23-7610 Stollman v. Williams
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 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 30th day of September, two thousand twenty-five.
PRESENT:
JOHN M. WALKER, JR., SUSAN L. CARNEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
SHMUEL STOLLMAN and ELISA STOLLMAN, individually and on behalf of their infant children E.S. and L.S.,
Plaintiffs-Appellants,
v. No. 23-7610
LAKEASHA WILLIAMS, MIRIAM ORTIZ- DOWNES, GLENN HYMAN, KAI HAYES, CITY OF NEW YORK, ANNEMARIE FUSCHETTI, EBONY RUSSELL, CARMELA MONTANILE, TONYA WHEELOCK, EDWARD O’CONNOR, KEREN ENNETTE,
Defendants-Appellees. * _____________________________________
For Plaintiffs-Appellants: CAROLYN A. KUBITSCHEK (David J. Lansner, on the brief), Lansner & Kubitschek, New York, NY.
For Defendants- AMY MCCAMPHILL (Richard Dearing, Appellees: Melanie T. West, on the brief), for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (John P. Cronan, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the September 27, 2023 judgment of the
district court is AFFIRMED. 1
Shmuel Stollman and Elisa Stollman (“Plaintiffs”), the parents of a severely
autistic and nonverbal child (“E.S.”), appeal from a grant of summary judgment
* The Clerk of Court is respectfully directed to amend the case caption as set forth above.
1 Plaintiffs also appeal from the district court’s order entered on September 30, 2024 denying their
motion to alter the judgment. Because Plaintiffs do not advance any arguments apart from those challenging the grant of summary judgment itself, we consider any separate challenge to that September 30, 2024 order abandoned. See Anderson v. Branen, 27 F.3d 29, 30 (2d Cir. 1994).
2 in favor of the City of New York (the “City”), officials with the City’s
Administration for Children’s Services (“ACS”) (the “ACS Defendants”), and
school employees (the “School Defendants”) (together, “Defendants”) on various
claims stemming from the School Defendants’ decision to report Plaintiffs to ACS
for suspected child abuse. After the ACS Defendants withdrew a petition they
had filed against Mr. Stollman pursuant to Article 10 of the New York Family
Court Act, N.Y. Fam. Ct. Act § 1011 et seq. (“Article 10”), Plaintiffs brought suit
under 42 U.S.C. § 1983, individually and on behalf of their infant children, for
violations of the First, Fourth, and Fourteenth Amendments and New York state
law. We assume the parties’ familiarity with the underlying facts, procedural
history, and issues on appeal.
We review a district court’s grant of summary judgment de novo and view
the evidence in the light most favorable to the non-moving party below. See James
v. N.Y. Racing Ass’n, 233 F.3d 149, 152 (2d Cir. 2000). Summary judgment is
appropriate “only when there is no genuine issue as to any material fact.” Id. A
dispute is “genuine” when the evidence on the issue “would permit a reasonable
juror to find for the party opposing the motion.” Figueroa v. Mazza, 825 F.3d 89,
98 (2d Cir. 2016).
3 I. First-Amendment Retaliation Claims Against the School Defendants.
Plaintiffs assert that, in retaliation for Mrs. Stollman’s complaints against
E.S.’s school and teachers, the School Defendants filed a report with ACS that
falsely suggested that the Stollmans had neglected and sexually abused E.S. “To
state a First Amendment retaliation claim, a plaintiff must establish that: (1) his
speech or conduct was protected by the First Amendment; (2) the defendant took
an adverse action against him; and (3) there was a causal connection between this
adverse action and the protected speech.” Cox v. Warwick Valley Cent. Sch. Dist.,
654 F.3d 267, 272 (2d Cir. 2011).
Here, there is no dispute that Mrs. Stollman engaged in protected speech
when she complained to the school about its substandard care of E.S., who –
according to Mrs. Stollman – returned home on various occasions with bruises and
a wet diaper. The parties do not dispute that school psychologist Annemarie
Fuschetti, one of the school officials involved in making the report, was aware of
that speech. But even assuming that it could be said that the school’s call to ACS
one day after Mrs. Stollman’s most recent complaint to the school by itself
established the requisite causal link between those two events, the record contains
4 no evidence from which a reasonable factfinder could find that the school’s call to
ACS was adverse or retaliatory.
