Citations
- 284 F. Supp. 3d 165
Full opinion text
Janet C. Hall, United States District Judge
TABLE OF CONTENTS
I. INTRODUCTION...173
II. PROCEDURAL BACKGROUND...174
III. STANDARD OF REVIEW...174
IV. FACTS...175
V. DISCUSSION...180
A. Personal Involvement (Marotta)...181
B. Procedural Due Process (Fratta and Stankye)...185
1. Applicable Law...186
2. Removal of A.S. from Shakir's Home...187
3. Interview of A.S. at Derby Police Department...190
4. Release of A.S. to Gandy...192
5. Conspiracy...194
C. Substantive Due Process (Fratta and Stankye)...197
D. Fourth Amendment Unlawful Seizure (Stankye)...198
E. Fourth Amendment Unlawful Search (Stankye)...199
F. Eighth Amendment Conditions of Confinement (Stankye)...204
G. Declaratory Relief (Stankye)...211
VI. CONCLUSION...213
I. INTRODUCTION
The plaintiff, Anwar Shakir, Sr., ("Shakir"), is currently incarcerated at Corrigan-Radgowski Correctional Institution, in Uncasville, Connecticut. He brings this civil rights action pro se pursuant to section 1915 of title 28 of the United States Code against Derby Police Detective Charles Stankye, Department of Children and Families ("DCF") Supervisor Kathie Marotta, and DCF Social Worker Michele Fratta. See Amended Complaint ("Am. Compl.") (Doc. No. 106).
Before the court is a Motion for Summary Judgment filed by Fratta and Marotta and a Motion for Summary Judgment filed by Stankye. See Fratta and Marotta Motion for Summary Judgment ("Fratta MFSJ") (Doc. No. 198); Stankye Motion for Summary Judgment ("Stankye MFSJ") (Doc. No. 201). For the reasons below, Fratta and Marotta's Motion is granted, and Stankye's Motion is granted in part and denied in part.
II. PROCEDURAL BACKGROUND
On December 15, 2011, Shakir filed a Complaint against Stankye, Marotta, Fratta, the Derby Police Department, and Assistant State's Attorney Charles Stango. See Complaint ("Compl.") (Doc. No. 1). On March 31, 2015, the court granted a Motion to Dismiss all claims against Stango. See Ruling Granting Stango's Motion to Dismiss (Doc. No. 101). On April 27, 2015, Shakir filed an Amended Complaint naming only Stankye, Marotta, and Fratta as defendants. See Am. Compl. The court then denied Shakir's Motion for Leave to File a Second Amended Complaint to clarify some of the allegations in his first Amended Complaint and to add additional claims. See Ruling (Doc. No. 175). Thus, the first Amended Complaint remains the operative complaint.
On March 31, 2016, the court granted in part and denied in part a Motion to Dismiss filed by Stankye and a separate Motion to Dismiss filed by Fratta and Marotta. See Ruling on Stankye's Motion to Dismiss ("Ruling on Stankye MTD") (Doc. No. 176); Ruling on Fratta and Marotta's Motion to Dismiss ("Ruling on Fratta MTD") (Doc. No. 177). Following these Rulings, Shakir's federal conspiracy claim, his Fourth Amendment search and seizure claims, his Fourteenth Amendment substantive and procedural due process claims, and his Eighth Amendment conditions of confinement claim remain pending against Stankye in his individual capacity, and Shakir's claim for declaratory relief remains pending against Stankye in his official capacity. See Ruling on Stankye MTD. Against Fratta and Marotta, the claims that remain pending are Shakir's Fourteenth Amendment procedural and substantive due process claims and his federal conspiracy claim. See Ruling on Fratta MTD.
On September 26, 2016, Stankye filed a Motion for Summary Judgment, and Fratta and Marotta filed a separate Motion for Summary Judgment. See Stankye MFSJ; Fratta MFSJ. The court addresses both Motions together in this Ruling.
On May 5, 2017, the court appointed pro bono counsel for Shakir. See Order Appointing Pro Bono Counsel (Doc. No. 303). The court granted Shakir's Oral Motion to Reopen Discovery (Doc. No. 314) to give counsel an opportunity to conduct and file supplemental briefs on behalf of Shakir. See Minute Entry (Doc. No. 315). After the reopened discovery period expired, Shakir filed a Declaration of additional evidence, but counsel did not file any supplemental briefings on his behalf. See Declaration by Plaintiff to Provide Court with Additional Evidence ("Pl.'s Suppl. Decl.") (Doc. No. 320). Having received no supplemental briefings, the court decides the Motions for Summary Judgment based on Shakir's initial pro se filings. See Order (Doc. No. 324).
III. STANDARD OF REVIEW
A motion for summary judgment may be granted only where "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Redd v. N. Y. Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012). The moving party bears the burden of "showing-that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (internal quotation marks and citations omitted). "Once a party moving for summary judgment has made the requisite showing that there is no factual dispute, the nonmoving party bears the burden of presenting evidence to show that there is, indeed, a genuine issue for trial." Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The nonmoving party cannot "rely on conclusory allegations or unsubstantiated speculation," but "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted).
In reviewing the record, the court must "construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Gary Friedrich Enters., L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013).
The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.... Summary judgment is inappropriate when the admissible materials in the record make it arguable that the claim has merit, for the court in considering such a motion must disregard all evidence favorable to the moving party that the jury is not required to believe.
Rogoz v. City of Hartford, 796 F.3d 236, 245-46 (2d Cir. 2015) (internal quotation marks, citation, and emphasis omitted).
Where one party is proceeding pro se, the court must read that party's papers liberally and interpret them "to raise the strongest arguments that they suggest." Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks and citation omitted). Despite this liberal interpretation, "unsupported allegations do not create a material issue of fact" and cannot overcome a properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). Additionally, "only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997).
IV. FACTS
At all relevant times, Stankye was employed by the Derby Police Department, and Fratta and Marotta were employed by DCF. See Stankye's Local Rule 56(a)1 Statement of Facts ("Stankye L.R. 56(a)1") (Doc. No. 201-2) at 1 ¶ 1; Fratta and Marotta's Local Rule 56(a)1 Statement of Facts ("Fratta L.R. 56(a)1") (Doc. No. 214-2). Shakir and Starquonda Gandy have one child together, Anwar Shakir, Jr. ("A.S."). See Stankye L.R. 56(a)1, Ex. B (Doc. No. 201-5) at 2; Fratta L.R. 56(a)1 at 2 ¶ 7. Gandy also has another child, Taeja Gandy ("T.G."), of whom Shakir is not the father. See id.
