MEMORANDUM & ORDER
Plaintiffs Maureen Saint-Guillen, individually and as Administratrix of the Estate of Imette Saint-Guillen, and the Estate of Imette SainUGuillen have brought this action against the United States under the Federal Tort Claims Act (“FTCA” or the “Act”), 28 U.S.C. §§ 1346(b)(1), 2671-2680, for the kidnapping, rape, and murder of Imette Saint-Guillen at the hands of federal probationer, Darryl Littlejohn. Plaintiffs allege that the United States Probation and Pre-trial Services System failed to supervise and control Littlejohn, as required by his sentence and federal statute. Additionally, plaintiffs claim that defendant negligently hired, trained, supervised, and retained its employeеs, thus resulting in its failure to supervise Little-john. According to plaintiff, these failures *379 were the proximate causes of Imette Saint-Guillen’s assault and murder. Defendant has moved to dismiss the entire action under Fed.R.Civ.P. 12(b)(1) and (6), arguing that: (1) quasi-judicial absolute immunity bars the claims; and (2) it did not owe a duty of care to plaintiffs .under New York law. Additionally, defendant contends that the Discretionary Function Exception of the FTCA precludes the claims against its hiring, training, retention, and supervising practices. For the reasons set forth below, the motion is granted, in part, and denied, in part. The claims for nеgligent hiring, training, supervision, and retention are dismissed pursuant to the Discretionary Function Exception. The remaining claims may proceed.
I. Facts
On March 26, 1999, Littlejohn pled guilty before United States District Judge Jacob Mishler, formerly of this court, to Bank Robbery by Force of Violence. (Compl. at ¶ 11.) The court sentenced him to a 41-month term of imprisonment to run concurrently with a previously imposed state sentence followed by three years of probation under defendant’s supervision. (Compl. at ¶¶ 12, 13.) Little-john was released in 2004. (Compl. at ¶ 16.) Upon his release, he was declared a “menace to society.” (Compl. at ¶ 17.) Littlejohn has a history of parole violations and violent felonies. (Compl. at ¶ 18.)
Contrary to the court’s sentencing order, defendant completely failed to supervise Littlejohn. (Compl. at ¶¶ 21-23.) Apparently, defendant was unaware of Littlejohn’s release date, and, therefore, failed to place him on active supervision. (Compl. at ¶¶ 20, 24.) The Chief of the United States Probation Department for the Eastern District of New York, Tony Garoppolo, admitted that the Probation Service for the Eastern Distriсt of New York should have known the release date. (Tacopina Decl. Ex. C; Pl.’s Compl. at ¶¶ 23-25). Garoppolo explained that Littlejohn “fell between the cracks,” because of “human error,” and the support worker responsible for the error had been laid off. (Tacopina Decl. Exs. C, E, F.)
As a result of defendant’s failure, Little-john worked as a bouncer at the “Falls” bar in violation of his conditions of probation. (Compl. at ¶ 26.) On February 25, 2006, while working at the bar, Littlejohn met Imette SainNGuillen. (Compl. at ¶ 28.) Either that evening or during the early hours of the next day, he kidnappеd, raped, and murdered Imette SainMjuillen. (Id.) On June 3, 2009, a Kings County state court jury found Littlejohn guilty of rape and murder in the first degree for the killing of Imette Saint-Guillen, and, on July 8, 2009, he was sentenced to life without parole.
II. Discussion
a. Legal Standards
In evaluating a motion to dismiss under Rule 12(b)(1), the court accepts as true all factual allegations in the complaint; however, it should not draw inferences favorable to the party asserting jurisdiction.
J.S. ex rel. N.S. v. Attica Cent. Sch.,
“[T]he terms of [the United States’s] consent to be sued in any court define that court’s jurisdiction to entertain the suit.”
United States v. Sherwood,
[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346 (emphasis added);
see also F.D.I.C. v. Meyer,
b. Absolute Immunity Does Not Apply.
Defendant contends that it is immune from the instant claims under the doctrine of quasi-judicial immunity, which is a form of absolute immunity that applies to non-judicial officers when they perform judicial functions. In order to qualify, “[t]he proponent of a claim of absolute immunity bears the burden of establishing the justification of such immunity.”
