reasonable for them to believe they were not violating

these clearly established rights. However, the Court cannot conclude, based on the allegations in

the Complaint, that Defendants were objectively reasonable in believing that emergency

circumstances, probable cause, or exigent circumstances existed, and therefore Defendants are

not entitled to have this claim dismissed at this stage.

Defendants were concerned that DM was placed on the dryer “without any seat/baby

carrier,” Defs.’ Reply at 6, and that McLoughlin and Mall waited two hours before bringing DM

to the hospital, Defs.’ Mem. at 13. While this might certainly cause a caseworker some concern,

Defendants must establish that a reasonable caseworker would believe that, if DM were not

immediately removed, he would be in imminent danger of harm before a court order could be

obtained. It is unclear exactly what Golden knew when she made the decision to remove DM,

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but, drawing all inferences in favor of Plaintiffs, the Court can infer she knew that Mall called

her pediatrician’s office forty-five minutes after the fall and took DM to the emergency room as

soon as the on-call service told her to do so. See Compl. ¶¶ 12, 13. The Court can also infer that

she knew that for most of the two hours, DM was not exhibiting “signs of distress” and was

presenting as “clinically well.” Compl. ¶¶ 11, 16. According to the Complaint, DM only had a

“small bump” and “scrapes,” meaning there was no reasonable basis to conclude there was any

urgency to getting DM treatment, or that the delay posed a serious risk of harm. Id. ¶¶ 10, 14.

Nothing in the record indicates that there were previous injuries indicating “serious ongoing

abuse” or that DM was so “bereft of care or supervision” that he would be in danger if he was

allowed to return home with his parents.

Generally, courts have only held that it was objectively reasonable to believe negligence

warranted removal when there was not just a momentary lapse in supervision, but when there

was no guardian present or such an unfit guardian that the child was essentially without any

supervision at all. See, e.g., Duchesne v. Sugarman, 566 F.2d 817, 825–26 (2d Cir. 1977)

(holding an emergency situation warranting removal existed where a mother was committed to a

mental hospital and no one else could care for her children); Cecere v. City of N.Y., 967 F.2d

826, 827–29 (2d Cir. 1992) (holding that a child services officer temporarily transferring custody

of an infant from her mother to her grandmother was objectively reasonable because the mother

was addicted to drugs and alcohol and frequently left the child with relatives when she was

unable to care for her); Porter v. City of N.Y., No. 03-CV-6463, 2007 WL 1791149 at *4

(E.D.N.Y. June 19, 2007) (holding a removal was objectively reasonable where caseworkers

found a child in the care of his grandmother, who was drunk to the point of incapacitation). A

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delay—or even a failure—to provide medical care will not necessarily establish “an imminent

danger to the children’s life or limb.” Southerland, 680 F.3d at 135–36, 151 (declining to

conclude that a social worker reasonably believed that emergency circumstances were established

by, among other things, a father’s failure to take his daughter to a doctor to treat a foot injury).

Defendants also argue that McLoughlin and Mall’s refusal to consent to the CT scan

warranted removal. Defs.’ Mem. at 13. Plaintiffs contend they “explained to defendant Golden

that the doctors had already determined that a CT scan was not necessary unless plaintiff DM’s

condition deteriorated.” Compl. ¶ 20. Golden later testified that she was “not aware that the

medical treatment plan had been determined to be observation.” Hr’g Bureau Decision at 8. The

Court must credit Plaintiffs’ story at this stage. But in either case, it was not objectively

reasonable to believe McLoughlin and Mall “adamantly refusing to consent to the child receiving

a CT scan” placed DM at risk of imminent harm without learning whether DM’s doctors thought

the scan was necessary. Defs.’ Mem. at 13.

