CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18-cv-12306-CM

Washington et al v. City of New York et al Assigned to: Judge Colleen McMahon Referred to: Magistrate Judge Stewart D. Aaron (Settlement) Cause: 42:1983 Prisoner Civil Rights

Date Filed: 12/28/2018 Date Terminated: 10/21/2019 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Davon Washington

represented by Douglas Edward Lieb Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 (212)-763-5000 Email: dlieb@ecbalaw.com ATTORNEY TO BE NOTICED

Steven H. Goldman Steven Goldman Attorney At Law 190 East 161 Street Bronx, NY 10451 (718)-538-5743 Fax: (718)-410-0590 Email: attorneystevengoldman@gmail.com ATTORNEY TO BE NOTICED

Plaintiff

Katherine R. Rosenfeld Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212-763-5000 Fax: 212-763-5001 Email: krosenfeld@ecbawm.com ATTORNEY TO BE NOTICED

Steven Espinal TERMINATED: 01/30/2019
Plaintiff Pariis Tillery
Plaintiff John Doe TERMINATED: 06/07/2019
Plaintiff Steven Espinal on behalf of himself and all others similarly situated

represented by Douglas Edward Lieb (See above for address) ATTORNEY TO BE NOTICED
Steven H. Goldman (See above for address) ATTORNEY TO BE NOTICED
Katherine R. Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas Edward Lieb (See above for address) ATTORNEY TO BE NOTICED
Steven H. Goldman (See above for address) ATTORNEY TO BE NOTICED
Katherine R. Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas Edward Lieb (See above for address) ATTORNEY TO BE NOTICED
Steven H. Goldman (See above for address) ATTORNEY TO BE NOTICED
Katherine R. Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas Edward Lieb (See above for address) ATTORNEY TO BE NOTICED
Katherine R. Rosenfeld (See above for address) ATTORNEY TO BE NOTICED

V. Defendant City Of New York

represented by Mark David Zuckerman New York City Law Department 100 Church St. New York, NY 10007 212-356-3519 Email: mzuckerm@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Jane Weall New York City Law Department 100 Church Street, 4th Floor New York, NY 10007 212-356-1000 Fax: 212-356-3509 Email: kweall@law.nyc.gov ATTORNEY TO BE NOTICED

Defendant
Cynthia Brann New York City Department of Correction ("DOC") Commissioner

Stephanie Marie Breslow NYC Law Department 100 Church Street Room 3-212 New York, NY 10007 (212)-788-1575 Fax: (212)-788-9776 Email: sbreslow@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Jane Weall (See above for address) ATTORNEY TO BE NOTICED

Defendant

Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED

Brian Sullivan DOC Bureau Chief Brian Sullivan
Defendant Jane Walker DOC Deputy Warden TERMINATED: 01/30/2019 Defendant John Williams DOC Captain TERMINATED: 01/30/2019 Defendant Frank Foes #1-12 DOC Correction Officers TERMINATED: 06/07/2019 Defendant County of Albany

represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori John W. Liguori, Jr., Esq., PLLC 90 State Street Suite 700 Albany Albany, NY 12207 518-407-0022 Fax: 518-694-0527 Email: john@jwlawalbany.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein Office of the Albany County Attorney 112 State Street Ste 6th Floor Albany, NY 12207 518-447-7110 Email: michael.goldstein@albanycountyny.gov ATTORNEY TO BE NOTICED

Defendant Craig D Apple, Sr. Albany County Sheriff
Defendant Michael Lyons Albany County Correctional Facility Superintendent
Defendant Anthony Torrisi Lieutenant
Defendant Mark Valvo Lieutenant
Defendant Frank Foe #13 a.k.a. "Superman" TERMINATED: 06/07/2019

represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY

Defendant Frank Foes #14-16 TERMINATED: 06/07/2019 Defendant "John" Harris Captain TERMINATED: 06/07/2019
Defendant Dan Poole Sergeant
Defendant Michael Grimes Sergeant
Defendant "John" Colangione Sergeant TERMINATED: 06/07/2019
Defendant

represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED

Frank Foes #17-18 TERMINATED: 06/07/2019 Defendant Matthew Labombard Correction Officer
Defendant Josiah Haley Correction Officer
Defendant Michael Beliveau Correction Officer
Defendant Vincent Adams Correction Officer
Defendant

represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED

Joseph Kelly Correction Officer
Defendant William Reddy Correction Officer
Defendant Damien Anzalone Correction Officer
Defendant Ryan Lawson Correction Officer
Defendant Jarred Jarosz Correction Officer

represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein

Defendant Frank Harris Correction Officer TERMINATED: 06/07/2019
Defendant Thuan Ton Correction Officer
Defendant Timothy Kehn Correction Officer
Defendant Trent Shaver Correction Officer
Defendant

(See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED

Eugene Ratigan Correction Officer
Defendant Anthony Degonza Correction Officer
Defendant Kelly Thompson Correction Officer
Defendant Frank Foe Shield #99 Correction Officer TERMINATED: 06/07/2019
Defendant Frank Foe Shield #323 Correction Officer TERMINATED: 06/07/2019
Defendant Frank Foes #19-21 Correction Officer TERMINATED: 06/07/2019

represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John William Liguori (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Melissa "Missy" Mylroie Nurse
Defendant DOC Deputy Warden Sharlisa Walker
Defendant DOC Captain Edward Williams

represented by Robin Bartlett Phelan Phelan, Phelan & Danek, LLP 300 Great Oaks Blvd. Suite 315 Albany, NY 12203 (518)640-6900 Fax: (518)640-6955 Email: robin@ppdlawfirm.com ATTORNEY TO BE NOTICED
Timothy S Brennan Burke, Warren, MacKay & Serritella, P.C 330 N. Wabash Avenue, 22nd Floor Chicago, IL 60611 (518) 862-1386 Fax: (518) 862-1393 Email: tim@ppdlawfirm.com ATTORNEY TO BE NOTICED
Timothy Patrick Tripp Phelan, Phelan & Danek, LLP 300 Great Oaks Blvd. Albany, NY 12203 (518)-640-6900 Fax: (518)-640-6955 Email: tim.tripp@ppdlawfirm.com ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Correction Officer Gregory Lopez
Defendant Captain Patrick Paskett
Defendant Captain Bonar Moise
Defendant Correction Officer Kirklon Morgan
Defendant Correction Officer Belteshazzar Reid
Defendant Correction Officer Te-Art Jackson
Defendant Correction Officer Edwin Lopera
Defendant Correction Officer Courtney Corley
Defendant Correction Officer Aaron Crump
Defendant Correction Officer Robert Mcdonald Jr.
Defendant Correction Officer Yupeng Cai
Defendant

Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED

Lieutenant William Carhart
Defendant Sergeant Anthony Colangione
Defendant Sergeant Sonny Armstrong
Defendant Correction Officer Joseph Moore Defendant Correction Officer Anthony Coppolo
Defendant Captain Frank Harris
Intervenor Correction Officers Benevolent Association

represented by Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Howard Gary Wien Koehler & Isaacs, LLP 61 Broadway, Ste. 2500 New York, NY 10006 917-551-1300 x1331 Fax: 2127914115 Email: hwien@koehler-isaacs.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/28/2018

# Docket Text
1 COMPLAINT against Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, Cynthia Brann, "John" Colangione, County of Albany, Anthony Degonza, Frank Foe #13, Frank Foe Shield #323, Frank Foe Shield #99, Frank Foes #1-12, Frank Foes #14-16, Frank Foes

12/28/2018 12/28/2018 12/28/2018 01/02/2019
01/02/2019
01/02/2019

#17-18, Frank Foes #19-21, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Melissa "Missy" Mylroie, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Brian Sullivan, The City of New York, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo, Jane Walker, John Williams. (Filing Fee $ 400.00, Receipt Number ANYSDC-16116766)Document filed by Steven Espinal, Davon Washington, Pariis Tillery, John Doe.(Rosenfeld, Katherine) (Entered: 12/28/2018)
2 CIVIL COVER SHEET filed. (Rosenfeld, Katherine) (Entered: 12/28/2018)
3 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST As To - REQUEST FOR ISSUANCE OF SUMMONS as to The City of New York, et al., re: 1 Complaint,,,. Document filed by John Doe, Steven Espinal, Pariis Tillery, Davon Washington. (Rosenfeld, Katherine) Modified on 1/2/2019 (pc). (Entered: 12/28/2018)
4 NOTICE OF APPEARANCE by Douglas Edward Lieb on behalf of John Doe, Steven Espinal, Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 12/28/2018)
***NOTICE TO ATTORNEY REGARDING CIVIL. CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Katherine R. Rosenfeld. The following case opening statistical information was erroneously selected/entered: County code New York;. The following correction(s) have been made to your case entry: the County code has been modified to Bronx;. (pc) (Entered: 01/02/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Katherine R. Rosenfeld to RE-FILE Document No. 3 Request for Issuance of Summons,. The filing is deficient for the following reason(s): Write the name of each party listed on the summons on the docket entry. Not 'City of New York, et al.';. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (pc) (Entered: 01/02/2019)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Colleen McMahon. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF

01/02/2019 01/02/2019 01/02/2019 01/02/2019
01/03/2019

Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pc) (Entered: 01/02/2019)
Magistrate Judge Stewart D. Aaron is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pc) (Entered: 01/02/2019)
Case Designated ECF. (pc) (Entered: 01/02/2019)
5 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST As To - REQUEST FOR ISSUANCE OF SUMMONS as to THE CITY OF NEW YORK; NEW YORK, re: 1 Complaint. Document filed by John Doe, Steven Espinal, Pariis Tillery, Davon Washington. (Lieb, Douglas) Modified on 1/2/2019 (pne). (Entered: 01/02/2019)
6 REQUEST FOR ISSUANCE OF SUMMONS as to The City of New York; New York City Department of Correction ("DOC") Commissioner Cynthia Brann; DOC Bureau Chief Brian Sullivan; DOC Deputy Warden "Jane" Walker; DOC Captain "John" Williams; DOC Correction Officers Frank Foes #1-12; County of Albany; Albany County Sheriff Craig D. Apple, Sr.; Albany County Correctional Facility Superintendent Michael Lyons; Lieutenants Anthony Torrisi, Mark Valvo, Frank Foe #13 a.k.a. "Superman," and Frank Foes #14-16; Captain "John" Harris; Sergeants Dan Poole, Michael Grimes, "John" Colangione, and Frank Foes #17-18, Correction Officers Matthew Labombard, Josiah Haley, Michael Beliveau, Vincent Adams, Joseph Kelly, William Reddy, Damien Anzalone, Ryan Lawson, Jarred Jarosz, Frank Harris, Thuan Ton, Timothy Kehn, Trent Shaver, Eugene Ratigan, Anthony Degonza, Kelly Thompson, Frank Foe Shield #99, Frank Foe Shield #323, and Frank Foes #19-21; and Nurse Melissa "Missy" Mylroie, re: 1 Complaint,,,. Document filed by John Doe, Steven Espinal, Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 01/02/2019)
7 ELECTRONIC SUMMONS ISSUED as to Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, Cynthia Brann, City Of New York, "John" Colangione, County of Albany, Anthony Degonza, Frank Foe #13, Frank Foe Shield #323, Frank Foe Shield #99, Frank Foes #1-12, Frank Foes #14-16, Frank Foes #17-18, Frank Foes #19-21, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Melissa "Missy" Mylroie, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Brian Sullivan, Kelly Thompson,

01/03/2019 01/04/2019 01/04/2019 01/08/2019
01/15/2019
01/15/2019

Thuan Ton, Anthony Torrisi, Mark Valvo, Jane Walker, John Williams. (pne) (Entered: 01/03/2019)
8 NOTICE OF APPEARANCE by Steven H. Goldman on behalf of John Doe, Steven Espinal, Pariis Tillery, Davon Washington. (Goldman, Steven) (Entered: 01/03/2019)
9 MOTION to Proceed Anonymously . Document filed by John Doe, Steven Espinal, Pariis Tillery, Davon Washington.(Lieb, Douglas) (Entered: 01/04/2019)
10 MEMORANDUM OF LAW in Support re: 9 MOTION to Proceed Anonymously . . Document filed by John Doe, Steven Espinal, Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 01/04/2019)
11 ORDER SCHEDULING AND INITIAL PRETRIAL CONFERENCE: Initial Conference set for 3/1/2019 at 11:30 AM in Courtroom 24A, 500 Pearl Street, New York, NY 10007 before Judge Colleen McMahon. (Signed by Judge Colleen McMahon on 1/8/2019) (rj) (Entered: 01/08/2019)
12 SUMMONS RETURNED EXECUTED Summons and Complaint,,, served. City Of New York served on 1/7/2019, answer due 1/28/2019. Service was accepted by Ariton Marke. Document filed by Steven Espinal; Davon Washington; Pariis Tillery; John Doe. (Rosenfeld, Katherine) (Entered: 01/15/2019)
13 SUMMONS RETURNED EXECUTED Summons and Complaint,,, served. Vincent Adams served on 1/7/2019, answer due 1/28/2019; Damien Anzalone served on 1/7/2019, answer due 1/28/2019; Craig D Apple, Sr served on 1/7/2019, answer due 1/28/2019; Michael Beliveau served on 1/7/2019, answer due 1/28/2019; "John" Colangione served on 1/7/2019, answer due 1/28/2019; Anthony Degonza served on 1/7/2019, answer due 1/28/2019; Michael Grimes served on 1/7/2019, answer due 1/28/2019; Josiah Haley served on 1/7/2019, answer due 1/28/2019; "John" Harris served on 1/7/2019, answer due 1/28/2019; Frank Harris served on 1/7/2019, answer due 1/28/2019; Jarred Jarosz served on 1/7/2019, answer due 1/28/2019; Timothy Kehn served on 1/7/2019, answer due 1/28/2019; Joseph Kelly served on 1/7/2019, answer due 1/28/2019; Matthew Labombard served on 1/7/2019, answer due 1/28/2019; Ryan Lawson served on 1/7/2019, answer due 1/28/2019; Michael Lyons served on 1/7/2019, answer due 1/28/2019; Dan Poole served on 1/7/2019, answer due 1/28/2019; Eugene Ratigan served on 1/7/2019, answer due 1/28/2019; William Reddy served on 1/7/2019, answer due 1/28/2019; Trent Shaver served on 1/7/2019, answer due 1/28/2019; Kelly Thompson served on 1/7/2019, answer due 1/28/2019; Thuan Ton served on 1/7/2019, answer due 1/28/2019; Anthony Torrisi served on 1/7/2019, answer due 1/28/2019; Mark Valvo served on

01/15/2019 01/15/2019 01/15/2019
01/16/2019 01/17/2019 01/17/2019 01/17/2019

1/7/2019, answer due 1/28/2019. Service was accepted by Michael S. Monteleone, Undersheriff. Service was made by Mail. Document filed by Steven Espinal; Davon Washington; Pariis Tillery; John Doe. (Rosenfeld, Katherine) (Entered: 01/15/2019)
14 SUMMONS RETURNED EXECUTED Summons and Complaint,,, served. County of Albany served on 1/7/2019, answer due 1/28/2019. Service was accepted by Mary Heffner. Document filed by Steven Espinal; Davon Washington; Pariis Tillery; John Doe. (Rosenfeld, Katherine) (Entered: 01/15/2019)
15 SUMMONS RETURNED EXECUTED Summons and Complaint,,, served. Melissa "Missy" Mylroie served on 1/9/2019, answer due 1/30/2019. Service was accepted by Nurse Melissa "Missy" Mylroie (Personally Served). Document filed by Steven Espinal; Davon Washington; Pariis Tillery; John Doe. (Rosenfeld, Katherine) (Entered: 01/15/2019)
16 SUMMONS RETURNED EXECUTED Summons and Complaint,,, served. Cynthia Brann served on 1/7/2019, answer due 1/28/2019; Brian Sullivan served on 1/7/2019, answer due 1/28/2019; Jane Walker served on 1/7/2019, answer due 1/28/2019; John Williams served on 1/7/2019, answer due 1/28/2019. Service was accepted by C.O. 'JOHN' Morgan, Co-Worker of Defendants. Service was made by Mail. Document filed by Steven Espinal; Davon Washington; Pariis Tillery; John Doe. (Rosenfeld, Katherine) (Entered: 01/15/2019)
17 NOTICE OF APPEARANCE by Mark David Zuckerman on behalf of Cynthia Brann, City Of New York. (Zuckerman, Mark) (Entered: 01/16/2019)
18 CONSENT LETTER MOTION for Extension of Time to File Answer or otherwise respond to the complaint addressed to Judge Colleen McMahon from Mark D. Zuckerman dated January 17, 2019. Document filed by Cynthia Brann, City Of New York.(Zuckerman, Mark) (Entered: 01/17/2019)
19 CONSENT LETTER MOTION for Extension of Time to File Response/Reply (Response to motion of plaintiff John Doe to proceed anonymously at Docket 10) addressed to Judge Colleen McMahon from Mark D. Zuckerman dated January 17, 2019. Document filed by Cynthia Brann, City Of New York.(Zuckerman, Mark) (Entered: 01/17/2019)
20 NOTICE OF APPEARANCE by Katherine Jane Weall on behalf of Cynthia Brann, City Of New York. (Weall, Katherine) (Entered: 01/17/2019)

01/17/2019 01/18/2019 01/18/2019 01/22/2019 01/22/2019 01/24/2019
01/24/2019
01/25/2019 01/28/2019

21 ORDER granting 18 Letter Motion for Extension of Time to Answer. Ok. Cynthia Brann answer due 2/25/2019; City Of New York answer due 2/25/2019. (Signed by Judge Colleen McMahon on 1/17/2019) (mml) (Entered: 01/17/2019)
22 NOTICE OF APPEARANCE by Robin Bartlett Phelan on behalf of Melissa "Missy" Mylroie. (Phelan, Robin) (Entered: 01/18/2019)
23 ORDER granting 19 Letter Motion for Extension of Time to File Response/Reply. Granted, Responses due by 1/25/2019 (Signed by Judge Colleen McMahon on 1/17/2019) (cf) (Entered: 01/18/2019)
24 NOTICE OF APPEARANCE by Timothy Patrick Tripp on behalf of Melissa "Missy" Mylroie. (Tripp, Timothy) (Entered: 01/22/2019)
25 RESPONSE to Motion re: 9 MOTION to Proceed Anonymously . . Document filed by Melissa "Missy" Mylroie. (Tripp, Timothy) (Entered: 01/22/2019)
26 NOTICE OF APPEARANCE by John William Liguori on behalf of Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Frank Foe Shield #323, Frank Foe Shield #99, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo. (Liguori, John) (Entered: 01/24/2019)
27 FIRST LETTER MOTION for Extension of Time to File Answer addressed to Judge Colleen McMahon from John Liguori dated 1/24/19. Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Frank Foe Shield #323, Frank Foe Shield #99, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo.(Liguori, John) (Entered: 01/24/2019)
28 RESPONSE to Motion re: 9 MOTION to Proceed Anonymously . . Document filed by Cynthia Brann, City Of New York. (Zuckerman, Mark) (Entered: 01/25/2019)
29 ORDER granting 27 Letter Motion for Extension of Time to Answer. Ok - but it is not clear to me that the claims against the Albany defendants should be litigated in this Court. Vincent Adams answer due 2/25/2019; Damien Anzalone answer due 2/25/2019; Craig D Apple, Sr answer due 2/25/2019; Michael Beliveau answer due 2/25/2019; "John" Colangione

01/28/2019
01/28/2019 01/28/2019 01/28/2019 01/28/2019

answer due 2/25/2019; County of Albany answer due 2/25/2019; Anthony Degonza answer due 2/25/2019; Frank Foe #13 answer due 2/25/2019; Frank Foe Shield #323 answer due 2/25/2019; Frank Foe Shield #99 answer due 2/25/2019; Michael Grimes answer due 2/25/2019; Josiah Haley answer due 2/25/2019; "John" Harris answer due 2/25/2019; Frank Harris answer due 2/25/2019; Jarred Jarosz answer due 2/25/2019; Timothy Kehn answer due 2/25/2019; Joseph Kelly answer due 2/25/2019; Matthew Labombard answer due 2/25/2019; Ryan Lawson answer due 2/25/2019; Michael Lyons answer due 2/25/2019; Dan Poole answer due 2/25/2019; Eugene Ratigan answer due 2/25/2019; William Reddy answer due 2/25/2019; Trent Shaver answer due 2/25/2019; Kelly Thompson answer due 2/25/2019; Thuan Ton answer due 2/25/2019; Anthony Torrisi answer due 2/25/2019; Mark Valvo answer due 2/25/2019. (Signed by Judge Colleen McMahon on 1/28/2019) (mml) (Entered: 01/28/2019)
30 FILING ERROR - PDF ERROR - FIRST AMENDED COMPLAINT amending 1 Complaint,,, against Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, Cynthia Brann, City Of New York, "John" Colangione, County of Albany, Anthony Degonza, Frank Foe #13, Frank Foe Shield #323, Frank Foe Shield #99, Frank Foes #112, Frank Foes #14-16, Frank Foes #17-18, Frank Foes #19-21, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Melissa "Missy" Mylroie, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Brian Sullivan, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo, Jane Walker, John Williams with JURY DEMAND.Document filed by Steven Espinal, Davon Washington, Pariis Tillery, John Doe. Related document: 1 Complaint,,,.(Rosenfeld, Katherine) Modified on 1/29/2019 (jgo). (Entered: 01/28/2019)
31 MOTION for Preliminary Injunction . Document filed by Steven Espinal.(Rosenfeld, Katherine) (Entered: 01/28/2019)
32 MEMORANDUM OF LAW in Support re: 31 MOTION for Preliminary Injunction . . Document filed by Steven Espinal. (Rosenfeld, Katherine) (Entered: 01/28/2019)
33 DECLARATION of Steven Espinal in Support re: 31 MOTION for Preliminary Injunction .. Document filed by Steven Espinal. (Rosenfeld, Katherine) (Entered: 01/28/2019)
34 DECLARATION of Pariis Tillery in Support re: 31 MOTION for Preliminary Injunction .. Document filed by Steven Espinal. (Rosenfeld, Katherine) (Entered: 01/28/2019)

01/28/2019 01/28/2019 01/28/2019 01/28/2019
01/28/2019 01/29/2019 01/29/2019

35 DECLARATION of Dr. Andrea Weisman in Support re: 31 MOTION for Preliminary Injunction .. Document filed by Steven Espinal. (Rosenfeld, Katherine) (Entered: 01/28/2019)
36 DECLARATION of Robert M. Quackenbush in Support re: 31 MOTION for Preliminary Injunction .. Document filed by Steven Espinal. (Attachments: # 1 Exhibit A- Affirmation of Robert M. Quackenbush)(Rosenfeld, Katherine) (Entered: 01/28/2019)
37 DECLARATION of Ruben Dario Fernandez in Support re: 31 MOTION for Preliminary Injunction .. Document filed by Steven Espinal. (Rosenfeld, Katherine) (Entered: 01/28/2019)
38 DECLARATION of Katherine Rosenfeld in Support re: 31 MOTION for Preliminary Injunction .. Document filed by Steven Espinal. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30)(Rosenfeld, Katherine) (Entered: 01/28/2019)
39 LETTER addressed to Judge Colleen McMahon from Katherine Rosenfeld dated January 28, 2019 re: requesting narrowly tailored expedited discovery. Document filed by Steven Espinal. (Attachments: # 1 Exhibit A)(Rosenfeld, Katherine) (Entered: 01/28/2019)
40 MEMO ENDORSEMENT on re: 39 Letter filed by Steven Espinal. ENDORSEMENT: Conference on for 2/8/19 at 10:00 a.m. Participants in Albany may appear by phone by calling Chambers at the specified date and time above. ( Telephone Conference set for 2/8/2019 at 10:00 AM before Judge Colleen McMahon.) (Signed by Judge Colleen McMahon on 1/29/2019) (mro) (Entered: 01/29/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Katherine R. Rosenfeld to REFILE re: Document No. 30 Amended Complaint. The filing is deficient for the following reason(s): all of the parties listed on the pleading were not entered on CM ECF. Add parties Davon Washington with party text 'on behalf of himself and all others similarly situated', Pariis Tillery with party text 'on behalf of himself and all others similarly situated', John Doe with party text 'on behalf of himself and all others similarly situated', Steven Espinal with party text 'on behalf of himself and all others similarly situated', Sharlisa Walker with party text 'DOC Deputy Warden', and, Edward Williams with party text 'DOC Captain'; the wrong