In 2008, Gandy left the home she shared with Shakir in Connecticut and moved with T.G. first to Kansas and then eventually to California. See Fratta L.R. 56(a)1 at 2 ¶ 7; Plaintiff's Opposition to Fratta and Marotta's MFSJ ("Opp. to Fratta's MSFJ"), Ex. G7 ("Pl.'s Aff. (Fratta)") (Doc. No. 214-3) at 3 ¶ 9. Gandy left A.S. to reside with Shakir in Connecticut. See Fratta L.R. 56(a)1 at 2 ¶ 7; Pl.'s Aff. (Fratta) at 3 ¶ 10. In December of 2008, Gandy returned temporarily to Connecticut and, on January 5, 2009, she reported to Stankye that Shakir had sexually assaulted T.G. when they had lived together. See Fratta L.R. 56(a)1 at 3 ¶ 7; Stankye L.R. 56(a)1 at 1 ¶ 2; Plaintiff's Local Rule 56(a)2 Statement of Facts in Response to Stankye's MFSJ ("Pl.'s L.R. 56(a)2 to Stankye") (Doc. No. 215-2) at 3 ¶ 2. Stankye reported Gandy's allegations to DCF, and Marotta assigned Fratta to investigate the allegations. See Stankye L.R. 56(a)1 at 1 ¶ 3; Pl.'s L.R. 56(a)2 to Stankye at 3 ¶ 3; Fratta L.R. 56(a)1 at 1 ¶ 3. On January 12, 2009, Stankye observed T.G. undergo a forensic interview at the Child Sexual Abuse Clinic at Yale New Haven Hospital ("Yale Clinic"). See Stankye L.R. 56(a)1 at 2 ¶ 4; Pl.'s L.R. 56(a)2 to Stankye at 4 ¶ 4.
On January 13, 2009, Fratta, Marotta, and DCF Program Manager Karen Grayson concluded that DCF had probable cause to believe that A.S. was in imminent risk of physical harm because he was living with Shakir and therefore similarly situated to T.G. at the time of her alleged sexual assault. See Fratta L.R. 56(a)1 at 4 ¶ 14; Plaintiff's Local Rule 56(a)2 Statement of Facts to Fratta's MFSJ ("Pl.'s L.R. 56(a)2 to Fratta") (Doc. No. 214-2) at 6 ¶ 14.e. On January 14, Fratta visited Shakir's home and conducted a minimal facts interview with A.S. and Shakir. See Fratta L.R. 56(a)1 at 5 ¶ 19, 6 ¶ 24; Pl.'s L.R. 56(a)2 to Fratta at 13 ¶ 19; 14 ¶ 24; Stankye L.R. 56(a)1, Ex. C at 1. Based on her interview, Fratta found no evidence that Shakir had abused A.S., as well as no violations or unsafe conditions in Shakir's home. See Fratta L.R. 56(a)1 at 7-8 ¶ 28; Pl.'s L.R. 56(a)2 to Fratta at 16 ¶ 28; Stankye L.R. 56(a)1, Ex. C at 1. Fratta concluded that there were no immediate concerns to A.S.'s safety. See Fratta L.R. 56(a)1 at 8 ¶ 29; Pl.'s L.R. 56(a)2 to Fratta at 16 ¶ 29.
After the interview, Shakir signed a DCF Service Agreement/Safety Plan. See Stankye L.R. 56(a)1 at 3 ¶ 8; Fratta L.R. 56(a)1 at 8 ¶ 30; Pl.'s L.R. 56(a)2 to Fratta at 16 ¶ 30. The Service Agreement stated that A.S. would undergo a forensic interview at the Yale Clinic. See Stankye L.R. 56(a)1 at 3 ¶ 8; Fratta L.R. 56(a)1 at 8 ¶ 31; Plaintiff's Sealed Exhibits ("Pl.'s Sealed Exhibits") (Doc. No. 213), Ex. X ("Service Agreement") (Doc. No. 213-4). It also stated that Shakir would "allow [A.S.] to stay with his paternal grandmother pending further investigation." See Service Agreement. The parties do not dispute that the signed agreement contains this language, but do disagree as to the interpretation of the requirement. Fratta and Stankye interpret the agreement to require A.S. to stay with Shakir's mother, Khalila Shakir Browning, and to require Browning to care for A.S. See Stankye L.R. 56(a)1 at 3 ¶ 9; Fratta L.R. 56(a)1 at 8 ¶ 32. Shakir contends that the agreement did not specify that Browning would care for A.S., such as providing food, clothing, and rides, but rather that he would continue to serve that role. See Pl.'s L.R. 56(a)2 to Fratta at 17 ¶¶ 32-33; Pl.'s L.R. 56(a)2 to Stankye at 4 ¶¶ 8-9.
A.S.'s forensic interview at the Yale Clinic was scheduled for January 20, 2009, at 11:00 a.m., but the interview did not occur on that date because Shakir was late in bringing A.S. and because the Yale Clinic did not want to proceed with Shakir, a possible abuser, present. See Stankye L.R. 56(a)1 at 3 ¶ 10; Fratta L.R. 56(a)1 at 9 ¶ 36; Pl.'s L.R. 56(a)2 to Fratta at 19 ¶ 36. Shakir alleges that he was only made aware that his presence would be a problem on that date. See Pl.'s L.R. 56(a)2 to Stankye at 4-5 ¶¶ 12-13. DCF agreed to reschedule the interview, and Shakir agreed that Browning would bring A.S. to the rescheduled interview. See Stankye L.R. 56(a)1 at 4 ¶ 12; Pl.'s L.R. 56(a)2 to Fratta at 19 ¶ 36. Shakir alleges, however, that DCF never contacted him to reschedule. See Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 12.
On February 4, 2009, based on the evidence of Shakir's alleged conduct toward T.G., Stankye prepared an application and affidavit in support of a warrant for Shakir's arrest on charges of sexual assault in the first degree and risk of injury to or impairing the morals of a child. See Stankye L.R. 56(a)1 at 4 ¶ 14; Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 14. A judge issued the warrant later that day. See Stankye L.R. 56(a)1 at 4 ¶ 15; Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 15.
Stankye alleges that, "on or about" February 6, 2009, he then called Gandy to inform her that an arrest warrant for Shakir had been issued. See Stankye L.R. 56(a)1 at 4 ¶ 16. He alleges that Gandy indicated that she was in Connecticut and prepared to take custody of A.S. after the arrest. See id. Shakir disputes the timing of the phone call, alleging that Stankye kept in touch with Gandy while she was in California and deliberately waited two days to execute the warrant until she informed him that she had returned to Connecticut. See Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 16. Shakir also alleges that Stankye was aware that Gandy intended to take A.S. back to California after she received custody. See id.; Plaintiff's Exhibits ("Pl.'s Exhibits") (Doc. No. 212), Ex. H (Doc. No. 212-7) at 85.
On February 6, 2009, Stankye and another detective attempted to serve the warrant at Shakir's place of employment, but Shakir was not at work that morning. See Stankye L.R. 56(a)1 at 5 ¶ 17-18; Pl.'s Exhibits, Ex. K11 (Doc. No. 212-27). Shakir alleges that he was not at work because he was taking A.S. to a doctor's appointment. See Pl.'s L.R. 56(a)2 to Stankye at 6 ¶¶ 18-19. Stankye acknowledges that he was informed by A.S.'s school that Shakir had picked up his son earlier that day, but does not mention knowledge of a doctor's appointment. See Stankye L.R. 56(a)1 at 5 ¶ 19.