Defendants argue that Plaintiffs’ explanation for DM’s injuries is an “interesting story”

which “initially presents as unbelievable.” Defs.’ Reply at 5. Defendants also contend that they

“were only contacted because AMC hospital personnel suspected child abuse/neglect had

occurred.” Id. at 6. Golden’s reasons, if any, to doubt McLoughlin and Mall’s explanation at the

time she made the decision to remove DM, or any information which the hospital staff passed on

to RCDSS and Golden before she arrived will be relevant at summary judgment or trial. But

beyond the fact that “a suspected child abuse report was made,” none of this material appears in

the Complaint, and nothing more can be inferred. Compl. ¶ 19. Moreover, even if a hospital

employee reasonably suspected some abuse or neglect, this does not lend credence to the belief

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that DM was at risk of imminent harm warranting emergency removal. To conclude that

objectively reasonable grounds for an emergency removal exist because a report was filed would

effectively nullify the family’s liberty interest in not being forcibly separated without due

process. See Tenenbaum, 193 F.3d at 594–595 (holding that reports of sexual abuse against a

father did not necessarily establish emergency conditions existed and noting that “[i]f,

irrespective of whether there is time to obtain a court order, all interventions are effected on an

‘emergency’ basis without judicial process, pre-seizure procedural due process for the parents

and their child evaporates.”).

Defendants reliance on Cornejo v. Bell is misplaced. In that case the injuries to the child

were much more serious than those DM sustained, doctors explicitly informed the social workers

that they suspected abuse, and the parents had no explanation for the injuries. 592 F.3d at 125,

128–29. The defendant caseworkers were granted qualified immunity for removing an eighteen-

month old from his mother’s care after his infant brother suffered a heart attack, brain injuries,

and a broken rib, which doctors informed them were consistent with violent shaking (and which

caused the infant to die a week later). Id. Furthermore, the broken rib appeared to be several

weeks old at the time the son was brought to the hospital. Id. Similarly, in Van Emrik v.

Chemung Cty. Dep’t of Soc. Servs., an infant suffered a spiral fracture in her leg, which doctors

described as a “very suspicious” indication of child abuse, and which the child’s caretakers could

not explain. 911 F.2d 863, 864–65 (2d Cir. 1990). In addition, both of these cases were motions

for summary judgment, where the court considered testimony from the defendant

caseworkers—not motions for judgement on the pleadings. Cornejo, 592 F.3d at 127; Van

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Emrik, 911 F.2d at 864. Therefore neither case is on point and warrants dismissal at the pleading

stage.

D. Violation of the Fourth Amendment and Due Process by Administering a CT

Scan on DM

1. Construing the Claim

Plaintiffs’ first claim is entitled “Fourth Amendment Seizure Medical Examination (CT

Scan) of Plaintiff DM at the Hospital.” Compl. at 11. In the body of the claim, Plaintiffs allege

that, “McLoughlin and Mall have a protected liberty interest in directing the medical care of their

child,” and “[t]he CT Scan ordered by the defendants was a direct violation of plaintiffs’ Due

Process Rights” without making further mention of the Fourth Amendment. Id. ¶¶ 59–60.

Defendants argue that this claim is defective on two grounds: it fails to state a claim because

there is no right to due process under the Fourth Amendment, and it is duplicative of Plaintiffs’

false imprisonment claim. Defs.’ Mem. at 27–28. Admittedly, the claim is confusing as written.

However the Complaint provides adequate notice to Defendants that Plaintiffs mean to assert two

related claims. First, as Plaintiffs elaborated in their Opposition, the reference to the Fourth

Amendment should be read to allege that the CT scan “violated [DM]’s right to be secure in his

person” and that it was a “forceful removal and unreasonable search and intrusion into [his]

person.” Pls.’ Opp’n at 28–29.4 See, e.g., Tenenbaum, 193 F.3d at 605–06. Second, Plaintiffs

4 After briefing on this motion was complete, Plaintiffs requested permission to amend

the Complaint if the Court “finds there is any merit to defendants’ argument in their Rule 12

motion.” Dkt. No. 26. The Court will decide this motion based on the Complaint as-filed.

Because such motions are considered in the first instance by the Magistrate Judge, this Court will

not comment on the propriety of Plaintiffs’ potential motion to amend. L.R. 7.1(b)(2).

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claim that the CT scan violated Plaintiffs’ due-process rights. See, e.g., Tenenbaum, 193 F.3d at

597–98.

Defendants also provide no explanation as to why the claim is duplicative of the false

imprisonment claim, which concerns DM’s confinement “in the hospital room and other hospital

facilities and the foster home of a third party,” Compl. ¶ 63, or why, even if duplicative, “it must

be dismissed as a matter of law.” Defs.’ Reply at 12. Therefore, the Court construes the “first

cause of action” to assert a procedural due-process claim and a Fourth Amendment claim on

behalf of DM. Compl. ¶¶ 58–61. Because Defendants have moved to dismiss the entire

Complaint based on qualified immunity, the Court will next analyze whether Golden and

Rosengart are entitled to a defense to these two claims.