We have recognized that the protective actions of mandated reporters such
as teachers, who face liability for inadequate action, are due “unusual deference,”
and that “absent a clear showing of retaliatory or punitive intent,” such decisions
“cannot be considered adverse or retaliatory.” Id. at 274 (internal quotation
marks omitted); see also Dole v. Huntington Union Free Sch. Dist., 699 F. App’x 85,
87 (2d Cir. 2017) (“If the school officials who called [Child Protective Services] have
a sufficient basis to suspect potential abuse, we owe unusual deference to their
decisions to report reasonably suspected abuse and neglect.” (alteration accepted
and internal quotation marks omitted)).
Nothing in the record suggests that the School Defendants acted with
retaliatory or punitive intent. Although Plaintiffs insist that the School
Defendants’ allegations concerning E.S.’s poor hygiene were knowingly false and
misleading, they offer no evidence of such willfulness or bad faith. And while
Plaintiffs counter that a prior investigation into similar reports of neglect on the
part of the Stollmans had been dropped by ACS, the agency noted when it closed
this case in February 2017 that “school officials continue to report the concerns that
5 E.S. . . . arrives at school with soiled diaper.” App’x at 307 (alteration accepted
and emphasis added). There is nothing in the record to suggest that Fuschetti or
another school official involved in making the report was anything other than
reasonably troubled by the reports of E.S.’s poor hygiene. And the fact that a
prior investigation was dropped does not support the inference that a later report
was pretextual.
As for the suspected sexual abuse, there is no dispute that, beginning in
October 2017, E.S. returned home from school crying. Around this same time, on
October 19, a substitute teacher reported to another school psychologist, Edward
O’Connor, that E.S. selected troubling words – including “sleeping bag” and
“men” – on an iPad given to her by the school for communication purposes. Id.
at 309 (internal quotation marks omitted). Later that day, O’Connor questioned
E.S. about whom she slept with, prompting E.S. to select the words “thick more
men” and “asleep, no, cover, teacher.” Id. at 312–13 (internal quotation marks
omitted). Several days later, on the morning of October 27, Fuschetti was
informed both that E.S. had returned home from school crying and that
paraprofessional Kathleen Wheelock had observed E.S. pressing “man, finger,
butt” – albeit as part of a longer string of “room men room town shopping cart
6 doghouse watch seatbelt finger man lunch they are going history thunder man
finger butt many tired.” Id. at 328 (internal quotation marks omitted).
While Plaintiffs now posit that E.S. was incapable of communicating via the
iPad, Mr. Stollman himself testified that he could communicate with E.S.
“[t]hrough her communication device, an iPad,” Dist. Ct. Doc. No. 133-7 at 20, and
Tonya Wheelock, E.S.’s one-on-one classroom paraprofessional, testified that E.S.
“used the iPad to express her needs and her wants,” Dist. Ct. Doc. No. 150-3 at 47.
The School Defendants were not obliged to ignore the possibility that E.S.’s
emotional state and her choice of words on the iPad were linked. Nor were they
required to rule out all possible alternatives before filing the report. In fact,
school officials have a legal obligation to report concerning activity to ACS. See
N.Y. Soc. Serv. L. § 413(1)(a) (requiring school officials to file a report “when they
have reasonable cause to suspect” child abuse). Though E.S. pressed the more
troubling words as part of larger sequences, the school observed a pattern that
emerged over the course of about eight days. Both ACS’s written summary of the
school’s initial call and the school’s follow-up report merely chronicled these
observations, and neither report ever asserted that sexual abuse had occurred, let
alone that Mr. Stollman was suspected of sexual abuse. To the contrary, the ACS
7 call summary acknowledged that it was “[u]nknown what specifically [was]
occurring and who [was] responsible.” Dist. Ct. Doc. No. 130-7 at 5.
Keeping in mind that mandatory reporters “deserve unusual deference
from the judiciary,” Cox, 654 F.3d at 274 (internal quotation marks omitted), we
agree with the district court that, on the record before it, no reasonable factfinder
could conclude that the school’s report to ACS was adverse or retaliatory. We
therefore affirm the district court’s grant of summary judgment on Plaintiffs’ First
Amendment retaliation claims.
