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BEATRICE MORRIS, Plaintiff, - against - GILBERT EVERSLEY, Officer of the Bayview Correctional Center, in his official and individual capacities, ALEXANDREENA DIXON, Superintendent of Bayview Correctional Facility, in her official and individual capacities, ELNORA PORTER, Assistant Deputy Superintendent of Programs of Bayview Correctional Facility, in her official and individual capacities, DARRYL WARNER, an employee of the Office of the New York State Inspector General, in his official and individual capacities and FAITHWATSON, an employee of Bayview Correctional Facility, in her official and individual capacities, Defendants.
00 Civ. 8166 (DC)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
205 F. Supp. 2d 234; 2002
U.S. Dist. Lexis 10671
June 13, 2002, Decided
June 13, 2002, Filed
MEMORANDUM DECISION
CHIN, D.J.
In this case, plaintiff Beatrice
Morris alleges that while she was incarcerated at Bayview Correctional Facility
("Bayview"), defendant Gilbert Eversley, a corrections officer,
entered her cell one night and sexually assaulted her. Morris contends that
Eversley's conduct is but one example of an ongoing pattern and practice at
Bayview of male corrections officers engaging
in sexual contact with female prisoners. By law, any such conduct would
be improper, as inmates are deemed incapable of consenting to sexual contact
with prison employees. Morris further contends that the supervisors were aware
of the inappropriate and prevalent sexual conduct at Bayview because of the
number of complaints lodged by female prisoners and the incidence of
pregnancies among inmates. Despite this knowledge, Morris claims, Bayview
supervisors failed to act.
Morris brings this action pursuant to 42 U.S.C. § 1983 alleging that
defendants violated her rights under the Eighth Amendment to the Constitution
and state law. Defendants Alexandreena Dixon and Elnora Porter move to dismiss
the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a
claim. n1 They contend that [*237] Morris has failed to exhaust her
administrative remedies and that the amended complaint fails to state claims
against them for supervisory liability. They argue also that the state law
claims must be dismissed for lack of subject matter jurisdiction. For the
reasons set forth below, the motion is denied.
BACKGROUND
A. Facts
The
following facts are drawn from the complaint and attached exhibits as well as
the amended complaint. Although defendants deny plaintiff's allegations, as
required, I assume plaintiff's alleged facts are true for purposes of this
motion. The parties have also submitted additional information concerning
Morris's efforts to exhaust her administrative remedies.
1.
The Parties
Morris was incarcerated at Bayview, a medium security women's prison,
from March of 1999 through June of 1999. (Am. Compl. P 12). She was later
incarcerated at Taconic Correctional Facility, and was released on parole on
November 10, 2000. During Morris's incarceration at Bayview, defendant Eversley
was employed as a corrections officer by the New York State Department of
Correctional Services ("DOCS"), assigned to Bayview. (Id. PP 4, 14).
Defendants Dixon and Porter were also employed by DOCS and assigned to Bayview
at that time. (Id. PP 5-6). Dixon served as Superintendent of Bayview, and
Porter served as Assistant Deputy Superintendent of Programs. (Id.). Captain
Werbacker also worked at Bayview, and had supervisory authority over Eversley.
n2
2.
The Assault
Throughout Morris's
incarceration at Bayview, Eversley had custodial authority over inmates,
including Morris. (Id. P 14). This authority translated into "custody and
control over Morris'[s] person, her housing, and her rights and privileges as
an inmate at Bayview." (Id. P 15). In approximately March of 1999,
Eversley began to make sexually suggestive comments to Morris. (Id. P 16). On
the night of April 18, 1999, after "lights out" had been called,
Eversley entered Morris's cell, without warning, as she lay sleeping. (Id. P
17; Compl. Ex. B). Morris was awakened by Eversley's touch, and immediately
told him to get out. He refused. Exposing himself, Eversley pulled back the
covers on Morris's bed. Morris was petrified and repeatedly told him to stop;
again, he refused. Eversley restrained her, forced himself upon her, and
sexually assaulted her. (Compl. Ex. B; Am. Compl. P 18).
3.
