Johann BUKOVINSKY, Plaintiff-Appellant, v. SULLIVAN COUNTY DIVISION OF HEALTH AND FAMILY SERVICES, Star Hesse, sued in her individual capacity, Defendants-Appellees, 408 F. App'x 406

SUMMARY ORDER Johann Bukovinsky [“Appellant”] appeals from a judgment of the United States District Court for the Southern District of New York (Robinson, J.), which granted

summary judgment to Defendant Hesse [“Hesse”], and a subsequent order of the Southern District (Young, /., sitting by designation from the District of Massachusetts), which granted

summary judgment to Defendant Sullivan County Division of Health and Family Services [“DHFS”]. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. Appellant asks this Court to vacate and reverse the decisions of the District Court, and to remand the matter for a trial on the merits. Specifically, Appellant contends that the District Court erred in granting

summary judgment to Hesse on the claim that she violated Appellant’s liberty interest in maintaining a parental relationship with his daughter. Appellant also contends that the District Court erred in granting

summary judgment to DHFS on the claim that that governmental entity failed to properly train and supervise its employee Hesse. The parties have briefed the issue of qualified immunity for Hesse as an alternative ground on which this Court might see fit to affirm the grant of

summary judgment in her favor. In 1995, Appellant was indicated by DHFS for inadequate guardianship, pursuant to New York Soc. Serv. L. § 424(7). That indication was subsequently overturned, marked as unfounded, and expunged. However, an indication against Appellant’s then-wife for inadequate guardianship, along with investigative materials relating to charges against both parents, were not expunged. In March 2001, new allegations against Appellant by one of his daughters prompted Hesse, a case worker employed by DHFS, to begin a new investigation.

Hesse eventually indicated Appellant, based in part on non-expunged materials from Appellant’s 1995 case file. In or about November 2002, an Administrative Law Judge ordered that this new indication against Appellant be changed to “unfounded” and the file be sealed, after DHFS conceded that the indication could not be sustained. The investigation of a child services worker “passes constitutional muster provided simply that [the] case worker [has] a ‘reasonable basis’ for [his or her] findings of abuse.” Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir.1999) (quoting van Emrik v. Chemung Cnty.

Dep’t of Soc. Servs., 911 F.2d 863, 866 (2d Cir.1990)). Supplementing the general requirement of reasonableness, this Court has explained that in order to rise to the level of a Due Process violation, a case worker’s actions must be “ ‘shocking, arbitrary, and egregious.’ ” Anthony v. City of New York, 339 F.3d 129, 143 (2d Cir.2003) (quoting Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir.1999)). Further, an indication of abuse need only be “consistent with some significant portion of the evidence” amassed by the case worker. Wilkinson, 182 F.3d at 108.

While Hesse’s investigation was far from flawless, those flaws did not constitute a violation of Appellant’s Due Process rights. Hesse’s investigation was based on allegations of abuse, supplemented by non-expunged portions of a prior investigation against Appellant. The First Circuit has held that the use of even expunged materials does not ipso facto rise to the level of a Constitutional violation. See Kauch v. Dep’t for Children, Youth and their Families, 321 F.3d 1, 5 (1st Cir.2003).

Finding the reasoning of our sister Circuit persuasive, we note that Hesse’s actions were less serious than those of the case worker in Kauch, since that worker did in fact utilize material that had been wholly expunged. See id. at 4. We are not prepared to rule that a case worker violates the rights of an alleged abuser when that case worker bases a new indication of abuse partially on materials relating to a prior investigation, only the final results of which have been expunged.

Since we conclude that Hesse’s investigation did not violate Appellant’s Constitutional rights, we need not reach the issue of whether Hesse enjoys qualified immunity for her actions.

Summary judgment in her favor was appropriate. Further, since no Constitutional violation has been established, we affirm the grant of

summary judgment in favor of DHFS on the claim of failure to train and supervise. We have considered Appellant’s remaining arguments and find them without merit. For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.