Ward v. Murphy

330 F. Supp. 2d 83 (2004)

John WARD Plaintiff,
v.
Robert MURPHY, et al., Defendants.

No. CIV.3:01CV01908(AVC).

United States District Court, D. Connecticut.

August 16, 2004.

John Ward, Danbury, CT, pro se.

Carolyn Signorelli, John Essex Tucker, Attorney General's Office, Hartford, CT, Benjamin K. Potok, Garie J. Mulcahey, Heidi M. Cilano, Bai, Pollock, Blueweiss & Mulcahey, Bridgeport, CT, for Defendants.

RULING ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

COVELLO, District Judge.

This is an action for damages and injunctive relief, which alleges, inter alia, that various employees of the Connecticut Department of Children and Families ("DCF") violated the plaintiff's rights as secured by the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution when they unlawfully removed the plaintiff's minor child from his custody. It is brought pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, and common law tenets concerning intentional infliction of emotional distress, defamation, slander and false imprisonment. The defendants, the DCF, Kristine Ragaglia, Ralph Arnone, Robert Murphy, Susan Liquindoli and Roger Lima, have filed the within motion for summary judgment (document no. 152), pursuant to Fed.R.Civ.P. 56, contending that the plaintiff has failed to raise an issue of material fact and therefore that they are entitled to judgment as a matter of law.

The issues presented are: (1) whether the defendants are entitled to qualified immunity with regard to the causes of action that allege a violation of the plaintiff's procedural due process rights; (2) whether the plaintiff has raised an issue of fact with regard to the causes of action that allege a violation of the plaintiff's fourth amendment rights; (3) whether the defendants are entitled to qualified immunity with regard to the causes of action that allege a violation of the plaintiff's fifth and sixth amendment rights; (4) whether the eleventh amendment bars the causes of action brought pursuant to 42 U.S.C. § 1983 asserted against the DCF and the individual defendants in their official capacities; (5) whether the plaintiff has standing to seek prospective injunctive relief; (6) whether the plaintiff has raised an issue of fact that the defendants impermissibly discriminated against him on the basis of his disability in violation of the ADA; and (7) if judgment is granted in favor of the defendants on the causes of action brought pursuant to federal law, should the court exercise discretion over the causes of action brought pursuant to state law.

For the reasons that hereinafter follow, the court concludes that: (1) because the defendants actions were objectively reasonable, the defendants are entitled to qualified immunity with regard to the causes of action alleging a violation of the plaintiff's procedural due process rights; (2) the plaintiff has failed to raise an issue of fact with regard to the causes of action alleging a violation of the plaintiff's fourth amendment rights; (3) because the plaintiff has failed to allege a constitutional violation, the defendants are entitled to qualified immunity with regard to the causes of action that purportedly allege a violation of the plaintiff's fifth and sixth amendment rights; (4) the eleventh amendment bars the causes of action brought pursuant to 42 U.S.C. § 1983 and asserted against the DCF and the individual defendants in their official capacities; (5) because the plaintiff has failed to allege an injury that is sufficiently real and immediate, the plaintiff lacks standing to seek prospective injunctive relief; (6) the plaintiff has failed to raise an issue of fact that the defendants impermissibly discriminated against him on the basis of his disability in violation of the ADA; and (7) having concluded that judgment should be granted in favor of the defendants with regard to the causes of action brought pursuant to federal law, the court declines to exercise its discretion over the state law causes of action and dismisses those claims without prejudice.

Consequently, the defendants' motion for summary judgment (document no. 152) is GRANTED.

FACTS:

Examination of the complaint, pleadings, Local Rule 56(a) statements, and exhibits accompanying the motion for summary judgment, and the responses thereto, discloses the following undisputed, material facts.

On October 6, 1999, Patricia Maruscak gave birth to a baby girl, D. W.,^[1] at the Danbury Hospital. John Ward, the plaintiff, is the acknowledged father of D.W. Dr. Eitan Kilchevsky was D.W.'s attending physician while she was a patient at the Danbury Hospital.

During D.W.'s hospital stay, she lost five to eight percent of her body weight and became jaundiced. On October 8, 1999, Kilchevsky discharged D.W. from the hospital. However, because of D.W.'s medical condition and Kilchevsky's assessment that "the mother could benefit from post-discharge support," Kilchevsky referred the family to the Danbury Visiting Nurse Association ("VNA").^[2] At the time of discharge, Ward agreed "to accept the VNA service and a visit was scheduled for October 9, 1999."

On October 10, 1999, the VNA informed Kilchevsky that Ward had cancelled the scheduled visit. Based on the fact that D.W. had lost weight and was jaundiced while at the hospital, Kilchevsky "felt strongly that the baby should be seen." Therefore, Kilchevsky requested that the matter be referred to the Connecticut Department of Children and Families ("DCF"), and "requested that they, along with a[VNA] nurse, go out to the home." On October 10, 1999, one Angela Crooke, an employee of Danbury Hospital, reported Kilchevsky's concerns about the welfare and safety of D.W. to the DCF.

A DCF employee, one Sandra Liquindoli, began an investigation of Crooke's report. Based on her investigation, Liquindoli learned that Ward had cancelled the VNA home visit and that he had provided no explanation for the cancellation. Liquindoli also learned that Maruscak, D.W.'s mother, was "very slow and that ... [Ward] was overbearing and would not allow the mother to speak."

