
    Gultela QASEM, Plaintiff, v. Luis A. TORO; Superintendent of Taconic Correctional Facility Delores Thornton; Deputy Superintendent for Security William Rogers; John Does 1-10, Defendants.
    No. 09 Civ. 836(SHS).
    United States District Court, S.D. New York.
    Aug. 10, 2010.
    
      Karen K. Won, Cooley Godward Kronish LLP, William O’Brien, Kronish, Lieb, Weiner & Heilman L.L.P., New York, NY, for Plaintiff.
    Thomas Patrick McCloskey, Aliazzo, McCloskey & Gonzalez, LLP, Ozone Park, NY, Julia Hyun-Joo Lee, New York State Department of Law, New York, NY, for Defendants.
   OPINION & ORDER

SIDNEY H. STEIN, District Judge.

Plaintiff Gultela Qasem brings this action pursuant to 42 U.S.C. § 1983 against defendants Luis Toro, Delores Thornton, William Rogers, and John Does 1-10 in their individual capacities. The lawsuit arises from injuries allegedly suffered by Qasem at the hands of Corrections Officer Luis Toro while Qasem was an inmate under the custody of the New York State Department of Correctional Services (“DOCS”) at Taconic Correctional Facility. The complaint alleges that defendants deprived Qasem of her constitutional rights through (1) direct and repeated acts of sexual assault by Toro; (2) Thornton and Rogers’s deliberate indifference to her personal safety; and (3) Thornton and Rogers’s maintenance of, or failure to remedy, policies and practices that created an unreasonable risk of sexual assault by Toro. Defendants Thornton and Rogers have now moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for relief.

I. BACKGROUND

The following facts are taken from the complaint and presumed to be true for the purposes of this motion.

A. Parties

Plaintiff Gultela Qasem is currently an inmate at the Bedford Hills Correctional Facility. At the time of the acts alleged in the complaint, plaintiff was an inmate at the Taconic Correctional Facility. (Compl. ¶¶ 5, 21.) Defendant Toro — not a party to the present motion — is a DOCS Corrections Officer. At the time of the acts alleged in the complaint, defendant Delores Thornton was the Superintendent of Taconic and defendant Rogers was the Deputy Superintendent for Security of Ta-conic. (Id. ¶¶ 1, 8-9.)

B. This Action

Qasem alleges defendants violated her Eighth and Fourteenth Amendment rights under the United States Constitution as they arise out of a repeated pattern of sexual assault and rape committed against her by Toro.

While an inmate at Taconic, Qasem was assigned to work in Building 93 from approximately February 2007 to November 2007, and for most of that time, she also lived there. (Id. ¶¶ 21-22.) Qasem alleges that, on or around March 27, 2007, Toro entered her cell during the afternoon “count time” and sexually assaulted her by fondling her breasts, vaginal area, and buttocks while also exposing his penis and forcing Qasem to perform oral sex on him. (Id. ¶ 23.) Plaintiff alleges that later that evening Toro ordered her to the officers’ station where he raped her. (Id. ¶ 24.) Toro then told Qasem that he would write up a disciplinary action against her if she told anyone what he had done to her. (Id. ¶ 24.)

Qasem alleges that a pattern of sexual assault emerged over the next eight months. Toro allegedly assaulted and raped Qasem in her cell on numerous occasions during the night count time, in the officers’ station, in the shower area, and in the recreation room. (Id. ¶¶ 25-26.) Throughout these eight months, Qasem alleges that Toro repeatedly threatened to kill her and her family if she reported his actions. As a result, she did not report Toro’s conduct. (Id. ¶ 27). Plaintiff alleges, however, that other corrections staff facilitated Toro’s repeated sexual abuse by condoning Toro or plaintiff being in unauthorized areas and allowing Toro into plaintiff’s housing area when he was not assigned there. (Id. ¶ 28.)

