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Carpenter v. Apple

United States District Court, N.D. New York

September 5, 2017

GINA CARPENTER, Plaintiff,
v.
CRAIG APPLE, Albany County Sheriff in his official and individual capacities; ALBANY COUNTY SHERIFF'S OFFICE; COUNTY OF ALBANY; ALBANY COUNTY CORRECTIONAL FACILITY; AUGUSTUS ROBERSON, III, Corrections Officer in his official and individual capacities; and “JANE DOE” and “JOHN DOE, ” Fictitious Names of Persons Employed by the Albany County Sheriff's Department, the Identities of Whom are Unknown, Defendants.

          OFFICE OF TREVOR W. HANNIGAN TREVOR W. HANNIGAN, ESQ. Counsel for Plaintiff

          METH LAW OFFICES, P.C. MICHAEL D. METH, ESQ. Co-Counsel for Plaintiff

          ADAM G. GIANGRECO, ATTORNEY-AT-LAW ADAM G. GIANGRECO, ESQ. Counsel for Defendant Craig Apple

          GOLBERG SEGALLA, LLP JONATHAN BERNSTEIN, ESQ. CHELSEA E. KEENAN, ESQ. Co-Counsel for Defendant Craig Apple

          HON. DANIEL C. LYNCH MICHAEL L. GOLDSTEIN, ESQ. SIA Z. GOOGAS, ESQ. Counsel for Defendants Albany County Sheriff's Office, Attorneys

          BURKE, SCOLAMIERO, MORTATI & HURD, LLP JEFFREY E. HURD, ESQ. JUDITH B. AUMAND, ESQ. Co-Counsel for Defendants County of Albany and Albany County Correctional Facility

          DECISION AND ORDER

          HON. GLENN T. SUDDABY, CHIEF U.S. DISTRICT JUDGE.

         Currently before the Court, in this civil rights action filed by Gina Carpenter (“Plaintiff”) against Craig Apple (in his individual capacity and official capacity as the Albany County Sheriff), the Albany County Sheriff's Office, the County of Albany in the State of New York, the Albany County Correctional Facility, Augustus Roberson, III (in his individual capacity and official capacity as a corrections officer), and Jane and John Does, is Defendant Apple's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 43.) For the reasons set forth below, Defendant Apple's motion is granted in part and denied in part.

         I. RELEVANT BACKGROUND

         A. Plaintiff's Complaint

         Generally, liberally construed, Plaintiff's Complaint alleges as follows. (Dkt. No. 1.) Plaintiff is a prisoner who was formally incarcerated at the Albany County Correctional Facility (“ACCF”) during the relevant time period of this action. (Id., ¶ 7.) On July 30, 2014, at approximately 10:00 a.m., Plaintiff was sexually assaulted and battered by Defendant Augustus Roberson, a corrections officer employed by ACCF, and who was known to the prisoners as “Gus.” (Id., ¶ 14.) On this date, Plaintiff was a “runner, ” which is an inmate assigned to perform various functions on a specific tier in the prison, including, among other things, cleaning and delivering food trays. (Id., ¶¶ 15-16.) While Plaintiff was waiting to serve breakfast on her assigned tier with another runner named Ms. Banks, Ms. Banks made an inappropriate comment towards Defendant Roberson that she “would so give him some.” (Id., ¶ 17.) Defendant Roberson did not react to Ms. Banks's comment and Plaintiff said nothing. (Id.)

         Sometime later that day, Defendant Roberson called Plaintiff out of her cell and told her that a woman needed help using the telephone. (Id., ¶ 18.) Plaintiff complied and proceeded to stand on her side of the locked gate and showed the woman how to use the telephone. (Id.) Plaintiff then told Defendant Roberson that she was done and ready to go back into her cell. (Id.) However, Defendant Roberson told Plaintiff that she needed to clean the correctional officers' bathroom. (Id.) The correctional officers' bathroom is located outside of the main tier area, and none of the common areas, including the hallways on the tier or anywhere else, are monitored by cameras. (Id., ¶ 19.) Plaintiff proceeded to get cleaning supplies and gloves; however, when she arrived at the bathroom, she noticed that it was not dirty or messy and that the garbage was empty. (Id., ¶ 20.) The bathroom is small and there had been a fire in it in the past. (Id., ¶ 21.) Wires hung from where a lightbulb used to be, which was never replaced. (Id.) The only source of light came from the door being open. (Id.)

