Carpenter v. Apple et al

Filing 69

DECISION AND ORDER granting in part and denying in part # 43 Defendant Apple's Motion for Judgment on the Pleadings. The following claims against Defendant Apple are dismissed: (a) the First, Second, and Third causes of action against Defenda nt Apple in his official capacity; and (b) the Fourth, Ninth, Tenth, Eleventh, and Twelfth causes of action. The following claims survive: the First, Second, and Third causes of action against Defendant Apple in his individual capacity. Signed by Chief Judge Glenn T. Suddaby on 9/5/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
GINA CARPENTER,
Plaintiff,

9:15-CV-1269
(GTS/CFH)

v.
CRAIG APPLE, Albany County Sheriff in his official
and individual capacities; ALBANY COUNTY
SHERIFF’S OFFICE; COUNTY OF ALBANY;
ALBANY COUNTY CORRECTIONAL FACILITY;
AUGUSTUS ROBERSON, III, Corrections Officer in
his official and individual capacities; and “JANE DOE” and
“JOHN DOE,” Fictitious Names of Persons Employed
by the Albany County Sheriff’s Department, the
Identities of Whom are Unknown,
Defendants.
______________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF TREVOR W. HANNIGAN
Counsel for Plaintiff
311 State Street
Albany, New York 12210

TREVOR W. HANNIGAN, ESQ.

METH LAW OFFICES, P.C.
Co-Counsel for Plaintiff
10 Moffatt Lane, Suite 2
P.O. Box 560
Chester, New York 10918

MICHAEL D. METH, ESQ.

ADAM G. GIANGRECO, ATTORNEY-AT-LAW
Counsel for Defendant Craig Apple
4217 Court Royale, No. 10
Schenectady, New York 12304

ADAM G. GIANGRECO, ESQ.

GOLBERG SEGALLA, LLP

JONATHAN
BERNSTEIN, ESQ.

Co-Counsel for Defendant Craig Apple
8 Southwoods Blvd., Suite 300
Albany, New York 12211

CHELSEA E. KEENAN, ESQ.

HON. DANIEL C. LYNCH
Albany County Attorney
Counsel for Defendants Albany County Sheriff’s Office,
Attorneys
County of Albany, Albany County Correctional Facility,
Augustus Roberson, III, and Jane and John Does
112 State Street
Albany, New York 12207

MICHAEL L. GOLDSTEIN, ESQ.
SIA Z. GOOGAS, ESQ.
Assistant Albany County

BURKE, SCOLAMIERO, MORTATI & HURD, LLP
Co-Counsel for Defendants County of Albany and
Albany County Correctional Facility
7 Washington Square
Albany, New York 12205

JEFFREY E. HURD, ESQ.
JUDITH B. AUMAND, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this civil rights action filed by Gina Carpenter (“Plaintiff”)
against Craig Apple (in his individual capacity and official capacity as the Albany County
Sheriff), the Albany County Sheriff’s Office, the County of Albany in the State of New York, the
Albany County Correctional Facility, Augustus Roberson, III (in his individual capacity and
official capacity as a corrections officer), and Jane and John Does, is Defendant Apple’s motion
for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 43.) For the reasons
set forth below, Defendant Apple’s motion is granted in part and denied in part.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

Generally, liberally construed, Plaintiff’s Complaint alleges as follows. (Dkt. No. 1.)
Plaintiff is a prisoner who was formally incarcerated at the Albany County Correctional Facility
(“ACCF”) during the relevant time period of this action. (Id., ¶ 7.) On July 30, 2014, at
approximately 10:00 a.m., Plaintiff was sexually assaulted and battered by Defendant Augustus
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Roberson, a corrections officer employed by ACCF, and who was known to the prisoners as
“Gus.” (Id., ¶ 14.) On this date, Plaintiff was a “runner,” which is an inmate assigned to
perform various functions on a specific tier in the prison, including, among other things, cleaning
and delivering food trays. (Id., ¶¶ 15-16.) While Plaintiff was waiting to serve breakfast on her
assigned tier with another runner named Ms. Banks, Ms. Banks made an inappropriate comment
towards Defendant Roberson that she “would so give him some.” (Id., ¶ 17.) Defendant
Roberson did not react to Ms. Banks’s comment and Plaintiff said nothing. (Id.)
Sometime later that day, Defendant Roberson called Plaintiff out of her cell and told her
that a woman needed help using the telephone. (Id., ¶ 18.) Plaintiff complied and proceeded to
stand on her side of the locked gate and showed the woman how to use the telephone. (Id.)
Plaintiff then told Defendant Roberson that she was done and ready to go back into her cell.
(Id.) However, Defendant Roberson told Plaintiff that she needed to clean the correctional
officers’ bathroom. (Id.) The correctional officers’ bathroom is located outside of the main tier
area, and none of the common areas, including the hallways on the tier or anywhere else, are
monitored by cameras. (Id., ¶ 19.) Plaintiff proceeded to get cleaning supplies and gloves;
however, when she arrived at the bathroom, she noticed that it was not dirty or messy and that
the garbage was empty. (Id., ¶ 20.) The bathroom is small and there had been a fire in it in the
past. (Id., ¶ 21.) Wires hung from where a lightbulb used to be, which was never replaced. (Id.)
The only source of light came from the door being open. (Id.)
Plaintiff entered the bathroom and began her cleaning responsibilities. (Id., ¶ 22.) While
she was cleaning the toilet, she was startled by Defendant Roberson, who entered the bathroom
behind her. (Id.) Defendant Roberson told Plaintiff to “turn around and pull your pants down.”

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(Id., ¶ 23.) Plaintiff was wearing a bra, underwear, and her jumpsuit. (Id.) Defendant Roberson
was fully clothed at the time. (Id.) Plaintiff responded to Defendant Roberson by telling him
“no.” (Id.) Defendant Roberson then threatened Plaintiff, stating, “[Y]ou’re going to do what I
tell you to do. I’ll beat the shit out of you and pepper-spray you and call a code and tell them
you attacked me.” (Id.) Defendant Roberson then proceeded to forcibly grab Plaintiff by her
hair and shove her into the metal toilet. (Id., ¶ 24.) Plaintiff’s knees violently fell on top of the
toilet and her face almost hit the wall. (Id.) Plaintiff then heard Defendant Roberson’s keys hit
the floor when he dropped his pants. (Id.) Defendant Roberson penetrated Plaintiff’s vagina.
(Id.) Defendant Roberson never shut the door. (Id., ¶ 25.) Plaintiff is unaware if Defendant
Roberson ejaculated but he made sounds as though he did. (Id.) Defendant Roberson did not
talk to Plaintiff. (Id.) Plaintiff did not say anything to Defendant Roberson. (Id.)
When Defendant Roberson was finished, he threatened Plaintiff that she had better not
tell anyone. (Id., ¶ 26.) Plaintiff went back to her cell. (Id., ¶ 27.) When she sat on the toilet to
wipe herself, she noticed that she was bleeding. (Id.) Plaintiff later learned that her labia was
significantly torn and that she would need surgery to repair it. (Id., ¶ 33.) Plaintiff
communicated to a female correctional officer by the name of Carol Batcher that something had
happened and she needed to talk to somebody. (Id., ¶ 28.) Plaintiff wanted Officer Batcher to
contact her attorney. (Id.) Plaintiff tried to hang herself shortly thereafter and was put on
suicide watch. (Id.) On or about August 5, 2014, Plaintiff reported the sexual assault to the
Office of the Albany County District Attorney and Deputy Chief Montleone of the Office of the
Albany County Sheriff. (Id., ¶ 29.) Plaintiff was assured that this matter would be investigated
but, to date, no formal decision has been published regarding her complaint. (Id.)

