Carpenter v. AppleCarpenter v. Apple
- Reporters:
- ,
- Before:
- Glenn T. Suddaby
OFFICE OF TREVOR W. HANNIGAN
Counsel for Plaintiff
311 State Street
Albany, New York 12210
METH LAW OFFICES, P.C.
Co-Counsel for Plaintiff
10 Moffatt Lane, Suite 2
P.O. Box 560
Chester, New York 10918
ADAM G. GIANGRECO, ATTORNEY-AT-LAW
Counsel for Defendant Craig Apple
4217 Court Royale, No. 10
Schenectady, New York 12304
GOLBERG SEGALLA, LLP
Co-Counsel for Defendant Craig Apple
8 Southwoods Blvd., Suite 300
Albany, New York 12211
OF COUNSEL:
TREVOR W. HANNIGAN, ESQ.
MICHAEL D. METH, ESQ.
ADAM G. GIANGRECO, ESQ.
JONATHAN BERNSTEIN, ESQ.
CHELSEA E. KEENAN, ESQ.
Albany County Attorney
Counsel for Defendants Albany County Sheriff’s Office, County of Albany, Albany County Correctional Facility, Augustus Roberson, III, and Jane and John Does
112 State Street
Albany, New York 12207
BURKE, SCOLAMIERO, MORTATI & HURD, LLP
Co-Counsel for Defendants County of Albany and Albany County Correctional Facility
7 Washington Square
Albany, New York 12205
MICHAEL L. GOLDSTEIN, ESQ.
SIA Z. GOOGAS, ESQ.
Assistant Albany County Attorneys
JEFFREY E. HURD, ESQ.
JUDITH B. AUMAND, ESQ.
DECISION and ORDER
Currently before the Court, in this civil rights action filed by Gina Carpenter (“Plaintiff”) against Craig Apple (in his individual capacity and official capacity as the Albany County Sheriff), the Albany County Sheriff’s Office, the County of Albany in the State of New York, the Albany County Correctional Facility, Augustus Roberson, III (in his individual capacity and official capacity as a corrections officer), and Jane and John Does, is Defendant Apple’s motion for judgment on the pleadings pursuant to
I. RELEVANT BACKGROUND
A. Plaintiff’s Complaint
Generally, liberally construed, Plaintiff’s Complaint alleges as follows. (Dkt. No. 1.) Plaintiff is a prisoner who was formally incarcerated at the Albany County Correctional Facility (“ACCF”) during the relevant time period of this action. (Id., ¶ 7.) On July 30, 2014, at approximately 10:00 a.m., Plaintiff was sexually assaulted and battered by Defendant Augustus
Sometime later that day, Defendant Roberson called Plaintiff out of her cell and told her that a woman needed help using the telephone. (Id., ¶ 18.) Plaintiff complied and proceeded to stand on her side of the locked gate and showed the woman how to use the telephone. (Id.) Plaintiff then told Defendant Roberson that she was done and ready to go back into her cell. (Id.) However, Defendant Roberson told Plaintiff that she needed to clean the correctional officers’ bathroom. (Id.) The correctional officers’ bathroom is located outside of the main tier area, and none of the common areas, including the hallways on the tier or anywhere else, are monitored by cameras. (Id., ¶ 19.) Plaintiff proceeded to get cleaning supplies and gloves; however, when she arrived at the bathroom, she noticed that it was not dirty or messy and that the garbage was empty. (Id., ¶ 20.) The bathroom is small and there had been a fire in it in the past. (Id., ¶ 21.) Wires hung from where a lightbulb used to be, which was never replaced. (Id.) The only source of light came from the door being open. (Id.)
Plaintiff entered the bathroom and began her cleaning responsibilities. (Id., ¶ 22.) While she was cleaning the toilet, she was startled by Defendant Roberson, who entered the bathroom behind her. (Id.) Defendant Roberson told Plaintiff to “turn around and pull your pants down.”