         Plaintiff entered the bathroom and began her cleaning responsibilities. (Id., ¶ 22.) While she was cleaning the toilet, she was startled by Defendant Roberson, who entered the bathroom behind her. (Id.) Defendant Roberson told Plaintiff to “turn around and pull your pants down.” (Id., ¶ 23.) Plaintiff was wearing a bra, underwear, and her jumpsuit. (Id.) Defendant Roberson was fully clothed at the time. (Id.) Plaintiff responded to Defendant Roberson by telling him “no.” (Id.) Defendant Roberson then threatened Plaintiff, stating, “[Y]ou're going to do what I tell you to do. I'll beat the shit out of you and pepper-spray you and call a code and tell them you attacked me.” (Id.) Defendant Roberson then proceeded to forcibly grab Plaintiff by her hair and shove her into the metal toilet. (Id., ¶ 24.) Plaintiff's knees violently fell on top of the toilet and her face almost hit the wall. (Id.) Plaintiff then heard Defendant Roberson's keys hit the floor when he dropped his pants. (Id.) Defendant Roberson penetrated Plaintiff's vagina. (Id.) Defendant Roberson never shut the door. (Id., ¶ 25.) Plaintiff is unaware if Defendant Roberson ejaculated but he made sounds as though he did. (Id.) Defendant Roberson did not talk to Plaintiff. (Id.) Plaintiff did not say anything to Defendant Roberson. (Id.)

         When Defendant Roberson was finished, he threatened Plaintiff that she had better not tell anyone. (Id., ¶ 26.) Plaintiff went back to her cell. (Id., ¶ 27.) When she sat on the toilet to wipe herself, she noticed that she was bleeding. (Id.) Plaintiff later learned that her labia was significantly torn and that she would need surgery to repair it. (Id., ¶ 33.) Plaintiff communicated to a female correctional officer by the name of Carol Batcher that something had happened and she needed to talk to somebody. (Id., ¶ 28.) Plaintiff wanted Officer Batcher to contact her attorney. (Id.) Plaintiff tried to hang herself shortly thereafter and was put on suicide watch. (Id.) On or about August 5, 2014, Plaintiff reported the sexual assault to the Office of the Albany County District Attorney and Deputy Chief Montleone of the Office of the Albany County Sheriff. (Id., ¶ 29.) Plaintiff was assured that this matter would be investigated but, to date, no formal decision has been published regarding her complaint. (Id.)

         After Plaintiff's sexual assault became known, Plaintiff was bullied by a correctional officer whom everyone called “Jack.” (Id., ¶ 30.) At one point, Jack was referring to all of the prisoners as “fucking whores” and then called Plaintiff over to him and said, “[S]o what's this I hear about my friend Gus? What are you and your friend saying about him? I know what you're going down to medical for.” (Id.) Jack was referring to the lab work that the administration wanted Plaintiff to have done. (Id.) Plaintiff felt uncomfortable, terrified, and intimidated by Jack's comments and questions. (Id.) The administration wanted Plaintiff's lab work completed after the sexual assault became known. (Id., ¶ 31.) No physical exam of Plaintiff's vagina was performed. (Id.) Although Plaintiff had to submit to the lab work and questioning, nothing was kept confidential and everyone in ACCF knew what was going on and why Plaintiff was there. (Id.) After the administration got the information that they needed, Plaintiff was left to deal with the employees of ACCF, including the correctional officers, on her own. (Id.)

         ACCF fails to provide any privacy for female inmates while they are showering or disrobing. (Id., ¶ 37.) Male correctional officers do not announce their presence when necessary. (Id.) They walk into the prisoners' bathrooms without first announcing “man on the tier, ” regardless of whether female inmates are showering and/or using the toilet. (Id.) Subsequent to the violent sexual assault, Defendant Does, in an attempt to discredit and intimidate Plaintiff, released her medical history without her authorization and/or consent to the members of the Albany County Sheriff's Office, causing her to suffer further embarrassment and lack of privacy. (Id., ¶ 38.)

         After certain efforts were made by her attorney, and in cooperation with the Office of the New York State Attorney General, Plaintiff was transferred to Rensselaer County Jail on August 22, 2014. (Id., ¶ 32.) Since July 30, 2014, Plaintiff suffers from constant nightmares. (Id., ¶ 34.) She wakes up with night sweats and has to take a shower. (Id.) She has difficulty showering and toileting because male correctional officers work on the unit. (Id.) She wakes up in the morning and finds herself under her bunk or on the floor and has no recollection of how she got there. (Id.) She is startled and becomes panicked by the sounds of the correctional officers' keys and radios. (Id.) She cannot look at the metal toilet in her cell and has obtained permission for an extra towel to keep it covered. (Id.) Plaintiff treats with a sexual assault counselor and mental health therapist. (Id.)

