18‐2988‐cv
Donohue v. Wing


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 8th day of May, two thousand nineteen.

PRESENT:            AMALYA L. KEARSE,
                    RICHARD C. WESLEY,
                    DENNY CHIN,
                              Circuit Judges.

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JENNIFER DONOHUE, individually and
as the Administratrix of the ESTATE OF
SCOTT DONOHUE,
                    Plaintiff‐Appellant,

                              v.                                           18‐2988‐cv

JOSEPH WING, MICHAEL MCGOWAN,
individually and in their official capacity,
INCORPORATED VILLAGE OF
HEMPSTEAD,
                     Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT:                         MATTHEW WEINICK, Famighetti &
                                                 Weinick, PLLC, Melville, New York.

FOR DEFENDANTS‐APPELLEES:                        RICHARD S. FINKEL, Bond, Schoeneck
                                                 & King PLLC, Garden City, New York.

              Appeal from the United States District Court for the Eastern District of

New York (Azrack, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff‐appellant Jennifer Donohue appeals from the judgment of the

district court entered September 18, 2018, granting the motion of defendants‐appellees

the Village of Hempstead and Police Chiefs Joseph Wing and Michael McGowan of the

Village of Hempstead Police Department (ʺVHPDʺ) in their individual and official

capacities (collectively, ʺdefendantsʺ) to dismiss her complaint pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. By order entered September 17, 2018, the

district court adopted a report and recommendation of a magistrate judge (Tomlinson,

M.J.) recommending that defendantsʹ motion to dismiss be granted.

              Mrs. Donohue is the widow of Lieutenant Scott Donohue, formerly of the

VHPD. She brought this action under 42 U.S.C. § 1983 in her individual capacity and

as the administratrix of the Estate of Lieutenant Donohue. We assume the partiesʹ

familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.



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             As alleged in the complaint, the facts are as follows: In July 2009,

Lieutenant Donohue was involved in a vehicle collision while on duty, resulting in

injuries to his neck, back, and shoulder. Due to his injuries, he was unable to return to

his previous position. Pursuant to VHPDʹs ʺrestriction to residenceʺ policy, he was

restricted to his residence during the workweek between the hours of 9 a.m. and 5 p.m.

He remained employed by VHPD and was subject to the restriction to residence policy

for almost seven years, in part because he was not offered a light duty position with

CHPD, was reluctant to retire under the normal VHPD retirement package, and hoped

to become eligible for the superior disability benefits offered by the State of New York.

             After several years of being restricted to his residence, Lieutenant

Donohue began to experience insomnia, loss of appetite, weight loss, and general

malaise. He briefly sought help through Mrs. Donohueʹs employer, but he refused to

see a private therapist because that treatment would be billed through VHPD, and he

did not want VHPD to know he was seeking psychiatric help. This decision was

motivated in part by VHPDʹs weapon removal policy, pursuant to which officers who

report mental health issues risk having their weapons privileges revoked. On

September 12, 2016, Lieutenant Donohue took his own life.




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              The complaint alleges that defendants violated Lieutenant Donohueʹs

substantive due process rights by creating or increasing the risk that he would commit

suicide.1

              ʺWe review the grant of a motion to dismiss de novo, accepting as true all

factual claims in the complaint and drawing all reasonable inferences in the plaintiffʹs

favor.ʺ Fink v. Time Warner Cable, 714 F.3d 739, 740‐41 (2d Cir. 2013) (per curiam). ʺTo

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.ʺ Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks omitted).

              The substantive component of the Due Process Clause ʺprotects individual

liberty against certain government actions regardless of the fairness of the procedures

used to implement them.ʺ Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)

(internal quotation marks omitted). Although due process ʺdoes not transform every

tort committed by a state actor into a constitutional violation,ʺ DeShaney v. Winnebago

Cty. Depʹt of Soc. Servs., 489 U.S. 189, 202 (1989), we have recognized that in certain

ʺexceptional circumstancesʺ a state actor may be under an affirmative constitutional

obligation to protect an individual, including where ʺthe government entity itself has




1     Mrs. Donohue has abandoned her assertion that defendants violated her substantive
Due Process right to intimate association with her husband.


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created or increased the danger to the individual,ʺ Ying Jing Gan v. City of New York, 996

F.2d 522, 533 (2d Cir. 1993).2

               To fall within the state‐created danger exception, (1) a government official

must ʺtake[] an affirmative act that creates an opportunity for a third party to harm a

victim (or increases the risk of such harm),ʺ Lombardi v. Whitman, 485 F.3d 73, 80 (2d Cir.