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party/parties whom the pleading is against were selected;. Docket the event type Add Party to Pleading found under the event list Complaints and Other Initiating Documents.. Re-file the pleading using the event type Amended Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (jgo) (Entered: 01/29/2019)
41 FIRST AMENDED COMPLAINT amending 1 Complaint,,, against Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, Cynthia Brann, City Of New York, "John" Colangione, County of Albany, Anthony Degonza, Frank Foe #13, Frank Foe Shield #323, Frank Foe Shield #99, Frank Foes #1-12, Frank Foes #14-16, Frank Foes #17-18, Frank Foes #19-21, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Melissa "Missy" Mylroie, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Brian Sullivan, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo, Sharlisa Walker, Edward Williams with JURY DEMAND.Document filed by Davon Washington, Pariis Tillery, John Doe, Steven Espinal. Related document: 1 Complaint,,,.(Rosenfeld, Katherine) (Entered: 01/29/2019)
42 CONSENT LETTER addressed to Judge Colleen McMahon from Mark D. Zuckerman dated January 29, 2019 re: responses to request for expedited discovery and application for preliminary injunction. Document filed by Cynthia Brann, City Of New York.(Zuckerman, Mark) (Entered: 01/29/2019)
43 MEMO ENDORSEMENT on re: 42 Letter, filed by City Of New York, Cynthia Brann. ENDORSEMENT: Ok. (Signed by Judge Colleen McMahon on 1/30/2019) (mml) (Entered: 01/30/2019)
44 LETTER addressed to Judge Colleen McMahon from Mark D. Zuckerman dated February 5, 2019 re: response to plaintiff's request for expedited discovery at Docket 39 and request to combine briefing on application for preliminary injunction with proposed motion to dismiss. Document filed by Cynthia Brann, City Of New York. (Attachments: # 1 Exhibit A-D)(Zuckerman, Mark) (Entered: 02/05/2019)
45 LETTER addressed to Judge Colleen McMahon from Douglas E. Lieb dated February 6, 2019 re: Response to City Defendants' Request for Consolidated Briefing [Dkt 44]. Document filed by Steven Espinal(on behalf of himself and all others similarly situated ).(Lieb, Douglas) (Entered: 02/06/2019)

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46 MEMO ENDORSEMENT on re: 45 Letter, filed by Steven Espinal. ENDORSEMENT: Look, I do not take letter motions and I do not accept letter briefs in response to motions. So everyone get this straight - if Plaintiff wants to MOVE for expedited discovery MAKE A MOTION WITH ALL SUPPORTING PAPERS. Defendant(s) must RESPOND WITH PROPER PAPERS AND A BRIEF. If I were the City, I would move to dismiss promptly - and in response to the preliminary injunction motion to which a response is due on Feb. 11. (Responses due by 2/11/2019.) (Signed by Judge Colleen McMahon on 2/6/2019) (mml) (Entered: 02/07/2019)
47 ENDORSED LETTER addressed to Counsel from Chief Judge Colleen McMahon dated 2/7/2019 re: The conference must go forward tomorrow. For one thing, I want to know what the City's plans are with respect to moving to dismiss the complaint. For another, I want to explore whether a significant portion of this case does not need to be severed and moved to the Northern District of New York. Cases involving allegation of brutality by corrections officers located in the NDNY are litigated in the NDNY, not in NYC. Adding allegations that the City is somehow responsible for that brutality because it transferred the plaintiffs to Albany knowing that they would/might be abused does not change that. All that means is that there is some overlap is discovery. But I cannot for the life of me see why I should be litigating the conditions in the Albany County Jail down here. (Signed by Judge Colleen McMahon on 2/7/2019) (mml) (Entered: 02/07/2019)
Minute Entry for proceedings held before Judge Colleen McMahon: Initial Pretrial Conference held on 2/8/2019. (All represented Parties present except for Albany County and Def. Mylroie, who appeared by phone).Decision: Status conference held. Defendant Mylroie may have until 2/25/2019 to file her Answer.Submitted by: Kyla Magun. (mde) (Entered: 02/08/2019)
48 MOTION to Dismiss pursuant to Rules 12(b)(1), (6) and (7), Fed. R. Civ. P. and for order to plaintiffs to join State Commission of Correction as defendant. Document filed by Cynthia Brann, City Of New York, Sharlisa Walker, Edward Williams.(Zuckerman, Mark) (Entered: 02/11/2019)
49 DECLARATION of Mark D. Zuckerman in Support re: 48 MOTION to Dismiss pursuant to Rules 12(b)(1), (6) and (7), Fed. R. Civ. P. and for order to plaintiffs to join State Commission of Correction as defendant.. Document filed by Cynthia Brann, City Of New York, Sharlisa Walker, Edward Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I)(Zuckerman, Mark) (Entered: 02/11/2019)

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50 MEMORANDUM OF LAW in Opposition re: 31 MOTION for Preliminary Injunction . . Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo. (Attachments: # 1 Affidavit Declaration of John W. Liguori, Esq., # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Affidavit Declaration of Michael J. Lyons, Superintendent of the Albany County Correctional Facility, # 14 Affidavit Declaration of Lieutenant Ronald Murray)(Liguori, John) (Entered: 02/11/2019)
51 DECLARATION of C.O. Peggy Joseph in Support re: 48 MOTION to Dismiss pursuant to Rules 12(b)(1), (6) and (7), Fed. R. Civ. P. and for order to plaintiffs to join State Commission of Correction as defendant.. Document filed by Cynthia Brann, City Of New York, Sharlisa Walker, Edward Williams. (Attachments: # 1 Exhibit B)(Zuckerman, Mark) (Entered: 02/11/2019)
52 MEMORANDUM OF LAW in Support re: 48 MOTION to Dismiss pursuant to Rules 12(b)(1), (6) and (7), Fed. R. Civ. P. and for order to plaintiffs to join State Commission of Correction as defendant. . Document filed by Cynthia Brann, City Of New York, Sharlisa Walker, Edward Williams. (Zuckerman, Mark) (Entered: 02/11/2019)
53 DECLARATION of Mark D. Zuckerman in Opposition re: 31 MOTION for Preliminary Injunction .. Document filed by Cynthia Brann, City Of New York, Sharlisa Walker, Edward Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I)(Zuckerman, Mark) (Entered: 02/11/2019)
54 DECLARATION of C.O. Peggy Joseph in Opposition re: 31 MOTION for Preliminary Injunction .. Document filed by Cynthia Brann, City Of New York, Sharlisa Walker, Edward Williams. (Attachments: # 1 Exhibit B)(Zuckerman, Mark) (Entered: 02/11/2019)
55 MEMORANDUM OF LAW in Opposition re: 31 MOTION for Preliminary Injunction . . Document filed by Cynthia Brann, City Of New York, Sharlisa Walker, Edward Williams. (Zuckerman, Mark) (Entered: 02/11/2019)
56 CONSENT LETTER MOTION for Extension of Time to File (Modify Briefing Schedule) addressed to Judge Colleen McMahon from Douglas E. Lieb dated February 14, 2019. Document filed by John Doe, Steven

02/15/2019 02/15/2019 02/15/2019
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02/15/2019
02/22/2019

Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington.(Lieb, Douglas) (Entered: 02/14/2019)
57 ORDER granting 56 Letter Motion for Extension of Time to File. We can discuss a stay at the conference. I do not need another motion. See you March 8 at 10:15 AM. (Signed by Judge Colleen McMahon on 2/15/2019) (ne) (Entered: 02/15/2019)
Set/Reset Hearings: Initial Conference set for 3/8/2019 at 10:15 AM before Judge Colleen McMahon. (ne) (Entered: 02/15/2019)
58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P.., MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a). Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo.(Liguori, John) (Entered: 02/15/2019)
59 MEMORANDUM OF LAW in Support re: 58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P.. MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a). . Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo. (Liguori, John) (Entered: 02/15/2019)
60 DECLARATION of John W. Liguori, Esq. in Support re: 58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P.. MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a).. Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo. (Attachments: # 1 Exhibit A)(Liguori, John) (Entered: 02/15/2019)
61 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION to Sever . Document filed by Melissa "Missy" Mylroie. (Attachments: # 1 Declaration in Support of Motion, # 2 Memorandum of Law in

02/22/2019 02/22/2019 02/22/2019 02/25/2019
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Support of Motion, # 3 Affidavit of Service)(Tripp, Timothy) Modified on 3/12/2019 (db). (Entered: 02/22/2019)
62 LETTER addressed to Judge Colleen McMahon from Doug E. Lieb dated February 22, 2019 re: Status of Criminal Charges Against Steven Espinal. Document filed by Steven Espinal.(Lieb, Douglas) (Entered: 02/22/2019)
63 REPLY MEMORANDUM OF LAW in Support re: 31 MOTION for Preliminary Injunction . and in Opposition to The New York City Defendants' Motion to Dismiss [Dkt. No. 48]. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 02/22/2019)
64 DECLARATION of Douglas E. Lieb in Support re: 31 MOTION for Preliminary Injunction .. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Attachments: # 1 Exhibit 1 - Affidavit of Captain Edward Williams)(Lieb, Douglas) (Entered: 02/22/2019)
65 ANSWER to 41 Amended Complaint,,, with JURY DEMAND. Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Frank Foe #13, Frank Foe Shield #323, Frank Foe Shield #99, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo.(Liguori, John) (Entered: 02/25/2019)
66 MOTION to Dismiss (joinder of defendant Brian Sullivan in City defendants' motion to dismiss and for joinder of State Commission of Correction at Docket 48). Document filed by Brian Sullivan.(Zuckerman, Mark) (Entered: 02/25/2019)
67 ANSWER to 41 Amended Complaint,,, with JURY DEMAND. Document filed by Melissa "Missy" Mylroie.(Tripp, Timothy) (Entered: 02/25/2019)
68 RESPONSE to Motion re: 61 MOTION to Sever ., 58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P.. MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a). . Document filed by Cynthia Brann, City Of New York, Brian Sullivan, Sharlisa Walker, Edward Williams. (Zuckerman, Mark) (Entered: 03/01/2019)
69 MEMORANDUM OF LAW in Opposition re: 61 MOTION to Sever ., 58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P..

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MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a). . Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 03/01/2019)
70 DECLARATION of Douglas E. Lieb in Opposition re: 61 MOTION to Sever ., 58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P.. MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a).. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Lieb, Douglas) (Entered: 03/01/2019)
71 DECLARATION of Davon Washington in Opposition re: 61 MOTION to Sever ., 58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P.. MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a).. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 03/01/2019)
72 DECLARATION of Sharon McLaughlin in Opposition re: 61 MOTION to Sever ., 58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P.. MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a).. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 03/01/2019)
73 DECLARATION of Pamela S. Roth, Esq. in Opposition re: 61 MOTION to Sever ., 58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P.. MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a).. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 03/01/2019)
74 ORDER: A conference for this matter is currently scheduled for Friday, March 8, 2019. Due to the fact that there are multiple pending motions, the Court is canceling the upcoming conference. These motions will be given priority, and the conference will be rescheduled when the motions are decided. Discovery is stayed pending the Court's decisions on these motions. (Signed by Judge Colleen McMahon on 3/1/2019) (rro) (Entered: 03/01/2019)
75 REPLY MEMORANDUM OF LAW in Support re: 66 MOTION to Dismiss (joinder of defendant Brian Sullivan in City defendants' motion to dismiss and for joinder of State Commission of Correction at Docket 48)., 48 MOTION to Dismiss pursuant to Rules 12(b)(1), (6) and (7), Fed. R. Civ. P. and for order to plaintiffs to join State Commission of

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Correction as defendant. . Document filed by Cynthia Brann, City Of New York, Brian Sullivan, Sharlisa Walker, Edward Williams. (Zuckerman, Mark) (Entered: 03/06/2019)
76 DECLARATION of Timothy P. Tripp, Esq. in Support re: 61 MOTION to Sever .. Document filed by Melissa "Missy" Mylroie. (Tripp, Timothy) (Entered: 03/06/2019)
77 REPLY MEMORANDUM OF LAW in Support re: 61 MOTION to Sever . . Document filed by Melissa "Missy" Mylroie. (Tripp, Timothy) (Entered: 03/06/2019)
78 REPLY MEMORANDUM OF LAW in Support re: 58 MOTION to Sever pursuant to Rule 21 of the Fed. R. Civ. P.. MOTION to Transfer Case pursuant to 28 U.S.C. 1404(a). . Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo. (Liguori, John) (Entered: 03/06/2019)
79 MEMO ENDORSEMENT on 10 MEMORANDUM OF LAW in Support granting 9 Motion to Proceed Anonymously. ENDORSEMENT: Motion Granted. (Signed by Judge Colleen McMahon on 3/14/2019) (mml) (Entered: 03/15/2019)
80 ORDER ON CITY DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST UNDER THE PLRA with respect to 48 Motion to Dismiss. Therefore, I am severing from the City Defendants' motion to dismiss the discrete issue of failure to exhaust, and I hereby convert that issue, pursuant to Fed. R. Civ. P. 56, to a motion for summary judgment. See also Arnold v. Goetz, 245 F. Supp. 2d 527, 541 (S.D.N.Y. 2003). Officials at Rikers and ACCF have five business days from the date of this opinion to produce to Plaintiffs' counsel relevant records concerning both the existence and particulars of grievance processes at their respective institutions and any record of any filing of any grievance or appeal pursuant to those procedures that relates to the allegations of the Amended Complaint. If the City Defendants wish to depose Plaintiffs on the limited issue of exhaustion, they must so notify the court by Friday, March 22, 2019. Mr. Espinal will be writted into New York County for deposition if one is to be taken - although I gather that he has been deposed in connection with a 50-h hearing. Moving Defendants have five business days after the completion of any depositions, or five business days after the production of records if there are no such depositions, to supplement their motion

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on the issue of exhaustion. Plaintiffs have ten business days thereafter to supplement their response on the issue of exhaustion and availability. Moving Defendants have five business days thereafter to file a reply. All other motions will be held in abeyance pending the resolution of the exhaustion issue. (Signed by Judge Colleen McMahon on 3/15/2019) (mml) (Entered: 03/15/2019)
81 LETTER addressed to Judge Colleen McMahon from Mark D. Zuckerman dated March 19, 2019 re: withdrawal of failure to exhaust administrative remedy defense under PLRA. Document filed by Cynthia Brann, City Of New York, Brian Sullivan, Sharlisa Walker, Edward Williams.(Zuckerman, Mark) (Entered: 03/19/2019)
82 NOTICE OF APPEARANCE by Michael Goldstein on behalf of Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo. (Goldstein, Michael) (Entered: 03/20/2019)
83 LETTER addressed to Judge Colleen McMahon from John Ligouri dated 3/20/2019 re: PLRA. Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo.(Liguori, John) (Entered: 03/20/2019)
84 MEMO ENDORSEMENT on re: 83 Letter,, filed by Matthew Labombard, Kelly Thompson, Frank Harris, Damien Anzalone, Mark Valvo, Dan Poole, "John" Harris, Vincent Adams, Michael Lyons, Eugene Ratigan, Michael Grimes, Joseph Kelly, Jarred Jarosz, "John" Colangione, Anthony Degonza, Josiah Haley, Michael Beliveau, Craig D Apple, Sr., William Reddy, Thuan Ton, Timothy Kehn, Ryan Lawson, Trent Shaver, Anthony Torrisi, County of Albany. ENDORSEMENT: We are moving forward with the remaining motions. (Signed by Judge Colleen McMahon on 3/26/2019) (ks) Modified on 3/27/2019 (ks). (Entered: 03/27/2019)
85 LETTER addressed to Judge Colleen McMahon from Katherine Rosenfeld dated March 28, 2019 re: Espinal Sentencing and Pending Motions. Document filed by Steven Espinal(on behalf of himself and all others similarly situated ).(Rosenfeld, Katherine) (Entered: 03/28/2019)

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86 MOTION to Certify Class . Document filed by Steven Espinal(on behalf of himself and all others similarly situated ).(Rosenfeld, Katherine) (Entered: 03/28/2019)
87 DECLARATION of Katherine Rosenfeld in Support re: 86 MOTION to Certify Class .. Document filed by Steven Espinal(on behalf of himself and all others similarly situated ). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Rosenfeld, Katherine) (Entered: 03/28/2019)
88 MEMORANDUM OF LAW in Support re: 86 MOTION to Certify Class . . Document filed by Steven Espinal(on behalf of himself and all others similarly situated ). (Rosenfeld, Katherine) (Entered: 03/28/2019)
89 MEMO ENDORSEMENT on re: 85 Letter filed by Steven Espinal. ENDORSEMENT: We are working on all the pending motions. (Signed by Judge Colleen McMahon on 4/1/2019) (mml) (Entered: 04/01/2019)
90 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 86 MOTION to Certify Class . addressed to Judge Colleen McMahon from Mark D. Zuckerman dated April 3, 2019. Document filed by Cynthia Brann, City Of New York, Brian Sullivan, Sharlisa Walker, Edward Williams.(Zuckerman, Mark) (Entered: 04/03/2019)
91 LETTER addressed to Judge Colleen McMahon from Mark D. Zuckerman dated April 4, 2019 re: the plaintiff Steven Espinal's transfer to state custody and mootness of his preliminary injunction application. Document filed by Cynthia Brann, City Of New York, Brian Sullivan, Sharlisa Walker, Edward Williams.(Zuckerman, Mark) (Entered: 04/04/2019)
92 ORDER terminating 90 Letter Motion for Extension of Time to File Response/Reply. I will not be considering the class certification motion anytime soon - certainly not in connection with the other motions, to which we are working. So take as much time as you like. Certainly there is no reason to respond until you have your decision on the pending motions. (Signed by Judge Colleen McMahon on 4/3/2019) (mml) (Entered: 04/04/2019)
93 RESPONSE re: 91 Letter, re: Plaintiff Steven Espinal's Transfer to State Custody and Mootness of His Preliminary Injunction Application. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Rosenfeld, Katherine) (Entered: 04/09/2019)

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94 DECISION AND ORDER ON THE CITY DEFENDANTS' MOTION TO DISMISS, THE ALBANY DEFENDANTS' MOTION TO SEVER, AND PLAINTIFF ESPINAL'S MOTION FOR A PRELIMINARY INJUNCTION denying 31 Motion for Preliminary Injunction; denying 48 Motion to Dismiss; denying without prejudice 58 Motion to Sever; denying without prejudice 58 Motion to Transfer Case; denying without prejudice 61 Motion to Sever; denying 66 Motion to Dismiss. For the above reasons, the City Defendants' Motion to Dismiss is DENIED. The Albany Defendants' Motion to Sever and Transfer and Defendant Mylroie's Motion to Sever are DENIED without prejudice. Plaintiff Steven Espinal's Motion for a Preliminary Injunction is DENIED. The Clerk of Court is respectfully directed to terminate the motion at Docket Numbers 31, 48, 58, 61 & 66 from the list of open motions. (Signed by Judge Colleen McMahon on 4/30/2019) (mml) Modified on 5/1/2019 (mml). (Entered: 04/30/2019)
95 ENDORSED LETTER addressed to Laura Birger, Esq., Stephen D. Clymer, Esq., The Hon. Cyrus Vance, The Hon. Richard A. Brown, The Hon. P. David Soares from Chief Judge Colleen McMahon dated 5/3/2019 re: Attached to this letter you will find a copy of the First Amended Complaint filed in this court in the civil action styled Davon Washington el al., v. The City of New York, et al., 18 Civ. 12306 (CM). Earlier this week, I entered a decision and order denying motions to dismiss, sever or transfer this action. I am of the opinion of this court that certain matters alleged in the attached pleading, which contains serious allegations of the deliberate abuse of youthful pre-trial detainees, should be investigated by law enforcement. I emphasize that this court has yet to make any findings about the veracity of these allegations. The civil action presently pending before me is at a preliminary stage, and the allegations of the complaint -- which had to be presumed true for purposes of the recently-decided motions -- have not yet been tested in the cauldron of pre-trial discovery. However, some of the allegations in the attached pleading concerning the treatment of the four named defendants - particularly, though not exclusively, those relating to their treatment at the Albany County Correctional Facility - are of such seriousness that I believe they should be investigated at the earliest opportunity. Hence I am making this referral at an earlier stage that I might otherwise. I thank you for your attention to this matter. (Signed by Judge Colleen McMahon on 5/3/2019) Copies Mailed By Chambers. (mml) (Entered: 05/03/2019)
96 CONSENT LETTER MOTION for Extension of Time to File Answer and to adopt briefing schedule on motion for class certification addressed to Judge Colleen McMahon from Mark D. Zuckerman dated May 7, 2019. Document filed by Cynthia Brann, City

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05/31/2019

Of New York, Brian Sullivan, Sharlisa Walker, Edward Williams.(Zuckerman, Mark) (Entered: 05/07/2019)
97 ORDER: granting 96 Letter Motion for Extension of Time to Answer. OK. Cynthia Brann answer due 6/28/2019; City Of New York answer due 6/28/2019; Brian Sullivan answer due 6/28/2019; Sharlisa Walker answer due 6/28/2019; Edward Williams answer due 6/28/2019. (Signed by Judge Colleen McMahon on 5/07/2019) (ama) (Entered: 05/07/2019)
Set/Reset Deadlines: Responses due by 5/31/2019 Replies due by 6/21/2019. (ama) (Entered: 05/07/2019)
98 JOINT LETTER addressed to Judge Colleen McMahon from Douglas E. Lieb dated May 16, 2019 re: Proposed Case Management Plan. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Attachments: # 1 Text of Proposed Order)(Lieb, Douglas) (Entered: 05/16/2019)
99 CIVIL CASE MANAGEMENT PLAN: This case is to be tried to a jury. Discovery pursuant to Fed. R. Civ. P. 26(a) shall be exchanged by 6/7/2019. Amended Pleadings due by 8/30/2019. Joinder of Parties due by 8/30/2019. Deposition due by 9/30/2019. Fact Discovery due by 1/16/2020. Expert Discovery due by 4/30/2020. Discovery due by 4/30/2020. Pretrial Order due by 6/30/2020. The parties may at any time consent to have this case tried before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Signed by Judge Colleen McMahon on 5/26/2019) (mml) (Entered: 05/16/2019)
100 DECLARATION of Timothy P. Tripp in Opposition re: 86 MOTION to Certify Class .. Document filed by Melissa "Missy" Mylroie. (Tripp, Timothy) (Entered: 05/31/2019)
101 DECLARATION of John W. Liguori in Opposition re: 86 MOTION to Certify Class .. Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, "John" Colangione, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, "John" Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo. (Goldstein, Michael) (Entered: 05/31/2019)
102 DECLARATION of Mark D. Zuckerman in Opposition re: 86 MOTION to Certify Class .. Document filed by City Of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit C)(Zuckerman, Mark) (Entered: 05/31/2019)

05/31/2019 05/31/2019 05/31/2019 06/03/2019 06/03/2019
06/03/2019 06/04/2019 06/05/2019

103 DECLARATION of C.O. Peggy Joseph in Opposition re: 86 MOTION to Certify Class .. Document filed by City Of New York. (Attachments: # 1 Exhibit B)(Zuckerman, Mark) (Entered: 05/31/2019)
104 DECLARATION of Kenneth Stukes in Opposition re: 86 MOTION to Certify Class .. Document filed by City Of New York. (Zuckerman, Mark) (Entered: 05/31/2019)
105 MEMORANDUM OF LAW in Opposition re: 86 MOTION to Certify Class . . Document filed by City Of New York. (Zuckerman, Mark) (Entered: 05/31/2019)
106 MOTION to Intervene . Document filed by Correction Officers Benevolent Association.(Wien, Howard) (Entered: 06/03/2019)
107 AFFIRMATION of Howard Wien Esq in Support re: 106 MOTION to Intervene .. Document filed by Correction Officers Benevolent Association. (Attachments: # 1 Exhibit Exhibit A)(Wien, Howard) (Entered: 06/03/2019)
108 MEMORANDUM OF LAW in Support re: 106 MOTION to Intervene . . Document filed by Correction Officers Benevolent Association. (Wien, Howard) (Entered: 06/03/2019)
109 NOTICE OF APPEARANCE by Stephanie Marie Breslow on behalf of Cynthia Brann, City Of New York, Brian Sullivan, Sharlisa Walker, Edward Williams. (Breslow, Stephanie) (Entered: 06/04/2019)
110 FILING ERROR - DEFICIENT PLEADING - FILED AGAINST PARTY ERROR SECOND AMENDED COMPLAINT amending 41 Amended Complaint against Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Michael Beliveau, Cynthia Brann, City Of New York, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Melissa "Missy" Mylroie, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Brian Sullivan, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo, Sharlisa Walker, Edward Williams, Gregory Lopez, Patrick Paskett, Bonar Moise, Kirklon Morgan, Belteshazzar Reid, Te-Art Jackson, Edwin Lopera, Courtney Corley, Aaron Crump, Robert Mcdonald Jr., Yupeng Cai, William Carhart, Anthony Colangione, Sonny Armstrong, Joseph Moore, Anthony Coppolo with JURY DEMAND.Document filed by Davon Washington, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, John Doe. Related document: 41 Amended Complaint.(Lieb, Douglas) Modified on 6/6/2019 (sj). (Entered: 06/05/2019)

