20

- 2091

- cv(L) Callwood v. City of Kingston

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTR ONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 2 4 t h day of M a y , two thousand twenty

- two

. 3 4 PRESENT: PIERRE N. LEVAL, 5 RAYMOND J. LOHIER, JR., 6 EUNICE C. LEE , 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 ANGIE CALLWOOD, 10 INDIVIDUALLY AND ON BEHALF 11 OF HER MINOR CHILDREN A.H. 12 AND J.H., JOHNATHON 13 HARDAWAY, INDIVIDUALLY 14 AND ON BEHALF OF HIS MINOR 15 CHILDREN A.H. AND J .H

. , 16 17 Plaintiffs

- Appellee s , 18 19

v. No. 20

- 2091

- cv(L), 20

- 20 2096

- cv(CON) 21 222 JAMES MEYER, INDIVIDUALLY AND AS AN 1 AGENT AND EMPLOYEE OF THE ULSTER 2 COUNTY DEPARTMENT OF SOCIAL 3 SERVICES, DENISE TIMBROUCK, 4 INDIVIDUALLY AND AS AN AGENT AND 5 EMPLOYEE OF THE ULSTER COUNTY 6 DEPARTMENT OF SOCIAL SERVICES, 7 TAMATHA STITT, INDIVIDUALLY AND AS 8 AN AGENT AND EMPLOYEE OF THE ULSTER 9 COUNTY DISTRICT ATTORNEY'S OFFICE , 10 ROBERT FARRELL, INDIVIDUALLY AND AS 11 AN AGENT AND EMPLOYEE OF THE 12 KINGSTON POLICE, CITY OF KINGSTON, 13 MICHAEL MILLS, INDIVIDUALLY AND AS 14 AN AGENT AND EMPLOYEE OF THE 15 KINGSTON POLICE DEPARTMENT, TIMOTHY 16 BOWERS, INDIVIDUALLY AND AS AN AGENT 17 AND EMPLOYEE OF THE KINGSTON POLICE 18 DEPARTMENT, RICHARD NEGRON, 19 INDIVIDUALLY AND AS AN AGENT AND 20 EMPLOYEE OF THE KINGSTON POLICE 21 DEPARTMENT, KIRK STRAND, 22 INDIVIDUALLY AND AS AN AGENT AND 23 EMPLOYEE OF THE KINGSTON POLICE 24 DEPARTMENT, EMILY

- CLAIRE E. SOMMER, 25 INDIVIDUALLY AND AS AN AGENT AND 26 EMPLOYEE OF THE KINGSTON POLICE 27 DEPARTMENT , 28 29 Defendant s

- Appellant s

. ∗ 30

------------------------------------------------------------------ 31

∗ The Clerk of Court is directed to amend the caption as set forth above.3 FOR PLAINTIFFS

- APPELL EES : S TEPHEN B ERGSTEIN , Bergstein 1 & Ullrich, New Paltz, NY 2 ( Stephen R. Coffey, O'Connell 3 & Aronowitz, Albany, NY , on 4 the brief ) 5 6 FOR COUNTY DEFENDANTS

- APPELL ANTS: K ELLY A. K LINE , Maynard, 7 O’Connor, Smith & 8 Catalinotto, Albany, NY 9 (Adam T. Mandell, Maynard, 10 O’Connor, Smith & 11 Catalinotto, Saugerties, NY , on 12 the brief ) 13 14 FOR CITY DEFENDANTS

- APPELLANTS : M ICHAEL T. C OOK , Cook, 15 Netter, Cloonan, Kurtz & 16 Murphy P.C., Kingston, NY 17 18 19 Appeal from an order of the United States District Court for the Northern 20

District of New York ( Gary L. Sharpe , Judge ). 21

UPON DUE CONSIDERATION, IT IS HEREB Y ORDERED, ADJUDGED, 22

AND DECREED that the appeal is in part DISMISSED for lack of appellate 23
jurisdiction , and t he order of the District Court is AFFIRM ED in part and 24
REVERSED and REMANDED in part

. 25

The Defendants

- Appellants in this case are employees of the Kingston 26
Police Department (“City Defendants”), as well as employees of the Ulster 274 County Department of Social Services ( “ DSS ” ) and of the Ulster County District 1
Attorney's Office (“County Defenda nts”). They appeal from the June 1, 2020 2
order of the District Court (Sharpe, J. ) denying in part their motion for summary 3
judgment to dismiss, on qualified immunity grounds, a number of claims arising 4

from the February 2014 removal of plaintiffs A.H. and J.H., both minor children, 5
from a hotel room, their placement in foster care, and the arrest of their parents, 6
plaintiffs Angie Callwood and Johnathon Hardaway, for child neglect under 7