         Based upon the foregoing allegations, Plaintiff asserts the following twelve claims: (1) a claim that the actions of Defendants Apple, Roberson, Albany County, the Albany County Sheriff's Office, and ACCF resulted in Plaintiff's violent sexual assault and physical and psychological injuries, which constitute cruel and unusual punishment per se in violation of her rights under the Eighth Amendment; (2) a claim that Defendants Apple, the Albany County Sheriff's Office, and ACCF acted with deliberate indifference toward Plaintiff's medical and mental health needs, which amounted to cruel and unusual punishment in violation of her rights under the Eighth Amendment; (3) a claim that the actions of Defendants Apple, Roberson, Albany County, the Albany County Sheriff's Office, and ACCF resulted in Plaintiff's violent sexual assault and physical and psychological injuries, which deprived her of her liberty and right to be secure, in violation of the Fourteenth Amendment; (4) a claim that Defendants Apple, the Albany County Sheriff's Office, Albany County, and ACCF severely compromised Plaintiff's personal safety and welfare while she was an inmate at ACCF in violation of N.Y. Correct. Law § 500-b; (5) a claim that Defendant Roberson violated N.Y. Penal Law §§ 130.05(3)(e)-(f) when he sexually assaulted Plaintiff; (6) a claim that Defendant Roberson falsely imprisoned Plaintiff in the correctional officers' bathroom when he sexually assaulted her; (7) a claim that Defendant Roberson battered Plaintiff, which resulted in her physical injuries; (8) a claim that Defendant Roberson assaulted Plaintiff when he threatened her in the correctional officers' bathroom, thereby putting her in fear of imminent harmful and offensive contact; (9) a claim that Defendants Apple, the Albany County Sheriff's Office, Albany County, and ACCF were negligent in their supervision of their employees; (10) a claim that Defendants Apple, Does, the Albany County Sheriff's Office, and Albany County violated 7 N.Y.C.R.R. § 5.24 when Defendant Does disseminated information from Plaintiff's medical history without her authorization; (11) a claim that all Defendants intentionally inflicted emotional distress upon Plaintiff through their respective actions, inactions and/or deliberate indifference; and (12) a claim that all Defendants negligently inflicted emotional distress upon Plaintiff when they breached their respective duties to take adequate and appropriate steps to prevent and/or remediate the sexual assault as well as the events that transpired after it. (Id., ¶¶ 46-141.)

         B. The Parties' Briefing on Defendant Apple's Motion

         1. Defendant Apple's Memorandum of Law Generally, in his memorandum of law, Defendant Apple asserts three arguments. (Dkt. No. 43, Attach. 1 [Def. Apple's Mem. of Law].)

         First, Defendant Apple argues that he is liable for only his alleged unconstitutional conduct, and not for the conduct of his subordinates, because, in Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009), the Supreme Court rejected the theory of “supervisor liability” in the context of Section 1983 actions. (Id. at 14-15.)[1] Furthermore, Defendant Apple argues that Plaintiff has not alleged facts plausibly suggesting that he, or anyone else besides Defendant Roberson, was involved in sexually assaulting her. (Id. at 16.) More specifically, Defendant Apple argues that Plaintiff has failed to allege that he directed, condoned, or otherwise authorized the assault. (Id.) Although Plaintiff alleges in her ninth cause of action that “Defendants knew about the sexual assault[, ]” Defendant Apple argues that this allegation is wholly conclusory and, in any event, an allegation of mere knowledge is insufficient under Iqbal's pleading requirements. (Id.)

         Similarly, Defendant Apple argues that any claim against him for failing to implement and carrying out “the goal of preventing sexual abuse and/or sexual harassment in its facilities” should be construed as a claim against him in his official capacity. (Id. at 17.) In turn, Defendant Apple argues that a claim against him in his official capacity should be dismissed because any such claim is really a claim against the County of Albany as the real party in interest and is therefore duplicative. (Id.)

