Case Notes

(The couple's divorce was granted in 2003 and the father was given custody. Gordon was granted visitation rights. This was later changed to supervised visitation because Gordon had, among other things, failed to pick up and drop off her son when scheduled, and had absconded with the boy for several days without permission.)

Eight years later, during a Family Court hearing, Gordon learned that the report of the 2000 ACS investigation had been closed out as “indicated.” A designation of “indicated” means that “an investigation [has] determine[d] that some credible evidence of the alleged abuse or maltreatment exists.” N.Y. Soc. Serv. Law ' 412(7). Gordon claimed that the investigators had found that the allegations were unsubstantiated yet nevertheless put “indicated” in their report. She requested that the report be expunged of this designation or legally sealed. On June 5, 2008, the New York State Office of Children and Family Services denied that request. However, on further referral to the Office of Children and Family Services Bureau of Special Hearings, ACS advised the Bureau that it would not oppose Gordon's request for expungement or closure of the 2000 report because eight years had passed, all the problems it highlighted had been addressed and the child affected was now doing fine in his father's custody. Settlement negotiations followed, but nothing was ever finalized to the satisfaction of all parties.

Gordon therefore brought a federal malicious prosecution claim under 42 U.S.C. ' 1983 against the three named plaintiffs, all of whom she accused of investigating, or taking part in investigating, her neglect case and maliciously concluding that it was substantiated when they knew that it was not. She also brought five state-law causes of action: malicious prosecution against all defendants, intentional infliction of emotional distress against all defendants, negligent hiring against the municipal defendants, negligent retention and supervision against the municipal defendants, and negligent misrepresentation against all defendants.

On motion for summary judgment on all counts, the court began with the federal claim. The U.S. Court of Appeals for the Seventh Circuit observed that “[i]n order to prevail on a ' 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his [or her] rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law.” Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (citations omitted). And to make out a malicious prosecution claim under New York law, a plaintiff is “required to show the following: '(1) the defendant initiated a prosecution [*21] against plaintiff, (2) without probable cause to believe the proceeding can succeed, (3) the proceeding was begun with malice[,] and[ ] (4) the matter terminated in plaintiff's favor.'” Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016) (alterations in original) (quoting Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010)). In addition, when a malicious prosecution claim is brought based on a civil proceeding, a plaintiff must show a “special injury,” which is defined as “some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit.” Engel v. CBS, Inc., 93 N.Y.2d 195 (1999).

So, the first question the court asked concerning the malicious prosecution claim under ' 1983 was whether there had been a violation of Gordon's Fourth Amendment right to be free of unreasonable searches and seizures ' but no such claim had been made. Gordon might have asserted that her son had been “seized” when she lost custody of him, but the liberty interest involved in such a seizure belonged to her son, and not to her. (As a parent, Gordon would have been entitled to claim an unlawful seizure on her son's behalf, but she did not do so in this case.)

The court allowed that Gordon might have meant instead to assert a claim for violation of her substantive due process rights that resulted in her losing her constitutionally protected right to the care, custody and management of her child. However, if that was what she meant to do, the case must still be dismissed because the court that granted custody to Gordon's ex-husband never saw the 2000 ACS report. Therefore, Gordon would be unable to prove that the report ' even if it were erroneous and made maliciously ' had anything to do with the judge's decision in the custody matter. Therefore, Gordon could not show causation, based on her allegations.

Having dismissed the one federal claim, the court declined to exercise supplemental jurisdiction over the remaining state law claims, and dismissed them without prejudice.

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Burden of Proof in Immigration Case

The U.S. Court of Appeals for the Seventh Circuit has determined that immigration authorities erroneously placed the burden on a widow to prove that her short marriage was bona fide, when in fact her husband's death prior to the deadline for filing a joint petition to remove the condition on her permanent residency status shifted the burden to the government to prove that the marriage was not entered into in good faith if it wanted to deny her permanent resident status. Putro v. Lynch, 2016 U.S. App. LEXIS 12529 (7th Cir. 7/7/16).

In this case, a woman petitioned the U.S. Court of Appeals for review from an order of the Board of Immigration Appeal, which had affirmed an Immigration Judge's order of deportation. Vera Putro first entered the United States in 1999 on a foreign-exchange student visa. She stayed past the four-month term of that visa and in 2004 married U.S. citizen Michael Zalesky. Based on that marriage, she was granted conditional permanent residency ' the condition being that her marriage last at least until within three months of the two-year anniversary of her marriage, at which time she and her husband would need to petition jointly for her permanent residency. See 8 U.S.C. ' 1186a(c)(1)(A), (d)(2); 8 C.F.R. ' 216.4(a)(1). Unfortunately, Putro's husband died just two years after they were married, but before the time for filing had passed. Because she could no longer file jointly with her husband, Putro filed a Form I-751 Petition to Remove Conditions on Residence, on which she indicated that she sought a waiver of the joint-filing requirement because her spouse had died.

U.S. Citizenship and Immigration Services construed the petition as a request for a discretionary waiver of the joint-petition requirement. According to 8 U.S.C. ' 1186a(c)(4)(B); 8 C.F.R. ' 216.5(a)(1)(ii), discretionary waiver of the joint petition requirement may be granted if the non-citizen can show that she entered into the marriage in good faith but that the marriage was terminated (other than through the death of the spouse). The agency denied the waiver because some evidence in Putro's file ' primarily a police report prepared following the husband's death ' pointed to the marriage having been a sham.

The case next went before an Immigration Judge, who reminded Putro that she had the burden of proving that her marriage was bona fide. She produced several friends and family members who testified that they had visited the couple in their home and had socialized with them at various events. Putro testified that the marriage had been good at first, but that after the first year, marital problems developed due to her husband's drug problem, his lying, and the fact that he sometimes stayed away from home for days. The couple separated in the summer of 2006, just as they were reaching the period for filing a joint petition to seek Putro's permanent resident status. In November 2006, Putro's husband died of a drug overdose in his parents' basement.

The government called two investigative agents and the husband's parents to testify. The agents testified that the husband's parents had told them their son had been paid to marry Putro so that she could gain citizenship. At the hearing, the husband's parents both denied having told the investigative agents these things about their son's marriage. The agents also testified that a friend of the husband's had told them the marriage was entered into in order to get Putro permanent residency. Putro objected to this testimony as heresay.

The Immigration Judge concluded that Putro had failed to establish by a preponderance of the evidence that her marriage was bona fide and concluded that she was removable from the United States. The Board of Immigration Appeals upheld that decision, agreeing that Putro had failed to prove that her marriage was not a sham. As to the heresay objection, the Board found no error, determining that Putro's right to cross-examine the witness was satisfied by her ability to cross-examine both investigative agents about their conversations with the husband's friend.

The Seventh Circuit found, however, that Putro did not need a waiver of the joint-filing requirement because her husband's death during the conditional period exempted her from the joint-filing requirement. And in “mistakenly evaluating her petition as a request for a waiver, the agency erroneously placed on Putro the burden of proving that the marriage was bona fide,” said the court. That error shifted the burden of proof to Putro, where it should not have been. This being the case, the Seventh Circuit remanded the case so that the Immigration Judge could evaluate Putro's petition under the proper standard of proof.

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