Although Qasem did not file a report against Toro based on his conduct, others did, and on July 2, 2007, the DOCS Officer of Inspector General (“IG”) commenced an investigation into Toro’s actions. (Id. ¶¶ 31-33.) When interviewed by an IG representative, Qasem denied the allegations because of the prior threats that Toro had made; despite her denials, plaintiff was reassigned to a different building the day after her interview. (Id. ¶¶ 33-34.) As the IG continued its investigation, in August 2007 Qasem was transferred back to building 93, which was the building where Toro worked at that time. Plaintiff contends that by causing her to be transferred back to Toro’s building, defendants Thornton and Rogers were deliberately indifferent to her safety and allowed Toro to have continued unfettered access to her, which enabled him to continue raping and sexually abusing her. (Id. ¶ 38.) Plaintiff alleges that once she returned to building 93 in August 2007, Toro resumed his sexual assaults, including but not limited to raping her and sodomizing her. (Id. ¶ 40.)

During this same time period, plaintiff was transferred in and out of the “keep-lock” area in building 93. (Id. ¶¶ 39-47.) While she was in keeplock, at least one corrections officer delivered a message from Toro to her, while other corrections staff condoned and disregarded the alleged continuing assaults by Toro. (Id. ¶¶ 47-48.) In addition to physical, mental, and emotional injuries she suffered from the repeated rapes and sexual abuse, Qasem alleges that in October 2007 she was diagnosed with genital herpes, a sexually transmitted disease, which she believes was transmitted to her by Toro. (Id. ¶¶ 61-63.)

Plaintiff alleges that sometime in November 2007, Toro became aware of the IG investigation and started harassing her by asking her what questions the IG representative had asked her and what her responses were. (Id. ¶ 45.) Qasem contends that on November 26, 2007, after she was once again raped by Toro, she told him that she was going to report his conduct, and Toro became violent with her — twisting her arm and wrist. (Id. ¶ 50.) The next day, plaintiff was transferred out of Taconic and into Bedford. (Id. ¶ 51.)

Plaintiff alleges that Thornton and Rogers were deliberately indifferent to her safety and well-being and that despite ample evidence of the assaults, they permitted Toro to have repeated access to her instead of removing either her or Toro from building 93. (Id. ¶¶ 55-60.) Plaintiff maintains that Thornton and Rogers were responsible for the inadequate polices and practices that allowed her to be repeatedly raped and assaulted over a number of months, despite the fact that other corrections officers were aware of Toro’s misconduct. (Id.)

II. DISCUSSION

A. Rule 12(b)(6) Standard

On a motion to dismiss a claim for relief pursuant to Rule 12(b)(6) a court accepts the truth of the facts alleged in the complaint and draws all reasonable inferences in the plaintiff’s favor. Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir.2006). A complaint will be dismissed if it fails to set forth “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “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. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 556,127 S.Ct. 1955).

B. Supervisory Liability Post-Iqbal

The complaint alleges that defendants deprived Qasem of her constitutional rights through (1) the direct and repeated acts of sexual assault by Toro; (2) defendant Thornton and Rogers’s deliberate indifference to her personal safety; and (3) Thornton and Rogers’s maintenance of, or failure to remedy, policies and practices that created an unreasonable risk of sexual assault by Toro. Thornton and Rogers respond to the claims against them on several grounds.

First, they assert that Qasem’s claims are based on a broad theory of “supervisory liability” that has been discredited by the U.S. Supreme Court in Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Prior to Iqbal, well-established Second Circuit law provided five bases for alleging that a supervisory defendant had sufficient personal involvement with the alleged violation to maintain a section 1983 claim. A plaintiff could plead personal involvement by showing any of the following five courses of conduct:

(1) the defendant participated directly in the alleged constitutional violation, the defendant, after being informed of the violation 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 v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Sanders v. N.Y. City Dep’t of Corr., 07 Civ. 3390, 2009 WL 222161, at *5, 2009 U.S. Dist. LEXIS 7709, at *17-18 (S.D.N.Y. Jan. 30, 2009). Defendants contend that Iqbal’s discussion of supervisory liability took a narrower approach than did Colon, thereby rendering Qasem’s reliance on Colon categories unwarranted.