06/05/2019 06/06/2019 06/06/2019 06/06/2019

111 REQUEST FOR ISSUANCE OF SUMMONS as to Captain Patrick Paskett; Captain Bonar Moise; C.O. Kirklon Morgan; C.O. Belteshazzar Reid; C.O. Te-Art Jackson; C.O. Edwin Lopera; C.O. Courtney Corley; C.O. Aaron Crump; C.O. Robert McDonald, Jr.; C.O. Yupeng Cai; Lieutenant William Carhart; Captain Frank Harris; Sergeant Anthony Colangione; Sergeant Sonny Armstrong; C.O. Joseph Moore; C.O. Anthony Coppolo, re: 110 Amended Complaint,,,,. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 06/05/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Douglas Edward Lieb to RE-FILE re: Document No. 110 Amended Complaint. The filing is deficient for the following reason(s): all of the parties listed on the pleading were not entered on CM ECF; the wrong party/parties whom the pleading is against were selected; Frank Harris must be added in capacity of Captain. Docket the event type Add Party to Pleading found under the event list Complaints and Other Initiating Documents. Re-file the pleading using the event type Amended Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (sj) (Entered: 06/06/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Douglas Edward Lieb to RE-FILE Document No. 111 Request for Issuance of Summons. The filing is deficient for the following reason(s): The summons requested was not processed due to the deficient pleading. Please file your request for summons when you correct and refile your pleading. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (sj) (Entered: 06/06/2019)
112 SECOND AMENDED COMPLAINT amending 41 Amended Complaint,,, against Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Sonny Armstrong, Michael Beliveau, Cynthia Brann, Yupeng Cai, William Carhart, City Of New York, Anthony Colangione, Anthony Coppolo, Courtney Corley, County of Albany, Aaron Crump, Anthony Degonza, Michael Grimes, Josiah Haley, Te-Art Jackson, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Edwin Lopera, Gregory Lopez, Michael Lyons, Robert Mcdonald Jr., Bonar Moise, Joseph Moore, Kirklon Morgan, Melissa "Missy" Mylroie, Patrick Paskett, Dan Poole, Eugene Ratigan, William Reddy, Belteshazzar Reid, Trent Shaver, Brian Sullivan, Kelly Thompson,

06/06/2019
06/07/2019 06/10/2019 06/10/2019 06/12/2019 06/17/2019 06/18/2019

Thuan Ton, Anthony Torrisi, Mark Valvo, Sharlisa Walker, Edward Williams, Frank Harris with JURY DEMAND.Document filed by Davon Washington, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, John Doe. Related document: 41 Amended Complaint,,,.(Lieb, Douglas) (Entered: 06/06/2019)
113 REQUEST FOR ISSUANCE OF AMENDED SUMMONS as to Captain Patrick Paskett; Captain Bonar Moise; C.O. Kirklon Morgan; C.O. Belteshazzar Reid; C.O. Te-Art Jackson; C.O. Edwin Lopera; C.O. Courtney Corley; C.O. Aaron Crump; C.O. Robert McDonald, Jr.; C.O. Yupeng Cai; Lieutenant William Carhart; Captain Frank Harris; Sergeant Anthony Colangione; Sergeant Sonny Armstrong; C.O. Joseph Moore; C.O. Anthony Coppolo, re: 112 Amended Complaint,,,,. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Lieb, Douglas) (Entered: 06/06/2019)
114 ELECTRONIC SUMMONS ISSUED as to Sonny Armstrong, Yupeng Cai, William Carhart, Anthony Colangione, Anthony Coppolo, Courtney Corley, Aaron Crump, Frank Harris, Te-Art Jackson, Edwin Lopera, Robert Mcdonald Jr., Bonar Moise, Joseph Moore, Kirklon Morgan, Patrick Paskett, Belteshazzar Reid. (sj) (Entered: 06/07/2019)
115 CONSENT LETTER MOTION to Stay as to defendant C.O. Gregory Lopez only addressed to Judge Colleen McMahon from Mark D. Zuckerman dated June 10, 2019. Document filed by City Of New York.(Zuckerman, Mark) (Entered: 06/10/2019)
116 LETTER addressed to Judge Colleen McMahon from Mark D. Zuckerman dated June 10, 2019 re: City's position on motion to intervene at Docket 106 by COBA. Document filed by City Of New York.(Zuckerman, Mark) (Entered: 06/10/2019)
117 ORDER granting 115 Letter Motion to Stay. OK. (Signed by Judge Colleen McMahon on 6/12/2019) (mro) (Entered: 06/12/2019)
118 MEMORANDUM OF LAW in Opposition re: 106 MOTION to Intervene . . Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Rosenfeld, Katherine) (Entered: 06/17/2019)
119 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 86 MOTION to Certify Class . addressed to Judge Colleen McMahon from Douglas E. Lieb dated June 18, 2019. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington.(Lieb, Douglas) (Entered: 06/18/2019)

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120 ORDER granting 119 Letter Motion for Extension of Time to File Response/Reply. Ok. Replies due by 7/3/2019. (Signed by Judge Colleen McMahon on 6/18/2019) (mro) (Entered: 06/18/2019)
121 ANSWER to 112 Amended Complaint,,,, with JURY DEMAND. Document filed by Melissa "Missy" Mylroie. (Attachments: # 1 Affidavit of Service)(Tripp, Timothy) (Entered: 06/19/2019)
122 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Bonar Moise served on 6/10/2019, answer due 7/1/2019. Service was accepted by Captain Bonar Moise. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
123 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Frank Harris served on 6/10/2019, answer due 7/1/2019. Service was accepted by William M. Rice, Chief Deputy. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
124 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Patrick Paskett served on 6/10/2019, answer due 7/1/2019. Service was accepted by A.D.W. Mitton. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
125 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Aaron Crump served on 6/11/2019, answer due 7/2/2019. Service was accepted by A.D.W. Mitton. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
126 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Anthony Coppolo served on 6/11/2019, answer due 7/2/2019. Service was accepted by William M. Rice, Chief Deputy. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
127 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Belteshazzar Reid served on 6/11/2019, answer due 7/2/2019. Service was accepted by A.D.W. Mitton. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf

06/24/2019 06/24/2019 06/24/2019 06/24/2019 06/24/2019 06/24/2019 06/24/2019

of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
128 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Courtney Corley served on 6/11/2019, answer due 7/2/2019. Service was accepted by A.D.W. Mitton. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
129 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Edwin Lopera served on 6/11/2019, answer due 7/2/2019. Service was accepted by A.D.W. Mitton. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
130 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Joseph Moore served on 6/11/2019, answer due 7/2/2019. Service was accepted by William M. Rice, Chief Deputy. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
131 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Kirklon Morgan served on 6/11/2019, answer due 7/2/2019. Service was accepted by A.D.W. Mitton. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
132 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Robert Mcdonald Jr. served on 6/11/2019, answer due 7/2/2019. Service was accepted by A.D.W. Mitton. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
133 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Te-Art Jackson served on 6/11/2019, answer due 7/2/2019. Service was accepted by A.D.W. Mitton. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
134 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Yupeng Cai served on 6/11/2019, answer due 7/2/2019. Service was accepted by A.D.W. Mitton. Service was made by

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06/27/2019

Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
135 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. William Carhart served on 6/11/2019, answer due 7/2/2019. Service was accepted by William M. Rice, Chief Deputy. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
136 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Anthony Colangione served on 6/10/2019, answer due 7/1/2019. Service was accepted by William M. Rice, Chief Deputy. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
137 SUMMONS RETURNED EXECUTED Summons and Amended Complaint,,,, served. Sonny Armstrong served on 6/10/2019, answer due 7/1/2019. Service was accepted by William M. Rice, Chief Deputy. Service was made by Mail. Document filed by Davon Washington; Steven Espinal(on behalf of himself and all others similarly situated ); Pariis Tillery; John Doe. (Lieb, Douglas) (Entered: 06/24/2019)
138 REPLY MEMORANDUM OF LAW in Support re: 106 MOTION to Intervene . . Document filed by Correction Officers Benevolent Association. (Wien, Howard) (Entered: 06/24/2019)
139 LETTER MOTION to Stay and request for reference to assigned Magistrate Judge for Settlement addressed to Judge Colleen McMahon from Mark D. Zuckerman dated June 26, 2019. Document filed by City Of New York.(Zuckerman, Mark) (Entered: 06/26/2019)
140 ANSWER to 112 Amended Complaint,,,, with JURY DEMAND. Document filed by Vincent Adams, Damien Anzalone, Craig D Apple, Sr, Sonny Armstrong, Michael Beliveau, William Carhart, Anthony Colangione, Anthony Coppolo, County of Albany, Anthony Degonza, Michael Grimes, Josiah Haley, Frank Harris, Frank Harris, Jarred Jarosz, Timothy Kehn, Joseph Kelly, Matthew Labombard, Ryan Lawson, Michael Lyons, Dan Poole, Eugene Ratigan, William Reddy, Trent Shaver, Kelly Thompson, Thuan Ton, Anthony Torrisi, Mark Valvo.(Goldstein, Michael) (Entered: 06/27/2019)
141 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Stewart D. Aaron.

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(Signed by Judge Colleen McMahon on 6/27/2019) (ne) (Entered: 06/27/2019)
142 MEMO ENDORSEMENT on re: 139 LETTER MOTION to Stay and request for reference to assigned Magistrate Judge for Settlement addressed to Judge Colleen McMahon from Mark D. Zuckerman dated June 26, 2019 filed by City Of New York. ENDORSEMENT: Ok. (Signed by Judge Colleen McMahon on 6/27/2019) (ne) (Entered: 06/27/2019)
Case Stayed (ne) (Entered: 09/16/2019)
143 ORDER SCHEDULING SETTLEMENT CONFERENCE: A settlement conference is scheduled before Magistrate Judge Stewart Aaron on Tuesday, July 16, 2019 at 10:00 a.m. in Courtroom 11C, United States Courthouse, 500 Pearl Street, New York, NY 10007. The parties must comply with the Settlement Conference Procedures for Magistrate Judge Stewart D. Aaron, available at http://www.nysd.uscourts.gov/judge/Aaron. SO ORDERED. (Settlement Conference set for 7/16/2019 at 10:00 AM in Courtroom 11C, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Stewart D. Aaron.) (Signed by Magistrate Judge Stewart D. Aaron on 6/28/2019) (kl) (Entered: 06/28/2019)
144 REQUEST TO PARTICIPATE . Document filed by Correction Officers Benevolent Association.(Wien, Howard) (Entered: 07/05/2019)
145 ORDER re: 144 Request to Participate filed by Correction Officers Benevolent Association: No later than Tuesday, July 9, 2019, counsel for each of the Plaintiffs and Defendants shall file a letter advising the Court: (1) whether they consent to the participation of the COBA and its counsel in the settlement conference; (2) what limitations, if any, they seek in the participation of the COBA and its counsel; (3) if they do not consent, the reasons for their lack of consent; and (4) if they seek limitations in COBA's participation, the reasons for such limitations. (Signed by Magistrate Judge Stewart D. Aaron on 7/6/19) (Aaron, Stewart) (Entered: 07/06/2019)
146 LETTER addressed to Magistrate Judge Stewart D. Aaron from Mark D. Zuckerman dated July 9, 2018 re: response to COBA's request to participate at Docket 144. Document filed by City Of New York.(Zuckerman, Mark) (Entered: 07/09/2019)
147 RESPONSE re: 144 Request to Participate . Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Rosenfeld, Katherine) (Entered: 07/09/2019)

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07/10/2019

148 LETTER addressed to Magistrate Judge Stewart D. Aaron from Timothy P. Tripp dated July 9, 2019 re: Response to COBA's request to participate Docket 144. Document filed by Melissa "Missy" Mylroie.(Tripp, Timothy) (Entered: 07/09/2019)
149 RESPONSE re: 145 Order,, . Document filed by County of Albany. (Goldstein, Michael) (Entered: 07/09/2019)
150 ORDER re: 144 Request to Participate filed by Correction Officers Benevolent Association: COBA's request to participate in the settlement conference is DENIED. COBA is not a party to the case and none of the parties consents to its participation. (Signed by Magistrate Judge Stewart D. Aaron on 7/9/19) (Text Only Order) (Aaron, Stewart) (Entered: 07/09/2019)
151 LETTER addressed to Magistrate Judge Stewart D. Aaron from Douglas E. Lieb dated July 9, 2019 re: Participation of Clients in Settlement Conference. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington.(Lieb, Douglas) (Entered: 07/09/2019)
152 ORDER: The Warden or other official in charge of the available in a suitable location within the Facility that is equipped with a telephone for a confidential legal phone call at 3:30 on July 16, 2019. If the scheduled time and date presents a hardship, the Warden or the Warden's designee should promptly inform Chambers by calling Law Clerk Amanda Raines at (212) 805-0274. Plaintiffs' counsel shall: (1) send this Order to the Warden of Facility immediately; and (2) contact the Facility to arrange the call and determine the telephone number at which the plaintiff will be reachable at the above time and date. SO ORDERED. (Telephone Conference set for 7/16/2019 at 03:30 PM before Magistrate Judge Stewart D. Aaron.) (Signed by Magistrate Judge Stewart D. Aaron on 7/10/2019) (js) (Entered: 07/10/2019)
153 ORDER: IT IS HEREBY ORDERED THAT: The Warden or other official in charge of the George R. Vierno Center of the New York City Department of Correction (DOC) make Davon Washington (B&C: 3491902665) available in a suitable location within the George R. Vierno Center Facility that is equipped with a telephone for a confidential legal phone call at 3:00 pm on July 16, 2019. If the scheduled time and date presents a hardship, the Warden or the Warden's designee should promptly inform Chambers by calling Law Clerk Amanda Raines at (212) 805-0274. The Warden or other official in charge of the North Infirmary Command of DOC make Parties Tillery (B&C: 1411701882) available in a suitable location within the North Infirmary Command Facility that is equipped with a telephone for a confidential legal phone call at 3:00 pm on July 16, 2019. If the

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scheduled time and date presents a hardship, the Warden or the Warden's designee should promptly inform Chambers by calling Law Clerk Amanda Raines at (212) 805-0274. The Warden or other official in charge of the Wende Correctional Facility make Steven Espinal (DIN #19A1253) available in a suitable location within the Wende Correctional Facility that is equipped with a telephone for a confidential legal phone call at 3:30 pm on July 16, 2019. If the scheduled time and date presents a hardship, the Warden or the Warden's designee should promptly inform Chambers by calling Law Clerk Amanda Raines at (212) 805-0274. Plaintiffs' counsel shall: (1) send this Order to the respective Wardens immediately; and (2) contact each of the facilities to arrange the calls and determine the telephone numbers at which the plaintiffs will be reachable at the above times and dates. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 7/10/2019) (js) Modified on 7/12/2019 (js). (Entered: 07/10/2019)
154 LETTER addressed to Magistrate Judge Stewart D. Aaron from Mark D. Zuckerman dated July 11, 2019 re: order allowing use of cellphone for settlement conference of July 16, 2019. Document filed by City Of New York.(Zuckerman, Mark) (Entered: 07/11/2019)
155 LETTER addressed to Magistrate Judge Stewart D. Aaron from Michael Goldstein dated 7/12/19 re: settlement conference. Document filed by County of Albany.(Goldstein, Michael) (Entered: 07/12/2019)
156 MEMO ENDORSEMENT on re: 155 Letter filed by County of Albany. I am an Assistant County Attorney with the Albany County Department of Law representing the Albany County Defendants in this matter. I write respectfully seeking an order allowing myself, Daniel Lynch, the Albany County Attorney, and Michael Monteleone, Undersheriff, to bring our cellphones into the courthouse for use at the settlement conference on July 16, 2019 at 10:00 a.m. ENDORSEMENT: Any party seeking a Device Order from the Court should first fill out the form found at http://www.nysd.uscourts.gov/file/forms/standing- orderelectronic-devices-form and provide it to chambers by e-mail at Aaron_NYSDChambers@nysd.uscourts.gov for signature. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 7/12/2019) (js) (Entered: 07/12/2019)
157 NOTICE OF APPEARANCE by Timothy S Brennan on behalf of Melissa "Missy" Mylroie. (Brennan, Timothy) (Entered: 07/15/2019)
158 SEALED DOCUMENT placed in vault.(mhe) (Entered: 07/16/2019)
Minute Entry for proceedings held before Magistrate Judge Stewart D. Aaron: Settlement Conference held on 7/16/2019. (kl) (Entered: 07/17/2019)

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159 ORDER: The settlement conference which began on July 16, 2019 is scheduled to continue before Magistrate Judge Stewart Aaron on Monday, August 19, 2019 at 10:00 a.m. in Courtroom 11C, United States Courthouse, 500 Pearl Street, New York, NY 10007. (Settlement Conference set for 8/19/2019 at 10:00 AM in Courtroom 11C, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Stewart D. Aaron.) (Signed by Magistrate Judge Stewart D. Aaron on 7/17/2019) (js) (Entered: 07/17/2019)
160 JOINT LETTER MOTION for Extension of Time (Extend Stay of Proceedings) addressed to Judge Colleen McMahon from Douglas E. Lieb dated July 25, 2019. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington.(Lieb, Douglas) (Entered: 07/24/2019)
161 ORDER granting 160 Letter Motion for Extension of Time. Request granted. Stay extended to 8/23/2019. (Signed by Judge Colleen McMahon on 7/25/2019) (mml) (Entered: 07/25/2019)
Minute Entry for proceedings held before Magistrate Judge Stewart D. Aaron: Settlement Conference held on 8/19/2019. (kl) (Entered: 08/20/2019)
162 JOINT LETTER addressed to Judge Colleen McMahon from Douglas E. Lieb dated August 22, 2019 re: Continued Stay for Settlement Purposes. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington.(Lieb, Douglas) (Entered: 08/22/2019)
163 MEMO ENDORSEMENT on 162 Joint Letter. ENDORSEMENT: Action stayed until September 23. This is an excellent result. (Signed by Judge Colleen McMahon on 8/23/2019) (mml) (Entered: 08/23/2019)
164 JOINT LETTER MOTION to Stay (continue stay through October 7, 2019) addressed to Judge Colleen McMahon from Mark D. Zuckerman dated September 20, 2019. Document filed by Cynthia Brann, City Of New York, Brian Sullivan, Sharlisa Walker, Edward Williams.(Zuckerman, Mark) (Entered: 09/20/2019)
165 ORDER granting 164 Letter Motion to Stay. OK. (Signed by Judge Colleen McMahon on 9/20/2019) (mro) (Entered: 09/20/2019)
166 JOINT LETTER addressed to Judge Colleen McMahon from Douglas E. Lieb dated October 18, 2019 re: Settlement. Document filed by John Doe, Steven Espinal(on behalf of himself and all others similarly situated ), Pariis Tillery, Davon Washington. (Attachments: # 1 Text of Proposed Order - Stipulation & Order of Dismissal)(Lieb, Douglas) (Entered: 10/18/2019)

10/21/2019 10/21/2019

167 STIPULATION AND ORDER OF DISMISSAL : NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, that l. The above-referenced action is hereby dismissed with prejudice; and 2. Notwithstanding the dismissal of this action in accordance with this agreement, the District Court shall continue to maintain jurisdiction over this action for the purpose of enforcing the terms of paragraphs "1"-"10" and "19"-"26" of the Stipulation of Settlement executed by the parties in this matter. (Signed by Judge Colleen McMahon on 10/21/2019) (mml) (Entered: 10/21/2019)
168 STIPULATION OF SETTLEMENT: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows: 1. The above-referenced action is hereby dismissed against defendants, with prejudice, and without costs, expenses, or attorneys' fees except as specified in paragraphs 2 through 10 below. 2. Defendant City of New York hereby agrees to pay plaintiff Davon Washington the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys' fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraphs 11-12 herein, in full satisfaction of all claims, including claims for costs, expenses and attorneys' fees. 3. Defendant City of New York hereby agrees to pay plaintiff John Doe the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys' fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraphs 11-12 herein, in full satisfaction of all claims, including claims for costs, expenses and attorneys' fees. 4. Defendant City of New York hereby agrees to pay plaintiff Pariis Tillery the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys' fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraphs 11-12 herein, in full satisfaction of all claims, including claims for costs, expenses and attorneys' fees. 5. The County of Albany hereby agrees to pay plaintiff Davon Washington the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys' fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraph 16, in full satisfaction of all claims, including claims for costs, expenses and attorneys' fees. 6. The County of Albany hereby agrees to pay plaintiff John Doe the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys' fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraph 16, in full satisfaction of all claims, including claims for costs, expenses and attorneys' fees. 7. The County of Albany hereby agrees to pay plaintiff Pariis Tillery the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys' fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraph 16, in full satisfaction of all claims, including claims for costs, expenses and attorneys' fees. 8. Defendant County of

Albany hereby agrees to pay plaintiff Steven Espinal the sum of Two Hundred Twenty Thousand ($220,000.00) Dollars, plus his pro rata share of attorneys' fees to be paid by the County of Albany as set forth in paragraph 9 herein, and to provide the relief set forth in paragraphs set forth in paragraph 16, in full satisfaction of all claims, including claims for costs, expenses and attorneys' fees. 9. Defendant City of New York hereby agrees to pay plaintiffs the total sum of Two Hundred Thousand Dollars ($200,000) and the County of Albany agrees to pay plaintiffs the total sum of One Hundred Thousand Dollars ($100,000) in full satisfaction of any costs, expenses and attorneys' fees. 10. Defendant Nurse Melissa "Missy" Mylorie agrees to pay plaintiffs the total sum of Ten Thousand ($10,000) in full satisfaction of all claims, including claims for costs, expenses and attorneys' fees. 11. The City of New York agrees that it will not seek substitute jail orders to transfer any inmates in the custody of the New York City Department of Correction ("DOC") to the Albany County Correctional Facility from the date of execution of this agreement through December 31, 2021, inclusive. 12. The City of New York agrees that each and every DOC inmate transferred outside of the City of New York upon a substitute jail order shall, after the inmate is safely secured in the vehicle transporting him/her, be provided in the vehicle before it departs with a written "notice" of transfer, as further set forth in this order. SO ORDERED. (Signed by Chief Judge Colleen McMahon on 10/21/2019) (mml) (Entered: 10/21/2019)

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 Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 1 of 101

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DAVON WASHINGTON, STEVEN ESPINAL, PARIIS TILLERY, and JOHN DOE,
Plaintiffs,
-against-
THE CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF CORRECTION (“DOC”) COMMISSIONER CYNTHIA BRANN; DOC BUREAU CHIEF BRIAN SULLIVAN; DOC DEPUTY WARDEN “JANE” WALKER; DOC CAPTAIN “JOHN” WILLIAMS; DOC CORRECTION OFFICERS FRANK FOES #1-12; COUNTY OF ALBANY; ALBANY COUNTY SHERIFF CRAIG D. APPLE, SR.; ALBANY COUNTY CORRECTIONAL FACILITY SUPERINTENDENT MICHAEL LYONS; LIEUTENANTS ANTHONY TORRISI, MARK VALVO, FRANK FOE #13 a.k.a. “SUPERMAN,” and FRANK FOES #14-16; CAPTAIN “JOHN” HARRIS; SERGEANTS DAN POOLE, MICHAEL GRIMES, “JOHN” COLANGIONE, and FRANK FOES #17-18; CORRECTION OFFICERS MATTHEW LABOMBARD, JOSIAH HALEY, MICHAEL BELIVEAU, VINCENT ADAMS, JOSEPH KELLY, WILLIAM REDDY, DAMIEN ANZALONE, RYAN LAWSON, JARRED JAROSZ, FRANK HARRIS, THUAN TON, TIMOTHY KEHN, TRENT SHAVER, EUGENE RATIGAN, ANTHONY DEGONZA, KELLY THOMPSON, FRANK FOE SHIELD #99, FRANK FOE SHIELD #323, and FRANK FOES #19-21; and NURSE MELISSA “MISSY” MYLROIE,
Defendants.