Morris Seeks Relief
After the assault, Morris
retained the bed sheet as evidence of the assault. (Id. P 29). She isolated
herself from other inmates and avoided corrections officers, fearing for her
safety. (Id. P 23). Morris was initially reluctant to report the assault, fearing
that Eversley would retaliate against her. (Id. P 22). On June 7, 1999,
Eversley filed a disciplinary report against Morris, citing alleged
infractions. (Compl. Ex. A; Am. Compl. P 24). Thereafter, Morris reported
Eversley's sexual assault to Captain Werbacker, who had supervisory authority
over Eversley. (Am. [*238] Compl. PP 13, 27). She provided details of the
assault in a letter, and met with Darryl Warner of the New York State Inspector
General's Office to further discuss the attack. (Id. PP 7, 27-28). Morris also
gave Warner and Werbacker the bed sheet she had retained from the night of the
assault; laboratory testing later confirmed the presence of semen on the sheet.
(Id. PP 29, 32).
On June 30, 1999, Morris
executed a Notice of Intention To File Claim, addressed to the New York State
Attorney General. Morris set forth the nature of her claim in detail, and noted
that the administration and the Inspector General's Office had previously been
informed of the matter. (Compl. Ex. B).
Notwithstanding Morris's
complaint, Eversley has not been removed from his position and is still
employed at Bayview. (Am. Compl. P 37). He has engaged in sexual conduct with
other prisoners at Bayview, as have other corrections officers employed by
Bayview. (Id. P 37). Prisoners have also complained to supervisors of unwelcome
sexual contact by corrections officers, and prisoners have become pregnant
while incarcerated at Bayview. (Id. PP 20-21). The supervisory authority at
Bayview has failed to adequately investigate Eversley's conduct or to
discipline him. (Id. P 33).
The
District Attorney's Office for New York County is conducting an investigation
into facts surrounding Eversley's assault on Morris. (Id. P 32).
B. Prior Proceedings
Morris
brought this action by submitting her pro se complaint to the Court's Pro Se
Office on August 2, 2000. She was granted in forma pauperis status and the
complaint was filed on October 25, 2000. Morris later obtained counsel and
filed an amended complaint on January 18, 2002. On March 15, 2002, defendants
Dixon, Porter, Warden, and Watson moved to dismiss the complaint, and the Court
heard oral argument on the motion on May 24, 2002. After oral argument, Morris
discontinued her claims against Warner and Watson.
DISCUSSION
Morris seeks relief pursuant to 42 U.S.C. § 1983, alleging that
defendants violated her rights under the Eighth Amendment to the Constitution
and state law. Defendants Dixon and Porter move to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(6) on grounds that (1) Morris failed to
exhaust available administrative remedies; (2) defendants Dixon and Porter were
not personally involved; (3) defendants are entitled to qualified immunity; and
(4) this Court lacks subject matter jurisdiction over plaintiff's state law
claims. n3
A. Applicable Law
1.
Motion to Dismiss Standard
On
a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief can be granted, the court must accept the factual
allegations of the complaint as true and draw all reasonable inferences in
favor of the plaintiff. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.
1996) (citation omitted). The issue is not whether the plaintiff will
ultimately prevail, but whether she is entitled to offer evidence to support
her claim. Id. (citation omitted). Dismissal is not warranted "unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of
[her] [*239] claim which would entitle [her] to relief." Cooper v. Parsky,
140 F.3d 433, 400 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,
2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).
2.
Section 1983
To
state a claim under § 1983, a plaintiff must allege a deprivation of a
constitutional or federal statutory right and that the deprivation occurred
under color of state law. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48,
101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988). The Second Circuit has held that
sexual abuse by a corrections officer may violate a prisoner's right to be free
from cruel and unusual punishment.
Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir. 1997) ("Sexual abuse of a prisoner by a corrections officer
has no legitimate penological purpose, and is 'simply not part of the penalty
that criminal offenders pay for their offenses against society.'")
(quoting Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct.
1970 (1994)). An official violates the Eighth Amendment where (1) the alleged
"punishment" is "objectively, sufficiently serious," and
(2) the official involved has a "sufficiently culpable state of
mind." Id. (quoting Farmer, 511 U.S. at 834 (citation internal quotation
marks omitted)); Branham v. Meachum, 77 F.3d 626, 630 (2d Cir. 1996).
3.
