KENIFIC v. OSWEGO COUNTY

ated by reference into the body of Plaintiffs' Amended Complaint. See Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000); Int'l Audiotext Network, Inc. v. Am. Tel. Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995); Hardy v. Diaz, 08-CV-1352, 2010 WL 1633379, at *3 (N.D.N.Y. March 30, 2010) (Baxter, M.J.); Edward B. Beharry Co., Ltd. v. Bedessee Imports, 09-CV-0077, 2010 WL 1223590, at *6 (E.D.N.Y. March 23, 2010); Alessi v. Monroe County, 07-CV-6163, 2010 WL 161488, at *3 (W.D.N.Y. Jan. 13, 2010); cf. Fed.R.Civ.P. 10(c).

In the alternative, the Court dismisses this claim as barred by the applicable statute of limitations, for the reasons stated by Defendants in their memoranda of law. (Dkt. No. 19, Attach. 3, at 7-8, 21 [attaching pages "5," "6," and "19" of the Oswego County Defs.' Memo. of Law]; Dkt. No. 20, Attach 8, at 10, 15, 16 [attaching pages "7," "12" and "13" of the Onondaga County Defs.' Memo. of Law]; Dkt. No. 26, at 6 [attaching page "3" of the Oswego County Defs.' Am. Memo. of Law].) As stated above in Part I.C. of this Decision and Order, Plaintiffs have chosen not to respond to this argument. ( See generally Dkt. No. 29, Attach. 1 [Plfs.' Memo of Law].) After carefully considering this aspect of Defendants' unopposed motions, the Court is satisfied that Defendants have met their modest threshold burden of establishing entitlement to dismissal of this claim based on this ground. The Court notes that this aspect of Defendants' motions would survive even the heightened scrutiny appropriate on a contested motion.

In this District, a movant's burden with regard to an unopposed motion is lightened such that, in order to succeed, the movant need only show its entitlement to the relief requested in its motion, which has appropriately been characterized as a "modest" burden. See N.D.N.Y. L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein. . . ."); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1 n. 1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases).

Finally, the Court also alternatively dismisses this claim based on the immunity afforded to Defendants by New York Social Services Law § 419, for the reasons stated by the Oswego County Defendants in their memoranda of law, and also for the reason that the Court finds that Plaintiffs have alleged no facts plausibly suggesting that Defendants did not act in good faith. In so doing, the Court rejects Plaintiffs' argument that Section 419 protects only the reporters of suspected child abuse, and not the investigators of such abuse. (Dkt. No. 29, Attach. 1, at 3 [Plfs.' Memo. of Law].) The case cited by Plaintiffs — Doe v. County of Suffolk — stands for a proposition opposite to the proposition for which they cite it. See Doe v. County of Suffolk, 494 F. Supp. 179, 182-83 (E.D.N.Y. 1980) (recognizing that Section 419 immunity applies to social worker who had received and investigated a report of suspected child abuse).

(Dkt. No. 19, Attach. 3, at 9-11 [attaching pages "7," "8," and "9" of the Oswego County Defs.' Memo. of Law]; Dkt. No. 26, at 6 [attaching page "3" of the Oswego County Defs.' Am. Memo. of Law]; Dkt. No. 30, Attach 2, at 8-9 [attaching pages "4" and "5" of the Oswego County Defs.' Reply Memo. of Law].)

See also Mosher-Simmons v. County of Allegany, 94-CV-0374, 1997 WL 662512, at *6 (W.D.N.Y. Oct. 8, 1997) ("The statutory immunity under the New York Social Services Law is not limited to those making the initial report of child abuse, but also applies to `those participating in a number of subsequent investigative and supportive activities mandated by the statute.'") (quoting William M. v. Laub, 539 N.Y.S.2d 970, 971 [2d Dep't 1989]).

For each of these reasons, the Court dismisses Plaintiffs' First Cause of Action for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Indeed, the Court finds that the claim asserted in this Cause of Action is so without an arguable basis in fact or law as to be frivolous.

2. Plaintiffs' Second Cause of Action (Claiming that All Defendants Denied Plaintiffs Their Right to Substantive and Procedural Due Process Under Fourteenth Amendment)

a. Claim of Denial of Right to Substantive Due Process Through Unconstitutional Investigation and Interference with Right to Raise Child Without Governmental Interference

"It has long been settled in this Circuit that a parent's interest in the custody of a child [is] a constitutionally protected liberty interest subject to due process protection." Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999) [internal quotation marks and citation omitted]). "To prevail on a claim that this right has been violated, plaintiffs must demonstrate that the government action was so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection." Sutton v. Tompkins County, 617 F. Supp.2d 84, 93 (N.D.N.Y. 2007) (Mordue, C.J.) [internal quotation marks and citation omitted]).

See also Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir. 1999) (noting that a family has, "in general terms, a substantive right under the Due Process Clause `to remain together without the coercive interference of the awesome power of the state'").

"In applying the `conscience-shocking' standard in the context of child abuse investigations and findings of abuse by state actors, courts have observed that parents' interest in family integrity is `counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.'" Sutton, 617 F. Supp.2d at 93 [internal quotation marks and citation omitted]). However, "[t]his competing interest, though compelling, is not so compelling as to derogate a parent's constitutional rights completely." Russell, 182 F.3d at 104. "The difficulty of balancing the weighty interests apparent in the abuse context . . . has prompted courts to impose few concrete restrictions on case workers, in exercising their discretion, short of these obvious extremes." Id.

See also Shapiro v. Kronfeld, 00-CV-6286, 2004 WL 2698889, at * 12 (S.D.N.Y. Nov. 24, 2004) (noting that "[t]he right to family integrity does not include a constitutional right to be free from child abuse investigations").

