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FISHER v. GOORD

July 16, 1997

ROSEANN FISHER and AMY FISHER, Plaintiffs,
v.
GLENN S. GOORD, individually and in his official capacity as Acting Commissioner and former Deputy Commissioner of the New York State Department of Correctional Services, THOMAS A. COUGHLIN, III, individually and in his official capacity as former Commissioner of the New York State Department of Correctional Services; PHILIP COOMBE, individually and in his official capacities as former Assistant Commissioner and former Acting Commissioner of the New York State Department of Correctional Services; ANTHONY ANNUCCI, individually and in his official capacity as Deputy Commissioner of the New York State Department of Correctional Services; ANGINELL ANDREWS, individually and in her official capacity as Superintendent of Albion Correctional Facility; GARY STEVENS, individually and in his official capacity as Deputy Superintendent of Albion Correctional Facility, ROBERT SCHWARTZ, individually and in his official capacity as Sergeant of Albion Correctional Facility; MARTIN KEARNEY, individually and in his official capacity as Acting Captain of Albion Correctional Facility; GARY DESALVO, individually and in his official capacity as Correctional Officer of Albion Correctional Facility, FREDERICK HEMLEY, individually and in his official capacity as Correctional Officer of Albion Correctional Facility; IRA STILES, individually and in his official capacity as Correctional Officer of Albion Correctional Facility; MICHAEL GALBREATH, individually and in his official capacity as Sergeant of Albion Correctional Facility; BRIAN MALONE, individually and in his official capacity as Inspector General of the New York State Department of Correctional Services; BARBARA D. LEON, individually and in her official capacity as an Investigator for the Inspector General of the New York State Department of Correctional Services; D.A. SCHMIDT, individually and in his official capacity as Correctional Officer of Albion Correctional Facility; BRUCE KUTTNER, individually and in his official capacity as Correctional Officer of Albion Correctional Facility; RICHARD (RICK) SHIMLEY, individually and in his official capacity as Correctional Officer of Albion Correctional Facility; MARK TAYLOR, individually and in his official capacity as Correctional Officer of Albion Correctional Facility; AND DINO THOMAS, individually and in his official capacity as Correctional Officer of Albion Correctional Facility, Defendants.



The opinion of the court was delivered by: ARCARA

 INTRODUCTION

 On July 18, 1996, plaintiffs, Amy Fisher ("Fisher"), an inmate at the Albion Correctional Facility ("Albion"), and her mother Roseann Fisher ("Mrs. Fisher"), commenced this action in the Eastern District of New York. The case was subsequently transferred to this Court.

 Plaintiffs allege that, while Fisher has been incarcerated in Albion, she has been raped and sexually abused by several correction officers. They claim that they complained about the correction officers' conduct to various officials in the New York State Department of Correctional Services ("DOCS"), but their complaints were not acted upon, and Fisher was, in fact, retaliated against as a result of the complaints. Plaintiffs' complaint asserts claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a); the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. § 651 et seq. ; the Copyright Revision Act of 1976, 17 U.S.C. § 101 et seq. ; the New York State Constitution; N.Y. Exec. L. § 290; and the New York common law. Plaintiffs seek compensatory and punitive damages, declaratory judgment and injunctive relief.

 The defendants in this case are Glenn S. Goord, the Acting Commissioner of DOCS and former Deputy Commissioner; Thomas A. Coughlin, III, former Commissioner of DOCS; Philip Coombe, former Assistant Deputy Commissioner and Acting Commissioner of DOCS; Anthony J. Annucci, Deputy Commissioner and Counsel of DOCS; Anginell Andrews, Superintendent of Albion; Gary Stevens, Deputy Superintendent of Albion; Brian Malone, Inspector General ("IG") of DOCS; Barbara D. Leon, an IG investigator; Martin Kearney, Acting Captain at Albion; and Robert Schwartz, Gary DiSalvo, *fn1" Frederick Hemley, Ira Stiles, Michael Galbreath, Dean A. Schmidt, *fn2" Bruce Kuttner, Richard Shimley, Mark Taylor, and Dean Thomas, *fn3" all of whom are present or former correction officers at Albion. *fn4"

