2. The motions to dismiss
Presently before the Court are two motions to dismiss. The first was filed by the defendant Dr. Townley and later adopted by the defendant Dr. Caramore, two of the members of the hearing panel which ultimately suspended the plaintiff. As stated above, Taylor claims that the panel's decision was arbitrary and capricious and against the weight of the evidence. Moreover, the plaintiff contends that the decision was motivated by racial animus. Dr. Townley and Dr. Caramore contend that the claims against them should be dismissed on the basis of absolute immunity, qualified immunity, collateral estoppel and failure to allege facts sufficient to state a claim pursuant to Fed. R. Civ. P. 8. The Court notes that while Dr. Townley and Dr. Caramore's motion is based on affirmative defenses, these defenses are apparent on the face of the Complaint and therefore reviewable on a motion to dismiss. See Richmond Fredricksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), citing, Wright & Miller, Federal Practice and Procedure § 1357 at 348-49 (2d ed. 1990).
The School System filed a separate motion to dismiss. In their 12(b)(6) motion, the remaining defendants contend that the plaintiff's state law claims, brought pursuant to the New York Executive Law must be dismissed for failure to serve a timely notice of claim. Furthermore, the equal protection and due process claims should be dismissed because the allegations are insufficient to state a claim, and alternatively because they are barred under the doctrine of collateral estoppel. According to the School System, the section 1983 claims should also be dismissed both because the allegations do not satisfy the requirements of Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), and because they are precluded by the existence of related Title VII claims, see 42 U.S.C. § 2000e-2 ("Title VII").
3. The hearing panel members motion to dismiss
As stated above, Drs. Townley and Caramore move to dismiss the cause of action against them on the basis of absolute immunity, qualified immunity, collateral estoppel and failure allege sufficient facts to state a claim. However, before addressing the substance of this motion, the Court notes, parenthetically that the plaintiff has moved pursuant to Fed. R. Civ. P. 56(f) for continuance of the motions to dismiss until the plaintiff has an opportunity to obtain a affidavit from the third hearing panel member not named in the Complaint. That motion is denied. Both motions to dismiss and the motion for a continuance were originally scheduled to be heard on August 11, 1995. It is now December 1, 1995. Three and one-half months should have been ample time to obtain, or at least attempt to obtain any necessary affidavits. No further extension is warranted.
Turning to the substance of the remaining motions, defendants Townley and Caramore first argue that Taylor's claims should be dismissed on the ground of absolute immunity. "Absolute immunity confers complete protection from civil suits." Tulloch v. Coughlin, 50 F.3d 114, 116 (2d Cir. 1995) (distinguishing absolute immunity from qualified immunity which protects government officials from civil suit if the official did not violate a clearly established right that a reasonable person would have been aware of, or it was objectively reasonable for the official to believe that his actions would not violate a clearly protected right). Although 42 U.S.C. § 1983 does not explicitly address immunity, it is well settled by case law that judges are entitled to absolute immunity from civil suits brought pursuant to section 1983. See Butz v. Economou, 438 U.S. 478, 496, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978) (stating that section 1983 was not intended to eliminate state or federal judge immunity existing under common law), citing, Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967); Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 20 L. Ed. 646 (1872). The Supreme Court has extended the absolute immunity doctrine to cover federal hearing examiners and administrative law judges in addition to Article III judges. Butz, 438 U.S. at 512-14. whether other non judicial officers merit absolute immunity depends upon the "functional comparability" of their responsibilities to those of a judge. Imbler v. Pachtman, 424 U.S. 409, 423 n.20, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976); Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994). The test is based on whether the act at issue is judicial in character. Forrester v. White, 484 U.S. 219, 228-29, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988). The following factors are to be considered when applying this functional approach:
(a) the need to assure that the individual can perform his functions without harassment or intimidation;