COMPLAINT WITH JURY DEMAND

Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 2 of 101
TABLE OF CONTENTS
NATURE OF THE ACTION ..........................................................................................................1 PARTIES .........................................................................................................................................3 JURISDICTION AND VENUE ......................................................................................................7 JURY DEMAND .............................................................................................................................7 FACTUAL ALLEGATIONS ..........................................................................................................8
I. NEW YORK CITY’S BAN ON SOLITARY CONFINEMENT FOR YOUNG PEOPLE...........................................................................................8
II. THE SUBSTITUTE JAIL ORDER PROCESS.....................................................13 III. NEW YORK CITY’S POLICY AND CUSTOM OF RENDERING
DIFFICULT DETAINEES UPSTATE TO PUNISH THEM BY, AMONG OTHER THINGS, PUTTING THEM IN SOLITARY CONFINEMENT ...................................................................................................15 IV. ALBANY COUNTY’S POLICY AND CUSTOM OF TORTURING RIKERS DETAINEES ..........................................................................................18 V. ALBANY COUNTY’S POLICY AND CUSTOM OF PUTTING ALL RIKERS DETAINEES IN SOLITARY CONFINEMENT ..........................22 VI. NEW YORK CITY HAS RECEIVED REPEATED NOTICE OF ALBANY’S TORTURE AND ABUSE OF DOC INMATES, AND CONTINUES TO TRANSFER DETAINEES THERE TO BE TORTURED .....23 VII. ALBANY COUNTY’S SYSTEMIC INTERFERENCE WITH COMMUNICATIONS WITH COUNSEL............................................................25 VIII. THE EXPERIENCES OF THE NAMED PLAINTIFFS ......................................27 Davon Washington.................................................................................................27
A. Davon Washington is Detained at Rikers Island Starting in March 2016 ..................................................................27
B. The March 28, 2018 Transfer of Davon Washington from Rikers to the Albany County Jail ..........................................28


Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 3 of 101
C. Defendants Physically and Sexually Assault Davon Washington at the Albany County Jail ..........................................30
D. Davon Washington Is Held in Solitary Confinement at the Albany County Jail For Nine Months ......................................34
E. Albany County Jail Guards Beat Davon Washington in Retaliation for a Legal Visit on October 5, 2018...........................35
Steven Espinal........................................................................................................36
A. Steven Espinal Is Detained at Rikers Island Starting on November 18, 2017........................................................................36
B. The February 13, 2018 Transfer of Steven Espinal from Rikers to the Albany County Jail ...................................................37
C. Defendants Physically and Sexually Assault Steven Espinal at the Albany County Jail...............................................................39
D. Steven Espinal Remains in Solitary Confinement at the Albany County Jail, After More Than 10 Months There ...........................44
E. Defendants Brutally Assault Steven Espinal Again on July 4, 2018 ....................................................................................46
F. Notices of Claim ............................................................................47
John Doe ................................................................................................................48
A. John Doe Was Detained at Rikers Island on December 18, 2015 ........................................................................48
B. After a Visit from a High-Ranking DOC Security Official, John Doe Is Transferred to the Ulster County Correctional Facility on an SJO ..........................................................................48
C. John Doe Is Transferred from Ulster County to the Albany County Jail ........................................................................49
D. Defendants Brutalize and Sexually Assault John Doe...................50
E. John Doe Is Denied Medical Attention and Made to Sleep in His Own Bodily Waste ..................................................................53
F. John Doe Is Placed in Solitary Confinement at the Albany County Jail .....................................................................................54


Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 4 of 101
G. Defendants Attempt to Intimidate John Doe .................................55 Pariis Tillery...........................................................................................................56
A. Pariis Tillery Is Detained By DOC Starting on March 4, 2017 .....56 B. The August 9, 2018 Transfer of Pariis Tillery from Rikers
to the Albany County Jail ..............................................................57 C. Defendants Physically Assault Pariis Tillery at the
Albany County Jail ........................................................................58 D. Pariis Tillery Is Held in Solitary Confinement at the Albany
County Jail Since August 9, 2018..................................................62 IX. THE EXPERIENCES OF OTHER NEW YORK CITY DETAINEES
TRANSFERRED TO ALBANY ...........................................................................64 Richard Roe ...........................................................................................................64 David Doe ..............................................................................................................65 CAUSES OF ACTION ............................................................................................................ 66-94


Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 5 of 101
Plaintiffs, by and through their attorneys, Emery Celli Brinckerhoff & Abady LLP and the Law Offices of Goldman & Associates, for their Complaint allege as follows:
NATURE OF THE ACTION  1. Early one morning, without warning, a van comes to the jail for the young men. They have been in that jail for months or even years, but they have not been convicted of any crimes. 2. The young men are shackled and put in the back of the van. The van has no windows. They do not know where they are going. 3. The van drives for hours. It eventually comes to a stop at the end of a road at the back of an airfield. The doors open in a place the young men have never seen before. 4. A dozen guards in green fatigues and body armor are there waiting. They tell the young men to get out of the van one by one. The guards take the young men inside a building and put them in cages. 5. The guards deliver commands that are bizarrely detailed and confusing. Take off your shirt with your right hand and pass it backward over your left shoulder, they say. When the young men, disoriented, get it wrong, the guards “respond” with blows and punches. 6. The guards yell that the young men are hiding things in their bodies. They punch and kick the young men. Get it out, the guards say. The guards curse and threaten to kill them. Get it out, the guards demand. Some of the young men are shot with tasers in-between beatings. Guards insert their fingers and batons into the young men’s rectums. We will get it out for you, they threaten. The young men lie naked on the floor, crying, pleading, covered in their own urine and feces. Get it out, get it out. The guards will not stop.


Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 6 of 101
7. The commander finally tells the guards that it is enough. The guards leave. The young men are left in cages, alone. They sit there by themselves around the clock, in isolation, for weeks, months, even years.
8. There are no rules, no procedures, and no laws in this place. The young men are far from their families, far from their lawyers, cut off from the outside world. They fear that they could be killed at any moment and no one would know what happened to them. Their fear is not unreasonable: that is what the guards tell them might happen.
9. These young men are not in the custody of a repressive foreign regime; they are not suspected terrorists rendered by the CIA. The “black site” to which they have been taken without warning is not a decrepit Iraqi prison or an air base in the Polish countryside. They are pretrial detainees in the custody of the City of New York, and the black site is the Albany County Correctional Facility.
10. This case is about young men from New York City who have been shipped up to Albany County to be beaten and punished for crimes they have not been convicted of committing. It is about the City’s policy of knowingly sending these young men to Albany to be tortured; it is about Albany County’s policy of torturing them; and it is about the correction officers who carry out the torture.
11. More than anything else, however, this case is about the rest of us, living outside the jail walls. It is about the authority that is being quietly exercised—and viciously abused—on our behalf.
12. We, the People, have decided through our Constitution that not even the most despised detainees may be tortured. Not even someone who has assaulted a correction officer. Not even an alleged gang member. Not even someone who is hiding contraband in his
2 

Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 7 of 101
body. We are a society of laws, and due process—the idea that sets us apart from repressive regimes worldwide—forbids this.
13. In New York City, the law forbids subjecting teenage pretrial detainees to 23 or 24-hour solitary confinement, even if the teenagers are difficult to control, break rules, or hurt others. Locking college-age young men in cages for 23 hours a day with no human contact is not just cruel. It is a form of torture. It does not reduce violence or promote jail safety. It simply inflicts permanent damage on developing minds too young to be beyond redemption.
14. Our commitment to due process and the rule of law binds us even when it is hard. It governs even in the darkest corners of far-away jails and it protects even—indeed, especially—the least popular, the most reviled of our fellow human beings.
15. People are being tortured in our names. This time it is happening much closer to home, and it is happening to Americans. It is time for the torture to stop. It is time to bring these young men home to New York City.
PARTIES  16. Plaintiff Davon Washington is a 19-year-old man who resides in the Bronx, New York. He was previously detained pending trial at the Albany County Correctional Facility (“the Albany County Jail”) in Albany County, New York, while in the custody of the New York City Department of Correction (“DOC”). He was released from custody on December 24, 2018. 17. Plaintiff Steven Espinal is a 19-year-old man who is currently detained pending trial at the Albany County Jail while in the custody of DOC.
3 

Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 8 of 101
18. Plaintiff John Doe is a 24-year-old man who is presently in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). He was previously detained pending trial at the Albany County Jail while in the custody of DOC.
19. Plaintiff Pariis Tillery is a 25-year-old man who is currently detained pending trial at the Albany County Jail while in the custody of DOC.
20. Defendant City of New York is a municipal corporation duly organized under the laws of the State of New York.
21. The following Defendants are officers, employees, and/or agents of the City of New York. At all relevant times, each of them was acting within the scope of his or her employment as an employee, servant, and/or agent of the City. At all relevant times, each of them was acting under color of state law. Each of them is sued in his or her individual capacity:
a. DOC Commissioner Cynthia Brann; b. DOC Bureau Chief Brian Sullivan; c. “Jane” Walker, a DOC Deputy Warden whose first name is
unknown; d. “John” Williams, a DOC Captain whose first name is unknown; e. Correction Officers Frank Foes #1-12, DOC correction officers
whose names are unknown. 22. Defendant County of Albany (“Albany County”) is a municipal corporation duly organized under the laws of the State of New York. 23. The following Defendants are officers, employees, and/or agents of Albany County. At all relevant times, each of them was acting within the scope of his or her
4 

Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 9 of 101
employment as an employee, servant, and/or agent of the County. At all relevant times, each of them was acting under color of state law. Each of them is sued in his or her individual capacity:
a. Craig D. Apple, Sr., the Sheriff of Albany County; b. Michael Lyons, the Superintendent of the Albany County Jail; c. Anthony Torrisi, a Lieutenant in the Albany County Sheriff’s
Office who works at the Albany County Jail; d. Mark Valvo, a Lieutenant in the Albany County Sheriff’s Office
who works at the Albany County Jail. e. Frank Foe #13 a.k.a. “Superman,” a Lieutenant in the Albany
County Sheriff’s Office who works at the Albany County Jail whose name is unknown, but who is widely known in the Jail as “Superman” because of his appearance; f. Lieutenants Frank Foes #14-16, whose names are unknown, all of whom are Lieutenants in the Albany County Sheriff’s Office who work at the Albany County Jail; g. “John” Harris, whose first name is unknown, a Captain in the Albany County Sheriff’s Office who works at the Albany County Jail; h. Dan Poole, a Sergeant in the Albany County Sheriff’s Office who works at the Albany County Jail; i. Michael Grimes, a Sergeant in the Albany County Sheriff’s Office who works at the Albany County Jail;
5 

Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 10 of 101

j. “John” Colangione, whose first name is unknown, a Sergeant in

the Albany County Sheriff’s Office who works at the Albany

County Jail;

k. Sergeants Frank Foes #17 and #18, whose names are unknown,

Sergeants in the Albany County Sheriff’s Office who work at the

Albany County Jail; and

l. The following correction officers in the Albany County Sheriff’s

Department who work at the Albany County Jail:

i.

Matthew LaBombard;

ii.

Josiah Haley;

iii.

Michael Beliveau;

iv.

Vincent Adams;

v.

Joseph Kelly;

vi.

William Reddy;

vii.

Damien Anzalone;

viii.

Ryan Lawson;

ix.

Jarred Jarosz;

x.

Frank Harris;

xi.

Thuan Ton;

xii.

Timothy Kehn;

xiii.

Trent Shaver;

xiv.

Eugene Ratigan;

xv.

Anthony DeGonza;

6



Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 11 of 101

xvi.

Kelly Thompson;

xvii.

Frank Foe, Shield #99, whose name is unknown;

xviii.

Frank Foe, Shield #323, whose name is unknown; and

xix.

Frank Foes #19-21, whose names are unknown.

24. Defendant Melissa Mylroie, known as “Missy,” is a nurse at the Albany

County Jail. She is sued in her individual capacity. At all relevant times she was acting within

the scope of her employment as an employee of CFG Health Systems, LLC, as agent and servant

of Albany County, and under color of state law.

JURISDICTION AND VENUE  25. This action arises under the Fourteenth Amendment to the United States Constitution, 42 U.S.C. §§ 1983 and 1988. 26. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), 1343(a)(4), and 1367(a). 27. Venue is proper in this Court under 28 U.S.C. § 1391(b) because certain defendants reside in this District and because a substantial part of the events giving rise to the claims occurred in this District.

JURY DEMAND  28. Plaintiffs demand trial by jury.

7 

Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 12 of 101

FACTUAL ALLEGATIONS I. New York City’s Ban on Solitary Confinement for Young People
 29. In August 2014, the United States Department of Justice (“DOJ”) issued an investigative report on conditions at Rikers Island. DOJ found, among other things, that the City improperly relied on solitary confinement as a tool to manage adolescent detainees, “expos[ing] them to a risk of serious harm” and raising serious constitutional concerns. DOJ found that putting adolescents in solitary created a “vicious cycle.” Disruptive and unstable detainees became more disruptive and unstable when they were put in solitary, isolated from social support and necessary services, and given little incentive to improve their behavior.1 30. In October 2014, the New Yorker told the story of Kalief Browder, who spent three years on Rikers Island as a teenager after being accused of stealing a backpack.2 Kalief spent nearly 17 consecutive months in solitary confinement before the charges against him were dismissed. While in solitary, he became paranoid and repeatedly attempted suicide. After he got out, he had constant flashbacks to his time in solitary and made more suicide attempts. Kalief killed himself less than a year after the article appeared. 31. Both developments brought public attention to the City’s gross overreliance on solitary confinement for young pretrial detainees. And they happened against a backdrop of growing societal recognition of the harm of solitary confinement, particularly for young people.

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1

See U.S. Dep’t of Justice, CRIPA Investigation of the New York City Department of Correction Jails on

Rikers Island, Aug. 4, 2014, https://www.justice.gov/sites/default/files/usao-sdny/legacy/2015/03/25/SDNY

%20Rikers%20Report.pdf.

2

Jennifer Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, https://www.newyorker.com

/magazine/2014/10/06/before-the-law.

8

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Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 13 of 101
32. There is clear scientific consensus that long-term solitary confinement inflicts grave psychiatric injury. According to the American Psychiatric Association, solitary is associated with increased risk of self-mutilation and suicidal ideation, greater anxiety, depression, and paranoia.3 About half of all prison suicides happen among the roughly 5 to 6 percent of inmates held in solitary.4
33. Cognition tends to deteriorate in solitary. Many people held in solitary experience hallucinations and delusions, and some suffer full-blown psychosis, losing touch with the world around them. One eminent psychologist and criminologist has described the isolated detainees’ mental state as “isolation panic”—a feeling of desperation, abandonment, and helplessness that feeds rage, panic, and loss of control.5
34. These risks are particularly acute for young people. Immature adolescent brains are even less well equipped than fully developed adult brains to handle the rigors of prolonged isolation. A 2014 study of detainees in New York City jails found that the two biggest predictors of self-harm were being under age 19 and having been placed in solitary confinement at least once.6
35. Solitary also poses unique threats to young people. Some serious mental illnesses, like bipolar disorder and schizophrenia, do not typically manifest themselves until a

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3

Solitary Confinement of Juvenile Offenders, Am Psych. Ass’n, https://www.apa.org/advocacy/criminal-

justice/solitary.pdf.

4

Am. Civ. Liberties Union, Caged In: Solitary Confinement’s Devastating Harm on Prisoners with Physical

Disabilities 25 (2017), https://www.aclu.org/report/caged-devastating-harms-solitary-confinement-prisoners-

physical-disabilities.

5

Hans Toch, Mosaic of Despair: Human Breakdowns in Prison (1992).

6

Fatos Kaba et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub. Health

442 (2014), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3953781.

9

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Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 14 of 101

person is in her early-to-mid-20s. Solitary confinement can provoke or accelerate the onset of these serious mental illnesses for teenage detainees.
36. Recent developments in constitutional law recognize that the penal system must treat teenagers differently than adults because their immature brains function differently.7
37. In this context, in January 2015, the New York City Board of Correction (the “Board”) adopted a regulation banning solitary confinement (or “punitive segregation”) for detainees age 21 and younger in New York City (the “Under Age 22 Solitary Ban”).
38. The Board is an independent body of the City that is responsible for overseeing and evaluating the performance of DOC. The Board is required to establish Minimum Standards for the treatment of detainees held by the City.8 Those Minimum Standards are regulations with binding legal effect, codified in the Rules of the City of New York, which DOC is obligated to follow.9
39. In promulgating the Under Age 22 Solitary Ban, the Board found: “[P]unitive segregation is a severe penalty that should not be used in certain circumstances in [DOC] facilities. In particular, punitive segregation reflects a serious threat to the physical and psychological health of adolescents, with respect to whom it should not be imposed.”10
40. The Under Age 22 Solitary Ban immediately forbid the placement of detainees under age 18 in solitary. It further provided that, as of January 1, 2016, detainees ages 18 through 21 “shall be excluded” from solitary, “provided that sufficient resources are made

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7

See Roper v. Simmons, 543 U.S. 551 (2005) (death penalty for juveniles violates Constitution); Graham v.

Florida, 560 U.S. 48 (2010) (juvenile life without parole for non-homicide crimes violates Constitution); Miller v.

Alabama, 567 U.S. 560 (2012) (juvenile life without parole for any offense violates Constitution).

8

See Charter of the City of New York § 626.

9

Rules of the City of New York tit. 40.

10

Id. tit. 40 § 1-17(a) (emphasis added).

10

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Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 15 of 101
available to [DOC] for necessary staffing and implementation of necessary alternative programming.”11
41. The Under Age 22 Solitary Ban received glowing press coverage and praise from advocates for detainees’ rights. Mayor de Blasio trumpeted that the City would now “be at the forefront of national jail reform efforts.”12
42. In July 2015, the City submitted to a consent decree in Nunez v. City of New York designed to reduce excessive force by officers against detainees on Rikers Island, respond to DOJ’s concerns, and reform the City’s jails. To that end, the City agreed in the consent decree to additional reforms relating to solitary confinement for young people.13
43. In practice, however, DOC has long been reluctant to reduce its use of solitary confinement and has resisted implementing the Under Age 22 Solitary Ban.14 For a very long time, solitary confinement had been a primary tool used at Rikers Island to deal with violent, mentally ill, or difficult young inmates.15 Long-serving senior DOC officials, rank-andfile staff, and the correction officers’ union were slow to embrace reform.
44. After the Under Age 22 Solitary Ban was passed, DOC requested and received a series of variances from the Board to delay the implementation of the ban on solitary

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11

Id. tit. 40 § 1-17(b)(1)(ii).

12

See, e.g., Mark Berman, New York City Will No Longer Put Its Youngest Prison Inmates in Solitary

Confinement, Wash. Post, Jan. 13, 2015, https://www.washingtonpost.com/news/post-nation/wp/2015/01/13/new-

york-city-will-no-longer-put-its-youngest-prison-inmates-in-solitary-confinement/?utm_term=.be30f8ac1c66.

13

See Consent Decree § XVI, Nunez v. City of New York, No. 11-CV-5845 (S.D.N.Y. July 1, 2015), available

at https://www.justice.gov/opa/file/624846/download

14

See, e.g., Letter from Commissioner Joseph Ponte to Stanley Brzenoff, Chair, N.Y.C. Bd. of Corr., Jan. 8,

2016, available at https://www1.nyc.gov/assets/boc/downloads/pdf/Limited%20Variance%20-

%20Elimination%20of%20Punitive%20Segregation%2018-21.pdf.

15

See DOJ Report, supra note 1, at 46-51.

11

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Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 16 of 101

for detainees aged 18 to 21. DOC claimed it needed more time to develop alternative

programming.

45. Finally, in October 2016, the Board determined that DOC had been

provided with sufficient resources to implement alternative programming, and the variances

ended. For the past two years, it has been unlawful for the City to keep a detainee under the age

of 22 in solitary confinement.

46. Regulations passed by the Board also limit the amount of time DOC

detainees over age 21 can spend in solitary confinement. For example, an adult detainee cannot

spend more than 30 consecutive days in solitary confinement unless he has been sentenced for a

serious assault on correctional staff. The maximum sentence for a serious assault on staff is 60

days in solitary confinement.16

47. Even with the Under Age 22 Solitary Ban in effect and the limits on

solitary for adults, DOC—one of the largest jail systems in the world—still has powerful tools at

its disposal to manage, isolate, and control difficult detainees to the extent it deems necessary.

48. The regulation passed by the Board in 2015 also forbid detainees between

18 and 21 from being placed in “Enhanced Supervision Housing” (“ESH”), a secure unit that is

less restrictive than solitary (the “Under Age 22 ESH Ban”).17 Detainees in ESH are entitled to

at least seven hours outside their cells each day, during which they can socialize with other

detainees. They can also receive some social visitors, and they have access to services and

programs accessible to detainees in the general population, including education and chaplains.18

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16

Rules of the City of New York tit. 40 §§ 1-16(d)(1) to (4).

17

Id. § 1-16(c)(1)(ii).

18

What is Enhanced Supervision Housing?, N.Y.C. Dep’t of Corr., available at

https://www1.nyc.gov/assets/doc/downloads/press-release/esh-enhanced_supervision_housing_011415_final.pdf

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49. Since the Under Age 22 ESH Ban was passed, DOC has continuously requested and received variances from the Board waiving its compliance with this requirement. Therefore, it is currently permissible for DOC to send detainees between ages 18 and 21 to ESH, which is the most restrictive setting for detainees in that age group in DOC custody.
50. DOC maintains a restrictive housing unit at its West Facility on Rikers Island, which, on information and belief, is designed to accommodate violent detainees who have not been adequately controlled in other settings, as well as detainees who are in protective custody for their own safety.
51. On information and belief, the North Infirmary Command facility at Rikers also includes a highly secure unit designed to house difficult detainees under restrictive conditions.
II. The Substitute Jail Order Process 52. New York State law allows for the transfer of pretrial detainees between
facilities in different counties through a procedure known as a “substitute jail order” (“SJO”). SJOs are issued by the New York State Commission of Correction (“SCOC”), a state body.19
53. SCOC can only issue an SJO under certain specified conditions. All involve imminent threats to safety and basic needs, like a natural disaster that makes a jail unfit to hold detainees, or an inability to provide “vital services” like food or medical care at a jail. Most relevant here, SCOC can issue an SJO “when the safety or security of a [detainee] or group of [detainees] is threatened by their confinement in a facility and the facility administrator

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19

See generally N.Y. Corr. Law § 504.

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reasonably believes that the public interest, as well as the safety of the [detainees], would be

better served by their being housed in another . . . facility.”20

54. State regulations create a mandatory procedure to get an SJO. The

administrator of the original jail—which, for New York City jails, is Defendant Commissioner

Brann—is responsible for finding another suitable jail to receive the detainee in question. He or

she must first look for available options within his county. If none exist, he or she may look to

see whether a jail outside the county can accommodate the detainee. The administrator must

consider the proximity of the other jail, the inconvenience to the detainee’s family and friends,

the impact on his access to legal counsel, and the ability of the receiving jail to keep the detainee

safe.21

55. The administrator of the original facility is responsible for finding a

receiving jail, providing the relevant information to SCOC, and getting the substitute jail order

from SCOC. The original facility must make the logistical arrangements for the transfer.22 The

original jurisdiction pays the receiving jurisdiction’s expenses of holding the detainees.

56. The regulations also allow for an urgent transfer from jail to jail under

“extraordinary circumstances” in which “the safety or security of a [detainee] cannot be

maintained.” Under those circumstances, the administrator of the original facility may make a

written request to the New York State Commissioner of Corrections (the “State Commissioner”)

to make another facility available to hold the detainee. The State Commissioner must respond

with a written determination that another facility is available to hold the detainee.23 The detainee

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20

9 NYCRR § 7210.5.

21

Id. § 7210.6.

22

Id.

23

Id. § 7210.6(e).

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is transferred not to the custody of the receiving facility, but to the custody of the State Commissioner, who must house the detainee in the “most proximate facility.”
57. Irrespective of the procedure by which a detainee is transferred, notice to the detainee is always required. The administrator of the receiving jail “shall provide [the detainee] immediately with a written notification of the reasons for his transfer.”24 The transferred detainee “shall be entitled to all the rights and privileges available to other [detainees] of the receiving facility.”25
58. SJOs are a lucrative business for upstate county jails with excess capacity. In 2013, housing other counties’ detainees on SJOs brought Albany County more than $3 million in revenue. Sheriff Apple explained: “We have the space. We’re trying to run our jail as a business . . . .”26

III. New York City’s Policy and Custom of Rendering Difficult Detainees Upstate to Punish Them By, Among Other Things, Putting Them in Solitary Confinement 59. The City continues to fall chronically short in preventing DOC officers
from using unnecessary force against detainees. Earlier this year, the independent monitor evaluating the City’s compliance with the Nunez consent judgment found: “[DOC] has not yet made significant progress toward the primary goal of reducing the use of unnecessary and

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24

Id. § 7210.8 (emphasis added).

25

Id. § 7210.9. In 2017 a bill was introduced in the New York City Council to amend the New York City

Administrative Code to provide City detainees with additional notice before they could be transferred out of the City

by SJO. The bill would require—except in emergency circumstances—that, before any transfer, the detainee and his

criminal defense lawyer be given notice and the detainee be given a chance to make three personal phone calls at no

cost. See A Local Law to Amend the Administrative Code of the City of New York, in Relation to Requiring Notice

and Review for Transferring Inmates to Facilities Outside New York City, Int. 1693-2017, available at

https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3137808&GUID=ABF42E83-4564-42C8-9B40-

A9196B7D2197.

26

Kenneth C. Crowe II, County Jails Board Inmates to Cut Down on Expenses, Albany Times-Union, Dec. 2,

2013, https://www.timesunion.com/local/article/County-jails-board-inmates-to-cut-down-on-expenses-5024752.php.

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excessive force. The use of force has continued to increase rather than diminish, even as the inmate population has decreased.”27
60. Over the past few years, the City has dramatically increased its use of SJOs to send upstate young detainees whom it deems undesirable. It has done so to circumvent its own ban on solitary confinement for detainees 21 and younger. And it has done so even though ESH and other facilities are available within New York City as secure units for detainees who require that level of segregation.
61. A New York Times investigation published on July 22, 2018, found that “[t]ransfers of inmates 21 and younger increased sharply starting in 2015, the year the city adopted the solitary ban, and except for a drop in 2017, the number of such transfers has remained well above the levels seen before the ban.”28
62. On information and belief, the City has sent dozens of detainees 21 and younger to be held upstate since October 2015. Between March 8, 2018 and August 15, 2018 alone, 21 SJOs were issued transferring detainees from Rikers to the Albany County Jail.
63. It is official City policy that solitary confinement “represents a serious threat to the physical and psychological health of adolescents.”29 And, because DOC has stopped requesting variances from the ban on solitary confinement for detainees aged 18-21, it has been established as a matter of City law that DOC has “sufficient resources” to implement “necessary alternative programming” to maintain order without using solitary.30

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27

Steve J. Martin et al., Fifth Report of the Nunez Independent Monitor 4 (Apr. 18, 2018), available at

https://www1.nyc.gov/assets/doc/downloads/pdf/Fifth_Monitor_Report.pdf.

28

Ashley Southall & Jan Ransom, New York City’s Young Inmates Are Held in Isolation Upstate, Despite

Ban. N.Y. Times, July 22, 2018, https://www.nytimes.com/2018/07/22/nyregion/inmate-solitary-young-nyc.html.

29

Rules of the City of New York tit. 40, § 1-17(a).

30

Id. § 1-17(b)(1)(ii).

