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August 5, 1996

MAURICE J. MATHIE, Plaintiff, against ROY FRIES, in both his individual capacity and his official capacity as Sergeant of Security, Suffolk County Correctional Facility, Defendant.

The opinion of the court was delivered by: SPATT

 The issues in this case concern a charge by an inmate at the Suffolk County Correctional Facility of sexual abuse by the Director of Security at the Facility. The complaint sets forth three causes of action. The first cause of action is brought under 42 U.S.C. § 1983 and alleges violations of the plaintiff's constitutional rights. The second cause of action is a state law claim for assault and battery. The final cause is based on a state law claim of intentional infliction of emotional distress.


 Prior to the events at issue in this case, the plaintiff Maurice J. Mathie (the "plaintiff" or "Mathie") had led a sordid life culminating in the commission of a homicide on August 20, 1989. He was, from an early age, a heavy drug user and stole jewelry from his mother to pay for drugs. He admitted that he collected large sums of money for a drug dealer and at one point in time was paid $ 1500 per day in cash and drugs. In fact, while incarcerated at the Suffolk County Correctional Facility he made telephone calls to a drug dealer's beeper number.

 In August 1989, Mathie was indicted for murder in the second degree and incarcerated, as a pretrial detainee, in the Suffolk County Correctional Facility in Riverhead, New York ("SCCF"). The defendant Roy Fries (the "defendant" or "Fries") was, in 1989 and 1990, a sergeant and the head of internal security at the SCCF. Fries was employed by the Sheriff of Suffolk County in various capacities from 1969 for a period of 26 years until April 24, 1995, when he retired.

 Called as a witness in the plaintiff's case, Fries testified that, as of February and March of 1990, he was bisexual and he knew that Mathie was a homosexual. As defined in Webster's Third New International Dictionary, a bisexual person possesses character and behavior typical of both sexes, and has sexual desires for members of both sexes.

 In 1977 Fries was accused of improper conduct with regard to an inmate in the Suffolk County Jail in Yaphank, one Carlton Kruger. Fries was charged with fraternization with Kruger and was censured and instructed not to deal with prisoners on a social basis.

 At the Riverhead SCCF, Fries, as head of internal security, had two offices. One was downstairs on the main floor and the second office was on the second floor. The second office could be locked from the inside, so that a person could not enter the office from the outside, even with a key. The second floor office had no windows. During this period Fries carried handcuffs while on duty. Fries used the second floor office to interview inmates. He also used the office to interrogate confidential informants. One of his duties was to assign inmates to certain areas in the facility, including protective custody and special housing, as a security measure. Fries had the power to place inmates in and to remove them from protective custody. For example, he placed all known homosexuals in the south block.

 In early 1990 Fries had daily contact with the inmates. He used selected "informants," defined by him as persons who proved they were deemed reliable as a result of prior activities. He also used "snitches" who were inmates who wanted to be informants but were not reliable. Informants received certain benefits from Fries at the SCCF.

 The issue of the plaintiff's visits to the second floor office of Fries is material in this case. Fries himself kept no records as to who visited with him on what dates. The only record of such visits were the logs in the housing area and in the lobby. Significantly, the Court finds that inmate Mathie was a private visitor to the Fries office much more frequently and for longer periods of time than any other inmate. On this subject, Fries testified as follows:

Q It's a fact, is it not, that during the period from December to April, December '89 to April of '90, Maurice Mathie was in your presence privately in your office much more frequently than any other prisoner?
A He was sent down to security probably much more than any inmate, yes.
A I'm sure he found his way.
Q Well, on each and every time that he was sent down to security, did he go to security?
A To my knowledge, yes.
Q And it's a fact, is it not, that he did visit security during that time period, December '89 to April of '90, 20 or more times?
A That's what the books reflect, yes.

 (Tr. at 41).*

 In addition to the plaintiff's visits to the Fries office that were logged in, the Court finds that there were other visits by the plaintiff that were not recorded anywhere. These visits emanated from a practice of Fries to go to the visiting area, encounter the plaintiff and his visitor, and request that the plaintiff stop at his office directly from the visiting area. Those visits by Mathie to Fries' office would not be recorded in any log or other record. In addition, sometimes Fries would "reach out" for an inmate, and he kept no records of such visits.

 In this regard the Court credits the testimony of the plaintiff's mother Shirley Mathie, with regard to these additional unlogged visits:

Q Now, during the period that your son was confined at the jail, do you recall with what frequency you visited him?
A Visiting was every other day. It's according to the alphabet. And I went every other day.
Q Referring to your testimony a minute ago, about when was it that you had this conversation with Sergeant Fries?
A I believe it was in January of '90.
Q And after you first had that conversation with him, did you ever see him again?
A Yes, many times in the visiting room, in the inmates' visiting room.
Q Do you recall any conduct or activities engaged in by him after you had first met him and while you were visiting your son?
A He would come in, say hello, how are you, kind of knock on the table and tell my son to come to his office after the visit.
Q How many times did he do that?
A Many. Many times.

