17‐3890‐cv
Treistman v. Greene
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND
IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 13th day of December, two thousand eighteen.
PRESENT:
ROBERT D. SACK,
BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges.
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BEN GARY TREISTMAN, and as a Parent and Next
Friend for, AT as coplaintiff A Minor,
Plaintiff‐Appellant,
A.T., a minor,
Plaintiff,
v. 17‐3890‐cv
AMY GREENE, personal and official capacity,
KELLY WHITTAKER, personal and official capacity,
DENISE WOLTMAN, personal and official capacity,
MARY ELLEN SCHNEIDER, personal and official
capacity, JOSEPH BENNETT, personal and official
capacity, CHARLENE BOSWELL, personal and official
capacity, KARIN HUBBS, personal and official
capacity, ESQ. PAMELA JOERN, personal and official
capacity,
Defendants‐Cross‐Claimants‐Appellees,
OTHER UNKNOWN NAMED PERSONS, BARBARA
SORKIN, personal and official capacity, ULSTER
COUNTY MUNICIPALITY, via its agencies Ulster
County Child Protective Services & Mental Health
Dept., VALERIE LYN WACKS, ESQ., personal and
official capacity, LAWRENCE R. SHELTON, ESQ.,
personal and official capacity, ELISABETH
KRISJANIS, ESQ., personal and official capacity,
JILLIAN JACKSON, ESQ., personal and official
capacity,
Defendants‐Cross‐Claimants.
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FOR PLAINTIFF‐APPELLANT: BEN GARY TREISTMAN, pro se, Shady,
New York.
FOR DEFENDANTS‐APPELLEES: ERIC M. KURTZ, Cook, Netter, Cloonan,
Kurtz & Murphy, P.C., Kingston, New
York.
Appeal from a judgment of the United States District Court for the
Northern District of New York (Sharpe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
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Plaintiff‐appellant Ben Gary Treistman, pro se, sued Ulster County (the
ʺCountyʺ) and several of its employees under 42 U.S.C. § 1983, alleging that the Ulster
County Department of Social Services (ʺDSSʺ) and certain of its employees violated his
First and Fourteenth Amendment rights by, inter alia, restricting conversation with his
daughter, A.T., during supervised visits. DSS had brought neglect proceedings against
Treistman that resulted in the Ulster Country Family Court issuing an order allowing
Treistman to visit with his daughter only while in the presence of another adult.
Treistman also alleged that two employees of the Countyʹs Department of Mental Health
(ʺDMHʺ) interfered with his right to choose medical care for A.T. by calling the private
therapist he had hired and directing her to cease providing duplicative therapy.
On February 16, 2017, after the parties cross‐moved for summary
judgment, the district court granted summary judgment to the County and the
individual defendants in their official capacities, reasoning that Treistman failed to offer
evidence sufficient to show that the County maintained an unconstitutional policy or
practice. It directed the parties, pursuant to Federal Rule of Civil Procedure 56(f), to
brief whether the defendants in their individual capacities had qualified immunity from
suit.
On November 19, 2017, after supplemental briefs were filed, the district
court granted summary judgment to the remaining defendants in their individual
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capacities based on qualified immunity, reasoning that no jury could conclude that the
defendants had violated Treistmanʹs constitutional rights in an objectively unreasonable
manner.
On December 1, 2017, Treistman timely filed a notice of appeal. We
assume the partiesʹ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
On appeal, Treistman argues principally that the district court erred in (1)
granting summary judgment to the County and the individuals in their official
capacities, and (2) granting summary judgment to the individual defendants in their
individual capacities.
We review a grant of summary judgment de novo, ʺresolv[ing] all
ambiguities and draw[ing] all inferences against the moving party.ʺ Garcia v. Hartford
Police Depʹt, 706 F.3d 120, 126‐27 (2d Cir. 2013) (per curiam). ʺSummary judgment is
proper only when . . . ʹthere is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.ʹʺ Doninger v. Niehoff, 642 F.3d 334, 344 (2d
Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). Under Rule 56(f), district courts have
discretion to grant summary judgment sua sponte ʺ[a]fter giving notice and a reasonable
time to respondʺ and ʺafter identifying for the parties material facts that may not be
genuinely in dispute.ʺ Fed. R. Civ. P. 56(f).
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1. First Summary Judgment Decision
Treistman argues that the district court erred in granting summary
judgment to the County and individual defendants in their official capacities.1
Municipalities, and individuals sued in their official capacity, are liable under § 1983
only if the challenged conduct was ʺpursuant to a municipal policy or custom,ʺ Patterson
v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (citation omitted), or caused by a
ʺfailure to train,ʺ Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). To satisfy the
policy or custom requirement, a plaintiff can show that the challenged practice ʺwas so
persistent or widespread as to constitute a custom or usage with the force of law,ʺ or that
the ʺpractice of subordinate employees was so manifest as to imply the constructive
acquiescence of senior policy‐making officials.ʺ Littlejohn v. City of New York, 795 F.3d
297, 315 (2d Cir. 2015) (citation and internal quotation marks omitted).