"This Circuit has adopted a standard governing case workers which reflects the recognized need for unusual deference in the abuse investigation context." Id. "An investigation passes constitutional muster provided simply that case workers have a `reasonable basis' for their findings of abuse." Id. [citation 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." Id. at 105 [citation omitted]. "[A] mere failure to meet local or professional standards, without more, should not generally be elevated to the status of constitutional violation." Id. at 106 [citation omitted]. "As a result, even a faulty investigation does not necessarily rise to the level of an unconstitutional investigation." Id.

This conscious-shocking requirement constitutes one of the elements necessary to state a claim for a violation of the Fourteenth Amendment under 42 U.S.C. § 1983. Among the other elements (which include the fact that the defendants were acting under the color of state law and the fact that defendants' conduct caused an injury to the plaintiff) is the requirement that, when they acted, defendants possessed a state of mind more blameworthy than carelessness or negligence. Specifically, Defendants must have possessed a state of mind that rose to the level of intent or deliberate indifference — a state of mind akin to criminal recklessness.

See Daniels v. Williams, 474 U.S. 327, 331-35 (1986) (acknowledging that "injuries inflicted by governmental negligence are not addressed by the United States Constitution" and rejecting Section 1983 claim under Fourteenth Amendment based on alleged negligence); Hudson v. Palmer, 468 U.S. 517, 531 (1984) ("[T]he Due Process Clause of the Fourteenth Amendment is not violated when a state employee negligently deprives an individual of property. . . ."); Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) ("In order to establish a violation of a right to substantive due process, a plaintiff must demonstrate not only government action but also that the government action was `so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.' . . . [T]he Fourteenth Amendment is not a `font of tort law.' . . . It does not provide a comprehensive scheme for determining the propriety of official conduct or render all official misconduct actionable. . . . `[N]egligently inflicted harm is categorically beneath the threshold of constitutional due process.'") [citations omitted]; Riddick v. Modeny, 250 F. App'x 482, 483 (3d Cir. 2007) ("The protections afforded prisoners by the Due Process Clause of the Fourteenth Amendment are not triggered by the mere negligence of prison officials.").

Farmer v. Brennan, 511 U.S. 825, 827 (1994) ("[S]ubjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the test for "deliberate indifference" under the Eighth Amendment."); Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) ("The required state of mind [for a deliberate indifference claim under the Eighth Amendment], equivalent to criminal recklessness, is that the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists; and he must also draw the inference.") [internal quotation marks and citations omitted]; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) ("The subjective element requires a state of mind that is the equivalent of criminal recklessness. . . .") [citation omitted]; accord, Koehl v. Greene, 06-CV-0478, 2007 WL 2846905, at *17, n. 98 (N.D.N.Y. Sept. 26, 2007) (Kahn, J.), Richards v. Goord, 04-CV-1433, 2007 WL 201109, at *15, n. 124 (N.D.N.Y. Jan. 23, 2007) (Kahn, J.), Salaam v. Adams, 03-CV-0517, 2006 WL 2827687, at *10, n. 59 (N.D.N.Y. Sept. 29, 2006) (Kahn, J.).

Here, even when construed with the utmost of special leniency, Plaintiffs' substantive due process claim fails to assert a claim upon which relief can be granted. More specifically, Plaintiffs have failed to plead facts plausibly suggesting two of the elements necessary to state such a claim: (1) that Defendants' investigation and/or finding of abuse and neglect was so lacking in a reasonable basis as to be so conscious-shocking, arbitrary, or egregious; and (2) that Defendants possessed the requisite mental state — akin to criminal recklessness — when they conducted their investigation and/or rendered their finding of abuse and neglect.

With regard to the first missing element (i.e., that Defendants' investigation and/or finding of abuse and neglect was so lacking in a reasonable basis as to be so conscious-shocking, arbitrary, or egregious), contrary to pleading facts plausibly suggesting the absence of a reasonable basis for Defendants' investigation and/or finding of abuse, Plaintiffs' Amended Complaint actually pleads facts plausibly suggesting that Defendants' investigation and finding of abuse were supported by a reasonable basis. Specifically, as stated above in Part III.B.1. of this Decision and Order, Plaintiffs allege that the Oswego County Defendants found that the report in question was "indicated" based on hearsay allegations that Plaintiff Kenific was intoxicated and therefore incapable of providing adequate guardianship of his child. (Dkt. No. 21, at ¶ 56.) Hearsay may constitute the credible evidence required to support a finding that a report of child abuse and neglect was "indicated" pursuant to N.Y. Soc. Servs. Law § 412-as long as the hearsay is credible. While Plaintiffs allege conclusorily that those hearsay allegations were "false" and "without any basis in fact," Plaintiffs allege no facts plausibly suggesting those hearsay allegations were not credible. ( See generally Dkt. No. 1.)

Similarly, Plaintiffs have alleged no facts plausibly suggesting that one or more of the Defendants removed Plaintiff Kenific's child from his custody. ( See generally Dkt. No. 21.) The closest Plaintiffs come to making such a factual allegation is when they allege (vaguely) that one or more unidentified Defendants (1) "threaten[ed] [Plaintiff Kenific] with criminal charges if he did not relinquish custody of said child," and (2) "interfere[d] with [the psychiatric treatment and care of Defendant Kenific's child]." ( Id. at ¶¶ 32, 41.) With regard to the first allegation, to the extent Plaintiff Kenific implies that the threat was communicated through the Oswego County Department of Social Services' letter to Plaintiff Kenific of November 30, 2005, the Court finds that the letter in fact contains no such threat. ( Id. at ¶ 32; Dkt. No. 19, Attach. 2, at 13-14 [Ex. C to Haynes Affid.].) Moreover, to the extent Plaintiff Kenific implies that the threat was communicated at some other time, no facts are alleged plausibly suggesting (1) when, where, how and by whom the threat was made, (2) that the threat was of such a nature, and/or was made in such a way, as to chill the rights of a reasonable person in Plaintiff Kenific's situation, and/or (3) that the threat ever caused Plaintiff Kenific to relinquish custody of his child. ( See generally Dkt. No. 21.) With regard to the second allegation, no facts are alleged plausibly suggesting that Defendants' alleged interference consisted (in whole or in part) of their removing Plaintiff Kenific's child from his custody. ( Id.)