 After the case was transferred to this Court, plaintiffs moved for a temporary restraining order ("TRO"), pursuant to Fed. R. Civ. P. 65, requiring the defendant prison officials to surrender Fisher to the United States Marshal for the Western District of New York for the purpose of transporting her to the Danbury Federal Correctional Institute in Danbury, Connecticut ("Danbury"), where she would be incarcerated during the pendency of this litigation. *fn5" Oral argument was held on the TRO motion on July 26, 1996. The Court denied the motion orally from the bench and scheduled a date for a preliminary injunction hearing.

 On August 9, 1996, plaintiffs filed their motion for a preliminary injunction, seeking: (1) an order requiring that Fisher be transferred to Danbury during the pendency of this action; and (2) an order requiring defendant Kuttner to provide a blood sample. Because plaintiffs had problems effecting service upon all the defendants, the original date for the preliminary injunction hearing had to be adjourned. Plaintiffs subsequently reported to the Court that they had not effected service on defendant Kuttner, but agreed to proceed with the preliminary injunction hearing on the condition that Kuttner would not be bound by any injunction issued. *fn6"

 In light of plaintiffs' request that the Court order Fisher transferred to a federal correctional facility, and because neither the United States nor the Federal Bureau of Prisons ("FBP") is a named party in this action, the Court contacted the United States Attorney's Office and alerted it to the situation. The United States requested and was granted permission to appear amicus curiae. The United States argues that the relief requested by plaintiffs, i.e., transfer to a federal facility pending resolution of this case, is improper and contrary to 18 U.S.C. § 3626(a), because the prospective relief extends further than necessary to correct the alleged wrong. The United States also argues that the Court lacks authority to order FBP to accept a state prisoner into its custody under the circumstances present here.

 In response to the position of the United States, plaintiffs argue, inter alia, that 18 U.S.C. § 3626 is unconstitutional. Accordingly, pursuant to 28 U.S.C. § 2403, the Court has issued an order allowing the United States to intervene regarding the question of the constitutionality of 18 U.S.C. § 3626. However, because the Court's decision on the instant motion is not based on 18 U.S.C. § 3626, the Court has not required, up to this point, any additional briefing on the issue of the constitutionality of the statute.

 The Court held a hearing on plaintiffs' preliminary injunction motion on September 24, 25, 26, 27 and 30, and October 21, 22 and 23, 1996. In addition to the evidence offered at the hearing, the parties offered various affidavits and exhibits. Following the hearing, the parties were given an opportunity to brief their respective positions, and oral argument was held on December 3, 1996.

 After carefully considering the evidence adduced at the hearing and the various affidavits and exhibits, reviewing the submissions of the parties, and hearing argument from counsel, the Court denies plaintiffs' motion for a preliminary injunction. The following constitutes the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

 FINDINGS OF FACT

 I. General Background

 Plaintiff Amy Fisher is currently an inmate at Albion, serving a sentence of five to fifteen years for assault in the first degree. The criminal case resulting in her incarceration received extensive media coverage, which resulted in Fisher, herself, attaining significant notoriety.

 Albion is a women's medium security facility located in Albion, New York, about midway between Buffalo and Rochester. Fisher has been housed at Albion since December 1992, except for two brief periods when she was transferred to the Bedford Hills Correctional Facility ("Bedford Hills"), located in Westchester County, so that she could attend other court proceedings downstate.

 Fisher claims that throughout the time she has been incarcerated at Albion, she has been raped and sexually abused by several of the defendant correction officers. She claims that she complained about her treatment to DOCS authorities, including the Superintendent at Albion and the DOCS IG, but they took no action on her complaints and, in fact, retaliated against her by confining her in Albion's special housing unit ("SHU").

