     08-5157-cv
     "V.S." v. Muhammad

 1                        UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                                -------------
 6
 7                              August Term, 2009
 8
 9   (Argued: October 7, 2009                 Decided: February 17, 2010)
10
11                            Docket No. 08-5157-cv
12
13   - - - - - - - - - - - - - - - - - - - - - - X
14
15      V.S., individually and on behalf of her infant child, T.S.,
16
17                            Plaintiffs-Appellees,
18
19                                 - against -
20
21   NADIRA MUHAMMAD, individually and as caseworker, NATALIE ARTHUR,
22    individually and as supervisor, BRENDA WILSON, individually and
23   as manager, JOHN B. MATTINGLY, individually and as Commissioner,
24                           CITY OF NEW YORK,
25
26                            Defendants-Appellants,
27
28                                    -and-
29
30   DEBRA ESERNIO-JENSSEN, individually and as physician; LONG ISLAND
31    JEWISH MEDICAL CENTER, NORTH SHORE - LONG ISLAND JEWISH HEALTH
32                             SYSTEM, INC.,
33
34                                 Defendants.
35
36   - - - - - - - - - - - - - - - - - - - - - - X
37
38   Before:     MINER and CABRANES, Circuit Judges, and
39               RAKOFF, District Judge.*
40
41


           *
           The Honorable Jed S. Rakoff, United States District Judge
     for the Southern District of New York, sitting by designation.

                                       -1-
1    Interlocutory appeal by public employees from a ruling of the
2    United States District Court for the Eastern District of New York
3    (Dora L. Irizarry, Judge), denying dismissal of these defendants
4    on grounds of immunity from claims against them involving
5    wrongful child removal and malicious prosecution.
6
7         Reversed and remanded.

 8                       DEBORAH A. BRENNER, Of Counsel, Corporation
 9                       Counsel of the City of New York (Michael A.
10                       Cardozo, Barry P. Schwartz, Of Counsel,
11                       Deborah A. Brenner, on the brief), for
12                       Defendants-Appellants.
13
14                       CAROLYN A. KUBITSCHEK, Lansner & Kubitschek,
15                       New York, NY, for Plaintiffs-Appellees.
16

17   RAKOFF, District Judge:

18        This case is one of several recent cases concerned with what

19   degree of protection is afforded municipal employees involved in

20   the often thorny process of determining whether to remove an

21   injured child from the custody of the child’s parents and bring

22   child abuse charges against the parents.1   We state the pertinent

23   facts most favorably to plaintiff.   Skehan v. Vill. of

24   Mamaroneck, 465 F.3d 96, 104-05 (2d Cir. 2006), overruled on

25   other grounds by Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir.

26   2008).

27        On August 19, 2004, plaintiff V.S. and her mother took

28   V.S.’s infant son T.S. to the Schneider Children’s Hospital in

29   New Hyde Park, New York, with a swollen leg, where he was



          1
            See, e.g., Cornejo v. Bell, __ F.3d __, No. 08-3069-cv,
     2010 U.S. App. LEXIS 38 (2d Cir. Jan. 4, 2010); Graham v.
     Mattingly, No. 08-5271-cv, 2009 U.S. App. LEXIS 22908 (2d Cir.
     Oct. 19, 2009) (summary order).

                                    -2-
1    diagnosed with a fractured femur.2    On August 20, the hospital

2    reported the injury to the New York State Register of Child Abuse

3    and Maltreatment, and subsequently submitted a second report

4    stating that T.S. also had a frontal skull fracture and old and

5    new retinal hemorrhages. After reviewing the reports, defendant-

6    appellant Natalie Arthur, a supervisor in the New York City

7    Administration of Child Services (“ACS”), directed one of her

8    caseworkers, defendant-appellant Nadira Muhammad, to conduct an

9    investigation.

10        Muhammad interviewed V.S., her mother, and T.S.’s biological

11   father, as well as defendant Debra Esernio-Jenssen, M.D. (the

12   head of the hospital’s Child Abuse Protection team), and several

13   other doctors.   Initially, neither V.S. nor her mother was able

14   to provide an explanation for T.S.’s injuries, although V.S., who

15   had been bedridden for six weeks after a complicated pregnancy,

16   asserted that she was physically incapable of inflicting injury

17   upon T.S.   Subsequently, however, V.S.’s mother, who had been

18   T.S.’s primary caretaker during this period, admitted that she

19   (the grandmother) had slipped while holding the baby and that his

20   leg had hit the kitchen counter; but she still could not account

21   for the other injuries.

