"V.S." v. Muhammad

08-5157-cv
"V.S." v. Muhammad

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 -------------
6
7 August Term, 2009
8
9 (Argued: October 7, 2009 Decided: February 17, 2010)
10
11 Docket No. 08-5157-cv
12
13 - - - - - - - - - - - - - - - - - - - - - - X
14
15 V.S., individually and on behalf of her infant child, T.S.,
16
17 Plaintiffs-Appellees,
18
19 - against -
20
21 NADIRA MUHAMMAD, individually and as caseworker, NATALIE ARTHUR,
22 individually and as supervisor, BRENDA WILSON, individually and
23 as manager, JOHN B. MATTINGLY, individually and as Commissioner,
24 CITY OF NEW YORK,
25
26 Defendants-Appellants,
27
28 -and-
29
30 DEBRA ESERNIO-JENSSEN, individually and as physician; LONG ISLAND
31 JEWISH MEDICAL CENTER, NORTH SHORE - LONG ISLAND JEWISH HEALTH
32 SYSTEM, INC.,
33
34 Defendants.
35
36 - - - - - - - - - - - - - - - - - - - - - - X
37
38 Before: MINER and CABRANES, Circuit Judges, and
39 RAKOFF, District Judge.*
40
41

*
The Honorable Jed S. Rakoff, United States District Judge
for the Southern District of New York, sitting by designation.

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1 Interlocutory appeal by public employees from a ruling of the
2 United States District Court for the Eastern District of New York
3 (Dora L. Irizarry, Judge), denying dismissal of these defendants
4 on grounds of immunity from claims against them involving
5 wrongful child removal and malicious prosecution.
6
7 Reversed and remanded.

8 DEBORAH A. BRENNER, Of Counsel, Corporation
9 Counsel of the City of New York (Michael A.
10 Cardozo, Barry P. Schwartz, Of Counsel,
11 Deborah A. Brenner, on the brief), for
12 Defendants-Appellants.
13
14 CAROLYN A. KUBITSCHEK, Lansner & Kubitschek,
15 New York, NY, for Plaintiffs-Appellees.
16

17 RAKOFF, District Judge:

18 This case is one of several recent cases concerned with what

19 degree of protection is afforded municipal employees involved in

20 the often thorny process of determining whether to remove an

21 injured child from the custody of the child’s parents and bring

22 child abuse charges against the parents.1 We state the pertinent

23 facts most favorably to plaintiff. Skehan v. Vill. of

24 Mamaroneck, 465 F.3d 96, 104-05 (2d Cir. 2006), overruled on

25 other grounds by Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir.

26 2008).

27 On August 19, 2004, plaintiff V.S. and her mother took

28 V.S.’s infant son T.S. to the Schneider Children’s Hospital in

29 New Hyde Park, New York, with a swollen leg, where he was

1
See, e.g., Cornejo v. Bell, __ F.3d __, No. 08-3069-cv,
2010 U.S. App. LEXIS 38 (2d Cir. Jan. 4, 2010); Graham v.
Mattingly, No. 08-5271-cv, 2009 U.S. App. LEXIS 22908 (2d Cir.
Oct. 19, 2009) (summary order).

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1 diagnosed with a fractured femur.2 On August 20, the hospital

2 reported the injury to the New York State Register of Child Abuse

3 and Maltreatment, and subsequently submitted a second report

4 stating that T.S. also had a frontal skull fracture and old and

5 new retinal hemorrhages. After reviewing the reports, defendant-

6 appellant Natalie Arthur, a supervisor in the New York City

7 Administration of Child Services (“ACS”), directed one of her

8 caseworkers, defendant-appellant Nadira Muhammad, to conduct an

9 investigation.

10 Muhammad interviewed V.S., her mother, and T.S.’s biological

11 father, as well as defendant Debra Esernio-Jenssen, M.D. (the

12 head of the hospital’s Child Abuse Protection team), and several

13 other doctors. Initially, neither V.S. nor her mother was able

14 to provide an explanation for T.S.’s injuries, although V.S., who

15 had been bedridden for six weeks after a complicated pregnancy,

16 asserted that she was physically incapable of inflicting injury

17 upon T.S. Subsequently, however, V.S.’s mother, who had been

18 T.S.’s primary caretaker during this period, admitted that she

19 (the grandmother) had slipped while holding the baby and that his

20 leg had hit the kitchen counter; but she still could not account

21 for the other injuries.