For these reasons, the Court relies on the analogous case of Daniels v. Murphy, 06-CV-5841, 2007 WL 1965303, at *4 (E.D.N.Y. July 2, 2007) (dismissing both plaintiff's substantive due process claim and his procedural due process claim because he did not allege that a state actor removed a child from his custody) [internal quotation marks and citations omitted]. Moreover, the Court finds distinguishable the case of Southerland v. Giuliani, which involved a situation in which a municipal agency had seized the plaintiff's children without providing a proper hearing and without a reasonable basis for the seizure. Southerland v. Giuliani, 4 F. App'x 33, 36 (2d Cir. 2001).

The Court notes that, even if Southerland were factually analogous to the current case, the Court would not rely on it for two reasons: (1) it was issued in an unpublished decision before January 1, 2007, and thus may not be relied upon for precedential value; (2) it was issued before the Supreme Court clarified the fair-notice pleading standard in Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1955 (2007), on May 21, 2007.

With regard to the second missing element (i.e., that Defendants possessed the requisite mental state — akin to criminal recklessness — when they conducted their investigation and/or rendered their finding of abuse and neglect), the Court finds that Plaintiffs' Amended Complaint fails to allege facts plausibly suggesting that Defendants acted with the sort of criminal recklessness or intent necessary for them to incur liability under 42 U.S.C. § 1983 and the Fourteenth Amendment, for reasons similar to those identified by the Court above at the end of Part III.B.1. of this Decision and Order.

For each of these reasons, the Court dismisses Plaintiffs' substantive due process claim for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).

b. Claim of Denial of Right to Procedural Due Process Through Violation of Right to Not Have Name and Reputation Harmed by False Report

The Supreme Court has stated that procedural due process claims are to be examined "in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989) [citations omitted].

With regard to the first step (i.e., whether there exists a liberty or property interest which has been interfered with by the State), the Supreme Court has held that damage to a person's reputation is not "by itself sufficient to invoke the procedural protection of the Due Process Clause." Paul v. Davis, 424 U.S. 693, 711-12 (1976). Rather, the Supreme Court has held, loss of reputation must be coupled with some other tangible element in order to rise to the level of a protectible liberty interest. Paul, 424 U.S. at 711-12. The Second Circuit has interpreted this holding to mean that "stigma plus" is required to establish such a constitutional deprivation. See Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994); Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir.), cert. denied, 493 U.S. 816 (1989).

As the Second Circuit has noted, "it is not entirely clear what the `plus' is." Valmonte, 18 F.3d at 1000 (citing Neu, 869 F.2d at 667). The Second Circuit has held that such a "plus" includes (1) one's deprivation of a property interest, (2) one's termination from governmental employment, (3) one's termination from quasi-governmental employment, and (4) one's inability to obtain a job with a child-care provider in New York State, who must (by operation of law) consult the New York State Central Register of Child Abuse and Maltreatment and, if an applicant's name is on that list, explain in writing the reasons that the provider is hiring the applicant. As for what other tangible element constitutes such a "plus," the Second Circuit has explained that the tangible element must consist of "a deprivation of some . . . legal right or status." Valmonte, 18 F.3d at 1000 (citing Neu, 869 F.2d at 667). While the precise scope of the term "some legal rights or status" remains somewhat unclear, it is clear that the term does not include the "deleterious effects" that normally flow from a sullied reputation, such as "the impact that defamation might have on [other] job prospects, . . . romantic aspirations, friendships, self-esteem, or any other typical consequence of a bad reputation." Id. at 1001.

Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004); Greenwood v. New York, Office of Mental Health, 163 F.3d 119, 124 (2d Cir. 1998) (citations omitted).

Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004); Valmonte, 18 F.3d at 1000 (citing Neu, 869 F.2d at 667).

Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 442-46 (2d Cir. 1980) (ruling that "plus" included termination from quasi-governmental employment); cf. Abramson v. Pataki, 278 F.3d 93, 103 (2d Cir. 2002) (rejecting argument that "plus" included failure to obtain quasi-governmental employment); Walentias v. Lipper, 862 F.2d 414, 420-21 (2d Cir. 1988) (ruling that it was not clearly established in 1984 that "plus" included failure to obtain governmental employment).

Valmonte, 18 F.3d at 1001 (citing Neu, 869 F.2d at 667).

See also Sadallah, 383 F.3d at 38 ("To prevail on a stigma plus claim, a plaintiff must show (1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights. . . . The state-imposed burden or alteration of status must be "in addition to the stigmatizing statement.") (internal quotation marks and citations omitted), Woe v. Spitzer, 571 F. Supp.2d 382, 387 (E.D.N.Y. 2008) ("[T]o show a liberty interest, Plaintiff must show more than the stigma attached to his inclusion on the sex offender registry. Specifically, he must show what has been referred to as `stigma plus,' i.e., stigma accompanied by the potential loss of rights under law.") (citation omitted).

See also Sadallah, 383 F.3d at 38 ("[D]eleterious effects flowing directly from a sullied reputation, standing alone, do not constitute a `plus' under the `stigma plus' doctrine.") (internal quotation marks and citation omitted).