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After Plaintiff’s sexual assault became known, Plaintiff was bullied by a correctional
officer whom everyone called “Jack.” (Id., ¶ 30.) At one point, Jack was referring to all of the
prisoners as “fucking whores” and then called Plaintiff over to him and said, “[S]o what’s this I
hear about my friend Gus? What are you and your friend saying about him? I know what you’re
going down to medical for.” (Id.) Jack was referring to the lab work that the administration
wanted Plaintiff to have done. (Id.) Plaintiff felt uncomfortable, terrified, and intimidated by
Jack’s comments and questions. (Id.) The administration wanted Plaintiff’s lab work completed
after the sexual assault became known. (Id., ¶ 31.) No physical exam of Plaintiff’s vagina was
performed. (Id.) Although Plaintiff had to submit to the lab work and questioning, nothing was
kept confidential and everyone in ACCF knew what was going on and why Plaintiff was there.
(Id.) After the administration got the information that they needed, Plaintiff was left to deal with
the employees of ACCF, including the correctional officers, on her own. (Id.)
ACCF fails to provide any privacy for female inmates while they are showering or
disrobing. (Id., ¶ 37.) Male correctional officers do not announce their presence when
necessary. (Id.) They walk into the prisoners’ bathrooms without first announcing “man on the
tier,” regardless of whether female inmates are showering and/or using the toilet. (Id.)
Subsequent to the violent sexual assault, Defendant Does, in an attempt to discredit and
intimidate Plaintiff, released her medical history without her authorization and/or consent to the
members of the Albany County Sheriff’s Office, causing her to suffer further embarrassment and
lack of privacy. (Id., ¶ 38.)
After certain efforts were made by her attorney, and in cooperation with the Office of the
New York State Attorney General, Plaintiff was transferred to Rensselaer County Jail on August

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22, 2014. (Id., ¶ 32.) Since July 30, 2014, Plaintiff suffers from constant nightmares. (Id., ¶
34.) She wakes up with night sweats and has to take a shower. (Id.) She has difficulty
showering and toileting because male correctional officers work on the unit. (Id.) She wakes up
in the morning and finds herself under her bunk or on the floor and has no recollection of how
she got there. (Id.) She is startled and becomes panicked by the sounds of the correctional
officers’ keys and radios. (Id.) She cannot look at the metal toilet in her cell and has obtained
permission for an extra towel to keep it covered. (Id.) Plaintiff treats with a sexual assault
counselor and mental health therapist. (Id.)
Based upon the foregoing allegations, Plaintiff asserts the following twelve claims: (1) a
claim that the actions of Defendants Apple, Roberson, Albany County, the Albany County
Sheriff’s Office, and ACCF resulted in Plaintiff’s violent sexual assault and physical and
psychological injuries, which constitute cruel and unusual punishment per se in violation of her
rights under the Eighth Amendment; (2) a claim that Defendants Apple, the Albany County
Sheriff’s Office, and ACCF acted with deliberate indifference toward Plaintiff’s medical and
mental health needs, which amounted to cruel and unusual punishment in violation of her rights
under the Eighth Amendment; (3) a claim that the actions of Defendants Apple, Roberson,
Albany County, the Albany County Sheriff’s Office, and ACCF resulted in Plaintiff’s violent
sexual assault and physical and psychological injuries, which deprived her of her liberty and
right to be secure, in violation of the Fourteenth Amendment; (4) a claim that Defendants Apple,
the Albany County Sheriff’s Office, Albany County, and ACCF severely compromised
Plaintiff’s personal safety and welfare while she was an inmate at ACCF in violation of N.Y.
Correct. Law § 500-b; (5) a claim that Defendant Roberson violated N.Y. Penal Law §§

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130.05(3)(e)-(f) when he sexually assaulted Plaintiff; (6) a claim that Defendant Roberson
falsely imprisoned Plaintiff in the correctional officers’ bathroom when he sexually assaulted
her; (7) a claim that Defendant Roberson battered Plaintiff, which resulted in her physical
injuries; (8) a claim that Defendant Roberson assaulted Plaintiff when he threatened her in the
correctional officers’ bathroom, thereby putting her in fear of imminent harmful and offensive
contact; (9) a claim that Defendants Apple, the Albany County Sheriff’s Office, Albany County,
and ACCF were negligent in their supervision of their employees; (10) a claim that Defendants
Apple, Does, the Albany County Sheriff’s Office, and Albany County violated 7 N.Y.C.R.R. §
5.24 when Defendant Does disseminated information from Plaintiff’s medical history without
her authorization; (11) a claim that all Defendants intentionally inflicted emotional distress upon
Plaintiff through their respective actions, inactions and/or deliberate indifference; and (12) a
claim that all Defendants negligently inflicted emotional distress upon Plaintiff when they
breached their respective duties to take adequate and appropriate steps to prevent and/or
remediate the sexual assault as well as the events that transpired after it. (Id., ¶¶ 46-141.)
B.

The Parties’ Briefing on Defendant Apple’s Motion
1.

Defendant Apple’s Memorandum of Law

Generally, in his memorandum of law, Defendant Apple asserts three arguments. (Dkt.
No. 43, Attach. 1 [Def. Apple’s Mem. of Law].)
First, Defendant Apple argues that he is liable for only his alleged unconstitutional
conduct, and not for the conduct of his subordinates, because, in Ashcroft v. Iqbal, 556 U.S. 662,
667 (2009), the Supreme Court rejected the theory of “supervisor liability” in the context of

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Section 1983 actions. (Id. at 14-15.)1 Furthermore, Defendant Apple argues that Plaintiff has
not alleged facts plausibly suggesting that he, or anyone else besides Defendant Roberson, was
involved in sexually assaulting her. (Id. at 16.) More specifically, Defendant Apple argues that
Plaintiff has failed to allege that he directed, condoned, or otherwise authorized the assault. (Id.)
Although Plaintiff alleges in her ninth cause of action that “Defendants knew about the sexual
assault[,]” Defendant Apple argues that this allegation is wholly conclusory and, in any event, an
allegation of mere knowledge is insufficient under Iqbal’s pleading requirements. (Id.)
Similarly, Defendant Apple argues that any claim against him for failing to implement
and carrying out “the goal of preventing sexual abuse and/or sexual harassment in its facilities”
should be construed as a claim against him in his official capacity. (Id. at 17.) In turn,
Defendant Apple argues that a claim against him in his official capacity should be dismissed
because any such claim is really a claim against the County of Albany as the real party in interest
and is therefore duplicative. (Id.)
Second, Defendant Apple argues that, in the event that the Court finds that Plaintiff has
stated a claim against him under a theory of supervisor liability, he is nonetheless entitled to
qualified immunity because an alleged violation of an inmate’s constitutional rights under the
factors announced in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), was not clearly
established at the time of the alleged incident.2 (Id. at 18.) Specifically, Defendant Apple argues

1

Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in the parties’ respective motion papers.
2

