State Prison Sex Abuse Complaints Reinstated by 2nd Circuit Court of Appeals

The federal appeals court in New York has vacated a lower court decision throwing out a case brought by women in New York State prisons who alleged rape and sexual abuse by prison staff—in some cases, by serial abusers in uniform.

In Amador v. Andrews, the Second Circuit Court of Appeals on August 19, 2011, reinstated the claims of women prisoners who challenged the failure of the New York State Department of Corrections and Community Supervision to control the pattern of sexual abuse by male staff. These women charged in their complaint that the Department failed to supervise, train and discipline male staff, even when there were repeated and credible complaints of sexual abuse, but instead allowed them to continue guarding women prisoners, sometimes alone in a housing area at night, and took little or no action about complaints of sexual abuse unless the woman had physical proof of the assault. (See New York Law Journal, Reuters and Associated Press)

The lower court dismissed the case on the ground that most of the women had failed to exhaust prison administrative remedies, and that many of them had been released from prison during the four years that they waited for a decision. The appeals court ruled that several of the women had sufficiently exhausted, and that the case should go forward despite the release of some of the prisoners.

Dori Lewis, Senior Supervising Attorney at the Prisoners’ Rights Project of The Legal Aid Society, said: “We are gratified that eight years after this case was filed, we will finally be able to proceed to the merits, and we will be able to stop the pattern of sexual assaults on women prisoners. This problem has continued to date: one of the officers named as a defendant in Amador was recently arrested for assaulting yet another woman prisoner in DOCCS custody.”

The case was handled by Lewis and by Lisa Freeman of Legal Aid (now joined by Veronica Vela), and by the law firm of Debevoise & Plimpton, LLP, which has served pro bono with Legal Aid on this case since its filing in 2003.

The case will now return to the federal district court in Manhattan for further proceedings, including decision of the prisoners’ request that the case proceed as a class action.

The New York Law Journal
Circuit Revives Abuse Claims by 3 Female Ex-Inmates
By Joel Stashenko

A federal appeals court has reinstated the claims of three former female prison inmates who alleged they were sexually abused by male correction officers in New York state prisons and that administrators failed to protect them despite repeated warnings that the women faced "substantial and unreasonable" risks of mistreatment.

The U.S. Court of Appeals for the Second Circuit on Friday reversed Southern District Judge Kevin T. Duffy's 2007 dismissal of the class-action suit brought by the Legal Aid Society on behalf of 13 female inmates who alleged sexual harassment and abuse in violation of their First, Fourth, Eighth and Fourteenth amendment rights. The alleged violations ranged from unwelcome touching or invasions of the inmates' right to privacy to assault and rape.

Judge Duffy held that the women had either not exhausted their administrative appeals or that their claims were moot. But the Second Circuit panel held that cases brought by three of the former inmates in Amador v. Superintendents of Department of Correctional Services, 08-2079-pr, are preserved for review under the so-called "relation-back" doctrine and not moot.

"We conclude that the relation-back doctrine applies to the claims of the plaintiffs who have been released and preserves their claims for adjudication for purposes of a class action," Judge Ralph K. Winter wrote for the court.

Judges Jose A. Cabranes and Peter W. Hall joined in the ruling.

The relation-back doctrine has what the Second Circuit panel called a "unique application" in class-action cases by giving plaintiffs standing where they might not otherwise have it if their claims were asserted by individuals.

"Whether claims are inherently transitory is an inquiry that must be made with reference to the claims of the class as a whole as opposed to any one individual claim for relief," Judge Winter wrote.

Among the cases the Second Circuit cited to bolster its finding that the relation-back doctrine should be invoked was Robidoux v. Delani, 987 F2d 931 (2nd Cir. 1993), which held that the claims of welfare recipients to benefits were not mooted by their collection of the benefits after the filing of their complaints.

"We have also applied the relation-back doctrine to class claims of racial discrimination and segregation in public housing in New York by low-income minority individuals," Judge Winter wrote, referring to Comer v. Cisneros, 37 F3d 775 (2nd Cir. 1994). "We held that, because of the particular combination of a highly fluid public housing population, whose claims were 'acutely susceptible to mootness,' and a two-year delay before the district court denied class certification, the class certification, which was granted on appeal, related back to the complaint."

The Second Circuit agreed with the state defendants that in 10 of the 13 cases, the plaintiff-inmates had not shown that the administrative appeals process had been exhausted.

Attorney Dori Lewis of the Legal Aid Society of New York City was lead attorney on behalf of the plaintiffs.

"We are really pleased that the case is finally going to proceed to a decision on class certification and, hopefully, the merits," she said in an interview. "It was filed eight years ago. We think these are serious and urgent issues that need to be addressed… This problem does continue."