Stankye, along with a Derby Police lieutenant and four officers, then went to Shakir's residence to serve the warrant. See Stankye L.R. 56(a)1 at 5 ¶ 20; Pl.'s L.R. 56(a)2 to Stankye at 6 ¶ 20. Prior to executing the warrant, Stankye called Browning to determine A.S.'s whereabouts and was informed that A.S. was with Browning and A.S.'s aunt. See Stankye L.R. 56(a)1 at 6-7 ¶ 26. Stankye requested that Browning bring A.S. to Shakir's residence, so he could confirm A.S.'s safety and well-being. See id. Shakir claims that Browning never informed him of this call, but does not have other evidence to dispute its occurrence. See Pl.'s L.R. 56(a)2 to Stankye at 7 ¶ 26.
After waiting an hour, during which time Browning had not brought A.S. to the house, Stankye and the other officers knocked on Shakir's door to execute the warrant, but Shakir did not initially respond. See Stankye L.R. 56(a)1 at 6 ¶¶ 22-23; Stankye MFSJ, Ex. A ("Stankye Aff.") (Doc. No. 201-4) at 5 ¶ 18. Shakir alleges that he delayed in responding because he was comforting his son, who was traumatized by the officers banging on the door. See Pl.'s L.R. 56(a)2 to Stankye at 7 ¶¶ 22-23. After 15-20 minutes, Shakir voluntarily exited his residence, and an officer handcuffed him and placed him in a police vehicle. See Stankye L.R. 56(a)1 at 7 ¶ 27; Pl.'s L.R. 56(a)2 to Stankye at 7 ¶ 27.
Once in the vehicle, Stankye asked Shakir at least twice about A.S.'s location, and Shakir refused to answer. See Stankye L.R. 56(a)1 at 7 ¶ 28; Pl.'s L.R. 56(a)2 at 8 ¶ 28. Stankye also affirms in his L.R. 56(a)1 Statement of Facts that he learned that A.S. was not with Browning. See Stankye L.R. 56(a)1 at 7 ¶ 26; Fratta MFSJ, Ex. A ("Fratta Aff.") at 10 ¶ 42.f. In Stankye's Affidavit, however, he does not state that he learned that A.S. was not with Browning; rather, he states that he was unable to confirm that A.S. was with her, presumably because she did not bring A.S. to the residence, as Stankye had requested. See Stankye Aff. at 4 ¶ 17, 5 ¶ 21. Stankye alleges that, because they were unable to confirm A.S.'s location, he and the other officers demanded entry into Shakir's residence to search for A.S. See Stankye L.R. 56(a)1 at 7 ¶ 30. Shakir disputes, however, that Stankye was unaware of A.S.'s whereabouts, alleging that Stankye was informed earlier that day that Shakir had taken A.S. to a doctor's appointment. See Pl.'s L.R. 56(a)2 to Stankye at 7 ¶ 25, 30. Shakir also challenges the other bases cited for the officers' decision to enter his home. See id. at 7 ¶ 30. It is undisputed that the officers did not have a warrant for the entry. See Stankye L.R. 56(a)1 at 7 ¶ 30; Memorandum in Support of Stankye's MFSJ ("Stankye Mem. in Supp.") (Doc. No. 201-1) at 18.
Shakir and Stankye also dispute what occurred during the entry and search. According to Stankye, Shakir's brother, Rasheed Shakir ("Rasheed"), opened the door in response to the demands made by the officers and granted them entry into the residence. See Stankye L.R. 56(a)1 at 8 ¶ 31. Stankye alleges that he was not aware of Rasheed's identity at the time. See id. According to Shakir, however, Stankye and the other officers knew his brother's identity, and Rasheed did not grant the officers entry into the home, but opened the door only under threat. See Pl.'s L.R. 56(a)2 to Stankye at 10 ¶ 31; Pl.'s Exhibits, Ex. V. The parties agree that officers, including Stankye, then entered the residence and observed bags packed with A.S.'s clothes. See Stankye L.R. 56(a)1 at 8 ¶ 31; Pl.'s L.R. 56(a)2 to Stankye at 10 ¶ 31. After locating A.S., Stankye and the other officers escorted A.S. out of the residence to a police vehicle. See Stankye L.R. 56(a)1 at 8 ¶¶ 31-32; Pl.'s L.R. 56(a)2 to Stankye at 10 ¶ 32. Shakir and A.S. were then transported separately to the Derby Police Department ("DPD"). See Stankye L.R. 56(a)1 at 8 ¶ 34; Pl.'s L.R. 56(a)2 to Stankye at 11 ¶ 34.
It is undisputed that Stankye was not the officer that transported Shakir to the DPD. See Stankye L.R. 56(a)1 at 9 ¶ 38; Pl.'s L.R. 56(a)2 to Stankye at 12 ¶ 38. Shakir alleges that Stankye did, however, transport him from the police vehicle to the lockup area. See Pl.'s L.R. 56(a)2 to Stankye at 12 ¶ 34. According to Shakir, at the DPD, Stankye taunted him about his high bail, required him to strip of his clothing, and left him in the holding cell. See Plaintiff's Opposition to Stankye MFSJ ("Opp. to Stankye MFSJ"), Affidavit ("Pl.'s Aff. (Stankye)") (Doc. No. 215-3) at 14 ¶¶ 63-65. Shakir further alleges that the air conditioning in his cell was turned up to maximum and that he became physically sick as a result. See Pl.'s L.R. 56(a)2 to Stankye at 12 ¶ 40; Pl.'s Aff. (Stankye) at 14 ¶ 67. Shakir admits that he did not see Stankye or anyone else turn on the air conditioning, but infers that Stankye was responsible because Stankye was in charge of the search earlier that day. See Pl.'s L.R. 56(a)2 at 12 ¶ 39; Deposition by Shakir ("Shakir Dep. Tr.") (Doc. No. 216) at 90-91.
Stankye disputes all of these facts. He alleges that he did not use any physical force against Shakir on February 6, 2009, and that he did not have any contact with Shakir at the DPD on that date. See Stankye L.R. 56(a)1 at 9 ¶ 41; Stankye Aff. at 6 ¶¶ 28-29. Stankye further alleges that he did not know how to adjust the air conditioning at the police station, did not direct anyone else to do so, and is unaware of anyone having done so. See Stankye L.R. 56(a)1 at 9 ¶¶ 39-40.
While Shakir was in the holding cell, Stankye contacted Fratta and Grayson to inform them that A.S. was at the DPD. See Fratta L.R. 56(a)1 at 11 ¶ 44. Fratta and Stankye allege that Grayson authorized Fratta to interview A.S. See id.; Stankye L.R. 56(a)1 at 8 ¶ 34. Stankye further asserts that he did not participate in or observe the interview. See Stankye L.R. 56(a)1 at 8 ¶ 35. Shakir, however, states to the contrary that Fratta and Stankye agreed to the interview, and that Stankye was present. See Pl.'s L.R. 56(a)2 to Stankye at ¶ 7 34-35; Pl.'s L.R. 56(a)2 to Fratta at 27 ¶ 44. A.S. did not report any abuse during the interview. See Fratta L.R. 56(a)1 at 11 ¶ 47; Pl.'s L.R. 56(a)2 to Fratta at 27 ¶ 47.
