DECISION AND ORDER INTRODUCTION Plaintiff Holly Parks commenced this action pursuant to 42 U.S.C. §1983 (“Section 1983″) on behalf of her daughter, Heather Roselli (“Heather”), a 36-year-old developmentally disabled woman who was killed while in the care of the New York State Office for People with Developmental Disabilities (“OPWDD”). ECF No. 1. Presently before the Court is the Motion to Dismiss the Second Amended Complaint (“SAC”) by Paul Stevens (“Stevens”) and Jennifer Wall (“Wall”) (collectively, “Supervisory Defendants”), both of whom hold, or held, supervisory positions with OPWDD. ECF No. 58. For the reasons discussed below, the Motion to Dismiss the SAC, ECF No. 58, is DENIED. BACKGROUND I. Procedural Status In the original Complaint, ECF No. 1, Plaintiff named OPWDD supervisory employees Laura Saltsman, David Viggiani, Stacey Valder, and Thomas Fitzsimmons in addition to Wall and Stevens. All these defendants moved to dismiss the Complaint on the basis that it failed to plausibly allege their personal involvement in the constitutional violations allegedly sustained by Heather. ECF No. 15. After the Court granted that motion, ECF No. 39, Plaintiff timely filed a proposed Amended Complaint which omitted all defendants except Wall and Stevens. ECF No. 40. The Supervisory Defendants filed another Motion to Dismiss, ECF No. 43, arguing that notwithstanding the supplemental allegations, Plaintiff still failed to plausibly allege their personal involvement under any theory of supervisory liability as delineated in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). After Plaintiff filed the Amended Complaint, the Second Circuit issued Tangreti v. Bachmann, 983 F.3d 609, 617 (2d Cir. 2020), which held that “after [Ashcroft v. Iqbal, 556 U.S. 662 (2009)], there is no special rule for supervisory liability.” 983 F.3d at 618 & n.6 (citations omitted). Since the five-factor Colon test was just such a rule, this Court noted that Tangreti effectively abrogated Colon. ECF No. 54 at 5. Under Tangreti, the Court noted, the particular source of the underlying constitutional violation has taken on additional importance. Id. at 11. Finding the Amended Complaint unclear as to the constitutional grounds for Plaintiff’s claims, the Court directed her to file a proposed second amended complaint setting forth the specific constitutional or federal statutory rights which were allegedly violated and by which defendant. Id. Finally, the Court found that the Supervisory Defendants had incorrectly applied the supervisory liability standard applicable to an Eighth Amendment claim, which had never been asserted on the facts of this case. Id. at 2, 12. Plaintiff timely filed the SAC. ECF No. 55. Abdo and DiLallo filed Answers to the SAC. ECF Nos. 56, 57. The Supervisory Defendants filed a Motion to Dismiss the SAC, ECF No. 58, arguing that, notwithstanding the supplemental allegations, the SAC still plausibly fails to allege their personal involvement for purposes of supervisory liability. See ECF No. 58-1. Plaintiff opposed the Motion to Dismiss, ECF No. 63, as did DiLallo, ECF No. 62. The House Supervisory Defendants filed a Reply. ECF No. 64. II. Summary of the SAC’s Allegations At the time of her death on June 18, 2017, Heather was living at the Community Residence at 30 Pierce Street (“30 Pierce”), an eight-resident Individualized Residential Alternative (“IRA”) run by the OPWDD. ECF No. 55
13, 111. On any given eight-hour shift, only two or three staff members were assigned and present at 30 Pierce. Id. 111. No supervisory personnel were posted at 30 Pierce on several shifts. Id. The policy was not to have a designated supervisor on site at 30 Pierce on all shifts; instead, designated supervisors at other locations were expected to supervise staff at 30 Pierce. Id. 112. Sandra Abdo (“Abdo”) was employed by OPWDD as a Direct Supervising Assistant. Id. 17. Sarah DiLallo (“DiLallo”) and Jasmine Hines (“Hines”) were Direct Supervising Assistant Trainees. Id.