2007), and (2) the ʺgovernment action [must be] so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience,ʺ Pena v. DePrisco, 432 F.3d 98, 112

(2d Cir. 2005) (internal quotation marks omitted).

               Mrs. Donohue contends she has adequately pled affirmative acts because

VHPD adopted a policy requiring the removal of weapons from officers who report

mental health issues, which she alleges implicitly communicates to police officers that

they should not seek psychiatric help. She ʺ[does] not criticiz[e] the weapon removal

policy in and of itselfʺ and concedes that ʺthis policy may very well serve a legitimate

and necessary purpose.ʺ Appellantʹs Br. at 22 n.2. Instead, she argues that VHPD

ʺcannot implement a policy to address one danger while ignoring the other dangers

they know will arise from the policy.ʺ Id. But ʺ[t]he Due Process Clause is not a

guarantee against incorrect or ill‐advised personnel decisions. Nor does it guarantee




2       Mrs. Donohue has abandoned her argument that defendants had an affirmative
obligation to protect her husband by virtue of the ʺspecial relationshipʺ exception, which
imposes such a duty when there is a ʺspecial relationshipʺ between a state actor and the
plaintiff. See, e.g., Ying Jing Gan, 996 F.2d at 533.


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municipal employees a workplace that is free of unreasonable risks of harm.ʺ Collins,

503 U.S. at 129 (citation and internal quotation marks omitted). VHPDʹs adoption of

the weapons policy was plainly not ʺconduct intended to injure in some way

unjustifiable by any government interestʺ and does not ʺrise to the conscience‐shocking

level.ʺ Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Accordingly, the policy

cannot serve as the basis for Mrs. Donohueʹs substantive due process claim.

              Relatedly, Mrs. Donohue argues that defendantsʹ failure to adopt policies

that could have mitigated any harm inherent in the weapons policy constitutes an

affirmative act actionable as a substantive due process violation. But as the district

court held, ʺthe affirmative decision not to implement policies to facilitate mental health

treatment and to alleviate the stigma surrounding such treatment . . . is more akin to

passive inaction since Plaintiffs allege Defendants failed to implement certain policies

that would reduce the risk of suicide.ʺ Donohue v. Wing, No. 17‐3870, 2018 WL 3973012,

at *9 (E.D.N.Y. Aug. 17, 2018), adopted by 2018 WL 4425942 (E.D.N.Y. Sept. 17, 2018).

Although alleged deliberate indifference of state actors may in some circumstances rise

to a conscience‐shocking level, this ordinarily is not so when the defendants are ʺsubject

to the pull of competing obligations.ʺ Lombardi, 485 F.3d at 83; see also Collins, 503 U.S.

at 128‐29 (ʺDecisions concerning the allocation of resources to individual programs . . .

and to particular aspects of those programs, such as the training and compensation of

employees, involve a host of policy choices that must be made by locally elected



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representatives, rather than by federal judges interpreting the basic charter of

Government for the entire country.ʺ). Here, the pull of competing obligations that led

to the weapons removal policy is evidenced by Mrs. Donohueʹs recognition that the

policy ʺmay very well serve a legitimate and necessary purpose.ʺ Appellantʹs Br. at 22

n.2. The district court properly dismissed this claim.

              The only remaining allegation of an affirmative act on the part of VHPD is

that it confined Lieutenant Donohue to his home pursuant to the restriction to residence

policy and disciplined him for violating that policy. For nearly seven years, Lieutenant

Donohue voluntarily chose to remain an employee of VHPD and to abide by its

policies, including its policy of home confinement for employees on sick leave. While

Lieutenant Donohueʹs decision not to retire was understandable in light of the superior

benefits he sought to receive from the State of New York, VHPDʹs enforcement of the

policy was not, by any measure, ʺconduct intended to injure in some way unjustifiable

by any government interest.ʺ See Cty. of Sacramento, 523 U.S. at 849. Thus, even

assuming arguendo that self‐harm is harm by ʺa third party to . . . a victimʺ actionable as

a due process violation, see Lombardi, 485 F.3d at 80, Lieutenant Donohueʹs restriction to

his home was not so egregious as to shock the contemporary conscience, see Pena, 432

F.3d at 112. The district court did not err in granting defendantsʹ motion to dismiss.




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                                    *     *      *

             We have considered all of Mrs. Donohueʹs remaining arguments and

conclude they are without merit. For the foregoing reasons, the judgment of the

district court is AFFIRMED.

                                        FOR THE COURT:
                                        Catherine OʹHagan Wolfe, Clerk of Court




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