The parties then agree that, after the interview, A.S. was released into Gandy's custody, but they dispute who authorized the transfer. See Stankye L.R. 56(a)1 at 9 ¶ 36; Pl.'s L.R. 56(a)2 to Stankye at 11 ¶ 36; Fratta L.R. 56(a)1 at 13 ¶ 57; Pl.'s L.R. 56(a)2 to Fratta at 28 ¶ 48. Stankye alleges that Fratta consented to A.S.'s release to Gandy and that he has not seen A.S. since Gandy took him. See Stankye L.R. 56(a)1 at 9 ¶¶ 36-37. Fratta alleges that Stankye informed her that Gandy would be picking up A.S. and that Fratta and Gandy should leave the police station to avoid a confrontation with Browning. See Fratta L.R. 56(a)1 at 11 ¶ 48, 12 ¶ 56. Shakir alleges that Stankye, Fratta, and Marotta were aware that Gandy intended to bring A.S. back with her to California and conspired together to allow her to take him. See Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 16; Pl.'s L.R. 56(a)2 to Fratta at 28 ¶ 48; Pl.'s Exhibits, Ex. Z at 3, 6.
Later that evening, Fratta learned that Shakir had been released on bond and intended to retake custody of Shakir. See Fratta L.R. 56(a)1 at 13 ¶ 59; Pl.'s L.R. 56(a)2 to Fratta at 31 ¶ 59. Fratta alleges that she was concerned about A.S.'s safety if he were placed in Shakir's care. See Fratta L.R. 56(a)1 at 13 ¶ 60. She spoke with Marotta, who spoke with Grayson, and Grayson determined that a service agreement for Gandy was unnecessary because Gandy had legal authority to have custody of A.S. and DCF had no safety concerns about her. See id. at 14 ¶ 65. Grayson further advised that Gandy should contact the police if Shakir attempted to retake A.S., and Fratta communicated this information to Gandy. See id. Shakir only disputes the bases for Grayson's determination, but not whether these communications took place. See Pl.'s L.R. 56(a)2 to Fratta at 33-34 ¶¶ 65-66.
Shakir states that, after his release, he contacted Browning and the New Haven Police Department (NHPD) to request assistance in retaking custody of A.S. See Pl.'s Aff. (Fratta) at 38-39. Although Shakir drove to Gandy's mother's house, where he believed A.S. to be staying, he did not enter the home. See id. at 39. He alleges that the police informed him that they had contacted DCF and were told by Marotta to leave A.S. with Gandy because she could keep A.S. as long as she did not leave the state. See id.; Pl.'s L.R. 56(a)2 to Fratta at 35-37 ¶¶ 69.e, 70-72. Fratta and Marotta dispute this and allege that neither of them received any calls on the DCF hotline from the NHPD between February 6 and February 8, 2009. See Fratta L.R. 56(a)1 at 14 ¶ 67. They allege that it was DCF Social Worker Kerry Cayward who spoke to Officer Josh Kyle, and it was DCF Social Workers Karen Ginand and Shawn Meaike who spoke to Officer Mastriano. See id. at 14-17 ¶¶ 68-75.
Shakir then alleges that, on February 7, a NHPD officer went to Gandy's mother's home and found neither A.S. nor Gandy there. See Pl.'s Aff. (Fratta) at 40. On February 11, 2009, Gandy called Fratta to inform her that Gandy and A.S. were in California. See Fratta L.R. 56(a)1 at 17 ¶ 76. Fratta provided relevant case information on Gandy and A.S. to the California Child Protection Services. See id. at 18 ¶ 77.
Fratta subsequently completed her investigation of both Gandy and Shakir. See Fratta L.R. 56(a)1 at 18 ¶ 78, 19 ¶ 83; Pl.'s L.R. 56(a)2 to Fratta at 39 ¶ 78, 40-41 ¶ 83. DCF initially substantiated the allegations of physical neglect against Gandy, but reversed that finding on appeal. See Fratta L.R. 56(a)1 at 18-19 ¶¶ 79-82; Pl.'s L.R. 56(a)2 to Fratta at 39-40 ¶¶ 78-82. DCF substantiated the allegations of sexual abuse of T.G. against Shakir and upheld the substantiation on appeal. See Fratta L.R. 56(a)1 at 19-20 ¶¶ 83-87; Pl.'s L.R. 56(a)2 to Fratta at 40-41 ¶¶ 83-87.
On February 25, 2009, Shakir attended a hearing before the Derby Probate Court regarding an application that he had previously filed on December 31, 2008, for temporary custody of A.S. and to remove Gandy as A.S.'s guardian. See Fratta L.R. 56(a)1 at 20 ¶ 88; Pl.'s L.R. 56(a)2 to Fratta at 41 ¶ 88. The probate judge did not grant Stankye's application. See Stankye L.R. 56(a)1 at 10 ¶¶ 43-44; Pl.'s L.R. 56(a)2 to Stankye at 13 ¶ 43. Fratta alleges that the probate judge explained to Shakir that, because there were no court orders or written custody agreements between Shakir and Gandy, Shakir and Gandy each had equal legal rights to A.S. See Fratta L.R. 56(a)1 at 20 ¶ 94. Shakir disputes that this occurred. See Pl.'s L.R. 56(a)2 to Fratta at 42 ¶ 94. Shakir alleges instead that his attorney told him that the probate judge stated that A.S. should not have been taken out of Connecticut without a court order and should be returned immediately to the state. See id.; Pl.'s L.R. 56(a)2 to Stankye at 13 ¶ 43.
V. DISCUSSION
Stankye raises eight arguments in support of his Motion for Summary Judgment.
He contends: (1) that Shakir's request for declaratory relief is barred by the Eleventh Amendment; (2) that Shakir has no standing to assert a claim of unlawful seizure on behalf of his son; (3) that Shakir fails to raise a genuine issue of material fact that the entry into his residence was an unlawful search; (4) that Shakir fails to raise a genuine issue of material fact that his procedural due process rights were violated; (5) that Shakir fails to raise a genuine issue of material fact that his substantive due process rights were violated; (6) that the Eighth Amendment does not apply to Stankye's conduct, which occurred prior to Shakir's conviction for any crime; (7) that Shakir fails to raise a genuine issue of material fact that Stankye participated in a conspiracy to deprive him of his rights; and (8) that he is entitled to qualified immunity as to Shakir's Fourth and Fourteenth Amendment claims. See Stankye Mem. in Supp.