2. Qualified Immunity

a. Procedural Due Process in the Medical Examination Context

The Individual Defendants assert “none of their alleged actions violated clearly

established law as of April 21, 2015.” Defs.’ Mem. at 11. However, it was already clearly

established in this circuit that “the constitutional liberty interest of parents in the ‘care, custody,

and management of their child,’ . . . includes a significant decision-making role concerning

medical procedures sought to be undertaken by state authority upon their children.” Van Emrik,

911 F.2d at 867 (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). Therefore, a medical

procedure cannot be undertaken without parental consent “for investigative purposes at the

behest of state officials” without due process. Id.; Tenenbaum, 193 F.3d at 598–99 (finding that a

gynecological examination of a child at a social workers’ behest and without a court order or

parental consent violated her and her parents’ procedural due-process rights). As with removals,

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emergency examinations do not require a court order if the child is in “imminent danger.” Id. at

599,

b. The Fourth Amendment in the Medical Examination Context

The Second Circuit has also found that when “procedures undertaken at the initiative of a

state official serve primarily an investigative function” the “Fourth Amendment and bodily

integrity interests of the child are implicated.” Van Emrik, 911 F.2d at 867. Again, the standard is

the same as the one for emergency removals, i.e. a caseworker does not violate the Fourth

Amendment if “reasonable or probable cause or exigent circumstances justifying an emergency

examination . . . exist[] at the time the examination was performed.” Tenenbaum, 193 F.3d at

606.

If a procedure is “medically indicated,” that is, ordered by a medical professional and

“designed for treatment” then the caseworker will not be held liable. Id. at 599; see also Chayo v.

Kaladjian, 844 F. Supp. 163, 169 (S.D.N.Y. 1994) (“[M]edically necessary x-rays may be taken

without judicial approval or parental consent.”) (emphasis added). It is unclear if the unwarranted

medical examination needs to be both medically unnecessary and investigatory to violate

due-process rights or the Fourth Amendment, but when an examination is brought at the request

of an investigating social worker rather than a doctor, it is at least plausible that the motive was

to investigate child abuse. See Van Emrik, 911 F.2d at 867 (finding an x-ray was not medically

indicated where a social worker requested them although the physician “initially opposed them

because of concern about radiation”); Tenenbaum, 193 F.3d at 599 (holding that an examination

was not medically indicated where it was ordered by a social worker investigating sexual abuse

even though it was also meant to uncover possible injuries). Cf. Chayo, 844 F. Supp. at 170

18

(granting summary judgment for defendant caseworkers on qualified immunity grounds where a

“non-party physician [took] full responsibility for the decision to order x-rays” and “there [was]

no evidence that the caseworkers even mentioned x-rays, much less requested they be taken”).

c. Analysis

It is unclear from the face of the Complaint whether the CT scan was taken for

investigative purposes. Defendants claim that the CT scan was necessary to determine that DM

“did not sustain any internal injuries or fractures.” Defs.’ Mem. at 14. However, Defendant was

present at the hospital to investigate a report of suspected child abuse, which ultimately resulted

in a report being filed against McLoughlin and Mall, Compl. ¶¶ 19, 34, and DM’s doctors had

already determined the CT scan was unnecessary, Compl. ¶¶ 15–17. Defendants admit that

“Golden advocated for DM to receive a CT scan.” Defs.’ Mem. at 14. Therefore, the Complaint

plausibly states a claim that DM’s CT scan “serve[d] primarily an investigative function,” and

therefore violated Plaintiffs’ due-process rights and DM’s Fourth Amendment rights according to

clearly established law. Van Emrik, 911 F.2d at 867.

Defendants also claim they are entitled to qualified immunity because it was objectively

reasonable to believe that DM needed a CT scan and that there was no time to obtain a court

order. Defs.’ Mem. at 13–14. However, as with the claims regarding their decision to remove

DM, the Court cannot agree that it was objectively reasonable to believe DM was in “imminent

danger,” or that “probable cause” or “exigent circumstances” warranting an emergency

examination existed at the time. Defendants claim that they believed DM had “serious or fatal

injuries,” and “injuries which they knew could prove fatal.” Id.; Defs.’ Reply at 7. However these

assertions contradict the allegations in the Complaint that DM had a “small bump” on his head

19

and was “clinically well” when Golden arrived. Compl. ¶¶ 14, 16. Two of DM’s doctors did not

recommend administering a CT scan, and another agreed to observation and later testified that

DM was not “placed at imminent risk of harm by the decision to observe him.” Compl. ¶¶ 15–17,

39.