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64. Nonetheless, the City continues to send detainees under 22 upstate on SJOs, expecting—indeed, knowing—that they will be put in solitary confinement to punish them.
65. In response to public scrutiny over the New York Times investigation, Mayor de Blasio endorsed and ratified the City’s practice. “Occasionally we have to remove a prisoner from our correction system because there is an immediate threat to them and something that requires them being moved to another jurisdiction,” the Mayor said on July 23, 2018.
66. Many of the young detainees transferred from Rikers on SJOs (“Rikers detainees” or “New York City detainees”) have been charged with assaulting correction officers on Rikers Island. To the extent that these detainees face a “threat” at Rikers, to use the Mayor’s words, that threat comes from retaliation by DOC staff—the very staff hired by the City to maintain order in its jails. The City’s admission that it cannot keep detainees safe from unlawful violence by its own officers is disturbing.
67. Rikers detainees are generally not told in advance that they are being sent out of New York City on an SJO. They are simply told one morning by DOC correction officers to gather their personal effects. They are strip-searched and shackled and loaded into a van. Because this is the same thing that happens when a detainee is moved from jail to jail on Rikers Island, most assume that they are simply being transferred to another facility on Rikers. Sometimes DOC correction officers even tell the detainees they will be coming right back. The detainees are not permitted to call anyone before they leave.
68. Correction officers from DOC’s Emergency Services Unit, or “ESU,” are generally responsible for transferring detainees. Once detainees are loaded into the van, the van keeps driving. It has no windows, so detainees cannot see where they are going. For many of
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the young detainees who are sent out of New York City on an SJO, the van finally stops in Albany County.
69. The Albany County Jail is about a three-hour drive from New York City, 160 miles from Rikers Island. Being held at the Albany County Jail makes it more difficult for detainees to communicate with their lawyers about their pending criminal cases. It also cuts detainees off from their friends and families, many of whom are indigent and do not have the money or time off work to take long trips to Albany to visit during narrow visiting hours that are frequently early in the morning.
70. Albany County charges the City $175 a day for each City detainee it houses at the Albany County Jail.31
IV. Albany County’s Policy and Custom of Torturing Rikers Detainees 
71. New York City detainees from Rikers Island brought to Albany on SJOs are generally subject to the same routine of torture on arrival, with some variations, after which they are almost uniformly put in solitary confinement.
72. When the van doors open, a group of approximately ten Albany County correction officers are there waiting. They are wearing green paramilitary uniforms with riot gear, helmets, and visors. This group of officers is called the “Green Team.” Some of the Green Team members have the iconic skull logo of the Punisher—a comic-book antihero who exacts violent revenge on those who have wronged him—on the chest of their body armor.32

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31

Southall & Ransom, supra note 28.

32

Whichever officers suit up in green fatigues and riot gear on a given day comprise the “Green Team.” It is

not a separate unit with a fixed membership.

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73. The Green Team is usually under the command of Lieutenant Anthony Torrisi.
74. Each New York City detainee is removed from the van one-by-one and escorted inside the jail by both the Albany County Jail Green Team officers and DOC ESU officers. The continued involvement of ESU officers is necessary because the detainee is still wearing DOC restraints that need to be returned to Rikers, to which ESU has the keys.
75. Each New York City detainee is escorted to the intake area inside the Albany County Jail. The ESU officers unshackle him and literally hand him over to the Green Team, who then put him in Albany handcuffs. The detainee is put in a booking cell with several Green Team officers, where Torrisi begins commanding a choreographed routine of torture.
76. “This isn’t Rikers,” Torrisi routinely tells the detainee. “We do what we want here.” The detainee is given a series of arbitrary and increasingly convoluted commands, in the nature of: “Face the wall with your right foot behind your left and your right hand higher than your left,” or “Take off your jumper with your right hand and pass it back to us over your left shoulder.”
77. If the detainee gets confused, as he invariably will, he gets punched. 78. Torrisi then tells the detainee, in sum and substance: “We’re going to take these cuffs off you. When the cuffs come off, you start swinging.” The detainee’s cuffs are removed, and he is then tackled to the floor and beaten until Torrisi orders the Green Team to stop. 79. The DOC ESU officers who brought the New York City detainees to Albany are, on information and belief, often present inside the intake area of the Albany County
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Jail when these things happen. On information and belief, they can see and hear what is happening and are able to intervene to stop it if they so choose, but they choose not to.
80. After intake, each Rikers detainee is taken to the “BOSS Chair,” a body scanner designed to detect contraband stored in body cavities. The detainee then goes through a metal detector and is brought to a medical x-ray room to be x-rayed for contraband.
81. The Rikers detainee is then taken upstairs to the solitary confinement cell block known as “4 East” and put in a cell which, on information and belief, has already been assigned to them.
82. At some point during this process—often after the x-ray, but sometimes during an initial strip search in the intake pen—Torrisi claims to have seen contraband, whether real or imagined, inside the Rikers detainee’s rectum.
83. Jails have legitimate security needs and must prevent detainees from bringing contraband or weapons inside. If a search identifies contraband in a detainee’s body, the appropriate responses may include placing the detainee in isolation and waiting until the detainee expels the contraband or seeking the assistance of a medical professional to remove the item with the detainee’s consent.
84. It is unreasonable, unsafe, and inconsistent with standard correctional practice for a guard who has no medical training to attempt to forcibly remove contraband from a detainee’s rectum without his consent in a nonmedical environment.
85. For example, DOCCS, which runs all New York State prisons, allows manual searches of body cavities other than the rectum to be conducted only by medical personnel with the approval of the Deputy Commissioner or Chief Medical Officer of DOCCS,
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in an examination room with appropriate medical equipment using appropriate medical

techniques.33

86. DOCCS guidelines provide that “rectal cavity searches will not be

authorized” under any circumstances.34

87. DOC’s own policies and procedures forbid any manual cavity searches by

uniformed correctional staff. DOC staff may not engage in “any probing or touching of the

genital or anal cavities” when strip-searching detainees. Rather, if DOC staff suspect the

presence of contraband in a body cavity after visual inspection of the cavity, they must isolate

the detainee until he or she removes or passes the suspected contraband.35

88. But the Green Team is not even engaged in a legitimate effort to conduct

manual body cavity searches at all. Rather, it assaults and sexually assaults Rikers detainees

under the pretext of attempting to forcibly remove real or imagined contraband from their

rectums, but with the real purpose of terrifying and intimidating the Rikers detainees.

89. Green Team officers sometimes use Tasers against cuffed Rikers

detainees; insert their fingers into detainees’ rectums; and even sodomize detainees with foreign

objects. These actions have no legitimate security purpose. Rather, they are assaults designed to

assert the dominance of correctional staff and humiliate, intimidate, and degrade detainees.

90. After undergoing this violent ritual on arrival at the Albany County Jail,

Rikers detainees often have visible injuries. Invariably, Defendant Nurse Mylroie, widely

known as “Missy,” is the assigned medical provider. She refuses to give the detainees medical

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33

See N.Y. State Dep’t of Corr. & Cmty. Supervision Directive No. 4910, § III.H, Nov. 7, 2017, available at

http://www.doccs.ny.gov/Directives/4910.pdf.

34

Id. § III.H.3.

35

See N.Y.C. Dep’t of Corr. Directive No. 4508R-E, § V.G.1 & app. B, May 15, 2009.

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care, unhelpfully telling them that they are fine as long as they can walk and talk, and instructs them to take Motrin.
91. After being beaten, Rikers detainees are written up for “assaulting staff,” among other infractions. The written tickets generally say that the detainee “turned off the wall” or “turned around” to assault staff.
92. That any of the Rikers detainees chose to spontaneously assault multiple officers wearing helmets and full riot gear while locked in a confined space is entirely unlikely. That all of them did so rises to the level of systematic fabrication.
93. After they are assaulted upon arrival at the Albany County Jail, Rikers detainees are given a disciplinary hearing at which they are told it does not matter what they say because they will be found guilty regardless. They are found guilty of infractions at the hearing and sentenced to long periods of solitary confinement, often for well more than a year.
V. Albany County’s Policy and Custom of Putting All Rikers Detainees in Solitary Confinement  94. The Rikers detainees spend their remaining time at the Albany County Jail
in solitary confinement. They are in their cells by themselves for a minimum of 23 hours a day, with no meaningful social interaction, environmental stimulation, or human contact. They are offered one hour of “recreation” by themselves in an indoor cage and a 15-minute shower every other day. Most decline the “recreation” time in the cage because the cage is functionally indistinguishable from their cells.
95. The Albany County Jail’s solitary confinement unit, known as “4 East,” consists of approximately 20 cells arrayed on multiple tiers. A typical cell is about 6 feet by 8 feet.
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96. Sheriff Apple told the New York Times that it was the Albany County Jail’s policy to put any detainee who has ever assaulted correctional staff, regardless of where or when, in solitary confinement.36
97. On information and belief, every single New York City detainee who has been brought to the Albany County Jail on an SJO in the past two years has been beaten and put in solitary confinement. Plaintiffs are unaware of any New York City detainee who was integrated into the general population at the Albany County Jail.
98. On information and belief, the vast majority of the detainees housed in 4 East at the Albany County Jail over the past two years have been from New York City.

VI. New York City Has Received Repeated Notice of Albany’s Torture and Abuse of DOC Inmates, and Continues to Transfer Detainees There To Be Tortured  99. The City and its policymakers are aware of the increased rate of transfers
of Rikers detainees to the Albany County Jail after the City banned solitary confinement for detainees 21 and younger.
100. The City and its policymakers are aware that detainees routinely fail to receive notice or an opportunity to be heard before being transferred outside the City on an SJO. And they are aware that Rikers detainees have repeatedly alleged that guards at the Albany County Jail have beaten them.
101. The City has failed to investigate or remediate these conditions and has continued sending detainees, including many aged 21 and younger, to the Albany County Jail without notice, to be beaten and put in solitary confinement.

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36

Southall & Ransom, supra note 28.

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102. In August 2017, four New York City Council Members introduced a bill to amend City law to require that Rikers detainees be provided with notice before being transferred outside the City on an SJO. That bill is being considered by the relevant Council committee.37
103. On March 3, 2018, Plaintiff Espinal filed a notice of claim with the Comptroller of the City of New York. In that notice, Plaintiff Espinal explained that, upon his arrival in the Albany County Jail, he had been brutally assaulted, tased, and held in a restraint chair for an extended period of time.
104. On April 12, 2018, a Rikers detainee named Julian Cepeda filed an Article 78 petition against DOC and Commissioner Brann, among others, challenging his transfer to the Albany County Jail as a matter of state law. In his petition, Mr. Cepeda alleged, among other things, that on the day of his arrival at the Albany County Jail, he was “brutally beaten and sexually assaulted, where an officer put on a latex glove and stuck his finger in Petitioner[’s] buttocks.” Mr. Cepeda further alleged that he “made [a] medical complaint about rectal bleeding and visible swollen area to medical staff” but was denied medical attention.
105. On July 10, 2018, Plaintiff Espinal’s criminal defense counsel, Ruben Fernandez of The Bronx Defenders, notified DOC Commissioner Brann and numerous other officials in writing about the abuses and conditions that Mr. Espinal had been subjected to at Albany County Jail. The DOC general counsel’s office responded by denying responsibility for Mr. Espinal’s treatment while he is held at the Albany County Jail.

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37

A Local Law to Amend the Administrative Code of the City of New York, in Relation to Requiring Notice

and Review for Transferring Inmates to Facilities Outside New York City, supra note 25.

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106. On July 22, 2018, the New York Times published its lengthy story on the treatment of Rikers detainees at the Albany County Jail. The Times explained that detainees were transferred out of New York City without notice and put in solitary confinement at the Albany County Jail. The Times reported on several detainees’ allegations that they had been beaten on arrival at the Albany County Jail.38 In response, Mayor de Blasio defended the City’s practice of sending young detainees to Albany to be put in solitary confinement.
107. On October 31, 2018, Mr. Cepeda, represented by attorney Robert Quackenbush of the Legal Aid Society Prisoners’ Rights Project, filed an amended Article 78 petition again alleging that he had been assaulted without provocation during the admission process at the Albany County Jail. Mr. Cepeda further alleged that he was 20 years old and would be held in solitary confinement in Albany until May 11, 2019.
108. On December 3, 2018, Plaintiff Tillery, represented by attorney Quackenbush, filed a similar Article 78 petition against DOC and Commissioner Brann challenging his transfer to the Albany County Jail as a matter of state law. He alleged, among other things, that he had been subject to excessive and unlawful force during the intake process at the Albany County Jail.
VII. Albany County’s Systemic Interference with Communications with Counsel 
109. Because the Albany County Jail is 160 miles from New York City, it is not feasible for Rikers detainees’ criminal defense lawyers to pay regular visits to discuss the detainees’ pending criminal cases in New York City courts.

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38

Southall & Ransom, supra note 28.

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110. As a result, it is critical that Rikers detainees and their criminal defense attorneys be permitted to hold confidential telephone calls or confidential videoconferences. Such consultation is necessary for the Rikers detainees to participate in and direct their defense of the criminal charges against them.
111. State law governing county jails requires that “all prisoners shall have access to legal counsel,” including “telephone communications.” It further provides that “telephone communications between prisoners and their legal counsel shall not be monitored except visually.”39
112. However, there is no such thing as a confidential, unrecorded legal telephone call to or from the Albany County Jail.
113. Detainees in solitary confinement at the Albany County Jail are generally not permitted to use the telephone at all.
114. The Albany County Jail will arrange for detainees in solitary confinement to speak with their attorneys under exigent circumstances. But those calls are monitored by jail staff.
115. Albany County Jail officials have repeatedly represented, including to the Legal Aid Society Prisoners’ Rights Project, that all detainee calls to or from the Albany County Jail—even with counsel—are monitored.
116. In a letter dated August 6, 2018, Chief Deputy Sheriff William Rice stated that Albany County has “no policies or directive[s] addressing confidential telephone communications between incarcerated persons [and] counsel.”

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39

9 NYCRR §§ 7031.2(a), (b).

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117. Albany County Jail correction officers have made comments to Plaintiffs Espinal and Tillery about the details of Espinal and Tillery’s private conversations with their attorneys. Plaintiffs Espinal and Tillery did not voluntarily disclose those details to their jailors. The only way the correction officers could have learned those details was by listening to the conversations without Plaintiffs Espinal and Tillery’s consent.
VIII. The Experiences of the Named Plaintiffs 
118. Plaintiffs’ experiences are emblematic of the punitive and arbitrary nature of SJO transfers off Rikers Island and the routinized torture, sexual assault, deliberate indifference to serious medical needs, and unlawful solitary confinement that New York City detainees experience in Albany County.
Davon Washington A. Davon Washington is Detained at Rikers Island Starting in March 2016
 119. Davon Washington is a 21-year-old African American young man. 120. Davon was diagnosed as a child with depression. He spent time in his childhood in a group home and in foster care. 121. At the age of 19, Davon was arrested and taken into custody by the New York City DOC. 122. Davon arrived at Rikers Island on or around March 24, 2016. 123. While at Rikers Island, Davon received mental health services, including counseling and medication for attention deficit disorder. He also received educational services in support of his efforts to obtain a GED, and he attended high school at the Island Academy.
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B. The March 28, 2018 Transfer of Davon Washington from Rikers to the Albany County Jail 124. While at Rikers Island, in or about March 2018, Davon lodged complaints
with the Legal Aid Society Prisoners’ Rights Project, alleging, among other things, that he was groped by a DOC staff member and denied adequate mental health and medical care.
125. On information and belief, Legal Aid representatives contacted DOC about Davon’s complaints on or about March 16, 2018 and March 26, 2018.
126. On or about March 22, 2018, DOC ESU officers woke Davon up in the early morning and ordered him to “pack up.” Davon complied, and he was removed from his cell for the day. However, he was returned the same cell at the end of the day.
127. On March 28, 2018, ESU officers woke Davon up in the early morning and again ordered him to pack up.
128. The ESU officers told Davon, in apparent reference to a deputy warden at the jail where Davon was housed, that Deputy Walker “can’t be around you.”
129. The ESU officers strip-searched Devon, placed him in the BOSS Chair, and put him through a metal detector.
130. When Davon asked where he was going, ESU responded, “Off Rikers.” ESU told him, in an apparent reference to Defendant Walker: “You’re going to Albany because Deputy Walker don’t want you.”
131. ESU placed Davon in a transport van with one other detainee. 132. Prior to being removed from Rikers, Davon was given no written notification for the basis of the transfer, received no hearing, and was not permitted to call his
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family or lawyers to inform anyone of his whereabouts. He was not even told he was going to be transferred.
133. Defendant Williams obtained the SJO transferring Davon to Albany County.
134. The Substitute Jail Order issued by the SCOC is dated March 22, 2018. It states that DOC, “as a result of safety considerations,” is “unfit for the confinement of Devon [sic] Washington.”
135. ESU officers drove Davon and the other detainee in the van for several hours.
136. When Davon exited the van, he saw a squad of approximately 12 law enforcement officers standing in front of him, wearing green fatigues and riot gear, including helmets and body armor. Davon would later learn that these were correction officers from the Albany County Jail.
137. Several green-suited officers grabbed Davon and took him to the Intake area of the Albany County Jail. Approximately two to three ESU officers also entered the Albany County Jail escorting Davon.
138. The ESU officers removed Davon’s Rikers cuffs and restraints, and he was placed in Albany County Jail cuffs and shackles.
139. Davon followed all orders given to him and was cooperative during this procedure.
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C. Defendants Physically and Sexually Assault Davon Washington at the Albany County Jail  140. Several Albany County Jail correction officers then moved Davon into a
small room, Booking Cell #2. 141. Approximately eight to ten Albany County Jail correction officers and
supervisors, including Defendants Torrisi, Valvo, “Superman,” Lawson, Haley, LaBombard, Anzalone, and Shield #323, were waiting for him in the room.
142. Defendant Torrisi told Davon to put his head on the wall. Davon complied.
143. Defendant Torrisi asked Davon, in sum and substance: “What are you doing here?” When Davon stated “I don’t know,” Defendant Torrisi smacked Davon in the face with his open hand.
144. Defendant Torrisi then stated, “Who’s the biggest gang?”, in an apparent reference to alleged gang affiliation, and again smacked Davon in the face several times with an open hand.
145. Defendant Torrisi stated to Davon, in sum and substance: “We’re going to give you instructions, follow them correctly. Once we take these cuffs off, you better start swinging.”
146. Defendants then removed Davon’s handcuffs and began to punch Davon all over his body.
147. On information and belief, the ESU officers were still in the intake area of the Albany County Jail and were aware of what was happening.
148. Davon fell to the ground and curled up in the fetal position.
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149. Defendants either kicked and stomped on Davon or simply stood by and did nothing to intervene while Davon lay on the ground and was beaten.
150. Defendant Torrisi stated: “Wake him up. I want him to feel everything. He likes to assault officers.”
151. Four defendants then lifted Davon up and placed him face-first against the wall. They then instructed Davon to take his left shoe off with his right hand and pass it over his right shoulder. They then continued to give him other instructions to undress in a specific way.
152. Davon was nervous and found it hard to comply with the instructions regarding his right and left hands. Every time he made a mistake, such as by using his left hand instead of his right hand, one of the Defendants would punch him.
153. When Davon was naked, Defendants asked: “We’re gonna ask you once: do you have anything you are not supposed to have?”
154. Anticipating that he might go through a metal detector, Davon told Defendants that he had a bullet fragment in his foot. In response, Defendants stomped directly on Davon’s foot, causing him extreme pain.
155. Defendants then instructed Davon to spread his buttocks and cough. Davon complied.
156. Defendants stated, “I see plastic,” referring to an alleged item of contraband in Davon’s rectum, and continued to beat Davon while he was naked.
157. Defendants then pushed Davon to the floor. One of the Defendants forcefully inserted two fingers into Davon’s rectum. Defendants then stated, in reference to the supposed contraband: “He pushed it back up.”
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158. Defendants removed Davon from the cell, placed him in the BOSS chair, and put him through the metal detector to search for contraband. Davon complied with all instructions. There was no indication that he was in possession of any contraband.
159. Davon was bleeding from his nose and mouth. Defendants shouted at him to stop bleeding onto the BOSS chair.
160. Defendants ordered Davon to submit to a medical x-ray to search for contraband. Davon complied.
161. Defendant Mylroie asked Davon if he had any injuries and he responded that he did. Defendants Lawson and “Superman,” who were standing nearby, then punched Davon in the face, stating “Ask him again, any injuries?” Davon then stated “No.”
162. Defendants escorted Davon to Cell #19 in the SHU located in 4 East Housing Unit.
163. Defendants ordered Davon to undress until he was naked. Davon complied.
164. Defendants Torrisi, Lawson, and a correction officer with spiky hair punched and kicked Davon multiple times while he was handcuffed and shackled in Cell #19.
165. Defendant Mylroie came to his cell at one point and asked if he wanted medical attention. Davon had blood all over his face and was visibly injured. Davon was scared and told her that he didn’t need medical attention.
166. Later in the day, Major Brian Mooney came to Davon’s cell and stated to him, in sum and substance: “Don’t mess around. This is not Rikers.”
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167. As a result of the beating, Davon was bleeding, his face was swollen, his tooth was chipped, his lip was split, his foot was hurting, and he was bruised all over his back and body. He was in pain for many days after the assault.
168. The Albany County Jail reports concerning the assault against Davon falsely claim that he turned around and attacked staff members inside the booking cell:
At 1:17 p.m. Team 1 removed Inmate Washington from the Rikers transport. Inmate was brought into booking for processing. Inmate was escorted to Booking 2 Cell and read into SHU. When officer removed the handcuffs from inmate, inmate turned around and started punching at officers. Inmate was brought to the floor and restrained with body holds. Inmate was placed back on the wall and the strip search was completed. 169. Davon received an infraction ticket for the incident on or about March 28, 2018, which falsely accused him of “lunging” at staff and attempting to punch them when his handcuffs were removed. 170. Davon appeared at the disciplinary hearing on April 8, 2018. 171. Davon did not testify at the hearing because he feared further retaliation and violence. According to the facility Inmate Disciplinary Report, his only statement at the hearing was that he had nothing to say about the incident. 172. At the end of a hearing, Davon was sentenced to 360 days of punitive segregation—an extraordinarily long period— by the hearing officer, Defendant Grimes. 173. Since the assault, Davon has continued to experience pain, emotional distress, and traumatic thoughts.
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D. Davon Washington Is Held in Solitary Confinement at the Albany County Jail For Nine Months  174. From his arrival at the Albany County Jail on March 28, 2018 until his
departure in or around December 2018, with the exception of court visits, Davon was kept in a small solitary cell for at least 23 hours a day.
175. Davon had nothing to do in his cell: no meaningful human interaction, no education or programming, no music or television, and limited reading materials. He had limited access to phone calls, was not permitted to talk to other detainees, and did not leave his cell except to shower three times a week.
176. Davon was permitted to spend one hour a day out of his cell in a metal cage placed in the hallway outside his cell. The metal cage is placed next to a window. It is an empty, chain-link cage with nothing in it.
177. Davon was issued a number of disciplinary infractions for talking and “yelling,” when he attempted to speak with the other detainees housed in the SHU. One of these tickets resulted in him losing his commissary and phone privileges for 60 days.
178. If the young detainees in 4 East try to speak with each other, the SHU officers turn on two large fans that make it both loud and extremely cold in the unit.
179. Defendants denied Davon access to educational programming and materials. Davon filed grievances about this educational denial.
180. Davon was placed on psychiatric medication at Albany, including a medicine he had not previously required.
181. Davon also lost a substantial amount of weight—approximately 18 pounds—while at the Albany County Jail. When he arrived, he weighed 155 pounds, and as of
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October 5, 2018, he was down to 137 pounds. The food portions were small and Davon was constantly hungry, particularly at night. He was placed on Ensure and vitamins in an attempt to counteract the weight loss from inadequate nutrition.
182. While at the Albany County Jail, Davon had no visits from his family because it was too far for them to travel. However, at Rikers, his mother, sisters, brother, and other family members were able to visit him.
E. Albany County Jail Guards Beat Davon Washington in Retaliation for a Legal Visit on October 5, 2018 183. On October 5, 2018, Davon had a legal visit in the Albany County Jail
with his counsel in this action. 184. When the legal visit ended, multiple correction officers escorted Davon
out of the visiting area. 185. One of them was an individual who was also involved in the initial March
28, 2018 assault on Davon. 186. After the visit, the officers did not take Davon to the search area, as is
standard protocol. 187. Instead, three officers took Davon directly back to his cell and pushed him
into the back corner of the cell. There are no cameras inside the cell. 188. One of the officers then struck Davon in the face repeatedly on his face
with an open hand, switching between striking the left and right sides of his face. 189. He then stated, in sum and substance, referring to Davon’s legal visit:
“What did you think, that was going to stop us?” and “What you’re doing is not going to work.” 190. The officers took Davon’s legal paperwork from him. 35 

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Steven Espinal A. Steven Espinal Is Detained at Rikers Island Starting on November 18, 2017
 191. Steven Espinal is a 19-year-old Latino teenager detained at the Albany County Jail, where he is currently in solitary confinement. 192. Although he has criminal matters pending in the Bronx County Supreme Court, Steven has no adult criminal convictions. 193. Steven was diagnosed as a teenager with bipolar disorder and attentiondeficit/hyperactivity disorder. 194. At the age of 18, Steven was arrested and put in the custody of the New York City DOC. 195. He arrived at Rikers Island on November 18, 2017. 196. While at Rikers, Steven worked and received mental health services, including counseling, and educational services in support of his efforts to obtain a GED. 197. On February 10, 2018, Steven was detained at the George Motchan Detention Center (“GMDC”). 198. On this date, he and other detainees, all of whom were under 21 at the time, were allegedly involved in an altercation with a correction officer. 199. The correction officer was reported to have suffered a fracture to his spine. 200. The February 10, 2018 incident received widespread media coverage. Representatives of the Correction Officers Benevolent Association (“COBA”) made public statement blaming the incident on Mayor de Blasio’s policy of shielding detainees under 21 from solitary confinement. COBA blamed the inability to isolate detainees under 21 for an increase in attacks on correction officers.
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201. On February 10, 2018, DOC ESU officers brought Steven in a van from GMDC to a different building on Rikers Island to be fingerprinted and rearrested. There, the ESU officers hit Steven’s head on a wall and smacked him in the face.
202. On February 11, 2018, Steven was transferred from GMDC to the Otis Bantum Correctional Center (“OBCC”), a different facility on Rikers.
203. On February 12, 2018, Steven was arraigned in Bronx Criminal Court and charged with first-degree assault and other related counts stemming from the alleged February 10 incident.
B. The February 13, 2018 Transfer of Steven Espinal from Rikers to the Albany County Jail 204. On February 13, 2018, a captain woke Steven up in the early morning and
told him to get dressed because ESU was coming for him. Steven asked where he was going. The captain said he would be coming right back.
205. ESU officers came for Steven and another young man who was allegedly involved in the February 10 incident and put them in a transport van.
206. After Steven was secured in the van, ESU officers drove to another location to pick up two more Rikers detainees who were also allegedly involved in the February 10 incident.
207. Before being removed from Rikers, Steven was given no written notification of the basis of his transfer, received no hearing, and was not permitted to call his family or lawyers to inform anyone of his whereabouts. He was not even told that he was going to be transferred.
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208. ESU officers drove Steven and the other three detainees in the van for several hours. Steven did not know where he was being taken.
209. At approximately 11:00am, the van door was opened. 210. Steven saw a squad of approximately 12 law enforcement officers standing in front of him, wearing green fatigues and riot gear, including helmets and body armor. Steven would later learn that these were correction officers from the Albany County Jail. 211. One of the green-suited officers said, “We want Espinal first.” 212. Several green-suited officers grabbed Steven and took him to the intake area of the Albany County Jail. About two to three Rikers ESU officers also entered the Jail escorting Steven. 213. The Rikers ESU team removed Steven’s DOC handcuffs. 214. One of the Albany County Jail officers took his photograph. 215. Several Albany County Jail officers them re-handcuffed Steven in Albany County Jail cuffs and shackled him. 216. Steven followed all orders given to him and was cooperative throughout this process. 217. That same day, Steven’s criminal defense attorney, Ruben Fernandez, attempted to contact Steven at Rikers by videoconference but was told by DOC staff that Steven had been transferred from one Rikers Island facility to another. Steven’s attorney was unable to contact Steven and did not know his location. 218. DOC has represented in an August 15, 2018 letter to Steven’s criminal defense counsel that it transferred Steven to the Albany County Jail on an emergency basis due to “extraordinary circumstances” under 9 NYCRR § 7210.6(e).
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219. However, on information and belief, no written correspondence between the City and the State Commissioner exists, as required by law to authorize such a transfer.40
220. On March 28, 2018—a month and a half after Steven arrived in the Albany County Jail—SCOC issued an SJO on the basis that “the NYC Department of Correction is, as a result of safety considerations, unfit for the confinement of STEVEN ESPINA [sic].”
221. Defendant Williams obtained the SJO transferring Steven to Albany County.