Fratta and Marotta separately assert five arguments in support of their Motion. They contend: (1) that Shakir fails to raise a genuine issue of material fact that Marotta was personally involved in any violation of Shakir's constitutional rights; (2) that Shakir fails to raise a genuine issue of material fact that his procedural due process rights were violated; (3) that Shakir fails to raise a genuine issue of material fact that his substantive due process rights were violated; (4) that Shakir fails to raise a genuine issue of material fact that Fratta and Marotta participated in a conspiracy to deprive him of his rights; and (5) that they are entitled to qualified immunity. See Memorandum in Support of Fratta and Marott's MFSJ ("Fratta and Marotta Mem. in Supp.") (Doc. No. 198-1). Because of the overlap in the arguments in the two Motions, the court addresses them together.
A. Personal Involvement (Marotta)
First, Marotta argues that Shakir has not presented evidence raising a genuine issue of material fact as to her personal involvement in any violation of his due process rights. See Fratta Mem. in Supp. at 33-35.
"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ). In the case of supervisory defendants, the Second Circuit has held that personal involvement can be established by showing that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring.
Id. A supervisory official cannot be held liable solely "on the basis of respondeat superior or simply because he is atop the ... hierarchy." Lewis v. Cunningham, 483 Fed.Appx. 617, 619-20 (2d Cir. 2012).
In Ashcroft v. Iqbal, the Supreme Court addressed the issue of supervisory liability and concluded that "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Second Circuit has since recognized that Iqbal"may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations," but has not articulated whether or how Iqbal affects the categories of supervisory liability set forth by Colon. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) ; see also Raspardo v. Carlone, 770 F.3d 97, 117 (2d Cir. 2014) ("We have not yet determined the contours of the supervisory liability test ... after Iqbal ."). In the absence of contrary instruction from the Second Circuit, then, the court follows Colon and other courts in this District and applies the categories established by Colon , especially as Shakir appears to style his arguments for supervisory liability in accordance with these categories. See Alston v. Pafumi, No. 3:09-CV-1978 (VAB), 2016 WL 81785, at *7 n.5 (D. Conn. Jan. 7, 2016) ; Tyus v. Newton, No. 3:13-CV-1486 (SRU), 2015 WL 1471643, at *8 (D. Conn. Mar. 31, 2015) ; Reynolds v. Murphy, No. 3:13-CV-316 (SRU), 2015 WL 1456880, at *2 (D. Conn. Mar. 30, 2015).
Shakir argues that Marotta was personally involved in the violation of his constitutional rights under three of the above categories. First, he argues that she directly participated in the violation of his due process rights by telling the New Haven Police Department ("NHPD") to leave A.S. in the care of Gandy. See Memorandum in Opposition to Fratta MFSJ ("Mem. in Opp. to Fratta") (Doc. No. 214-1) at 60. Second, he argues that Marotta was informed of the conspiracy to deprive him of custody of A.S. and failed to take action to remedy the wrong. See id. at 60-62. Finally, he argues that Marotta created a policy or custom sanctioning the violations. See id. at 62-66.
Under the first category of direct supervisory liability, Shakir does not allege that Marotta participated in the removal of A.S. from Shakir's home, the interview of A.S. at the DPD, or the release of A.S. into Gandy's custody. The only direct participation that Shakir identifies in his Memorandum is Marotta's alleged statement to NHPD Officer Mastriano to "stand down leave Jr. in the care of Ms. Gandy." See id. at 60. However, Shakir has not presented admissible evidence to raise a genuine issue of material fact that it was Marotta who made the alleged statements to the NHPD.
According to Marotta's Affidavit, the one time that she spoke with Gandy was in January, at which time she informed Gandy that she was not an attorney and could not provide legal advice. See Fratta MFSJ, Ex. B ("Marotta Aff.") (Doc. No. 198-3) at 5 ¶ 21. Marotta states that she was not present during the phone calls on February 6, 2009, between Stankye, Fratta, and Grayson about Shakir's arrest and A.S.'s interview. See id. at 5 ¶ 22. Fratta informed her later that day of what had occurred, as well as of Stankye's concerns that Shakir would try to retake custody of A.S. after Shakir's release on bond. See id. at 5 ¶ 23; see also Fratta Aff. at 14 ¶ 66. Marotta then contacted Grayson, and Fratta and Marotta both state that it was Grayson who determined that Gandy should contact the police department if Shakir attempted to retake A.S. See Marotta Aff. at 5 ¶ 24; Fratta Aff. at 14 ¶ 66. Fratta, not Marotta, relayed Grayson's advice to Gandy. See Fratta Aff. at 14 ¶ 67.
Marotta further avers that she was not at work from the late evening of February 6, 2009, to February 8, 2009, and thus did not receive any phone calls from the NHPD concerning Shakir. See Marotta Aff. at 5 ¶ 25. She only learned of the calls on February 9, 2009, after the events had transpired. See id. at 6 ¶ 26. According to Fratta and Marotta, NHPD Officer Josh Kyle spoke with DCF Social Worker Kerry Cayward, and NHPD Officer Mastriano spoke with DCF Social Workers Karen Ginand and Shawn Meaike. See id. at 6 ¶ 26; Fratta Aff. at 14-17 ¶¶ 70-74; Fratta MFSJ, Ex. E ("Cayward Aff.") (Doc. No. 198-6); id., Ex. F ("Meaike Aff.") (Doc. No. 198-7).
Shakir alleges to the contrary that Officers Kyle and Mastriano spoke to Marotta, who informed them to "stand down" and leave A.S. with Gandy. See Pl.'s L.R. 56(a)2 to Fratta at 34 ¶ 68, 35 ¶ 69.e, 36 ¶ 71, 39 ¶ 74. To support this allegation, he cites to his own Affidavit and to Marotta's answers to his interrogatories. See id. His Affidavit states that Officer Kyle told Shakir that he had spoken to Marotta and that Marotta had told him to leave A.S. in Gandy's care because as long as Gandy did not leave the state, she could keep A.S. See Pl.'s Aff. (Fratta) at 39, 40, 42. This statement is inadmissible hearsay, however, and therefore cannot be the basis for establishing a genuine issue of material fact. See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) ("[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment."); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001).
Nor does Marotta's answer to Shakir's interrogatory create a genuine issue of material fact. In response to Shakir's question, "Do you deny or admit that you told the officers to leave Anwar, Jr. with the plaintiff's ex, as long as she does not leave CT, she can have Anwar in her care?," Marotta answered, "Deny in part and admit in part. DCF Hotline received a phone call from New Haven Police Officer Mastriano and he reported the paternal grandmother was attempting to get Anwar, Jr. back in her care." Pl.'s Exhibits, Ex. A1 at 4. Her statement admits neither that the alleged statement was made nor that she was the one who spoke with Officer Mastriano. Shakir attempts to reason that her answer supports an inference that she made the statement because it is not a straight denial, as is Fratta's answer to the same question. See Mem. in Opp. to Fratta at 60. This reasoning, however, misreads Marotta's answer and relies purely on speculation. Therefore, as neither Marotta's answer nor Shakir's Affidavit presents admissible evidence that Marotta spoke with either NHPD officer, Shakir has not raised a genuine issue of fact that Marotta directly participated in a constitutional violation.