New York law. We assume the parties’ familiarity with the underlying facts and 8
the record of prior proceedings, to which we refer only as necessary to explain 9

our decision. 10

I. Appellate Jurisdiction 11

The Plaintiffs argue that we lack jurisdiction to review this interlocutory 12
appeal because there are continuing material factual disputes on appeal that 13
preclude us from resolving the issue of qualified immunity. T he collateral order 14

doctrine permits us to review a defendant’s entitlement to qualified immunity 15
following denial of a motion for summary judgment “ only to the narrow extent 16

[it] turn [s] on questions of law .” Bolmer v. Oliveira , 594 F.3d 134, 140 (2d Cir. 175 2010)

. I f a factual determination , including the sufficiency of a plaintiff ’s 1

evidence to prove particular facts , “ is a necessary predicate to the resolution of 2
whether qualified immunity is a bar, review is postponed .” Parkinson v. 3

Cozzolino , 238 F.3d 145, 149 (2d Cir. 2001) (quotation marks omitted)

. 4

W e conclude that “a factual finding is essential to resolving the issue of 5
qualified immunity ” as to all of the Defendants

- Appellants except Sergeant Kirk 6
Strand, James Meyer, and Denise Timbrouck

. Kaminsky v. Rosenblum , 929 F.2d 7
922, 927 (2d Cir. 1991). With the exception of these three defendants, the 8

Defendants

- Appellants either explicitly challenge the Plaintiffs’ facts or the 9
sufficiency of the Plaintiffs’ evidence, or they rely on arguments based on their 10

own contested version of the facts , r ather tha n “ argu [ing] that they are entitled to 11
qualified immunity on the basis of ” facts alleged or stipulated to by the Plaintiffs

. 12

Franco v. Gunsalus , 972 F.3d 170, 175 (2d Cir. 2020)

. The contested facts include : 13
whether the parents could be contacted while they were awa y from the hotel ; 14
whether hotel staff spoke with the children before contacting the Kingston P olice 15

D epartment; the condition s of the children and the hotel room where they were 16

found ; whether the officers had a n investigative or child welfare

– related purpose 176 for medically examining the children ; what evidence influenced the decision to 1
arrest and charge the parents ; and whether any evidence was fabricated or 2

withheld by the police or prosecution

. 3

For these reas ons, we dismiss th e appeal of the claims against all the 4

Defendants

- Appellants except for Strand, Meyer, and Timbrouck, who raise 5
purely legal issues over which “w e may properly exercise interlocutory 6
jurisdiction

. ” Locurto v. Safir , 264 F.3d 154, 170 (2d Cir. 2001)

. 7

II. The Merits 8
We thus turn to the merits of the claims against the remaining Defendants

9
Appellants

— Strand, Meyer, and Timbrouck. 10

A. Sergeant Strand 11

The Plaintiffs allege several § 1983 causes of action against Strand, 12
including for : unlawful seizure in violation of the Fourth Amendment in 13

connection with the chi ldren’s removal from the hotel to the hospital ( fifth cause 14
of action) ; false imprisonment for their confinement in the hotel room and 15
hospital room ( third cause of action) ; conducting an unlawful search and seizure 16

in violation of the Fourth Amendment , arising from the medical examinations of 177 the children ( fourth and seventh causes of action) ; and deliberate indifference to 1

medical needs in violation of the Fourteent h Amendment , 1 arising from 2
Hardaway’s arrest and medical emergency ( fourteenth cause of action)

. We h ave 3
jurisdiction to review Strand’s appeal of the denial of qualified immunity on 4

these claims because t he facts relevant to his involvement are undisputed. 5

We turn first to t he Plaintiffs ’ claim s that Strand violated the children’s 6
Fourth Amendment rights by remov ing them from the hotel and the hospital 7

without first obtaining parental consent or judicial authorization and by ordering 8

their med ical examinations

. According to the record , one or both of the police 9

officers , Mills and Farrell, who were on the scene at the hotel , called Strand

— 10

who was then the desk sergeant inside the police department’s dispatch room

— 11

and informed him that two children had been left alone in a hotel room in 12
disarray , including with human feces in the room , that one of the children had a 13

mental disability ; and that the parents could not be reached. Relying on Mills’s 14
and Farrell’s report of the condition of both the hotel room and the children, a s 15