22        While the hospital staff thereafter concluded that T.S. had


          2
            The hospital, or more precisely its parent, the Long
     Island Jewish Medical Center, North Shore - Long Island Jewish
     Health System, Inc., along with one of its physicians, Debra
     Esernio-Jenssen, M.D., are co-defendants in the underlying
     lawsuit but are not parties to the instant interlocutory appeal.

                                     -3-
1    likely sustained the fracture during the fall described by the

2    grandmother, on August 23, 2004, ACS received a report from Dr.

3    Esernio-Jenssen that concluded that T.S.’s retinal hemorrhages

4    were indicative of “shaken baby syndrome.”   Muhammad and Arthur

5    then conferred by telephone with Esernio-Jenssen, following

6    which, on August 24, 2004, ACS commenced child protective

7    proceedings in Queens County Family Court against V.S. and her

8    mother, alleging they had abused T.S. and seeking temporary

9    removal of T.S. from the custody of V.S. and her mother pursuant

10   to Article 10 of the New York Family Court Act.   See N.Y. Fam.

11   Ct. Act § 1012 et seq.

12        An initial hearing was held that same day in Family Court,

13   at which V.S. and her mother appeared, represented by counsel.

14   Muhammad testified for ACS that T.S. had suffered unexplained

15   injuries and that the hospital believed that the child was

16   suffering from shaken baby syndrome.   Muhammad did not disclose,

17   however, that V.S. had been bedridden for six weeks, or that the

18   hospital had concluded that T.S. had likely suffered the femur

19   fracture while in the care of his grandmother.    In reliance on

20   Muhammad’s testimony, the Family Court judge granted a temporary

21   order of removal, as a consequence of which T.S., after being

22   released from the hospital on August 25, 2004, was placed in the

23   custody of his biological father, who did not reside with V.S.

24        V.S. subsequently moved to vacate the order of removal, and

25   the Family Court held a hearing on September 27 and 29, 2004, at


                                    -4-
1    which V.S. was once again present and represented by counsel.        At

2    the hearing, defendant Arthur testified that Dr. Eric Shakin, a

3    pediatric retinal specialist who had examined T.S. when he was

4    first brought to the hospital, had indicated that the retinal

5    injuries were consistent with shaken baby syndrome.     Arthur did

6    not disclose, however, that Dr. Esernio-Jenssen had informed

7    defendants (on September 14, 2004) that she now believed V.S. had

8    not injured the infant.   The Family Court denied the motion, and

9    V.S. did not appeal.

10        ACS then proceeded with the child abuse charges filed

11   against V.S. and her mother.    At the trial of these charges, held

12   on various days between January 24, 2005 and June 30, 2005, both

13   Dr. Esernio-Jenssen and Dr. Shakin testified for ACS that T.S.

14   suffered from shaken baby syndrome.    For V.S., Dr. Ram Kairam,

15   chairman of pediatrics at Bronx Lebanon Hospital, testified that

16   although the infant had signs of retinal and vitreous

17   hemorrhaging, they did not resemble the hemorrhages associated

18   with shaken baby syndrome but were more consistent with

19   childbirth injuries.   This diagnosis was corroborated by medical

20   records of injuries suffered at T.S.’s birth.

21        The Family Court reserved judgment, but on October 17, 2005,

22   before any decision had been rendered, ACS moved, without

23   explanation, to withdraw all allegations against V.S. (but not

24   against her mother).   The Family Court granted the motion and

25   released T.S. to V.S.’s care.   On November 3, 2005, the petition

                                     -5-
1    against V.S.’s mother was reduced to charges based solely on

2    T.S.’s fractured femur, and on November 29, 2006, the Family

3    Court entered a finding of neglect against V.S.’s mother.

4         Shortly thereafter, on January 16, 2007, V.S. commenced the

5    instant action against caseworker Muhammad, Muhammad’s supervisor

6    Arthur, Arthur’s manager Brenda Wilson, Wilson’s superior John B.

7    Mattingly, and derivatively, the City of New York (collectively,

8    the “City Defendants”), as well as Dr. Esernio-Jenssen and her

9    employer, Long Island Jewish Medical Center, North Shore - Long

10   Island Jewish Health System, Inc.     The action alleged violations

11   of V.S.’s and T.S.’s rights under the Fourth Amendment (search

12   and seizure and malicious prosecution) and the Fourteenth

13   Amendment (due process).   The action also alleged claims under

14   New York state law for malicious prosecution and abuse of

15   process.   In support of these claims, V.S. alleged, in essence,

16   that Dr. Esernio-Jenssen had a long history of giving unreliable

17   and misleading diagnoses of shaken baby syndrome and that ACS,

18   knowing this, should not have proceeded in reliance on Dr.

19   Esernio-Jenssen’s opinions and without disclosing exculpatory

20   evidence to the Family Court.

