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, 102 S.Ct.
2727, 73 L.Ed.2d 396 (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, 106 S.Ct. 1092, 89
L.Ed.2d 271 (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
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
defendants' actions were unlawful. Accordingly, at this
juncture, defendants are not entitled to the protection of
4. State Law Claims
Finally, defendants argue that Morris's state law claims must
be dismissed for lack of subject matter jurisdiction. "[T]he
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, 118 S.Ct. 523,
139 L.Ed.2d 525 (1997) (quoting United Mine Workers v. Gibbs,
383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (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.
For the reasons set forth above, defendants' motion to dismiss