 In general, defendants deny Fisher's allegations of rape and sexual abuse. Defendants Galbreath, DiSalvo, and Hemley have submitted sworn affidavits denying Fisher's allegations of rape and sexual abuse. Defendant Schwartz testified at the hearing that he never had any sexual relations with Fisher. The defendant prison officials deny that Fisher was placed in SHU for retaliatory purposes, and claim instead that Fisher was initially placed in SHU for disciplinary reasons after she violated a rule of inmate behavior by sending "love letters" to a correction officer, and that she was placed in involuntary protective custody ("IPC") in SHU following her disciplinary confinement in order to protect her from other inmates.

 II. Plaintiffs' Witnesses7

 A. Hearing Testimony of Amy Fisher8

 1. Schwartz

 Plaintiff Amy Fisher testified that she arrived at Albion in December 1992. Hearing Transcript ("T.") 12. About two weeks after her arrival, she first met defendant Schwartz, who was a sergeant at Albion. T. 8. She testified that Schwartz called her to the grievance office in B block, introduced himself, and told her he wanted to talk to her. T. 12-13. Fisher testified that Schwartz was "very nice" and asked her how she was getting along at Albion. T. 12-13.

 Fisher testified that, initially, she talked to Schwartz only about once or twice a week, but as things progressed, she got to know him better and they talked every day. T. 14. She testified that Schwartz spoke to her about the relationship between inmates and correction officers, and told her that "it's always good to have friends wherever you go and, you know, that he's my friend and that he wants to make sure that I'm all right. And, if I have a problem, to come to him." T. 14. She stated that Schwartz told her that she would have to behave and cooperate, and that if she did not, the correction officers would not help her or protect her from other inmates. T. 15.

 Fisher testified that Schwartz told her about misbehavior reports (called "tickets") and that if she were to get a number of tickets, the parole board would not grant her parole. T. 16-17. She said that he explained to her that "the system is like a game, and if you play their game, you'll go home, if you buck the system or you don't cooperate and play their game, they keep you longer and they may make your life miserable while they're keeping you. They don't protect you." T. 17.

 Fisher testified that for about five or six months, Schwartz was "just [her] friend." T. 17. She thought he "was really nice" and she felt safe. T. 17. She testified that Schwartz took care of tickets she received from other correction officers and resolved problems she had with other correction officers. T. 17-18. Fisher testified that, during this five or six-month period, she had no sexual contact with Schwartz. T. 19. She further testified, however, that in the summer of 1993 she had sexual relations with Schwartz on two or three occasions in the administration building at Albion. T. 19.

 While testifying, Fisher never used the word "rape" to describe her sexual interactions with Schwartz. She also never stated that Schwartz forced, threatened or coerced her to have sex with him. Nor did she state that she refused to have sex with him, or that she told him no. In fact, she admitted that she did not resist Schwartz. T. 249-50. She never tried to fight him off, scream or yell. T. 21.

 Fisher testified that, in September 1993, she was transferred to Bedford Hills, and returned to Albion at the end of November 1993. T. 21. When asked whether she had any further physical contact with Schwartz after returning from Bedford Hills, she answered, "I can't even answer honestly. I don't remember. I don't know why I don't know. I just don't." T. 22. Fisher testified that her relationship with Schwartz changed after she returned from Bedford Hills. T. 22. She tried to distance herself from him by not talking to him or being friendly toward him. T. 22-23. She testified that Schwartz initially expressed concern, but then became jealous and asked her if she was involved with another correction officer. T. 23. She testified that Schwartz would pull her hair, make her talk to him, ask her if she loved him, scream at her, and make her repeat over and over again "I love you, I love you, Bobby, things like that." T. 23. Fisher testified that this happened on more than one occasion and made her feel scared. T. 23-24. She testified that the reason she ended her relationship with Schwartz was because "when I was away from him I really--I didn't miss him." T. 24.

