Pusepa v. Annucci

YEKATRINA PUSEPA, Plaintiff, v. ANTHONY J. ANNUCCI, et al., Defendants.

No. 17-CV-7954 (RA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 19, 2019

[rel. 17-CV-1765 (RA)]

OPINION & ORDER

RONNIE ABRAMS, United States District Judge:

Plaintiff Yekatrina Pusepa, an inmate at Bedford Hills Correctional Facility ("BHCF"), brings this action pursuant to 42 U.S.C. § 1983 against the following defendants: Anthony J. Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision; Jason Effman, Associate Commissioner and PREA Coordinator for New York State Department of Corrections and Community Supervision; A. Rodriguez, Acting Director, Special Housing [] for New York State Department of Corrections and Community Supervision; Sabina Kaplan, Superintendent of BHCF; Ruben Illa, Correction Officer at BHCF; M. Ali, Correction Officer at BHCF; P. Artuz, Correction Officer at BHCF; Michael Daye, Correction Officer at BHCF; FNU Dukes, Correction Officer at BHCF; FNU Moss, Correction Officer at BHCF; Dustin Rubaine, Investigator at New York State Department of Corrections and Community Supervision, Office of Special Investigations; Christopher Nunez, Investigator at New York State Department of Corrections and Community Supervision, Office of Special Investigations; Steven Broomer, Investigator at New York State Attorney General's Office; and two John Doe Correction Officers at BHCF.² While the action alleges an array of constitutional violations stemming from Correction Officer Illa's alleged sexual abuse of Plaintiff, here the Court considers a motion to dismiss Plaintiff's Second Amended Complaint ("SAC") by all defendants except for Illa and the two John Doe defendants. Defendants move to dismiss the following seven of Plaintiff's eight causes of action: first, deliberate indifference based on supervisory authority over unconstitutional policies (Defs. Annucci, Effman, and Kaplan); second, deliberate indifference by investigators of Illa's abuse (Defs. Rubaine, Nunez, and Kaplan); third and fourth, denial of, and conspiracy to deny, due process to Plaintiff in her administrative segregation proceedings (Defs. Kaplan, Rodriguez, Artuz, Daye, Nunez, Broomer, and Rubaine); fifth, deliberate indifference by a correction officer in allowing another inmate to attack Plaintiff (Def. Ali); sixth, retaliation by the same correction officer for Plaintiff's cooperation with investigators (Def. Ali); and seventh, retaliation by other correction officers for Plaintiff's cooperation with investigators (Defs. Moss and Dukes). For the reasons stated below, the motion is granted in part and denied in part.

BACKGROUND³

Plaintiff alleges that between November 2014 and December 2015, Correction Officer ("CO") Illa engaged her in an illicit relationship. SAC at 6. Often Plaintiff and Illa made no attempt to hide their relationship from other correction officers, having long personal conversations in the recreation yard where Illa had no legitimate reason to be. Id. ¶ 23. Correction staff frequently observed Plaintiff and Illa engage in these conversations. Id. ¶¶ 23-26. At othertimes, the two would meet in certain parts of the recreation yard which were "known to BHCF's staff and inmates to be unobserved and not visible by any camera." Id. ¶ 28. Once in those unobserved areas, "Illa would put his arm around Plaintiff's waist and hold her hand." Id. ¶ 29, Illa swapped shifts several times to work near Plaintiff. Id. ¶¶ 30, 43. In exchange for the relationship, Illa gave Plaintiff privileges, such as allowing her to smoke cigarettes, give tattoos, have other inmates inside her cube, and be out of place. Id. ¶ 35. Around April 2015, the relationship became more overtly sexual. First, Illa asked Plaintiff to get in the shower so he could see her naked. Id. ¶ 36. Shortly thereafter, Illa and Plaintiff arranged for Illa to come to Plaintiff's cube in private, where two inmates held up a curtain to hide Illa and Plaintiff from view as he touched her vagina for approximately one minute. Id. ¶¶ 37-40. Illa also told Plaintiff he wanted to have sex with her, id. ¶ 41, and in August 2015 he arranged to be alone with Plaintiff in a storage room to do so, while another inmate stood watch. Id. ¶ 44. Illa, however, became frightened and left the storage room before having sexual intercourse with Plaintiff. Id.