When Defendant Roberson was finished, he threatened Plaintiff that she had better not tell anyone. (Id., ¶ 26.) Plaintiff went back to her cell. (Id., ¶ 27.) When she sat on the toilet to wipe herself, she noticed that she was bleeding. (Id.) Plaintiff later learned that her labia was significantly torn and that she would need surgery to repair it. (Id., ¶ 33.) Plaintiff communicated to a female correctional officer by the name of Carol Batcher that something had happened and she needed to talk to somebody. (Id., ¶ 28.) Plaintiff wanted Officer Batcher to contact her attorney. (Id.) Plaintiff tried to hang herself shortly thereafter and was put on suicide watch. (Id.) On or about August 5, 2014, Plaintiff reported the sexual assault to the Office of the Albany County District Attorney and Deputy Chief Montleone of the Office of the Albany County Sheriff. (Id., ¶ 29.) Plaintiff was assured that this matter would be investigated but, to date, no formal decision has been published regarding her complaint. (Id.)
After Plaintiff’s sexual assault became known, Plaintiff was bullied by a correctional officer whom everyone called “Jack.” (Id., ¶ 30.) At one point, Jack was referring to all of the prisoners as “fucking whores” and then called Plaintiff over to him and said, “[S]o what’s this I hear about my friend Gus? What are you and your friend saying about him? I know what you’re going down to medical for.” (Id.) Jack was referring to the lab work that the administration wanted Plaintiff to have done. (Id.) Plaintiff felt uncomfortable, terrified, and intimidated by Jack’s comments and questions. (Id.) The administration wanted Plaintiff’s lab work completed after the sexual assault became known. (Id., ¶ 31.) No physical exam of Plaintiff’s vagina was performed. (Id.) Although Plaintiff had to submit to the lab work and questioning, nothing was kept confidential and everyone in ACCF knew what was going on and why Plaintiff was there. (Id.) After the administration got the information that they needed, Plaintiff was left to deal with the employees of ACCF, including the correctional officers, on her own. (Id.)
ACCF fails to provide any privacy for female inmates while they are showering or disrobing. (Id., ¶ 37.) Male correctional officers do not announce their presence when necessary. (Id.) They walk into the prisoners’ bathrooms without first announcing “man on the tier,” regardless of whether female inmates are showering and/or using the toilet. (Id.) Subsequent to the violent sexual assault, Defendant Does, in an attempt to discredit and intimidate Plaintiff, released her medical history without her authorization and/or consent to the members of the Albany County Sheriff’s Office, causing her to suffer further embarrassment and lack of privacy. (Id., ¶ 38.)
After certain efforts were made by her attorney, and in cooperation with the Office of the New York State Attorney General, Plaintiff was transferred to Rensselaer County Jail on August
Based upon the foregoing allegations, Plaintiff asserts the following twelve claims: (1) a claim that the actions of Defendants Apple, Roberson, Albany County, the Albany County Sheriff’s Office, and ACCF resulted in Plaintiff’s violent sexual assault and physical and psychological injuries, which constitute cruel and unusual punishment per se in violation of her rights under the Eighth Amendment; (2) a claim that Defendants Apple, the Albany County Sheriff’s Office, and ACCF acted with deliberate indifference toward Plaintiff’s medical and mental health needs, which amounted to cruel and unusual punishment in violation of her rights under the Eighth Amendment; (3) a claim that the actions of Defendants Apple, Roberson, Albany County, the Albany County Sheriff’s Office, and ACCF resulted in Plaintiff’s violent sexual assault and physical and psychological injuries, which deprived her of her liberty and right to be secure, in violation of the Fourteenth Amendment; (4) a claim that Defendants Apple, the Albany County Sheriff’s Office, Albany County, and ACCF severely compromised Plaintiff’s personal safety and welfare while she was an inmate at ACCF in violation of
B. The Parties’ Briefing on Defendant Apple’s Motion
1. Defendant Apple’s Memorandum of Law
Generally, in his memorandum of law, Defendant Apple asserts three arguments. (Dkt. No. 43, Attach. 1 [Def. Apple’s Mem. of Law].)
First, Defendant Apple argues that he is liable for only his alleged unconstitutional conduct, and not for the conduct of his subordinates, because, in Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009), the Supreme Court rejected the theory of “supervisor liability” in the context of
Similarly, Defendant Apple argues that any claim against him for failing to implement and carrying out “the goal of preventing sexual abuse and/or sexual harassment in its facilities” should be construed as a claim against him in his official capacity. (Id. at 17.) In turn, Defendant Apple argues that a claim against him in his official capacity should be dismissed because any such claim is really a claim against the County of Albany as the real party in interest and is therefore duplicative. (Id.)
