Smith v. Roberson et al

Filing 36

MEMORANDUM, DECISION AND ORDER: ORDERED that Defendants' 13 Motion for Judgment on the Pleadings is DENIED in its entirety. Signed by Judge David N. Hurd on 3/16/16. (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DOMINIQUE SMITH,
Plaintiff,
-v-

9:15-CV-0930
(DNH/TWD)

AUGUSTUS ROBERSON, III, CRAIG
APPLE, SR., CHRISTIAN CLARK, and,
COUNTY OF ALBANY,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

LAW OFFICES OF ELMER KEACH, III, P.C.
Attorneys for Plaintiff
One Pine West Plaza - Suite 109
Albany, NY 12205

ELMER R. KEACH, III, ESQ.
MARIA K. DYSON, ESQ.

ALBANY COUNTY ATTORNEY’S OFFICE
Attorneys for Defendants
112 State Street, Suite 1010
Albany, NY 12207

THOMAS MARCELLE, ESQ.
MICHAEL L. GOLDSTEIN, ESQ.
TRACY A. MURPHY, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM, DECISION and ORDER
I. INTRODUCTION
Plaintiff Dominique Smith initiated this action on July 29, 2015. Plaintiff brings federal
claims in the First Amended Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 alleging: (a)
cruel and unusual punishment, (b) violation of substantive due process, (c) failure to implement
policies and practices and (d) failure to train. Plaintiff also asserts state law claims for assault
and battery, intentional infliction of emotional distress and negligent supervision of employees.
She asserts these claims against Augustus Roberson, III, Craig Apple, Sr., Christian Clark and
the County of Albany.

Defendants have filed a motion for judgment on the pleadings, which plaintiff opposes.
II. FACTUAL BACKGROUND
The following facts, taken from the Complaint, are assumed true for purposes of the
motion for judgment on the pleadings.
In July 2014, Smith was a detainee at the Albany County Jail in Albany, New York. On
July 30, 2014, plaintiff feared that defendant Roberson, a corrections officer at the Albany County
Jail, was going to sexually assault her. Plaintiff alleges that Roberson made sexually suggestive
comments throughout the day. Further, while she was walking to the shower facilities, Roberson
chased after plaintiff, exposed his genitalia and stated, “don’t worry, I’m gonna get you next.”
As a result, plaintiff alleges that she remained in fear of Roberson throughout the rest of her
detainment at the Albany County Jail, which was for several months after the alleged July 30,
2014 incident. Plaintiff also contends that after July 30, 2014, Roberson repeatedly approached
plaintiff during family visits and would stand inappropriately close to her.
Smith also alleges that defendant Apple, the Albany County Sheriff, and defendant
Clark, the Albany County Jail administrator (the “supervisory defendants”), served as supervisors
to Roberson and failed to take any meaningful action against him. Plaintiff contends that the
defendant County of Albany failed to promulgate and enforce appropriate policies and
procedures concerning possible sexual misconduct by corrections officers, including policies for
when male officers are permitted to be alone with female detainees and to have proper video
surveillance. Plaintiff alleges that these supervisory defendants were aware of other allegations
of sexual misconduct occurring at the Albany County Jail, including allegations against Roberson,
and failed to take any meaningful action.

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III. DISCUSSION
The defendants argue that the complaint must be dismissed as against them because:
(1) defendant Roberson is entitled to qualified immunity, (2) defendants Apple and Clark are
entitled to qualified immunity and (3) plaintiff’s claim against the County does not allege
deliberate indifference to Smith.
A. Standard of Review
The standard for addressing a motion pursuant to Federal Rule of Civil Procedure
12(c) for judgment on the pleadings is the same as that for a Rule(b)(6) motion to dismiss for
failure to state a claim. When considering such a motion, a court must construe plaintiff’s
complaint liberally, accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in plaintiff’s favor. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.
B. Roberson’s Qualified Immunity
Defendants argue that at the time of the alleged incident in July 2014, it was not clearly
established that an isolated incident of inappropriate conduct by a prison employee violated an
inmate’s Eighth Amendment right. As a result, defendants believe that Roberson is entitled to
qualified immunity concerning Smith’s first and second causes of action.
A defendant is entitled to qualified immunity in any of three circumstances: (1) if the
conduct attributed to him is not prohibited under federal law; (2) where the conduct is prohibited,
if the plaintiff’s right not to be subjected to such conduct by the defendant was not clearly
established at the time of the conduct; or (3) if the defendant’s conduct was objectively legally
reasonable in light of the rules that were clearly established at the time it was taken.