Defendants also point out that the “scan was nevertheless authorized and administered by

the medical doctors who were treating DM—evidencing the fact that the scan was, at the very

least, objectively reasonable under the circumstances.” Defs.’ Mem. at 14. The question is not

whether administering the CT scan was reasonable. It is whether it was objectively reasonable to

believe that DM was in immediate danger and therefore that administering the CT scan without

parental consent would not violate the Plaintiffs’ constitutional rights. Defendants’ contention

that “[s]imply because the Plaintiffs are not happy with the Defendants’ judgment does not

demonstrate that such actions violated clearly established law,” reflects the exact indifference to

parents’ preferences for their childrens’ medical care that the Constitution prohibits. Id.; see

Parham v. J.R., 442 U.S. 584, 602–03 (1979) (“[O]ur constitutional system long ago rejected any

notion that a child is the mere creature of the State . . . . Simply because the decision of a

parent . . . involves risks does not automatically transfer the power to make that decision from the

parents to some agency or officer of the state.”) (internal quotation marks omitted). Thus,

Defendants are not entitled to have the claim dismissed on qualified immunity grounds.

E. Substantive Due Process

Families have “a substantive right under the Due Process Clause ‘to remain together

without the coercive interference of the awesome power of the state.’” Tenenbaum, 193 F.3d at

600 (quoting Duchesne, 566 F.2d at 825). Plaintiffs claim Defendants violated their substantive

20

due-process rights to familial association. Compl. ¶¶ 86–90. Where the Constitution “provides an

explicit textual source of constitutional protection . . . the more generalized notion of substantive

due process” is an inappropriate basis for the claim. Tenenbaum, 193 F.3d at 599–600 (internal

quotation marks omitted). As discussed above in Section C, children are seized within the

meaning of the Fourth Amendment when they are removed from their parents’ care by the

government. Id. As a result, such claims on behalf of the child are construed as being brought

under the Fourth Amendment rather than substantive due process. Id. Therefore, DM’s

substantive due-process claim is dismissed.

The Complaint also fails to state a claim for violation of McLoughlin and Mall’s

substantive due-process rights. As with procedural due-process claims, the parents’ interest must

be balanced against the “compelling governmental interest in the protection of minor children.”

Southerland, 680 F.3d at 152. However, unlike a procedural due-process claim, the removal must

be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”

Id. at 151. In other words, the removal must be so shocking that “the Due Process Clause would

not countenance it even were it accompanied by full procedural protection.” Tenenbaum, 193

F.3d at 600. A temporary removal, even if done in a manner that violates procedural due process,

will generally not rise to this level because it “does not result in parents’ wholesale

relinquishment of their right to rear their children.” Id. at 600 (quoting Joyner v. Dumpson, 712

F.2d 770, 778 (2d Cir. 1983)); Southerland, 680 F.3d at 152–153. Courts have found that

removals to investigate reports of child abuse do not violate substantive due-process rights when

the child is returned or the removal is confirmed by court order in less than four days. Id. at

153–54 (collecting cases).

21

Although the Complaint states a claim for violation of procedural due process, the three-

day separation at issue here does not rise to the level of a wholesale relinquishment of

McLoughlin and Mall’s right to raise DM. Therefore, Plaintiffs’ substantive due-process claim is

dismissed.

F. Section 1983 False Imprisonment

1. Merits

In their false imprisonment claim, Plaintiffs allege that Defendants “confine[d] plaintiff

DM in the hospital room and other hospital facilities and the foster home of a third party.”

Compl. ¶ 63. False imprisonment requires four elements: (1) the defendant intended to confine

the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent

to the confinement, and (4) the confinement was not otherwise privileged. Willey v. Kirkpatrick,

801 F.3d 51, 70–71 (2d Cir. 2015). Defendants contend that the Complaint does not sufficiently

plead the last three elements. Defs.’ Mem. at 24–26.