22 While the hospital staff thereafter concluded that T.S. had

2
The hospital, or more precisely its parent, the Long
Island Jewish Medical Center, North Shore - Long Island Jewish
Health System, Inc., along with one of its physicians, Debra
Esernio-Jenssen, M.D., are co-defendants in the underlying
lawsuit but are not parties to the instant interlocutory appeal.

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1 likely sustained the fracture during the fall described by the

2 grandmother, on August 23, 2004, ACS received a report from Dr.

3 Esernio-Jenssen that concluded that T.S.’s retinal hemorrhages

4 were indicative of “shaken baby syndrome.” Muhammad and Arthur

5 then conferred by telephone with Esernio-Jenssen, following

6 which, on August 24, 2004, ACS commenced child protective

7 proceedings in Queens County Family Court against V.S. and her

8 mother, alleging they had abused T.S. and seeking temporary

9 removal of T.S. from the custody of V.S. and her mother pursuant

10 to Article 10 of the New York Family Court Act. See N.Y. Fam.

11 Ct. Act § 1012 et seq.

12 An initial hearing was held that same day in Family Court,

13 at which V.S. and her mother appeared, represented by counsel.

14 Muhammad testified for ACS that T.S. had suffered unexplained

15 injuries and that the hospital believed that the child was

16 suffering from shaken baby syndrome. Muhammad did not disclose,

17 however, that V.S. had been bedridden for six weeks, or that the

18 hospital had concluded that T.S. had likely suffered the femur

19 fracture while in the care of his grandmother. In reliance on

20 Muhammad’s testimony, the Family Court judge granted a temporary

21 order of removal, as a consequence of which T.S., after being

22 released from the hospital on August 25, 2004, was placed in the

23 custody of his biological father, who did not reside with V.S.

24 V.S. subsequently moved to vacate the order of removal, and

25 the Family Court held a hearing on September 27 and 29, 2004, at

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1 which V.S. was once again present and represented by counsel. At

2 the hearing, defendant Arthur testified that Dr. Eric Shakin, a

3 pediatric retinal specialist who had examined T.S. when he was

4 first brought to the hospital, had indicated that the retinal

5 injuries were consistent with shaken baby syndrome. Arthur did

6 not disclose, however, that Dr. Esernio-Jenssen had informed

7 defendants (on September 14, 2004) that she now believed V.S. had

8 not injured the infant. The Family Court denied the motion, and

9 V.S. did not appeal.

10 ACS then proceeded with the child abuse charges filed

11 against V.S. and her mother. At the trial of these charges, held

12 on various days between January 24, 2005 and June 30, 2005, both

13 Dr. Esernio-Jenssen and Dr. Shakin testified for ACS that T.S.

14 suffered from shaken baby syndrome. For V.S., Dr. Ram Kairam,

15 chairman of pediatrics at Bronx Lebanon Hospital, testified that

16 although the infant had signs of retinal and vitreous

17 hemorrhaging, they did not resemble the hemorrhages associated

18 with shaken baby syndrome but were more consistent with

19 childbirth injuries. This diagnosis was corroborated by medical

20 records of injuries suffered at T.S.’s birth.

21 The Family Court reserved judgment, but on October 17, 2005,

22 before any decision had been rendered, ACS moved, without

23 explanation, to withdraw all allegations against V.S. (but not

24 against her mother). The Family Court granted the motion and

25 released T.S. to V.S.’s care. On November 3, 2005, the petition

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1 against V.S.’s mother was reduced to charges based solely on

2 T.S.’s fractured femur, and on November 29, 2006, the Family

3 Court entered a finding of neglect against V.S.’s mother.

4 Shortly thereafter, on January 16, 2007, V.S. commenced the

5 instant action against caseworker Muhammad, Muhammad’s supervisor

6 Arthur, Arthur’s manager Brenda Wilson, Wilson’s superior John B.

7 Mattingly, and derivatively, the City of New York (collectively,

8 the “City Defendants”), as well as Dr. Esernio-Jenssen and her

9 employer, Long Island Jewish Medical Center, North Shore - Long

10 Island Jewish Health System, Inc. The action alleged violations

11 of V.S.’s and T.S.’s rights under the Fourth Amendment (search

12 and seizure and malicious prosecution) and the Fourteenth

13 Amendment (due process). The action also alleged claims under

14 New York state law for malicious prosecution and abuse of

15 process. In support of these claims, V.S. alleged, in essence,

16 that Dr. Esernio-Jenssen had a long history of giving unreliable

17 and misleading diagnoses of shaken baby syndrome and that ACS,

18 knowing this, should not have proceeded in reliance on Dr.

19 Esernio-Jenssen’s opinions and without disclosing exculpatory

20 evidence to the Family Court.