Second, Defendant Apple argues that, in the event that the Court finds that Plaintiff has stated a claim against him under a theory of supervisor liability, he is nonetheless entitled to qualified immunity because an alleged violation of an inmate’s constitutional rights under the factors announced in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), was not clearly established at the time of the alleged incident.2 (Id. at 18.) Specifically, Defendant Apple argues
that there is a split among the U.S. Courts of Appeals, as well as among the district courts in this Circuit, regarding the viability of the Colon factors, and in particular supervisory liability, after the Supreme Court’s decision in Iqbal. (Id. at 19-20.)
Third, and finally, Defendant Apple argues that Plaintiff’s state law claims fail as a matter of law. (Id. at 24.) Specifically, with regard to Plaintiff’s fourth cause of action claiming a violation of
With regard to Plaintiff’s ninth cause of action claiming negligent supervision, Defendant Apple argues that Plaintiff has failed to allege facts plausibly suggesting that he knew that Defendant Roberson had (a) a plan to sexually assault Plaintiff, or (b) any kind of propensity for committing such acts. (Id. at 27.)
With regard to Plaintiff’s tenth cause of action claiming a violation of
With regard to Plaintiff’s eleventh cause of action claiming intentional infliction of emotional distress (“IIED”), Defendant Apple argues that this claim is barred by the governing one-year statute of limitations because it accrued, at the very latest, on August 22, 2014, when Plaintiff was transferred to the Rensselaer County Jail, and she did not commence this action until October 22, 2015. (Id. at 29.) In any event, Defendant Apple argues that Plaintiff has failed to allege facts plausibly suggesting that he was directly involved in the alleged assault or that he ordered or condoned it. (Id. at 30.)
With regard to Plaintiff’s twelfth cause of action claiming negligent infliction of emotional distress (“NIED”), Defendant Apple argues that Plaintiff has failed to allege facts plausibly suggesting that he was directly involved in the alleged assault or that he ordered or condoned it. (Id. at 31.) Furthermore, Defendant Apple argues that, although Plaintiff alleges that he failed to “remediate the sexual assault,” there is no allegation that this left Plaintiff exposed to unreasonable risk of bodily harm. (Id.) While Plaintiff alleges that Defendant
2. Plaintiff’s Opposition Memorandum of Law
Generally, in opposition to Defendant Apple’s motion, Plaintiff asserts six arguments. (Dkt. No. 44 [Pl.’s Opp’n Mem. of Law].)
First, Plaintiff argues that she has alleged facts plausibly suggesting that Defendant Apple was personally involved in violating her constitutional rights under the Colon factors for the following four reasons: (a) despite knowledge of Defendant Roberson’s inappropriate sexual conduct with female inmates, Defendant Apple allowed Defendant Roberson to remain on staff as the only male correctional officer with unsupervised and unfettered access to female inmates; (b) despite Defendant Apple’s knowledge of the repeated pattern of sexual abuse of female inmates at ACCF, he continued to allow Defendant Roberson to have unsupervised access to female inmates; (c) Defendant Apple, in his capacity as Albany County Sheriff, is responsible for the creation of policies at ACCF but has failed to implement policies that would prevent sexual abuse at the prison despite knowledge of past incidents of sexual violence against female inmates (and has publicly acknowledged at least one such incident in which he deemed the victim’s account “credible”); and (d) Defendant Apple’s failure to adopt policies that would prevent the sexual assault of female inmates is indicative of his deliberate indifference, acquiescence, and/or tolerance of such conduct. (Id. at 13-18.)
Second, Plaintiff argues that Defendant Apple is not entitled to qualified immunity because (a) qualified immunity is available only to individuals sued in their individual capacity, and (b) Defendant Apple’s conduct violated Plaintiff’s clearly established right to be free from cruel and unusual punishment under the Eighth Amendment for the reasons stated above in Plaintiff’s first argument. (Id. at 19-20.) Furthermore, Plaintiff argues that she was deprived of medical care when, after being violently attacked by Defendant Roberson, she was not provided with appropriate medical treatment, including an examination, evaluation, and the surgery required to repair her labia. (Id. at 20-21.)