With reference to the second and third element Defendants claim that Plaintiffs cannot

demonstrate that three-month-old DM could not be conscious of, or did not consent to, his

confinement. Id. at 24–25. In their opposition, Plaintiffs note that according to some older New

York State authorities, when the plaintiff is an infant or incompetent “the action may be

predicated upon his restraint or removal against the will of the party having his legal custody.”

Kajtazi v. Kajtazi, 488 F. Supp. 15, 18 (E.D.N.Y. 1978) (citing Barker v. Washburn, 93 N.E.

958, 959–60 (N.Y. 1911)); see Pls.’ Opp’n at 26. However, this “proposition no longer represents

New York law.” Estiverne v. Esernio-Jenssen, 833 F. Supp. 2d 356, 381 n.19 (E.D.N.Y. 2011)

(citing Sager v. Rochester Gen. Hosp., 647 N.Y.S.2d 408, 410 (Sup. Ct. 1996) (granting

22

summary judgment to defendants where there was no evidence that a five month old was

conscious of her confinement at a hospital)); see also Parvi v. City of Kingston, 362 N.E.2d 960,

963 (N.Y. 1977) (noting that questions over whether “awareness of confinement by one who has

been falsely imprisoned should be a sine qua non for making out a case” have been “laid. . . to

rest in this State”). False imprisonment is a “dignitary tort” and therefore there is no injury unless

“the victim knows of the dignitary invasion.” Parvi, 362 N.E.2d at 963 (emphasis added).

Therefore, DM must have been conscious of his confinement to have a claim for false

imprisonment.

However, courts have declined to find that it is per se implausible for an infant to be

conscious of their confinement. See V.S. ex rel. T.S. v. Muhammad, 581 F. Supp. 2d 365, 384

(E.D.N.Y. 2008) (rev'd on other grounds V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010)

(holding that it was plausible that a 22 month old was “conscious of her prolonged separation

from her parents” and her confinement where the complaint alleged she “suffered extreme

humiliation, pain and suffering, terror, mental anguish and depression’); Estiverne v. Ersernio-

Jenssen, 581 F. Supp. 2d 335, 349 (E.D.N.Y. 2008) (declining to dismiss unlawful imprisonment

claim on the theory that “a nine-month-old infant cannot, as a matter of law, be conscious of

confinement”). Moreover, a plaintiff is not required to remember their confinement later, if there

is evidence they were conscious of it at the time. Parvi, 362 N.E.2d at 963.

Here, Plaintiffs allege that DM was “conscious of his seizure during the approximately 3

days and 3 nights that he was placed in the custody of total strangers, as shown by his wailing,

crying, and reaching out for his parents.” Compl. §] 49. This description of DM’s behavior

plausibly states a claim that he was aware of his confinement and did not consent to it.

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Defendants also contend that the confinement was privileged because there was an

“emergency situation concerning the life or health of the child.” Defs.’ Mem. at 25. The standard

to determine whether an emergency is serious enough to privilege a child’s confinement is the

same as the standard to determine whether a child can be removed from their parents’ custody

without a court order. See Trombley v. O’Neill, 929 F. Supp. 2d 81, 102 (N.D.N.Y. 2013) (citing

Southerland, 680 F.3d at 149).

As discussed in Section C above, there were no reasonable grounds to remove DM based

on the information available to Golden at the hospital. In any event, there was certainly no reason

to believe DM was in imminent danger when he was placed in foster care after the CT scan

showed he had no serious injuries. Compl. ¶ 29. Therefore the Complaint plausibly states that the

confinement was not privileged.

2. Qualified Immunity

For the same reasons that the Complaint plausibly states that DM’s confinement was not

privileged because no emergency existed, as well as the reasons Defendants are not entitled to

qualified immunity outlined in Sections C and D above, it was not objectively reasonable for

Defendants to believe that confining DM did not violate his constitutional rights. Therefore

Defendants are not entitled to have this claim dismissed on qualified immunity grounds.

G. Violation of the Eight Amendment by administering the CT Scan on DM

Plaintiffs claim Defendants violated DM’s Eighth Amendment rights when they forced

him “to undergo a potentially cancer-causing medical procedure.” Compl. ¶ 73. Defendants

correctly point out that the Eight Amendment only applies to convicts. See Weyant v. Okst, 101

F.3d 845, 856 (2d Cir. 1996). Plaintiffs counter that pre-trial detainees are entitled to similar

24

rights under the due-process clause of the Fourteenth Amendment, and that “a detainees rights

are ‘at least as great as the Eight Amendment protections available to a convicted prisoner.’”