1 Though the Plaintiffs raised this claim under the Eighth Amendment, we construe it as a Fourteenth Amendment claim because the e vents at issue involved pretrial detention. See Darby v. Greenman , 14 F.4th 124, 128 (2d Cir. 2021).8 well as the parents’ supposed inaccessibility , Strand directed that the children be 1
medically examined and removed from the hotel and then ultimately to foster 2

care

. 3

In determining whether Strand was entitled to qualified immunity for his 4

decision s regarding the children , we consider that, u nder the Fourth 5

Amendment, “exigent circumstances” may justify a government official’s 6

removal or medical examination of a child with out parental consent or a court 7

order

. Southerland v. City of New York , 680 F.3d 127, 156, 161 (2d Cir. 2012) ; 8

Tenenbaum v. Williams , 193 F.3d 581, 60 4

– 0 5 (2d Cir. 1999)

. Here, the record 9
does not support the proposition that Strand gained any additional information 10

between the time of the children’s removal from the hotel and the time of their 11
removal from the hospital into foster care

. Indeed, the Plaintiffs do not identify 12
any updates that Strand received during that period

. T he limited inf ormation 13
Strand possessed at the time he ordered the remov al and medical examin ation of 14

the children “ would warrant a person of reasonable caution ” to believe that 15
exigent circumstances justified his decision to do so

. Tenenbaum , 193 F.3d at 16

599, 605

. Accordingly , we conclude that Strand was entitled to qualified 179 immunity on the Plaintiffs’ third, fourth, fifth, and seventh causes of action 1

under the Fourth Amendment , arising from the children’s medical examinations 2

and removal from the hotel ultimately into foster care , and we reverse the 3
District Court’s denial of qualified immunity as to these claims

. 4

We next consider whether Strand’s actions are entitled to qualified 5
immunity on Hardaway’s Fourteenth Amendment claim of deliberate 6

indiffer ence to his medical needs (fourteenth cause of action)

— a claim over 7

which we have jurisdiction because the facts relevant to his involvement are not 8
in dispute , namely, that Hardaway exhibited signs of a serious medical condition 9

after his arrest, and that an officer who was with Hardaway called Strand (who 10
was not present) and informed him that Hardaway was “faking it.” Joint App’x 11

4224. 12

At the time of the e vents in this case (February 2014) , this Court ’s standard 13

as to the relevant prong of a Fourteenth Amendment deliberate indifference 14

claim employed a subjective perspective, i.e. , whether the d efendant “was both 15

aware of facts from which the inference coul d be drawn that a substantial risk of 16

serious harm existed, and also drew the inference.” Caiozzo v. Koreman , 581 1710 F.3d 63, 72 (2d Cir. 2009) ( notations of alterations omitted ) , modified by Darnell 1

v. Pineiro , 849 F.3d 17 (2d Cir. 2017). On the merits, th e Plaintiffs point to no 2

record evidence that Strand

— who was told merely that Hardaway was “faking” 3

an unidentified medical issue and who was provided with no additional detail 4
about Hardaway’s condition

— was aware of facts from which an inference of 5

substantial risk of harm to Hardaway could be drawn, or that Strand drew such 6

an inference. See Caiozzo , 581 F.3d at 71

. 2 Nor have we been pointed to 7

evidence that Strand either observed or had reason to know that “ any 8

2 Since Darnell , in Charles v. Orange Cty. , 925 F.3d 73 (2d Cir. 2019), we explained that:
[A] detainee asserting a Fourteenth Amendment claim for deliberate indifference to his medical needs can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee’s health.

Id. at 87. Even under the standard announced in Charles and Darnell , however, the result would remain the sam e. Strand’s information, provided by the officers on the scene, furnished no reason for concern about Hardaway’s health. Accordingly, there is no basis for finding that Strand “should have known[] that [Hardaway’s] condition posed an excessive risk to [h is] health or safety,” id. (quotation marks omitted), or that his failure to intervene was a violation of Hardaway’s constitutional rights.11 constitutional violation [was being] committed by a law enforcement official ” 1
against Hardaway

. Anderson v. Branen , 17 F.3d 552, 557 (2d Cir. 1994)

. The 2

Plaintiffs have thus failed to show that Strand “ acted with deliberate 3

indifference ” to Hardaway’ s medical need. Charles v. Orange Cty. , 925 F.3d 73 , 4

86 (2d Cir. 2019)

. W e therefore reverse the District Court’s denial of qualified 5
immunity on that cause of action. 3 6
In summary, w e reverse the District Court’s denial of summary judgment 7
as to Strand and remand for entry of judgment for Strand on Plaintiffs’ claims of 8
false imprisonment, unlawful medical examination s , and deliberate indifference 9
( t hird, f ourth, f ifth, se venth, and f ourteenth causes of action )