21        On November 20, 2007, the City Defendants moved for summary

22   judgment on the basis of absolute and/or qualified immunity.

23   While the motion was being briefed, the City Defendants also

24   sought dismissal on the basis of the so-called “Rooker-Feldman”

25   doctrine, which maintains that a federal district court should


                                     -6-
1    not entertain a case brought by a litigant who lost in state

2    court and seeks in effect appellate review of that decision by a

3    lower federal court.     Rooker v. Fidelity Trust Co., 263 U.S. 413

4    (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).

5         In an opinion issued September 30, 2008, the United States

6    District Court for the Eastern District of New York (Dora L.

7    Irizarry, Judge) denied the defendants’ summary judgment motion,

8    concluding that essential elements of the Rooker-Feldman doctrine

9    had not been satisfied, that defendants were not entitled to

10   absolute immunity, and that determination of qualified immunity

11   must await discovery on the issues of whether it was objectively

12   reasonable for the City Defendants to rely on Dr.

13   Esernio-Jenssen’s assessments and on whether defendants were

14   proceeding in bad faith.

15                                 DISCUSSION

16        Interlocutory appeal is available both from a denial of

17   absolute immunity, Mitchell v. Forsyth, 472 U.S. 511, 525 (1985),

18   and, if plaintiff’s essential factual allegations are taken as

19   true, from a denial of qualified immunity, Skehan, 465 F.3d at

20   104-05 (2d Cir. 2006).    In such circumstances, interlocutory

21   appeal will also lie from a denial of the Rooker-Feldman doctrine

22   if the issue is, as here, inextricably intertwined with the

23   immunity appeal.   Id. at 105.

24                       A.    Rooker-Feldman Doctrine

25        We agree with the district court that the Rooker-Feldman


                                       -7-
1    doctrine is inapplicable here.    To invoke that doctrine,

2    defendants must meet four requirements:

 3        First, the federal-court plaintiff must have lost in state
 4        court. Second, the plaintiff must “complain[] of injuries
 5        caused by [a] state-court judgment[.]” Third, the plaintiff
 6        must “invite district court review and rejection of [that]
 7        judgment[].” Fourth, the state-court judgment must have
 8        been “rendered before the district court proceedings
 9        commenced” - i.e., Rooker-Feldman has no application to
10        federal-court suits proceeding in parallel with ongoing
11        state-court litigation.
12
13   Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d

14   Cir. 2005) (quoting Exxon Mobil Corp. v. Saudi Basic Indus.

15   Corp., 544 U.S. 280, 284 (2005)).      Applying these requirements to

16   the context of state-court orders of removal of children from

17   parental custody, this Court, in Green v. Mattingly, 585 F.3d 97,

18   102-03 (2d Cir. 2009), found that the Rooker-Feldman doctrine did

19   not apply because the Family Court had issued a superseding order

20   returning plaintiff’s child to plaintiff’s custody, and the

21   claims against plaintiff were ultimately dismissed.     Thus,

22   plaintiff neither had lost in state court (the first Hoblock

23   requirement), nor did her claims invite district court review and

24   rejection of a state-court judgment (the third Hoblock

25   requirement).   Here, as in Green, V.S. is not a “state-court

26   loser,” since, prior to the commencement of the instant action,

27   ACS had withdrawn all its claims against V.S. and the Family

28   Court had released T.S. to V.S.’s custody.     Likewise, nothing in

29   the instant action invites district court review and rejection of

30   a final state-court judgment.    Accordingly, the Rooker-Feldman


                                      -8-
1    doctrine is inapplicable here.

2                 B.   Federal Claims and Qualified Immunity

3         ACS caseworkers and their superiors are generally entitled

4    to qualified immunity from claims under Section 1983 if it was

5    objectively reasonable for the caseworkers to believe their

6    conduct did not violate clearly established statutory or

7    constitutional rights of which a reasonable caseworker would have

8    known.   Cornejo v. Bell, __ F.3d __, No. 08-3069-cv, 2010 U.S.

9    App. LEXIS 38, at *15-16 (2d Cir. Jan. 4, 2010).   “If caseworkers

10   of reasonable competence could disagree on the legality of . . .

11   defendant[s’] actions their behavior is protected.”   Tenenbaum v.

12   Williams, 193 F.3d 581, 605 (2d Cir. 1999)(internal quotation

13   marks omitted).

14        Here, the district court believed some discovery was

15   necessary before this assessment could be made; but, reviewing

16   the matter de novo, as we are obliged to do, Walczyk v. Rio, 496

17   F.3d 139, 153 (2d Cir. 2007); Gilles v. Repicky, 511 F.3d 239,

18   243 (2d Cir. 2007), we disagree.