C. Defendants Physically and Sexually Assault Steven Espinal at the Albany County Jail 222. After Steven was cuffed and shackled, several Albany County Jail
correction officers moved him into Booking Cell #2. 223. About eight to ten Albany County Jail correction officers and supervisors
were waiting for him there. Defendants Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were present.
224. Defendant Torrisi stated to Steven, in sum and substance: “This isn’t Rikers. This is Albany County. We do what we want.”
225. Defendant Torrisi then punched Steven in the face two times. 226. Defendant Torrisi then said to Steven, in sum and substance, “Once we take these cuffs off, you better start swinging.” 227. Defendants began the process of removing Steven’s handcuffs but did not actually remove them. They began punching Steven all over his body.



40

See supra ¶ 56.

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228. Steven fell to the ground and curled up in the fetal position. 229. Defendants kicked and stomped on Steven while he lay on the ground and/or stood by and did nothing to intervene. 230. Defendant Torrisi then stated to the other officers, “That’s enough. Let’s get him up, boys.” 231. The officers picked Steven up. Defendant Torrisi told Steven to face the wall and said, in sum and substance, “As soon as I take the cuffs off, put your hands high up on the wall.” Steven complied. 232. Defendants gave Steven a series of detailed instructions about how to remove his clothing. Steven did his best to comply. When he was unable to do so, Defendants punched him in the ribs. 233. Once his clothing was removed, Defendants provided Steven with an Albany County Jail jumpsuit, which he put on. 234. In total, the assault on Steven in the intake area lasted for several minutes. 235. Defendants then brought Steven to the BOSS chair and instructed him to pass through a metal detector to search for contraband. 236. Defendants then brought Steven to an x-ray room and ordered him to submit to a medical x-ray to search for contraband. 237. Defendants said that the x-ray had detected that Steven had a weapon in his body. 238. Defendants then brought Steven to the 4 East housing unit. 239. He was taken to a nurse at the back of the housing unit, who said that he was fine.
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240. Defendants then escorted Steven to Cell #3 in 4 East. 241. Defendants ordered Steven to remove his jumper in the cell and pass it back to them. Steven complied. 242. Defendants then punched and kicked Steven multiple times. An officer said, in sum and substance, “We’re going to get that out of you,” referring to the alleged contraband. 243. When Steven was on the floor, an officer put on gloves. Defendant Lawson held Steven’s arms down. The gloved officer forcefully inserted his fingers into Steven’s rectum. 244. The officer who had inserted his fingers into Steven’s rectum said he could not feel anything. Other officers said, in sum and substance, “He knows what he’s doing. He’s moving it up.” 245. Steven was bleeding from his rectum and in great pain. 246. Defendants then told Steven to defecate on the floor and threatened to beat the alleged contraband out of his body if he failed to do so. Defendants continued to assault Steven while he was lying naked on the floor. 247. The officers then ordered Steven to stand up. 248. One of the officers said, in sum and substance, “We’re going to make you sh*t it out.” 249. While Steven was standing against the wall, Defendant Beliveau used a taser against him.
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250. Steven was standing with his back to the officers when he was tased from a few feet away. He did not know what was happening. He felt extreme pain and felt unable to move. He fell to the ground.
251. The assault on Steven in Cell #3 lasted for several minutes in total. 252. After the assault, Steven was taken to the shower. He was then brought to the restraint chair. 253. The restraint chair is a physical restraint device that allows correction officers to fasten a detainee to a chair at the wrists, ankles, thighs, arms, and head. 254. While Steven was in the restraint chair, officers slapped and smacked him the face. They asked him, in sum and substance, “How does it feel not to be able to defend yourself?” 255. Steven was held in the restraint chair overnight. While in the chair, he passed out from pain and fatigue. 256. On the morning of February 14, 2018, Steven woke up in the restraint chair. Officers then brought him to the medical area. 257. As a result of the beating, Steven was bleeding, was bruised all over his body, and was dizzy and dazed. He was unable to urinate normally and saw blood in his urine. He could not hear out of one of his ears. 258. On February 14, 2018, Steven was taken to Albany Medical Center, where he was catheterized because he was unable to urinate normally. 259. In the intake area on the way to or from the hospital, Steven encountered Defendant Superintendent Lyons, who observed Steven’s physical condition.
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260. Steven feared retaliation from Defendants if he reported that that Albany County Jail guards had assaulted him while these guards listened to his report. He told medical staff that he had lost consciousness the day before in a “fight.”
261. Albany Medical Center staff documented scratches to his face, tenderness to his neck, subrapubic tenderness, “multiple bruises and abrasions on the bilateral upper extremities,” and “midline C spine tenderness” requiring a collar and CT scan of the head and neck.
262. After his return from Albany Medical Center, Steven was sent back to solitary confinement in Cell #3 on 4 East.
263. On February 16, 2018, Steven was transported to the Bronx for another inperson court appearance in the Bronx. The judge ordered that Steven be given immediate medical attention.
264. The Albany County Jail reports about the assault against Steven claim that he repeatedly “turned off the wall” to assault multiple staff members in riot gear while locked in a confined space:
[W]hile conducting a CERT operation in Booking processing new Riker’s [sic] Island Inmate Boarders, Inmate Espinal did not comply with staff orders during a strip search by turning off the wall towards staff & threatened to cut them. He was taken to the floor & restrained by staff until he was brought under control. After we completed the Booking process, he was taken to the X-ray room, where an X-ray was taken & showed positive for two objects in his rectum. He was then taken to SHU . . . . During his apparent attempt to remove the items, while covered in his own feces, after being given several direct orders to remain facing the wall, inmate turned from the wall & lunged at staff.
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D. Steven Espinal Remains in Solitary Confinement at the Albany County Jail, After More Than 10 Months There  265. For two weeks, Defendants provided Steven with no notice of the basis for
his punitive detention in solitary confinement. 266. An infraction ticket dated February 13, 2018 that falsely accused Steven of
assaulting staff was generated, but not served on Steven. 267. A disciplinary hearing was held on February 26, 2018, at which Steven
appeared. 268. Prior to the hearing, a sergeant told Steven that “no matter what
happened,” he would remain in punitive segregation for however long he was at the Albany County Jail, so he should just “admit to everything” so that it can “go easy.”
269. Steven had no opportunity to prepare for the hearing and was not given an opportunity to identify or call witnesses.
270. The hearing officer, Defendant Sergeant Foe #17, sentenced Steven to an extraordinary 600 days in solitary confinement.
271. On April 10, 2018, Steven appeared on his Bronx criminal matter before Justice Armando Montano. At that time, Justice Montano directed Steven’s release from punitive segregation.
272. Steven remains in solitary confinement, where he has been continuously since February 13, 2018, in violation of a court order.
273. Steven has been kept in a small solitary cell for at least 23 hours a day. Steven has nothing to do in his cell: no meaningful human interaction, no education or programming, no music or television, and limited reading materials.
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274. He has limited access to phone calls, is not permitted to talk to other detainees, and other than access to showers three times a week, he is not permitted to leave his cell.
275. Steven usually declines to spend his one hour a day of “recreation” in the cage outside his cell because it is not materially different from staying in his cell.
276. Steven does not have a high school diploma and has been denied access to educational services since February 12, 2018. He has informed DOC and its Institutional Service Unit both verbally and in writing that he wishes to participate in educational services. He received on educational packet in September 2018 but no other materials. Steven was told by corrections officers that he would receive no schooling while in the Albany County Jail.
277. Steven is permitted visitors one hour a week on Tuesdays from 3:30-4:30. Because the Albany County Jail is such long a distance from his mother’s house in Pennsylvania, she is unable to visit.
278. Steven is only permitted to access mental health services in his cell, when a counselor will come to his cell and speak with him in the presence of a correction officer without privacy or confidentiality.
279. Steven has not received sufficient access to his criminal defense counsel since February 13, 2018. Orders to have Steven produced in court for attorney visits have gone unheeded. On March 26, 2018, Justice Margaret Clancy signed an order to have Steven produced to speak to his attorneys on April 4, 2018. On April 27, 2018, Justice Shari Michels signed an order to have Steven produced on May 1, 2018—a date on which other Rikers detainees housed at the Albany County Jail were to be brought to court. Both orders were transmitted to the New York City DOC—and both orders went ignored.
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280. On March 2, 2018, and March 13, 2018, Steven was scheduled to appear in Bronx Supreme Court Criminal Term. Courts in New York City were open, and detainees housed in detention centers closer to the Bronx courthouses were produced for their appearances. But Steven was not produced for his scheduled court appearances because of inclement weather.
281. Since the assault, Steven has continued to experience pain, emotional distress, and traumatic thoughts. He still has difficulty urinating normally and sometimes needs to be catheterized to have urine removed from his bladder.
E. Defendants Brutally Assault Steven Espinal Again on July 4, 2018 
282. On the morning of July 4, 2018, a nurse was making medical rounds in 4 East at the Albany County Jail.
283. Steven was in Cell #11. He was sleeping and did not hear the nurse’s questions. As a result, he did not respond.
284. Steven sometimes has difficulty waking up because he takes psychiatric medication that makes him tired.
285. When Steven did not respond to the nurse’s questions, several correction officers entered his cell.
286. They pinned him to the bed, handcuffed him, and shackled him. 287. The officers then beat Steven for failing to respond to the nurse. 288. The officers grabbed Steven’s hair and sprayed him in the face with pepper spray at close range. 289. The officers kicked, punched, and elbowed Steven while he was handcuffed and shackled.
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290. After the assault, Steven had difficult opening his jaw, which was swollen and very painful.
291. Steven also had a deep cut over his left temple. 292. He had pain in his chest, neck, and back. 293. Steven was taken to Albany Medical Center. Upon arrival at the hospital, Steven was unable to open his jaw. 294. Doctors noted an abrasion to the top of Steven’s left shoulder, as well as “[h]ead trauma” and “[l]eft jaw pain and swelling post assault.” 295. Steven was given a CT scan of the head, neck, and cervical spine, which revealed no fractures. The doctor found “asymmetrical soft tissue edema and contusion along the lateral aspect of the left mandible.” 296. A doctor also observed a laceration on the left side of Steven’s face. 297. The medical diagnosis given to Steven by Albany Medical Center was “assault.”
F. Notices of Claim 
298. Within ninety days after the February 13, 2018, assault upon Steven, written Notices of Claim, sworn by Steven, were served upon the City of New York at the Comptroller’s Office at 1 Centre Street, New York, New York and upon the County of Albany at 112 State Street, Albany, New York.
299. On October 5, 2018, a written notice of claim pertaining to the July 4, 2018 assault, sworn by Plaintiff, was served upon the County of Albany at 112 State Street, Albany, New York.
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300. An examination pursuant to General Municipal Law § 50-h was conducted by the County of Albany on November 21, 2018, at which counsel for the County inquired of Steven as to both the February 13 and the July 4 assaults.
301. Counsel for the City of New York was invited to participate in the 50-h hearing on November 21 but declined.
302. At least thirty days have elapsed since the service of the Notices of Claim, and adjustment or payment of the claim has been neglected or refused.
303. This action has been commenced within one year and ninety days after the happening of the events upon which the claims are based.
John Doe A. John Doe Was Detained at Rikers Island on December 18, 2015
304. John Doe is a 25-year-old Latino man from the Bronx. 305. Doe was arrested on December 17, 2015, and was incarcerated in the custody of DOC, mainly on Rikers Island, beginning on that date.
B. After a Visit from a High-Ranking DOC Security Official, John Doe Is Transferred to the Ulster County Correctional Facility on an SJO 306. On or about January 16, 2018, Doe was housed in unit 9 South at the
Manhattan Detention Complex (“MDC”), in Lower Manhattan. 307. Defendant Sullivan came to see Doe in 9 South on or about January 16,
2018. 308. Doe was in the cage outside his cell when Defendant Sullivan came.
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309. Defendant Sullivan asked Doe, in sum and substance, “Why are you not locked in? Typical.”
310. Doe responded that he did not know he was supposed to lock into his cell. 311. Defendant Sullivan said, in sum and substance, “That’s OK. Soon enough we won’t have to deal with your bullshit anymore. You’re going somewhere good, somewhere that you’ll like.” 312. Doe did not know what Defendant Sullivan was talking about. 313. On January 17, 2018, Doe was transferred, along with other detainees, to the Ulster County Jail on a substitute jail order. 314. Doe did not receive notice that he was going to be transferred out of New York City in advance. 315. Doe did not know he was going to Ulster County until he got there.
C. John Doe Is Transferred from Ulster County to the Albany County Jail 
316. Doe and the other Rikers detainees spent only about a week at the Ulster County Correctional Facility.
317. On or about January 24, 2018, Doe was transferred to the Albany County Jail.
318. Doe arrived at the Albany County Jail at around 10:00 or 11:00 am on the date of his transfer.
319. Doe was transported from Ulster to the Albany County Jail by New York City DOC ESU officers.
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320. When the door opened, Doe was met by the Green Team, dressed in riot gear and green vests.
321. Defendant Torrisi was in command of the Green Team.
D. Defendants Brutalize and Sexually Assault John Doe 
322. The Green Team escorted Doe to a booking cell in which he was subjected to a strip search.
323. During the search process, Defendants gave bizarrely detailed and confusing instructions about the manner and sequence in which Doe should remove his clothing.
324. As Doe tried to carry out the instructions, Defendants began to hit and kick him, claiming that Doe was carrying out their instructions improperly.
325. After knocking Doe to the ground, Defendants picked him back up and told him to do a better job of listening to their instructions.
326. Defendants then brought Doe to the BOSS Chair, which did not indicate the existence of any contraband in Doe’s body.
327. From the BOSS Chair, Defendants brought Doe to a room with an x-ray table.
328. Defendants forcibly placed Doe on the x-ray table and held him down so that he could be x-rayed.
329. Defendants said that the x-ray detected the presence of a razor secreted in Doe’s rectum.
330. In the x-ray room, Defendant Torrisi slapped Doe twice and said, in sum and substance, “Give me the weapon now, or this will be the worst day of your life.”
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331. Another correction officer hit Doe one time in the x-ray room. 332. From the x-ray room, Defendants took Doe to Cell #11 in 4 East. 333. Doe was naked in Cell #11 with eight to ten correction officers, including Defendants Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Frank Harris. 334. In Cell #11, Defendants told Doe, in sum and substance, to remove the razor they claimed to have seen in his body or they would kill him. 335. Defendants removed Doe’s handcuffs. 336. Six to eight correction officers, including Defendant Torrisi, then began to assault Doe with their fists and batons. 337. During the assault, Defendants kept telling Doe to remove the blade from his rectum. 338. At one point, a correction officer sprayed Doe in the face at close range with pepper spray. 339. During the beating, a correction officer told Doe, in sum and substance: “We kill people here. Is that what you want?” 340. During the events in Cell #11, Doe informed Defendants that he had a bullet in his right leg from being shot on a previous occasion. 341. In response, one of the correction officers began to stomp on Doe’s right leg in an effort to cause him further pain. 342. At a certain point during the beating in Cell #11, Defendant Torrisi told Doe, referring to the alleged contraband in his rectum: “Either you give it to us, or we go in and get it.” 343. Doe responded by asking for food and water to stimulate his bowels.
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344. In response, Defendant Torrisi slammed Doe’s head against the wall and caused Doe to bend over.
345. Defendant Torrisi instructed a correction officer to put a baton in Doe’s rectum.
346. The officer jammed a baton into Doe’s rectum and repeatedly pushed it in and out.
347. When the officer removed the baton from Doe’s rectum, Doe saw blood on the baton.
348. Defendant Torrisi asked Doe whether he had ever felt 50,000 volts course through his body.
349. At that point, an officer used a taser against Doe. 350. Doe involuntarily urinated on himself. 351. The taser wires remained attached to Doe. 352. Defendant Torrisi said, in sum and substance: “We’re going to kill you. This isn’t Rikers anymore.” 353. Defendants tased Doe a second time. 354. Doe involuntarily defecated on himself. 355. While Doe was lying on the ground in his own urine and feces, a correction officer inserted his finger into Doe’s rectum. 356. Defendants then tased Doe a third time, at which point Doe involuntarily defecated on himself again. 357. A correction officer disconnected the wires of the taser from Doe’s body.
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358. Defendants then shot Doe again with a different Taser. Again he involuntarily defecated on himself.
359. At that point, Defendants told Doe that the weapon was no longer in his rectum.
360. After Doe was tased for the last time, one of the correction officers hit him and said, in sum and substance, “That’s for getting your sh*t on my shoes, you f*cking animal.”
361. Doe lost consciousness multiple times during the beating.
E. Doe Is Denied Medical Attention and Made to Sleep in His Own Bodily Waste 362. After the beating in Cell #11, Defendants brought Doe back to the x-ray
room to be x-rayed a second time. 363. Doe asked for medical attention from the person in the x-ray room who
appeared to be a medical professional, but his request was refused. 364. After the second x-ray, Defendants provided Doe with a jail jumper but
denied him the opportunity to clean himself and did not decontaminate him from the pepper spray they used against him.
365. Doe was taken to Cell #14 in 4 East. 366. That night, Doe was forced to sleep with the remnants of his own urine and feces stuck to his body. 367. The next morning, on January 25, 2018, Doe again requested medical attention. 368. Doe had an open wound on his forehead and two black eyes, and his left eye was swollen shut.
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369. Doe’s face was bruised and swollen, and his ribs and chest were bruised.
370. Doe’s rectum was damaged and bled for weeks after the incident.
371. Defendant Mylroie denied Doe medical attention and told him to take
Motrin.
372. Doe was not examined by a physician until approximately a week after the
beating that occurred on January 24, 2018.
373. The Albany County Jail reports concerning the January 24, 2018 assault
on Doe falsely state that Doe “turn[ed] off the wall” to assault staff and “moved toward staff” in
an aggressive manner:
During a CERT operation processing new Riker’s [sic] Island Inmate Boarders, Inmate [Doe] was uncooperative during the initial strip search in Booking by turning off the wall towards staff. He was taken to the floor & restrained by staff. He was placed back on wall & the strip search was completed without further incident. He was then escorted to the X-ray room, where an X-ray was taken of him, which was positive for contraband. Inmate was then escorted to SHU Cell 11 . . . . He was again taken to the floor & restrained after he turned away from the wall & lunged at staff. . . . Capt. Harris relieved Sgt. Poole & gave Inmate [Doe] several direct orders to remove the item. Capt. Harris applied two separate five second taser cycles to inmate, when he did not comply with orders & moved toward staff with his hands & arms covered in feces.
F. John Doe Is Placed in Solitary Confinement at the Albany County Jail 
374. Doe was issued an infraction ticket on January 24, 2018 that charged him
with assaulting staff, among other offenses.
375. A disciplinary hearing was held on February 6, 2018.
376. At the hearing, Doe denied the charges and explained that he had been
subjected to an unlawful search and that his rights had been violated.
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377. In response, the hearing officer, Lieutenant Frank Foe #15, said, in sum and substance, “OK, you talk a good game, but we are still going to find you guilty regardless.”
378. Lieutenant Foe #15 sentenced Plaintiff Doe to the extraordinary sum of 550 days in solitary confinement.
379. Doe spent approximately the next ten months in solitary confinement without meaningful human contact.
380. Doe had previously spent time in solitary confinement at Rikers Island, but the time in solitary in Albany was significantly more difficult because he had no outdoor recreation, no visitors, limited phone access, and very little contact with other detainees.
381. During the time in his cell, Doe thought constantly about the assault that happened on the day he arrived.
382. He was alone and felt terrified. 383. Doe became paranoid that the correction officers at the Albany County Jail were tampering with his food. 384. Doe usually chose not to take his one daily hour of “recreation” outside his cell because it was functionally no different than staying in his cell.
G. Defendants Attempt to Intimidate John Doe 
385. On or about January 26, 2018, Torrisi came to Doe’s cell prior to a legal visit that Doe received from an attorney.
386. Defendant Torrisi told Doe, in sum and substance, “If you snitch on us, we will come up here at four in the morning and put you in a body bag. We will kill you. We do that up here.”
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387. Torrisi asked Doe if he was a gang member. 388. When Doe said no, Torrisi punched him in the face and called him a liar. 389. On or about March 18, 2018, Defendant Torrisi again punched Doe in the face in retaliation for Doe’s complaints about having been sexually assaulted. 390. Since the assault on January 24, 2018, Doe has continued to experience pain, emotional distress, and traumatic thoughts. He frequently thinks about the assault, and ruminates about it. 391. While he was detained at the Albany County Jail, John Doe was terrified as a result of the assault. He was afraid to eat because he became scared that guards were poisoning his food. 392. On October 29, 2018, Doe pleaded guilty to criminal possession of a controlled substance in the third degree. 393. Doe is now serving his sentence in the custody of DOCCS. 394. Doe considered the plea offer to be a poor one with a long sentence, but he chose to accept it anyway so he could get out of the Albany County Jail and into a different facility.
Pariis Tillery A. Pariis Tillery Is Detained By DOC Starting on March 4, 2017
 395. Pariis Tillery is a 25-year-old African-American young man detained at the Albany County Jail, where he is currently in solitary confinement. 396. Pariis received a GED and then completed two semesters at the New York City College of Technology.
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397. Although he has criminal matters pending in the Brooklyn County Supreme Court, Pariis has no adult criminal convictions.
398. On or about March 4, 2017, Pariis was arrested and placed in the custody of the New York City DOC.
399. Pariis was first detained at the Brooklyn Detention Center, where, on August 7, 2018, he was accused of assaulting a correction officer.
400. On August 8, 2018, Pariis was transferred to Rikers Island.
B. The August 9, 2018 Transfer of Pariis Tillery from Rikers to the Albany County Jail 401. On August 9, 2018, Defendants Brann and Williams obtained an SJO
transferring Pariis to Albany County. 402. On August 9, 2018, a DOC captain woke Pariis up in the early morning
and told him to get dressed because ESU was coming for him. Pariis asked where he was going but was not given an answer.
403. ESU officers came for Pariis and put him in a transport van. 404. Before being removed from Rikers, Pariis was given no written notification of the basis of his transfer, received no hearing, and was not permitted to call his family or lawyers to inform anyone of his whereabouts. He was not even told that he was going to be transferred. 405. ESU officers drove Pariis in the van for several hours. He was the only person in the van. Pariis did not know where he was being taken. He asked repeatedly where he was going but no one would tell him.
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406. When the van door opened, Pariis saw a squad of approximately 12 law enforcement officers standing in front of him, wearing green fatigues and riot gear, including helmets and body armor. Pariis would later learn that these were correction officers from the Albany County Jail.
407. Several green-suited officers grabbed Pariis and took him to the intake area of the Albany County Jail. About two to three Rikers ESU officers who had brought Pariis from Rikers also entered the Jail.
408. Pariis followed all orders given to him and was cooperative throughout this process.
C. Defendants Physically Assault Pariis Tillery at the Albany County Jail 
409. After Pariis was cuffed and shackled, several Albany County Jail correction officers moved him into Booking Cell #2 and removed his handcuffs.
410. About eight to ten Albany County Jail correction officers and supervisors were waiting for him there. Defendants Lawson, Shield #323, Shield #99, and Albany County Correction Officers Frank Foes #19-21 were present.
411. One Albany correction officer said to him: “Do the same thing you did on Rikers Island.”
412. Defendant Sergeant Foe #18 said to Pariis, “Do you know where you are at?” When Pariis said “no,” Defendant Sergeant Foe #18 punched Pariis in the face. Eight or nine correction officers then proceeded to beat Pariis about his face and body.
413. Pariis began to bleed from his nose. Defendants placed a “spit mask” on his face, though Pariis was not spitting at anyone.
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414. Defendant Lawson, Shield #323, Shield #99, and Albany County Correction Officers Frank Foes #19-21 punched, kicked, and stomped on Pariis.
415. Pariis fell to the floor, where Defendants continued to kick and punch him.
416. After beating him for approximately 10 minutes, Defendants brought Pariis to the BOSS chair and instructed him to pass through a metal detector to search for contraband. Pariis complied with all instructions. The BOSS chair did not indicate the presence of contraband on Pariis’s person.
417. Defendants then stated to Pariis, in sum and substance: “Do you have something? You Rikers guys are always lying. If you do have something, we’re going to beat you until you sh*t it out.”
418. Defendants then brought Pariis to an x-ray room and ordered him to submit to a medical x-ray to search for contraband. Pariis complied.
419. Defendants then escorted Pariis to Cell #14 in 4 East. 420. Defendants instructed Pariis to remove his jumpsuit. Pariis complied. 421. Defendants then brandished a taser at Pariis. 422. One Defendant stated to Pariis, “Take it out of your ass, you monkey.” 423. Defendants then hit, punched and kicked Pariis multiple times. An officer said, in sum and substance, “We’re going to get that out of you,” referring to the alleged contraband. 424. The assault on Pariis in Cell #14 lasted for a significant period of time. 425. Pariis was taken back for another x-ray and then returned to his cell.
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426. Defendant Mylroie came to his cell and observed his bleeding nose and other visible injuries and told him he was fine.
427. Pariis was in extreme pain after the assault and passed out. He could not hear out of his left ear and his head hurt. His nose was swollen, and he had two black eyes, dizziness, and bruises over much of his body.
428. Pariis told correction officers that his head hurt and that he could not hear from his left ear. He requested medical attention on August 10, 2018.
429. Four days after he was assaulted, on August 13, 2018, Pariis was finally taken for treatment of the serious injuries he suffered during the August 9 assault.
430. Despite the presence of correction officers with him at the hospital, Pariis told the medical personnel that he had been assaulted by correction officers at Albany County Jail.
431. Albany County Jail medical records dated August 13, 2018, document that he had “Trauma to Head” and “Blood in Ear,” as well as “ecchymosis to orbits.” The Albany County Jail records request that the outside medical provider rule out “skull fracture” and “cranial trauma.”
432. At the emergency room of Albany Memorial Hospital, Pariis was diagnosed with tympanic membrane perforation, head injury, and a concussion. He was prescribed and antibiotic and given multiple CT scans for possible fractures in his skull, face, or body.
433. Tympanic membrane perforation, or a ruptured eardrum, is a hole in the eardrum. It is an injury commonly caused by severe trauma to the head.
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434. The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2004), commonly known as the Istanbul Protocol, is the authoritative United Nations document which sets forth international guidelines on how to investigate allegations of torture. Chapter 5 of The Istanbul Protocol, titled “Physical Evidence of Torture,” states: “Trauma to the ears, especially rupture of the tympanic membrane, is a frequent consequence of harsh beatings.” It goes on to describe how to conduct an examination of the tympanic membrane and ear for injuries and hearing loss related to abuse and torture.
435. After his return from Albany Memorial Hospital, Pariis was sent back to solitary confinement in Cell #14 on 4 East.
436. On or about August 14, 2018, Pariis’s mother and grandmother traveled by bus from Brooklyn to Albany to visit him and observed his injuries from the beating.
437. Albany County Jail medical records dated August 20, 2018 document that Pariis suffered a “L TM perforation, concussion, Head Injury” on August 9, 2018 and that he was “sent to ER on 8/13/18 because of ear pain L TM perf. He was started on Augmentin and referred to ENT. CT head/cspine/facial bones negative.”
438. One month after the assault on September 4, 2018, Pariis was taken to see a doctor at Albany Medical Center to assess the perforation to his left ear. Albany Medical Center records from that visit document that Pariis had suffered “significant facial abrasions and periorbital ecchymoses” as a result of the assault.
439. Periorbital ecchymosis, or “raccoon eye,” is produced by blood tracking into periorbital tissues, which is a frequent symptom after traumatic injuries to the head and neck.
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440. Albany County Jail medical records dated November 18, 2018, document that Pariis continues to suffer from headaches from the assault.
441. The Albany County Jail reports about the assault against Pariis claim that he repeatedly “turned around” to assault multiple staff members in riot gear while locked in a confined space:
At the above date and time, Inmate Tillery was admitted to the SHU. Inmate Tillery was escorted to Holding Cell 2 for the read in to be completed. When the mechanical restraints were removed, Inmate Tillery immediately turned around and began throwing punches at officers. Inmate was taken to the floor and restrained. Once compliant, Inmate was placed back on the wall. During the strip search, Inmate again turned towards staff, threw punches, and began spitting. Spit mask applied, Inmate restrained. 442. After the assault, Defendant Lyons came to Pariis’s cell and stated: “You are not on Rikers anymore, we run this jail.” 443. Since the assault on August 9, 2018, Albany County Jail guards have continued to taunt Pariis about the beating, stating that when he first arrived at Albany County Jail, “you were crying like a little girl.” 444. Pariis has also heard Defendant Torrisi use racial epithets toward another African-American detainee in SHU. Defendant Torrisi stated to another detainee within Pariis’s hearing: “You’ve got to be the stupidest ni**er I ever met. Do you want to get beat up?”
D. Pariis Tillery Is Held in Solitary Confinement at the Albany County Jail Since August 9, 2018  445. An infraction ticket that falsely accused Pariis of assaulting staff, dated
August 9, 2018, was generated.
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446. A disciplinary hearing was held on August 24, 2018, at which Pariis appeared.
447. Pariis had no opportunity to prepare for the hearing and was not given an opportunity to identify or call witnesses.
448. The hearing officer, Defendant Lieutenant Frank Foe #3, sentenced Pariis to the extraordinary amount of 300 days in solitary confinement.
449. Pariis remains in solitary confinement, where he has been continuously since August 9, 2018.
450. Pariis has been kept in a small solitary cell for at least 23 hours a day. Pariis has nothing to do in his cell: no meaningful human interaction, no education or programming, no music or television, and limited reading materials.
451. Pariis initially had no access to phone calls and was denied the right to contact his lawyer for his pending criminal case, interfering with his ability to participate in his own defense.
452. Pariis now has limited access to phone calls, is not permitted to talk to other detainees, and other than access to showers three times a week, he is not permitted to leave his cell. The cost of collect phone calls from Albany is also prohibitive for Pariis’s family, since the charge is $25 for 30 minutes.
453. Pariis usually declines to spend his one hour a day of “recreation” in the cage outside his cell because it is not materially different from staying in his cell.
454. Pariis is permitted visitors one hour a week. To visit, his elderly mother must take a long bus ride from New York City. The cost of the transportation for the visit is often prohibitive for her. Because of the distance, cost, a physical disability, and her age, she is
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rarely able to visit Pariis in Albany. When he was detained in New York City, she visited Pariis frequently, as did other family members and friends.
455. Pariis has family, including a one-year-old son, whom he has not seen since his transfer to the Albany County Jail on August 9, 2018, because of the distance. When he was in New York City, Pariis received visits from and had contact with his young son on a regular basis.
456. Pariis is only permitted to access mental health services in his cell, when a counselor will come to his cell and speak with him in the presence of a correction officer without privacy or confidentiality.
457. Since the assault by Defendants, Pariis has continued to experience headaches, dizziness, tinnitus, ear and other pain, emotional distress, and traumatic thoughts.