The Second Circuit has not yet addressed how Iqbal affects the five categories of conduct that give rise to supervisory liability under Colon. As explained in detail in D’Olimpio v. Crisafi, No. 09 Civ. 7283, 718 F.Supp.2d 340, 345-48, 2010 WL 2428128, at *4-6, 2010 U.S. Dist. LEXIS 59563, at *14-18 (S.D.N.Y. June 15, 2010), in the wake of Iqbal, certain courts in this district have found that “[o]nly the first and part of the third Colon categories pass Iqbal’s muster,” and that “[t]he other Colon categories impose the exact types of supervisory liability that Iqbal eliminated,” because only the first and third categories allege personal involvement sufficiently to permit supervisory liability to be imposed after Iqbal. Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *1-2, 2009 U.S. Dist. LEXIS 54141, at *6 (S.D.N.Y. June 26, 2009); see also Newton v. City of N.Y., 640 F.Supp.2d 426, 448 (S.D.N.Y.2009) (“[P]assive failure to train claims pursuant to section 1983 have not survived the Supreme Court’s recent decision in Ashcroft v. Iqbal.”)-, Joseph v. Fischer, No. 08 Civ. 2824, 2009 WL 3321011, at *15, 2009 U.S. Dist. LEXIS 96952, at *42-43 (S.D.N.Y. Oct. 8, 2009) (“Plaintiffs claim, based on [defendant’s] ‘failure to take corrective measures,’ is precisely the type of claim Iqbal eliminated.”). This Court, as did the Court in D’Olimpio, disagrees with this narrow interpretation of Iqbal.

As Iqbal noted, the degree of personal involvement required to overcome a Rule 12(b)(6) motion varies depending on the constitutional provision alleged to have been violated. Invidious discrimination claims require a showing of discriminatory purpose, but there is no analogous requirement applicable to Qasem’s allegations of repeated sexual assaults. See Sash v. United States, 674 F.Supp.2d 531, 544 (S.D.N.Y.2009) (citing Chao v. Battista, 630 F.Supp.2d 170, 178 n. 2 (D.Mass.2009)); see also D’Olimpio, 718 F.Supp.2d at 346-47, 2010 WL 2428128, at *5, 2010 U.S. Dist. LEXIS 59563, at *16. Colon’s bases for liability are not founded on a theory of respondeat superior, but rather on a recognition that “personal involvement of defendants in alleged constitutional deprivations” can be shown by nonfeasance as well as misfeasance. Id. at 346-47, at *5, 2010 U.S. Dist. LEXIS 59563 at *17 (quoting Colon, 58 F.3d at 873).

Thus, the five Colon categories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated. Id.; see also Sash v. United States, 674 F.Supp.2d 531, 544 (S.D.N.Y.2009) (“It was with intent-based constitutional claims in mind, specifically racial discrimination, that the Supreme Court rejected the argument that ‘a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution.’ 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 v. Coughlin may still apply.” (citation omitted)).

Plaintiffs allegations and inferences, if proven, would entitle her to relief under the Fourteenth Amendment and Eighth Amendments. See Breithaupt v. Abram, 352 U.S. 432, 435, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957) (sustaining substantive due process claims where state action shocks the conscience); Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”) (quoting Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)).

C. Colon Categories

Second and apart from their argument based on Iqbal, Thornton and Rogers assert that plaintiff has adequately alleged neither (1) that they were deliberately indifferent to her rights by failing to act on information that unconstitutional acts were occurring nor (2) that they were responsible for creating or maintaining policies or practices that failed to prevent Qasem from being repeatedly raped and assaulted.