Here, Plaintiffs do not allege facts plausibly suggesting what "legal right or status" they were deprived of (other than the right to not suffer defamation and the deleterious effects normally flowing from it) necessary to confer on them a liberty interest protected by the Fourteenth Amendment Procedural Due Process Clause. (Dkt. No. 21, ¶¶ 29-36.) For example, Plaintiffs allege no facts plausibly suggesting that either Plaintiff was terminated from, or failed to obtain, employment. ( See generally Dkt. No. 21.) Rather, Plaintiffs allege — vaguely and conclusorily — only that Defendants' defamation of Plaintiff Kenific "interfered with and deprived him of the right to raise his child and family relations." ( Id. at ¶ 32.) However, Plaintiffs allege no facts plausibly suggesting how the interference did this, for example, by causing Plaintiff Kenific to lose custody of his child. ( See generally Dkt. No. 21.) Indeed, the facts alleged by Plaintiffs plausibly suggest that the "interference" consisted only of "psychological harm, stress and anxiety, headaches, stomach aches, fear and dread, [and] damages to name and reputation." ( Id. at ¶¶ 27, 48.) This is not sufficient. Valmonte, 18 F.3d at 1001.

In any event, even if Plaintiffs have alleged facts plausibly suggesting what "legal right or status" they were deprived of (other than the right to not suffer defamation and the deleterious effects normally flowing from it), the Court would find that Plaintiffs have failed to allege facts plausibly suggesting that they enjoyed a protected liberty interest under the circumstances. This is because, generally, to do so, a plaintiff must allege facts plausibly suggesting the following: (1) a stigmatizing statement (i.e., a statement that is sufficiently derogatory to injure the plaintiff's reputation, that is capable of being proved false, and that he or she claims is false); (2) the public dissemination of the stigmatizing statement; and (3) a resulting tangible and material state-imposed deprivation or alteration of some legal right or status possessed by plaintiff (other than the right to not suffer defamation and the deleterious effects normally flowing from it). Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005) (citations omitted) [emphasis added]. Here, Plaintiffs do not allege facts plausibly suggesting that any stigmatizing statement was publicly disseminated by Defendants. Rather, Plaintiffs allege merely that, "[U]pon information and belief, [the Oswego County Department of Social Services' letters to Plaintiffs dated November 30, 2005] have been viewed and will be viewed and relayed to other persons further defaming the Plaintiffs. . . . [U]pon information and belief, [Defendants] will further disseminate [the statements in the letters] to third parties. . . ." (Dkt. No. 21, at ¶¶ 47, 48.) This sort of speculative allegation is not sufficient to render Plaintiffs' procedural due process claim plausible — especially given the fact that the letters in question (which are incorporated by reference into Plaintiffs' Amended Complaint) expressly state that the information regarding the report of abuse is subject to several confidentiality restrictions. (Dkt. No. 19, Attach. 2, at 13-14 [Ex. C to Haynes Affid.].)

See Gentile v. Wallen, 562 F.2d 193, 197-98 (2d Cir. 1977) (recognizing distinction between "publication" and "confidential communication with an authorized governmental agency").

Finally, even if Plaintiffs have alleged that they enjoyed a liberty interest that was interfered with by Defendants (thus satisfying the first step of stating a procedural due process claim), the Court would find that they have not satisfied the second step of stating such a claim (i.e., alleging facts plausibly suggesting that the procedures attendant upon that deprivation were constitutionally insufficient). This is because Plaintiffs allege no facts plausibly suggesting what procedural protections they were, or were not, afforded before they experienced the added tangible effect discussed above. The Court suspects this is true because, had they done so, Plaintiffs would have had to acknowledge that the report of inadequate guardianship by Plaintiff Kenific was later "unfounded" by the New York State Department of Social Services in March of 2006, suggesting that they were, in fact, afforded sufficient procedural protections. In any event, the reason for Plaintiffs' decision does not matter: their procedural due process claim, as articulated, is non-actionable.

For each of these reasons, the Court dismisses Plaintiffs' procedural due process claim for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).

3. Plaintiffs' Third Cause of Action (Claiming that the Oswego County Defendants Conspired with One Another to Violate Plaintiffs' Due Process Rights)

In their Amended Complaint, Plaintiffs do not allege facts plausibly suggesting whether they base their conspiracy claim on 42 U.S.C. § 1983 or 42 U.S.C. § 1985(3). (Dkt. No. 21, ¶¶ 37-43.) To the extent that Plaintiffs' base their conspiracy claim on 42 U.S.C. § 1985(3), that claim is dismissed: Plaintiffs have not set forth even conclusory allegations of racial or other invidious class-based animus prohibited by Section 1985(c), let alone any factual allegations plausibly suggesting such a claim. Hernandez v. Goord, 312 F. Supp.2d 537, 545, n. 4 (S.D.N.Y. 2004) (citing United Bhd. of Carpenters and Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29).

To the extent that Plaintiffs' base their conspiracy claim on 42 U.S.C. § 1983, Defendants have advanced legal arguments in support of their request for dismissal of this claim. (Dkt. No. 19, Attach. 3 at 19-20 [attaching pages "17" and "18" of Oswego County Defs.' Memo. of Law]; Dkt. No. 20, Attach. 8 at 7, 12, 17 [attaching pages "4," "9," and "17" of Onondaga County Defs.' Memo. of Law].) Furthermore, as stated above in Part I.C. of this Decision and Order, Plaintiffs have chosen not to respond to that argument. ( See generally Dkt. No. 29, Attach. 1 [Plfs.' Memo of Law].) After carefully considering this aspect of Defendants' unopposed motions, the Court is satisfied that Defendants have met their modest threshold burden of establishing entitlement to dismissal of Plaintiffs' conspiracy claim based on this ground. The Court notes that this aspect of Defendants' motions would survive even the heightened scrutiny appropriate on a contested motion.

See, supra, note 21 of this Decision and Order.

