         10-1072-cv
         Bukovinsky v. Sullivan County Division of Health

                                 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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 10th day of November, two thousand and ten.
 5
 6       PRESENT: JOSEPH M. McLAUGHLIN,
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       JOHANN BUKOVINSKY,
14
15                                     Plaintiff-Appellant,
16
17                      -v.-                                                10-1072-cv
18
19       SULLIVAN COUNTY DIVISION OF HEALTH AND FAMILY SERVICES, STAR
20       HESSE, SUED IN HER INDIVIDUAL CAPACITY,
21
22                                     Defendants-Appellees.*
23
24
25




                *
                 The Clerk of the Court is directed to amend the official caption in
         this action to conform to the caption in this order.
 1   FOR APPELLANT:          MICHAEL H. SUSSMAN, Sussman & Watkins,
 2                           Goshen, NY.
 3
 4   FOR APPELLEES:          CHERYL A. McCAUSLAND, Senior Assistant
 5                           County Attorney, for Samuel S. Yasgur,
 6                           County Attorney for the County of
 7                           Sullivan, Monticello, NY.
 8
 9        Appeal from the Southern District of New York
10   (Robinson, J. & Young, J.).**
11
12         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the District Court be

14   AFFIRMED.

15         Johann Bukovinsky [“Appellant”] appeals from a judgment

16   of the United States District Court for the Southern

17   District of New York (Robinson, J.), which granted summary

18   judgment to Defendant Hesse [“Hesse”], and a subsequent

19   order of the Southern District (Young, J., sitting by

20   designation from the District of Massachusetts), which

21   granted summary judgment to Defendant Sullivan County

22   Division of Health and Family Services [“DHFS”].                  We assume

23   the parties’ familiarity with the underlying facts, the

24   procedural history, and the issues presented for review.

25         Appellant asks this Court to vacate and reverse the


           **
              Judge Robinson granted Defendant Hesse’s motion for summary judgment
     on January 16, 2008. The Honorable William G. Young of the District of
     Massachusetts, sitting by designation, granted Defendant Sullivan County
     Division of Health and Family Services’s motion for summary judgment on
     February 24, 2010.

                                            2
1    decisions of the District Court, and to remand the matter

2    for a trial on the merits.     Specifically, Appellant contends

3    that the District Court erred in granting summary judgment

4    to Hesse on the claim that she violated Appellant’s liberty

5    interest in maintaining a parental relationship with his

6    daughter.   Appellant also contends that the District Court

7    erred in granting summary judgment to DHFS on the claim that

8    that governmental entity failed to properly train and

9    supervise its employee Hesse.       The parties have briefed the

10   issue of qualified immunity for Hesse as an alternative

11   ground on which this Court might see fit to affirm the grant

12   of summary judgment in her favor.

13       In 1995, Appellant was indicated by DHFS for inadequate

14   guardianship, pursuant to New York Soc. Serv. L. § 424(7).

15   That indication was subsequently overturned, marked as

16   unfounded, and expunged.     However, an indication against

17   Appellant’s then-wife for inadequate guardianship, along

18   with investigative materials relating to charges against

19   both parents, were not expunged.

20       In March 2001, new allegations against Appellant by one

21   of his daughters prompted Hesse, a case worker employed by

22   DHFS, to begin a new investigation.       Hesse eventually



                                     3
1    indicated Appellant, based in part on non-expunged materials

2    from Appellant’s 1995 case file.   In or about November 2002,

3    an Administrative Law Judge ordered that this new indication

4    against Appellant be changed to “unfounded” and the file be

5    sealed, after DHFS conceded that the indication could not be

6    sustained.

7        The investigation of a child services worker “passes

8    constitutional muster provided simply that [the] case worker

9    [has] a ‘reasonable basis’ for [his or her] findings of

10   abuse.”   Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d

11   89, 104 (2d Cir. 1999) (quoting Van Emrik v. Chemung Cnty.

12   Dep’t of Soc. Servs., 911 F.2d 863, 866 (2d Cir. 1990)).

13   Supplementing the general requirement of reasonableness,

14   this Court has explained that in order to rise to the level

15   of a Due Process violation, a case worker’s actions must be

16   “‘shocking, arbitrary, and egregious.’”   Anthony v. City of

17   New York, 339 F.3d 129, 143 (2d Cir. 2003) (quoting

18   Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir. 1999).

19   Further, an indication of abuse need only be “consistent

20   with some significant portion of the evidence” amassed by

21   the case worker.   Wilkinson, 182 F.3d at 108.

22       While Hesse’s investigation was far from flawless,


                                   4
1    those flaws did not constitute a violation of Appellant’s

2    Due Process rights.     Hesse’s investigation was based on

3    allegations of abuse, supplemented by non-expunged portions

4    of a prior investigation against Appellant.     The First

5    Circuit has held that the use of even expunged materials

6    does not ipso facto rise to the level of a Constitutional

7    violation.     See Kauch v. Dep’t for Children, Youth and Their

8    Families, 321 F.3d 1, 5 (1st Cir. 2003).

9         Finding the reasoning of our sister Circuit persuasive,

10   we note that Hesse’s actions were less serious than those of

11   the case worker in Kauch, since that worker did in fact

12   utilize material that had been wholly expunged.     See id. at

13   4.   We are not prepared to rule that a case worker violates

14   the rights of an alleged abuser when that case worker bases

15   a new indication of abuse partially on materials relating to

16   a prior investigation, only the final results of which have

17   been expunged.

18        Since we conclude that Hesse’s investigation did not

19   violate Appellant’s Constitutional rights, we need not reach

20   the issue of whether Hesse enjoys qualified immunity for her

21   actions.     Summary judgment in her favor was appropriate.

22   Further, since no Constitutional violation has been


                                     5
1    established, we affirm the grant of summary judgment in

2    favor of DHFS on the claim of failure to train and

3    supervise.   We have considered Appellant’s remaining

4    arguments and find them without merit.

5        For the foregoing reasons, the judgment of the District

6    Court is hereby AFFIRMED.

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




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