New York Penal Law § 130.05
New
York Penal Law § 130.05, entitled "Sex Offenses; lack of consent,"
provides that: "Whether or not specifically stated, it is an element of
every offense defined in this article . . . that the sexual act was committed
without consent of the victim." N.Y. Penal Law § 130.05(1) (McKinney
1997). Under this section, "[a] person is deemed incapable of consent when
he or she is . . . committed to the care and custody of the state department of
correctional services . . . and the actor is an employee, not married to such
person, who knows or reasonably should know that such person is committed to
the care and custody of such department . . . ." § 130.05(3)(e). For
purposes of § 130.05, "employee" means, inter alia, an "employee
of the state department of correctional services who performs professional
duties in a state correctional facility consisting of providing custody,
medical or mental health services, counseling services, educational programs,
or vocational training for inmates . . . ." Id.
B. Application
1.
Exhaustion of Available Administrative Remedies
Defendants first argue that
Morris's claims should be dismissed because she has failed to exhaust her
administrative remedies as required by the Prison Litigation Reform Act of 1995
(the "PLRA"). The PLRA provides that "no action shall be brought
with respect to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted." 42 U.S.C. § 1997e(a) (1994 ed., Supp. V). The Supreme Court
has recently held that this exhaustion requirement "applies to all
prisoners seeking redress for prison circumstances or occurrences." Porter
v. Nussle, 534 U.S. 516, 122 S. Ct. 983, 986, 152 L. Ed. 2d 12 (2002).
In
New York, the administrative grievance process established to resolve
prisoners' grievances is known as the Inmate Grievance Program (the
"IGP"). N.Y. Comp. Codes R. & Regs. ("NYCRR") tit. 7 §§
701.1-701.16 (1995); see also Cruz v. Jordan, 80 F. Supp. 2d 109, 117 (S.D.N.Y.
1999). Each prison has established an Inmate Grievance Resolution Committee
(the [*240] "IGRC"), which is required "to resolve grievances or
make recommendations for the resolution of the grievances filed." NYCRR
tit. 7 § 701.7(a). According to the IGP, prisoners are generally required,
among other things, to submit their grievances to the IGRC within 14 days of
the alleged occurrence, and the IGRC must either dismiss the grievance or
resolve it on the merits. Id. § 701.7(a)(1)-(5).
Defendants argue that Morris has not pursued any administrative
remedies available under the IGP, as
she never filed a grievance with the IGRC. (Defs. Mem. Supp. Dismiss at 10).
They contend that Morris's release from prison is irrelevant, and insist that
the action must be dismissed for failure to exhaust. (Id. at 11-12). They
contend, in essence, that Morris is forever barred from pursuing the claims.
These arguments are rejected for
the following reasons. First, although Morris failed to file a grievance with
the IGRC, she exhausted her remedies under § 701.11 of the IGP. Section 701.11,
entitled "Harassment," is specifically designed to address
"employee misconduct meant to annoy, intimidate, or harm an inmate . . .
." NYCRR tit. 7 § 701.11(a). The section provides: "Allegations of
employee harassment are of particular concern to the administrators of
department facilities. Therefore, the following expedited procedure for the review
of grievances related to harassment shall be followed." Id. § 701.11.
Under the expedited procedure, the prisoner is first directed to bring
the offensive conduct to the attention of the employee's supervisor. Id. §
701.11(b)(1). The Superintendent of the facility must then determine if the
grievance is a "bona fide" case of harassment. Id. § 701.11(b)(3). If
so, the grievance remains on an expedited track for prompt resolution. Id. §
701.11(b)(4)-(6). If not, the grievance is submitted to the IGRC for resolution
in accord with the procedure outlined above. Id. § 701.11(b)(3). In either
event, the Superintendent is required to deliver a decision, "with reasons
stated to the grievant," within twelve working days of receipt of the
grievance. Id. § 701.11(b)(5). Extensions may only be granted with the consent
of the grievant. Id. If the Superintendent fails to respond to the grievance
within the required time limitation, the grievant "may" file an
appeal directly to the Central Office Review Committee (the "CORC"),
a committee comprised of deputy and assistant commissioners of DOCS or their
designees. Id. §§ 701.11(b)(6); 701.6(a) & 701.7(c); Cruz, 80 F. Supp. 2d
at 118.
Morris's "grievance" was covered by § 701.11, as she was
alleging that Eversley engaged in conduct "meant to annoy, intimidate or
harm" her, beginning with sexually suggestive comments and culminating in
forcible restraint and sexual assault. See NYCRR tit. 7 §§ 701.11, 701.11(a).
