Opinion
99 Civ. 8786 (KMW)(AJP).
March 12, 2001
ORDER
Plaintiff has brought this Bivens action alleging that Lieutenant Wade Smith raped and sexually abused her while she was an inmate at the Metropolitan Correctional Center ["MCC'] and then retaliated against her after she complained about him to prison authorities, and that defendants Dennis Hasty, R.M. Reish, Nelson Aponte [collectively, the "supervisory defendants"], as well as defendant Hubert R. Garvin, were deliberately indifferent to the serious risks to plaintiff's health and safety posed by Smith's actions. Plaintiff also brings state law tort claims against Smith. Defendants have moved for summary judgment, arguing that plaintiff's claims are barred by various provisions of the Prison Litigation Reform Act ["PLRA"], 42 U.S.C. § 1997, and by the applicable statutes of limitations, that plaintiff did not make the requisite showing of liability as to defendants Hasty, Garvin, Reish, and Aponte, and that the supervisory defendants and Garvin are entitled to qualified immunity. In a Report and Recommendation dated July 21, 2000 [the "Report"], Magistrate Judge Andrew J. Peck recommended that the Court grant summary judgment for defendant Garvin but deny summary judgment for each of the other defendants. For the reasons set forth below, the Court adopts the recommendations contained in the Report, familiarity with which is assumed, but adopts the Report's analysis only in part.
DISCUSSION
The Court reviews the Report on this potentially dispositive motionde novo. See 28 U.S.C. § 636(b)(1).
I. Plaintiff's Claims Against the Supervisory Defendants
The Court adopts the Report's carefully reasoned conclusion that summary judgment is inappropriate as to plaintiff's claims against Hasty, Reish, and Aponte. To maintain her Bivens action against these defendants, plaintiff must demonstrate their "personal involvement" in the alleged torts; supervisors are not responsible under a theory of respondeat superior for the torts of their supervisees. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Mallard v. Menifee, No. 99 Civ. 923, available at 2000 WL 557262, at *3 (S.D.N.Y. May 8, 2000). Personal involvement of a supervisory defendant may be demonstrated by evidence that the defendant (1) directly participated in the violation; (2) failed to remedy the wrong after being informed of the wrong through a report or appeal; (3) created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; (4) was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. See Colon, 58 F.3d at 873; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). As the Second Circuit recently noted, "prison officials may be liable . . . for their deliberate indifference to violence by subordinates." Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 1999). To establish this deliberate indifference, a plaintiff must demonstrate an underlying constitutional violation, see id., and also that the official was both "aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]" and that the official "drew the inference." Hemmings v. Gorczk, 134 F.3d 104, 108 (2d Cir. 1998).
The Court notes that defendant Smith seeks summary judgment only on PLRA and statute of limitations grounds.
As the Report's thoughtful analysis of the evidence demonstrates, plaintiff has presented sufficient facts to meet her evidentiary burden and has raised issues of material fact that preclude summary judgment in favor of the supervisory defendants. Defendants' objections to this aspect of the Report are without merit. Defendants first argue that defendants Hasty and Aponte cannot be liable because the last alleged sexual attack by Smith occurred before they arrived at the MCC. Smith's continued access to the female unit during their tenure, however, would suffice to permit the conclusion that a "serious risk of harm" still existed under their supervision for which they could be held liable under the deliberate indifference standard. See Heisler v. Kralik, 981 F. Supp. 830, 837 (S.D.N.Y. 1997) (failure to act in response to serious risk of harm violates prisoner's rights even if actual harm does not occur).
The Heisler court did not need to consider the effect of the PLRA injury requirement, discussed infra § V, on its decision. Reading theHeisler decision in conjunction with the PLRA physical injury requirement, the Court finds that plaintiff must establish physical injury but need not demonstrate that this physical injury occurred during the tenure of each supervisor. Rather, once the PLRA requirement is met, the Court finds no reason to depart from the holding of Heisler that deliberate indifference to the continued risk of injury may constitute a constitutional violation.