The five Colon factors are as follows:
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
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that there is a split among the U.S. Courts of Appeals, as well as among the district courts in this
Circuit, regarding the viability of the Colon factors, and in particular supervisory liability, after
the Supreme Court’s decision in Iqbal. (Id. at 19-20.)
Third, and finally, Defendant Apple argues that Plaintiff’s state law claims fail as a
matter of law. (Id. at 24.) Specifically, with regard to Plaintiff’s fourth cause of action claiming
a violation of N.Y. Correct. Law § 500-b, Defendant Apple argues that this claim is barred by the
governing one-year statute of limitations because it accrued, at the very latest, on August 22,
2014, when Plaintiff was transferred to the Rensselaer County Jail, and she did not commence
this action until October 22, 2015. (Id.)
With regard to Plaintiff’s ninth cause of action claiming negligent supervision, Defendant
Apple argues that Plaintiff has failed to allege facts plausibly suggesting that he knew that
Defendant Roberson had (a) a plan to sexually assault Plaintiff, or (b) any kind of propensity for
committing such acts. (Id. at 27.)
With regard to Plaintiff’s tenth cause of action claiming a violation of 7 N.Y.C.R.R. §
5.24, Defendant Apple argues that this regulation does not provide a private right of action
because it states that “[n]othing in this section shall be construed as creating a private right of

through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference to the rights of inmates
by failing to act on information indicating that unconstitutional
acts were occurring.
Colon, 58 F.3d at 873.
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action for an individual who is the subject of these records or his/her personal representative.”
(Id. [quoting 7 N.Y.C.R.R. § 5.24(d)].) Even if Plaintiff could pursue a private right of action
under this regulation, Defendant Apple argues that Plaintiff has failed to allege the identities of
the persons or entities to which her medical records were impermissibly released or that he had
any involvement in disseminating the records. (Id. at 28.) Instead, Defendant Apple argues,
Plaintiff merely alleges that he was responsible for supervising “Defendant Does” but fails to
allege how his supervision was insufficient. (Id.) In any event, Defendant Apple argues that
case precedent establishes that he cannot be held vicariously liable for the acts of his
subordinates in this context. (Id.)
With regard to Plaintiff’s eleventh cause of action claiming intentional infliction of
emotional distress (“IIED”), Defendant Apple argues that this claim is barred by the governing
one-year statute of limitations because it accrued, at the very latest, on August 22, 2014, when
Plaintiff was transferred to the Rensselaer County Jail, and she did not commence this action
until October 22, 2015. (Id. at 29.) In any event, Defendant Apple argues that Plaintiff has
failed to allege facts plausibly suggesting that he was directly involved in the alleged assault or
that he ordered or condoned it. (Id. at 30.)
With regard to Plaintiff’s twelfth cause of action claiming negligent infliction of
emotional distress (“NIED”), Defendant Apple argues that Plaintiff has failed to allege facts
plausibly suggesting that he was directly involved in the alleged assault or that he ordered or
condoned it. (Id. at 31.) Furthermore, Defendant Apple argues that, although Plaintiff alleges
that he failed to “remediate the sexual assault,” there is no allegation that this left Plaintiff
exposed to unreasonable risk of bodily harm. (Id.) While Plaintiff alleges that Defendant

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Roberson was the lone officer supervising the tier of female inmates, Defendant Apple argues
that this, in and of itself, does not plausibly suggest that Plaintiff was exposed to an unreasonable
risk of bodily harm, especially because she has failed to allege that Defendant Roberson had a
history of sexual assault or a propensity for such behavior. (Id. at 31-32.)
2.

Plaintiff’s Opposition Memorandum of Law

Generally, in opposition to Defendant Apple’s motion, Plaintiff asserts six arguments.
(Dkt. No. 44 [Pl.’s Opp’n Mem. of Law].)
First, Plaintiff argues that she has alleged facts plausibly suggesting that Defendant
Apple was personally involved in violating her constitutional rights under the Colon factors for
the following four reasons: (a) despite knowledge of Defendant Roberson’s inappropriate sexual
conduct with female inmates, Defendant Apple allowed Defendant Roberson to remain on staff
as the only male correctional officer with unsupervised and unfettered access to female inmates;
(b) despite Defendant Apple’s knowledge of the repeated pattern of sexual abuse of female
inmates at ACCF, he continued to allow Defendant Roberson to have unsupervised access to
female inmates; (c) Defendant Apple, in his capacity as Albany County Sheriff, is responsible
for the creation of policies at ACCF but has failed to implement policies that would prevent
sexual abuse at the prison despite knowledge of past incidents of sexual violence against female
inmates (and has publicly acknowledged at least one such incident in which he deemed the
victim’s account “credible”); and (d) Defendant Apple’s failure to adopt policies that would
prevent the sexual assault of female inmates is indicative of his deliberate indifference,
acquiescence, and/or tolerance of such conduct. (Id. at 13-18.)

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Second, Plaintiff argues that Defendant Apple is not entitled to qualified immunity
because (a) qualified immunity is available only to individuals sued in their individual capacity,
and (b) Defendant Apple’s conduct violated Plaintiff’s clearly established right to be free from
cruel and unusual punishment under the Eighth Amendment for the reasons stated above in
Plaintiff’s first argument. (Id. at 19-20.) Furthermore, Plaintiff argues that she was deprived of
medical care when, after being violently attacked by Defendant Roberson, she was not provided
with appropriate medical treatment, including an examination, evaluation, and the surgery
required to repair her labia. (Id. at 20-21.)
Third, Plaintiff argues that courts in this Circuit have applied the limitations of Iqbal to
the Colon factors only in cases involving discriminatory intent. (Id. at 22.) Otherwise, Plaintiff
argues, the Colon factors have remained intact and, because discriminatory intent is not relevant
to the claims in this case, the Court should apply the factors when considering the issue of
supervisory liability. (Id. at 22-24.)
Fourth, Plaintiff argues that she has alleged facts plausibly suggesting a claim for NIED
against Defendant Apple because she has pled as follows: (a) he owed a duty of care to her as a
prisoner under the custody and control of ACCF, (b) he breached his duty by failing to (i) take
adequate and appropriate steps to prevent and/or remediate the sexual assault, (ii) provide
adequate supervision for female inmates despite knowledge of past sexual abuse by correctional
officers, (iii) implement policies and procedures to prevent sexual assault at ACCF, and (iv)
supervise and train the correctional officers, (c) he failed to conduct an adequate investigation
after the sexual assault, (d) he allowed other male correctional officers to threaten Plaintiff that
caused her to fear for her safety, and (e) he failed to provide Plaintiff with adequate medical care

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which unreasonably endangered her safety. (Id. at 25-26.) Furthermore, Plaintiff argues that she
was not required to allege that Defendant Apple’s conduct was extreme and outrageous because
New York State courts have recently decided that extreme and outrageous conduct is no longer
an element of NIED. (Id. at 24-25.)
Fifth, Plaintiff argues that she has alleged facts plausibly suggesting a claim for negligent
hiring, retention, and/or supervision against Defendant Apple. (Id. at 26.) Specifically, Plaintiff
argues that she has alleged that Defendant Apple was aware of Defendant Roberson’s propensity
to commit sexual assaults as well as a general pattern of sexual abuse in New York State
Correctional Facilities, which has resulted in significant publicity and successful lawsuits. (Id. at
27.) Furthermore, Plaintiff argues that she has alleged that, despite this knowledge, Defendant
Apple allowed Defendant Roberson to be the only unsupervised male correctional officer in
charge of Plaintiff’s tier inside the prison, that Defendant Apple never disciplined Defendant
Roberson, and Defendant Roberson remains gainfully employed. (Id.)
Sixth, and finally, Plaintiff argues that her claim under N.Y. Correct. Law § 500-b and
her claim for IIED are not barred by the one-year statute of limitations under New York Civil
Practice Law and Rules (“CPLR”) § 215 because the one-year-and-ninety-day statute of
limitations under N.Y. Gen. Mun. Law § 50-i should govern. (Id. at 27-28.) More specifically,
Plaintiff argues that, because she commenced this action against a municipality, and because
Defendant Apple is an officer and employee of the municipality, N.Y. Gen. Mun. Law § 50-i
governs the timeliness of her claims. (Id.)
3.