In order to survive a motion to dismiss his Section 1983 conspiracy claim, a plaintiff must allege facts plausibly suggesting the following three elements: (1) an agreement between two or more state actors; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages. Hernandez, 312 F. Supp.2d at 545-46 (citation omitted). A claim that fails to allege such facts fails as a matter of law. See, e.g., Fisk v. Letterman, 401 F. Supp.2d 362, 376 (S.D.N.Y. 2005) (noting that "[a] plaintiff is not required to list the place and date of defendants meetings and the summary of their conversations when he pleads conspiracy, . . . but the pleadings must present facts tending to show agreement and concerted action") (internal quotation marks and citations omitted).

Here, in asserting their conspiracy claim, Plaintiffs allege as follows: (1) "[t]he Defendants Oswego County Social Services and their agents did conspire to deprive the Plaintiffs of their rights under the United States Constitution by relying upon and using false information provided by the Onondaga County Department of Social Services and their agents, in attempting to and in fact depriving the Plaintiffs of their rights under the Fourteenth Amendment . . . "; (2) "[t]he Defendants and their agents knew or should have known that the Onondaga County Department of Social Services had a bias and conflict which interfered with their professional capacity to conduct and/or provide information for an investigation into allegations of child abuse"; (3) "[i]n spite of such knowledge, the Defendants relied upon, shared, and otherwise exploited false information to the detriment of the Plaintiffs and in making pre-judgments and failing to conduct an investigation free of gross negligence and reckless disregard concerning the allegations as made by the infant child and/or the infant child's mother, an employee of . . . the Onondaga County Department of Social Services"; (4) "[t]he Defendants knew or should have known the infant child was under the care of a psychiatrist and that he was admitted to CPEP by Plaintiff for treatment and care"; (5) "[t]he Defendants conspired to and did interfere with [the infant child's psychiatric] treatment and care [at CPEP] as deemed necessary by the Plaintiff Robert Kenific, Jr. in violation of his rights as a parent. . . . "; and (6) "[b]y providing and relying upon false and contrived information, the Defendants agreed to reach a finding of indicated abuse prior to completion of their `investigation.'" (Dkt. No. 21, at ¶¶ 38-42.)

As alleged, these facts do not plausibly suggest either (1) an agreement between two or more of the Oswego County Defendants or (2) a concerted act by the Oswego County Defendants to act to inflict an unconstitutional injury. Even when construed with the utmost of special leniency, Plaintiffs' Amended Complaint alleges (speculatively) only that the Oswego County Defendants must have reached an agreement because (1) they received some sort of "false information" provided by the Onondaga County Department of Social Services, (2) they knew "or should have known" that the Onondaga County Department of Social Services was plagued by a conflict of interest, and (3) based on the false information they received, they incorrectly found that the report of abuse was "indicated."

Moreover, the Amended Complaint also alleges the following facts: (1) the Onondaga County Department of Social Services referred the matter in question to the Oswego County Department of Social Services once the Onondaga County Department of Social Services learned of the alleged conflict of interest; and (2) the Oswego County Department of Social Services issued its finding that the report of abuse and neglect was "indicated" more than two months after being referred the matter in question, during which time it (purportedly) conducted an investigation. (Dkt. No. 21, ¶¶ 19, 21; Dkt. No. 19, Attach. 2, at 13-14 [Ex. C to Haynes Affid., incorporated by reference into Plfs.' Am. Compl.].) Finally, to the extent that the "false information" received by the Oswego County Department of Social Services was information that Plaintiff Kenific was, at some point, intoxicated such that he was incapable of providing adequate guardianship of his child, no facts are alleged plausibly suggesting that the Department knew or reasonably should have known that the information — which came from a non-party — was not credible. ( See Dkt. No. 21, ¶¶ 56-60.)

As a result, the facts alleged by Plaintiffs are far more consistent with innocent error as they are with intentional error, much less an agreement and concerted action to commit such an error. For these reasons, the Court dismisses Plaintiffs' Third Cause of Action for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).

4. Plaintiffs' Fourth Cause of Action (Claiming that Defendants Committed Defamation and Abuse of Process Against Plaintiffs)

In the interest of much-needed brevity, the Court will not recite the well-known elements of the New York State torts of defamation and abuse of process, and explain in detail the many ways Plaintiffs' Amended Complaint fails to allege facts plausibly suggesting those elements. Rather, the Court will simply note that, for the reasons set forth above in Parts III.B.1. and III.B.2.b. of this Decision and Order, the Court finds that Plaintiffs have not alleged facts plausibly suggesting that either (1) the statement in question (i.e., that the report of abuse by Plaintiff Kenific had been found to be "indicated") was in fact false, or (2) Defendants published that statement to a third party. Moreover, for the reasons set forth above in Part and III.B.1. of this Decision and Order, the Court finds that Plaintiffs have not alleged facts plausibly suggesting that either (1) Defendants acted with an intent to do harm without excuse or justification, or (2) Defendants used the process in a perverted manner to obtain a collateral objective.

In the alternative, the Court dismisses this claim as barred by the applicable statute of limitations, for the reasons stated by Defendants in their memoranda of law. (Dkt. No. 19, Attach. 3, at 7-8, 21 [attaching pages "5," "6," and "19" of the Oswego County Defs.' Memo. of Law]; Dkt. No. 20, Attach 8, at 10, 15, 16 [attaching pages "7," "12" and "13" of the Onondaga County Defs.' Memo. of Law]; Dkt. No. 26, at 10 [attaching page "7" of the Oswego County Defs.' Am. Memo. of Law].) As stated above in Part I.C. of this Decision and Order, Plaintiffs have chosen not to respond to this argument. ( See generally Dkt. No. 29, Attach. 1 [Plfs.' Memo of Law].) After carefully considering this aspect of Defendants' unopposed motions, the Court is satisfied that Defendants have met their modest threshold burden of establishing entitlement to dismissal of this claim based on this ground. The Court notes that this aspect of Defendants' motions would survive even the heightened scrutiny appropriate on a contested motion.

