Second Circuit Urged to Grant Class Certification for Women Prisoners Who Allege Sexual Abuse at Rikers
THURSDAY, AUGUST 18, 2016

On Wednesday August 17, 2016, plaintiffs, represented by The Legal Aid Society and the law firm of Cleary Gottlieb, argued in the United States Court of Appeals for the Second Circuit, that class certification should be granted to a group of women who allege rampant rape and sexual abuse of women prisoners at Rikers Island. The appeal was from a District Court denial of class certification, which, if allowed to stand, would hinder broader reform at Rikers.

The class action complaint alleges that correction officers at Rikers Island exploit their authority to rape and sexually abuse women in their custody. The abuse is made possible because the City of New York has enabled a culture of complacency and failed to establish sufficient reporting mechanisms for incidents of rape and sexual abuse.

At the hearing on Wednesday the City argued that the Department of Correction had made changes at Rikers since the events described in the lawsuit. Plaintiffs argued that sexual assault in the New York city jail is a growing and underreported problem. The City’s own Department of Health and Mental Hygiene reports that there were 116 allegatioins of sexual assault in 2014 and a correctional doctor reported to the City Council that there were 118 such reports in the first quarter of this year alone. “What we’re going to try is the conditions in the jail, and there continue to be reports even as we speak of women being raped in the Rose M. Singer Center.”

New York City Public Advocate Leticia James, along with 10 members of the city council and other organizations, filed amicus briefs encouraging the court to reconsider the decision to deny class action certification.

Plaintiffs’ attorney Mitchell Lowenthal concluded the argument, “There continue to be reports of women being raped, if not this plaintiff, who could represent this class?”




Courthouse News Service
Inmates in Rikers Rape Case Fight for Class Status
By Adam Klasfeld
August 17, 2016

MANHATTAN (CN) — New York City insists that it's reformed Rikers Island enough to dodge a class action seeking court oversight over systemic rape in the women's jail, but the Second Circuit sharply questioned that premise at a hearing on Wednesday.

Months after Manhattan-based U.S. Attorney Preet Bharara ripped the juvenile detention center there as a "Lord of the Flies" setting, two Jane Does brought alarming claims depicting the island's Rose M. Singer Center as an equally sadistic environment. The woman who brought the lawsuit said she was sexually assaulted "as many as four times a week."

Accusing New York City of tolerating rampant abuse by at least eight guards, the women singled out corrections officer Benny Santiago for what they claim to be particularly horrific conduct.

The lawsuit also claimed that the officers repeatedly punish inmates with anal rape, masturbate in the open areas of dormitories, and continue to collect a paycheck even after their sexual assaults lead to pregnancy.

This past January, U.S. District Judge Alvin Hellerstein found that certifying the case as a class action would be "extremely difficult" given the short-term jail's transient population — presenting hurdles that could complicate the women's quest for compensation for their "serious and troubling allegations."

Appealing that ruling, the women's attorney Mitchell Lowenthal told the Second Circuit on Wednesday, "We think that this is a quintessential civil-rights class action seeking institutional reform."

Lowenthal — a partner at Manhattan-based Cleary Gottlieb — added, "If this plaintiff, who allegedly suffered significant injury, is not entitled to be a class representative, who could possibly represent this class?"

At the roughly 30-minute hearing, a majority of the three-judge panel appeared to sympathize with that position in arguments that largely swirled around what has changed at Rikers since the women brought their claims.

City lawyer Richard Dearing noted that the allegations in the lawsuit took place between 2009 and 2012. He insisted that New York and the nation have made strides toward complying with the Prison Rape Elimination Act (PREA) since that time.

Emphasizing that the women filed their case 2 1/2 years later, Dearing said: "It's not just the passage of time [that is significant]."

Shortly after the Justice Department issued PREA regulations in 2012, New York City applied for a grant to move toward complying with them. The Department of Corrections got a new commissioner, Joseph Ponte, in 2014, and the city hired a consultant to advise them on the regulations that year.

"All of this is before a complaint is ever filed," Dearing noted.

Events continued to change quickly after the women filed their complaint on May 19, 2015.

At the time her lawyers filed the complaint, Jane Doe 1 had been eight days away from being released from the Rose M. Singer Center.