Under the second Colon category, Shakir argues in the alternative that Marotta was aware of the conspiracy to violate his constitutional rights and failed to remedy the violation. See id. at 60-62. Again, however, he has not introduced admissible evidence to create a genuine issue of material fact as to her awareness of the key components of the alleged conspiracy or underlying constitutional violations. In her Affidavit and answers to Shakir's interrogatories, Marotta denies being informed by Stankye of the arrest warrant prior to its execution, agreeing to or participating in the interview of A.S. at the police department, or being aware of Gandy's plans to leave Connecticut with A.S. See Pl.'s Exhibits, Ex. A1 at 3, 5; Marotta Aff. at 5 ¶¶ 22-25. She avers that she was only informed of the arrest, interview, and release of A.S. to Gandy after the fact, in the late afternoon on February 6, 2009. See Marotta Aff. at 5 ¶ 23. Even then, she does not admit to knowledge of any plans for relocation. See id. She was, however, aware of Grayson's decision to advise Gandy to contact the police department if Shakir attempted to retake A.S. after his release on bond. See id. at 5 ¶ 24. None of this information, relayed after the fact, was communicated as a report or appeal to alert her to a constitutional violation. Based on this limited information alone, Marotta would not have been reasonably apprised that a violation was occurring.
Shakir has introduced no admissible evidence contradicting Marotta's Affidavit. He cites Stankye's deposition as evidence that Stankye told Marotta about the arrest warrant, but Stankye's deposition states merely that he called "DCF" and does not specify to whom at DCF Stankye spoke. See Mem. in Opp. to Fratta at 60-61; Pl.'s Exhibits, Ex. H at 88-89. Shakir presents no corroborating evidence indicating that person was Marotta. Additionally, he attempts to reason from the fact that Marotta was Fratta's supervisor that Fratta conveyed all of the information of which she was aware to Marotta. See Mem. in Opp. to Fratta at 61-62. This assumption, however, is unfounded, has no evidentiary basis, and relies on speculation, as Shakir has no personal knowledge of what information was or was not communicated between Fratta and Marotta. Moreover, there is no evidence that Marotta received a report of any wrongdoing or unconstitutional action. Therefore, Shakir has not created a genuine issue of material fact that Marotta was informed of a constitutional violation that had to be remedied. Her failure to take action to remedy a violation of which she was not sufficiently aware cannot be the basis for a finding of personal involvement.
Finally, Shakir argues that Marotta created a policy or custom that sanctioned the constitutional violation. See Mem. in Opp. to Fratta at 62-66. Shakir mistakenly cites Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), to support his claim. See Mem. in Opp to Fratta at 62-66. However, Monell establishes the standard for finding municipal liability, not supervisory liability, and therefore is not applicable to Marotta. Additionally, Shakir has introduced no evidence of a policy or custom created by Marotta. Instead, he again relies on the actions of Fratta and attributes them to Marotta merely because Fratta was under Marotta's supervision. See id. at 62-63. As noted above, he presents no evidence that Marotta authorized Fratta's conduct, including the interview of A.S. or the release of A.S. to Gandy. Therefore, Shakir has raised no general issue of material fact as to whether Marotta created a policy or custom permitting the constitutional violation he alleges occurred.
Because Shakir has offered no evidence on which a reasonable jury could find that Marotta was personally involved in the deprivation of Shakir's rights under any of the three categories for supervisory liability, no genuine issue of material fact exists as to Marotta's liability, and she is entitled to summary judgment. Accordingly, Fratta and Marotta's Motion for Summary Judgment is granted as to all claims against Marotta. The remainder of the Ruling only addresses claims as to Fratta and Stankye.
B. Procedural Due Process (Fratta and Stankye)
Shakir claims that Stankye and Fratta violated his procedural due process rights by depriving him of custody of A.S. without a hearing. See Am. Compl. at 14 ¶ 55, 17-18 ¶ 65. Stankye and Fratta both argue in their respective Motions for Summary Judgment that their conduct did not constitute a deprivation of custody and thus did not implicate Shakir's procedural due process rights. See Stankye Mem. in Supp. at 12-13; Fratta Mem. in Supp. at 19-26. Stankye additionally argues that, even if his conduct did implicate Shakir's due process rights, those rights were not violated because a pre-deprivation hearing was unnecessary due to emergency circumstances. See Stankye Mem. in Supp. at 13-16. Finally, both Stankye and Fratta argue that, even if a genuine issue of fact exists as to whether their conduct violated Shakir's due process rights, they are protected by qualified immunity because their conduct was objectively reasonable. See Stankye Mem. in Supp. at 25-28; Fratta Mem. in Supp. at 37-39.
Although Shakir's Memoranda are not expressly clear, the court reads his argument liberally to identify four actions by which Shakir asserts that Stankye and/or Fratta deprived him of the custody, care, and management of A.S. See Memorandum in Opposition to Stankye's MFSJ ("Mem. in Opp. to Stankye") (Doc. No. 215-1) at 19-21; Mem. in Opp. to Fratta at 16-43. First, Shakir argues that Stankye deprived him of custody by physically removing A.S. from his residence after Shakir's arrest. See Mem. in Opp. to Stankye at 19-20. The bulk of Shakir's argument against Stankye focuses on this conduct. Second, Shakir argues that Fratta's interview of A.S. at the DPD, which Stankye permitted and facilitated, deprived him of his liberty interest in the care and management of A.S. because he did not consent to the interview. See Mem. in Opp. to Fratta at 34-36; Mem. in Opp. to Stankye at 20-21. Third, Shakir argues that Stankye and/or Fratta improperly released A.S. into the custody of Gandy in violation of their Service Agreement. See Mem. in Opp. to Fratta at 16-19; Mem. in Opp. to Stankye at 21. Finally, Shakir argues that Stankye and Fratta conspired with Gandy to assist her in relocating A.S. to California. See Mem. in Opp. to Fratta at 52-59; Mem. in Opp. to Stankye at 21. The court addresses each theory in turn.
1. Applicable Law
The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. In order to prevail on a Fourteenth Amendment procedural due process claim, a plaintiff must show (1) that he possessed a protected liberty or property interest of which he has been deprived; and (2) that the procedures afforded to him were not constitutionally sufficient. See Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016) (citing Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) ).
Parents have a constitutionally protected interest in maintaining custody of their children. See Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (collecting cases recognizing the "fundamental right of parents to make decisions concerning the care, custody and control of their children"); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected."); Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999) ("[P]arents ... have a constitutionally protected liberty interest in the care, custody and management of their children."). Therefore, "before parents may be deprived of the care, custody, or management of their children without their consent, due process-ordinarily a court proceeding resulting in an order permitting removal-must be accorded to them." Tenenbaum, 193 F.3d at 593.