Defendant Apple’s Reply Memorandum of Law

Generally, in reply to Plaintiff’s opposition memorandum of law, Defendant Apple
asserts six arguments. (Dkt. No. 48 [Def. Apple’s Reply Mem. of Law].)
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First, Defendant Apple argues that Plaintiff inappropriately relies on the Colon factors
because they are no longer viable after the Supreme Court’s decision in Iqbal. (Id. at 5.) In any
event, Defendant Apple argues that Plaintiff has failed to allege facts plausibly suggesting his
direct involvement in any of the alleged events that form the basis for her claims in this matter.
(Id.) For example, Defendant Apple argues that Plaintiff has failed to allege that she had any
direct contact with him about not receiving appropriate medical care or that he created a policy
and custom under which unconstitutional practices occurred. (Id.) Moreover, Defendant Apple
argues that Plaintiff has failed to set forth the names and dates of persons alleged to have been
subject to misconduct by Defendant Roberson before the incident in question, or that Defendant
Apple had knowledge of any such events, such knowledge would have put him on notice of
Defendant Roberson’s alleged propensity to engage in misconduct. (Id. at 6.) Similarly,
Defendant Apple argues that Plaintiff has failed to identify how the Sheriff Department’s
training was insufficient or the manner in which Defendant Apple failed to train the corrections
officers. (Id.)
Second, Defendant Apple reiterates his argument that claims against him in his official
capacity should be dismissed as redundant because any such claims are really claims against the
County of Albany. (Id. at 7.) With respect to the claims asserted against him in his individual
capacity, Defendant Apple reiterates his argument that he is entitled to qualified immunity
because (a) principles of vicarious liability do not apply in § 1983 claims, and (b) it is not clearly
established in the Second Circuit whether supervisory liability is still viable under the Colon
factors after the Supreme Court’s decision in Iqbal. (Id. at 8-9.)

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Third, Defendant Apple argues that Plaintiff’s NIED claim must be dismissed for the
following three reasons: (a) although the Second Department has ruled that extreme and
outrageous conduct is no longer an element of a NIED claim, the Third Department continues to
require such a showing; (b) Plaintiff has failed to allege facts plausibly suggesting that
Defendant Apple’s conduct endangered her or that he was even involved in the alleged incident;
and (c) Defendant Apple did not owe a special duty to Plaintiff. (Id. at 9-10.)
Fourth, Defendant Apple reiterates his argument that Plaintiff’s negligent
supervision/retention claim should be dismissed because she has failed to allege facts plausibly
suggesting that he knew that Defendant Roberson had (a) a plan to sexually assault Plaintiff, or
(b) any kind of propensity for committing such acts. (Id. at 10.) Furthermore, Defendant Apple
argues that the most Plaintiff has alleged is that another incident occurred at ACCF on the same
date as the incident in question but the alleged incident, in and of itself, was insufficient to put
him on notice of Defendant Roberson’s alleged propensity to commit sexual assaults. (Id. at 1011.)
Fifth, Defendant Apple argues that the statute of limitations period under N.Y. Gen. Mun.
Law § 50-i does not govern Plaintiff’s claims for IIED and a violation of N.Y. Correct. Law §
500-b against him because CPLR § 215 specifically states that “an action against a sheriff . . .
upon a liability incurred by him by doing an act in his official capacity or by omission of an
official duty . . . shall be commenced within one year.” (Id. at 11.)
Sixth, and finally, Defendant Apple argues that Plaintiff has failed to oppose his
arguments that she has failed to allege facts plausibly suggesting an IIED claim and that he was
in violation of N.Y. Correct. Law § 500-b and 7 N.Y.C.R.R. § 5.24. (Id. at 12.) Accordingly,
Defendant Apple argues that the Court should dismiss these claims due to abandonment. (Id.)

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II.

RELEVANT LEGAL STANDARD
"The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical

to that of a Rule 12(b)(6) motion for failure to state a claim." Patel v. Contemporary Classics of
Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (collecting cases); accord, Hayden v. Paterson,
594 F.3d 150, 160 (2d Cir. 2010). Accordingly, the Court will review Defendant Apple’s motion
under the standard applicable to a motion to dismiss.
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d
204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de
novo review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between
permitting a "short and plain statement" and requiring that the statement "show[]" an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has

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held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests." Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
"enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision
on the merits" by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal"
notice pleading standard "has its limits." 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the "liberal" notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court "retire[d]" the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id.

-17-

at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in
detail the facts upon which [the claim is based]," it does mean that the pleading must contain at
least "some factual allegation[s]." Id. at 1965. More specifically, the "[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level]," assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is "plausible," the Supreme Court explained that "[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." Iqbal, 129 S.Ct. at
1949. "[D]etermining whether a complaint states a plausible claim for relief . . . [is] a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is
entitled to relief." Id. at 1950 (internal quotation marks and citations omitted). However, while
the plausibility standard "asks for more than a sheer possibility that a defendant has acted
unlawfully," id., it "does not impose a probability requirement." Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, "the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement"
will not suffice. Id. (internal citations and alterations omitted). Rule 8 "demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citations omitted).

-18-

Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are "integral" to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.3

3

See Fed. R. Civ. P. 10(c) ("A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes."); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the "matters outside the pleadings" in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
"integral" to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
"may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may nevertheless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document 'integral' to the complaint. . . .
However, even if a document is 'integral' to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.")
(internal quotation marks and citations omitted); Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) ("The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.") (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir. 1995) (per curiam) ("[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint," the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
-19-

III.

ANALYSIS
A.

Whether Plaintiff Has Alleged Facts Plausibly Suggesting Defendant Apple’s
Personal Involvement in the Alleged Violation of Her Constitutional Rights
Under the Eighth and Fourteenth Amendments

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated below.
It is well settled that “personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994) (internal quotation marks omitted). “[A] Section 1983 plaintiff must
allege a tangible connection between the acts of the defendant and the injuries suffered.” Austin
v. Pappas, 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (internal quotation
marks and citation omitted). If the defendant is a supervisory official, a mere “linkage” to the
unlawful conduct through “the prison chain of command” (i.e., under the doctrine of respondeat
superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk
Cty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.
2003); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). In other
words, supervisory officials may not be held liable merely because they held a position of
authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
As an initial matter, the Court must address the parties’ respective arguments regarding
the applicability of the Colon factors post-Iqbal. The Second Circuit has expressly declined to
determine whether Iqbal eliminated any of the Colon bases for liability. See Raspardo v.
Carlone, 770 F.3d 97, 117 (2d Cir. 2014) (“We have not yet determined the contours of the
supervisory liability test, including the gross negligence prong, after [Iqbal][.]”); Hogan v.

-20-

Fischer, 738 F.3d 509, 519 n.13 (2d Cir. 2013) (“We express no view on the extent to which the
Supreme Court’s decision in [Iqbal] may have heightened the requirements for showing a
supervisor’s personal involvement with respect to certain constitutional violation[.]”) (internal
quotation marks and citation omitted); Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir.
2013) (“Although the Supreme Court’s decision in [Iqbal] may have heightened the
requirements for showing a supervisor’s personal involvement with respect to certain
constitutional violations, we need not reach Iqbal’s impact on Colon in this case[.]”); Reynolds v.
Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012) (noting “considerable skepticism” on whether all
Colon factors survived Iqbal but declining to decide the issue); cf. Vincent v. Yelich, 718 F.3d
157, 173 (2d Cir. 2013) (“A supervisory official may be liable in an action brought under § 1983
if he “exhibited deliberate indifference to the rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.”) (citing Colon, 58 F.3d at 873). Some
district courts have interpreted Iqbal to mean that the second, fourth, fifth, and part of the third
Colon factors are no longer viable bases for liability in any context.4 The majority of district