The city says that fact undermines her as a representative of the class, but Circuit Judge Rosemary Pooler noted that all inmates of the Rose M. Singer Center exit the jail quickly.

"Well, it's a short-term facility, isn't it?" she asked.

For Dearing, this showed that the plaintiff has "at best, a peppercorn of standing on the injunctive claim."

Skeptical, Circuit Judge Gerard Lynch said, "I don't understand that. You're saying it's not typical because there's this future aspect, and you're saying that you cleaned up since she was in the jail."

Disputing that premise, attorney Lowenthal noted that officials have said that sexual assault in New York prisons is, if anything, a growing and underreported problem.

The city's Department of Health and Mental Hygiene reported 116 allegations of sexual harassment and assault behind bars in all of 2014.

There have been 118 such reports in the first quarter of this year alone, a correctional doctor told the City Council at a hearing on May 26.

New York's public advocate Letitia James and nine City Council members filed a friend-of-the-court brief warning the Second Circuit that refusing to certify the class action will have "dire consequences for the vulnerable class members."

"Allowing these class claims to see the light of day serves the important social purpose of removing stigma and creating an environment where women have less fear of reporting and more confidence in our justice system," their 18-page brief states.

James, the city watchdog, also filed a separate brief bemoaning that the public's understanding of the problem suffers from a "lack of transparency" and relies upon only a "patchwork of local data."

Bharara also blasted the Rikers Island's secretive culture in a lawsuit targeting excessive force in the juvenile prisons. The case eventually led to a settlement with New York Mayor Bill de Blasio in October.

Meanwhile, Lowenthal said, impunity inside the city jails and prisons persists.

"What we're going to try is the conditions in the jail, and there continue to be reports even as we speak of women being raped in the Rose M. Singer Center," he said.

On a systemic level, Rikers still has not tackled the basic reform of the gender of the guards, Lowenthal said.

"None of these rules change the fact, the alarming fact, that men guard the women," he said, calling this "bad policy."

He added, "Further, we think state law mandates that women guard women."

As the hearing ended, the panel reserved decision and Judge Pooler thanked the parties for their "lively arguments."




BuzzFeed News
Female Prisoners Appeal Decision To Deny Class Action Lawsuit In Rikers Island Rape Case
By Mike Hayes
Aug. 17, 2016

Attorneys representing female prisoners at Rikers Island argued before a Manhattan appeals court on Wednesday for their clients’ right to bring a class action lawsuit in federal court alleging rape and sexual assault inside the New York City jail.

The lawsuit claims that correction officer Benny Santiago regularly raped the two plaintiffs in the case, referred to only as Jane Doe 1 and Jane Doe 2, while they were incarcerated in the Rikers Island women’s jail, Rose M. Singer Center.

According to the complaint, from a period starting in 2011, Santiago raped Jane Doe 1 as many as four times a week. During the assaults, Santiago would allegedly force her to perform oral sex on him, have intercourse, and would pull her hair and choke her.

Santiago is also accused of driving to the house of Jane Doe 1’s mother, parking outside, and observing her family. Then he would later allegedly report his observations to her and remind her to “make the right decision.”

The complaint further alleges that Santiago took advantage of Jane Doe 1’s “limited intellectual capacity.”

Jane Doe 2 accuses Santiago of raping and sexually assaulting her while she was incarcerated at Rikers between 2012 and 2013.

She claims that after she reported Santiago, he and other correction officers threatened and harassed her, called her a “snitch,” twice refused to feed her for over 24 hours, didn’t allow her to bathe, and placed her in solitary confinement without justification.

Jane Doe 2 also claims that Santiago gave her trichomoniasis, a sexually transmitted disease.

The two plaintiffs are seeking individual claims against Santiago and the City, but are also hoping to represent all female prisoners at Rikers in a class action lawsuit. Such a lawsuit could lead to federally mandated reforms inside the jail.

According to the complaint, the plaintiffs claim to have information that at least seven other correction officers who work at the Rose M. Singer Center have sexually abused inmates, and three may have impregnated prisoners.

Earlier this year, a district court judge denied the plaintiffs’ claims for class action certification in the case, but they appealed the decision to a higher court.

On Wednesday, attorneys from the City Law Department defended the district court’s decision not to grant class action certification in the case.