Ms. Lewis said she would seek class certification in the case on behalf of the 3,000 female inmates in the state prison system. She said the issues on which the group based its case in 2003—that correction officers are not properly screened for their potential to abuse female inmates and that complaint procedures are inadequate—remain concerns.

A spokeswoman for the state prison system declined comment Friday, citing the on-going nature of the Amador case. Assistant Solicitor General Richard O. Jackson was the lead attorney for New York.

Under Penal Law §130.05(3)(e), which was enacted in 1996, women prison inmates are deemed incapable of consenting to sexual contact with correction officers or other prison staff, no matter the prisoners' level of cooperation in such encounters.

2d Circuit keeps former prisoners' sexual-abuse suit alive

NEW YORK, Aug 19 (Reuters) - A federal appellate court on Friday reinstated certain claims by three women against the New York State Department of Corrections alleging they were raped and sexually abused by prison staff.

The 2nd Circuit Court of Appeals in New York vacated part of a district court decision in a case first brought in 2003, when 17 current and former female prisoners alleged that the department's policies and procedures put 3,000 women at a "substantial and unreasonable risk" for sexual abuse and harassment, according to court papers.

In addition to seeking injunctive relief from agency officials, who were alleged to have been aware of the abuse, the women sued certain officers and one deputy superintendent for their roles in the alleged abuse, which the plaintiffs claimed ranged from unwelcome touching to assault and rape.

In December 2007, the district court dismissed some of the womens' claims as moot because they had been released from prison while the case was pending. The lower court dismissed additional claims upon its finding that the plaintiffs had failed to exhaust their administrative remedies under the Prison Litigation Reform Act of 1996 (PLRA), which requires prisoners to follow a multi-step grievance process before they can turn to the federal courts.

At the plaintiffs' request, the district court amended its order to reinstate claims for damages by certain plaintiffs against individual officers; those cases are progressing in district courts around New York, according to Dori Lewis, senior supervising attorney at the Prisoners' Rights Project of the Legal Aid Society. The society has handled the case with attorneys from Debevoise & Plimpton, who have served pro bono since 2003.

NY court reinstates prison sex abuse suit
By Michael Virtanen, Associated Press
Updated 02:41 p.m., Monday, August 22, 2011

ALBANY, N.Y. (AP) — A federal appeals court has reinstated a lawsuit by female inmates alleging civil rights violations for rape and improper touching by guards in New York's prisons. The Second Circuit appeals panel sent the case back to U.S. District Court in Manhattan to try to determine if the case should proceed as a class-action suit on behalf of some 2,200 current prisoners, as well as future female inmates, and whether better protective measures should be required.

The Second Circuit panel concluded U.S. District Judge Kevin Duffy was wrong to dismiss the claims of women who have already been released from prison. The panel said Duffy properly dismissed claims of those who had not exhausted internal grievance procedures.

The three-judge panel cited at least three ex-inmates who still have status to sue and challenge prison policy on behalf of the group. Judge Ralph Winter noted in the ruling that women in Department of Correctional Services custody are deemed incapable of consenting to sex under New York law. He wrote that the New York prison system's sex crimes unit receives more than 200 complaints of misconduct every year.

Spokeswoman Linda Foglia said the Department of Correctional Services doesn't comment on pending litigation.

The Legal Aid Society's Dori Lewis, lead attorney in the suit originally filed in 2003, said the other 10 women could still be witnesses about what happened to them.

"They certainly have relevant evidence," Lewis said. "We'll probably need to show this is a current and ongoing problem. Unfortunately this remains one."

Lewis said a guard at the Taconic Correctional Facility in Westchester County is charged again with raping an inmate, after he was acquitted of similar charges in 2003 but continued supervising female prisoners. One of the problems with the existing internal grievance procedure is that cases get referred to the inspector general, where physical proof is required, which she called an unrealistically high threshold.

"It's the same way as in the outside world. People are very hesitant to come forward. Sexual abuse is shameful. It's humiliating," Lewis said. "People are very fearful of retaliation and don't think they'll be believed."

Frederick Brenyah, who pleaded not guilty to the recent rape charge, has been suspended from his prison job since his arrest last September, Foglia said. Corrections officials tried to fire him after his 2003 acquittal but an arbitrator returned him to work pursuant to his union contract, she said.

In April, Corrections Commissioner Brian Fischer testified the department has adopted a series of directives and orientation materials for prisoners and notices to staff and inmates emphasizing zero tolerance sexual abuse. He noted the department's inspector general has one of the few prison sex crimes units in the nation investigating allegations of misconduct by staff, as well as abuse by inmates on one another.

"The reality, however, is that while we do not willingly tolerate sexual abuse of our offenders, we may not be able to ever fully eradicate the occurrence," he said. "Our approach is to take proactive preventive measures, immediately respond to all allegations and seek criminal penalties where appropriate believing that such efforts have a deterrent effect within the system."