On October 10, 1999, Liquindoli, accompanied by a VNA nurse and two members of the Danbury Police Department ("DPD"), went to Ward's apartment to "investigate the situation and make sure that the child was safe in light of the concerns expressed by the ... [hospital.]" Ward, who was home at the time of the visit, refused to answer the door, stated that the police had no legal right to open the door, and refused to permit the child to be examined. In addition, Ward refused to permit Liquindoli, the nurse, or the police to speak with the mother of the child.

Ward eventually agreed to take the child to the Danbury Hospital and permit an examination of D.W. by Kilchevsky. Liquindoli called Kilchevsky to inform him of the situation. Kilchvesky informed Liquindoli that he would examine the child. Kilchevsky also told Liquindoli that the child should be examined because "untreated jaundice can lead to dehydration and brain damage." Further, according to Kilchevsky, "the mother was not capable of caring for the child as she appeared to be extremely slow and might not be able to determine if the child was in distress."

Ward thereafter stated that he was no longer willing to take his child to the hospital. Ward did, however, permit the nurse to conduct a cursory examination of D.W. in the hallway outside of his apartment. Based on the examination, it was "Liquindoli's understanding that the child did not require any medical intervention at that time." The nurse informed Kilchevsky of the status of the baby, noting that, although dressed at the time that she was weighed, the baby appeared to have gained weight. Also the child did not appear to be jaundiced.

Nevertheless, Kilchevsky felt that, "given the fact that this was a young infant, who had experienced weight loss and jaundice, which are conditions that could lead to complications if the infant was not properly monitored and cared for, ... it was imperative that [the child] be medically seen and that DCF remain involved to ensure [that] the appropriate follow-up was obtained by the parents." Kilchevsky communicated this concern to Liquindoli on October 10, 1999. Liquindoli thereafter spoke with her supervisor and reported what had occurred.

On October 12, 1999, DCF personnel assigned Robert Murphy, an investigative social worker employed by the DCF, to perform a follow up investigation on the report of suspected child neglect in connection with D.W. As part of his initial investigation, Murphy learned of Kilchevsky's concern regarding the possible effects of untreated jaundice, as well as his concern regarding the mother's capacity to notice warning signs of possible distress. Murphy also learned that, on October 7, 1999, one Judy Mills, a licensed clinical social worker at Danbury Hospital, had made a report of suspected child neglect with regard to D.W. In her report, Mills stated:

[M]uch difficulty [with] resistance to see social worker prior to [birth] at Women's Health Center ... [with] John [Ward] speaking for [mother], answering questions asked to her, showing signs that [Ward] was controlling and manipulating [mother]. Plans changed regarding living alone or together several times, infant wanted by father and concern by staff [regarding whether mother] was being compliant against her wishes.... [C]oncern [that Ward] appears paranoid suspicious, and refuses to let social worker speak to mother.... Difficult communications with staff; many problems. [Ward] [r]efused to sign forms in hospital, i.e., condition of admission, until several people involved explaining especially around outside services. Agree to Health Families prenatally and now refuses Health [Families]. Now is agreeing to MD order to follow up visit of VNA and concern will refuse their entry to check on infant after discharge. The intent appears that he will be primary caregiver [and] mother [will] only breast feed[.] Concern infant may not receive proper care medically. Unable to assess situation and supports.

During his investigation, Murphy also became aware that Kilchevsky considered Ward "overwhelming" and that Ward had been uncooperative with Liquindoli when she went to his apartment on October 10, 1999. Although Murphy knew that the VNA nurse had briefly examined D.W. in the hall, Murphy learned that Kilchevsky "had recommended that the [DCF] conduct a further investigation due to apparent problems with the family and that the child receive a medical examination within three days."

On October 13, 1999, Murphy met with Maruscak, D.W.'s mother, at her apartment. Maruscak reported that she did not have the infant and that the child generally stayed with Ward. Maruscak stated, however, that she "babysat" for Ward while he went to work. Maruscak stated that she was unaware of where Ward worked; who D.W.'s doctor was; or that the DCF had visited Ward's home on October 10, 1999.

On October 13, 1999, Murphy went to Ward's apartment. Murphy knocked on the apartment door, but there was no response. Murphy left his business card in the doorjamb with a note requesting that Ward contact him. On October 14, 1999, Murphy returned to the apartment and the card was no longer there. Murphy thereafter sent a certified letter to Ward requesting that he contact him; Ward did not respond.

On October 18, 1999, Murphy, accompanied by one Roger Lima, a case aide employed by the DCF, went to Ward's apartment to make a home visit. Ward, who was home at the time, informed Murphy and Lima that "he refused to speak to any agents of the government." Murphy informed Ward that he and Lima were there to check on the health and well-being of D.W. Ward apparently turned on an audio recording and stated that "the DCF would have to talk to his attorney." Murphy asked for Ward's attorney's name, and Ward stated that the DCF was responsible for providing him an attorney and that once an attorney was provided he would speak with Murphy.

Murphy left and returned in the early evening with several members of the Danbury Police Department. Ward refused to answer the door unless the police produced a warrant. According to police reports, Ward "was displaying what could be best be described as a survivalist attitude and [the police] feared that [Ward] might have weapons.... All the officers present felt uneasy about Ward and had a fear for [their] ... safety, and the safety of the baby." An ambulance was called to the scene to transport the baby to the hospital.