4

See, e.g., McNair v. Kirby Forensic Psychiatric Ctr., 2010 WL 4446772, at *6
(S.D.N.Y., Nov. 05, 2010) (“[O]nly two Colon categories survive after Iqbal–(1) a supervisor is
only held liable if that supervisor participates directly in the alleged constitutional violation, and
part of (3) if that supervisor creates a policy or custom under which unconstitutional practices
occurred. . . . The other Colon categories impose the exact types of supervisory liability that
Iqbal eliminated–situations where the supervisor knew of and acquiesced to a constitutional
violation committed by a subordinate.”); Bellamy v. Mount Vernon Hosp., 07-CV-1801, 2009
WL 1835939, at *4, *6 (S.D.N.Y. June 26, 2009) (“Only the first and part of the third Colon
categories pass Iqbal’s muster–a supervisor is only held liable if that supervisor participates
directly in the alleged constitutional violation or if that supervisor creates a policy or custom
under which unconstitutional practices occurred. The other Colon categories impose the exact
types of supervisory liability that Iqbal eliminated–situations where the supervisor knew of and
acquiesced to a constitutional violation committed by a subordinate.”); Joseph v. Fischer, 08CV-2824, 2009 WL 3321011, at *14 (S.D.N.Y. Oct. 8, 2009) (“[U]nder Iqbal, . . . [a] defendant
is not liable . . . if the defendant’s failure to act deprived the plaintiff of his or her constitutional
-21-

courts, however, have held that all five Colon factors survive where the constitutional violation
at issue does not require a showing of discriminatory intent.5 Indeed, courts within this District
have continued to apply the Colon factors post-Iqbal.6
Here, the Court will follow the majority view and apply the Colon factors in considering
right.”); Newton v. City of New York, 640 F. Supp. 2d 426, 448 (S.D.N.Y. 2009) (“[P]assive
failure to train claims . . . have not survived the Supreme Court’s recent decision in [Iqbal].”).
5

See Drew v. City of New York, 16-CV-0594, 2016 WL 4533660, at *12
(S.D.N.Y. Aug. 29, 2016) (“Where the constitutional claim does not require a showing of
discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference
standards of the Fourth, Eighth or Fourteenth Amendments, the personal involvement analysis
set forth in Colon may still apply.”); Liner v. Fischer, 11-CV-6711, 2013 WL 3168660, at *7
(S.D.N.Y. June 24, 2013) (agreeing with the “majority view” that where the constitutional claim
does not require a showing of discriminatory intent, the personal-involvement analysis in Colon
should still apply); Alli v. City of New York, 11-CV-7665, 2012 WL 4887745, at *6 (S.D.N.Y.
Oct. 12, 2012) (“[W]here the claim does not require a showing of discriminatory intent, the
personal-involvement analysis set forth in Colon should still apply.”); Toliver v. N.Y.C. Dep’t of
Corr., 10-CV-5804, 2012 WL 5426658, at *4 (S.D.N.Y. Oct. 10, 2012) (“[T]he majority view is
where the constitutional claim does not require a showing of discriminatory intent . . . the
personal involvement analysis set forth in [Colon] may still apply.”); Sash v. United States, 674
F. Supp. 2d 531, 544 (S.D.N.Y. 2009) (“Where the constitutional claim does not require a
showing of discriminatory intent, but instead relies on the unreasonable conduct or deliberate
indifference standards of the Fourth and Eighth Amendments, the personal involvement analysis
set forth in [Colon] may still apply.”); Qasem v. Toro, 737 F. Supp. 2d 147, 151-52 (S.D.N.Y.
2010) (applying Colon factors in analyzing inmate’s claims for violation of her Eighth and
Fourteenth Amendment rights against supervisory officials after she was allegedly raped by
corrections officer).
6

See, e.g., Brown v. Oneida Cty., 15-CV-0849, 2016 WL 4275727, at *8 n.4
(N.D.N.Y. Aug. 12, 2016) (Kahn, J.) (“The Court assumes here that Colon remains good law.”);
Carter v. Bezio, 12-CV-1746, 2015 WL 1400555, at *5 n.2 (N.D.N.Y. Mar. 26, 2015) (Treece,
M.J.) (“[T]his Court, until instructed to the contrary, continues to apply the entirety of the five
factor Colon test.”); Aron v. Becker, 48 F. Supp. 3d 347, 379 n.18 (N.D.N.Y. 2014) (McAvoy, J.)
(“[T]his Court concludes that because [it] is unclear whether Iqbal overrules or limits Colon, and
in the absence of contrary direction from the Second Circuit, the Court will continue to apply
those factors.”); De Ratafia v. Cty. of Columbia, 2013 WL 5423871, at *8 (N.D.N.Y. Sept. 16,
2013) (Mordue, J.) (“[W]here the claim does not require a showing of discriminatory intent, the
personal-involvement analysis set forth in Colon should still apply.”); Powell v. Johnson, 11CV-1304, 2013 WL 2181268, at *5 (N.D.N.Y. May 20, 2013) (D’Agostino, J.) (applying Colon
factors).
-22-

Plaintiff’s claims against Defendant Apple. Because the first Colon factor (i.e., direct
participation) is not alleged or asserted to apply, the Court will proceed to an analysis of the
remaining Colon factors.
1.

The Second Colon Factor

With respect to the second Colon factor, the Court finds that Plaintiff has failed to allege
facts plausibly suggesting that Defendant Apple failed to remedy the violation after being
informed of it through a report or appeal. Specifically, Plaintiff argues that “Defendant Apple’s
failure to promulgate policies to prevent further sexual abuse and assault, continuing to allow
Defendant Roberson unsupervised access to the female detainees despite knowledge of his past
sexual misconduct, and retention of Defendant Roberson as an employee, constitut[e] his failure
to remedy the wrong after learning of the violation.” (Dkt. No. 44, at 15 [Pl.’s Opp’n Mem. of
Law].) However, “[t]he reference in case law to an official who ‘fails to remedy’ a violation
logically applies only to ongoing, and therefore correctable, constitutional violations–not to a
specific event that is later subject to formal review by designated officials once the constitutional
violation has already concluded.” Odom v. Calero, 06-CV-15527, 2008 WL 2735868, at *7
(S.D.N.Y. July 10, 2008); see also Burton v. Lynch, 664 F. Supp. 2d 349, 362 (S.D.N.Y. 2009)
(“A superintendent cannot ‘remedy’ a violation of constitutional rights which has already ceased
by ordering some change in prison conditions.”); Harnett v. Barr, 538 F. Supp. 2d 511, 524
(N.D.N.Y. 2008) (Hurd, J.) (“If the official is confronted with a violation that has already
occurred and is not ongoing, then the official will not be found personally responsible for failing
to ‘remedy’ a violation.”).

-23-

Here, Plaintiff has failed to allege that her sexual assault was ongoing at the time
Defendant Apple was informed of it. Furthermore, despite Plaintiff’s argument to the contrary,
Plaintiff has alleged that at least some corrective action was taken in the form of prohibiting
Defendant Roberson to enter the female tiers of the prison. (Dkt. No. 1, ¶ 39 [Pl.’s Compl.]
[alleging that “Defendant Roberson is not allowed on female tiers any longer”].)
2.