II. Fourth Amendment Claims Against the ACS Defendants for Unreasonably Searching E.S.
An inspection of a child’s body for evidence of abuse may implicate the
child’s Fourth Amendment interests. Tenenbaum v. Williams, 193 F.3d 581, 605–06
(2d Cir. 1999). Because parents have “rights to control the care and custody of
their children,” we have held that “intrusive examinations of their children for
evidence of abuse [may] not be undertaken without parental consent or judicial
authorization.” N.G. v. Connecticut, 382 F.3d 225, 237 (2d Cir. 2004). Plaintiffs
contend that there is a genuine dispute as to whether they consented to an
inspection of E.S. that took place during a home visit by ACS caseworker Miriam
Ortiz-Downes (“Ortiz”), during which Mr. Stollman lifted E.S.’s dress and Mrs.
8 Stollman removed E.S.’s diaper.
We agree with the district court that the Stollmans consented to this
examination. Mrs. Stollman admitted at her deposition that, before inspecting
E.S.’s body, Ortiz asked, “Can I just take a look for any marks or bruises[?],” to
which Mrs. Stollman responded, “Okay.” Dist. Ct. Doc. No. 133-8 at 50. Mr.
Stollman similarly confirmed at his deposition that he “agree[d] that the body
check should be conducted.” Dist. Ct. Doc. No. 133-7 at 44.
Plaintiffs nevertheless contest the voluntariness of their consent because
Ortiz “announc[ed]” her authority to inspect E.S. in a manner that effectively
communicated that “the [parents] ha[d] no right to resist.” Bumper v. North
Carolina, 391 U.S. 543, 550 (1968). But the record belies that contention. During
his deposition, Mr. Stollman characterized Ortiz’s request as a “suggest[ion] to see
[E.S.’s] body,” Dist. Ct. Doc. No. 133-7 at 42 (emphasis added), and Mrs. Stollman
similarly testified that Ortiz simply asked if she could “just take a look for any
marks or bruises,” Dist. Ct. Doc. No. 133-8 at 50. The more authoritative
statements attributed to Ortiz – such as “I have to look at marks and bruises” and
“[i]t’s my job,” id. at 84 – fall short of demonstrating coercion. Cf. United States v.
Ruiz-Estella, 481 F.2d 723, 728 (2d Cir. 1973) (finding coercion when uniformed
9 officer took defendant to a secluded stairwell and told him “he would have to go
through a baggage search” (internal quotation marks omitted)); United States v.
Mapp, 476 F.2d 67, 78 (2d Cir. 1973) (finding coercion when officer entered
defendant’s bedroom with a gun in hand, announced that she was under arrest,
and said “[w]e want the package” (internal quotation marks omitted)).
In addition, Plaintiffs were present the entire time and even assisted Ortiz
with aspects of the inspection. This is not a situation where the parents were
never consulted or were kept in the dark while the search was being conducted
for an investigatory purpose. Cf. Van Emrik v. Chemung Cnty. Dep’t of Soc. Servs.,
911 F.2d 863, 865 (2d Cir. 1990) (finding no consent when “parents were not
consulted” about x-rays and “[t]heir understanding was that some additional x-
rays of the [child’s] injured leg were [medically necessary]”). Accordingly, we
affirm the grant of summary judgment in favor of the ACS Defendants on the
unreasonable search claim brought on behalf of E.S.
III. Fourth Amendment Claims Against the ACS Defendants for Malicious Prosecution.
Plaintiffs next claim that the ACS Defendants’ filing of an Article 10 petition
against Mr. Stollman amounted to malicious prosecution in violation of his Fourth
Amendment rights. We agree with the district court that, at the very least, the
10 ACS Defendants were entitled to qualified immunity as to those claims.
Qualified immunity shields “officials from suit unless [1] the official
violated a statutory or constitutional right that [2] was clearly established at the
time of the challenged conduct.” Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir.