21 On November 20, 2007, the City Defendants moved for summary

22 judgment on the basis of absolute and/or qualified immunity.

23 While the motion was being briefed, the City Defendants also

24 sought dismissal on the basis of the so-called “Rooker-Feldman”

25 doctrine, which maintains that a federal district court should

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1 not entertain a case brought by a litigant who lost in state

2 court and seeks in effect appellate review of that decision by a

3 lower federal court. Rooker v. Fidelity Trust Co., 263 U.S. 413

4 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).

5 In an opinion issued September 30, 2008, the United States

6 District Court for the Eastern District of New York (Dora L.

7 Irizarry, Judge) denied the defendants’ summary judgment motion,

8 concluding that essential elements of the Rooker-Feldman doctrine

9 had not been satisfied, that defendants were not entitled to

10 absolute immunity, and that determination of qualified immunity

11 must await discovery on the issues of whether it was objectively

12 reasonable for the City Defendants to rely on Dr.

13 Esernio-Jenssen’s assessments and on whether defendants were

14 proceeding in bad faith.

15 DISCUSSION

16 Interlocutory appeal is available both from a denial of

17 absolute immunity, Mitchell v. Forsyth, 472 U.S. 511, 525 (1985),

18 and, if plaintiff’s essential factual allegations are taken as

19 true, from a denial of qualified immunity, Skehan, 465 F.3d at

20 104-05 (2d Cir. 2006). In such circumstances, interlocutory

21 appeal will also lie from a denial of the Rooker-Feldman doctrine

22 if the issue is, as here, inextricably intertwined with the

23 immunity appeal. Id. at 105.

24 A. Rooker-Feldman Doctrine

25 We agree with the district court that the Rooker-Feldman

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1 doctrine is inapplicable here. To invoke that doctrine,

2 defendants must meet four requirements:

3 First, the federal-court plaintiff must have lost in state
4 court. Second, the plaintiff must “complain[] of injuries
5 caused by [a] state-court judgment[.]” Third, the plaintiff
6 must “invite district court review and rejection of [that]
7 judgment[].” Fourth, the state-court judgment must have
8 been “rendered before the district court proceedings
9 commenced” - i.e., Rooker-Feldman has no application to
10 federal-court suits proceeding in parallel with ongoing
11 state-court litigation.
12
13 Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d

14 Cir. 2005) (quoting Exxon Mobil Corp. v. Saudi Basic Indus.

15 Corp., 544 U.S. 280, 284 (2005)). Applying these requirements to

16 the context of state-court orders of removal of children from

17 parental custody, this Court, in Green v. Mattingly, 585 F.3d 97,

18 102-03 (2d Cir. 2009), found that the Rooker-Feldman doctrine did

19 not apply because the Family Court had issued a superseding order

20 returning plaintiff’s child to plaintiff’s custody, and the

21 claims against plaintiff were ultimately dismissed. Thus,

22 plaintiff neither had lost in state court (the first Hoblock

23 requirement), nor did her claims invite district court review and

24 rejection of a state-court judgment (the third Hoblock

25 requirement). Here, as in Green, V.S. is not a “state-court

26 loser,” since, prior to the commencement of the instant action,

27 ACS had withdrawn all its claims against V.S. and the Family

28 Court had released T.S. to V.S.’s custody. Likewise, nothing in

29 the instant action invites district court review and rejection of

30 a final state-court judgment. Accordingly, the Rooker-Feldman

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1 doctrine is inapplicable here.

2 B. Federal Claims and Qualified Immunity

3 ACS caseworkers and their superiors are generally entitled

4 to qualified immunity from claims under Section 1983 if it was

5 objectively reasonable for the caseworkers to believe their

6 conduct did not violate clearly established statutory or

7 constitutional rights of which a reasonable caseworker would have

8 known. Cornejo v. Bell, __ F.3d __, No. 08-3069-cv, 2010 U.S.

9 App. LEXIS 38, at *15-16 (2d Cir. Jan. 4, 2010). “If caseworkers

10 of reasonable competence could disagree on the legality of . . .

11 defendant[s’] actions their behavior is protected.” Tenenbaum v.

12 Williams, 193 F.3d 581, 605 (2d Cir. 1999)(internal quotation

13 marks omitted).

14 Here, the district court believed some discovery was

15 necessary before this assessment could be made; but, reviewing

16 the matter de novo, as we are obliged to do, Walczyk v. Rio, 496

17 F.3d 139, 153 (2d Cir. 2007); Gilles v. Repicky, 511 F.3d 239,

18 243 (2d Cir. 2007), we disagree.