Defendants also argue that the evidence presented by plaintiff cannot establish that Reish was personally involved in violating plaintiff's rights. The Court disagrees. A jury could conclude that, in light of the reports and information Reish had received about Smith's sexual abuse of women in the MCC, Reish's decision to permit Smith to continue to have access to the MCC's female unit (because Reish was allegedly seeking to try to catch Smith red-handed), was deliberately indifferent to the serious harm that might befall plaintiff and other female inmates. Consequently, the Court finds that summary judgment in favor of the supervisory defendants is inappropriate on these grounds. II. The Qualified Immunity of the Supervisory Defendants
The Court notes that plaintiff has made no showing that any of the supervisory personnel were apprised of Smith's retaliatory actions against her. Consequently, the supervisory defendants may not be held liable for these actions.
The Court also adopts the Report's recommendation that the Court deny summary judgment to the supervisory defendants on qualified immunity grounds. The doctrine of qualified immunity shields officials from liability for civil damages in connection with their conduct of discretionary functions unless the conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An official is protected by qualified immunity if "officers of reasonable competence could disagree" on the legality of the official's actions. See Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). Because the doctrine of qualified immunity is intended in part to shield officials from the burdens of lawsuits, it is well settled that immunity should be decided by the court whenever the factual record is "not in serious dispute."See Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990). In evaluating a claim for qualified immunity, however, a court should deny summary judgment unless "no rational jury could fail to conclude" that it was "objectively reasonable" for the official to believe that his actions did not violate a clearly established right. See Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir. 1996).
The Court finds that summary judgment is inappropriate on the issue of qualified immunity in this case. As the Report carefully catalogues, the parties dispute almost every fact relevant to the qualified immunity determination, particularly the extent of the information provided to Hasty, Aponte, and Reish about Smith's activities and the response of these officers to the information provided. Consequently, the Court has no factual basis for evaluating the objective reasonableness of defendants' actions. Defendants' objections to the Report do little more than reiterate defendants' interpretation of the factual record. The Court must construe the record, however, in the light most favorable to plaintiff, and summary judgment is inappropriate under this view of the facts. Defendants' reliance on Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692 (1999) is also misplaced. In that decision, the Supreme Court found it relevant that the officers relied on a policy manual that specifically contemplated their challenged actions (allowing the media to "ride along" during an arrest). In this case, Reish has presented no evidence that he relied on a Bureau of Prisons policy in deciding to try to catch Smith "red-handed" and a jury could rationally conclude that this decision was objectively unreasonable. For these reasons, the Court denies summary judgment on defendants' qualified immunity claims.
III. Plaintiff's Claims Against Garvin
The Court adopts the Report's analysis and recommendation that the Court grant summary judgment dismissing plaintiff's claims against Garvin. Because Garvin neither participated directly in the alleged constitutional violations nor supervised any of the other defendants, plaintiff has provided no basis for finding Garvin liable under theBivens standard. Garvin did all he had the power to do to protect plaintiff — he diligently interviewed plaintiff, had her put her allegations in writing, and passed her complaint on to his supervisor. Plaintiff cites no support for her proposition that Garvin is liable for his failure to inform various Bureau of Prisons ["BOP"] personnel that he believed plaintiff's claims. The Court grants summary judgment in favor of Garvin on all claims against him.
IV. Exhaustion Under the Prison Litigation Reform Act
Defendants argue that plaintiff's claims should be dismissed for failure to comply with the exhaustion requirement of the Prison Litigation Reform Act ["PLRA"], 42 U.S.C. § 1997e(a) et seq. The PLRA provides, inter alia, that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Court finds that the PLRA exhaustion requirement applies neither to plaintiff's claims against Lt. Smith nor to her claims against the other defendants.
Because the Report was issued prior to the Second Circuit decisions discussed below, the Court does not adopt the Report's analysis of the PLRA exhaustion requirement.