While these events were occurring, Murphy, via cell-phone, informed DCF Program Supervisor Ralph Arnone of the situation. Arnone was growing increasingly concerned regarding the situation. Specifically, Arnone was concerned by Ward's paranoid behavior and apparent refusal to accept outside help, particularly in light of the medical concerns of D.W.'s physician. Therefore, "based on the concerns regarding the medical issues of the infant, the lack of cooperation and hostile demeanor of Ward, ... and the apparent mental health issues of both parents," Arnone issued a 96-hour hold pursuant to Conn. Gen.Stat. 17a-101g(c).^[3]

Muprhy advised Ward of the 96-hour hold and Ward granted Murphy, Lima and the police officers entry into his apartment. Once inside the apartment, Murphy informed Ward that there were two possible resolutions to the situation. First, Ward could agree to answer various questions relating to the care of the child and accompany them and the baby to the hospital emergency room where the baby would be examined. If the examination revealed no medical concerns, Ward was free to take the baby home. Alternatively, if Ward refused to cooperate and answer the questions, then the DCF would take custody of the child. Ward refused to cooperate and Murphy removed the child.

On October 19, 1999, Murphy, accompanied by DCF psychiatric social worker Nancy Turton-Creal, spoke with Maruscak, D.W.'s mother. Based on the conversation, Turton-Creal determined that Maruscak's mental health disorders could impede the mother's ability to care for the child and result in an inability to "recognize distress in [D.W.]" On October 20, 1999, Murphy spoke with one Ginny Cameron of the Danbury Hospital Community Center for Mental Health, who informed Murphy that Ward had been diagnosed with personality disorder and anxiety disorder. Also on October 20, 1999, Murphy spoke to Mills, who once again stated that Ward was paranoid, suspicious and uncooperative. Mills was also concerned that D.W. "may not receive proper medical attention under her parents' care."

On October 21, 1999, Murphy filed a motion for temporary custody and a neglect petition in the Connecticut superior court for juvenile matters. Murphy also filed an affidavit and summary of facts reciting the various facts underlying the motion and the neglect petition. The affidavit stated that Kilchevsky had warned that the child should be medically treated because her conditions could lead to serious injury if not treated. However, the affidavit also indicated that the child had been examined at a hospital after being removed from the home on October 18, 1999, and that the examination indicated that jaundice and weight loss were no longer a concern. The affidavit also recited the various reports Murphy had received with regard to both Ward's and Maruscsak's mental conditions and the impact such conditions may have on their ability to care for the infant child. In addition, the affidavit indicated that Ward had been uncooperative in his dealings with various agencies.

On October 21, 1999, a Connecticut superior court granted the motion for an order of temporary custody. More specifically, the court concluded that based on the submitted affidavit D.W. was in "immediate physical danger from her surroundings and that immediate removal from such surroundings is necessary to insure [her] safety...."

On November 3, 1999, the Connecticut superior court held an evidentiary hearing and heard argument on the order for temporary custody. Following that hearing, the court vacated the order of temporary custody and returned D.W. to Ward's custody. Specifically, the court concluded that "based on a fair preponderance of the evidence," "the court is not convinced that the child is in immediate physical danger from the surroundings in ... Ward's home." The court's order, however, was subject to Ward's compliance with various conditions, including: (1) that Ward cooperate with the DCF; (2) that he attend psychological and psychiatric counseling; and (3) that he insure that the child is properly supervised and cared for by an appropriate caretaker. On December 14, 1999, the DCF withdrew the neglect petition.

This lawsuit followed.

STANDARD:

Summary judgment is appropriately granted when the evidentiary record shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In determining whether the record presents genuine issues for trial, the court must view all inferences and ambiguities in a light most favorable to the non-moving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991). A plaintiff raises a genuine issue of material fact if "the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Rule 56 "provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims... [and] it should be interpreted in a way that allows it to accomplish this purpose." Celotex v. Catrett, 477 U.S. 317, 323-324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

DISCUSSION:

1. Federal Constitutional Claims:

A. Causes of Action against the Defendants in their Individual Capacities

The individual defendants first contend that they are entitled to qualified immunity with regard to the causes of action alleging a constitutional violation brought pursuant to 42 U.S.C. § 1983,^[4] which seek monetary damages.

I. Procedural Due Process:

The defendants contend that they are entitled to summary judgment with regard to the procedural due process cause of action brought pursuant to 42 U.S.C. § 1983 because they are immune from suit pursuant to the doctrine of qualified immunity. Specifically, the defendants maintain that the removal of D.W. was objectively reasonable.

The plaintiff responds that the defendants are not entitled to qualified immunity because they "offer[ ] no objective evidence of abuse or neglect...." Specifically, the plaintiff maintains that the defendants "concerns and characterizations are merely speculative of some future abuse or neglect and speculation about the abilities of parents with mental disabilities."