Pls.’ Opp’n at 21–22; see also Darnell v. Piniero, 849 F.3d 17, 29 (2d Cir. 2017) (quoting City of

Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). They ask that the claim “be analyzed

under the Fourteenth Amendment Due Process provision, as set forth by the Second Circuit in

Darnell.” Pls.’ Opp’n at 22.

Defendants respond that DM was never arrested and was not a pre-trial detainee. Defs.’

Reply at 8. However, even assuming children in protective custody have the same substantive

due-process rights as pre-trial detainees, the CT scan did not violate these rights. In this context,

the test for a § 1983 claim for violation of the Eighth Amendment or substantive due process

under the Fourteenth Amendment includes “an ‘objective prong’ showing that the challenged

conditions were sufficiently serious to constitute objective deprivations of the right to due

process, and a ‘subjective prong’ . . . showing that the officer acted with at least deliberate

indifference to the challenged conditions.” Darnell, 849 F.3d at 29. The objective prong requires

“conditions, either alone or in combination [which] pose an unreasonable risk of serious damage

to [plaintiff’s] health, which includes the risk of serious damage to physical and mental

soundness.” Id. at 30 (citation and internal quotation marks omitted). An “objective deprivation”

occurs where the confined individual is “exposed to conditions that pose an unreasonable risk of

serious damage to their future health.” Id. (quoting Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir.

2012)) (alterations omitted). To violate the Constitution, an environmental hazard must be “so

grave that it violates contemporary standards of decency to expose anyone unwillingly to such a

25

risk,” and it must be “not one that today’s society chooses to tolerate.” Helling v. McKinney, 509

U.S. 25, 36 (1993).

Although ordering the scan against McLoughlin and Mall’s wishes and in the absence of

an emergency arguably violated the Fourth Amendment and procedural due process, it did not

“pose an unreasonable risk of serious damage” to DM’s health. Darnell, 849 F.3d at 30. CT scans

are a commonplace medical procedure, indicating “society chooses to tolerate” the low risk of

cancer. See In re RadPro SecurPass Scanner Cases, No. 13–CV–6095, 2014 WL 4054310, at *7

(S.D.N.Y. Aug. 13, 2014) (rejecting an Eighth Amendment claim for exposure to x-ray machines

in prison). The fact that one of DM’s pediatricians initially recommended a CT scan indicates

that the scan did not pose an “unreasonable risk of serious harm.” Compl. ¶ 17. Therefore the

Complaint does not state a claim for violation of the Eighth Amendment or DM’s Fourteenth

Amendment rights under Darnell.

H. Section 1983 Malicious Prosecution

Plaintiffs also assert a § 1983 malicious prosecution claim against defendants for filing

the indicated reports against McLoughlin and Mall. Compl. ¶¶ 78–82. A state law malicious

prosecution claim requires, “(1) the commencement or continuation of a criminal proceeding by

the defendant(s) against the plaintiff; (2) the termination of the proceedings in plaintiff's favor;

(3) the absence of probable cause for the criminal proceeding; and (4) actual malice.” Nieves v.

County of Monroe, 761 F. Supp. 2d 48, 51 (W.D.N.Y. 2011). “In order to prevail on a § 1983

claim against a state actor for malicious prosecution, a plaintiff must show a violation of his

26

rights under the Fourth Amendment,’ and establish the elements of a malicious prosecution claim

under state law.” Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). Defendants raise a

multitude of deficiencies in Plaintiffs’ malicious prosecution claim but the Court need only

address one: the failure to plead a violation of their Fourth Amendment rights.

To establish a violation of the Fourth Amendment there must be “some deprivation of

liberty consistent with the concept of ‘seizure.’” Washington v, Cty. of Rockland, 373 F.3d 310,

316 (2d Cir. 2004) (quoting Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995)).

While “liberty deprivations regulated by the Fourth Amendment are not limited to physical

detention,” Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997), courts have required the plaintiff be

subject to something akin to a restraint on physical freedom. See id. (holding restriction of

constitutional right to travel out of the state and requirement to appear for trial and other hearings

on demand amounted to seizure); Rohman v, N.Y.C. Transit Auth., 215 F.3d 208, 216, (2d Cir.

