17‐3890‐cv Treistman v. Greene

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of December, two thousand eighteen.

PRESENT: ROBERT D. SACK, BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges.

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BEN GARY TREISTMAN, and as a Parent and Next Friend for, AT as coplaintiff A Minor, Plaintiff‐Appellant,

A.T., a minor, Plaintiff,

v. 17‐3890‐cv

AMY GREENE, personal and official capacity, KELLY WHITTAKER, personal and official capacity, DENISE WOLTMAN, personal and official capacity, MARY ELLEN SCHNEIDER, personal and official capacity, JOSEPH BENNETT, personal and official capacity, CHARLENE BOSWELL, personal and official capacity, KARIN HUBBS, personal and official capacity, ESQ. PAMELA JOERN, personal and official capacity, Defendants‐Cross‐Claimants‐Appellees,

OTHER UNKNOWN NAMED PERSONS, BARBARA SORKIN, personal and official capacity, ULSTER COUNTY MUNICIPALITY, via its agencies Ulster County Child Protective Services & Mental Health Dept., VALERIE LYN WACKS, ESQ., personal and official capacity, LAWRENCE R. SHELTON, ESQ., personal and official capacity, ELISABETH KRISJANIS, ESQ., personal and official capacity, JILLIAN JACKSON, ESQ., personal and official capacity, Defendants‐Cross‐Claimants.

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FOR PLAINTIFF‐APPELLANT: BEN GARY TREISTMAN, pro se, Shady, New York.

FOR DEFENDANTS‐APPELLEES: ERIC M. KURTZ, Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, New York.

Appeal from a judgment of the United States District Court for the

Northern District of New York (Sharpe, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

- 2 ‐ Plaintiff‐appellant Ben Gary Treistman, pro se, sued Ulster County (the

ʺCountyʺ) and several of its employees under

, alleging that the Ulster

County Department of Social Services (ʺDSSʺ) and certain of its employees violated his

First and Fourteenth Amendment rights by, inter alia, restricting conversation with his

daughter, A.T., during supervised visits. DSS had brought neglect proceedings against

Treistman that resulted in the Ulster Country Family Court issuing an order allowing

Treistman to visit with his daughter only while in the presence of another adult.

Treistman also alleged that two employees of the Countyʹs Department of Mental Health

(ʺDMHʺ) interfered with his right to choose medical care for A.T. by calling the private

therapist he had hired and directing her to cease providing duplicative therapy.

On February 16, 2017, after the parties cross‐moved for summary

judgment, the district court granted summary judgment to the County and the

individual defendants in their official capacities, reasoning that Treistman failed to offer

evidence sufficient to show that the County maintained an unconstitutional policy or

practice. It directed the parties, pursuant to Federal Rule of Civil Procedure 56(f), to

brief whether the defendants in their individual capacities had qualified immunity from

suit.

On November 19, 2017, after supplemental briefs were filed, the district

court granted summary judgment to the remaining defendants in their individual

- 3 ‐ capacities based on qualified immunity, reasoning that no jury could conclude that the

defendants had violated Treistmanʹs constitutional rights in an objectively unreasonable

manner.

On December 1, 2017, Treistman timely filed a notice of appeal. We

assume the partiesʹ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.

On appeal, Treistman argues principally that the district court erred in (1)

granting summary judgment to the County and the individuals in their official

capacities, and (2) granting summary judgment to the individual defendants in their

individual capacities.

We review a grant of summary judgment de novo, ʺresolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.ʺ Garcia v. Hartford

Police Depʹt,

, 126‐27 (2d Cir. 2013) (per curiam). ʺSummary judgment is

proper only when . . . ʹthere is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.ʹʺ Doninger v. Niehoff,

(2d

Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). Under Rule 56(f), district courts have

discretion to grant summary judgment sua sponte ʺ[a]fter giving notice and a reasonable

time to respondʺ and ʺafter identifying for the parties material facts that may not be

genuinely in dispute.ʺ Fed. R. Civ. P. 56(f).

- 4 ‐ 1. First Summary Judgment Decision

Treistman argues that the district court erred in granting summary

judgment to the County and individual defendants in their official capacities.1

Municipalities, and individuals sued in their official capacity, are liable under § 1983

only if the challenged conduct was ʺpursuant to a municipal policy or custom,ʺ Patterson

v. County of Oneida,

(2d Cir. 2004) (citation omitted), or caused by a

ʺfailure to train,ʺ Segal v. City of New York,

(2d Cir. 2006). To satisfy the

policy or custom requirement, a plaintiff can show that the challenged practice ʺwas so

persistent or widespread as to constitute a custom or usage with the force of law,ʺ or that

the ʺpractice of subordinate employees was so manifest as to imply the constructive

acquiescence of senior policy‐making officials.ʺ Littlejohn v. City of New York,

(2d Cir. 2015) (citation and internal quotation marks omitted).