 Fisher testified that, through her attorney, she reported Schwartz' conduct to officials at Albion. T. 24. She spoke to the DOCS IG in January 1994 and the next day Schwartz was transferred. T. 25. Fisher testified that after she complained in January 1994, "[her] life became unbearable and [she] didn't report anything again for quite a while." T. 176.

 2. Hemley

 Fisher testified that after she returned to Albion from Bedford Hills in November 1993, she had sexual relations with defendant Hemley, a correction officer at Albion, on three occasions. T. 29-37. The first time she had sexual relations with Hemley was at the end of November or the beginning of December 1993. She testified that Hemley came by her bed during the night, put his hand over her mouth and told her to be quiet. He then motioned to her to come with him and directed her to go into the staff bathroom. She testified that, once in the bathroom, Hemley started kissing her and "[she] ended up having sex with him." T. 29.

 Fisher testified that the second occasion occurred in January 1994. T. 34. Once again, Hemley approached her during the night and they had sexual relations. T. 34-35. With regard to the second occasion, Fisher testified, "I don't know why I did it, I just did it because I did it. I didn't think about it. I didn't want to do it, but felt like--like I just--if I didn't do it, he wouldn't be my friend anymore." T. 36. Fisher testified that after the second occasion, she was "a little uncomfortable with it." T. 29.

 Fisher testified that when she reported Schwartz to the DOCS IG in January 1994, as discussed above, the IG asked her if she ever had sexual relations with any other correction officer and she told him "yes, Officer Hemley." T. 38. Fisher testified that she had sexual relations with Hemley a third time, on or about April 15, 1994. T. 36. She stated that she had sex with him because "[she] didn't know how to say no." T. 29.

 While testifying, Fisher never used the word "rape" to describe her sexual interactions with Hemley. She also never stated that Hemley forced, threatened or coerced her to have sex with him. Nor did she state that she refused to have sex with him, or that she told him no. In fact, she admitted that she did not resist Hemley. T. 252-53. She did not try to fight Hemley off, scream or yell. T. 33. When asked why not, she responded, "because he always acted like he was our friend and everything and I just--I liked it that he was my friend and, you know, he was there and he used to joke and play with us and I just--I don't know. I didn't know how to--like I just wanted him to be my friend." T. 34.

 3. Shimley

 Fisher testified that she first met defendant Shimley in 1993. T. 38. Shimley was the correction officer in charge of the gym at Albion during the day shift. T. 38. Fisher testified that, at first, Shimley "was really nice and polite." T. 60. She testified that at the end of 1994, or the beginning of 1995, Shimley showed her pictures of himself in which he was naked or semi-naked. *fn9" T. 51-53.

 Fisher testified that her relationship with Shimley changed in about February 1995. T. 60. At that point, Shimley became angry with her. T. 57-60. Fisher testified that from February to May 1995, Shimley routinely called her names, such as "whore" and "slut," and exposed himself to her and asked her to perform sexual acts. T. 58-60. Fisher testified that in May or the beginning of June 1995, Shimley called her into the recreation office, grabbed her arm and tried to write on it with a permanent black marker. T. 47-48. She asked him what he was doing and he said he was going to "brand" her a "slut." T. 47. She then pulled away and left the area. T. 48.

 Fisher testified that sometime in July 1995, she was required to report to the gym as part of a fire drill. T. 48. She had just gotten out of the shower and reported wearing only her bathrobe. T. 48. Fisher testified that Shimley walked up to her, grabbed her breast and "twisted it real hard." T. 48. Fisher also testified that in November 1995, Shimley kicked her in the shin. T. 62-63.

 Fisher testified that she reported her problems with Shimley to prison authorities at Albion in the fall of 1995. T. 61-63. Her complaints were forwarded to the DOCS IG, and she spoke with IG investigator Leon about Shimley in December 1995. T. 61-63.

