The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs-distributee of Kristin Mary Palumbo Longo ("Kristin"), administrator of her estate, and guardians of the remaining distributees-bring this action against defendants for violations of Kristin's federal constitutional rights. The defendants include: the estate of Officer Joseph A. Longo, Jr.; Daniel LaBella ("LaBella"), former Chief of the Utica Police Department and current Commissioner of Public Safety; David Roefaro ("Roefaro"), Mayor of Utica; the City of Utica and the Utica Police Department (collectively "the City" or "UPD")*fn1 ; and John/Jane Doe. Plaintiffs assert six causes of action pursuant to 42 U.S.C. § 1983*fn2 as well as two pendent state law claims arising from the September 28, 2009, murder of Kristin by her husband, Utica police officer Joseph A. Longo, Jr. ("Longo"). Plaintiffs seek monetary damages.
LaBella, Roefaro, and the City/UPD ("defendants") have filed a 12(b)(6) motion to dismiss the section 1983 claims and argue: (1) Longo was not acting under color of state law at the time of the murder; (2) the complaint fails to allege that LaBella, Roefaro, or the City/UPD violated any of Kristin's civil rights; (3) LaBella and Roefaro are entitled to qualified immunity; (4) plaintiffs fail to state equal protection and conspiracy claims; and
(5) defendants did not have a duty to protect Kristin. Plaintiffs oppose and seek to file an amended complaint and corrected summonses. Oral argument was heard on February 24, 2011, in Utica, New York. Decision was reserved at that time.
The following facts, taken from the proposed amended complaint, are assumed true for purposes of this motion.
In March 2009 LaBella surreptitiously took a civil service test to become police chief of a town or municipality. This was an improper test for applicants seeking to become chief of police of a city the size of Utica. Roefaro then passed over qualified candidates who had earned scores equal to or higher than LaBella and appointed LaBella as chief despite knowing that he lacked the requisite credentials and abilities. LaBella was close friends with Longo and had been partners with him for many years on the UPD.
Kristin suffered extensive verbal, physical, and mental abuse at the hands of Longo during their marriage. Longo was also abusive towards their children. The abuse ranged in severity from rude comments and offensive name-calling to pushing and death threats made while brandishing a gun. On August 13, 2009, Longo threatened to kill himself and the family members while holding his service revolver and stating: "Today is the day I go postal on all of you." Kristin was reluctant to report this incident to the UPD because one of Longo's supervisors had previously told her that if she reported "anything serious" about her husband he may be suspended, which would have a negative impact on the family's finances. A supervisor had also discouraged her from seeking an Order of Protection against Longo in the past.
Nonetheless, Kristin reported the above incident to Longo's supervisor on August 14, 2009. She advised the supervisor that she feared for her life and for the lives of her children. She also informed the supervisor that Longo was emotionally unstable and in need of mental health counseling-to which the supervisor replied, "I know he is not ok." In a subsequent phone call, the supervisor stated: "Kristin -- don't worry. We're all over this. We were on it as soon as you called." The supervisor repeatedly assured Kristin that the UPD would protect her and address the issue directly with Longo. Shortly thereafter Longo met with his supervisors. After this meeting, he returned to the family home while on duty and brandished his gun. Kristin fled the home and again contacted Longo's supervisor, who advised that Longo's guns would be confiscated.
On September 14, 2009, Longo put the barrel of his service revolver in his mouth and threatened to kill himself in front of Kristin and their youngest child. Kristin called Longo's supervisor and again relayed her fears. The supervisor assured her that the UPD was aware of the situation and would take action to protect her and the children. Also during this time period, Longo was disciplined for allegedly pointing his gun at a woman while working as a security guard at a high school in Utica. Fellow UPD officers became increasingly concerned at his behavior and at least one colleague urged LaBella to confiscate his weapons. LaBella refused this plea and instead affirmatively ordered that Longo be permitted to keep his guns and remain on duty. Nonetheless, one of LaBella's subordinates was concerned enough to override LaBella's order and take away Longo's weapons.
On September 28, 2009, Kristin appeared at an Oneida County Family Court hearing regarding the divorce action she had filed against Longo and was awarded exclusive possession of the family home. At approximately 3:15p.m. that afternoon, Longo entered the home, stabbed Kristin to death, and committed suicide by stabbing himself. Soon thereafter, the couple's eight-year-old son returned home from school and discovered the horrific scene.
A. Motion to Dismiss-Legal Standard
To survive a 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Although a complaint need only contain "a short and plain statement of the claim showing the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009).
Dismissal is appropriate only where plaintiffs fail to provide some basis for the allegations that support the elements of their claims. See Twombly, 550 U.S. at 570, 127
S. Ct. at 1974 (requiring "only enough facts to state a claim to relief that is plausible on its face"). When considering a motion to dismiss, the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiffs' favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
B. Cross-Motion to Amend the Complaint
The Federal Rules of Civil Procedure permit a party to amend its pleading once "as a matter of course" within 21 days after service of a motion to dismiss. Fed. R. Civ. P. 15(a)(1)(B). Plaintiffs' cross-motion to amend was filed on January 25, 2011-within 21 days of January 10, 2011, when defendants filed their motion to dismiss. Plaintiffs' request to amend the complaint and serve corrected summonses will therefore be granted as a matter of course.
Normally, this would result in the denial of defendants' present motion to dismiss without prejudice, allowing for renewal after the amended complaint is filed. However, defendants have reviewed the proposed amended complaint and filed a memorandum of law in direct response to it. Moreover, at oral argument both parties made reference only to the amended complaint. Therefore, defendants' motion to dismiss will be analyzed in light of the proposed amended complaint.
"The traditional definition of acting under color of state law requires that the defendant in a § 1983 action [has] exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997) (internal quotation marks omitted). To determine whether a police officer acted under color of law, "[m]ore is required than a simple determination as to whether an officer was on or off duty when the challenged incident occurred." Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994). Instead, a court should consider "the nature of the officer's act, not simply his duty status." Id. Liability may exist, for example, where an off-duty officer "invokes the real or apparent power of the police department" or performs "duties prescribed generally for police officers." Id.
Joseph A. Longo, Jr. was not acting under color of law when he murdered his wife. He was not on duty, nor was he invoking the authority of the police department or acting pursuant to a police regulation. See id. (off-duty police officer who was drunk in his home and shot a guest with his personal gun was not a state actor); Bonsignore v. City of New York, 683 F.2d 635, 638--39 (2d Cir. 1982) (off-duty officer who shot his wife and then committed suicide was not acting under color of state law because his act was not "committed in the performance of any actual or pretended duty"). Similarly, Longo was not using his police power or performing police duties when, although on-duty, he came to the family home and threatened his family. It cannot be said that such conduct was made possible only because he was clothed with the authority of state law.
The parties differ on how a finding that Longo did not act under color of law impacts this case. Defendants suggest it necessitates dismissal of the complaint in its entirety because there is no underlying constitutional violation to support a section 1983 claim. Plaintiffs concede that the search and seizure claim must be dismissed, but maintain that defendants can still be held liable for a substantive due process violation for failing to protect Kristin from the ...