Third, Plaintiff argues that courts in this Circuit have applied the limitations of Iqbal to the Colon factors only in cases involving discriminatory intent. (Id. at 22.) Otherwise, Plaintiff argues, the Colon factors have remained intact and, because discriminatory intent is not relevant to the claims in this case, the Court should apply the factors when considering the issue of supervisory liability. (Id. at 22-24.)
Fourth, Plaintiff argues that she has alleged facts plausibly suggesting a claim for NIED against Defendant Apple because she has pled as follows: (a) he owed a duty of care to her as a prisoner under the custody and control of ACCF, (b) he breached his duty by failing to (i) take adequate and appropriate steps to prevent and/or remediate the sexual assault, (ii) provide adequate supervision for female inmates despite knowledge of past sexual abuse by correctional officers, (iii) implement policies and procedures to prevent sexual assault at ACCF, and (iv) supervise and train the correctional officers, (c) he failed to conduct an adequate investigation after the sexual assault, (d) he allowed other male correctional officers to threaten Plaintiff that caused her to fear for her safety, and (e) he failed to provide Plaintiff with adequate medical care
Fifth, Plaintiff argues that she has alleged facts plausibly suggesting a claim for negligent hiring, retention, and/or supervision against Defendant Apple. (Id. at 26.) Specifically, Plaintiff argues that she has alleged that Defendant Apple was aware of Defendant Roberson’s propensity to commit sexual assaults as well as a general pattern of sexual abuse in New York State Correctional Facilities, which has resulted in significant publicity and successful lawsuits. (Id. at 27.) Furthermore, Plaintiff argues that she has alleged that, despite this knowledge, Defendant Apple allowed Defendant Roberson to be the only unsupervised male correctional officer in charge of Plaintiff’s tier inside the prison, that Defendant Apple never disciplined Defendant Roberson, and Defendant Roberson remains gainfully employed. (Id.)
Sixth, and finally, Plaintiff argues that her claim under
3. Defendant Apple’s Reply Memorandum of Law
Generally, in reply to Plaintiff’s opposition memorandum of law, Defendant Apple asserts six arguments. (Dkt. No. 48 [Def. Apple’s Reply Mem. of Law].)
First, Defendant Apple argues that Plaintiff inappropriately relies on the Colon factors because they are no longer viable after the Supreme Court’s decision in Iqbal. (Id. at 5.) In any event, Defendant Apple argues that Plaintiff has failed to allege facts plausibly suggesting his direct involvement in any of the alleged events that form the basis for her claims in this matter. (Id.) For example, Defendant Apple argues that Plaintiff has failed to allege that she had any direct contact with him about not receiving appropriate medical care or that he created a policy and custom under which unconstitutional practices occurred. (Id.) Moreover, Defendant Apple argues that Plaintiff has failed to set forth the names and dates of persons alleged to have been subject to misconduct by Defendant Roberson before the incident in question, or that Defendant Apple had knowledge of any such events, such knowledge would have put him on notice of Defendant Roberson’s alleged propensity to engage in misconduct. (Id. at 6.) Similarly, Defendant Apple argues that Plaintiff has failed to identify how the Sheriff Department’s training was insufficient or the manner in which Defendant Apple failed to train the corrections officers. (Id.)
Second, Defendant Apple reiterates his argument that claims against him in his official capacity should be dismissed as redundant because any such claims are really claims against the County of Albany. (Id. at 7.) With respect to the claims asserted against him in his individual capacity, Defendant Apple reiterates his argument that he is entitled to qualified immunity because (a) principles of vicarious liability do not apply in § 1983 claims, and (b) it is not clearly established in the Second Circuit whether supervisory liability is still viable under the Colon factors after the Supreme Court’s decision in Iqbal. (Id. at 8-9.)
Third, Defendant Apple argues that Plaintiff’s NIED claim must be dismissed for the following three reasons: (a) although the Second Department has ruled that extreme and outrageous conduct is no longer an element of a NIED claim, the Third Department continues to require such a showing; (b) Plaintiff has failed to allege facts plausibly suggesting that Defendant Apple’s conduct endangered her or that he was even involved in the alleged incident; and (c) Defendant Apple did not owe a special duty to Plaintiff. (Id. at 9-10.)
