Donohue v. Wing
| Decision Date | 17 August 2018 |
| Docket Number | CV 17-3870 (JMA) (AKT) |
| Parties | JENNIFER DONOHUE, individually and as the Administratrix of the Estate of Scott Donohue, Plaintiffs, v. JOSEPH WING, MICHAEL MCGOWAN, individually and in their official capacity, and THE VILLAGE OF HEMPSTEAD, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
I. PRELIMINARY STATEMENT
This case arises out of the tragic death of Scott Donohue, a lieutenant with the Village of Hempstead Police Department who took his own life on September 12, 2016. See generally Complaint ("Compl.") [DE 1]. Scott Donohue ( ) is survived by his wife, Jennifer Donohue ("Mrs. Donohue") who has brought the instant action under 42 U.S.C. § 1983 in her individual capacity and as the administratrix of the Estate of Lieut. Donohue (collectively, "Plaintiffs"). The Complaint alleges that the Village of Hempstead, along with Joseph Wing and Michael McGowan, in their individual and official capacities (collectively, "Defendants"), violated Lieut. Donohue's Fourteenth Amendment substantive due process rights by failing to take appropriate action to prevent his suicide. Mrs. Donohue also asserts, in her own right, a substantive due process/intimate association claim. Defendants have moved to dismiss the Complaint, pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Judge Azrack referred Defendants' motion to dismiss to this Court for a Report and Recommendation as to whether the motion should be granted. Having carefully reviewed Plaintiffs' Complaint, the motion papers and the applicable case law, this Court respectfully recommends to Judge Azrack that Defendants' motion to dismiss be GRANTED.
II. BACKGROUND
The following facts are taken from the Complaint. See generally Compl. All facts alleged by Plaintiffs are assumed to be true for purposes of deciding a motion to dismiss and are construed in a light most favorable to Plaintiffs as the non-moving parties. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009); Matthews v. City of N.Y., 889 F. Supp. 2d 418, 425 (E.D.N.Y. 2012).
1. Lieut. Donohue's Employment with the Village of Hempstead Police Department
Lieut. Donohue commenced employment with the Village of Hempstead Police Department ("VHPD") in March 1993 as a police officer. Compl. ¶ 43. He was promoted to the rank of Sergeant in February 2000 and then to Lieutenant in October 2003. Id. ¶¶ 44-45. Id. ¶ 47. While on duty on July 25, 2009, Lieut. Donohue was involved in a motor vehicle accident. Id. ¶ 48. As a result, he sustained injuries to his neck, back and left shoulder. Id. Lieut. Donohue was transported to Winthrop University Hospital where he was diagnosed with a mild concussion. Id. ¶ 50. After returning home, he complained to Mrs. Donohue that his head hurt, that he could not sleep and that the light was bothering him. Id. ¶ 52. Mrs. Donohue took Lieut. Donohue to St. Charles Hospital for further evaluation. Id. ¶ 53. The staff at St. Charles confirmed the diagnosis of mild conclusion and referred Lieut. Donohue to aneurologist. Id. ¶ 54. Lieut. Donohue advised his supervisors at VHPD that he could not immediately return to work due to his symptoms. Id. ¶ 55.
2. VHPD Sick Leave and Light Duty Policies
VHPD enforces a "restriction to residence" policy for officers who cannot report for work due to an illness or an injury. Id. ¶ 56. Pursuant to the policy, officers are required to remain at their residence unless the VHPD chief grants them an exemption which permits them to leave their residence outside of the 9 a.m. to 5 p.m. workday. Id. ¶¶ 56-57. The VHPD generally offers "light duty" positions to those officers who are medically limited and cannot perform full-duty functions. Id. ¶ 60. "Light duty" positions are not offered to officers who are permanently injured. Id. ¶ 61.