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The Eighth Amendment protects inmates from cruel and unusual punishment. The
Second Circuit has held that sexual abuse of a prisoner by a corrections officer may violate the
prisoner's right to be free from cruel and unusual punishment. See Boddie v. Schnieder, 105 F.3d
857, 861 (2d Cir. 1997). In Boddie, the Court found that “there can be no doubt that severe or
repetitive sexual abuse of an inmate by a prison officer can be 'objectively, sufficiently serious'
enough to constitute an Eighth Amendment violation.” Id. In 2015, the Second Circuit found
that “a single act of sexual abuse, if sufficiently severe or serious, may violate an inmate's Eighth
Amendment rights no less than repetitive abusive conduct.” Crawford v. Cuomo, 796 F.3d 252,
257 (2d Cir. 2015). The Court went on to state that:
[t]o show that an incident or series of incidents was serious enough to
implicate the Constitution, an inmate need not allege that there was
penetration, physical injury, or direct contact with uncovered genitalia.
A corrections officer's intentional contact with an inmate's genitalia or
other intimate area, which serves no penological purpose and is
undertaken with the intent to gratify the officer's sexual desire or
humiliate the inmate, violates the Eighth Amendment. Similarly, if the
situation is reversed and the officer intentionally brings his or her
genitalia into contact with the inmate in order to arouse or gratify the
officer's sexual desire or humiliate the inmate, a violation is self-evident
because there can be no penological justification for such contact.

Id. at 257. Defendants contend that prior to the Crawford decision, an isolated incident could not
support a finding that the Eighth Amendment had been violated. This argument is unpersuasive.
Even under the Boddie analysis, an isolated incident of sexual assault could support
a finding that the Eighth Amendment had been violated if the incident was sufficiently serious.
See Boddie, 105 F.3d at 862 (“[n]o single incident that [plaintiff] described was severe enough
to be objectively, sufficiently serious. Nor were the incidents cumulatively egregious in the harm
they inflicted.”); Crawford, 796 F.3d at 256 (“Boddie recognized that a single act of sexual abuse

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may violate the Eighth Amendment if, as in this case, it is entirely gratuitous and devoid of
penological purpose.”).
Defendants point to numerous cases were courts have found that no Eighth
Amendment violation occurred. However, the alleged conduct in many of these cases consisted
of isolated instances of inappropriate touching by a corrections officer, often during a pat search,
or sexually suggestive requests or directives. Often, the alleged inappropriate touching was
related to a significant, legitimate penological purpose.
Such conduct is fundamentally different from the allegations in the present case. Smith
alleges that Roberson chased her, exposed his genitalia to her and threatened her with sexual
assault. The alleged conduct did not serve a legitimate penological purpose and the complaint
alleges that the sexually inappropriate conduct was made for the defendant’s own gratification.
See Crawford, 796 F.3d at 256 (“Although not every malevolent touch by a prison guard gives
rise to a federal cause of action, the Eighth Amendment is offended by conduct that is repugnant
to the conscience of mankind. Actions are repugnant to the conscience of mankind if they are
incompatible with evolving standards of decency or involve the unnecessary and wanton infliction
of pain.”). Under any consideration, such alleged conduct is sufficiently serious to support a
finding that the Eighth Amendment was violated.
Similarly, the argument that defendant Roberson is entitled to qualified immunity
because he was not aware that such alleged conduct would violate clearly established law must
also fail.
The qualified immunity doctrine exists to ensure that government officials can carry out
their duties in ways they reasonably believe to be lawful without fear of civil liability. However,
while this doctrine “gives ample room for mistaken judgments,” it does not protect “the plainly