. 10

B. Meyer and Timbrouck 11

We next turn to the Plaintiffs’ third cause of action under § 1983 for false 12
imprisonment against James Meyer and his supervisor, Denise Timbrouck , two 13
County Defendants employed by DSS. Th is c ause of action arises from Meyer’s 14

and Timbrouck’s role s in removing the children from the hospital to foster care

. 15

3 We note that, at oral argument, Plaintiffs’ counsel did not dispute that Strand never actually saw Hardaway

. O ral Argument Audio Recording at 23:12

– 2 5 : 56

.12 Meyer and Timbrouck argue that they are entitled to both qualified immunity 1

under federal law and to state immunity under New York Social Services Law 2
§ 419 , which provides immunity from liability under New York s tate law for 3
child protective services institutions and their staff s under specified 4

circumstances

. The District Court held that , taking Plain tiffs’ version of the facts 5

as true, Meyer and Timbrouck were not entitled to immunity under state law or 6

under federal law. 7

“ Conduct that is wrongful under section 1983 cannot be immunized by 8

state law. ” McClary v. O'Hare , 786 F.2d 83, 85 (2d Cir. 1986) (citing Martinez v. 9

California , 444 U.S. 277, 284 & n. 8 (1980) ). “ The Supremacy Clause of the 10
Constitution guarantees that state law will not preempt or otherwise 11

erode § 1983 causes of action , ” Gronowski v. Spencer , 424 F.3d 285, 297 (2d Cir. 12
2005) , and t he District Court erred insofar as it applied the state immunity 13

standard to th e Plaintiffs’ federal claim

. 4 14

4 The County Defendants misread Preston v. Quinn , 87 F. App’x 221 (2d Cir. 2004), as meaning that New York Social Services Law § 419 conferred immunity with respect to federal claims under § 1983. However, as McClary , Martinez , and Gronowski indicate, the New York statute does not provide immunity as to a claim brought under § 1983.13 By contrast , the District Court correctly concluded that , construing the 1
evidence in the light most favorable to the Plaintiffs, as we must, neither Meyer 2

nor Timbrouck is entitled to qualified immunity on th e false imprisonment claim 3

under federal law

. Before removing the children to foster care, Meyer became 4

aware of exculpatory information that undermined the initial report of child 5
neglect . Meyer nevertheless proceeded to remove the children without 6
providing Timbrouck with that information

. 5 It is established that caseworkers 7

are not “ free to substantiate a claim of [parental child] abuse

. . . by ignoring 8
overwhelming exculpatory information or by manufacturing false evidence. ” 9

Wilkinson ex rel. Wilkinson v. Russell , 182 F.3d 89, 104 (2d Cir. 1999) 10
(Sotomayor, J. ). We have explained that “[a] n investigation passes constitutional 11
muster provided simply that case workers have a ‘ reasonable basis ’ for their 12
findings of abuse .” Id. Because there was evidence in the record that Meyer 13
possessed information that cast serious doubt on the report of parental neglect or 14

5 Specifically, there was evidence in the record that Meyer learned that certain details in the initial report DSS received were incorrect and that the police were alleged to have searched the room.14 abuse, we agree with the District Court that he was not entitled to qualified 1
immunity at this stage. 2

We turn finally to the claims against Timbrouck, who was not aware of the 3
exculpatory information

. “[I]t is unconstitutional for stat e officials to effect a 4

child's removal on an ‘ emergency ’ basis where there is reasonable time safely to 5
obtain judicial authorization .” Tenenbaum , 193 F.3d at 596 ; cf. N.Y. Fam. Ct. Act 6
§ 1026 (a) (child removed without court order shall be returned if “there is not an 7
imminent risk to the child’s health in so doing” and “ every reasonable effort ” 8
must be made to communicate with the child’s parent )

. The Plaintiffs claim that 9

Timbrouck participated in removing the children from the hospital t o foster care 10
without attempting to contact the parents or seek judicial authorization . Pl.’s Br. 11

61. So me evidence at summary judgment showed that o ver an hour passed 12

between DSS ’s recei pt of the initial child neglect report and the children ’s 13

removal t o foster care , th us giving Timbrouck time to see k consent or 14

authorization. We affirm the District Court’s denial of qualified immunity for 15
Meyer and Timbrouck

. 1615 We have considered the Defendants

- Appellants ’ remaining arguments and 1
conclude that they are without merit. For the foregoing reasons, the appeal is in 2

part DISMISSED for lack of appellate jurisdiction , and t he order of the District 3

Court is AFFIRM ED in part and REVERSED and REMANDED in part. 4

FOR THE COURT: 5 Catherine O ’ Hagan Wolfe, Clerk of Court 6 7 8 9 10 11