         Second, Defendant Apple argues that, in the event that the Court finds that Plaintiff has stated a claim against him under a theory of supervisor liability, he is nonetheless entitled to qualified immunity because an alleged violation of an inmate's constitutional rights under the factors announced in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), was not clearly established at the time of the alleged incident.[2] (Id. at 18.) Specifically, Defendant Apple argues that there is a split among the U.S. Courts of Appeals, as well as among the district courts in this Circuit, regarding the viability of the Colon factors, and in particular supervisory liability, after the Supreme Court's decision in Iqbal. (Id. at 19-20.)

         Third, and finally, Defendant Apple argues that Plaintiff's state law claims fail as a matter of law. (Id. at 24.) Specifically, with regard to Plaintiff's fourth cause of action claiming a violation of N.Y. Correct. Law § 500-b, Defendant Apple argues that this claim is barred by the governing one-year statute of limitations because it accrued, at the very latest, on August 22, 2014, when Plaintiff was transferred to the Rensselaer County Jail, and she did not commence this action until October 22, 2015. (Id.)

         With regard to Plaintiff's ninth cause of action claiming negligent supervision, Defendant Apple argues that Plaintiff has failed to allege facts plausibly suggesting that he knew that Defendant Roberson had (a) a plan to sexually assault Plaintiff, or (b) any kind of propensity for committing such acts. (Id. at 27.)

         With regard to Plaintiff's tenth cause of action claiming a violation of 7 N.Y.C.R.R. § 5.24, Defendant Apple argues that this regulation does not provide a private right of action because it states that “[n]othing in this section shall be construed as creating a private right of action for an individual who is the subject of these records or his/her personal representative.” (Id. [quoting 7 N.Y.C.R.R. § 5.24(d)].) Even if Plaintiff could pursue a private right of action under this regulation, Defendant Apple argues that Plaintiff has failed to allege the identities of the persons or entities to which her medical records were impermissibly released or that he had any involvement in disseminating the records. (Id. at 28.) Instead, Defendant Apple argues, Plaintiff merely alleges that he was responsible for supervising “Defendant Does” but fails to allege how his supervision was insufficient. (Id.) In any event, Defendant Apple argues that case precedent establishes that he cannot be held vicariously liable for the acts of his subordinates in this context. (Id.)

         With regard to Plaintiff's eleventh cause of action claiming intentional infliction of emotional distress (“IIED”), Defendant Apple argues that this claim is barred by the governing one-year statute of limitations because it accrued, at the very latest, on August 22, 2014, when Plaintiff was transferred to the Rensselaer County Jail, and she did not commence this action until October 22, 2015. (Id. at 29.) In any event, Defendant Apple argues that Plaintiff has failed to allege facts plausibly suggesting that he was directly involved in the alleged assault or that he ordered or condoned it. (Id. at 30.)

         With regard to Plaintiff's twelfth cause of action claiming negligent infliction of emotional distress (“NIED”), Defendant Apple argues that Plaintiff has failed to allege facts plausibly suggesting that he was directly involved in the alleged assault or that he ordered or condoned it. (Id. at 31.) Furthermore, Defendant Apple argues that, although Plaintiff alleges that he failed to “remediate the sexual assault, ” there is no allegation that this left Plaintiff exposed to unreasonable risk of bodily harm. (Id.) While Plaintiff alleges that Defendant Roberson was the lone officer supervising the tier of female inmates, Defendant Apple argues that this, in and of itself, does not plausibly suggest that Plaintiff was exposed to an unreasonable risk of bodily harm, especially because she has failed to allege that Defendant Roberson had a history of sexual assault or a propensity for such behavior. (Id. at 31-32.)

         2. Plaintiff's Opposition Memorandum of Law

         Generally, in opposition to Defendant Apple's motion, Plaintiff asserts six arguments. (Dkt. No. 44 [Pl.'s Opp'n Mem. of Law].)

         First, Plaintiff argues that she has alleged facts plausibly suggesting that Defendant Apple was personally involved in violating her constitutional rights under the Colon factors for the following four reasons: (a) despite knowledge of Defendant Roberson's inappropriate sexual conduct with female inmates, Defendant Apple allowed Defendant Roberson to remain on staff as the only male correctional officer with unsupervised and unfettered access to female inmates; (b) despite Defendant Apple's knowledge of the repeated pattern of sexual abuse of female inmates at ACCF, he continued to allow Defendant Roberson to have unsupervised access to female inmates; (c) Defendant Apple, in his capacity as Albany County Sheriff, is responsible for the creation of policies at ACCF but has failed to implement policies that would prevent sexual abuse at the prison despite knowledge of past incidents of sexual violence against female inmates (and has publicly acknowledged at least one such incident in which he deemed the ...


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