19        When V.S. was first interviewed, neither she nor her mother

20   could give an explanation, not only for T.S.’s fractured femur

21   but also for T.S.’s other serious injuries that medical tests had

22   revealed.   By contrast, Dr. Esernio-Jenssen made a diagnosis of

23   shaken baby syndrome.   In the absence of any plausible

24   alternative, this was sufficient to warrant the initial decision

25   to seek a court order permitting T.S.’s removal from V.S.’s


                                      -9-
1    custody.   See, e.g., van Emrik v. Chemung County Dep’t of Soc.

2    Servs., 911 F.2d 863, 866 (2d Cir. 1990).   When, at the

3    subsequent hearings, not only Dr. Esernio-Jenssen but also Dr.

4    Shakin reaffirmed the diagnosis of shaken baby syndrome, there

5    remained ample basis for defendants to continue with both custody

6    removal and charges of abuse.   The fact that the caseworkers

7    failed to apprise the Family Court that it was V.S.’s mother,

8    rather than V.S., who had custody of T.S. during much of the

9    relevant period is irrelevant, since V.S. and her mother not only

10   were present at all the hearings but were represented by counsel,

11   who could have brought this and other facts favorable to V.S. to

12   the Family Court’s attention.

13        The district court nonetheless believed that qualified

14   immunity could not yet be granted because of V.S.’s allegations

15   that Dr. Esernio-Jenssen was known to defendants to have

16   repeatedly misdiagnosed child injuries as evidence of child

17   abuse.   In the district court’s view, the “reliability of Dr.

18   Esernio-Jenssen’s diagnoses . . . is an issue of material fact

19   that goes directly to the objective reasonableness of ACS in

20   seizing and removing T.S. from his mother.”   Special App. 49.

21   But to impose on an ACS caseworker the obligation in such

22   circumstances of assessing the reliability of a qualified

23   doctor’s past and present diagnoses would impose a wholly

24   unreasonable burden of the very kind qualified immunity is

25   designed to remove.   See, e.g., Wilkinson v. Russell, 182 F.3d


                                     -10-
1    89, 107-09 (2d Cir. 1999); Defore v. Premore, 86 F.3d 48, 50-51

2    (2d Cir. 1996) (per curiam).

3           At all times here relevant, Dr. Esernio-Jenssen was not just

4    a licensed physician, but also the head of the Child Protection

5    Team at the hospital to which T.S. was taken.    She based her

6    diagnosis of T.S. on determinations made by another doctor, Dr.

7    Sylvia Kodsi, of retinal hemorrhages, a common indicator of

8    shaken baby syndrome, and her opinion was shared by another well

9    qualified physician, Dr. Shakin.    Even if the ACS personnel here

10   involved had been aware of Dr. Esernio-Jenssen’s alleged

11   “reputation” for overdiagnosing child abuse, it still would not

12   have been unreasonable for them to rely on Dr. Esernio-Jenssen’s

13   diagnosis of T.S. in these circumstances.    Thus, as a matter of

14   law, the City Defendants are entitled to qualified immunity and

15   thus dismissal of all the federal charges against them.

16                    C.   State Law and Absolute Immunity

17          In Cornejo, this Court held that defendants similarly

18   situated to the City Defendants here were entitled under New York

19   law to absolute immunity for claims of malicious prosecution

20   brought under that law.    Cornejo, 2010 U.S. App. LEXIS 38, at

21   *18.    The district court here, not having the benefit of Cornejo,

22   believed that only qualified immunity was available, but this was

23   error.    As for the claim of abuse of process under New York State

24   law, the highest New York court to rule on this issue has

25   likewise concluded that defendants are entitled to absolute


                                      -11-
1    immunity from such a claim in circumstances comparable to those

2    presented here.   See Carossia v. City of N.Y., 835 N.Y.S.2d 102,

3    104 (N.Y. App. Div. 1st Dep’t 2007).     This Court is bound to

4    apply the law as interpreted by a state’s intermediate appellate

5    courts unless there is persuasive evidence that the state’s

6    highest court would reach a different conclusion.     Pahuta v.

7    Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999).     There

8    is no such evidence here.

9         Accordingly, the City Defendants are entitled to absolute

10   immunity on the state law claims here made.

11                               CONCLUSION

12        For the foregoing reasons, the federal claims against the

13   City Defendants must be dismissed on grounds of qualified

14   immunity and the state claims against the City Defendants must be

15   dismissed on grounds of absolute immunity.     The district court’s

16   decision of September 30, 2008 is therefore reversed and the case

17   remanded to the district court with directions to dismiss all

18   claims against defendant-appellants.




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