 (Tr. at 155).

 In addition the Court finds that some of these visits in the second floor security office were lengthy, as long as an hour at a time, or longer. Further, Fries conceded that during the first three months of 1990, he met with Mathie more than he met with any other prisoner.

Q You would agree, wouldn't you, that you spent some 20 hours with -- well, you had some 18 visits with Mr. Mathie?
A Okay.
Q Is that accurate? Do you acknowledge that?
A Yes.
Q And one or more of these visits was an hour long?
A Yes.
Q And that was more time than you would spend with most prisoners, isn't that so?
MR. CABBLE: Objection.
THE COURT: Overruled.
A Yes.

 (Tr. at 102).

 Fries testified that he first met Mathie when the plaintiff made a request to be moved to another housing area because he thought he was going to be sexually abused by a "big black inmate." His first meeting with Mathie, on January 24, 1990, was in the first floor office. As a result of this request, Fries placed Mathie in protective custody. Fries said he regarded Mathie as a "snitch," an inmate who wanted to be an informant, "because he called all the time." This first meeting lasted for approximately five hours. During this meeting Mathie told Fries that he was a homosexual. Although Fries testified that Mathie initiated every meeting between him and Fries, the Court does not credit this testimony. On the contrary, the Court finds that Fries initiated most of the meetings.

 Although purportedly, Fries did not recall much of what went on during these meetings, curiously, Fries testified that, somehow, Mathie knew his home address and his unlisted home telephone number. Even more surprising, Fries testified that during these meetings, Mathie admitted to committing the murder he was charged with, and Fries conceded that he did not disclose that incriminating information to anyone. Despite the fact that Mathie was indicted for that murder and had not yet pled guilty to that crime, Fries failed to disclose this material inculpatory admission. Not only did he fail to disclose this admission, but he lied to Internal Affairs Investigator Johnson, and initially told the investigator that Mathie did not confess to him.

 One of the benefits given to informants was the right to make phone calls from Fries' office. Fries conceded that the plaintiff, although not an informant, was also given that privilege. Asked to describe what occurred in these many visits to his second floor security office, Fries stated that Mathie used his phone to call his attorney and "maybe his mother, maybe his sister." Fries said he had a practice of letting inmates make phone calls from his office, "if he felt it was necessary." The Court finds that Fries never satisfactorily explained what took place in his office during these meetings.

 On cross-examination, in response to questions by the Assistant County Attorney, Fries testified that he had no sexual contact with Mathie, did not handcuff him to a pipe in the second floor security office and did not sodomize him. Again, the Court declines to credit this testimony; the great weight of the evidence proves otherwise.

 The plaintiff Maurice J. Mathie is presently an inmate at the Woodbourne Correctional Facility in Woodbourne, New York. He pled guilty to the crimes of manslaughter in the first degree and conspiracy in the third degree, both arising from the homicide charge, and is serving consecutive sentences totalling 10 to 30 years. His prior criminal record consisted of four traffic violations. He was arrested in connection with the homicide charge on August 22, 1989 and was sent to the SCCF on August 23, 1989. When he was processed in the bullpen, both he and his co-defendant Andrew Nappi told Corrections Officer Hammond "that we were both gay." (Tr. at 225). In October 1989, at the request of Mary Filou, the prison psychiatric social worker, Mathie was transferred to protective custody, because he was gay.

 Mathie testified that the first time he spoke to Roy Fries was late in January 1990. The plaintiff requested this first meeting. All the other meetings were initiated by Fries. During that first meeting at the first floor security office, which lasted approximately five hours, Fries asked the plaintiff questions about his sexual orientation.

THE COURT: Just tell us what he said.
THE WITNESS: Okay. He was asking me questions about my sexual orientation, when did I know I was gay? How long was I gay? Did my family know? Was I out of the closet? What type of men do I look for? Do I have a lover on the street?
. . . .
THE COURT: Is this the first meeting?
THE WITNESS: Still the first meeting, Your Honor. The first meeting lasted for approximately five hours.
THE COURT: Five hours.
THE WITNESS: Yes, sir.
After he was asking me questions about my co-defendants and my job and my life on the outside, he started asking me questions to the effect of am I feeling what he's feeling. And at first it kind of threw me back, I didn't know he meant by that. So I asked him again, what did you say? And he repeated it a second time, and then he said, well, you know, what I'm talking about. And I was afraid to answer him because I didn't know exactly what he meant.
So I kept trying to make him come out more direct and he wouldn't. That was towards the end of the meeting and that's when I was returned to my housing unit. It was late at night. The whole jail was locked down.
Q The five hours was from when to when, if you can estimate it?
A I don't know. I'll say 10 p.m. or after 10 p.m. I was returned to my housing unit.