Antoine v. Byers & Anderson, Inc.,
The Second Circuit has identified two situations in which this immunity applies. First, the immunity shields conduct that is functionally comparable to that of a judge. Therefore, a “parole board official is absolutely immune from liability for damages when he decide[s] to grant, deny, or revoke parole, because this task is functionally comparable to that of a judge.”
Scotto v. Almenas,
In
Scotto,
the Second Circuit held that under the “functionally comparable” test, a parole officer who recommended the issuance of a parole-violation warrant to his supervisor was not entitled to absolute immunity because he “did not make an adjudicative decision to revoke Scotto’s parole.”
Under the “integrally related” test, “[t]he more distant a function is from the judicial process, the less likely judicial immunity will attach.”
Scotto,
This case is more akin to the situation in
Scotto
than to a federal probation officer preparing a pre-sentence report as defendant’s support workers do not perform their clerical tasks “under judicial direction.”
Id.
On the contrary, defendant’s failure to supervise Littlejohn violated the court’s explicit sentencing order, (Compl. at ¶ 12), as well as its obligations under 18 U.S.C. § 3603 (“a рrobation officer shall be responsible for the supervision of any probationer or a person on supervised release who is known to be "within the judicial district.”). Although the Second Circuit has not addressed quasi-judicial immunity under these exact circumstances, it has withheld the immunity from parole officers who acted at his or her own initiative rather than at the initiative of the court.
Scotto,
The cases regarding the preparation and filing of probation- and parole-violation reports provide another basis for denying absolute immunity. They explain that such supervisory conduct is investigatory in nature, and, therefore, comparable to the role of a police officer rather than that of a judge or prosecutor.
See Scotto,
Applying the analogy in
Scotto,
the court finds that the supervision (or lack of supervision) at issue was also investigatory in nature. Given that a parole officer’s recommendation to his supervisor to issue an arrest warrant is analogous to an “application for an arrest warrant,” then the supervision of a parolee that uncovers a parole violation and merits an arrest is analogous to a police investigation that provides the probable cause for that “application for an arrest warrant.” This analogy also applies to a federal probation officer’s supervision of a probationer.
See Ray,
c. Under New York Law, Plaintiffs Have Sufficiently Alleged that Defendant Violated Its Duty to Exercise Reasonable Care to Control Littlejohn.
1. The FTCA’s Private-Analog Requirement
The FTCA allows private tort actions against defendant “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The Court has “consistently held that § 1346(b)’s reference to the law of the place means law of the State — the source of substantive liability under the FTCA.”
FDIC v. Meyer,
The Supreme Court’s decisions in
Indian Towing Co. v. United States,
Thus, defendant’s reliance on
Tarter v. State,
Here, plaintiffs allege that defendant was aware of the danger that Littlejohn posed to the public yet failed to control his actions despite having the ability to do so. Therefore, to determine defendant’s potential liability under the FTCA, the court must determine whether a private individual in New York has a duty to control a third party under similar circumstances. The court finds that it does.
2. Duty to Control
In New York, “[a]n action to recover for negligence does not lie unless there exists a duty on the part of the defendant and a corresponding right in the plaintiff.”
Donohue v. Copiague Union Free School Dist.,
The New York State Court of Appeals has recognized that, under certain circumstances, a defendant has a duty to the general public to control the conduct of
*384
another to prevent that person from harming others.
See id.
(“Thus, we have imposed a duty to control the conduct of оthers where there is a special relationship: a relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct”);
see also
Restatement (Second) of Torts § 315 (2009).
2
For example, “[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person from doing such harm.” Restatement (Second) of Torts at § 319;
see also Rivera v. New York City Health and Hosp. Corp.,
Indeed, numerous state supreme courts have used § 319 to evaluate claims that a probation or parole officer negligently supervised a probationer or parolee.
See, e.g., Joyce v. State, Dept. of Corrections,
In sum, the two requirements for triggering this duty are: (1) sufficient knowledge of the danger posed by the third person; and (2) sufficient ability to control the relevant conduct of the third person.
See Purdy v. Public Adm’r,
3. Defendant’s Duty to Control Littlejohn
Applying this doctrine, New York courts have recognized a duty to prevent third parties from harming the general public under circumstances that are similar to the circumstances in this case.