The district court did not err in granting summary judgment to the County
and individual defendants in their official capacities because Treistman failed to offer
any evidence of a policy or custom that caused the alleged constitutional violations or
that Ulster County failed to train DSS workers. Nor did he offer evidence showing that
there was a history of DSS workers forbidding parents from discussing certain topics
during supervised visitation. See generally Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.
1 It is not clear whether Treistman challenges the dismissal of the claims against the individual defendants in
their official capacities; we nevertheless assume that he does.
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2007). His ʺgeneral and conclusory allegation[s]ʺ were not sufficient to defeat summary
judgment. Littlejohn, 795 F.3d at 315.
2. Second Summary Judgment Decision
Treistman argues that the district court failed to adhere to Rule 56(f) as to
the individuals in their individual capacity because it did not identify the facts that were
not genuinely in dispute. We disagree, as the district court correctly applied Rule 56(f)
by determining that the facts summarized in its first summary judgment order, which
were relevant to the second summary judgment decision, were not in dispute.
Treistman also argues that the district court failed to consider evidence in the
supplemental briefing he submitted after the district courtʹs initial summary judgment
ruling. He is mistaken. Although the district court did note that it was too late for
Treistman ʺto present additional evidence for issues that were already decided,ʺ it also
wrote: ʺinsofar as the court is able to liberally construe the pro se plaintiffʹs belated
response to defendantsʹ statement of material facts . . . as cites to the record in support
[of] his current arguments, it has done so.ʺ Treistman v. Greene, No. 12‐cv‐1897, 2017
WL 5201555, at *1 n.1 (N.D.N.Y. Nov. 9, 2017).
The district court properly granted summary judgment to the individual
defendants based on qualified immunity. ʺQualified immunity insulates public
officials from claims for damages where their conduct does not violate clearly
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established statutory or constitutional rights of which a reasonable person would have
known.ʺ Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (citation and internal quotation
marks omitted). ʺThe issues on qualified immunity are: (1) whether plaintiff has shown
facts making out violation of a constitutional right; (2) if so, whether that right was
clearly established; and (3) even if the right was clearly established, whether it was
objectively reasonable for the [officials] to believe the conduct at issue was lawful.ʺ
Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (citation and internal
quotation marks omitted).
Treistman argues that case law clearly established his right to unrestricted
communication with A.T., but this argument is meritless. As the district court
recognized, parents enjoy a protected liberty interest in maintaining a relationship with
their children. See United States v. Myers, 426 F.3d 117, 125 (2d Cir. 2005). But ʺ[t]he
constitutional privileges attached to the parent‐child relationship . . . are hardly
absolute.ʺ Id. For example, if ʺthere is an objectively reasonable basis for believing
that parental custody constitutes a threat to the childʹs health or safety, government
officials may remove a child from his or her parentsʹ custody at least pending
investigation.ʺ Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). The injury
complained of here ‐‐ that Treistman was restricted from discussing certain issues with
A.T. during supervised visitation because those issues emotionally distressed her ‐‐ is
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not nearly as serious as removing a child from custody. Given that government
officials may remove a child when they believe his or her health or safety requires it, the
DSS defendants did not violate a clearly established right by advising Treistman to avoid
causing emotional distress to his daughter, a far less severe intrusion. See generally
Anderson v. Creighton, 483 U.S. 635, 640 (1987). Thus, because there was no clearly
established right to a parentʹs unrestricted communication in the circumstances here ‐‐
where the child was diagnosed with a developmental disorder, a neglect petition was
filed against Treistman, and the family court entered a temporary restraining order
against him ‐‐ the district court properly found that Whittaker, Greene, Woltman,
Boswell, and Hubbs had qualified immunity from suit.
Treistman also argues that there is an established right for a parent to place
his child in privately provided therapy without interference from government officials,
where a child was already receiving therapy from the officials. Although parents have
a right to determine the medical care their children receive and the governmentʹs
interference in that right can violate due process, see van Emrik v. Chemung Cty. Depʹt of
Soc. Servs., 911 F.2d 863, 867 (2d Cir. 1990), we have not yet addressed whether a
government officialʹs direction to a medical provider to cease providing therapy
treatment duplicative of services a child is already receiving violates due process.
Although ʺan officer might lose qualified immunity even if there is no reported case
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directly on point[,] . . . the unlawfulness of the officerʹs conduct must be apparent.ʺ
Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017) (internal quotation marks omitted). Any
unlawfulness here was not apparent. There was, therefore, no clearly established right
that was violated, and the district court correctly granted summary judgment to
Schneider and Bennett. See Anderson, 483 U.S. at 640.
We have considered all of Treistmanʹs remaining arguments and find them
to be without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk of Court
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