The opinion of the court was delivered by: LEONARD D. WEXLER
Cecelia Eagleston ("plaintiff"), brings this suit under 42 U.S.C. §§ 1983, 1985, 1986 and 1988 against the County of Suffolk, the Suffolk County Police Department, former Suffolk County Police Commissioner Dewitt C. Treder, current Suffolk County Police Commissioner Daniel Guido ("Guido"), Detective Rivera ("Rivera"), and Suffolk County Police Officers Brian K. Bugge ("Bugge"), Edward Kopf ("Kopf"), Paul Kern ("Kern"), Dennis Donnelly ("Donnelly"), Jack Ozer ("Ozer"), Michael Pesale ("Pesale"), Daniel Moore ("Moore"), M.P. Milward ("Milward") and James Rooney ("Rooney") (collectively, "defendants"). Plaintiff alleges that defendants violated her rights to equal protection of the law and equal privileges and immunities as guaranteed by the Fifth, Ninth and Fourteenth Amendments by their policy of refusing to arrest her husband, who, she alleges, continuously threatened her and attacked her in violation of two Orders of Protection.
Plaintiff also brings pendent state claims based on negligence.
Now before the Court is defendants' motion, pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, to dismiss the negligence cause of action and to dismiss all individually named police officers. For the reasons stated below, the motion is granted in part and denied in part.
The following material facts are derived from plaintiff's Complaint and her Affirmation in Opposition to the instant motions.
On or about October 20, 1986, plaintiff commenced divorce proceedings against her husband, Thomas Eagleston, and he responded by throwing objects at her and by smashing plasterboard walls and breaking a door in the basement of their residence. Plaintiff called the Suffolk County Police and police officers went to the marital residence, interviewed plaintiff and her husband, and determined that there were no grounds on which to make an arrest.
Subsequently, plaintiff sought an Order of Protection against her husband, and on October 23, 1986, the Honorable William R. Geiler, a Suffolk County Supreme Court Judge, signed an Order to Show Cause, returnable on November 3, 1986, which included the following "temporary order of protection": "for good cause shown, pending the return date of this motion, let the defendant be ordered to refrain from any acts of violence towards the plaintiff or the infant Steven D. Eagleston."
On November 7, 9 and 20, 1986, plaintiff called the Suffolk County Police in response to alleged assaults, personal threats and/or destruction of her property by her husband. Her husband was not arrested.
On November 26, 1986, as a result of a contempt proceeding initiated by plaintiff which alleged violations of Judge Geiler's Order of October 23, 1986, the Honorable Judge Ralph Yachnin, a Nassau County Supreme Court Judge sitting by designation in Suffolk County, signed an Order providing that Judge Geiler's "temporary order of protection" be continued until December 8, 1986, or such further adjourned date as the Court may grant and providing plaintiff "exclusive use and occupancy of the marital residence, located at 210 Irving Street, Central Islip, New York."
Plaintiff alleges that on November 27, 1986, her husband began living in a room in the basement of the marital residence and that she saw him entering his sister's apartment, which was also located in that basement, on several occasions. Plaintiff further alleges that her husband's assaults, threats and destruction of her personal property continued, and specific incidents were reported to the Suffolk County police on December 7, 8, 9, 19 and 24, 1986. Plaintiff's husband was not arrested.
Tragically, on December 27, 1986, Thomas Eagleston entered the marital residence and stabbed plaintiff thirty-three times with a cutlery knife.
Plaintiff alleges that the failure of the police officer defendants to arrest her husband for the alleged violations of her Orders of Protection were intentional acts of discrimination against her as a woman, and/or as a complainant against her spouse, pursuant to an unofficial Suffolk County Police policy and in direct contravention to official Suffolk County Police Department policy as set forth in General Order No. 85-20, dated September 19, 1985, which states in relevant parts:
16.11.1 The presentation of a Family or Criminal Court Order of Protection to a Member of the Force by the petitioner constitutes authority to take the person named therein, (the respondent) into custody for an alleged violation of the terms stipulated thereon, the petitioner being the complainant. If probable cause exists that the respondent violated the terms of the Order of Protection, an arrest will be made. There will be no attempts to reconcile or mediate the situation.
16/11.1B In a situation where the respondent is not at the scene, (although a respondent may be taken into custody at any place not necessarily at the scene of the alleged violation) the police officer will advise the petitioner of the following options, depending on which Order of Protection applies:
1. Family Court Order of Protection; the petitioner can respond to the Probation Intake Unit in Hauppauge and file a petition, violation of Order of Protection.
2. Criminal Court Order of Protection; the petitioner can respond to the precinct Crime Control Section and file a complaint in accordance ...