The Third Colon Factor

With respect to the third Colon factor, the Court finds that Plaintiff has (albeit barely)
alleged facts plausibly suggesting that Defendant Apple allowed the continuance of a policy
under which unconstitutional practices occurred for the reasons stated in her opposition
memorandum of law. (Dkt. No. 44, at 16-18 [Pl.’s Opp’n Mem. of Law].) To those reasons, the
Court adds that it is insufficient to merely allege that a policy of allowing unmonitored one-onone interactions between a corrections officer and an inmate of different sexes is
unconstitutional. (Id., ¶ 39 [alleging that Defendant Roberson “was able to engage in such
conduct because he was given unfettered and unsupervised access to female detainees by the
supervisory defendants.”) See also Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993)
(rejecting “conclusion that every male guard is a risk to the bodily integrity of a female inmate
whenever the two are left alone”); accord, Cash v. Cty. of Erie, 654 F.3d 324, 336 (2d Cir.
2011). However, what nudges Plaintiff’s allegations over the line from conceivable to plausible
is the fact that she has alleged that Defendant Apple was on notice of previous incidents at
ACCF involving male corrections officers having inappropriate sexual contact with female

-24-

detainees. (Dkt. No. 1, ¶ 40 [Pl.’s Compl.].)7 Indeed, with respect to these past incidents,
Plaintiff alleges that “Defendant Apple has publicly stated that ‘at least one victim’s account was
credible[,]’” and that, despite his knowledge of this inappropriate behavior, he “failed to adopt
policies and procedures regarding circumstances w[h]ere male corrections officers are permitted
to be alone with female inmates.” (Id.)
3.

The Fourth Colon Factor

With respect to the fourth Colon factor, the Court finds that Plaintiff has failed to allege
facts plausibly suggesting that Defendant Apple was grossly negligent in his supervision of
Defendant Roberson. Specifically, Plaintiff alleges that “Defendant Facility permitted
Defendant Roberson . . . to supervise female prisoners by himself and without female
supervision, in light of past allegations of sexual misconduct.” (Dkt. No. 1, ¶ 51 [Pl.’s Compl.].)
“‘[G]ross negligence’ denotes a higher degree of culpability than mere negligence. It is the kind
of conduct where the defendant has reason to know of facts creating a high degree of risk of . . .
harm to another and deliberately acts or fails to act in conscious disregard or indifference to that
risk.” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014). This standard is satisfied when
“the plaintiff establishes that the defendant-supervisor was aware of a subordinate’s prior
substantial misconduct but failed to take appropriate action to prevent future similar misconduct
before the plaintiff was eventually injured.” Raspardo, 770 F.3d at 117.

7

The Court notes that, below in Part III.A.3. of this Decision and Order, the Court
finds that Plaintiff has failed to allege facts plausibly suggesting that Defendant Apple knew of
specific instances of past misconduct committed by Defendant Roberson. As the Court
indicates, this finding was rendered after considering another case in this District in which
similar factual allegations were made against Defendant Roberson. However, this finding
(which regards the fourth Colon factor) is not inconsistent with the Court’s finding with regard
to the third Colon factor because, under the third Colon factor, Plaintiff’s allegations are more
broad, i.e., that Defendant Apple was on notice of more than one other incident at ACCF
involving sexual misconduct by male corrections officers generally.
-25-

The Court agrees with Defendant Apple that Plaintiff has failed to allege facts plausibly
suggesting that he knew of specific instances of past misconduct committed by Defendant
Roberson. (Dkt. No. 48, at 6 [Def. Apple’s Reply Mem. of Law].) The Court notes that it is
aware of another action commenced against Defendants Roberson and Apple in this District, in
which another female inmate incarcerated at ACCF alleged that Defendant Roberson sexually
harassed her.8 See Smith v. Roberson, 15-CV-0930, 2016 WL 1056588 (N.D.N.Y. Mar. 16,
2016) (Hurd, J.). These allegations would plausibly suggest that at some point in time Defendant
Apple became aware of at least one other incident of sexual misconduct involving Defendant
Roberson. However, the plaintiff in Smith alleged that Defendant Roberson harassed her on the
same date (i.e., July 30, 2014) on which Plaintiff in the present action alleges that Defendant
Roberson sexually assaulted her. It is unclear whether the events in Smith occurred before or
after the events alleged in the present action.9
After carefully considering the allegations made in Smith, the Court finds that Plaintiff
has failed to allege facts plausibly suggesting that Defendant Apple had notice of any prior

8

The Court notes that it may take judicial notice of the existence of these
allegations because they are contained in legal filings made in this court as well as recited in
another court’s opinion. See Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150,
157 (2d Cir. 2006) (“A court may take judicial notice of a document filed in another court not for
the truth of the matters asserted in the other litigation, but rather to establish the fact of such
litigation and related filings.”); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp.
Ltd., 181 F.3d 410, 426-27 (3d Cir.1999) (“[O]n a motion to dismiss, we may take judicial notice
of another court’s opinion–not for the truth of the facts recited therein, but for the existence of
the opinion, which is not subject to reasonable dispute over its authenticity.”).
9

Plaintiff in the present action alleges that Defendant Roberson sexually assaulted
her at approximately 10:00 a.m. on July 30, 2014. (Dkt. No. 1, ¶ 14 [Pl.’s Compl.].) The
plaintiff in Smith, however, does not allege what time of day that Defendant Roberson sexually
harassed her. Rather, she alleges that the harassment “[t]hroughout the course of the day,”
“escalat[ing]” in “the evening.” Smith v. Roberson, 15-CV-0930, Amended Complaint, ¶¶ 11, 12
(N.D.N.Y. filed Feb. 10, 2016).
-26-

sexual misconduct committed by Defendant Roberson and/or had a sufficient opportunity to
reasonably respond to any such misconduct. See Poe v. Leonard, 282 F.3d 123, 142 (2d Cir.
2002) (holding that supervisor’s liability depended on showing that supervisor “knew or should
have known that there was a high degree of risk that [subordinate would commit the violative
conduct], but either deliberately or recklessly disregarded that risk by failing to take action that a
reasonable supervisor would find necessary to prevent such a risk, and that failure caused a
constitutional injury”); Jones v. Superintendent of Attica Corr. Facility, 10-CV-0823, 2012 WL
4464685, at *3 (W.D.N.Y. Feb. 3, 2012) (“Even interpreting plaintiff's allegations to suggest that
he wrote Superintendent Conway about his safety concerns upon his transfer, given plaintiff’s
allegation that the assault occurred on the same day as his move into the housing block, it is not
plausible that Superintendent Conway would have received plaintiff’s letter prior to the
assault.”); cf. Morris v. Eversley, 205 F. Supp. 2d 234, 242 (S.D.N.Y. 2002) (Chin, J.)
(“[Plaintiff] also alleges that defendants were grossly negligent in supervising their subordinates,
because they had received prior complaints about Eversley–and yet failed to adequately monitor
his actions such that the assault on Morris could occur.”).
4.

The Fifth Colon Factor

With respect to the fifth Colon factor, the Court finds that, for the reasons stated above in
Part III.A.2. of this Decision and Order, Plaintiff has (albeit barely) alleged facts plausibly
suggesting that Defendant Apple exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that male corrections officers at ACCF were having
inappropriate sexual contact with female detainees. See Connick v. Thompson, 563 U.S. 51, 62
(2011) (“Policymakers’ continued adherence to an approach that they know or should know has

-27-

failed to prevent tortious conduct by employees may establish the conscious disregard for the
consequences of their action–the ‘deliberate indifference’–necessary to trigger municipal
liability.”); Cash, 654 F.3d at 335-39 (concluding that, after plaintiff claimed she was raped by a
sheriff’s duty, a reasonable jury could have found that sheriff was deliberately indifferent to his
duty to protect prisoners from sexual exploitation when, despite knowledge of at least one other
incident involving sexual contact between a female prisoner and a male guard, he merely
reiterated the facility’s “no-contact” policy “unaccompanied by any proactive steps to minimize
the opportunity for exploitation”); Rivera v. Bonner, No. 16-10675, 2017 WL 2872291, at *5 (5th
Cir. July 6, 2017) (stating that “officials can be found deliberately indifferent if they fail to
modify training and policies after sexual assault occurs in their facilities”); accord, Tafoya v.
Salazar, 516 F.3d 912, 917 (10th Cir. 2008).
B.