The Court finds that plaintiff has alleged sufficient facts that Thornton — the Superintendent of the DOCS facility where plaintiff resided — and Rogers — the Deputy Superintendent for Security at that same facility — were deliberately indifferent to her health and safety and that they were responsible for creating or maintaining policies and practices that failed to prevent plaintiff from being raped and assaulted. The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody. Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 620 (2d Cir.1996). “An official acts with the requisite deliberate indifference when that official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998).

Specifically, the complaint alleges that defendants were responsible for determining where inmates were to be housed and the assignment of guards, and in conjunction with the IG, the investigation and response to complaints of staff misconduct. Despite an investigation and what plaintiff alleges as substantial evidence of Toro’s misconduct known to a variety of individuals (id. ¶ 56), defendants Thornton and Rogers allowed plaintiff to be housed in the building where Toro worked (id. ¶ 58); they failed to remove him from guarding Qasem (id. ¶ 57); they failed to reassign Qasem to another building (id.); they allowed Qasem to be transferred back to the building where Toro worked (id. ¶ 58); and they did not increase supervision of Toro despite their knowledge of allegations of Toro’s assaults and the IG’s investigation of him (id. ¶ 59). The complaint also alleges that a number of acts occurred under defendants’ supervision that were violations of DOCS rules and regulations (id. ¶¶ 28, 47), and that defendants Thornton and Rogers allowed those practices to take place.

Although discovery may ultimately reveal that defendants Thornton and Rogers made every reasonable effort to prevent the alleged sexual abuse, Qasem has alleged sufficient facts to allow the Court “to draw the reasonable inference” that the defendants “are liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949.

D. Qualified Immunity

Third, Thornton and Rogers claim that qualified immunity requires dismissal of this litigation as to them. So far as the Court can ascertain, defendants contend that they are entitled to immunity principally because Qasem herself initially denied the sexual relationship when asked about it by prison security officers. In them view, her denials by themselves operate as a “reasonable” basis for the decision to place plaintiff back into the building where Toro had unfettered access to her.

Individual defendants are “ ‘shielded from liability for civil damages’ ” under 42 U.S.C. § 1983 if “ ‘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, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); accord Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir.2007). “A right is clearly established if (1) the law is defined with 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) (quoting Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir.1998)).

This Court cannot find the defendants immune from suit on this record. It is well established that the sexual exploitation of prisoners by prison guards amounts to a constitutional violation. See Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir.2000) (“In the simplest and most absolute terms, the Eighth Amendment right of prisoners to be free from sexual abuse was unquestionably clearly established ... and no reasonable prison guard could possibly have believed otherwise.”); Daskalea v. District of Columbia, 227 F.3d 433, 440, 343 U.S.App.D.C. 261 (D.C.Cir.2000) (affirming prisoner’s Eighth Amendment claim after prison guards sexually assaulted her); Berryhill v. Schriro, 137 F.3d 1073,1076 (8th Cir.1998); Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.1998) (“Clearly plaintiffs’ deprivations resulting from the sexual assaults are sufficiently serious to constitute a violation under the Eighth Amendment.”). Cf. Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“Being violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.’ ”) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Given the extent of the alleged sexual abuse, the numerous warning signs alleged, and the number of questionable— if not unintelligible — decisions made with respect to plaintiff during the course of the IG’s investigation, the Court cannot say at this stage of the litigation that Thornton and Rogers are entitled to qualified immunity for their alleged actions.

III. CONCLUSION

Because plaintiff has alleged enough facts to raise a plausible claim to relief against the supervisory officials Thornton and Rogers and they are not entitled to qualified immunity on the basis of the record at this stage of the litigation, the motion by Thornton and Rogers to dismiss the complaint is denied. 
      
      . Count time is time during which all activity stops and essentially all inmates are locked into their cells, and corrections staff verify that no inmates are missing. (Compl. ¶ 23 n. 1.)
     