In general, as this Court has held, a pretrial detainee's transfer between state correctional facilities, for a limited period of time, does not amount to "punishment" under the Fourteenth Amendment. Butler v. New York State Correctional Dept., 1996 U.S. Dist. LEXIS 11057, 94 Cv. 5054, 1996 WL 438128 at *5 (S.D.N.Y. Aug. 2, 1996). Indeed, "pretrial detention of a defendant, when of reasonable duration, serves important regulatory purposes, including the prevention of flight and the protection of the community from a potentially dangerous individual." Millan, 4 F.3d at 1043.
However, "otherwise valid pretrial detention does assume a punitive character, and thus offends the due process clause, when it is significantly prolonged." United States v. Gallo, 653 F. Supp. 320, 334-335 (E.D.N.Y. 1986). See also United States v. Melendez-Carrion, 790 F.2d 984, 1007 (2d Cir. 1986) (Feinberg, J., concurring) ("lengthy delay can transform what might otherwise be a valid regulatory measure into one that is punitive regardless of Congress' stated intentions.") The Due Process clause is implicated by extended pretrial detention because the "quality of the detainee's legal defense is likely to diminish dramatically as long as he or she is incarcerated" [and] "detention is likely to increase the chances of conviction at trial." Gallo, 653 F. Supp. at 337. Most importantly, placing pretrial detainees in facilities designed for, and occupied by, convicted prisoners also carries a punitive element. See e.g. Morales Feliciano v. Hernandez Colon, 697 F. Supp. 37, 45-46 (D.P.R. 1988), aff'd sub nom. Morales-Feliciano v. Parole Bd. Of Puerto Rico, 887 F.2d 1 (1st Cir. 1989) ("knowing commingling of . . . pretrial detainees with convicts suffering punishment for crime, [causes a prison to] also punish the unconvicted however unexplicit the officials' purpose to punish may be.") Accordingly, the prolonged confinement of a pretrial detainee in a facility statutorily designated for convicted prisoners raises the spectre of a Constitutional violation.
Determining whether the length of pretrial detention is constitutionally excessive requires a factual analysis which balances the length of the detention against the reasons for the detention. Millan, 4 F.3d at 1043. In this case, plaintiff alleges that he was confined in state DOC facilities designed for housing convicted prisoners for at least 10 months after his conviction was reversed. The defendants have offered no reason for this prolonged confinement. Thus, the complaint, liberally construed, is sufficient to survive both defense motions.
B. The Defendants' Responsibility
One of the defendants in this case is the New York City Department of Correction. To hold a municipal agency liable under § 1983, a plaintiff must demonstrate that the municipality maintained an official custom or policy which caused the plaintiff to be deprived of a Constitutional right. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Alternatively, the plaintiff may demonstrate that the municipality acted with deliberate indifference to constitutional rights by failing to adopt a policy, where failure to adopt such policy would likely result in deprivation of an individual's constitutional rights. City of Canton v. Harris, 489 U.S. 378, 390, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). Here, there is a material question as to whether Mr. Robbins' repeated transfers between State and City correctional facilities were undertaken pursuant to a custom or policy of the New York City DOC. Far from failing to state a claim, Robbins' allegations regarding the number and frequency of transfers suggest that the failure to return him to a City facility was indeed the result of an authorized policy.
The defendants also include three New York State correctional services officials. To hold an individual personally liable under § 1983, a plaintiff must show that he or she (1) directly participated in actions resulting in a constitutional deprivation; (2) acting as a supervisory official, failed to remedy the deprivation after learning of the violation through a report or appeal; (3) created a policy or custom under which unconstitutional practices occurred or (4) was grossly negligent in managing the. subordinates who caused the unconstitutional deprivation. Williams v. Smith, 781 F.2d 319, 323-324 (2d Cir. 1986). Personal involvement of defendants in alleged § 1983 actions is a question of fact. Williams, 781 F.2d at 323. For the reasons stated, the allegations in this case are sufficient to create a material issue of fact with regard to the question of whether the state defendants, acting as supervisory officials, failed to remedy a constitutional violation after learning of the violation through a request or the filing of a civil complaint. Finally, although the state defendants have raised the defense of state immunity under the Eleventh Amendment, this doctrine does not apply to suits brought against state officials in their individual capacities. Berman Enters., Inc. v. Jorling, 3 F.3d 602, 606 (2d Cir. 1993).
Accordingly, the defendants' motions are denied. The parties are directed to agree upon and submit to the Court a schedule for submission of a pre-trial order.
ALLEN G. SCHWARTZ, U.S.D.J.
Dated: New York, New York
February 10, 1998