Whether Defendant Apple is Entitled to Qualified Immunity

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated by Plaintiff in her opposition memorandum of law. (Dkt. No. 44, at 20-21
[Pl.’s Opp’n Mem. of Law].)
Under the qualified immunity doctrine, “government officials performing discretionary
functions generally are granted a qualified immunity and are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Wilson v. Layne, 526 U.S. 603, 609
(1999) (internal quotation marks omitted). “A defendant will thus not be liable for damages ‘if
he did not violate clearly established law or if it was objectively reasonable for him to believe
that he was not violating clearly established law.’” Pugh v. Goord, 571 F. Supp. 2d 477, 510

-28-

(S.D.N.Y. 2008) (quoting Luna v. Pico, 356 F.3d 481, 490 [2d Cir. 2004]). “A right is clearly
established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second
Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from
the existing law that [his] conduct was unlawful.” Anderson v. Recore, 317 F.3d 194, 197 (2d
Cir. 2003) (internal quotation marks omitted). For qualified immunity to bar suit at the motion
to dismiss stage, “[n]ot only must the facts supporting the defense appear on the face of the
complaint, but, as with all Rule 12(b)(6) motions, the motion may be granted only where it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (internal
quotation marks and citations omitted).
It is clearly established that inmates have the right to be protected from sexual abuse,
both at the hands of correctional officers and fellow inmates, and that prison officials violate
inmates’ constitutional rights by showing deliberate indifference to a substantial risk of sexual
abuse “when the offical[s] know[ ] of and disregard[ ] an excessive risk” of that harm occurring.
Farmer v. Brennan, 511 U.S. 825, 837 (1994); Cash, 654 F.3d at 335-37; Varon v. Sawyer, 04CV-2049, 2006 WL 798880, at *2 (D. Conn. Mar. 25, 2006). “By now, the substantial risk of
sexual assault in jails and prisons is well-documented and obvious.” Rivera, 2017 WL 2872291,
at *6 (citing 42 U.S.C. § 15601 [congressional finding in the Prison Rape Elimination Act of
2003 that “experts have conservatively estimated that at least 13 percent of the inmates in the
United States have been sexually assaulted in prison”]); Cash, 654 F.3d at 335 (citing N.Y. Penal
Law § 130.05[3][e]-[f] and noting that “these laws recognize the moral certainty of guards
confronting prisoners in sexually tempting circumstances with such a frequent risk of harm to

-29-

prisoners as to require a complete prohibition on any sexual activity”); Morris, 205 F. Supp. 2d
at 242-43 (holding that prison officials are charged with knowledge of N.Y. Penal Law §
130.05). “Jail administrators are not permitted to ‘bury their heads in the sand’ and ignore these
obvious risks to the inmate populations they have an affirmative duty to protect.” Rivera, 2017
WL 2872291, at *6; see also Burhans v. Lopez, 24 F. Supp. 3d 375, 384-85 (S.D.N.Y. 2014)
(“No reasonable official . . . could have believed that turning a blind eye to [a subordinate’s
sexual harassment] misconduct was consistent with clearly established law.”).
Based upon the foregoing, the Court cannot find that Defendant Apple is entitled to
qualified immunity at this early stage in the litigation and without the benefit of record evidence
demonstrating whether Defendant Apple’s conduct was objectively reasonable. See Varon, 2006
WL 798880, at *4 (denying qualified immunity to prison officials that allegedly failed to take
corrective action to protect inmates after learning of past incidents of sexual abuse because
“[w]hether the conduct of these defendants was reasonable in light of the situation confronting
them cannot be assessed at this early stage in the litigation”); accord, Morris, 205 F. Supp. 2d at
243. This includes conduct related to Plaintiff’s allegations that she did not receive appropriate
medical treatment after being sexually assaulted. (Dkt. No. 1, ¶¶ 60-66 [Pl.’s Compl.].) See
Benjamin v. Schwartz, 299 F. Supp. 2d 196, 201 (S.D.N.Y. 2004) (“A prisoner’s Eighth
Amendment right to be free from deliberate indifference to his serious medical needs is quite
clearly established and has been for some time.”).
Finally, the Court is unpersuaded by Defendant Apple’s argument that he is entitled to
qualified immunity because “it is not clearly established if supervisory liability exists in the
Second Circuit [due to the conflict between Iqbal and Colon] and if it does, what the standard is

-30-

for a supervisor to be held liable[.]” (Dkt. No. 48, at 9 [Def. Apple’s Reply Mem. of Law].)
Even if the Court were to find merit to this argument, the Court has found that the third Colon
factor applies in this case, which courts in this Circuit have found to be viable regardless of the
conflict surrounding this issue. See, e.g., Olutosin v. Lee, 14-CV-0685, 2016 WL 2899275, at
*13 (S.D.N.Y. May 16, 2016) (“Courts appear to be in agreement that the third Colon factor
remains viable regardless of the underlying constitutional claim.”).
C.

Whether Plaintiff’s Claims Against Defendant Apple in His Official Capacity
Should Be Dismissed as Redundant

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant Apple’s memorandum of law. (Dkt. No. 43, Attach. 1, at 17
[Def. Apple’s Mem. of Law].) See Stancati v. Cty. of Nassau, 14-CV-2694, 2015 WL 1529859,
at *2 (E.D.N.Y. Mar. 31, 2015) (“[B]ecause the County is named in the Complaint, the claims
against Sheriff Sposato and Deputy Sheriff Gorey in their official capacities must be dismissed
as duplicative and redundant.”); Reid v. Nassau Cty. Sheriff’s Dep’t, 2014 WL 4185195, at *11
(E.D.N.Y. Aug. 20, 2014) (“[T]he branches of the County defendants’ motions seeking dismissal
of the consolidated plaintiffs’ Section 1983 claims against Sheriff Sposato and the
Superintendent in their official capacity are granted and the consolidated plaintiffs’ Section 1983
claims against Sheriff Sposato and the Superintendent are dismissed in their entirety with
prejudice as redundant to their claims against the County.”); Lipton v, Cty. of Orange, NY, 315 F.
Supp. 2d 434, 452 (S.D.N.Y. 2004) (dismissing civil rights claims against county sheriff and jail
administrators in their official capacities because they were redundant to similar claims against
county).

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D.

Whether Plaintiff’s State Law Claims for IIED, NIED, Negligent
Supervision, and for Violating N.Y. Correct. Law § 500-b Against Defendant
Apple Are Time-Barred

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant Apple’s memoranda of law. (Dkt. No. 43, Attach. 1, at 24,
29 [Def. Apple’s Mem. of Law]; Dkt. No. 48, at 11 [Def. Apple’s Reply Mem. of Law].) See
Trelly v. Cty. of Monroe, 13-CV-6248, 2015 WL 471375, at *3 (W.D.N.Y. Feb. 4, 2015)
(holding that statute of limitations period contained in CPLR § 215 governed intentional tort
claims against sheriff rather than one-year and ninety-day limitations period); McKenzie v. Cty.
of Erie, 12-CV-0912, 2013 WL 5348084, at *1 (W.D.N.Y. Sept. 23, 2013) (“[Plaintiff] argues
that the applicable statute of limitations is one year and ninety days. But that time period, which
is set forth in New York’s General Municipal Law § 50-i, applies to claims against the County,
not the Sheriff.”); Duryea v. Cty. of Livingston, 06-CV-6436, 2007 WL 1232228, at *3
(W.D.N.Y. Apr. 26, 2007) (“[C]ontrary to plaintiff’s claims, CPLR § 215[1] provides the statute
of limitations for tort claims against a sheriff and his deputies while § 50-i sets forth the
limitations period for tort claims against a county.”); Nichols v. Rensselaer Cty., 132 Misc.2d
489, 491 (N.Y. Sup. Ct. 1986) (rejecting plaintiff’s argument that sheriff and his deputies should
be considered county employees for purposes of N.Y. Gen. Mun. § 50-i because “[i]t is wellestablished that the filing of a notice of claim is not a required pre-condition to commencing suit
against a sheriff or his deputies. . . . Since it is clear that the claims alleged herein arose out of
the performance of the law enforcement duties of the office of Sheriff and/or his deputies, there