The Second Circuit recently held that the reference to "prison conditions" in § 1997e(a) does not include "particularized instances of excessive force directed at an inmate" and thus that the PLRA exhaustion requirement does not apply in Eighth Amendment assault or excessive force cases. See Nussle v. Willette, 224 F.3d 95, 106 (2d Cir. 2000); accord Lawrence v. Goord, 238 F.3d 182, 185 (2d Cir. 2001); see also Gomez v. Warden, No. 99 Civ. 9954, available at 2000 WL 1480478, *4 (S.D.N.Y. Sept. 29, 2000) (applying Nussle to Bivens action for assault). Even more recently, the Second Circuit affirmed its holding inNussle and extended the reasoning and holding of Nussle to "particularized instances of retaliatory conduct directed against an inmate." See Lawrence, 238 F.3d at 185.
Although Nussle involved only those officers actually accused of assault, the Court finds that the Nussle holding applies more generally, and excepts from the PLRA exhaustion requirement Eighth Amendment claims for assault and excessive force against those who supervised the alleged assaulter. The Court reaches this conclusion for several reasons. First, the Second Circuit in Lawrence appeared to assume this result when it vacated the district court's dismissal of claims against the supervisory personnel sued in that action. See 238 F.3d at 186. Second, district courts in this Circuit have held that claims against supervisory personnel for failure to train, supervise, or discipline offending officers or to enforce BOP policy fall within the ambit of the Eighth Amendment and thus are not subject to the exhaustion requirement. See,e.g., Peddle v. Sawyer, 64 F. Supp.2d 12, 16 (D.Conn. 1999) (discussing rationale for allowing suit against supervisory suits); Gomez v. Warden, No. 99 Civ. 9954, available at 2000 WL 1480478, *4 (assuming, without analysis, that Nussle applied also to supervisory officials). But see Booth v. Churner, 206 F.3d 289, 302 (3d Cir. 2000) (Noonan, J., concurring and dissenting) (arguing that failure of prison authorities to prevent alleged beatings is an issue of "prison conditions" that falls within the PLRA exhaustion requirement). Third, the underlying rationale of Nussle counsels against applying the exhaustion requirement to claims that do not contemplate ongoing judicial supervision or generalized prospective relief. See Lawrence, 238 F.3d at 186 (citing Nussle, 224 F.3d at 106). As the Nussle Court noted, Congress intended to limit frivolous suits concerning conditions of confinement, not to limit suits concerning abuse of prisoners. See Nussle, 224 F.3d at 105-06; see also Peddle, 64 F. Supp.2d at 16. For these reasons, the Court concludes that the PLRA exhaustion requirement does not apply to claims against offending officers or their supervisors in cases involving particularized instances of assault, excessive force, or retaliation.
Considering the facts of this case in light of the above analysis, the Court finds that plaintiff's claims are not subject to PLRA exhaustion. Plaintiff has offered evidence that Smith forcibly raped and sodomized her and retaliated against her by calling her a "snitch," and that the supervisory defendants were aware of Smith's actions (except for the alleged retaliation) and failed adequately to supervise and discipline him, and to protect her from him. The Court thus finds that plaintiff's claims fall squarely within the exceptions to PLRA exhaustion recently set forth by the Second Circuit.
V. The PLRA Physical Injury Requirement
Defendants further argue that plaintiff's retaliation claim must be dismissed for failure to allege physical injury. The Court disagrees. Section 1997e(e) of the PLRA provides that "[n]o Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Courts in this Circuit have dismissed actions in which plaintiffs have alleged mental and emotional damages without claiming any physical injury. See, e.g., Gousse v. Whitfield, No. 99 Civ. 10665, 1999 WL 1029715 (S.D.N.Y. Nov. 10, 1999). The Court has found no decisions, however, considering the situation in which a perpetrator of physical abuse caused further mental and emotional damages by retaliating against his victim for exposing the physical abuse. In this situation, the Court concludes that the alleged abuser's acts should be considered together and that the physical abuse alleged satisfies the "prior physical abuse" requirement. See Liner v. Goord, 196 F.3d 132 (2d Cir. 1999) (sexual abuse satisfies physical injury requirement). The Court finds that this conclusion is consistent with the legislative intent underlying Section 1997e(e), which indicates that Congress sought to limit those frivolous suits which claimed only easily feigned mental and emotional injuries. See Matagrano v. New York State Dep't of Correctional Serv., No. 98 Civ. 428, 1999 WL 675974, *2 (S.D.N.Y. Aug 31, 1999) (provision designed to limit suits by prisoners who had no suffered physical injury); Cain v. Virginia, 982 F. Supp. 1132, 1135 (E.D.Va. 1997). The potential for frivolous suits and feigned emotional injuries is greatly diminished in rape cases where the victim makes a showing of physical injury resulting from the rape itself. For these reasons, the Court concludes that plaintiff's claims for emotional and mental damages in this case are not barred by the PLRA physical injury requirement.