However, where no deprivation of custody, care, or management has occurred, the plaintiff's procedural due process rights have not been triggered. See Frazier v. Williams, No. 15-CV-6531-KAMLB, 2016 WL 2644897, at *3 (E.D.N.Y. May 9, 2016), appeal dismissed (Aug. 18, 2016) ("Where a state actor has not removed a child from a parent's custody, however, there has been no deprivation entitling a parent to procedural due process."); Guan N. v. NYC Dep't of Educ., No. 11 CIV. 4299 AJN, 2014 WL 1275487, at *24 (S.D.N.Y. Mar. 24, 2014) ("[W]ithout that deprivation [of custody, care, and management], the Constitution would not require an inquiry into whether the defendants had provided due process."). In such cases, the plaintiff's rights have not been violated, regardless of whether a hearing was provided.
Additionally, even where a deprivation has occurred, officials may temporarily remove a child from the parent's custody without consent or court order in "emergency" circumstances. Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987). The Second Circuit has found that emergency circumstances include, but are not limited to, "the peril of sexual abuse, the risk that children will be left bereft of care and supervision, and immediate threat[s] to the safety of the child." Southerland v. City of New York, 680 F.3d 127, 149 (2d Cir. 2012) (internal quotation marks and citations omitted).
Finally, even if a plaintiff's procedural due process rights have been violated, a government official is nonetheless not liable if he is entitled to qualified immunity. Qualified immunity "protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Public officials can establish qualified immunity in one of two ways: by demonstrating (1) that "their conduct does not violate clearly established constitutional rights," or (2) that "it was objectively reasonable for them to believe their acts did not violate those rights." Southerland v. City of New York, 680 F.3d 127, 141 (2d Cir. 2012) (quoting Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir.2003) ).
Under the first approach to qualified immunity, a right is clearly established if, "at the time of the challenged conduct ... every 'reasonable official would have understood that what he is doing violates that right.' " Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). A court in this District may only look to Supreme Court and Second Circuit precedent existing at the time to determine if the right is clearly established. See Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004). While there is no requirement that a case have been decided that is directly on point, the "existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. "[A] broad general proposition" does not constitute a clearly established right. Reichle v. Howards, 566 U.S. 658, 665, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012). Rather, the constitutional right violated must be "particularized to the facts of the case." White v. Pauly, --- U.S. ----, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) ; see also Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007) ("The inquiry into whether a right at issue was clearly established is tied to the specific facts and context of the case.").
Even if the law is clearly established, a public official may still be entitled to qualified immunity "if it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful." Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir. 2010) (internal quotation marks and citation omitted). In cases involving the removal of children from parental custody, the Second Circuit has held that "a caseworker is ... entitled to qualified immunity if officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context." Southerland, 680 F.3d at 141 (internal quotation marks omitted).
2. Removal of A.S. from Shakir's Home
It is undisputed that, after Shakir was arrested and taken into police custody, Stankye and other officers entered Shakir's home, removed A.S., and brought him to the police station. See Stankye L.R. 56(a)1 at 8 ¶¶ 31-32; Stankye Aff. at 6-7 ¶¶ 23-24; Pl.'s L.R. 56(a)2 to Stankye at 10-11 ¶¶ 32, 34; Pl.'s Aff. (Stankye) at 13 ¶ 55. Fratta does dispute her involvement in Stankye's actions. See Fratta Aff. at 10-11 ¶ 45. However, because the court concludes that Stankye's actions did not deprive Shakir of a protected liberty interest, it need not decide whether a genuine dispute of fact exists as to the degree of Fratta's involvement.
While the Second Circuit has not delineated the boundaries of "what ... kinds of government action may violate a parent's protected liberty interest in the care, custody, and management of his or her child in the child abuse context," it has stated that physical removal of the child from the parent's custody implicates this liberty interest. Phillips v. Cty. of Orange, 894 F.Supp.2d 345, 374-75 (S.D.N.Y. 2012) (collecting Second Circuit cases assessing due process after a physical removal). The procedural due process cases, however, do not provide a clear definition of what constitutes the parent's custody in this context. In the absence of a clear definition of custody provided by other courts, the court looks to Black's Law Dictionary, which defines "custody" as the "care, control, and maintenance of a child awarded by a court to a responsible adult," including two components-"legal custody (decision-making authority) and physical custody (caregiving authority)." Custody, Black's Law Dictionary (10th ed.). Legal custody refers to the "authority to make significant decisions on a child's behalf, including decisions about education, religious training, and healthcare," while physical custody refers to the "right to have the child live with the person awarded custody." Id.
The case law regarding the due process required when a child is removed after the parent has been arrested is sparse because many cases involving this set of facts do not raise a procedural due process claim at all. See, e.g., United States v. Bradley, 321 F.3d 1212, 1213-14 (9th Cir. 2003) ; United States v. Reid, No. 4:11-CR-499 JCH/DDN, 2012 WL 628910, at *6 (E.D. Mo. Feb. 7, 2012), report and recommendation adopted, No. 4:11CR499 JCH DDN, 2012 WL 628907 (E.D. Mo. Feb. 27, 2012), aff'd, 769 F.3d 990 (8th Cir. 2014). In one instance, the Second Circuit did consider a due process claim when the children were removed from a neighbor's custody while the mother was receiving inpatient psychiatric treatment, but the case contained additional facts, such as emergency placement of the children and refusal to return the children after the mother was released, that went significantly beyond the actions taken by Stankye here. See Duchesne v. Sugarman, 566 F.2d 817, 825-28 (2d Cir. 1977). Accordingly, the court does not consider Duchesne to answer the question before the court here.
In this case, Shakir has not raised a genuine dispute of fact that Stankye has deprived him of either legal or physical custody of A.S. because Stankye removed A.S. from the house and brought him to the police station only after Shakir's arrest. First, Shakir's legal rights with respect to his son were not changed by Stankye's actions on February 6, 2009, nor does Shakir allege that they were. Although Gandy ultimately took his son to California, Shakir had recourse in state court to seek a court order regarding custody of A.S. See Conn. Gen. Stat. § 46b-56(a). Second, Shakir did not have physical custody of A.S. at the time that Stankye removed A.S. from the residence and brought him to the police station. Shakir had already been arrested and taken into police custody by the time Stankye and the other officers entered the residence to search for A.S. See Pl.'s Aff. (Stankye) at 11-13 ¶¶ 46, 48-55; Stankye Aff. at 5 ¶¶ 19-23. Shakir himself states that he left A.S. in his brother's care before turning himself in. See Pl.'s Aff. (Stankye) at 13 ¶ 55; Pl.'s L.R. 56(a)2 to Stankye at 10 ¶ 30(f); Mem. in Opp. to Fratta at 30 (stating that "he [Shakir] specifically left his son in the care of his brother, who was now Jr.'s [A.S.'s] guardian"). This reflects Shakir's own awareness that he could not maintain physical custody of his son while he was detained in jail.
Because Shakir does not claim to have had physical custody of A.S. at the time, then, he has not raised a genuine dispute of fact as to whether Stankye removed A.S. from his custody when he took A.S. from the house to the police station. Thus, the evidence, interpreted in the light most favorable to Shakir, is insufficient for a reasonable jury to find a deprivation of custody triggering due process, and Stankye is entitled to judgment as a matter of law. Because there was no deprivation of custody, the court need not consider the parties' dispute over emergency circumstances.