 4. DiSalvo

 Fisher testified that she first met defendant DiSalvo, a correction officer at Albion, in January 1993, when she was placed in protective custody in SHU. T. 65. She testified that while in SHU, DiSalvo kept coming to her door and demanding that she give him her autograph. T. 66. Fisher testified that when she refused, DiSalvo called her names and made sexual comments to her. T. 66. Fisher testified that she reported DiSalvo's conduct to prison authorities. T. 66.

 Fisher testified that she did not see DiSalvo again until September 1994. T. 67. She testified that, at that time, she asked DiSalvo for a roll of toilet tissue so that she could cover the window to her cubicle while she was using the toilet, but DiSalvo refused and stared at her through the window while she was using the toilet. T. 68. Fisher testified that she told DiSalvo to leave her alone, but he told her that she had gotten him into trouble when she complained about his previous conduct in January 1993, and called her a "bitch." T. 69.

 Fisher testified that, on October 14, 1994, she was raped by DiSalvo in a stairwell at Albion. T. 71-72, 253. She testified that she did not fight or scream, but did resist and told DiSalvo to stop. T. 72, 254. She testified that nobody else witnessed the incident. T. 172. Fisher admitted that she never brought this incident to the attention of anyone at Albion or DOCS. T. 73. When asked why not, she stated "because I told my attorney who was representing me at the time, because I was trying to bring about a lawsuit like this at that time." T. 73.

 5. Kuttner

 Fisher testified that she first met defendant Kuttner, a correction officer at Albion, in May 1993. T. 107. She testified that, on July 26, 1995, she had sexual relations with Kuttner. T. 108-09. She stated that she was

 
joking around with Officer Kuttner and Officer Kuttner, he's always been, you know, flirtatious but he's always been all right, and he kept making sexual comments, this was going on for years and, you know, I would just laugh at him because it went on for years, I didn't really think anything of this and he told me to go into the bathroom . . . I thought he was playing and I was calling his bluff and I did and he came in behind me and closed the door and he started kissing me and taking off my clothes.

 T. 108-09. Fisher and Kuttner then had sex. T. 109-10.

 While testifying, Fisher never used the word "rape" to describe her sexual encounter with Kuttner. She also never stated that Kuttner forced, threatened or coerced her to have sex with him. Nor did she state that she refused to have sex with him, or that she told him no. She testified that she did not try to stop Kuttner and never tried to fight him off, yell or scream. T. 109, 255. When asked whether she wanted to have sex with Kuttner, she testified, "not really, no, I was just, you know, he was joking with me and I thought it was a joke and I went in there and it wasn't a joke and I didn't know how to get out of it." T. 110. When asked whether she thought she could have fought him off, she responded, "I probably could have screamed or something, I don't know, I didn't think about it at the time." T. 110.

 Fisher testified that she brought the incident regarding Kuttner to the attention of prison authorities at Albion in the beginning of April 1996, approximately nine months after the incident occurred, and that a representative from the IG's office came to speak to her about the incident at the end of April 1996. *fn10" T. 110-11.

 6. Schmidt

 Fisher testified that she came to know defendant Schmidt while he was working as a correction officer at Albion. T. 111-12. Fisher testified that, at approximately 3:00 p.m. on April 8, 1996, she was ordered to go to the library to pick up legal mail. T. 115. She was told that the order came from Schmidt. T. 115.

 Fisher testified that when she went to the library at 3:00 p.m. to pick up her legal mail, she was accompanied by inmate Lillian Nieves. T. 192, 296. Fisher testified that she and Nieves were good friends. T. 182, 297. They lived together, did everything together, talked together every day, and confided in each other. T. 181, 192. Fisher admitted that she told Nieves on numerous occasions that she wanted to get out of Albion, but denied telling Nieves that she had a "plan" for getting out. T. 181-82. Fisher did admit, however, that she had a "plan" to get out of Albion by filing a lawsuit. T. 182. Fisher also admitted that, on the way to the library, she and Nieves had a conversation, but denied that she ever discussed with Nieves a "plan" to "set up" Schmidt so that she could get out of Albion. T. 192-93. Fisher testified that Nieves was no longer her friend because Nieves had made up lies about her, manipulated the system for favors at Albion, and lied about her in a formal affidavit. T. 183.