In accordance with the expedited procedure, Morris brought the offensive
conduct to the attention of Eversley's supervisor, reporting the assault to
Captain Werbacker, in writing. (Am. Compl. PP 13, 27). At that point, defendant
Dixon, the Superintendent, was required to determine whether the harassment was
"bona fide" and deliver a decision within twelve working days of
receipt of the grievance. Dixon failed to deliver a decision within the time
specified. While Morris could have appealed this failure to respond to the
CORC, she was not required to do so. Id. § 701.11(b)(6) ("the grievant may
appeal his grievance to the CORC") (emphasis added). Moreover, it is
undisputed that Morris's allegations were also brought to the attention of the
Inspector General's office, the Attorney General's office, and the Manhattan
District Attorney's office. Under the circumstances, I conclude that [*241]
Morris has exhausted her administrative remedies under § 701.11.
Second, even if Morris did not
exhaust her administrative remedies, she is no longer incarcerated.
Defendants' assertions to the contrary notwithstanding, this fact is highly
relevant: the Second Circuit has held that any dismissal for failure to exhaust
must be without prejudice. Morales v.
Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (citing Giano v. Goord, 250 F.3d 146,
150-51 (2d Cir. 2001)). The PLRA
requires exhaustion of "such administrative remedies as are
available." 42 U.S.C. § 1997e(a). Thus, even if I were to dismiss Morris's
claims, no administrative remedies are "available" to her because she
is no longer a prisoner; n4 Morris could simply refile her § 1983 claims
unaffected by the PLRA's exhaustion requirement. Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (holding that
litigants "who file prison condition actions after release from
confinement are no longer 'prisoners' for purposes of § 1997e(a) and,
therefore, need not satisfy [its] exhaustion requirements"); Hallett v.
New York State Dep't of Correctional Services, 109 F. Supp. 2d 190, 197
(S.D.N.Y. 2000) (same). As I noted in Hallett, considerations of judicial
efficiency and economy advise against dismissal of Morris's claims. 109 F. Supp. 2d at 197.
2.
Defendants' Personal Involvement
Defendants Dixon and Porter also argue that they cannot be held
responsible for Morris's injuries under § 1983 because they were not personally
involved in the deprivation of her constitutional rights. This claim is
rejected.
Defendants correctly argue that
personal involvement in the alleged constitutional deprivation is a
prerequisite to an award of damages under § 1983. See Al-Jundi v. Estate of Rockefeller, 885
F.2d 1060, 1066 (2d Cir. 1989) (citation omitted). Direct participation, however, is not necessary.
Id. A supervisory official may be personally liable if she has "'actual or
constructive notice of unconstitutional practices and demonstrates gross
negligence or deliberate indifference by failing to act.'" Id. (quoting
Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989)). Thus, Morris can
state a claim for personal involvement by alleging that defendants: (1)
participated directly in the alleged constitutional violation; (2) failed to
remedy the wrong after being informed through a report or an appeal; (3)
created a policy or custom under which unconstitutional practices occurred or
allowed the continuation of such policy or custom; (4) was grossly negligent in
supervising subordinates who committed the wrongful acts; or (5) exhibited
deliberate indifference to the rights of inmates by failing to act on
information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Morris has alleged sufficient
facts to survive defendants' motion to dismiss. Indeed, Morris has alleged that
defendants knew corrections officers at
Bayview were engaging in sexual contact with female prisoners but failed
to act -- thereby allowing the abusive "practice" to continue. For
example, she has alleged that defendants previously received complaints from
female prisoners regarding sexual abuse [*242] by male guards, including
Eversley. These complaints were purportedly corroborated by the incidence of
pregnancies among inmates. Morris therefore contends that defendants knew or
should have known of the illegal conduct. She also alleges that defendants were
grossly negligent in supervising their subordinates, because they had received
prior complaints about Eversley -- and yet failed to adequately monitor his
actions such that the assault on Morris could occur.
Finally, Morris has alleged that
defendants failed to remedy the wrong after being informed through a report.
For example, as required by § 701.11 of the IGP, Morris reported Eversley's
assault to Captain Werbacker, Eversley's supervisor, in writing. Section 701.11
then directs the Superintendent to determine whether an inmate's grievance is
"bona fide," and to deliver a decision within twelve days of receipt
of the grievance. Thus, the IGP presumes the communication of grievances among
supervisory officials -- in fact, § 701.11 required Captain Werbacker to inform
Dixon of Morris's grievance. Yet, the supervisors at Bayview failed to
adequately investigate Eversley's conduct, discipline him, or remove him from
circulation among the female prison population. In view of these allegations,
Morris has alleged defendants' "personal involvement" inasmuch as
they knowingly allowed the "practice" of officers sexually abusing
prisoners to continue, were grossly negligent in supervising subordinates, failed
to remedy the wrong after being informed through a report, or acted with
deliberate indifference to the rights of inmates by failing to act on
information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995) (citation omitted).
