The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 asserting that Defendants are liable to him for failing to properly supervise a probationer who grievously injured him. See Compl. [dkt. # 1]; proposed Amed. Compl. [dkt. # 15-1]. Defendants have moved to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6). Mot. [dkt. # 13]. Plaintiff has responded by bringing a cross-motion to amend the Complaint, seeking to cure some of the purported defects which form the basis of Defendants' motion to dismiss. See Cross-Mot. [dkt. # 15]. Defendants have opposed the cross-motion, contending that amendment would be futile. See Reply & Opp. [dkt. # 16].
Because leave to amend should be freely given when justice dictates, seeKassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 242-44 (2d Cir. 2007); Fed. R. Civ. P. 15(a), and because Defendants' arguments of futility are the same as those attacking the Complaint, the Court will consider the motion to dismiss as applied to the proposed Amended Complaint.Devarnne v. City of Schenectady, 2011 WL 219722, at *2 (N.D.N.Y. Jan. 21, 2011).
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65. "Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. "'[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'" Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at 570). A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement." Ashcroft, 129 S. Ct. at 1949. Legal conclusions must be supported by factual allegations.
Iqbal, at 1950. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. 557) (internal quotations omitted).
The factual allegations in the proposed Amended Complaint, deemed to be true for purposes of this motion, concern the actions of a third party, Harry E. Klages, II, and Defendants' interactions with him.*fn1 Klages was twice convicted in New York state court of felony attempted assault arising from his unprovoked attacks (one with a hammer and one with a knife) on random members of the community. He has a history of mental illness and alcohol and drug use. Klages was placed on probation as a result of his convictions, and was under the probationary supervision of Defendants at all times relevant to this action. As conditions of his probation, Klages was, inter alia, (1) directed to engage in mental health, alcohol and substance abuse counseling; (2) prohibited from purchasing, possessing, or consuming alcoholic beverages; (3) ordered to refrain from the use, possession, or sale of any narcotics; (4) directed to surrender all firearms and weapons to the local sheriff's office; and (5) prohibited from shipping, transferring, purchasing or transporting any weapons.
Klages's father, step-mother, and girlfriend orally notified the St. Lawrence County Probation Department Director and Klages's Probation Officer that Kleges failed to enter into alcohol and substance abuse counseling because he had not received the proper referral from the Probation Department, and further advised that Klages continued to use alcohol. Klages's step-mother also wrote letters to the Probation Department advising of Klages's "continuing and violent behavior and alcohol use." Am. Compl. ¶ 23. Defendants were also aware that Klages "maintained weapons on his person and/or in his residence, including but not limited to [a] very large butcher knife." Id. ¶ 31.*fn2
Defendants did not report any of Klages's asserted probation violations to the state court that imposed probation, or make any other efforts to enforce the above-cited terms of Klages's supervision. Further, the County Probation Department Director and Klages's Probation Officer told Klages's father and step-mother to "stop bothering the Probation Department" with "unrealistic expectations," and threatened them with criminal prosecution if they did not stop "harassing" the Probation Department and its employees regarding Klages's asserted probation violations. Id. §§ 26-27.
On January 30-31, 2008, Klages hosted an all night party at his apartment in Massena, New York. Plaintiff attended as a guest. At the party, Klages possessed and consumed alcoholic beverages and narcotic substances and became drunk and violent. "In the early morning hours of January 31, 2008, Mr. Klages unlawfully detained [Plaintiff] against his will. Thereafter, he used multiple weapons to inflict grievous bodily harm on [Plaintiff], such that Mr. Klages' physically assaulted, tortured, mutilated, dismembered and disemboweled [Plaintiff] over a significant period of time in an attempt to murder him." Id. ¶ 37.
Plaintiff contends that he suffered the brutal attack from Klages "[a]s a result of the multiple intentional actions, negligent acts and negligent omissions and failures to act by the defendants," id., including the failure to properly supervise Klages and to enforce the terms and conditions of his court ordered probation. Id. ¶¶ 54-57. In this regard, Plaintiff alleges that Defendants' "reckless indifferen[ce] to Mr. Klages' behavior," id. ¶ 58, "created the dangerous situation which resulted in harm to Plaintiff," id. ¶ 60, and which was the proximate ...