2014) (internal quotation marks omitted). To prevail on a malicious-prosecution
claim under section 1983, a plaintiff must establish “(1) the commencement or
continuation of a criminal proceeding by the defendant against the plaintiff, (2) the
termination of the proceeding in favor of the accused, (3) the absence of probable
cause for the criminal proceeding,” “(4) actual malice,” and “(5) a sufficient post-
arraignment liberty restraint to implicate the plaintiff's Fourth Amendment
rights.” Alexander v. City of Syracuse, 132 F.4th 129, 158 (2d Cir. 2025) (internal
quotation marks omitted). We have never found that the initiation of a child-
removal proceeding may give rise to a malicious prosecution claim. Cf. id.
(referencing “criminal proceeding[s]”); Manganiello v. City of New York, 612 F.3d
149, 161 (2d Cir. 2010) (same); see also Emerson v. City of New York, 740 F. Supp. 2d
385, 392 (S.D.N.Y. 2010) (finding that plaintiff could not bring malicious-
prosecution claim “since he was neither arrested nor otherwise detained in
connection with the neglect and abuse proceedings”). Given the lack of authority
11 for such a claim, qualified immunity is appropriate because Plaintiffs’ “purported
[Fourth Amendment] right was not clearly established by prior case law.” Booker
v. Graham, 974 F.3d 101, 106 (2d Cir. 2020) (internal quotation marks omitted).
Accordingly, the district court properly granted ACS Defendants qualified
immunity on Plaintiffs’ malicious prosecution claims.
IV. Fourteenth Amendment Due Process Claims Against the ACS Defendants.
Undoubtedly, “[t]he interest of natural parents in the care, custody, and
management of their child is a fundamental liberty interest protected by the
Fourteenth Amendment.” Cox, 654 F.3d at 275 (internal quotation marks
omitted). Plaintiffs contend that the removal of Mr. Stollman from his home and
the attendant separation from his minor children violated Plaintiffs’ rights to
substantive and procedural due process, beginning when Mr. Stollman was asked
to leave for three days before the child-safety conference was held and continuing
until he was allowed to return on February 14, 2018, almost four months later.
We disagree.
A. Procedural Due Process.
Because “[p]arents . . . have a constitutionally protected liberty interest in
the care, custody[,] and management of their children,” they generally may not be
12 deprived of that interest “without . . . due process.” Tenenbaum, 193 F.3d at 593.
Plaintiffs contend that their due process rights were violated when Defendants
failed to provide Mr. Stollman with a hearing prior to his removal from the home.
We have held, however, that “officials may remove a child from his or her parents’
custody before a hearing is held where there is an objectively reasonable basis for
believing that a threat to the child’s health or safety is imminent.” Gottlieb v.
County of Orange, 84 F.3d 511, 520 (2d Cir. 1996). Given E.S.’s concerning iPad
use, and – more importantly – Ortiz’s personal observations of what she deemed
to be inappropriate contact between Mr. Stollman and E.S, we cannot say that a
pre-deprivation hearing was required here. See Southerland v. City of New York,
680 F.3d 127, 149 (2d Cir. 2012) (“[T]he peril of sexual abuse” is an “imminent
danger justifying emergency removal.” (internal quotation marks omitted)). To
the extent Plaintiffs argue the three-day delay between Mr. Stollman’s departure
from the home on October 27 and his post-deprivation hearing on October 30 was
unreasonable, we have concluded that similar delays do not give rise to a
procedural due-process violation. See Cecere v. City of New York, 967 F.2d 826, 830
(2d Cir. 1992) (determining that four-day delay did not violate due process clause).
Plaintiffs next argue that they were deprived of procedural due process
13 because Defendants conducted a constitutionally inadequate investigation. But
given the “need for unusual deference” to the decisions of state officials
confronted with allegations of child abuse, we have held that “[a]n investigation
passes constitutional muster provided simply that case workers have a reasonable
basis for their findings of abuse.” Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d
89, 104 (2d Cir. 1999) (internal quotation marks omitted). Though Plaintiffs
criticize several aspects of the investigation, it cannot be said that ACS lacked a
reasonable basis for its investigation. Indeed, while Plaintiffs hotly dispute E.S.’s
ability to communicate via her iPad (and thus discount the significance of E.S.’s
selection of certain words that might normally be suggestive of sexual abuse in the
home), the ACS Defendants sent their own caseworker to visit the home, which
“generated significant information supporting a finding of abuse” after she
observed what she perceived to be inappropriate kissing and touching between
Mr. Stollman and E.S. Id. at 106. Plaintiffs attempt to discredit Ortiz’s
observations by insisting that the ACS Defendants ignored the opinion of a family
caregiver, Jackie, and E.S.’s pediatrician, Dr. Jeffrey Teitelbaum, who opined that