"[Q]ualified immunity, ... shields a government official acting in an official capacity from suit for damages under § 1983 unless the official violated clearly established rights of which an objectively reasonable official would have known." Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 358 (2d Cir.2004) (internal quotation marks omitted; citation omitted). The relevant test for whether qualified immunity applies requires a three step inquiry:

First, [the court] must determine whether plaintiff has alleged a violation of a constitutional right. Then [the court] must consider if the violated right was clearly established at the time of the conduct.... Finally, if plaintiff had a clearly established, constitutionally protected right that was violated by the [defendants], [the plaintiff] must demonstrate that defendants' actions were not objectively reasonable.... This three step inquiry should typically be done in sequential order.... Defendants may benefit from qualified immunity if the plaintiff is unable to establish any of these three steps.

Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211-12 (2d Cir.2003) (internal citations omitted).

With regard to the first step, the plaintiff has alleged a constitutional violation. Specifically, the plaintiff alleges that the defendants improperly deprived him of the custody of his child without court intervention and that there was no emergency necessitating such action. These allegations are sufficient. See Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999) (parents "have a constitutionally protected interest in the ... custody ... of their children," which, absent an emergency, requires some form of due process, "ordinarily a court proceeding resulting in an order permitting removal," before the parents may be deprived of the custody of their children). In addition, with regard to the second step of the qualified immunity analysis, there is apparently no dispute that this right was established at the time the DCF took custody of D.W. See Tenenbaum v. Williams, 193 F.3d 581, 596 (2d Cir.1999) (noting that before January 1990, "it was established as a general matter that ``except where emergency circumstances exist' a parent ``cannot be deprived' of the custody of his child or her child ``without due process generally in the form of a predeprivation hearing'").

The relevant qualified immunity inquiry therefore is whether the defendants' actions were objectively reasonable. In this regard, and with particular relevance to the facts at hand, the Second Circuit has stated that:

[P]rotective services caseworkers [must] choose between difficult alternatives.... If they err in interrupting parental custody, they may be accused of infringing the parents' constitutional rights. If they err in not removing the child, they risk injury to the child and may be accused of infringing the child's rights. It is precisely the function of qualified immunity to protect state officials in choosing between such alternatives, provided that there is an objectively reasonable basis for their decision, whichever way they make it.

Tenenbaum v. Williams, 193 F.3d 581, 596-97 (2d Cir.1999) (quoting van Emrik v. Chemung County Dept. of Social Services, 911 F.2d 863, 866 (2d Cir.1990)). More specifically, qualified immunity provides "substantial protection for caseworkers," provided "it was objectively reasonable for them to believe that their acts" would not violate clearly established rights. Tenenbaum v. Williams, 193 F.3d 581, 596 (2d Cir.1999) (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995)). The test of "objective reasonableness" is satisfied if "officers of reasonable competence could disagree on the legality of the defendant's actions." Tenenbaum v. Williams, 193 F.3d 581, 596-97 (2d Cir.1999) (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995)) (internal quotation marks omitted). "In applying a reasonableness standard in the abuse context, courts must be especially sensitive to the pressurized circumstances routinely confronting case workers, circumstances in which decisions between ``difficult alternatives' often need to be made on the basis of limited or conflicting information." Wilkinson ex rel Wilkinson v. Russell, 182 F.3d 89, 105 (2d Cir.1999) (quoting van Emrik v. Chemung County Dept. of Social Services, 911 F.2d 863, 866 (2d Cir.1990)).

In the instant matter, the defendants maintain that, regardless of the plaintiff's allegations, the removal of D.W. on October 18, 1999 was objectively reasonable because the circumstances surrounding the removal gave rise to an emergency. It is well settled that in "emergency circumstances, a child may be taken into custody by a responsible State official without court authorization or parental consent." Tenenbaum v. Williams, 193 F.3d 581, 594 (2d Cir.1999). However, "[i]f the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent." Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir.2003) (internal citations and quotation marks omitted). Nevertheless, the fact that a state official did not act immediately upon a report of abuse, "standing alone, proves nothing." Tenenbaum v. Williams, 193 F.3d 581, 595 (2d Cir.1999); see also Doe v. Connecticut Dep't of Child & Youth Services, 911 F.2d 868, 870 (2d Cir.1990) (concluding that delay of three days in acting on report of abuse did not deprive circumstances of emergency status). Rather, "[i]f at any time [the child] should have been removed for her protection and there was not then reasonably sufficient time to seek predeprivation judicial authorization, there [is] ..., as a matter of law, no violation of [the parents'] due process rights." Tenenbaum v. Williams, 193 F.3d 581, 595 (2d Cir.1999). Consequently, a delay between the report of imminent harm and the actual removal does not deprive the removal of emergent status, see Doe v. Connecticut Dep't of Child & Youth Services, 911 F.2d 868, 870 (2d Cir.1990), provided that it was objectively reasonable for the case workers to believe that an emergency existed at the time of removal, Tenenbaum v. Williams, 193 F.3d 581, 595 (2d Cir.1999).