Fourth, Defendant Apple reiterates his argument that Plaintiff’s negligent supervision/retention claim should be dismissed because she has failed to allege facts plausibly suggesting that he knew that Defendant Roberson had (a) a plan to sexually assault Plaintiff, or (b) any kind of propensity for committing such acts. (Id. at 10.) Furthermore, Defendant Apple argues that the most Plaintiff has alleged is that another incident occurred at ACCF on the same date as the incident in question but the alleged incident, in and of itself, was insufficient to put him on notice of Defendant Roberson’s alleged propensity to commit sexual assaults. (Id. at 10-11.)
Fifth, Defendant Apple argues that the statute of limitations period under
Sixth, and finally, Defendant Apple argues that Plaintiff has failed to oppose his arguments that she has failed to allege facts plausibly suggesting an IIED claim and that he was in violation of
II. RELEVANT LEGAL STANDARD
“The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (collecting cases); accord, Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Accordingly, the Court will review Defendant Apple’s motion under the standard applicable to a motion to dismiss.
It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to
Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under
The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under
As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Iqbal, 129 S.Ct. at 1949. “[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not show[n]—that the pleader is entitled to relief.” Id. at 1950 (internal quotation marks and citations omitted). However, while the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal citations and alterations omitted). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted).
Finally, a few words are appropriate regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to
A. Whether Plaintiff Has Alleged Facts Plausibly Suggesting Defendant Apple’s Personal Involvement in the Alleged Violation of Her Constitutional Rights Under the Eighth and Fourteenth Amendments
After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated below.
It is well settled that “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotation marks omitted). “[A] Section 1983 plaintiff must allege a tangible connection between the acts of the defendant and the injuries suffered.” Austin v. Pappas, 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (internal quotation marks and citation omitted). If the defendant is a supervisory official, a mere “linkage” to the unlawful conduct through “the prison chain of command” (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). In other words, supervisory officials may not be held liable merely because they held a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
As an initial matter, the Court must address the parties’ respective arguments regarding the applicability of the Colon factors post-Iqbal. The Second Circuit has expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Raspardo v. Carlone, 770 F.3d 97, 117 (2d Cir. 2014) (“We have not yet determined the contours of the supervisory liability test, including the gross negligence prong, after [Iqbal][.]”); Hogan v.
Here, the Court will follow the majority view and apply the Colon factors in considering
1. The Second Colon Factor
With respect to the second Colon factor, the Court finds that Plaintiff has failed to allege facts plausibly suggesting that Defendant Apple failed to remedy the violation after being informed of it through a report or appeal. Specifically, Plaintiff argues that “Defendant Apple‘s failure to promulgate policies to prevent further sexual abuse and assault, continuing to allow Defendant Roberson unsupervised access to the female detainees despite knowledge of his past sexual misconduct, and retention of Defendant Roberson as an employee, constitut[e] his failure to remedy the wrong after learning of the violation.” (Dkt. No. 44, at 15 [Pl.‘s Opp‘n Mem. of Law].) However, “[t]he reference in case law to an official who “fails to remedy” a violation logically applies only to ongoing, and therefore correctable, constitutional violations–not to a specific event that is later subject to formal review by designated officials once the constitutional violation has already concluded.” Odom v. Calero, 06-CV-15527, 2008 WL 2735868, at *7 (S.D.N.Y. July 10, 2008); see also Burton v. Lynch, 664 F. Supp. 2d 349, 362 (S.D.N.Y. 2009) (“A superintendent cannot “remedy” a violation of constitutional rights which has already ceased by ordering some change in prison conditions.“); Harnett v. Barr, 538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008) (Hurd, J.) (“If the official is confronted with a violation that has already occurred and is not ongoing, then the official will not be found personally responsible for failing to “remedy” a violation.“).