On December 2, 2015, Plaintiff was told she had a medical appointment by a correction officer in her unit, but she was unaware of any appointment. Id. ¶ 45. When she showed up to the clinic, Illa was there. Id. ¶ 46. Approximately 20 minutes later, however, several BHCF officers entered the clinic, pulled Plaintiff outside, and conducted a pat-frisk search of her, from which nothing was recovered. Id. ¶ 48. A prison sergeant told Plaintiff to "stay away from my officers." Id. ¶ 49. After being placed in a cell for three hours and then in a supply closet for seven hours, Plaintiff was placed in a different room and interrogated by Investigator Rubaine. Id. ¶¶ 51-53. Rubaine told Plaintiff he knew about her relationship with Illa and would "make her time harder" if she did not answer his questions, remarking "good luck" after she refused. Id. ¶¶ 54-56. Immediately thereafter, Plaintiff was escorted to the Special Housing Unit ("SHU"), where shewas confined in isolation with significant restrictions on her privileges. Id. ¶ 56. Two days later, Captain Artuz recommended Plaintiff be confined to administrative segregation ("Ad Seg"), alleging that a confidential letter, the finding of a handcuff key on Illa, and results from a confidential investigation supported a finding that Plaintiff had conspired to escape BHCF. Id. ¶¶ 59-60, 64. One week later, on December 10, 2015, Captain Daye conducted an Ad Seg hearing, in which Plaintiff pleaded not guilty to the charge of conspiracy to escape. Id. ¶ 69. The hearing involved confidential and non-confidential testimony from Artuz and Rubaine, and allowed Plaintiff to pose questions to each witness through Daye, who deemed their answers confidential. Id. ¶¶ 70-75. Plaintiff denied the allegations, stating she did not know anyone planning an escape and emphasizing that she had no reason to jeopardize her sentence as her conditional release date was in 2019. Id. ¶¶ 78-79. Plaintiff also made several objections to the hearing procedures and to the lack of evidence supporting the allegations. Id. ¶¶ 80-81. On January 5, 2016, Daye issued a disposition in favor of the Ad Seg recommendation, which Plaintiff appealed two days later. Id. ¶¶ 82, 84. On March 3, 2016, Director Rodriguez affirmed the hearing disposition. Id. ¶ 86. On April 13, 2016, Superintendent Kaplan wrote to Plaintiff stating that she had performed a 60-day review of Plaintiff's confinement in Ad Seg, and affirmed the Ad Seg determination. Id. ¶ 97.

Beginning in February 2016, while in the SHU, Plaintiff received several visits from different prison officials seeking her cooperation with an investigation. First, Investigator Rubaine visited Plaintiff in the SHU and "told her that if she cooperated with the investigation, he would help her get out of SHU." Id. ¶ 85. Plaintiff declined to cooperate. Id. Rubaine visited her again a month later and made the same request, telling Plaintiff that he "and others" had known about Illa's inappropriate relationship with Plaintiff since January 2015. Id. ¶¶ 88-89. In March, Investigator Nunez visited Plaintiff in the SHU and told her that if she "cooperated and wrote outa statement he would help her get out of SHU." Id. ¶ 92. Plaintiff agreed but did not include details of her sexual contact with Illa. Id. ¶ 93. In April, Rubaine visited Plaintiff for a third time in the SHU, seeking "a more detailed and full statement." Id. ¶¶ 94-95. He added that although Ad Seg was now "over his head," he would "talk to someone to see what he could do" if she wrote out a more detailed statement. Id. ¶ 95. In May, Rubaine returned to visit Plaintiff for a fourth time, where she gave a more detailed statement but did not include details about her sexual contact with Illa. Id. ¶¶ 101-02. Around June 10, Rubaine and New York State Investigator Broomer visited Plaintiff in the SHU, where they interviewed her about Illa. Id. ¶¶ 104-05. Broomer stated that "if Plaintiff agreed to testify against Illa, Broomer would help her to be transferred out of administrative segregation." Id. At that visit, Plaintiff wrote a full statement of approximately 11 handwritten pages, including the details of the sexual contact, and gave it to Broomer and Rubaine. Id. ¶¶ 106-07. Around July 5, Rubaine visited Plaintiff in the SHU for the last time, telling her he had spoken to Kaplan and "it was time for her to be released." Id. ¶ 108, Plaintiff was then transferred out of Ad Seg, id., and received a letter the same day from Rodriguez that the hearing determination had been reversed. Id. ¶ 109.

Plaintiff alleges she suffered substantial psychological and physical harm as a result of her extended period of solitary confinement. Id. ¶ 117. While there, Plaintiff was assaulted by another inmate, K.W., who after allegedly overhearing CO Ali and other officers talking openly about Plaintiff's relationship with Illa, taunted Plaintiff about this relationship, and threatened her. Id. ¶¶ 118-21. Despite Plaintiff's reporting of this threat and a notation in the correction officers' logbook for Plaintiff to "REC ALONE," CO Ali allowed K.W.—who was in the SHU for violent conduct—into the recreation yard with Plaintiff. Id. ¶¶ 124-26. Plaintiff suffered injuries to the face, head, neck, and arm, and was placed in the infirmary for observation. Id. ¶¶ 133-34.

In July 2017, approximately one year after Plaintiff had returned to the general prison population, another incident involving BHCF staff also caused her severe emotional distress, psychological harm, and trauma. During a recreation yard event,...