Applying these principles, the court concludes that the defendants are entitled to qualified immunity inasmuch as it was objectively reasonable for the defendants to have concluded that emergency circumstances necessitated D.W.'s removal on October 18, 1999. It is undisputed that at the time of D.W.'s removal, the defendants had been informed by D.W.'s physician, Kilchevsky, that D.W. was suffering from jaundice and weight loss. The consequences of untreated jaundice, according to Kilchevsky, are indeed grave. Specifically, as the defendants knew, if untreated, jaundice can lead to brain injury and even death. In fact, Kilchevsky informed the defendants that "it was imperative that [D.W.] be medically seen and that DCF remain involved to ensure the appropriate follow up" and that D.W.'s condition required that she be seen within three days of the October 10, 1999 visit. (Emphasis added.) Kilchevsky made this statement even after D.W. had been examined by the visiting nurse on October 10, 1999. Thus, based on the medical advice and diagnosis of Kilchevsky, it was objectively reasonable for the defendants to conclude that D.W. was at grave medical risk on October 18, 1999, some eight days after the earlier visit, if her condition went untreated. Cf. Wilkinson ex rel Wilkinson v. Russell, 182 F.3d 89, 105-106 (2d Cir.1999) (concluding that social workers had reasonable cause to believe abuse was occurring when they relied, in part, on doctor's assessment that child was being abused)

Ward's behavior did nothing to quell the defendants' fears that the child was at risk. Ward's refusal to state whether the child had seen a doctor after the October 10, 1999 visit compounded the urgency of the situation because the defendants were therefore unable to confirm whether the child had been medically treated as Kilchevsky believed necessary. Further, Ward's refusal to cooperate and refusal to accompany the DCF workers to the hospital came in the face of his knowledge that medical personnel believed that his child was in danger. Specifically, Kilchevsky had told Ward at the time of discharge that D.W. should be seen by medical personnel because of her medical condition. In addition, it is undisputed that DCF showed Ward the 96-hour hold, and that the 96-hour hold stated that the "Danbury Hospital expressed serious concerns (medical) with respect to ... [D.W.]." In the face of this information, Ward nevertheless refused to accept the medical aid offered for his daughter. There was therefore limited reason to believe that child would receive the necessary aid if she remained in Ward's custody.^[5]

Further, on October 21, 1999, a Connecticut superior court granted the DCF's motion for an order of temporary custody finding that D.W. was in "immediate physical danger from [her] surroundings and that immediate removal from such surroundings is necessary to insure [her] safety." Although this order was signed three days after the DCF removed D.W. from the home, it was based on similar facts relied on by the individual defendants at the time of D.W.'s removal. This supports the conclusion that the DCF's actions were objectively reasonable. See Taylor v. Evans, 72 F. Supp. 2d 298, 307 (S.D.N.Y.1999) (subsequent court order finding that removal is necessary based on "imminent" danger to children supported social worker's contention that there was objectively reasonable basis for belief that emergency existed). Indeed, the evidence relied on by the superior court was arguably less "urgent" than that relied on by the defendants at the time of removal. Specifically, with regard to D.W.'s medical condition, the affidavit supplied to the superior court stated that the child had been examined by a doctor and that the doctor "reported that the jaundice was no longer a concern and that the child was gaining weight appropriately." Arguably, therefore, the medical condition of the child at the time of the superior court's decision was not as imminent as at the time of removal.^[6] Based on these undisputed facts, and in light of the superior court's conclusion on arguably less urgent facts, "caseworkers ``of reasonable competence could disagree' on the legality of [the] defendants' actions." Tenenbaum v. Williams, 193 F.3d 581, 605 (2d Cir.1999) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)). Consequently, the court concludes that the defendants actions in removing D.W. based on the belief that an emergency existed were objectively reasonable and thus they are entitled to qualified immunity.

The plaintiff maintains, however, that the defendants fabricated the allegations regarding the D.W.'s medical state. Specifically, the plaintiff contends that "Murphy, Lima and Arnone had to fabricate that [D.W.] was currently jaundiced and losing weight because they already knew that the police would not help them enter [the plaintiff's apartment] for a non-emergency...." The plaintiff's argument is not persuasive. Put simply, the plaintiff has failed to adduce any evidence that at the time of removal the defendants fabricated the allegations of jaundice and weight loss or otherwise ignored overwhelming exculpatory information. Indeed, the very opposite is true. More specifically, the defendants have submitted sworn affidavits indicating that they had reports from D.W.'s physician that the child was jaundiced when released from the hospital and that untreated jaundice can lead to severe injuries. Although the child had been examined on October 10, 1999, the child's physician renewed his concern that the child should be examined again within three days. In the face of this evidence, the plaintiff presents only conclusory allegations that the defendants fabricated a medical emergency; such conclusory allegations are insufficient. See Kia P. v. McIntyre, 235 F.3d 749, 763 (2d Cir.2000) ("[a] plaintiff may not survive a properly asserted motion for summary judgment on the basis of conclusory allegations alone").

The court therefore concludes that the defendants are entitled to qualified immunity with regard to the cause of action alleging a deprivation of the plaintiff's due process rights.^[7]

II. Fourth Amendment Causes of Action:

The individual defendants next maintain that, to the extent that the plaintiff has alleged a violation of his fourth amendment rights, they are entitled to qualified immunity in connection with this claim. Specifically, the defendants maintain that the plaintiff has failed to allege a constitutional violation because "there is no constitutional right to be free of a child welfare investigation."

The plaintiff does not specifically respond to this argument.

The plaintiff's fourth amendment claims apparently arise out of the defendants entry into his home on October 18, 1999. More specifically, the plaintiff alleges that the DCF entry into his home was a warrantless search in violation of his fourth amendment rights.^[8] "A warrantless search is per se unreasonable under the Fourth Amendment, absent certain exceptions to the warrant requirement." Koch v. Town of Brattleboro, 287 F.3d 162, 167 (2d Cir.2002). One exception to the warrant requirement is where a party consents to entry into his premises. Koch v. Town of Brattleboro, 287 F.3d 162, 167 (2d Cir.2002). Another exception is where emergency or exigent circumstances necessitate a warrantless entry. Tenenbaum v. Williams, 193 F.3d 581, 604 (2d Cir.1999).