See Rivera v. New York City Health and Hosps. Corp.,
As with a mental health provider who knows of his outpatient’s dangerous propensities, defendant had duty to control Littlejohn because it had the requisite knowledge of his dangerousness and the ability to control his actions. The complaint sufficiently alleges that defendant knew that Littlejohn presented a threat to others. Upon his release, Littlejohn was declared a “menace to society.” (Compl. at ¶ 17.) Prior to his release, he had a history of parole violations and commission of violent felonies, and federal authorities had been investigating his involvement in multiple murders. (Compl. at ¶¶ 18-19.) The allegations in the complaint also show that defendant had more control over Littlejohn than a New York mental health provider has over an outpatient. For example, 18 U.S.C. § 3606 authorizes probation officers to arrest Littlejohn without a warrant if they have probable cause to believe that he had violated a condition of his supervised release. Thus, had defendant properly supervised Littlejohn, it could have arrested him as soon as it lеarned that he was working at the Falls as a bouncer.
Defendant’s reliance on
Avins v. Fed. Employment and Guidance Serv., Inc.,
d. Under the Discretionary Function Exception, the Court Lacks Subjects Matter Jurisdiction over Plaintiffs’ Claims against Defendant’s Hiring, Training, Supervision, and Retention Practices.
The Discretionary Function Exception bars plaintiffs’ claims for negligent hiring, training, retention, and supervision of defendant’s employees.
4
Under the FTCA, Congress’s authorization of tort suits against the United States “shall not apply to ... [a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This exception only applies when the allеged tort satisfies two requirements. First, the conduct must involve a “judgment or choice.”
United States v. Gaubert,
Second, the judgment or choice at issue “must be grounded in considerations of public policy or susceptible to policy analysis.”
Coulthurst v. United States,
“For a cоmplaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime.”
Id.
at 324-25,
The complaint does not allege any facts suggesting that defendant’s hiring, retention, training, and supervision practices fall outside the exception. In fact, only one paragraph in the complaint addresses these claims, and it alleges, in its entirety: “[t]he breach of duty set forth above of Defendant and/or its agents, servants and/or employees was the result of admittedly clerical and/or ministerial breaches of the Defendant’s own policies and/or procedures, and/or in the negligent hiring, training, supervision and/or retention of its agents, servants, and/or employees.” (Compl. at ¶ 38.) This pleading deficiency alone warrants dismissal. See Wang, 61 FedAppx. at 759.
Furthermore, federal courts have found that such hiring, training, and supervision decisiоns generally fall within the exception.
See Li v. Aponte,
05 CV 6237(NRB),
The hiring decisions of a public entity require consideration of numerous factors, including budgetary constraints, public perception, economic conditions, individual backgrounds, office diversity, experience and employer intuition. Similarly, supervision decisions involve a complex balancing of budgetary considеrations, employee privacy rights, and the need to ensure public safety. The extent of training with which to provide employees requires consideration of fiscal constraints, public safety, the complexity of the task involved, the degree of harm a wayward employee might cause, and the extent to which employees have deviated from accepted norms in the past. Such decisions are surely among those involving the exercise of political, social, or economic judgment.
*388 III. Conclusion
For the reasons set forth above, plaintiffs negligent hiring, retention, supervision, and training claims are dismissed. The motion is denied as to plaintiffs’ remaining claims.
SO ORDERED.
Notes
. Probation officers are absolutely immune for initiating probation-violation proceedings and presenting the case to the court because such acts are prosecutorial in nature.
See Scotto,
. Defendant also concedes that "[i]n certain limited instances, however, the New York Court of Appeals has recognized that a duty can arise where there is a relationship either between defendant and a third person tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others.” (Reply at 14 (citation and internal quotation marks omitted).)
. Although the defendant in
Schrempf
was a state entity, the court explained that, “where the State engages in a proprietary function, such as providing medical and psychiatric caret,] ■ • • the State is held to the same duty of care as private individuals and institutions engaging in the same activity."
. Plaintiffs contend that their claim for negligent employee supervision must survive this motion because defendant “expressly excludes plaintiffs’ claims for negligent supervision of employees from its dismissal motion.’’ (Opp'n at 23 n. 13.) This contention is baseless. As plaintiffs concede, the applicability of the Discretionary Function Exception to defendant's employee-supervision decisions concerns the court’s subject-matter jurisdiction. (Opp’n at 23.) As such, the court may independently address this issue.
Edelman v. Jordan,
. Once a plaintiff satisfies this pleading requirement, the burden shifts to the government to
prove
that the exception applies.
Prescott v. United States,