See, supra, note 21 of this Decision and Order.

Finally, the Court also alternatively dismisses this claim based on the immunity afforded to Defendants by New York Social Services Law § 419, for the reasons stated by the Oswego County Defendants in their memoranda of law, and also for the reason that the Court finds that Plaintiffs have alleged no facts plausibly suggesting that Defendants did not act in good faith.

See, supra, Part III.B.1. of this Decision and Order.

For each of these reasons, the Court dismisses Plaintiffs' Fourth Cause of Action for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).

5. Plaintiffs' Fifth Cause of Action (Claiming that the Oswego County Defendants Violated Plaintiff Kenific's Right to Equal Protection)

The Equal Protection Clause of the Fourteenth Amendment, which provides that "no State shall . . . deny to any person within its jurisdiction the equal protection of the laws" ( see U.S. Const. amend. XIV, § 1), "requires the government to treat all similarly situated individuals alike." Young v. Suffolk County, 09-CV-3325, 2010 WL 1424008, at *16 (E.D.N.Y. Apr. 9, 2010) (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439).

Ordinarily, "[t]o state a claim for an equal protection violation, [plaintiffs] must allege that a government actor intentionally discriminated against them on the basis of race, national origin or gender." Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999), overruled in part on other grounds by Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). However, "an individual not alleging invidious discrimination on the basis of membership in some group may nevertheless prevail on an equal protection claim under the `class of one' theory recognized by the Supreme Court in Willowbrook v. Olech, 528 U.S. 562 (2000)." Young, 2010 WL 1424008, at *16.

"Under a `class of one' equal protection claim, a plaintiff must allege that (1) `[she] has been intentionally treated differently from others similarly situated' and (2) `there is no rational basis for the difference in treatment.'" Id. (quoting Willowbrook, 528 U.S. at 564). "In order to state an equal protection violation under § 1983, `it is axiomatic that plaintiff must allege that similarly situated persons were treated differently.'" Id. (quoting Gagliardi v. Vill. of Pawling, 18 F.3d 188, 193 [2d Cir. 1994]).

Here, Defendants argue, in their memoranda of law, that this claim should be dismissed because it fails to allege facts plausibly suggesting that the different treatment they allegedly received (as compared to others who have been investigated for suspected child abuse or neglect) was motivated by any improper considerations or maliciousness, rather that being motivated by a legitimate basis. (Dkt. No. 26, at 10-12 [attaching pages "7," "8" and "9" of the Oswego County Defs.' Am. Memo. of Law]; Dkt. No. 28, at 1 [letter brief from Onondaga County Defs. adopting by reference the Oswego County Defendants' legal arguments].) In so arguing, Defendants point out, inter alia, that Plaintiffs have alleged that the purported reason for Plaintiff Kenific's disparate treatment was a municipal policy encouraging the reliance on hearsay reports of intoxication. (Dkt. No. 26, at 11-12 [attaching pages "8" and "9" of the Oswego County Defs.' Am. Memo. of Law].) As stated above in Part I.C. of this Decision and Order, Plaintiffs have chosen not to respond to this argument. ( See generally Dkt. No. 29, Attach. 1 [Plfs.' Memo of Law].) After carefully considering this aspect of Defendants' unopposed motions, the Court is satisfied that Defendants have met their modest threshold burden of establishing entitlement to dismissal of this claim based on this ground. The Court notes that this aspect of Defendants' motions would survive even the heightened scrutiny appropriate on a contested motion.

See, supra, note 21 of this Decision and Order.

This is because Plaintiffs' Amended Complaint does not allege facts plausibly suggesting that Plaintiff Kenific experienced invidious discrimination because of his race, national origin or gender. ( See generally Dkt. No. 21.) Moreover, the Court finds that the Amended Complaint alleges only conclusorily that the different treatment Plaintiff Kenific allegedly received (1) was maliciously intended to inhibit or punish his exercise of the constitutional rights he possessed with regard to his child, or (2) lacked any rational basis. ( Id. at ¶ 52.) The Court makes this finding for the reasons stated above in Parts III.B.1., III.B.2.a. and III.B.3. of this Decision and Order. In the interest of brevity, the Court will not repeat each of those reasons here, but will only highlight two of them.

First, the Court finds that Plaintiffs' malicious-intent allegation is insufficient because it is purely speculative in nature, and is indeed undermined by their other allegations, which plausibly suggest that the Oswego County Defendants acted in an independent and dutiful manner. Second, the Court finds that Plaintiffs' irrational-basis allegation is insufficient because it is bereft of supporting factual allegations, and is indeed undermined by (1) their allegation that the Oswego County Defendants made a finding of abuse and/or neglect against Plaintiff Kenific based upon a hearsay report of his intoxication (which may be sufficient to support a finding that a report of child abuse and neglect was "indicated" pursuant to N.Y. Soc. Servs. Law § 412), and (2) the fact that Plaintiffs have conspicuously omitted from their Amended Complaint an allegation that the New York State Department of Social Services expunged the Oswego County Department of Social Services' finding that the report of abuse and neglect was "indicated."

For each of these reasons, the Court dismisses Plaintiffs' Fifth Cause of Action for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).