2000) (same); Noga v. Schenectady Police Officers, 169 F. Supp. 2d 83, 91 (N.D.N.Y. 2001)

(same). Cf, Burg v. Gosselin, 591 F.3d 95, 101 (2d Cir. 2010) (“A pre-arraignment, non-felony

summons requiring no more than a later court appearance does not constitute a Fourth

Amendment seizure.”). Impositions resulting from civil or administrative proceedings rarely rise

> The Second Circuit in Singer noted that it was “theoretically possible . . . for a plaintiff

to premise a malicious prosecution claim on some other constitutional right.” 63 F.3d at 116 n.5,

120 (considering but rejecting a First Amendment retaliation malicious prosecution claim).

However, Plaintiffs have not cited a case where such a claim was allowed.

° Recently, the Second Circuit has clarified that “federal law defines the elements of a

§ 1983 malicious prosecution claim . . . a State’s tort law serves only as a source of persuasive

authority rather than binding precedent in defining these elements.” Lanning v. City of Glens

Falls, 908 F.3d 19, 25 (2d Cir. 2018). However, because the Court is dismissing this claim on

constitutional grounds, it need not determine whether any material differences exist in this case

between the elements of state and federal malicious prosecution claims.

27

to the level of a Fourth Amendment violation. See Washington, 373 F.3d at 316. Although, as

discussed above in Section C, removing a child can constitute a “seizure” in violation of the

child’s Fourth Amendment rights, the commencement of abuse investigations do not implicate

Fourth Amendment rights. Estiverne, 833 F. Supp. 2d at 380 (finding parents were not seized or

restrained by an abuse investigation); Emerson v. City of N.Y., 740 F. Supp. 2d 385, 392

(S.D.N.Y. 2010) (same).

Plaintiffs rely on Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994), for the proposition

that indicated reports of child abuse can implicate a liberty interest when they result in “stigma

plus” other deleterious consequences such as a “tangible burden on... employment prospects.”

Pls.” Opp’n at 30. However, that case only concerned procedural due-process rights under the

Fourteenth Amendment, and does not mention the Fourth Amendment. Id. at 1004—05. There is

no precedential support for Plaintiffs’ view that violation of this liberty interest could form the

basis of a malicious prosecution claim. Plaintiffs also claim that because New York State

recognizes the tort of civil malicious prosecution, the Court should recognize § 1983 liability in

similar circumstances because “the analysis of the state and the federal claims is identical.” Pls.’

Opp’n at 30 (quoting Boyd v. City of N.Y., 336 F.3d 72, 75 (2d Cir. 2003)). However, Boyd

concerned the “elements” of malicious prosecution, not the additional requirement that a

constitutional right be violated to bring a § 1983 claim.’ Id. In Washington v. County of

Rockland, the Second Circuit explicitly rejected a similar argument, noting that while Supreme

Court and Second Circuit precedent do not foreclose the possibility that a civil proceeding could

’ Even this limited holding is no longer correct as a matter of federal law. See Lanning,

908 F.3d at 25.

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give rise to a malicious prosecution claim, they still require a violation of the Fourth

Amendment. 373 F.3d at 315–17 (citing Albright v. Oliver, 510 U.S. 266, 273–74 (1994);

Singer, 63 F.3d at 116–17).

Although the Complaint mentions that the indicated reports put McLoughlin’s job and

ability to volunteer coach in jeopardy, it does not show he was subject to any restraints that

would amount to a “seizure.” Compl. ¶¶ 35–36. Therefore, the Complaint fails to state a § 1983

claim for malicious prosecution.

I. Section 1983 Abuse of Process

Plaintiffs claim that Defendants committed abuse of process by filing the indicated

reports against McLoughlin and Mall. Compl. ¶¶ 74–77. Under New York State law, the

elements of abuse of process are that the defendant “(1) employs regularly issued legal process to

compel performance or forbearance of some act (2) with intent to do harm without excuse or

justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of

the process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (citing Curiano v. Suozzi, 469

N.E.2d 1324, 1326 (N.Y. 1984)). A § 1983 abuse of process claim also requires the plaintiff to

allege the violation of a constitutional right. Id. Defendants do not contest that the Complaint

states a claim for abuse of process. Defs.’ Mem. at 8 n. 1. However, Defendants have moved to

dismiss the entire Complaint “since the individual County Defendants are entitled to qualified

immunity.” Id. at 8. Defendants provide no reason that the law on abuse of process was not

clearly defined, or why any actions they took which did amount to abuse of process were

objectively reasonable. This Court “need not entertain an argument that was not briefed.”