Mr. Stollman had not sexually abused E.S. But these opinions, even if sincerely
held, are not the sort of “overwhelming exculpatory information” that the ACS
14 Defendants were bound to credit over the observations of their own case worker.
Id. at 104. Considering our “unusual deference” in this area, id., we agree with
the district court that Plaintiffs cannot show that the investigation into the
suspected abuse was constitutionally inadequate.
Finally, Plaintiffs assert that the ACS Defendants fabricated evidence
against them in a manner that deprived them of a fair trial. But even putting aside
whether a hearing for the return of custody pursuant to section 1028 of the New
York Family Court Act qualifies as a “trial” for Fourteenth-Amendment purposes,
Plaintiffs point to no specific examples of “fabricated” evidence that were
produced by the ACS Defendants, relying instead on Ortiz’s deposition testimony
that she “didn’t know” whether Mr. Stollman was sexually abusing E.S. App’x
at 383 (internal quotation marks omitted). But actual knowledge was not
required. Ortiz described what she observed, which provided the basis for the
Article 10 petition. While Plaintiffs disagree with Ortiz’s conclusions, they do not
allege that she perjured herself or manufactured false facts in her report.
Disagreement alone is not enough for an unfair trial claim.
For all these reasons, Plaintiffs cannot show a procedural due-process
violation at any point from the start of the investigation to the eventual withdrawal
15 of the Article 10 petition about nine months later on July 17, 2018.
B. Substantive Due Process.
“To state a claim for a violation of th[e] substantive due process right of
[parental] custody, a plaintiff must demonstrate that the state action depriving him
of custody was so shocking, arbitrary, and egregious that the Due Process Clause
would not countenance it even if it were accompanied by full procedural
protection.” Cox, 654 F.3d at 275 (internal quotation marks omitted). Here, Mr.
Stollman was separated from his family for three days before a child-safety
conference was convened and a family-court judge approved the temporary
deprivation of custody (which Mr. Stollman himself consented to through
counsel). Such “brief removals . . . generally do not rise to the level of a
substantive due process violation, at least where the purpose of the removal is to
keep the child safe during investigation and court confirmation of the basis for
removal.” Southerland, 680 F.3d at 153 (internal quotation marks omitted)
(finding no violation for four-day separation prior to child-safety conference).
While Plaintiffs strenuously disagree with ACS’s determination that separation
was appropriate, they do not argue that ACS made its decision arbitrarily or was
motivated by some improper purpose.
16 To the extent that Mr. Stollman is asserting a due-process violation for the
period of separation that occurred after the child-safety conference, the fact that
the family court approved the three-day removal, coupled with the fact that Mr.
Stollman consented to the ongoing separation, means that “any liability” related
to the continued separation “can no longer be attributed to the [Defendants] who
removed the child.” Id. This is particularly so when the family court was not
misled by fabricated evidence. Similarly, while Plaintiffs assert that the ongoing
home visits by ACS after Mr. Stollman returned to the home amounted to coercive
interference, those visits were also approved by the family court. In any event,
“[w]here there is no actual loss of custody, no substantive due process claim can
lie.” Cox, 654 F.3d at 276. As a result, Plaintiffs cannot show a substantive due-
process violation. 2
* * *
2 Because the district court properly denied Plaintiffs’ claims against the individual defendants, Plaintiffs may not prevail on their municipal-liability claims under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). See Barrett v. Orange Cnty. Hum. Rights Comm’n, 194 F.3d 341, 350 (2d Cir. 1999). In addition, because Plaintiffs do not challenge the district court’s decision not to exercise supplemental jurisdiction over their state-law claims, we affirm the dismissal of those claims without prejudice to refiling in state court.
17 We have considered Plaintiffs’ remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court