6. Plaintiffs' Sixth Cause of Action (Claiming that Defendant Oswego County and Defendant Oswego County Department of Social Services Are Liable for the Unconstitutional Acts of Their Employees Based on the Existence of an Offending Municipal Custom, Policy or Practice)

As an initial matter, the Court notes that Defendants argue, in their memoranda of law, that both the Oswego County Department of Social Services and the Onondaga County Department of Social Services should be dismissed from this action as Defendants because those agencies are merely administrative arms of municipal entities (i.e., Oswego and Onondaga Counties), and thus lack any capacity to be sued independently from those municipal entities, under 42 U.S.C. § 1983. (Dkt. No. 19, Attach. 3, at 11 [attaching page "9" of the Oswego County Defs.' Memo. of Law]; Dkt. No. 20, Attach 8, at 24-25 [attaching pages "21" and "22" of the Onondaga County Defs.' Memo. of Law].) As stated above in Part I.C. of this Decision and Order, Plaintiffs have chosen not to respond to this argument. ( See generally Dkt. No. 29, Attach. 1 [Plfs.' Memo of Law].) After carefully considering this aspect of Defendants' unopposed motions, the Court is satisfied that Defendants have met their modest threshold burden of establishing entitlement to dismissal of this claim based on this ground. The Court notes that this aspect of Defendants' motions would survive even the heightened scrutiny appropriate on a contested motion. As a result, to the extent that the claims against them have not already been dismissed for the reasons stated above in this Decision and Order, the Oswego County Department of Social Services and the Onondaga County Department of Social Services are dismissed from this action as Defendants.

See Crews v. County of Nassau, 06-CV-2610, 2007 WL 4591325, at *1, n. 1 (E.D.N.Y. Dec. 27, 2007); accord, Caidor v. M T Bank, 05-CV-0297, 2006 WL 839547, at *2 (N.D.N.Y. March 27, 2006) (Scullin, J.), Hoisington v. County of Sullivan, 55 F. Supp.2d 212, 214 (S.D.N.Y. 1999).

Turning to Plaintiffs' claim that Oswego County is subject to municipal liability for the unconstitutional acts of its employees, municipal liability "cannot result from a theory of respondeat superior; rather, it can be imposed only if the acts in question were carried out in `execution of a government's policy or custom.'" Thomas v. Roach, 165 F.3d 137, 145 (2d Cir. 1999) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690). "Although this rule `does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation, 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.'" DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (citation omitted). Therefore, "when a subordinate municipal official is alleged to have committed the constitutional violation, municipal liability turns on the plaintiffs' ability to attribute the subordinates' conduct to the actions or omissions of higher ranking officials with policymaking authority." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004). The subordinates' conduct may be attributed to the actions or omissions of higher ranking officials with policymaking authority when the plaintiff establishes either (1) "that a policymaker ordered or ratified the subordinates' actions," or (2) "that the policymaker was aware of a subordinate's unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions." Amnesty, 361 F.3d at 126 (citations omitted).

Of course, a policy or custom may relate to improper training. See City of Canton v. Harris, 489 U.S. 378, 388 (1989). However, "[a] claim for failure to train will trigger municipal liability only where `the failure to train amounts to deliberate indifference to the rights' of those with whom the state officials will come into contact." Young v. County of Fulton, 160 F.3d 899, 904 (2d Cir. 1998) (quoting City of Canton, 489 U.S. at 388). In Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), the Second Circuit listed "three showings" required to support a claim that a municipality's failure to train amounted to deliberate indifference of the rights of citizens:

(1) that "a policymaker [of the municipality] knows to a moral certainty that [its] employees will confront a given situation'; (2) that `the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation'; and (3) that `the wrong choice by the . . . employee will frequently cause the deprivation of a citizen's constitutional rights.'

Young, 160 F.3d at 905 (quoting Walker, 974 F.2d at 297-98 [citation omitted]). "Under the Walker test, a claim for failure to train cannot be sustained unless the employees violated a clearly established federal constitutional right." Id. (citation omitted).

Here, the Oswego County Defendants argue, in their memoranda of law, that this claim should be dismissed because (1) Plaintiffs have failed to allege facts plausibly suggesting that there was a constitutional violation committed by an employee of Oswego County, and (2) in any event, Plaintiffs have failed to allege facts plausibly suggesting that any such violation was carried out in execution of a County policy, custom or practice. (Dkt. No. 19, Attach. 3, at 12-19 [attaching pages "10" through "17" of the Oswego County Defs.' Memo. of Law]; Dkt. No. 26, at 12 [attaching page "9" of the Oswego County Defs.' Am. Memo. of Law].) As stated above in Part I.C. of this Decision and Order, Plaintiffs have chosen not to respond to this argument. ( See generally Dkt. No. 29, Attach. 1 [Plfs.' Memo of Law].) After carefully considering this aspect of Defendants' unopposed motions, the Court is satisfied that Defendants have met their modest threshold burden of establishing entitlement to dismissal of this claim based on this ground. The Court notes that this aspect of Defendants' motions would survive even the heightened scrutiny appropriate on a contested motion.

See, supra, note 21 of this Decision and Order.

More specifically, the Court finds that, as an initial matter, Plaintiffs' Amended Complaint fails to allege facts plausibly suggesting that there was a constitutional violation committed by an employee of Oswego County, for the reasons set forth above in Parts III.B.2., III.B.3., and III.B.5. of this Decision and Order. Again, it may be permissible to rely on a hearsay report of intoxication in finding a report of abuse and neglect "indicated." (The issue is whether the hearsay report of intoxication is credible.)