19 When V.S. was first interviewed, neither she nor her mother

20 could give an explanation, not only for T.S.’s fractured femur

21 but also for T.S.’s other serious injuries that medical tests had

22 revealed. By contrast, Dr. Esernio-Jenssen made a diagnosis of

23 shaken baby syndrome. In the absence of any plausible

24 alternative, this was sufficient to warrant the initial decision

25 to seek a court order permitting T.S.’s removal from V.S.’s

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1 custody. See, e.g., van Emrik v. Chemung County Dep’t of Soc.

2 Servs., 911 F.2d 863, 866 (2d Cir. 1990). When, at the

3 subsequent hearings, not only Dr. Esernio-Jenssen but also Dr.

4 Shakin reaffirmed the diagnosis of shaken baby syndrome, there

5 remained ample basis for defendants to continue with both custody

6 removal and charges of abuse. The fact that the caseworkers

7 failed to apprise the Family Court that it was V.S.’s mother,

8 rather than V.S., who had custody of T.S. during much of the

9 relevant period is irrelevant, since V.S. and her mother not only

10 were present at all the hearings but were represented by counsel,

11 who could have brought this and other facts favorable to V.S. to

12 the Family Court’s attention.

13 The district court nonetheless believed that qualified

14 immunity could not yet be granted because of V.S.’s allegations

15 that Dr. Esernio-Jenssen was known to defendants to have

16 repeatedly misdiagnosed child injuries as evidence of child

17 abuse. In the district court’s view, the “reliability of Dr.

18 Esernio-Jenssen’s diagnoses . . . is an issue of material fact

19 that goes directly to the objective reasonableness of ACS in

20 seizing and removing T.S. from his mother.” Special App. 49.

21 But to impose on an ACS caseworker the obligation in such

22 circumstances of assessing the reliability of a qualified

23 doctor’s past and present diagnoses would impose a wholly

24 unreasonable burden of the very kind qualified immunity is

25 designed to remove. See, e.g., Wilkinson v. Russell, 182 F.3d

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1 89, 107-09 (2d Cir. 1999); Defore v. Premore, 86 F.3d 48, 50-51

2 (2d Cir. 1996) (per curiam).

3 At all times here relevant, Dr. Esernio-Jenssen was not just

4 a licensed physician, but also the head of the Child Protection

5 Team at the hospital to which T.S. was taken. She based her

6 diagnosis of T.S. on determinations made by another doctor, Dr.

7 Sylvia Kodsi, of retinal hemorrhages, a common indicator of

8 shaken baby syndrome, and her opinion was shared by another well

9 qualified physician, Dr. Shakin. Even if the ACS personnel here

10 involved had been aware of Dr. Esernio-Jenssen’s alleged

11 “reputation” for overdiagnosing child abuse, it still would not

12 have been unreasonable for them to rely on Dr. Esernio-Jenssen’s

13 diagnosis of T.S. in these circumstances. Thus, as a matter of

14 law, the City Defendants are entitled to qualified immunity and

15 thus dismissal of all the federal charges against them.

16 C. State Law and Absolute Immunity

17 In Cornejo, this Court held that defendants similarly

18 situated to the City Defendants here were entitled under New York

19 law to absolute immunity for claims of malicious prosecution

20 brought under that law. Cornejo, 2010 U.S. App. LEXIS 38, at

21 *18. The district court here, not having the benefit of Cornejo,

22 believed that only qualified immunity was available, but this was

23 error. As for the claim of abuse of process under New York State

24 law, the highest New York court to rule on this issue has

25 likewise concluded that defendants are entitled to absolute

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1 immunity from such a claim in circumstances comparable to those

2 presented here. See Carossia v. City of N.Y., 835 N.Y.S.2d 102,

3 104 (N.Y. App. Div. 1st Dep’t 2007). This Court is bound to

4 apply the law as interpreted by a state’s intermediate appellate

5 courts unless there is persuasive evidence that the state’s

6 highest court would reach a different conclusion. Pahuta v.

7 Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999). There

8 is no such evidence here.

9 Accordingly, the City Defendants are entitled to absolute

10 immunity on the state law claims here made.

11 CONCLUSION

12 For the foregoing reasons, the federal claims against the

13 City Defendants must be dismissed on grounds of qualified

14 immunity and the state claims against the City Defendants must be

15 dismissed on grounds of absolute immunity. The district court’s

16 decision of September 30, 2008 is therefore reversed and the case

17 remanded to the district court with directions to dismiss all

18 claims against defendant-appellants.

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