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is no basis to deviate from the application of CPLR 215[1]”).10
The Court notes that, although Plaintiff’s claims for negligent supervision, NIED, and for
violating N.Y. Correct. Law § 500-b are not intentional torts, CPLR § 215 governs actions
against a sheriff “upon a liability incurred by him by doing an act in his official capacity or by
omission of an official duty.” CPLR § 215(1); see Brady v. Woodworth, 17 A.D.2d 995, 995
(N.Y. App. Div. 4th Dep’t 1986) (“The liability to which this short limitation period applies is
coextensive with the liability against which a sheriff must be bonded.”); Jemison v. Crichlow,
139 A.D.2d 332, 338 (N.Y. App. Div. 2d Dep’t 1988) (holding that one-year limitations period
applied to actions against city marshal regardless of whether the alleged misconduct was
intentional and malicious so long as the marshal’s “acts were committed by virtue of, or under
color of, his office”), aff’d, 74 N.Y.2d 726 (N.Y. 1989). New York Correction Law § 500-b
directs that the Sheriff “shall exercise good judgment and discretion” and “take all reasonable
steps to ensure that the assignment of persons” to housing units “fosters the safety, security and
good order of the jail” while concomitantly ensuring that necessary precautions are made for the
safety and welfare of those in custody, especially those who may be particularly susceptible to
abuse. N.Y. Correct. Law § 500-b(7)(a)(1)-(2). Therefore, Defendant Apple’s alleged failure to
take the necessary actions to keep Plaintiff safe constitutes an “omission of an official duty”
within the meaning of CPLR § 215(1). This includes any claim related to Defendant Apple’s

10

The Court notes that it does not take a position regarding what limitations period
would govern Plaintiff’s claims against Albany County or any other municipal Defendant.
However, it appears that the limitations period under N.Y. Gen. Mun. Law § 50-i would govern
those claims. See Ruggiero v. Phillips, 292 A.D.2d 41, 44 (N.Y. App. Div. 4th Dep’t 2002)
(“[W]ith respect to an action against a municipality, [§ 50-i(1)(c)] takes precedence over the
one-year period of limitations provided for in CPLR [§] 215.”).
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alleged failure to ensure that ACCF had proper policies in place to render appropriate medical
care to the inmates in his custody because this necessarily involves the health and safety of those
inmates. See Adams v. Cty. of Rensselaer, 66 N.Y.2d 725, 727 (N.Y. 1985) (applying one-year
statute of limitations contained in CPLR § 215 to claim against sheriff under N.Y. Correct. Law
§ 500-c); accord, Kingston v. Braun, 122 A.D.2d 543, 543 (N.Y. App. Div. 4th Dep’t 1986);
Lederer v. Nassau Cty. Dep’t of Corr., 122 A.D.2d 251, 252 (N.Y. App. Div. 2d Dep’t 1986),
overruled on other grounds by Estate of Adkins v. Nassau Cty., 141 A.D.2d 603 (N.Y. App. Div.
2d Dep’t 1988).
Accordingly, it follows that Defendant Apple’s alleged negligence in failing to properly
supervise his subordinates, particularly when he allegedly had notice of past incidents of
misconduct involving corrections officers and inmates, constitutes a failure to perform his duties
under N.Y. Correct. Law § 500-b(7). See Lederer, 122 A.D.2d at 252 (applying one-year
limitations period under CPLR § 215 to plaintiff’s claim that sheriff “negligently failed to
provide adequate protection” from assaults by fellow inmates). Similarly, the Court finds that
Plaintiff’s NIED claim is subject to the one-year limitations period under CPLR § 215 because
the allegations serving as the basis for this claim flow from Defendant Apple’s alleged failure to
perform his official duties. (Dkt. No. 1, ¶¶ 134-141 [Pl.’s Compl.].) See McDonald v. Riccuiti,
126 A.D.3d 954, 954 (N.Y. App. Div. 2d Dep’t 2015) (“In determining which limitations period
is applicable to a given cause of action, the court must look to the substance of the allegations
rather than to the characterization of those allegations by the parties.”).
E.

Whether Plaintiff’s Claim Under 7 N.Y.C.R.R. § 5.24 Should Be Dismissed

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated by Defendant Apple in his memoranda of law. (Dkt. No. 43, Attach. 1, at
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27-28 [Def. Apple’s Mem. of Law]; Dkt. No. 48, at 12 [Def. Apple’s Reply Mem. of Law].) To
those reasons, the Court adds the following one point.
Defendant Apple correctly points out that Plaintiff has failed to oppose his arguments in
support of dismissal of this claim. In this District, when a non-movant fails to oppose a legal
argument asserted by a movant, the movant’s burden with regard to that argument is lightened,
such that, in order to succeed on that argument, the movant need only show that the argument
possess facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determines
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein. . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009
WL2473509, at *2 & nn.2, 3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases). The
Court finds that Defendant Apple has, at the very least, met this modest threshold burden, once
again, for the reasons set forth in his memoranda of law. In any event, the Court would still
dismiss this claim even if it were to subject it to the more rigorous standard appropriate for a
contested motion.
Specifically, 7 N.Y.C.R.R. § 5.24(d) states that “[n]othing in this section shall be
construed as creating a private right of action for an individual who is the subject of these
records or his/her personal representative.” Defendant Apple points out that, in Davidson v.
State, 3 A.D.3d 623 (N.Y. App. Div. 3d Dep’t 2004), the Appellate Division, Third Department,
affirmed an award of damages to a prisoner where his medical records were improperly released
in violation of 7 N.Y.C.R.R. § 5.24. Davidson, 3 A.D.3d at 624. Defendant Apple argues that
this case should not be followed because it contravenes the clear statutory language contained in
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subdivision (d) of 7 N.Y.C.R.R. § 5.24. However, courts have found that Davidson is no longer
good law to the extent that it can be read to allow a private right of action because it relies on
“provisions of 7 N.Y.C.R.R. § 5.24 that were eliminated by the regulation’s amendments
effective January 26, 2005.” McFadden v. Schneiderman, 54 Misc.3d 1222(A), at *2 (N.Y. Sup.
Ct. May 6, 2016) (“Since [subdivision (d)] denies plaintiff a private right of action for a violation
of 7 N.Y.C.R.R. § 5.24, he may not pursue this action for such a violation.”); accord, Anthony
YY. v. State, 151 A.D.3d 1121 (N.Y. App. Div. 3d Dep’t 2017). Accordingly, for all of the
foregoing reasons, Plaintiff’s tenth cause of action against Defendant Apple is dismissed.
ACCORDINGLY, it is
ORDERED that Defendant Apple’s motion for judgment on the pleadings (Dkt. No. 43)
is DENIED in part and GRANTED in part such that the following claims against Defendant
Apple are dismissed:
a.

the First, Second, and Third causes of action against Defendant Apple in
his official capacity;

b.

the Fourth, Ninth, Tenth, Eleventh, and Twelfth causes of action; and it is
further

ORDERED that the First, Second, and Third causes of action against Defendant Apple
in his individual capacity survive his motion.
Dated: September 5, 2017
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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