Second Circuit reinstates prison sex abuse suit

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A group of women who were sexually abused by male guards while serving time in the state’s prisons wants New York to change its policies to better protect female inmates.

The U.S. Court of Appeals for the Second Circuit Friday vacated the 2007 decision of the U.S. District Court for the Southern District of New York which had dismissed the case, saying the claims of some of the plaintiffs were moot because they had been released and that the remaining plaintiffs failed to exhaust available remedies required by the Prison Litigation Reform Act of 1995. The higher court notes the case suggests a need for policy and procedure changes.

The suit was originally brought in 2003 by 17 women against the state Department of Correctional Services and several line officers, superintendents and supervisors. The Daily Record will not identify victims of sexual abuse. At least two of the women were housed in Albion Correctional Facility in Orleans County.

“We believe that the department has policies and procedures that enable this abuse to continue unabated,” said Dori A. Lewis, senior supervising attorney, Prisoners’ Rights Project, Legal Aid Society in New York City.

She alleges the department fails to adequately supervise, train and discipline male staff, even when there are repeated and credible complaints of sexual abuse, allowing them to continue guarding women prisoners — even alone and at night.

“What we’re trying to do in this lawsuit is change that,” Lewis said. “Now, we can continue the efforts to make these changes.”

The Second Circuit, in its unanimous decision, notes it lacks jurisdiction over damages claims, but that the women whose claims were deemed moot are not, leaving 13 appellants of whom three had exhausted applicable internal prison grievance proceedings and can proceed.

A spokesperson for Attorney General Eric T. Schneiderman’s office declined to comment because the litigation is ongoing. The state’s case was handled by Richard O. Jackson, assistant solicitor general in the office’s Bureau of Appeals and Opinions.

The women claim, as individuals and a class, that they were sexually abused and harassed in violation of their First, Fourth, Eighth and 15^th amendments under 42 U.S.C. 1983 which protects those whose constitutional rights are violated by someone acting under state authority. The claim alleges that all women in DOCS custody (approximately 2,220 as of January) are at risk of sexual abuse or harassment as a result of DOCS policies and procedures. They further allege supervisors knew of their allegations and failed to take preventative measures. The alleged conduct ranges from unwelcome touching to forcible rape.

“The Sex Crimes Unit receives more than 200 complaints of sexual misconduct every year,” according to court documents. “According to the complaint, it is DOCS’ standard practice to refer such complaints to the [Inspector General] for investigation, whether initiated by formal grievance or informal complaint.”

The women allege there are problems with the grievance procedure and that DOCS’ response is also inadequate by its failures to initiate an investigation in a timely manner, adequately investigate, credit inmate complaints, maintain confidentiality and meaningfully address substantiated allegations.

Circuit Judge Ralph K. Winter, who wrote the decision, indicated in a footnote that not all inmate orientation manuals expressly address sexual misconduct.

“The grievance procedures are further complicated when challenges to DOCS policies concerning sexual misconduct are made,” Judge Winter wrote. “However, an inmate may not challenge a policy, or lack thereof, without a showing of a concrete injury, in this case, an act of sexual abuse.”

The three remaining claimants, according to court papers, appropriately started the process with a complaint to the inspector general. When combined with a claim for policy reform and the abuse determination is unfavorable to the inmate, both claims can be pursued on appeal to the Central Office Review Committee (CORC).

“But, it appears on this record that CORC does not entertain the claim for policy change unless the allegation of an act(s) of sexual abuse is upheld,” the decision reads. “In these three cases, the allegations of sexual abuse were denied. In none of the three cases did any correctional official or tribunal ever mention the grievances’ challenge to policies and procedures.”

The Second Circuit disagreed with the district court that the relation-back doctrine, considering something as of the time it was filed, did not apply and said it does for the claims of the plaintiffs who had been released and preserves them for adjudication for purposes of a class action. The court ruled the odds are “rather small” that an inmate would be able to complete the grievance procedure and litigate a class action before being released and that the district court erred when it failed to relate the claims it deemed moot back to the filing of the complaint. In fact, only two of the 13 were still in prison at the time the notice of appeal was filed.

“The issue, in our view, is whether a reasonable corrections official would recognize a complaint alleging a failure to protect a female inmate from a sexual assault by a male officer as raising issues regarding DOCS policies and procedures,” the decision says. “We believe that it would. However, a failure to protect involves conduct by officials superior to the officer accused of the misconduct and suggests the need for policy and procedural reform.”

Although three remain with standing, the Second Circuit says it does not automatically establish that they are entitled to litigate the interests of the class they seek to represent. The matter is remanded for further proceedings consistent with the opinion.

“It means we can go forward and attempt to litigate the action that we originally brought eight years ago,” said Lewis. “We seek class certification because we believe all women are at risk of assault.”

She said some changes, such as cameras being installed at some prisons, have taken place since the suit was filed in 2003, but that they are not enough.

“We’re gratified that the Second Circuit is now allowing this case to proceed to trial,” Lewis said. “We believe these are serious and urgent issues that need to be addressed.”

She also cited a national 2008-09 survey by the U.S. Department of Justice which says sexual abuse by corrections staff is rampant in facilities run by DOCS and that New York prisoners reported the nation’s highest rates of staff forcing or pressuring inmates to engage in sexual activity — in both men’s and women’s facilities.

According to the figures, 7.1 percent of male prisoners at the Elmira Correctional Facility in Chemung County and 6 percent at Attica in Wyoming County reported staff raping them or pressuring them into sexual activity within the year before the survey, the highest rates in the nation which had an average of less than 2 percent.

The report shows higher figures for women: 11.5 percent at Bayview in Manhattan reported experiencing staff sexual misconduct.

Lewis was assisted by Lisa Freeman of Legal Aid (now joined by Veronica Vela) and by the New York City law firm Debevoise & Plimpton LLP which has served pro bono since the case began.

Several other attorneys, representing various appellees, are also involved.