The district court did not err in granting summary judgment to the County

and individual defendants in their official capacities because Treistman failed to offer

any evidence of a policy or custom that caused the alleged constitutional violations or

that Ulster County failed to train DSS workers. Nor did he offer evidence showing that

there was a history of DSS workers forbidding parents from discussing certain topics

during supervised visitation. See generally Reynolds v. Giuliani,

(2d Cir.

1 It is not clear whether Treistman challenges the dismissal of the claims against the individual defendants in their official capacities; we nevertheless assume that he does.

- 5 ‐ 2007). His ʺgeneral and conclusory allegation[s]ʺ were not sufficient to defeat summary

judgment. Littlejohn,

.

2. Second Summary Judgment Decision

Treistman argues that the district court failed to adhere to Rule 56(f) as to

the individuals in their individual capacity because it did not identify the facts that were

not genuinely in dispute. We disagree, as the district court correctly applied Rule 56(f)

by determining that the facts summarized in its first summary judgment order, which

were relevant to the second summary judgment decision, were not in dispute.

Treistman also argues that the district court failed to consider evidence in the

supplemental briefing he submitted after the district courtʹs initial summary judgment

ruling. He is mistaken. Although the district court did note that it was too late for

Treistman ʺto present additional evidence for issues that were already decided,ʺ it also

wrote: ʺinsofar as the court is able to liberally construe the pro se plaintiffʹs belated

response to defendantsʹ statement of material facts . . . as cites to the record in support

[of] his current arguments, it has done so.ʺ Treistman v. Greene, No. 12‐cv‐1897,

, at *1 n.1 (N.D.N.Y. Nov. 9, 2017).

The district court properly granted summary judgment to the individual

defendants based on qualified immunity. ʺQualified immunity insulates public

officials from claims for damages where their conduct does not violate clearly

- 6 ‐ established statutory or constitutional rights of which a reasonable person would have

known.ʺ Defore v. Premore,

(2d Cir. 1996) (citation and internal quotation

marks omitted). ʺThe issues on qualified immunity are: (1) whether plaintiff has shown

facts making out violation of a constitutional right; (2) if so, whether that right was

clearly established; and (3) even if the right was clearly established, whether it was

objectively reasonable for the [officials] to believe the conduct at issue was lawful.ʺ

Gonzalez v. City of Schenectady,

(2d Cir. 2013) (citation and internal

quotation marks omitted).

Treistman argues that case law clearly established his right to unrestricted

communication with A.T., but this argument is meritless. As the district court

recognized, parents enjoy a protected liberty interest in maintaining a relationship with

their children. See United States v. Myers,

(2d Cir. 2005). But ʺ[t]he

constitutional privileges attached to the parent‐child relationship . . . are hardly

absolute.ʺ

For example, if ʺthere is an objectively reasonable basis for believing

that parental custody constitutes a threat to the childʹs health or safety, government

officials may remove a child from his or her parentsʹ custody at least pending

investigation.ʺ Gottlieb v. County of Orange,

(2d Cir. 1996). The injury

complained of here ‐‐ that Treistman was restricted from discussing certain issues with

A.T. during supervised visitation because those issues emotionally distressed her ‐‐ is

- 7 ‐ not nearly as serious as removing a child from custody. Given that government

officials may remove a child when they believe his or her health or safety requires it, the

DSS defendants did not violate a clearly established right by advising Treistman to avoid

causing emotional distress to his daughter, a far less severe intrusion. See generally

Anderson v. Creighton,

(1987). Thus, because there was no clearly

established right to a parentʹs unrestricted communication in the circumstances here ‐‐

where the child was diagnosed with a developmental disorder, a neglect petition was

filed against Treistman, and the family court entered a temporary restraining order

against him ‐‐ the district court properly found that Whittaker, Greene, Woltman,

Boswell, and Hubbs had qualified immunity from suit.

Treistman also argues that there is an established right for a parent to place

his child in privately provided therapy without interference from government officials,

where a child was already receiving therapy from the officials. Although parents have

a right to determine the medical care their children receive and the governmentʹs

interference in that right can violate due process, see van Emrik v. Chemung Cty. Depʹt of

Soc. Servs.,

, 867 (2d Cir. 1990), we have not yet addressed whether a

government officialʹs direction to a medical provider to cease providing therapy

treatment duplicative of services a child is already receiving violates due process.

Although ʺan officer might lose qualified immunity even if there is no reported case

- 8 ‐ directly on point[,] . . . the unlawfulness of the officerʹs conduct must be apparent.ʺ

Ziglar v. Abbasi,

(2017) (internal quotation marks omitted). Any

unlawfulness here was not apparent. There was, therefore, no clearly established right

that was violated, and the district court correctly granted summary judgment to

Schneider and Bennett. See Anderson,

.

We have considered all of Treistmanʹs remaining arguments and find them

to be without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

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