Applying these principles, the court concludes that the defendants are entitled to summary judgment with regard to the plaintiff's fourth amendment claims. It is undisputed that the plaintiff granted the defendants entry into his home. In other words, the plaintiff consented to the defendant's entry into his home. There is no allegation that the defendants coerced this consent. Because the undisputed facts therefore establish that the plaintiff consented to the entry into his home, the plaintiff has failed to raise an issue of fact with regard to his fourth amendment claim. On this ground, therefore, summary judgment is warranted.

Further, even if the court were to assume that the plaintiff did not consent to the defendants' entry, the defendants are nevertheless entitled to qualified immunity on the plaintiff's claim. Specifically, the defendants' alleged warrantless entry was objectively reasonable inasmuch as they believed that the situation presented exigent circumstances. In the child welfare context, the question of whether a situation presents exigent circumstances sufficient to render a warrantless entry reasonable presents the same inquiry applicable to the issue of whether an emergency removal of a minor child passes procedural due process scrutiny. See Tenenbaum v. Williams, 193 F.3d 581, 604 (2d Cir.1999). Consequently, because the defendants are entitled to qualified immunity on the plaintiff's due process cause of action, and because the fourth amendment inquiry presents the same issue, the court likewise concludes that the defendants are entitled to qualified immunity on the plaintiff's fourth amendment cause of action because, based on the undisputed facts, it was objectively reasonable for them to conclude that exigent circumstances justified a warrantless entry. The defendants' motion for summary judgment with regard to the plaintiff's fourth amendment causes of action is therefore granted.

III. Fifth and Sixth Amendment Causes of Action:

The individual defendants next contend that judgment should be granted in their favor with regard to the causes of action alleging violations of the Fifth and Sixth Amendment of the United States Constitution because the defendants are entitled to qualified immunity. Specifically, the defendants maintain that they are entitled to qualified immunity because the plaintiff has failed to allege a constitutional violation.

The plaintiff responds that "all DCF investigators [are] criminal law enforcement investigators, [and] all information gathered from civil child protection investigations [is] turned over to criminal investigators to use in ... prosecuting child abuse and neglect [cases]." Thus, according to the plaintiff, "the court should determine whether DCF investigators ... were required to [: (1)] inform [the plaintiff of his] right to remain silent on ... [October 10, 1999] and [October 18, 1999; and (2)] inform [the plaintiff of his] right to have an attorney present during questioning...."

If a plaintiff fails to allege conduct that would violate a constitutional right, the officials are entitled to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). In addition, regardless of whether the plaintiff has alleged a constitutional violation, if the constitutional right in question was not clearly established at the time the officials acted, the officials are entitled to qualified immunity. See, e.g., Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 361 (2d Cir.2004).

Applying these principles, the court concludes that the defendants are entitled to qualified immunity with regard to the plaintiff's fifth and sixth amendment causes of action because the plaintiff has failed to allege facts that give rise to a constitutional violation.^[9] The gravamen of the plaintiff's fifth amendment claim is that the defendants failed to advise him of his right to remain silent and his right to legal counsel when they came to his apartment on October 10, 1999 and October 18, 1999. Thus, the plaintiff apparently contends that, in the context of a DCF investigation, an individual has rights similar to those articulated in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See Miranda v. Arizona, 384 U.S. 436, 492, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (holding that an individual subjected to custodial interrogation must be advised of his right to counsel and right to silence). The plaintiff, however, has failed to provide any legal authority for the proposition that Miranda applies to DCF or similar agency investigations.^[10] Moreover, the court's research has found no case holding that Miranda applies in the context of such investigations. Nevertheless, even if the court were to assume that Miranda applied, the plaintiff's claim would nonetheless fail because "[t]he remedy for a Miranda violation is the exclusion from evidence of any ensuing self-incriminating statements.... The remedy is not a § 1983 action." Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir.1995), cert. denied, 516 U.S. 1174, 116 S. Ct. 1267, 134 L. Ed. 2d 214 (1996) (internal citations omitted and emphasis added). Consequently, the plaintiff's causes of action premised on the fifth amendment fail to allege a cause of action.

Likewise, the plaintiff's cause of action premised on the sixth amendment also fails. The plaintiff's sixth amendment cause of action alleges that the state should have provided him with an attorney when the DCF questioned him at his home on October 10, 1999 and October 18, 1999.^[11] Again, the plaintiff fails to provide any relevant authority for this purported right to counsel, and again the court's research indicates that there is no such right. More specifically, the sixth amendment right to counsel applies only to criminal proceedings. See Janvier v. United States, 793 F.2d 449, 451 (2d Cir.1986) ("the Sixth Amendment right to counsel attaches only to criminal proceedings"); cf. United States v. Cunningham, 672 F.2d 1064, 1071 (2d Cir.1982). The investigation at issue in this case was in connection with issues surrounding the alleged neglect, care and ultimate custody of the defendant's daughter. Such issues are civil juvenile matters, see Conn. Gen.Stat. § 46b-121(a), and are not criminal in nature. The only court proceedings instituted against the plaintiff related to the care and custody of his child. No criminal charges were ever filed against the defendant. Therefore, inasmuch as the investigations at issue were civil in nature and because there never was a criminal prosecution, no sixth amendment rights could attach. See Janvier v. United States, 793 F.2d 449, 451 (2d Cir.1986). The plaintiff therefore has failed to allege a constitutional violation of his sixth amendment rights.^[12]

Judgment is therefore granted in favor of the individual defendants with regard to the causes of action brought pursuant to the fifth and sixth amendment.