In any event, the Court finds that, even if Plaintiffs have alleged facts plausibly suggesting that an unconstitutional violation occurred, Plaintiffs have failed to allege facts plausibly suggesting that any such violation was carried out in execution of a County policy, custom or practice. Rather, Plaintiffs' Amended Complaint alleges, in pertinent part, as follows: (1) "Defendant[] Oswego County . . . and their employees made a finding of abuse and/or neglect against Robert Kenific, Jr. based upon hearsay allegations without any basis in fact that he was intoxicated and therefore incapable of providing adequate guardianship of his child"; (2) "Defendant[] Oswego County . . . has a custom, policy or practice of making findings of abuse and/or neglect against parents or child custodians upon hearsay allegations of intoxication"; (3) "[s]uch policy, custom or practice is without legitimate basis in fact and subjects persons to deprivation and/or risk of deprivation of familial rights without any basis in fact or law"; (4) "[s]uch policy, custom and practice is without legitimate basis and is made regardless of injury or harm and/or without evidence of injury or harm to the subject child/children"; and (5) "[b]ecause of the custom, policy and practice of . . . Oswego County . . . to make such findings of abuse and/or neglect, the Plaintiff [was] harmed and injured. . . ." (Dkt. No. 21, at ¶¶ 56-60.)

These allegations set forth no facts plausibly suggesting that an Oswego County policymaker conducted, ordered, ratified or turned a blind eye to the alleged constitutional violation. To the contrary, Plaintiffs allege facts plausibly suggesting the occurrence of a single incident carried out by one or more individuals below the policy-making level. Such allegations are insufficient to make out a claim of municipal liability.

See Pierce v. Chautauqua County, 06-CV-0644, 2007 WL 2902954, at *8 (W.D.N.Y. Sept. 28, 2007) (dismissing plaintiffs' Monell claim that "Sheriff Gerace and/or Chautuaqua County `have a municipal policy or custom allowing its officers to act on complaints with no background check, inquiry into the source of the complaint, or without proper investigation whatsoever to justify the degree of force displayed by deputies Ottoway and Beichner on November 25, 2005' [because] . . . plaintiffs' amended complaint contains no factual allegations which support an inference of such a policy other than the events which took place at plaintiffs' residence on November 25, 2005"); Murray v. Admin. for Children's Servs., 476 F. Supp.2d 436, 442 (S.D.N.Y. 2007) ("The practice that plaintiff attempts to fit within the parameters of Monell's holding is ACS's `policy of harassing and treating parents more harshly if those parents telecast issues critical [of] ACS.' The Amended Complaint states no facts to support this policy; indeed, the Amended Complaint does not describe plaintiff's criticism of ACS, nor does it allege that the actions described in the Complaint were taken by defendants in response to that criticism. Even if the complaint included an account of these events, however, the claim for malicious prosecution would fail because `[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.' . . . The Amended Complaint does not allege other similar instances of malicious prosecution that could raise an inference that the City maintains a policy or custom of deliberate indifference to these types of unconstitutional deprivations."); Shapiro v. Kronfeld, 00-CV-6286, 2004 WL 2698889, at *22 (S.D.N.Y. Nov. 24, 2004) (dismissing plaintiffs' Monell claim because plaintiffs made only conclusory assertions "that the policies of Defendants Scoppetta, ACS, Board, and the City concerning investigation of child abuse or neglect, removing and detaining children, and prosecuting claims of child abuse and neglect, violated their rights under the Fourth, Fifth and Fourteenth Amendments . . ., and that their failure to train employees in conducting and completing investigations and prosecutions for abuse and neglect violated their constitutional rights").

For each of these reasons, the Court dismisses from this action the Oswego County Department of Social Services and the Onondaga County Department of Social Services as Defendants, for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). In addition, the Court dismisses the remainder of Plaintiffs' Sixth Cause of Action for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).

7. Plaintiff Schramm's Claims

Defendants argue, in their memoranda of law, that Sarah Schramm should be dismissed from this action as a Plaintiff because, inter alia, Plaintiffs have failed to allege facts plausibly suggesting that she has standing to bring a claim under 42 U.S.C. § 1983. (Dkt. No. 19, Attach. 3, at 13 [attaching page "11" of the Oswego County Defs.' Memo. of Law]; Dkt. No. 20, Attach 8, at 14-15 [attaching pages "11" and "12" of the Onondaga County Defs.' Memo. of Law].) As stated above in Part I.C. of this Decision and Order, Plaintiffs have chosen not to respond to this argument. ( See generally Dkt. No. 29, Attach. 1 [Plfs.' Memo of Law].) After carefully considering this aspect of Defendants' unopposed motions, the Court is satisfied that Defendants have met their modest threshold burden of establishing entitlement to dismissal of this claim based on this ground. The Court notes that this aspect of Defendants' motions would survive even the heightened scrutiny appropriate on a contested motion. The Court notes also that, in making this finding, it may, and does, rely on the Defendant Oswego County Department of Social Services' letter to Plaintiff Schramm, dated November 30, 2005, as having been incorporated by reference into Plaintiffs' Amended Complaint. See, supra, note 20 of this Decision and Order.

See, supra, note 21 of this Decision and Order.

For these reasons, to the extent that the claims of Plaintiff Schramm have not already been dismissed for the reasons stated above in Parts III.B.1. through III.B.6. of this Decision and Order, those claims are dismissed for failure to allege facts plausibly suggesting that she has standing to bring a claim under 42 U.S.C. § 1983.

8. Claims Asserted Under New York State Law

Finally, in the interest of thoroughness, the Court notes that, even if it were not inclined to dismiss Plaintiffs' First and Fourth Causes of Action (both asserting state law claims) for failure to state a claim upon which relief can be granted pursuant Fed.R.Civ.P. 12(b)(6), the Court would decline to exercise supplemental jurisdiction over these claims in light of its dismissal of all of Plaintiffs' federal claims.

ACCORDINGLY, it is

ORDERED that Defendants' motions for summary judgment (Dkt. Nos. 19, 20, 25, 28) are DENIED; and it is further

ORDERED that Defendants' motions to dismiss (Dkt. Nos. 19, 20, 25, 28) are GRANTED; and it is further

ORDERED that Plaintiffs' Amended Complaint (Dkt. No. 21) is DISMISSED.