 Fisher testified that, when she arrived at the library at 3:00 p.m., Schmidt told her that he was busy and that she should return at 8:00 p.m. T. 116. Fisher testified that she returned to the library at 8:00 p.m., but Schmidt told her she would have to wait. T. 118. At approximately 8:30 p.m., Schmidt let all the other inmates, except Fisher, out of the library. T. 118-19. Fisher testified that she then asked Schmidt for her legal mail, but he replied, "come on, you know you don't have any legal mail," and started making sexual comments to her. T. 119. Fisher testified that she tried to walk out of the library, but Schmidt grabbed her and stated that "it would be a shame" if he had to call-in and report that she was hiding in the library and tried to assault him. T. 120. Fisher testified that Schmidt then raped and sodomized her. T. 121, 256. Later that evening, after the incident, she spoke with Nieves about it. T. 295, 298-99.

 When receiving legal mail, inmates are required to sign a log book. Although Fisher initially denied signing the log book on April 8, 1996, T. 272, she later admitted that she had signed the book. T. 274. See Defendants' Exhibit 13. Fisher testified that even though she signed the log book that day, she did not receive legal mail. She explained that she was "just playing around" when she wrote her name at the top of the page of the log book. T. 274, 281.

 Fisher testified that she reported the incident involving Schmidt to prison authorities at Albion a few days after it happened. *fn11" T. 122, 202. She did not report the rape to Albion medical personnel. T. 203. Fisher testified that, in late April 1996, she spoke with IG investigator Leon about the incident. T. 123-24.

 7. Thomas

 Fisher testified that she first met defendant Thomas in March 1995. T. 128. He was the night-shift housing officer in her cell block. T. 128. Fisher testified that in September 1995, she awoke one night and found Thomas stroking her hair. T. 129. She found it irritating and told him to stop. T. 184-85. She testified that this happened again on a number of other occasions. T. 130. She further testified that at the end of December 1995, or possibly January 1996, Thomas came into her cubicle while she was asleep and began kissing her. T. 131-32. She stated that, at first, she did not realize what was happening and kissed him back until she finally woke up. T. 132. She testified that she never brought Thomas' conduct to the attention of anyone at Albion or DOCS. T. 133. Fisher testified that she was not scared of Thomas. T. 184.

 8. Bailey

 Fisher testified that shortly after arriving at Albion in 1992 or 1993, she met correction sergeant William Bailey. *fn12" T. 261. She testified that over the years they got to know each other better and became close in 1995. T. 262. She described their relationship as a "personal . . . [and] loving friendship," but nonsexual. T. 262. Fisher stated that she wrote Bailey "many, many letters." T. 259. In particular, she admitted writing two letters to Bailey in May 1996, about one month after the incident involving defendant Schmidt, in which she expressed her strong feelings toward Bailey. T. 257, 260-61, 268, 300. See Defendants' Exhibit 4 at pp. 7-9. These letters are now in the possession of DOCS. T. 260. In one letter, dated May 1, 1996, Fisher states, "I miss you a lot [and] wish that you could be here with me. I'd make you lie down next to me so I could fall asleep on your chest." She states later in the same letter, "I love you Billy." Both letters are signed, "love me." The Court finds that these letters can best be described as "love letters" from Fisher to Bailey. Indeed, Fisher admitted at the hearing that she was in love with Bailey. T. 300.

 9. Other Complaints/Grievances

 Fisher testified that she was placed in disciplinary confinement in SHU from June 26, 1996 to August 26, 1996, for writing the love letters to Bailey. *fn13" T. 134-35, 268, 270, 300-02. While in disciplinary confinement in SHU, she was locked in her cell for 23 hours a day and was allowed only one hour a day of recreation outside. T. 135. She was allowed a shower every other day and her meals were provided to her in her cell. T. 135.