Alternatively, even if Stankye's removal of A.S. from the house to the police station did deprive Shakir of a protected liberty interest, Stankye is entitled to summary judgment on the ground of qualified immunity. Although Stankye focuses his qualified immunity argument on the second prong of objective reasonableness, see Stankye Mem. in Supp. at 27-28, the court concludes that the first prong is more appropriate. Given the court's own difficulty in finding case law as to whether removal of a child after the parent has already been arrested constitutes a deprivation of custody, the court concludes that the law was not clearly established at the time. The court is not aware of, nor has Shakir identified, any Second Circuit precedent holding that a removal under such circumstances deprives the plaintiff of a protected liberty interest under the Due Process Clause. Given the ambiguity in the law, Stankye is alternatively entitled to summary judgment on qualified immunity grounds as a matter of law.
3. Interview of A.S. at Derby Police Department
Next, Shakir argues that Fratta's interview of A.S. at the Derby Police Department deprived him of the care and management of A.S. because it occurred without his consent. See Mem. in Opp. to Fratta at 34-36; Mem. in Opp. to Stankye at 20-21. It is undisputed that Fratta interviewed A.S. at the police station, but the parties do dispute who authorized the interview and the degree to which Stankye was involved. See Stankye L.R. 56(a)1 at 8 ¶¶ 34-35; Pl.'s L.R. 56(a)2 to Stankye at 11 ¶¶ 34-35; Fratta L.R. 56(a)1 at 11 ¶¶ 44-46; Pl.'s L.R. 56(a)2 to Fratta at 27 ¶¶ 44-46. Again, however, because the court concludes that no genuine issue of fact exists as to whether Fratta's interview deprived Shakir of a protected liberty interest, the court need not determine whether the evidence in the record is sufficient to create a genuine dispute as to the issue of responsibility.
The court concludes as a matter of law that an unconsented interview by DCF, without more, does not amount to a deprivation of care or management under the Due Process Clause. Fratta cites a number of cases decided by other courts in this Circuit that found that, in the context of a child abuse investigation, an in-school interview of a child without the parent's consent or presence did not deprive the parent of a right to the custody, care, or management of the child. See Fratta Mem. in Supp. at 21 (citing Guan N. v. NYC Dep't of Educ., No. 11 CIV. 4299 AJN, 2014 WL 1275487, at *25 (S.D.N.Y. Mar. 24, 2014) ; K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F.Supp.2d 197, 215-16 (S.D.N.Y. 2013) ; Phillips v. Cty. of Orange, 894 F.Supp.2d 345, 375-78 (S.D.N.Y. 2012) ; Cornigans v. Mark Country Day Sch., No. CV 03-1414 DLI WDW, 2006 WL 3950335, at *6-7 (E.D.N.Y. July 12, 2006) ; Fowler v. Robinson, No. 94-CV-836, 1996 WL 67994, at *15-16 (N.D.N.Y. Feb. 15, 1996) ).
Shakir argues that these cases can be distinguished because they occurred at a school rather than at the police station. See Mem. in Opp. to Fratta at 34-36. At least one case notes a distinction between an in-school interview and one conducted at a police station after the child was removed from school. See Guan, 2014 WL 1275487, at *24-25 (citing Gardiner v. Inc. Vill. of Endicott, 50 F.3d 151, 156 (2d Cir. 1995) ). Guan, however, emphasized the child's physical removal from the school, rather than the interview, as the basis of the deprivation. See id. at *24 (stating of Gardiner that "[t]he court and the parties agreed that the child's removal from school triggered her parents' right to due process"); see also Gardiner, 50 F.3d at 156 (discussing only the child's removal from the school, not any questioning or interview). In this case, Fratta did not physically remove A.S., but merely conducted the interview at the police station where A.S. was already located after being taken there by Stankye. The court has already determined above that no deprivation of custody occurred when A.S. was removed from Shakir's house and brought to the police station. Therefore, only the interview itself is at issue here.
While no court in this Circuit has considered an interview at a police station, a change in the location of the interview does not change its effects on the parent's rights. The court in Phillips reasoned that it had found no authority to support a conclusion that the right to care, custody, and management includes "the parents' right to teach their children not to speak to strangers ... about their intimate home life and their private parts" or "the parents' right to be present to offer comfort and consolation to their child when being questioned." Phillips, 894 F.Supp.2d at 376. Notably, such analysis focuses on the relationship of the interview to the parents' purported right, rather than on the location of the interview. Therefore, the court concludes that occurrence of the interview alone, regardless of location, does not raise a genuine issue as to whether Shakir was deprived of a protected liberty interest. Thus, Fratta is entitled to summary judgment as a matter of law.
Furthermore, even if Fratta's interview did deprive Shakir of his right to the care and management of A.S., Fratta is nonetheless entitled to qualified immunity because the law at the time had not clearly established that an interview alone-held in a location the child was already at-could constitute a deprivation of custody, care, or management that would trigger due process requirements. "[O]utside of removal or the compulsory provision of medical care, the Second Circuit has not specified what other kinds of government action may violate a parent's protected liberty interest in the care, custody, and management of his or her child in the child abuse context." Phillips, 894 F.Supp.2d at 374 ; see also K.D. ex rel. Duncan, 921 F.Supp.2d at 215.
District courts in this Circuit have found in-school interviews do not deprive parents of a protected liberty interest, but have not considered whether that holding also applies to interviews conducted in more restrictive locations, such as a police station. These decisions have not been reviewed by the Second Circuit. Therefore, relying only on Supreme Court and Second Circuit precedent, the court cannot say that every reasonable officer at the time would have known that interviewing a child at a police station without parental consent would require procedural due process under the Fourteenth Amendment. Accordingly, Fratta is also entitled to summary judgment for the interview of A.S. on the ground of qualified immunity.
4. Release of A.S. to Gandy
Shakir also appears to challenge the defendants' decision to release A.S. into the custody of Gandy while Shakir was being detained. See Mem. in Opp. to Fratta at 17-18; Mem. in Opp. to Stankye at 21. Again, it is undisputed that A.S. was transferred to Gandy's custody after his interview by Fratta, but the parties dispute who was responsible for authorizing Gandy to take custody of A.S. See Stankye L.R. 56(a)1 at 9 ¶ 36; Pl.'s L.R. 56(a)2 at 11 ¶ 36; Fratta L.R. 56(a)1 at 11-12 ¶¶ 48-57; Pl.'s L.R. 56(a)2 at 28-31 ¶¶ 48-57. Stankye and Fratta argue that releasing A.S. to Gandy was appropriate and not a deprivation of Shakir's custody because Gandy was a joint guardian of A.S. with legal rights equal to those of Shakir. See Fratta Mem. in Supp. at 22-26; Stankye Mem. in Supp. at 12-13. The court agrees with Stankye and Fratta that no deprivation of custody occurred and therefore needs not determine whether a genuine issue exists as to who authorized the release of A.S. to Gandy.
Section 45a-606 of the Conne