2. The Third Colon Factor
With respect to the third Colon factor, the Court finds that Plaintiff has (albeit barely) alleged facts plausibly suggesting that Defendant Apple allowed the continuance of a policy under which unconstitutional practices occurred for the reasons stated in her opposition memorandum of law. (Dkt. No. 44, at 16-18 [Pl.‘s Opp‘n Mem. of Law].) To those reasons, the Court adds that it is insufficient to merely allege that a policy of allowing unmonitored one-on-one interactions between a corrections officer and an inmate of different sexes is unconstitutional. (Id., ¶ 39 [alleging that Defendant Roberson “was able to engage in such conduct because he was given unfettered and unsupervised access to female detainees by the supervisory defendants.“) See also Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993) (rejecting “conclusion that every male guard is a risk to the bodily integrity of a female inmate whenever the two are left alone“); accord, Cash v. Cty. of Erie, 654 F.3d 324, 336 (2d Cir. 2011). However, what nudges Plaintiff‘s allegations over the line from conceivable to plausible is the fact that she has alleged that Defendant Apple was on notice of previous incidents at ACCF involving male corrections officers having inappropriate sexual contact with female
3. The Fourth Colon Factor
With respect to the fourth Colon factor, the Court finds that Plaintiff has failed to allege facts plausibly suggesting that Defendant Apple was grossly negligent in his supervision of Defendant Roberson. Specifically, Plaintiff alleges that “Defendant Facility permitted Defendant Roberson . . . to supervise female prisoners by himself and without female supervision, in light of past allegations of sexual misconduct.” (Dkt. No. 1, ¶ 51 [Pl.‘s Compl.].) “‘[G]ross negligence’ denotes a higher degree of culpability than mere negligence. It is the kind of conduct where the defendant has reason to know of facts creating a high degree of risk of . . . harm to another and deliberately acts or fails to act in conscious disregard or indifference to that risk.” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014). This standard is satisfied when “the plaintiff establishes that the defendant-supervisor was aware of a subordinate‘s prior substantial misconduct but failed to take appropriate action to prevent future similar misconduct before the plaintiff was eventually injured.” Raspardo, 770 F.3d at 117.
4. The Fifth Colon Factor
With respect to the fifth Colon factor, the Court finds that, for the reasons stated above in Part III.A.2. of this Decision and Order, Plaintiff has (albeit barely) alleged facts plausibly suggesting that Defendant Apple exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that male corrections officers at ACCF were having inappropriate sexual contact with female detainees. See Connick v. Thompson, 563 U.S. 51, 62 (2011) (“Policymakers’ continued adherence to an approach that they know or should know has
B. Whether Defendant Apple is Entitled to Qualified Immunity
After carefully considering the matter, the Court answers this question in the negative for the reasons stated by Plaintiff in her opposition memorandum of law. (Dkt. No. 44, at 20-21 [Pl.‘s Opp‘n Mem. of Law].)
Under the qualified immunity doctrine, “government officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal quotation marks omitted). “A defendant will thus not be liable for damages ‘if he did not violate clearly established law or if it was objectively reasonable for him to believe that he was not violating clearly established law.‘” Pugh v. Goord, 571 F. Supp. 2d 477, 510 (S.D.N.Y. 2008)
It is clearly established that inmates have the right to be protected from sexual abuse, both at the hands of correctional officers and fellow inmates, and that prison officials violate inmates’ constitutional rights by showing deliberate indifference to a substantial risk of sexual abuse “when the offical[s] know[ ] of and disregard[ ] an excessive risk” of that harm occurring. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Cash, 654 F.3d at 335-37; Varon v. Sawyer, 04-CV-2049, 2006 WL 798880, at *2 (D. Conn. Mar. 25, 2006). “By now, the substantial risk of sexual assault in jails and prisons is well-documented and obvious.” Rivera, 2017 WL 2872291, at *6 (citing
Based upon the foregoing, the Court cannot find that Defendant Apple is entitled to qualified immunity at this early stage in the litigation and without the benefit of record evidence demonstrating whether Defendant Apple‘s conduct was objectively reasonable. See Varon, 2006 WL 798880, at *4 (denying qualified immunity to prison officials that allegedly failed to take corrective action to protect inmates after learning of past incidents of sexual abuse because “[w]hether the conduct of these defendants was reasonable in light of the situation confronting them cannot be assessed at this early stage in the litigation“); accord, Morris, 205 F. Supp. 2d at 243. This includes conduct related to Plaintiff‘s allegations that she did not receive appropriate medical treatment after being sexually assaulted. (Dkt. No. 1, ¶¶ 60-66 [Pl.‘s Compl.].) See Benjamin v. Schwartz, 299 F. Supp. 2d 196, 201 (S.D.N.Y. 2004) (“A prisoner‘s Eighth Amendment right to be free from deliberate indifference to his serious medical needs is quite clearly established and has been for some time.“).