 Fisher testified that, while she was in disciplinary confinement in SHU, she was not allowed to recreate with other inmates. T. 136-39. She testified that it was her experience that other inmates in SHU were allowed to recreate together. T. 137-39. She was told that Superintendent Andrews had ordered that she must recreate alone. T. 136, 138-39. She testified that her one hour of recreation was spent in a large recreation yard that all the other inmates in SHU were allowed to use, but at a different time. T. 139.

 Fisher testified that she filed a formal grievance complaint, through the inmate grievance office, about the requirement that she recreate alone. T. 139. See Defendants' Exhibit 37. She testified that after she filed her grievance, she was no longer allowed to recreate in the large recreation yard, but was forced to use a smaller area behind her cell, and that she was still required to recreate alone. T. 139-40. Fisher testified that she filed another grievance regarding this same issue. T. 140. She testified that she eventually received a reply from Superintendent Andrews stating that the Superintendent felt that, due to Fisher's published allegations, *fn14" it was more prudent to have her recreate alone. T. 141.

 Fisher testified that she was assaulted by other inmates at Albion on at least three occasions. On August 11, 1993, she was punched in the mouth by another inmate. On September 15, 1993, another inmate tried to strangle her in the phone room. On September 23, 1994, another inmate punched her while she was sleeping. T. 173-74.

 Fisher testified that in mid-1994, while at Albion, she received a tattoo on her right shoulder that says "Sexy." T. 203-04.

 Fisher testified that she wants to be transferred to another correctional facility, regardless of its location. *fn16" T. 154-55.

 After observing Fisher's demeanor while testifying, and carefully listening to and considering her testimony, the Court finds that she is not a credible witness. Many of her answers to simple, straightforward questions were evasive and nonresponsive. Her testimony was also inconsistent at times. For example, she initially testified that she was planning to bring a lawsuit as early as 1994. Later, however, she testified that she did not plan to bring a lawsuit until April or May 1996.

 Fisher's testimony about the alleged rapes was uncorroborated. Plaintiffs did not present any other witnesses to the alleged rapes. *fn17" Nor did they offer any other physical evidence to support Fisher's testimony. Further, Fisher's testimony was contradicted in many important aspects by other witnesses, especially by Nieves, whom the Court found to be a credible witness.

 In the Court's view, Fisher did not come across as someone who suffered a series of rapes. This view is based on a number of factors. First, Fisher's testimony regarding the rape allegations was very matter of fact and general in nature. Second, her descriptions of some of the sexual encounters, even if taken as true, could only reasonably be described as consensual. Third, at the same time Fisher was allegedly being sexually abused by correction officers at Albion, she received a tattoo saying "Sexy." Fourth, only a month after an alleged rape by a correction officer, Fisher was writing love letters to another officer. This conduct--receiving the tattoo and writing the love letters--would appear to be inconsistent with someone who was being raped and sexually abused by correction officers.

 Simply put, the Court finds Fisher's allegations of rape to be highly suspect and unsupported by the record currently before the Court. The evidence tends to show that this lawsuit is part of a "plan" by Fisher to make false allegations against correction officers in order either to obtain a transfer out of Albion to a facility closer to home, or to assist her somehow in obtaining parole.

 B. Hearing Testimony of Dr. Charles Patrick Ewing18

 Charles Patrick Ewing, Ph.D., was called as an expert witness by plaintiffs regarding Fisher's current mental state. Dr. Ewing is both a lawyer and a psychologist whose clinical practice consists primarily of doing evaluations of individuals who are involved in litigation and testifying as an expert witness. T. 316-17.

 Dr. Ewing testified that, in preparation for his evaluation of Fisher, he "quickly" reviewed her medical records and proceeded to interview her. T. 320. Dr. Ewing only reviewed Fisher's medical records for the period of her incarceration and did not review any of Fisher's mental health records. T. 318-19. He interviewed Fisher on August 21, 1996, at Albion, for approximately three hours. T. 317, 320.