Lieut. Donohue was placed on sick leave as a result of the injuries he suffered during the motor vehicle accident on July 25, 2009. Id. ¶ 63. He was then subject to VHPD's restriction to residence policy. Id. Lieut. Donohue followed up with a neurologist as well as Dr. Donald Goldman, an orthopedic surgeon who evaluated and treated Lieut. Donohue for pain management. Id. ¶ 65. Lieut. Donohue's pain increased over the next several months -- he suffered from pain in his lower back and neck and experienced difficulty raising his left arm above his head. Id. ¶¶ 66-67. As a consequence, he was unable to return to work and continued to be subject to VHPD's restriction to residence policy. Id. ¶ 68. On October 31, 2009, Lieut. Donohue underwent an MRI which revealed that he suffered from a "disc herniation resulting in spinal canal stenosis and compression of the spinal cord." Id. ¶ 69. He informed VHPD of the diagnosis and continued to remain out of work. Id. ¶ 70. Plaintiffs allege that due to VHPD's policy of not offering light duty positions to officers injured in the line of duty -- and given the extent of Lieut. Donohue 's injuries -- he was unable to return to work. Id. ¶ 71. He decided toapply for disability retirement under the New York state retirement system. Id. ¶ 74. According to the Complaint, on October 10, 2011, Independent Medical Examiner Dr. Moriarty told the New York State and Local Retirement System that "' " Id. ¶ 78. Dr. Moriarty subsequently advised the Retirement System that Lieut. Donohue could work in a full-time position in the "communications area or as a police officer in the clerk area." Id. ¶ 79. Plaintiffs allege that VHPD did not offer Lieut. Donohue any such position. Id. ¶ 80.
New York State denied Lieut. Donohue's disability retirement application on October 23, 2012. Id. ¶ 81. On June 19, 2014, Dr. Moriarty determined that:
[Lieut. Donohue] was noted to have a mild partial degree of disability. It was indicated [Lieut. Donohue] could work in a modified duty capacity with weight handling restrictions to 25 pounds and would have restriction on repetitive bending and repetitive lifting. Based on this evaluation [Lieut. Donohue] would be unable to work unrestricted full duty. He could work full time in a modified duty position with restrictions noted above.
Id. ¶ 86. According to the Complaint, the VHPD still did not provide Lieut. Donohue with a light duty position. Id. ¶ 88. In July 2014, Police Chief Michael McGowan ordered Lieut. Donohue to report to work on July 14, 2014. Id. ¶ 89. Lieut. Donohue provided Chief McGowan with information regarding his condition and McGowan responded that Lieut. Donohue need not report to work as previously directed. Id. ¶¶ 90-91.
On October 2, 2014, Lieut. Donohue underwent an "Anterior Cervical Discectomy and Fusion" which, according to the Complaint, is a surgical procedure which treats nerve root or spinal cord damage. Id. ¶ 92. After the surgery, Lieut. Donohue continued to suffer from neckand shoulder pain, numbness in his thumb to middle finger, neck stiffness, weakness in both hands, and "clicking" in his neck. Id. ¶ 93-94.
Id. ¶ 97. In April 2016, Lieut. Donohue was again denied disability retirement by New York State. Id. ¶ 98. According to the Complaint, although Lieut. Donohue could have retired under a regular retirement plan, doing so would have denied him the substantial benefits available under the disability retirement plan, which Lieut. Donohue required to be able to support his family. Id. ¶102.
As of April 2016, Lieut. Donohue had been confined to his home during the workweek for close to seven years. Id. ¶ 105. Plaintiffs allege that VHPD failed to offer assistance to Lieut. Donohue to help deal with his situation or his mental health. Id. ¶ 105. He began exhibiting changes in his behavior after the last denial of his retirement application in April 2016. Id. ¶ 106. Mrs. Donohue noticed that his anger increased and he would "lament about his inability to be a productive member of the community, to perform the duties of the job he loved, and his confinement to his home for such an extended period of time." Id. ¶ 108.
Lieut. Donohue and Mrs. Donohue went to the VHPD and pleaded with Assistant Chief Joe Sortino to assist Lieut. Donohue. Id. ¶¶ 110-11. According to the Complaint, Sortino noted that Lieut. Donohue had lost a lot of weight. Id. ¶ 112. Sortino advised that VHPD could not do anything to assist him. Id. ¶ 115. As Lieut. Donohue and Mrs. Donohue left the meeting, they saw Chief McGowan, and Lieut. Donohue pleaded with him to help him. Id. ¶¶ 116-17. Although Chief McGowan indicated that he would make a call to the retirement system, he hadno control over the process. Id. ¶ 118. Plaintiffs allege that Id. ¶ 119. According to the Complaint, Lieut. Donohue's pleas were out of character as he was the type of person "who was reluctant to ask others for help." Id. ¶ 120. Plaintiffs assert that it should have been obvious to Sortino, McGowan and other VHPD employees that Lieut. Donohue needed emotional help. Id. ¶ 121.
Mrs. Donohue begged her husband to seek mental health treatment but he responded that he could not do so out of fear that the VHPD would find out. Id. ¶¶ 124-25. In July 2016, Lieut. Donohue agreed to seek treatment through the Employee Assistance...
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