3. Qualified Immunity
Defendants alternatively argue
that, in the event Morris's § 1983 claims are viable, they are entitled to
qualified immunity. Government officials performing discretionary functions are
"shielded from liability for civil damages" as long as their conduct
does not breach "clearly established statutory or constitutional rights of
which a reasonable person would have known." Lennon v. Miller, 66 F.3d
416, 420 (2d Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 73
L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). This defense protects the government
actor where it is objectively reasonable for him to believe that his actions
are lawful at the time of the challenged act. Id. (citations omitted). Thus,
"the objective reasonableness test is met -- and the defendant is entitled
to immunity -- if 'officers of reasonable competence could disagree' on the
legality of the defendant's actions.
" Id. (quoting Malley v. Briggs, 475 U.S. 335, 340-41, 89 L. Ed. 2d
271, 106 S. Ct. 1092 (1986)).
This contention is rejected. Assuming, as I
must, that the allegations set forth above are true for purposes of this
motion, they plainly state a claim for the deprivation of a constitutional
right, namely, the right to be free from cruel and unusual punishment in the
form of sexual abuse. Morris has alleged that Dixon and Porter were aware of
Eversley's conduct, as well as the similar "practice" carried on by
other officers at Bayview.
Under New York Penal Law §
130.05, entitled "Sex offenses; lack of
consent," a person is deemed incapable of consent when she is
committed to the care and custody of the state department of correctional services.
N.Y. Penal Law § 130.05(3)(e). As Superintendent and Assistant Deputy
Superintendent of Programs at Bayview, defendants are charged with knowledge of
this law. If Morris's allegations are true, no "officers of reasonable
competence could disagree" that the [*243] defendants' actions were
unlawful. Accordingly, at this juncture, defendants are not entitled to the
protection of qualified immunity.
4. State Law Claims
Finally, defendants argue that Morris's state law claims must be
dismissed for lack of subject matter jurisdiction. "The federal courts'
original jurisdiction over federal questions carries with it jurisdiction over
state law claims that 'derive from a common nucleus of operative fact,' such
that 'the relationship between [the federal] claim and the state claim permits
the conclusion that the entire action before the court comprises but one
constitutional case.'" City of Chicago v. Int'l College of Surgeons, 522
U.S. 156, 164-65, 139 L. Ed. 2d 525, 118 S. Ct. 523 (1997) (quoting United Mine
Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)).
This Court has subject matter jurisdiction over Morris's § 1983 claim; as
alleged in the amended complaint, the state law tort claims arise out of the
same "nucleus of operative fact." The motion to dismiss these claims
is therefore denied.
Moreover, to the extent defendants are arguing that the tort claims are in actuality claims against the state that must be heard in the New York State Court of Claims, the argument is rejected as well, for the negligence claims asserted here are the type of tort claims that would support a claim of a constitutional violation that may be addressed under § 1983.
CONCLUSION
For
the reasons set forth above, defendants' motion to dismiss is denied.
SO
ORDERED.
Dated: New York, New York
June 13, 2002
DENNY CHIN
United States District Judge
FOOTNOTES:
n1 Morris filed a notice of
voluntary dismissal pursuant to Fed. R. Civ. P. 41(a) as to defendants Darryl
Warner and Faith Watson on June 4, 2002. Defendant Eversley has answered and
has not moved to dismiss.
n2 Captain Werbacker was
originally named as "John/Jane Werbacker" in the complaint, but has not been named in the
amended complaint. (Am. Compl. P 13).
n3 Because Morris has
voluntarily dismissed the claims against Warner and Watson, I do not address
defendants' arguments in favor of dismissal of the claims against them.
n4 On their face, the IGP procedures are available only to inmates and
visitors to prisons; they do not appear to be available to former prisoners.
Accordingly, there are no administrative procedures available to Morris at this
juncture. See Liner v. Goord, 115 F.
Supp. 2d 432, 434 (S.D.N.Y. 2000) ("Given the fact that [plaintiff] has
been released from prison and could not now be ordered to exhaust all available
administrative remedies, the Court will consider the merits and not grant
judgment to Defendants for failure to exhaust administrative remedies.").