Finally, the Court is unpersuaded by Defendant Apple‘s argument that he is entitled to qualified immunity because “it is not clearly established if supervisory liability exists in the Second Circuit [due to the conflict between Iqbal and Colon] and if it does, what the standard is
Even if the Court were to find merit to this argument, the Court has found that the third Colon factor applies in this case, which courts in this Circuit have found to be viable regardless of the conflict surrounding this issue. See, e.g., Olutosin v. Lee, 14-CV-0685, 2016 WL 2899275, at *13 (S.D.N.Y. May 16, 2016) (“Courts appear to be in agreement that the third Colon factor remains viable regardless of the underlying constitutional claim.“).
C. Whether Plaintiff‘s Claims Against Defendant Apple in His Official Capacity Should Be Dismissed as Redundant
After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated in Defendant Apple‘s memorandum of law. (Dkt. No. 43, Attach. 1, at 17 [Def. Apple‘s Mem. of Law].) See Stancati v. Cty. of Nassau, 14-CV-2694, 2015 WL 1529859, at *2 (E.D.N.Y. Mar. 31, 2015) (“[B]ecause the County is named in the Complaint, the claims against Sheriff Sposato and Deputy Sheriff Gorey in their official capacities must be dismissed as duplicative and redundant.“); Reid v. Nassau Cty. Sheriff‘s Dep‘t, 2014 WL 4185195, at *11 (E.D.N.Y. Aug. 20, 2014) (“[T]he branches of the County defendants’ motions seeking dismissal of the consolidated plaintiffs’ Section 1983 claims against Sheriff Sposato and the Superintendent in their official capacity are granted and the consolidated plaintiffs’ Section 1983 claims against Sheriff Sposato and the Superintendent are dismissed in their entirety with prejudice as redundant to their claims against the County.“); Lipton v. Cty. of Orange, NY, 315 F. Supp. 2d 434, 452 (S.D.N.Y. 2004) (dismissing civil rights claims against county sheriff and jail administrators in their official capacities because they were redundant to similar claims against county).
D. Whether Plaintiff‘s State Law Claims for IIED, NIED, Negligent Supervision, and for Violating N.Y. Correct. Law § 500-b Against Defendant Apple Are Time-Barred
After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated in Defendant Apple‘s memoranda of law. (Dkt. No. 43, Attach. 1, at 24, 29 [Def. Apple‘s Mem. of Law]; Dkt. No. 48, at 11 [Def. Apple‘s Reply Mem. of Law].) See Trelly v. Cty. of Monroe, 13-CV-6248, 2015 WL 471375, at *3 (W.D.N.Y. Feb. 4, 2015) (holding that statute of limitations period contained in
The Court notes that, although Plaintiff‘s claims for negligent supervision, NIED, and for violating
Accordingly, it follows that Defendant Apple‘s alleged negligence in failing to properly supervise his subordinates, particularly when he allegedly had notice of past incidents of misconduct involving corrections officers and inmates, constitutes a failure to perform his duties under
E. Whether Plaintiff‘s Claim Under 7 N.Y.C.R.R. § 5.24 Should Be Dismissed
After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated by Defendant Apple in his memoranda of law. (Dkt. No. 43, Attach. 1, at
Defendant Apple correctly points out that Plaintiff has failed to oppose his arguments in support of dismissal of this claim. In this District, when a non-movant fails to oppose a legal argument asserted by a movant, the movant‘s burden with regard to that argument is lightened, such that, in order to succeed on that argument, the movant need only show that the argument possess facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein. . . .“); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at *2 & nn.2, 3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases). The Court finds that Defendant Apple has, at the very least, met this modest threshold burden, once again, for the reasons set forth in his memoranda of law. In any event, the Court would still dismiss this claim even if it were to subject it to the more rigorous standard appropriate for a contested motion.
Specifically,
ACCORDINGLY, it is
ORDERED that Defendant Apple‘s motion for judgment on the pleadings (Dkt. No. 43) is DENIED in part and GRANTED in part such that the following claims against Defendant Apple are dismissed:
- the First, Second, and Third causes of action against Defendant Apple in his official capacity;
- the Fourth, Ninth, Tenth, Eleventh, and Twelfth causes of action; and it is further
ORDERED that the First, Second, and Third causes of action against Defendant Apple in his individual capacity survive his motion.
Dated: September 5, 2017
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
Notes
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation
Colon, 58 F.3d at 873.