B. Causes of Action Against the DCF and the Individual Defendants in their Official Capacities

The individual defendants next contend that they are entitled to summary judgment with regard to any causes of action alleging a constitutional violation, which are brought against them in there official capacity because the Eleventh Amendment to the United States Constitution bars such claims. Similarly, the DCF also contends that the eleventh amendment bars the causes of action asserted against the DCF.

The plaintiff does not respond to this argument.

It is well settled that the Eleventh Amendment to the United States constitution bars causes of action for money damages brought pursuant to 42 U.S.C. § 1983 against states and individual defendants in their official capacity. See, e.g., Board of Educ. of Pawling Central School Dist. v. Schutz, 290 F.3d 476, 480 (2d Cir.2002) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)). In addition, the eleventh amendment also generally bars causes of actions for damages asserted against state agencies. See Santiago v. New York State Dept. Correctional Serv., 945 F.2d 25, 28 n. 1 (2d Cir.1991) ("[a]gencies of the state ... are entitled to assert the state's eleventh amendment immunity where, for practical purposes, the agency is the alter ego of the state and the state is the real party in interest").

Pursuant to these principles, the court concludes that the causes of action asserted against the individual defendants in their official capacity, which seek money damages, are barred by the eleventh amendment. See Carroll v. Ragaglia, 292 F. Supp. 2d 324, 342 (D.Conn.2003) (dismissing claims against individual defendants in their official capacity pursuant to Eleventh Amendment). Likewise, the court also concludes that the causes of action that seek monetary damages, which are asserted against the DCF, a state agency, are barred by the eleventh amendment. See Burgos v. Department of Children & Families, 83 F. Supp. 2d 313, 316 (D.Conn.2000) (cause of action seeking monetary damages asserted against DCF barred by the eleventh amendment).^[13] Judgment is therefore granted to the defendants with regard to the federal constitutional causes of action brought pursuant to 42 U.S.C. § 1983 and asserted against the DCF and the individual defendants in their official capacity.

C. Prospective Injunctive Relief

The defendants next contend that judgment should be granted in their favor with regard to the plaintiff's claims for prospective injunctive relief because the plaintiff lacks standing to assert such claims. Specifically, the defendants contend that the plaintiff lacks standing because " the possibility of future abuse is ... speculative."

The plaintiff does not respond this argument.

"It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshhold requirement imposed by Article III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). This requirement, known as constitutional standing, requires the plaintiff to allege "that he ``has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct and the injury or threat of injury must be both ``real and immediate,' not ``conjectural' or ``hypothetical.'" City of Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (quoting Golden v. Zwickler, 394 U.S. 103, 109-110, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969)).

Thus, in City of Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983), the United States Supreme Court held that the plaintiff lacked standing to pursue prospective injunctive relief because he had failed to allege a real and immediate threat of harm at the hands of the defendant. In Lyons, Los Angeles police department personnel had allegedly administered an unlawful choke hold on the plaintiff. City of Los Angeles v. Lyons, 461 U.S. 95, 99, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). The plaintiff brought suit seeking, inter alia, an injunction barring the Los Angeles Police Department from using the hold in the future. City of Los Angeles v. Lyons, 461 U.S. 95, 99, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). The Supreme Court concluded that the plaintiff lacked standing to seek prospective injunctive relief because there was no allegation that he was likely to suffer future injury from the use of the choke hold. Moreover, the Court rejected the plaintiff's contention that the use of the choke hold in the past was sufficient to establish standing. City of Los Angeles v. Lyons, 461 U.S. 95, 106, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983).

Applying these principles, the court concludes that the plaintiff lacks standing to seek injunctive relief. The plaintiffs' complaint is wholly devoid of any allegation that he will likely be subject to future DCF action and thus "immediately in danger of sustaining some direct injury." City of Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). There is no allegation that the DCF is currently investigating Ward or that such an investigation is imminent. The only arguable evidence in support of standing is the fact that the plaintiff has, as alleged in the complaint, dealt with the DCF in the past. Nevertheless, City of Los Angeles v. Lyons, 461 U.S. 95, 106, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) makes clear that such evidence is insufficient. Therefore, the defendants' motion for summary judgment in connection with the causes of action that seek prospective injunctive relief is granted.

2. Causes of Action Brought Pursuant to the ADA

The defendants next contend that summary judgment should be granted in their favor with regard to the cause of action brought pursuant to the Americans with Disabilities Act ("ADA").