The city is claiming that too much time has passed between when the abuse is alleged to have happened and when the complaint was filed. Additionally, the city is arguing that reform efforts at the jail since the time these assaults allegedly occurred should be considered when deciding whether the two plaintiffs in the case are the right women to represent the whole female population at Rikers at a current trial.

Attorneys for the city told the three judge panel which heard the appeal arguments that the period between 2013, when the most recent incidents are alleged in the complaint, and when it was filed in 2015 was a “significant two and half years” during which reform efforts were underway at Rikers.

They pointed to the fact that, in that time, a new Department of Corrections commissioner had been hired, new cameras had been installed inside the jails, and consultants were retained to respond to a 2013 Department of Justice report that found evidence of mistreatment of Rikers prisoners.

City attorneys said there were “two starkly different cases,” arguing that women whose allegations spanned a time period almost three years prior weren’t the right plaintiffs to represent all women at Rikers, especially those presently incarcerated.

The plaintiffs rebutted the city’s argument claiming that the reforms they cite are not enough to prove that they have curbed a “systemic problem” of sexual abuse at Rikers.

They dismiss the city’s contention that reforms at Rikers related to the 2013 DOJ consent decree is relevant to their particular case because that report is focused on excessive force, not sexual abuse.

Mitchell Lowenthal, attorney for the plaintiffs, added that presenting evidence as to how the institution has changed doesn’t change problems currently evident at Rikers, such as “the fact that men guard women.”

The two sides are also in disagreement about Jane Doe 1’s standing as a plaintiff in the case. The city claims that when the case was filed, the plaintiffs “knew Jane Doe 1 was leaving Rikers in a matter of days.” In fact, she was transferred to another facility after taking a guilty plea in her case.

The city argues that the fact that she left Rikers shortly after the case was filed reduces Jane Doe 1’s standing in the case to “a peppercorn.”

Several New York City public officials have expressed their support through court filings for the case to move forward as a class action, including New York City Public Advocate Leticia James, who filed a declaration of support in the case.

In her filing, James cited statistics from the city’s Department of Health, which reported 116 claims of sexual assault sent to the Department of Corrections in 2014, 47 of which included allegations of rape.

In another filing, James along with 10 members of the city council filed an amicus brief, encouraging the district court to reconsider its decision to deny class action certification.

The decision now rests with the court of appeals, who will decide whether to overturn the district court’s decision or side with the judge from the lower court.

“There continue to be reports of women being raped,” Lowenthal said Wednesday. “If not this plaintiff, who could represent this class?”




New York Daily News
Lawyers for two women who say Rikers Island correction officer raped them appeal for class action status
Victoria Bekiempis
August 17, 2016

Lawyers for two women who say they were repeatedly raped at Rikers Island are pushing back against a lower court's refusal to grant their lawsuit class action status.

The women claimed in a May 2015 Manhattan federal lawsuit they were raped multiple times by Correction Officer Benny Santiago — and that sexual assault is rampant at Rikers Island's women's jail, the Rose M. Singer Center.

The lawsuit sought both individual damages for the women and class action status. That class, their lawyers hoped, would have included all women who have been raped or sexually abused at the center.

With class action status, a win for the women wouldn't just address individual complaints, but could enable broad reforms — such as imposing a monitor on the city Department of Correction, their lawyers contend.

Judge Alvin Hellerstein shot down their argument in January, deciding there wasn't enough in common between the two women's claims — and that class action status could actually delay addressing the "serious and troubling allegations."

Mitchell Lowenthal, of Cleary Gottlieb, restated before the U.S. Second Circuit Court of Appeals on Wednesday his argument that their claims do apply to — and would help — a broad group of women.

"It's institutional reform," Lowenthal, whose firm is partnered with the Legal Aid Society on the case, told the three-judge panel. "It would affect everyone in the same way on Rikers Island."

City Law Department lawyer Richard Dearing countered that Jane Doe 1's claims made for a weak class action bid. She left Rikers several days after the lawsuit was filed, he said, and her 2015 claims deal with alleged abuse in 2012.

Dearing also said the DOC had implemented changes before the suit was filed that address sexual assault, thanks in part to a Department of Justice grant to help prevent prison rape and the hiring of a consultant.

The panel of judges said they will decide the issue at a later date.