 (Tr. at 233-234).

 The second meeting with Fries took place in his second floor security office. At this meeting Fries asked the plaintiff "How was I doing," and "if I needed something don't hesitate to ask him." The next day Fries called the plaintiff in for a third meeting. At this time Fries told Mathie "that he was attracted to me." Mathie testified that Fries instructed him to "come see him" about twenty-five times. From five to ten visits emanated from the times Mathie was in the visiting area and Fries would come over to the table, speak to my mother or sister and "tell me to come and see him after my visit."

 Mathie testified that, after four or five of these meetings, the conduct of Fries "went beyond mere talk." Mathie related what occurred:

A He reached across the desk to hold my hand, he kept making remarks about my eyes, and he was just expressing his interest in me.

 (Tr. at 237).

 After that, Mathie recounted increasing physical conduct by Fries during "many meetings" at many different times for many different durations. The Court finds that Mathie's testimony about the occurrences in the second floor security office was believable and makes the following findings of fact:

 The Court credits Mathie's description of this progressing physical sexual conduct by Fries described in vivid detail:

I guess by the middle of February there was a time where he would wheel his chair in front of mine where I was sitting and put his hands on my thighs and start talking to me, rubbing my thighs, grabbing for my hand to hold my hand, and with each visit it just kept progressing.
. . . .
Q Just going back now.
You indicated there was a progression of activities. Could you describe what occurred between you and Sergeant Fries on these various occasions after -- well, what activities did he engage in with you?
A By the end of February it had gotten to the point where he would call me out to his second floor or first floor office. He would begin my (sic) touching my thighs, rubbing his hands up and down my thighs, trying to get me aroused, tugging at my pants to get my pants down to expose my penis. He would attempt to perform oral sex on me.
By the beginning of March or even still the end of February there was times he exposed his penis to me through the zipper of his pants and attempted to pull my face into his penis to try to get me to perform oral sex on him. In a standing position he would try to get me to massage or masturbate him through his pants while he was trying to stick his tongue in my mouth, trying to kiss me, trying to hold me.
. . . .
Q On how many occasions, if you can estimate, did he expose himself to you?
A About four or five times.
Q Can you describe the appearance of his penis?
A I can try. I'm not a doctor. I can try.
Q What do you remember about it, if anything?
A I remember that he is circumcised, I remember that at the time he was wearing boxer shorts. I remember that with an erection the head of his penis is the same size as the shaft, that it is more blunted than it is pointed.

 (Tr. at 238-240).

 Mathie testified that he met with Fries in the first and second floor security offices a total of about 35 times. These visits extended from January 24, 1990 to the end of March or beginning of April 1990. During these visits, Fries performed sexual acts on him, or attempted to do so at least 20 times. Fries attempted to perform oral sex on Mathie seven or eight times, and attempted to make Mathie perform oral sex on him six or seven times. Mathie also testified to many other incidents, which the Court declines to detail in this opinion, and, instead, refers to the trial transcript at pp. 387-388.

 Mathie described the final episode in this sorry tale of sexual abuse which took place in mid-March 1990, probably on March 17, 1990. (Tr. at 424). The Court refers to the trial transcript at pages 241 through 244 for the testimony of Mathie describing this event in detail. Briefly, for the purpose of this decision, the Court makes the following findings of fact: With the door of the second floor security office locked from the inside, as was always done, Fries grabbed Mathie from behind in a bear hug, handcuffed his hands around two vertical poles or pipes in the corner of the office, undressed and rubbed lotion on both of them and penetrated Mathie from behind. After this act of sodomy was completed, Fries said he loved Mathie, and Mathie was told "to keep my mouth shut." As a result of this anal sodomy, Mathie sustained anal bleeding, and a burning feeling that persisted for a week. The Court finds that the plaintiff proved that this act of anal sodomy by Fries did occur.

 Asked when this incident took place, Mathie testified that it was "a day or two before his (Fries') daughter's wedding," estimated to be during the week of March 17, 1990. Although the plaintiff was somewhat confused about the date of this occurrence, the Court credits Mathie's testimony as to the events which occurred in this final act of sexual abuse.

 There were certain inconsistencies and varying testimony by the plaintiff with regard to the number of visits to Fries, and the dates of the visits. The Court finds that, under the circumstances, this lack of specificity and clarity is understandable. The Court ...

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