 Dr. Ewing testified that he did a history and a mental status examination of Fisher. T. 320. He testified that Fisher related to him a history of being physically, sexually and psychologically abused as a child. T. 321, 325. She also related a history of having been a witness to many instances of domestic violence as she was growing up. T. 325. Fisher went on to relate the history of her relationship with a man that led to the difficulties that she had with the law and her criminal acts. T. 325. She then related a history of being raped, sexually abused and sexually harassed at Albion. T. 325. Fisher told Dr. Ewing that many of her problems at Albion stemmed from her notoriety. T. 326.

 Dr. Ewing testified that Fisher appeared to him to be depressed. T. 328. Fisher indicated to him that she does, from time to time, think of suicide, but has no immediate plans to kill herself. Fisher told him that unless she was moved from her present situation, that being disciplinary confinement in SHU, she would eventually take her own life. T. 328. Dr. Ewing candidly admitted, however, that he was not an expert in the area of the effects of solitary confinement. T. 329-30.

 Dr. Ewing testified that his diagnosis of Fisher's clinical condition, at the time he interviewed her, was that of major depressive disorder. T. 333-34. Dr. Ewing testified that Fisher told him that she feared remaining in solitary confinement and that she would lose her mind and ultimately take her own life if she remained there. T. 334. Dr. Ewing also testified, however, that Fisher did not express to him any specific fears related to the things that allegedly happened to her at Albion. T. 334-35.

 The Court does not find the testimony of Dr. Ewing to be persuasive. His opinion that Fisher suffered from major depressive disorder appeared to be based almost exclusively on his interview with Fisher. Unlike defendants' expert, Dr. Ciccone, Dr. Ewing failed to examine any of Fisher's numerous mental health records, which date back several years. Further, although Dr. Ewing testified that Fisher's depressed mental state was related to her confinement in SHU, he admitted that he was not an expert in the mental health effects of solitary confinement. The Court does not question Dr. Ewing's qualifications and skills, but nevertheless finds his opinion in this case to be less than thorough, because it was based only on a "quick" review of her medical records and a three-hour interview, and not on a full review of her entire mental health history.

 C. Hearing Testimony of Roseann Fisher19

 Plaintiff Roseann Fisher testified that she is the mother of plaintiff Amy Fisher. Mrs. Fisher lives in Merrick, New York, on Long Island. She testified that she first visited her daughter in Albion in December 1992. T. 389-90. She stated that in February 1993, she saw a television program showing footage of Fisher's living area at Albion. T. 390. The program also showed other inmates making threats against Fisher. T. 390. Mrs. Fisher said that she lodged a complaint about this incident through Fisher's attorney. T. 391, 393. She testified that she received a response from DOCS, stating that it was inappropriate to have allowed the television cameras into Fisher's living area, and that it would not happen again. T. 393.

 Mrs. Fisher testified that in May 1993, she first met defendant Schwartz during a visit with Fisher at Albion. T. 393. She testified that she met Schwartz again in June 1993, when he invited himself to join them during a visit. T. 395.

 Mrs. Fisher testified that, in the summer of 1993, Fisher told her for the first time that she had a sexual relationship with Schwartz. T. 494-95, 595. Fisher told her that when she first got to Albion, Schwartz befriended her and, eventually, the relationship progressed to the point where she had sex with him. T. 595. Mrs. Fisher testified that there came a point, however, when Fisher no longer wanted to continue the relationship. T. 596. Mrs. Fisher admitted that Fisher never used the word "raped" when describing her relationship with Schwartz. T. 596. Mrs. Fisher testified that Fisher told her that she was afraid of Schwartz because he had a bad temper, and that she felt trapped by Schwartz and could not get away from him. T. 597. Mrs. Fisher testified that she was furious when Fisher told her about her relationship with Schwartz. T. 598. She contacted her ...


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