The complaint alleges that the DCF's actions were in violation of the ADA. Although the plaintiff has filed two amended complaints, the basis of the plaintiff's ADA claim against the DCF remains, at best, unclear. Apparently, the plaintiff maintains that, insofar as the DCF considered his mental disability in determining whether D.W. should remain in his home, it violated the ADA. Consideration of one's disability, standing alone, is not a violation of the ADA. Cf. Thompson v. Davis, 295 F.3d 890, 898 n. 4 (9th Cir.2002) (permissible under the ADA for parole board to consider inmate's disability in making individualized determination as to whether person is qualified for parole); Adams v. Monroe County Department of Social Services, 21 F. Supp. 2d 235, 240-41 (W.D.N.Y.1998) (permissible for foster child placement agency to consider plaintiff's disability in determining whether child should be placed in plaintiff's home). Rather, the question is whether the DCF discriminated against the plaintiff because of his disability. The plaintiff has failed to raise an issue of fact in this regard. Judgment in favor of the DCF is therefore granted with respect to the cause of action alleging a violation of the ADA.

3. State Law Causes of Action

Having granted the defendants' motion for summary judgment on the federal law causes of action, the court declines to exercise its discretion to consider plaintiff's state law causes of action. See Carnegie Mellon v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988); accord In re Porges, 44 F.3d 159, 162 (2d Cir.1995) (stating that court is "not required to dismiss [plaintiff's] state claims [but] dismissal of such claims is the general rule"). The court therefore dismisses the causes of action brought pursuant to Connecticut law without prejudice.

CONCLUSION:

For the foregoing reasons, the motion for summary judgment (document no. 152) is GRANTED.

NOTES

[1] The plaintiff's complaint relates to matters that occurred incident to an investigation regarding the alleged neglect of a minor child. Generally, records relating to such matters are sealed and the identity of the minor child is kept confidential. See Connecticut Practice Book § 35-5. Accordingly, the court shall refer to the minor child by using her initials.

[2] Kilchevsky states that such a referral was his "practice with all such infants, and is in accordance with American Academy of Pediatrics guidelines."

[3] Conn. Gen.Stat. 17a-101g(c) provides, in relevant part:

If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian.

[4] Section 1983 provides a "cause of action to individuals who have been deprived by government officials acting under color of law ``of any rights, privileges, or immunities secured by the Constitution.'" Patel v. Searles, 305 F.3d 130, 135 (2d Cir.2002) (quoting 42 U.S.C. § 1983).

[5] Ward contends that his behavior is explained by the fact that D.W. had been seen by a physician on October 14, 1999, and that she had been declared in good health. The defendants, however, were unaware of this fact at the time of removal.

[6] The plaintiff contends that after a contested evidentiary hearing, the superior court ultimately reversed its decision and therefore the superior court's initial conclusion that the child was at risk of harm is irrelevant. This contention, however, misses the point. The issue is whether, at the time of removal, it was objectively reasonable for the defendants to conclude that their acts were constitutional. Whether the defendants' actions were reasonable in light of the evidence adduced after a contested evidentiary hearing is irrelevant. Cf. Maryland v. Garrison, 480 U.S. 79, 85, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987) ("[t]hose items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued").

[7] The plaintiff also apparently contends that the defendants violated his right to procedural due process by filing the motion for temporary custody and the neglect petition. The investigation and institution of proceedings in connection with alleged child abuse or neglect pass constitutional muster "provided simply that case workers have a reasonable basis for their findings of abuse." Wilkinson ex rel Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir.1999). In this case, the defendants had such a reasonable basis. For example, based on Murphy's investigation it became apparent that the child spent the day with Maruscak who — according to various individuals — likely lacked the ability to determine whether the child was in medical danger. Therefore the plaintiff has failed to allege a constitutional violation in connection with the investigation and subsequent institution of neglect proceedings.

[8] The plaintiff does not allege that the removal and subsequent custody of D.W. was an unlawful seizure in violation of D.W.'s rights. Moreover, inasmuch as the plaintiff does not bring this action on behalf of his minor daughter, the plaintiff is precluded from maintaining such a claim. See Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969) ("Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted").

[9] The plaintiff does not, in fact, invoke the fifth or sixth amendment in his complaint or motion papers, but speaks more generally regarding his right to silence and counsel.

[10] The plaintiff relies on Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981), In Re K.L.J., 813 P.2d 276 (Alaska 1991), and In re Ariel G., 153 Md.App. 698, 837 A.2d 1044 (2003), cert. granted, 380 Md. 617, 846 A.2d 401 (2004), in support of his contention that the defendants were required inform him of his right to silence and right to counsel during its investigation of the reported child abuse and neglect. None of these cases support such a proposition.

[11] To be sure, the plaintiff does not allege that he was denied counsel at the hearings to determine custody.

[12] Even if the court were to assume a constitutional violation, the defendants are entitled to qualified immunity because the specific rights alleged by the plaintiff are not clearly established. See, e.g., Tenenbaum v. Williams, 193 F.3d 581, 596 (2d Cir.1999) (defendants entitled to qualified immunity because rights at issue were not clearly defined). Indeed, the plaintiff implicitly concedes as much in his response to the motion to summary judgment wherein he requests that the court "determine whether the DCF investigators ... were required to inform [him of his right to remain silent and right to counsel.]" (Emphasis Added.)

[13] There are exceptions to the applicability of the eleventh amendment. Specifically, if the state waives its immunity, see generally Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974), or if congress abrogates such immunity, see generally Quern v. Jordan, 440 U.S. 332, 341, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979), the eleventh amendment is inapplicable. The plaintiff has not alleged that such circumstances exist in this case.