VI. The Statute of Limitations
The Court equitably tolls the statutes of limitations in this action until May 22, 1999, when Smith resigned from his position at the MCC. (Krauss Decl. Exh. J.) The doctrine of equitable tolling allows a court to "extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances." See Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (citing Bowers v. Transportacion Maritima Mexicana, S.A., 901 F.2d 258, 264 (2d Cir. 1990)). The doctrine should be applied "as a matter of fairness" when plaintiffs are "prevented in some extraordinary way from exercising [their] rights." Id. (citing Miller v. International tel. Tel. Corp., 755 F.2d 20, 24 (2d Cir.), cert. denied 474 U.S. 851 (1985)). Plaintiffs are eligible for equitable tolling only if their failure to comply with the statutory period results through "no fault or lack of diligence" on their part. See Singletary v. Continental Illinois Nat'l Bank Trust Co., 9 F.3d 1236, 1241 (7th Cir. 1993). It is well settled that equitable tolling is to be applied only sparingly. See Miller v. King's County Hospital, No. 00 Civ. 0140, available at 2000 WL 1716309, *1 (S.D.N.Y. Nov. 16, 2000) (citingIrwin v. Department of Veteran's Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457 (1991)).
The Court finds that equitable tolling is appropriate in this case. Plaintiff offers evidence that she reasonably feared that publicly asserting her claims against Smith would jeopardize her safety. Smith held a high rank at the MCC, and had allegedly attempted to intimidate plaintiff into maintaining silence by verbal threats and physically intimidating behavior. (Noguera Tr. p. 105-07.) Plaintiff reasonably believed that she would be at risk if she took action beyond her complaints to various prison officials. Consequently, the Court finds that plaintiff's delay in filing this action until after Smith resigned from the MCC was justifiable, and that plaintiff's failure to file this action within the statutory period was not the result of a lack of diligence on her part.
Defendants' objections to this result are without merit. First, the Court notes that the facts in this case are exceptional enough that there is little danger that the Court's ruling will create a loophole in the statute of limitations for any inmate pressing a claim against a corrections officer. Second, the mere fact that plaintiff had access to her criminal lawyer during the limitations period does not compel a conclusion that plaintiff could reasonably be expected to file a civil suit; plaintiff had no reason to believe that her attorney could guarantee her safety at the MCC. Third, the Court does not accept defendants' contentions that plaintiff widely publicized her complaints against Smith while at the MCC; plaintiff offers evidence that she revealed Smith's alleged actions only to a few people whom she trusted to maintain her confidentiality. (Noguera Tr. p. 125, available in Krauss Decl. Exh. N.) Fourth, the Court finds no support for defendants' assertion that equitable tolling, even if applied to plaintiff's claims against Smith, should not be applied against the supervisory defendants. It is implausible that a plaintiff precluded by safety concerns from filing suit against her attacker would be free to file a suit accusing others of allowing the attacks to occur. For these reasons, the Court equitably tolls the statutes of limitations until May 22, 1999.
Because the Court equitably tolls the statutes of limitations, the Court need not decide the applicability of Rule 15(c) to plaintiff's claims against Reish, or Smith's contentions that his actions fell outside the state limitations period for plaintiff's tort claims.
CONCLUSION
For the reasons set forth in the discussion above and in the portions of the Report adopted by the Court, the Court grants summary judgment dismissing plaintiff's claims against Garvin and denies summary judgment as to all other defendants. The parties shall submit a joint pre-trial order by April 6, 2001, along with proposed jury charges, voir dire questions and motions to be decided in limine. In preparing these submissions, the parties are directed to comply with the Court's Individual Rules. This case shall be deemed trial-ready as of April 9, 2001.SO ORDERED.