29

Johannes Baumgartner Wirtschafts- und Vermogensberatung GmbH v. Salzman, 969 F. Supp. 2d

278, 290 (E.D.N.Y. 2013).

Defendants do argue in the context of the malicious prosecution claim that they should be

entitled to qualified immunity because it was “objectively reasonable” to believe there was some

credible evidence of abuse, which is the standard for filing an indicated report. Defs.’ Mem. at

30–31. However, while “malicious prosecution and abuse of process are closely allied,” only

malicious prosecution “concerns the improper issuance of process.” Cook, 41 F.3d at 80. In

contrast, the “gist” of abuse of process is “improper use of process after it is regularly issued.” Id.

Even if Defendants had probable cause to file the indicated report, it would not have been

objectively reasonable to believe their actions were lawful if they did so “to obtain a collateral

objective that is outside the legitimate ends of the process.” Id. Because Defendants did not

address this claim, they are not entitled to have it dismissed.

J. Equal Protection

Plaintiffs originally claimed that Defendants “discriminated against plaintiffs Mall and

DM on the basis of their race, color, and/or religion.” Compl. ¶ 84. In the Plaintiffs’ Opposition

however, they seem to advance a claim under a “class of one” theory. Pls.’ Opp’n at 22–23

(quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). In either case, the

Complaint fails to state a claim.

To state a claim for selective enforcement of the law based on racial or religious identity,

a plaintiff must allege “(1) the person, compared with others similarly situated, was selectively

treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis

of impermissible considerations, such as race or religion.” Hu v. City of N.Y., 927 F.3d 81, 91

30

(2d Cir. 2019) (quoting Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)). To succeed

under a “class of one” theory, the plaintiff must demonstrate “(1) that [they have] been

intentionally treated differently from others similarly situated and (2) that there is no rational

basis for the difference in treatment.” Id. (citing Village of Willowbrook, 528 U.S. at 564). For

either claim, “it is axiomatic that a plaintiff must allege that similarly situated persons have been

treated differently.” Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994).

Plaintiffs allege “[u]pon information and belief, defendants do not treat similarly situated

White/Caucasian members of the community as unfairly as they treated plaintiffs in this case.”

Compl. ¶ 32. Plaintiffs also claim that “Golden exhibited certain negative behavioral gestures

that were condescending towards plaintiff Mall” and that “Golden’s unfavorable treatment of all

of the plaintiffs was motivated by defendant Golden’s racial animus and bias against plaintiffs

Mall and DM as Pakistani and Bi-racial respectively.” Id. ¶¶ 30, 31. However, such conclusory

statements are insufficient to make out a claim for discrimination. Thomas v. Pingotti, No.

17-CV-300, 2017 WL 3913018 at *7 (N.D.N.Y. Sept. 6, 2017) (dismissing an inmate’s equal-

protection claim, which was only supported by a “conclusory assertion that inmates of other

races, religions, and gender were treated differently by defendants”). The Complaint contains no

specific allegations at all about Defendants’ treatment of similarly situated families that would

suggest that Defendants discriminated against Plaintiffs. Therefore, Plaintiffs’ § 1983 equal-

protection claim is dismissed.

V. CONCLUSION

Accordingly, it is hereby:

31

ORDERED, that Defendants’ Motion for Judgment on the Pleadings (Dkt. No. 17) is

GRANTED as to all claims against Defendant Rensselaer County Department of Social Service;

and it is further

ORDERED, that Defendants’ motion is GRANTED as to Plaintiffs’ Eighth

Amendment, malicious prosecution, equal protection and substantive due-process claims against

Defendants Megan Golden, Jennifer Rosengart, and John Doe; and it is further

ORDERED, that Defendants’ motion is DENIED as to Plaintiffs’ Fourth Amendment

and procedural due-process claims relating to the CT scan and removal of DM, false-

imprisonment claim, and abuse-of-process claim against Defendants Megan Golden, Jennifer

Rosengart, and John Doe.

IT IS SO ORDERED.

DATED: August 14, 2019

Albany, New York

fig

U.S. District Judge

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