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incompetent or those who knowingly violate the law.” Zieper v. Metzinger, 474 F.3d 60, 69 (2d
Cir. 2007). Qualified immunity does not protect a prison official whose conduct falls outside of
the scope of a corrections officer’s official duties and serves no legitimate penological purpose.
Even under the Boddie decision, no reasonable prison official in Roberson’s position
could have concluded that chasing a detainee and exposing one’s genitals to them while making
sexually suggestive comments would not have resulted in a sufficiently serious harm to form the
basis of an Eighth Amendment claim. Such alleged conduct is not a mistaken judgment of
defendant’s duties, would serve no legitimate purpose and would humiliate and inflict
psychological pain on the detainee.
In sum, if Roberson engaged in the alleged conduct towards Smith, that conduct could
constitute an Eighth Amendment violation. Qualified immunity cannot protect Roberson as such
conduct falls outside the scope of a corrections officer's official duties and would violate plaintiff’s
clearly established rights.
B. Apple and Clark Qualified Immunity
Defendants also contend that defendant Sheriff Apple and defendant Superintendent
Clark are entitled to qualified immunity as the alleged inappropriate conduct of defendant
Roberson did not violate Smith’s constitutional rights.
For the same reasons already described, the inappropriate sexual conduct alleged by
Smith may have violated her Eighth Amendment right and such rights were clearly established
in 2014. Therefore, defendants Apple and Clark are not entitled to qualified immunity with
respect to plaintiff’s third and fourth causes of action.

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C. Failure to Train
Lastly, defendants state that plaintiff’s failure to train claim is foreclosed because the
County of Albany could not have been deliberately indifferent to a constitutional right, to be free
from inappropriate sexual conduct, that did not exist at the time the County defendant trained and
supervised its officers.
A municipality may be liable under § 1983 only if the governmental body itself subjects
a person to a deprivation of rights or causes a person to be subjected to such deprivation.
Rather, a plaintiff must demonstrate that, through its deliberate conduct, the municipality was the
moving force behind the alleged injury.
A municipal policy may be reflected in either action or inaction. In the latter respect, a
city's policy of inaction in light of notice that its program will cause constitutional violations is the
functional equivalent of a decision by the city itself to violate the Constitution. Consistent with
this principle, “where a policymaking official exhibits deliberate indifference to constitutional
deprivations caused by subordinates, such that the official's inaction constitutes a deliberate
choice, that acquiescence may be properly thought of as a city policy or custom that is actionable
under § 1983.” See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004).
Thus, deliberate indifference may be inferred where “the need for more or better supervision to
protect against constitutional violations was obvious,” Vann v. City of New York, 72 F.3d 1040,
1049 (2d Cir.1995), but the policymaker “fail[ed] to make meaningful efforts to address the risk
of harm to plaintiffs”, Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
In the present case, Smith asserts that the supervisory defendants failed to adopt
appropriate policies and procedures to prevent sexual assaults in the Albany County Jail, and
thus, contributed to plaintiff’s injuries. Plaintiff alleges that such appropriate policies and

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procedures may have included installing cameras in the detainee housing unit or prohibiting
unmonitored one-on-one interactions between male corrections officers and female inmates.
Further, plaintiff has pled that the supervisory defendants were aware, or should have been
aware, of several publicized incidents of sexual misconduct occurring at the Albany County Jail
and failed to take corrective action. Lastly, plaintiff alleges that after July 30, 2014, the
supervisory defendants failed to preclude Roberson from having contact with plaintiff or other
female detainees.
As the complaint alleges that the supervisory defendants were aware of incidents of
sexual assault and failed to take any meaningful actions, a finder of fact could infer deliberate
indifference. As a result, the complaint is sufficient to defeat the motion for judgment on the
pleadings and permit discovery. See Walker v. City of New York, 974 F.2d 293, 297 (2d Cir.
1992).
IV.

CONCLUSION
Therefore, it is ORDERED the Defendants’ motion for judgment on the pleadings is

DENIED in its entirety.
IT IS SO ORDERED.

Dated: March 16, 2016
Utica, New York

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