IX. The Experiences of Other New York City Detainees Transferred to Albany 458. Other New York City detainees transferred to Albany County have been
subjected to the same brutality, following the same pattern.
Richard Roe 459. On January 24, 2018, a then-24-year-old African-American detainee Richard Roe arrived at the Albany County Jail from Ulster County along with Plaintiff John Doe. 460. Albany County Jail officers, under the direction of Defendant Torrisi, beat Richard Roe in his assigned cell in 4 East. 461. Richard Roe was later sentenced to 450 days in solitary confinement.
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462. Yet again, official reports from the Albany County Jail falsely claim that officers had to use force defensively after the detainee “turned off the wall”:
CERT Team 1 escorted [the inmate] through the booking process, x-ray and escort to the SHU. After a positive x-ray for contraband, inmate was placed on the wall in his cell and ordered to remove the object. Inmate turned off the wall 2 times and was taken to the floor . . . .
David Doe 463. Other detainees who arrived at the Albany County Jail with Plaintiff Steven Espinal on February 13, 2018 were also beaten. 464. On January 24, 2018, 18-year old detainee David Doe arrived at the Albany County Jail from Rikers. 465. Albany County Jail officers, under the direction of Defendant Torrisi, repeatedly punched David Doe in his face and body in a booking cell when he was unable to follow commands to remove his clothing in a specific way. 466. After officers claimed to have seen an object in his rectum on an x-ray, the officers took David Doe to Cell #16 in 4 East. There, they continued to beat David Doe until they claimed that the object had been removed to their satisfaction. 467. David Doe, who has since turned 19, remains at the Albany County Jail in solitary confinement.
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FIRST CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process (Plaintiffs Washington and Espinal Against Defendants City, Brann, and Williams)
468. The Rules of the City of New York, title 40, § 1-17(b)(1)(ii), confer upon pretrial detainees in City custody who are ages 21 and younger a constitutionally protected liberty interest in not being subjected to solitary confinement.
469. Plaintiffs Washington and Espinal were deprived of that liberty interest when Defendants Brann and Williams obtained SJOs transferring them to Albany County.
470. The deprivation occurred without due process of law because Plaintiffs Washington and Espinal did not receive notice of the impending transfer, notice of the reasons for the transfer, or an opportunity to be heard.
471. Defendant City caused the deprivation because it has an official policy or custom of transferring pretrial detainees ages 21 and younger to other jurisdictions on SJOs without providing notice of the impending transfer, notice of the reasons for the transfer, or an opportunity to be heard.
472. Defendant City is also liable for the deprivation because Defendant Brann acted in her capacity as the final municipal policymaker with respect to SJOs pursuant to state law.
473. As a result of Defendants’ unlawful conduct, Plaintiffs Washington and Espinal suffered the injuries hereinbefore alleged.
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SECOND CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Substantive Due Process – Punitive Transfer
(All Plaintiffs Against Defendants City, Brann, and Williams; Plaintiff Washington Additionally Against Defendant Walker; Plaintiff Doe Additionally Against Defendant
Sullivan) 474. Defendants Brann and Williams obtained SJOs to transfer Plaintiffs outside the City for the purpose of punishing them and without legitimate penological justification, in violation of their substantive due process rights. 475. As evidenced by the comments made to Plaintiff Washington, Defendant Walker caused Plaintiff Washington to be transferred outside the City on an SJO for the purpose of punishing him and without legitimate penological justification, in violation of his substantive due process rights. 476. As evidenced by his comments to Plaintiff Doe, Defendant Sullivan caused Plaintiff Doe to be transferred outside the City on an SJO for the purpose of punishing him and without legitimate penological justification, in violation of his substantive due process rights. 477. Defendant City caused the violation of Plaintiffs’ substantive due process rights because it has an official policy or custom of transferring pretrial detainees ages 21 and younger to other jurisdictions on SJOs for the purpose of subjecting them to a form of punishment—punitive segregation—unavailable in City jails. 478. Defendant City is also liable for the violation of Plaintiffs’ substantive due process rights because Defendant Brann acted in her capacity as the final municipal policymaker with respect to SJOs pursuant to state law. 479. As a result of Defendants’ unlawful conduct, Plaintiffs suffered the injuries hereinbefore alleged.
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THIRD CAUSE OF ACTION 42 U.S.C. § 1983 – First Amendment Retaliation (Plaintiff Washington Against Defendants City, Brann, Williams, and Walker) 480. On or about March 28, 2018, Defendants Brann and Williams requested that Plaintiff Washington be transferred outside the City on an SJO. 481. As evidenced by the comments made to Plaintiff Washington, Defendant Walker caused Plaintiff Washington to be transferred outside the City on an SJO. 482. Defendants Brann, Williams, and Walker did so for the purpose of punishing Plaintiff Washington for the exercise of his First Amendment rights, including by lodging repeated complaints with the Legal Aid Society Prisoners’ Rights Project. 483. Defendants Brann, Williams, and Walker’s actions were without legitimate penological justification. 484. Defendant City is liable for the violation of Plaintiff Washington’s substantive due process rights because Defendant Brann acted in her capacity as the final municipal policymaker with respect to SJOs pursuant to state law. 485. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the damages hereinbefore alleged.
FOURTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Washington Against Defendants City, Albany County, Apple, Lyons, Torrisi, Valvo,
“Superman,” Lawson, Haley, LaBombard, Anzalone, and Shield #323) 486. On or about March 28, 2018, Defendants Torrisi, Valvo, “Superman,”
Lawson, Haley, LaBombard, Anzalone, and Shield #323 used objectively unreasonable force against Plaintiff Washington, and/or failed to prevent others from doing so despite being aware
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of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it.
487. Defendant Albany County caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to violent torture at the Albany County Jail.
488. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Washington’s constitutional rights because, among other things, they were aware of the regular practice of torture of Rikers detainees by officers under their command and failed to take remedial action, they were aware of the torture as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care.
489. Defendant City caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
490. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
FIFTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Sexual Assault of Pretrial Detainee (Plaintiff Washington Against Defendants City, Albany County, Apple, Lyons, Torrisi, Valvo,
“Superman,” Lawson, Haley, LaBombard, Anzalone, and Shield #323) 491. On or about March 28, 2018, Defendants Torrisi, Valvo, “Superman,”
Lawson, Haley, LaBombard, Anzalone, and Shield #323 sexually assaulted Plaintiff Washington by digitally penetrating him in his rectum and/or failed to take reasonable steps to stop others
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from doing so despite being aware of the sexual assault and having a reasonable opportunity to intervene to prevent it.
492. The forcible penetration of Plaintiff Washington was undertaken maliciously, with the purpose of humiliating and degrading Plaintiff Washington, and not for any legitimate penological purpose.
493. Defendant Albany County caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to violent torture, including sexual assault, at the Albany County Jail.
494. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Washington’s constitutional rights because, among other things, they were aware of the regular practice of sexual assault by officers under their command and failed to take remedial action, they were aware of the sexual assault as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the sexual assault occurred, and they were deliberately indifferent to the security of detainees in their care.
495. Defendant City caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to sexual assault there.
496. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
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SIXTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourth Amendment – Unreasonable Search (Plaintiff Washington Against Defendants City, Albany County, Apple, Lyons, Torrisi, Valvo, “Superman,” Lawson, Haley, LaBombard, Anzalone, and Shield #323)) 497. On or about March 28, 2018, to the extent their actions can be characterized as a manual body cavity search, Defendants Torrisi, Valvo, “Superman,” Lawson, Haley, LaBombard, Anzalone, and Shield #323 conducted an unreasonable manual body cavity search of Plaintiff Washington by digitally penetrating him in his rectum, and/or failed to take reasonable steps to stop others from doing so despite being aware of the unreasonable search and having a reasonable opportunity to intervene to prevent it. 498. The manual body cavity search, to the extent Defendants’ assault can be characterized as such, was unreasonable in light of the scope of the intrusion, the manner in which it was conducted, the purported justification for initiating it, and the place in which it was conducted. 499. Defendant Albany County caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to unreasonable manual body cavity searches, at the Albany County Jail. 500. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Washington’s constitutional rights because, among other things, they were aware of the regular practice of unreasonable manual body cavity searches by officers under their command and failed to take remedial action, they were aware of the unreasonable manual body cavity search as it was happening and failed to take action to prevent it, they created Albany County’s policy or
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custom pursuant to which the unreasonable manual body cavity search occurred, and they were deliberately indifferent to the security of detainees in their care.
501. Defendant City caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to unreasonable manual body cavity searches there.
502. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
SEVENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Failure to Intervene
(Plaintiff Washington Against Defendants City and New York City Correction Officers Frank Foes #1-3) 503. Defendants New York City Correction Officers Frank Foes #1-3, the ESU officers who transported Plaintiff Washington to Albany, knew that Defendants Torrisi, Valvo, Lawson, Haley, LaBombard and Anzalone were going to violate, and were in fact violating, the constitutional rights of Plaintiff Washington by using objectively unreasonable force against him, sexually assaulting him, and/or conducting an unreasonable search of him. 504. Defendants Foes #1-3 had a reasonable opportunity to intervene to prevent these violations. 505. Defendants Foes #1-3 failed to take reasonable steps to intervene. 506. Defendant City caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
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507. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
EIGHTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing (Plaintiff Washington Against Defendants Albany County, Apple, Lyons, and Grimes)
508. On or about April 8, 2018, Defendant Grimes presided over a sham disciplinary hearing with a predetermined outcome, during which Plaintiff Washington was told that anything he did would not matter to the outcome, as a result of which Plaintiff Washington was sentenced to 360 days in solitary confinement.
509. Defendant Albany County caused the violation of Plaintiff Washington’s due process rights because it has an official policy or custom of keeping any detainee who has ever been accused of assaulting staff anywhere in solitary confinement, and an official policy or custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement.
510. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Washington’s constitutional rights because, among other things, they directed their staff to keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
511. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
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NINTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Espinal Against Defendants City, Albany County, Apple, Lyons, Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February 13, 2018 Incident)
512. On or about February 13, 2018, Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton used objectively unreasonable force against Plaintiff Espinal, and/or failed to take reasonable steps to stop others from doing so despite being aware of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it.
513. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to violent torture at the Albany County Jail.
514. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of the regular practice of torture by officers under their command and failed to take remedial action, they were aware of the torture as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care.
515. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
516. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
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TENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Sexual Assault of Pretrial Detainee (Plaintiff Espinal Against Defendants City, Albany County, Apple, Lyons, Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February 13, 2018 Incident)
517. On or about February 13, 2018, Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton sexually assaulted Plaintiff Espinal by digitally penetrating him in his rectum and/or failed to take reasonable steps to stop others from doing so despite being aware of the sexual assault and having a reasonable opportunity to intervene to prevent it.
518. The forcible penetration of Plaintiff Espinal was undertaken maliciously, with the purpose of humiliating and degrading Plaintiff Espinal, and not for any legitimate penological purpose.
519. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to violent torture at the Albany County Jail.
520. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of the regular practice of sexual assault by officers under their command and failed to take remedial action, they were aware of the sexual assault as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the sexual assault occurred, and they were deliberately indifferent to the security of detainees in their care.
521. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or
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dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to sexual assault there.
522. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
ELEVENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourth Amendment – Unreasonable Search (Plaintiff Espinal Against Defendants City, Albany County, Apple, Lyons, Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February 13, 2018 Incident) 523. On or about February 13, 2018, to the extent their actions can be characterized as a manual body cavity search, Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton conducted an unreasonable manual body cavity search of Plaintiff Espinal by digitally penetrating him in his rectum, and/or failed to take reasonable steps to stop others from doing so despite being aware of the unreasonable search and having a reasonable opportunity to intervene to prevent it. 524. The manual body cavity search, to the extent Defendants’ assault can be characterized as such, was unreasonable in light of the scope of the intrusion, the manner in which it was conducted, the purported justification for initiating it, and the place in which it was conducted. 525. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to unreasonable manual body cavity searches, at the Albany County Jail. 526. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of the regular
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practice of unreasonable manual body cavity searches by officers under their command and failed to take remedial action, they were aware of the unreasonable manual body cavity search as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the unreasonable manual body cavity search occurred, and they were deliberately indifferent to the security of detainees in their care.
527. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to unreasonable manual body cavity searches there.
528. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
TWELFTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Failure to Intervene (Plaintiff Espinal Against Defendants City and New York City Correction Officers Frank Foes
#4-6 – February 13, 2018 Incident) 529. Defendants New York City Correction Officers Frank Foes #4-6, the ESU officers who transported Plaintiff Espinal to Albany, knew that Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were going to violate, and were in fact violating, the constitutional rights of Plaintiff Espinal by using objectively unreasonable force against him, sexually assaulting him, and/or conducting an unreasonable search of him. 530. Defendants Foes #4-6 had a reasonable opportunity to intervene to prevent these violations. 531. Defendants Foes #4-6 failed to take reasonable steps to intervene.
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532. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to excessive or unlawful force there.
533. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
THIRTEENTH CAUSE OF ACTION Assault
(Plaintiff Espinal Against Defendants City, New York City Correction Officers Frank Foes #4-6, Albany County, Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February 13, 2018 Incident) 534. On or about February 13, 2018, by threateningly approaching Plaintiff
Espinal and threatening to hit, punch, kick, tase, and digitally penetrate him, Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton intentionally placed Plaintiff Espinal in apprehension of imminent offensive contact. Defendant Albany County is liable for their conduct under respondeat superior.
535. In addition and/or in the alternative, Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton had knowledge of the assault and provided substantial assistance by, among other things, restraining and confining Plaintiff Espinal to permit others to assault him. Defendant Albany County is liable for their conduct under respondeat superior.
536. Because Plaintiff Espinal remained in the custody of the City at the time of this incident, Defendant Albany County and its employees Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were acting as agents and servants of the City. The City is therefore liable for their conduct under respondeat superior.
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537. Defendants New York City Correction Officers Frank Foes #4-6 had knowledge of the assault and provided substantial assistance by, among other things, uncuffing Plaintiff Espinal and handing him over to others to be assaulted. Defendant City is liable for their conduct under respondeat superior.
538. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
FOURTEENTH CAUSE OF ACTION Battery
(Plaintiff Espinal Against Defendants City, New York City Correction Officers Frank Foes #4-6, Albany County, Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February 13, 2018 Incident) 539. On or about February 13, 2018, by hitting, punching, kicking, tasing, and
digitally penetrating in his rectum Defendant Espinal, Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton committed a willful, unlawful, intentional battery against him.
540. In addition and/or in the alternative, Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton had knowledge of the battery and provided substantial assistance by, among other things, restraining and confining Plaintiff Espinal to permit others to batter him. Defendant Albany County is liable for their conduct under respondeat superior.
541. Because Plaintiff Espinal remained in the custody of the City at the time of this incident, Defendant Albany County and its employees Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were acting as agents and servants of the City. The City is therefore liable for their conduct under respondeat superior.
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542. Defendants New York City Correction Officers Frank Foes #1-3 had knowledge of the battery and provided substantial assistance by, among other things, uncuffing Plaintiff Espinal and handing him over to others to be battered. Defendant City is liable for their conduct under respondeat superior.
543. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
FIFTEENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Deliberate Indifference to Serious Medical Need
(Plaintiff Espinal Against Defendants Against Defendants Albany County, Apple, Lyons, Mylroie, Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton) 544. As a result of the assault and sexual assault on February 13, 2018, Plaintiff
Espinal was unconscious, had serious visible injuries lasting for several days, had blood in his urine, and was later unable to urinate normally.
545. Plaintiff Espinal did not receive adequate or reasonable medical care. 546. Defendants Nurse Mylroie, Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were aware of a substantial risk of harm to Plaintiff Espinal and knowingly disregarded that risk by denying him medical care and/or failing to get medical care for him. 547. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of denying adequate medical care to the transfer detainees from New York City whom it subjects to violent torture. 548. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of their staff’s regular practice of denying medical care to recently beaten transfer detainees and failed to
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take remedial action, they were aware of Plaintiff Espinal’s condition and failed to take action to remedy it, they created Albany County’s policy or custom of denying medical treatment, and they were deliberately indifferent to the medical needs of detainees in their care.
549. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
SIXTEENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing (Plaintiff Espinal Against Defendants Albany County, Apple, Lyons, and Sergeant Foe #17 –
February 13, 2018 Incident) 550. On or about February 26, 2018, Defendant Sergeant Foe #17 presided over a sham disciplinary hearing with a predetermined outcome, during which Plaintiff Espinal was told that anything he did would not matter to the outcome, as a result of which Plaintiff Espinal was sentenced to 600 days in solitary confinement. 551. Defendant Albany County caused the violation of Plaintiff Espinal’s due process rights because it has an official policy or custom of keeping any detainee who has ever been accused of assaulting staff anywhere in solitary confinement, and an official policy or custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement. 552. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they directed their staff to keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
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553. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
SEVENTEENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Espinal Against Defendants City, Albany County, Apple, Lyons, Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard – July 4, 2018 Incident)
554. On or about July 4, 2018, Defendants Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard used objectively unreasonable force against Plaintiff Espinal, and/or failed to prevent others from doing so despite being aware of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it.
555. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to violent torture at the Albany County Jail.
556. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of the regular practice of torture by officers under their command and failed to take remedial action, they were aware of the torture as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care.
557. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
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558. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
EIGHTEENTH CAUSE OF ACTION Assault
(Plaintiff Espinal Against Defendants Albany County, Apple, Lyons, Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard – July 4, 2018 Incident) 559. On or about July 4, 2018, by threateningly approaching Plaintiff Espinal
and threatening to hit, punch, and kick him, Defendants Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard intentionally placed Plaintiff Espinal in apprehension of imminent offensive contact. Defendant Albany County is liable for their conduct under respondeat superior.
560. In addition and/or in the alternative, Defendants Torrisi, “John” Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton had knowledge of the assault and provided substantial assistance by, among other things, restraining and confining Plaintiff Espinal to permit others to assault him. Defendant Albany County is liable for their conduct under respondeat superior.
561. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
NINETEENTH CAUSE OF ACTION Battery
(Plaintiff Espinal Against Defendants Albany County, Apple, Lyons, Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard – July 4, 2018 Incident) 562. On or about July 4, 2018, by hitting, punching, and kicking Defendant
Espinal, Defendants Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard committed a willful, unlawful, intentional battery against him. Defendant Albany County is liable for their conduct under respondeat superior.
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563. In addition and/or in the alternative, Defendants Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard had knowledge of the battery and provided substantial assistance by, among other things, restraining and confining Plaintiff Espinal to permit others to batter him. Defendant Albany County is liable for their conduct under respondeat superior.
564. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
TWENTIETH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing (Plaintiff Espinal Against Defendants Albany County, Apple, Lyons, and Lieutenant Foe #14 –
July 4, 2018 Incident) 565. On or about July 19, 2018, Defendant Lieutenant Foe #14 presided over a sham disciplinary hearing with a predetermined outcome, during which Plaintiff Espinal was told that anything he did would not matter to the outcome, as a result of which Plaintiff Espinal was sentenced to 540 days in solitary confinement. 566. Defendant Albany County caused the violation of Plaintiff Espinal’s due process rights because it has an official policy or custom of keeping any detainee who has ever been accused of assaulting staff anywhere in solitary confinement, and an official policy or custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement. 567. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they directed their staff to keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes
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and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
568. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
TWENTY-FIRST CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Doe Against Defendants City, Albany County, Apple, Lyons, Torrisi, Poole, Kelly,
Reddy, Lawson, Anzalone, Jarosz, and Frank Harris) 569. On or about January 24, 2018, Defendants Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Frank Harris used objectively unreasonable force against Plaintiff Doe, and/or failed to prevent others from doing so despite being aware of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it. 570. Defendant Albany County caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to violent torture at the Albany County Jail. 571. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they were aware of the regular practice of torture by officers under their command and failed to take remedial action, they were aware of the torture as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care. 572. Defendant City caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or
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dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
573. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-SECOND CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Sexual Assault Against Pretrial Detainee (Plaintiff Doe Against Defendants City, Albany County, Apple, Lyons, Torrisi, Poole, Kelly,
Reddy, Lawson, Anzalone, Jarosz, and Frank Harris) 574. On or about January 24, 2018, Defendants Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Frank Harris sexually assaulted Plaintiff Doe by, among other things, penetrating him in the rectum with a baton and/or failed to take reasonable steps to stop others from doing so despite being aware of the sexual assault and having a reasonable opportunity to intervene to prevent it. 575. The forcible penetration of Plaintiff Doe was undertaken maliciously, with the purpose of humiliating and degrading Plaintiff Doe, and not for any legitimate penological purpose. 576. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they were aware of the regular practice of sexual assault by officers under their command and failed to take remedial action, they were aware of the sexual assault as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the sexual assault occurred, and they were deliberately indifferent to the security of detainees in their care. 577. Defendant City caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or
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dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to sexual assault there.
578. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-THIRD CAUSE OF ACTION 42 U.S.C. § 1983 – Fourth Amendment – Unreasonable Search (Plaintiff Doe Against Defendants City, Albany County, Apple, Lyons, Torrisi, Poole, Kelly,
Reddy, Lawson, Anzalone, Jarosz, and Frank Harris) 579. On or about January 24, 2018, to the extent their actions can be characterized as a manual body cavity search, Defendants Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Frank Harris conducted an unreasonable manual body cavity search of Plaintiff Doe by digitally penetrating him in his rectum, and/or failed to take reasonable steps to stop others from doing so despite being aware of the unreasonable search and having a reasonable opportunity to intervene to prevent it. 580. The manual body cavity search, to the extent Defendants’ assault can be characterized as such, was unreasonable in light of the scope of the intrusion, the manner in which it was conducted, the purported justification for initiating it, and the place in which it was conducted. 581. Defendant Albany County caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to unreasonable manual body cavity searches, at the Albany County Jail. 582. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they were aware of the regular practice
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of unreasonable manual body cavity searches by officers under their command and failed to take remedial action, they were aware of the unreasonable manual body cavity search as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the unreasonable manual body cavity search occurred, and they were deliberately indifferent to the security of detainees in their care.
583. Defendant City caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to unreasonable manual body cavity searches there.
584. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-FOURTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Failure to Intervene
(Plaintiff Doe Against Defendants City and New York City Correction Officers Frank Foes #7-9) 585. Defendants New York City Correction Officers Frank Foes #7-9, the ESU officers who transported Plaintiff Doe to Albany, knew that Defendants Defendants Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Frank Harris were going to violate, and were in fact violating, the constitutional rights of Plaintiff Doe by using objectively unreasonable force against him, sexually assaulting him, and/or conducting an unreasonable search of him. 586. Defendants Foes #7-9 had a reasonable opportunity to intervene to prevent these violations. 587. Defendants Foes #7-9 failed to take reasonable steps to intervene.
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588. Defendant City caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to violent torture there.
589. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-FIFTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Deliberate Indifference to Serious Medical Need (Plaintiff Doe Against Defendants Albany County, Apple, Lyons, Mylroie, Torrisi, Poole, Kelly,
Reddy, Lawson, Anzalone, Jarosz, and Frank Harris) 590. As a result of the assault and sexual assault on February 13, 2018, Plaintiff Doe was unconscious, had serious visible injuries lasting for several days, and was bleeding severely. 591. Plaintiff Doe did not receive adequate or reasonable medical care. 592. Defendants Mylroie, Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Frank Harris were aware of a substantial risk of harm to Plaintiff Doe and knowingly disregarded that risk by denying him medical care and/or failing to get medical care for him. 593. Defendant Albany County caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of denying adequate medical care to the transfer detainees from New York City whom it subjects to violent torture. 594. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they were aware of their staff’s regular practice of denying medical care to recently beaten transfer detainees and failed to take remedial action, they were aware of Plaintiff Espinal’s condition and failed to take action to
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remedy it, they created Albany County’s policy or custom of denying medical treatment, and they were deliberately indifferent to the medical needs of detainees in their care.
595. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-SIXTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing (Plaintiff Doe Against Defendants Albany County, Apple, Lyons, and Lieutenant Foe #15)
596. On or about July 19, 2018, Defendant Lieutenant Foe #15 presided over a sham disciplinary hearing with a predetermined outcome, during which Plaintiff Doe was told that anything he did would not matter to the outcome, as a result of which Plaintiff Doe was sentenced to 550 days in solitary confinement.
597. Defendant Albany County caused the violation of Plaintiff Doe’s due process rights because it has an official policy or custom of keeping any detainee who has ever been accused of assaulting staff anywhere in solitary confinement, and an official policy or custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement.
598. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they directed their staff to keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
599. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
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TWENTY-SEVENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Tillery Against Defendants City, Albany County, Apple, Lyons, Sergeant Foe #18, Lawson, Shield #323, Shield #99, and Albany County Correction Officers Frank Foes #19-21)
600. On or about August 9, 2018, Defendants Sergeant Foe #18, Lawson, Shield #323, Shield #99, and Albany County Correction Officers Frank Foe #19-21 used objectively unreasonable force against Plaintiff Tillery, and/or failed to prevent others from doing so despite being aware of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it.
601. Defendant Albany County caused the violation of Plaintiff Tillery’s rights because it has an official policy or custom of subjecting transfer detainees from New York City who are perceived to be dangerous or difficult to violent torture at the Albany County Jail.
602. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Tillery’s constitutional rights because, among other things, they were aware of the regular practice of torture by officers under their command and failed to take remedial action, they were aware of the torture as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care.
603. Defendant City caused the violation of Plaintiff Tillery’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
604. As a result of Defendants’ unlawful conduct, Plaintiff Tillery suffered the injuries hereinbefore alleged.
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TWENTY-EIGHTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Failure to Intervene
(Plaintiff Tillery Against Defendants City and New York City Correction Officers Frank Foes #10-12) 605. Defendants New York City Correction Officers Frank Foes #10-12, the ESU officers who transported Plaintiff Tillery to Albany, knew that Albany County correctional staff were going to violate, and were in fact violating, the constitutional rights of Plaintiff Tillery by using objectively unreasonable force against him. 606. Defendants Foes #10-12 had a reasonable opportunity to intervene to prevent these violations. 607. Defendants Foes #10-12 failed to take reasonable steps to intervene. 608. Defendant City caused the violation of Plaintiff Tillery’s rights because it has an official policy or custom of transferring detainees who are perceived to be difficult or dangerous to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there. 609. As a result of Defendants’ unlawful conduct, Plaintiff Tillery suffered the injuries hereinbefore alleged.
TWENTY-NINTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Deliberate Indifference to Serious Medical Need
(Plaintiff Tillery Against Defendants Against Defendants Albany County, Apple, Lyons, Mylroie, Sergeant Foe #18, Lawson, Shield #323, Shield #99, and Albany County Correction
Officers Frank Foes #19-21) 610. As a result of the assault on August 9, 2018, Plaintiff Tillery was unconscious had serious visible injuries lasting for several days or longer. These included perioribital ecchymosis, a swollen nose, and significant facial abrasions. He also complained of an ability to hear out of his left ear.
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611. Plaintiff Tillery did not receive adequate or reasonable medical care. 612. Defendants Nurse Mylroie, Sergeant Foe #2, Lawson, Shield #323, Shield #99, and Albany County Correction Officers Frank Foes #19-21 were aware of a substantial risk of harm to Plaintiff Tillery and knowingly disregarded that risk by denying him medical care and/or failing to get medical care for him. 613. Defendant Albany County caused the violation of Plaintiff Tillery’s rights because it has an official policy or custom of denying adequate medical care to the transfer detainees from New York City whom it subjects to violent torture. 614. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Tillery’s constitutional rights because, among other things, they were aware of their staff’s regular practice of denying medical care to recently beaten transfer detainees and failed to take remedial action, they were aware of Plaintiff Tillery’s condition and failed to take action to remedy it, they created Albany County’s policy or custom of denying medical treatment, and they were deliberately indifferent to the medical needs of detainees in their care. 615. As a result of Defendants’ unlawful conduct, Plaintiff Tillery suffered the injuries hereinbefore alleged.
THIRTIETH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing
(Plaintiff Tillery Against Defendants Albany County, Apple, Lyons, and Lieutenant Frank Foe #16)
616. On or about August 24, 2018, Defendant Lieutenant Frank Foe #16 presided over a sham disciplinary hearing with a predetermined outcome, as a result of which Plaintiff Tillery was sentenced to 360 days in solitary confinement.
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617. Defendant Albany County caused the violation of Plaintiff Tillery’s due process rights because it has an official policy or custom of keeping any detainee who has ever been accused of assaulting staff anywhere in solitary confinement, and an official policy or custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement.
618. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Tillery’s constitutional rights because, among other things, they directed their staff to keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
619. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
THIRTY-FIRST CAUSE OF ACTION 42 U.S.C. § 1983 – Sixth Amendment – Denial of Right to Counsel (All Plaintiffs Against Defendants Albany County, Apple, and Lyons) 620. Defendant Albany County, Apple, and Lyons have a policy or custom of monitoring all detainee phone calls, including telephone calls with counsel that are supposed to be private and confidential, and of denying detainees access to confidential telephonic or videographic communications with counsel. 621. This policy or custom unjustifiably obstructed and/or continues to obstruct Plaintiffs’ access to their criminal defense counsel guaranteed by the Constitution. 622. No legitimate penological justification exists for denying detainees access to unrecorded and unmonitored confidential telephone calls between detainees and their counsel,
94 

Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 99 of 101
as evidenced by, among other things, the fact that New York State law requires such calls not to be monitored.
623. As a result of Defendants’ unlawful conduct, Plaintiffs suffered the injuries hereinbefore alleged.
* * * WHEREFORE, Plaintiffs respectfully request judgment against Defendants as follows: a. Compensatory damages in an amount to be determined at trial; b. Punitive damages against the non-municipal Defendants in an amount to be determined at trial; c. A declaration that the City’s policy or custom of transferring young pretrial detainees outside the City on substitute jail orders to evade the ban on solitary confinement and/or to punish or retaliate against the detainees violates the United States Constitution; d. A declaration that Albany County’s policy or custom of torturing pretrial detainees transferred from New York City on arrival at the Albany County Correctional Facility violates the United States Constitution; e. A declaration that the City’s policy or custom of transferring pretrial detainees to the Albany County Correctional Facility with the knowledge and expectation that they will be subject to excessive and unlawful force violates the United States Constitution; f. An injunction ordering Defendants to cease holding Steven Espinal and Pariis Tillery in solitary confinement, nullifying and voiding any substitute jail orders
95 

Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 100 of 101 transferring them out of the City of New York, and ordering Defendants to return them to a correctional facility in the City of New York;
g. An injunction prohibiting Defendants from retaliating against Steven Espinal or Pariis Tillery or David Doe in response to the filing of this action, including but not limited to retaliation in the form of beatings or physical, sexual or verbal abuse;
h. An injunction requiring Defendants Albany County, Apple, and Lyons to make unrecorded, unmonitored legal telephone calls available as necessary to Plaintiffs Espinal and Tillery;
i. Reasonable attorneys’ fees and costs under 42 U.S.C. § 1988; and j. Such other and further relief as this Court may deem just and proper.
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Case 1:18-cv-12306 Document 1 Filed 12/28/18 Page 101 of 101

Dated: New York, New York December 28, 2018

EMERY CELLI BRINCKERHOFF & ABADY LLP

By:

/s/

Katherine Rosenfeld

Douglas E. Lieb

600 Fifth Avenue, 10th Floor

New York, New York 10020

(212) 763-5000

LAW OFFICES OF GOLDMAN & ASSOCIATES

By: Steven Goldman 190 East 161st Street, Suite 100 Bronx, New York 10451 (718) 538-5743

Attorneys for Plaintiffs

97 

 
 Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 1 of 103

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DAVON WASHINGTON, PARIIS TILLERY, JOHN DOE, and STEVEN ESPINAL, on behalf of himself and all others similarly situated,
Plaintiffs,
-against-
THE CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF CORRECTION (“DOC”) COMMISSIONER CYNTHIA BRANN; DOC BUREAU CHIEF BRIAN SULLIVAN; DOC DEPUTY WARDEN SHARLISA WALKER; DOC CAPTAINS EDWARD WILLIAMS, PATRICK PASKETT, and BONAR MOISE; DOC CORRECTION OFFICERS KIRKLON MORGAN, BELTESHAZZAR REID, TE-ART JACKSON, GREGORY LOPEZ, EDWIN LOPERA, COURTNEY CORLEY, AARON CRUMP, ROBERT McDONALD JR., and YUPENG CAI; COUNTY OF ALBANY; ALBANY COUNTY SHERIFF CRAIG D. APPLE, SR.; ALBANY COUNTY CORRECTIONAL FACILITY SUPERINTENDENT MICHAEL LYONS; LIEUTENANTS ANTHONY TORRISI, MARK VALVO, and WILLIAM CARHART; CAPTAIN FRANK HARRIS; SERGEANTS DAN POOLE, MICHAEL GRIMES, ANTHONY COLANGIONE, and SONNY ARMSTRONG; CORRECTION OFFICERS MATTHEW LABOMBARD, JOSIAH HALEY, MICHAEL BELIVEAU, VINCENT ADAMS, JOSEPH KELLY, WILLIAM REDDY, DAMIEN ANZALONE, RYAN LAWSON, JARRED JAROSZ, THUAN TON, TIMOTHY KEHN, TRENT SHAVER, EUGENE RATIGAN, ANTHONY DEGONZA, KELLY THOMPSON, JOSEPH MOORE, and ANTHONY COPPOLO; and NURSE MELISSA “MISSY” MYLROIE,
Defendants.

No. 18-CV-12306 (CM)
SECOND AMENDED CLASS ACTION COMPLAINT WITH JURY DEMAND

Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 2 of 103
TABLE OF CONTENTS
PAGE NO.
NATURE OF THE ACTION ..........................................................................................................1
PARTIES .........................................................................................................................................3
JURISDICTION AND VENUE ......................................................................................................7
JURY DEMAND .............................................................................................................................7
FACTUAL ALLEGATIONS ..........................................................................................................7
I. NEW YORK CITY’S BAN ON SOLITARY CONFINEMENT FOR YOUNG PEOPLE ...................................................................................................................7
II. THE SUBSTITUTE JAIL ORDER PROCESS.....................................................13
III. NEW YORK CITY’S POLICY AND CUSTOM OF RENDERING DIFFICULT DETAINEES UPSTATE TO PUNISH THEM BY, AMONG OTHER THINGS, PUTTING THEM IN SOLITARY CONFINEMENT ...........15
IV. ALBANY COUNTY’S POLICY AND CUSTOM OF TORTURING RIKERS DETAINEES .........................................................................................18
V. ALBANY COUNTY’S POLICY AND CUSTOM OF PUTTING ALL RIKERS DETAINEES IN SOLITARY CONFINEMENT ..................................................22
VI. NEW YORK CITY HAS RECEIVED REPEATED NOTICE OF ALBANY’S TORTURE AND ABUSE OF DOC INMATES, AND CONTINUES TO TRANSFER DETAINEES THERE TO BE TORTURED ...................................23
VII. ALBANY COUNTY’S SYSTEMIC INTERFERENCE WITH COMMUNICATIONS WITH COUNSEL............................................................26
VIII. THE EXPERIENCES OF THE NAMED PLAINTIFFS ......................................28
Davon Washington.................................................................................................28
A. Davon Washington is Detained at Rikers Island Starting in March 2016 ....................................................................................28
B. The March 28, 2018 Transfer of Davon Washington from Rikers to the Albany County Jail ..............................................................28

Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 3 of 103
C. Defendants Physically and Sexually Assault Davon Washington at the Albany County Jail...............................................................30
D. Davon Washington Is Held in Solitary Confinement at the Albany County Jail For Nine Months ............................................34
E. Albany County Jail Guards Beat Davon Washington in Retaliation for a Legal Visit on October 5, 2018...........................35
Steven Espinal........................................................................................................36
A. Steven Espinal Is Detained at Rikers Island Starting on November 18, 2017........................................................................36
B. The February 13, 2018 Transfer of Steven Espinal from Rikers to the Albany County Jail ..............................................................38
C. Defendants Physically and Sexually Assault Steven Espinal at the Albany County Jail...................................................................40
D. Steven Espinal Remains in Solitary Confinement at the Albany County Jail, After Nearly a Year There .........................................44
E. Defendants Brutally Assault Steven Espinal Again on July 4, 2018 ....................................................................................47
F. Notices of Claim ............................................................................48
John Doe ................................................................................................................49
A. John Doe Was Detained at Rikers Island on December 18, 2015 ........................................................................49
B. After a Visit from a High-Ranking DOC Security Official, John Doe Is Transferred to the Ulster County Correctional Facility on an SJO ............................................................................................49
C. John Doe Is Transferred from Ulster County to the Albany County Jail .....................................................................................50
D. Defendants Brutalize and Sexually Assault John Doe...................50
E. Doe Is Denied Medical Attention and Made to Sleep in His Own Bodily Waste..................................................................................54
F. John Doe Is Placed in Solitary Confinement at the Albany County Jail .....................................................................................55

Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 4 of 103
G. Defendants Attempt to Intimidate John Doe .................................56 Pariis Tillery...........................................................................................................57
A. Pariis Tillery Is Detained By DOC Starting on March 4, 2017 .....57 B. The August 9, 2018 Transfer of Pariis Tillery from Rikers to
the Albany County Jail...................................................................58 C. Defendants Physically Assault Pariis Tillery at the Albany
County Jail .....................................................................................59 D. Pariis Tillery Is Held in Solitary Confinement at the Albany
County Jail from August 9, 2018 to January 23, 2019 ..................63 IX. THE EXPERIENCES OF OTHER NEW YORK CITY DETAINEES
TRANSFERRED TO ALBANY ...........................................................................65 Richard Roe ...........................................................................................................65 David Doe ..............................................................................................................66 X. CLASS ALLEGATIONS ......................................................................................66 CAUSES OF ACTION ............................................................................................................ 68-97

Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 5 of 103
Plaintiffs, by and through their attorneys, Emery Celli Brinckerhoff & Abady LLP and the Law Offices of Goldman & Associates, for their Complaint allege as follows:
NATURE OF THE ACTION 1. Early one morning, without warning, a van comes to the jail for the young men. They have been in that jail for months or even years, but they have not been convicted of any crimes. 2. The young men are shackled and put in the back of the van. The van has no windows. They do not know where they are going. 3. The van drives for hours. It eventually comes to a stop at the end of a road at the back of an airfield. The doors open in a place the young men have never seen before. 4. A dozen guards in green fatigues and body armor are there waiting. They tell the young men to get out of the van one by one. The guards take the young men inside a building and put them in cages. 5. The guards deliver commands that are bizarrely detailed and confusing. Take off your shirt with your right hand and pass it backward over your left shoulder, they say. When the young men, disoriented, get it wrong, the guards “respond” with blows and punches. 6. The guards yell that the young men are hiding things in their bodies. They punch and kick the young men. Get it out, the guards say. The guards curse and threaten to kill them. Get it out, the guards demand. Some of the young men are shot with tasers in-between beatings. Guards insert their fingers and batons into the young men’s rectums. We will get it out for you, they threaten. The young men lie naked on the floor, crying, pleading, covered in their own urine and feces. Get it out, get it out. The guards will not stop.
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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 6 of 103
7. The commander finally tells the guards that it is enough. The guards leave. The young men are left in cages, alone. They sit there by themselves around the clock, in isolation, for weeks, months, even years.
8. There are no rules, no procedures, and no laws in this place. The young men are far from their families, far from their lawyers, cut off from the outside world. They fear that they could be killed at any moment and no one would know what happened to them. Their fear is not unreasonable: that is what the guards tell them might happen.
9. These young men are not in the custody of a repressive foreign regime; they are not suspected terrorists rendered by the CIA. The “black site” to which they have been taken without warning is not a decrepit Iraqi prison or an air base in the Polish countryside. They are pretrial detainees in the custody of the City of New York, and the black site is the Albany County Correctional Facility.
10. This case is about young men from New York City who have been shipped up to Albany County to be beaten and punished for crimes they have not been convicted of committing. It is about the City’s policy of knowingly sending these young men to Albany to be tortured; it is about Albany County’s policy of torturing them; and it is about the correction officers who carry out the torture.
11. More than anything else, however, this case is about the rest of us, living outside the jail walls. It is about the authority that is being quietly exercised—and viciously abused—on our behalf.
12. We, the People, have decided through our Constitution that not even the most despised detainees may be tortured. Not even someone who has assaulted a correction officer. Not even an alleged gang member. Not even someone who is hiding contraband in his
2

Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 7 of 103
body. We are a society of laws, and due process—the idea that sets us apart from repressive regimes worldwide—forbids this.
13. In New York City, the law forbids subjecting teenage pretrial detainees to 23 or 24-hour solitary confinement, even if the teenagers are difficult to control, break rules, or hurt others. Locking college-age young men in cages for 23 hours a day with no human contact is not just cruel. It is a form of torture. It does not reduce violence or promote jail safety. It simply inflicts permanent damage on developing minds too young to be beyond redemption.
14. Our commitment to due process and the rule of law binds us even when it is hard. It governs even in the darkest corners of far-away jails and it protects even—indeed, especially—the least popular, the most reviled of our fellow human beings.
15. People are being tortured in our names. This time it is happening much closer to home, and it is happening to Americans. It is time for the torture to stop. It is time to bring these young men home to New York City.
PARTIES 16. Plaintiff Davon Washington is a 22-year-old man who resides in the Bronx, New York. He was previously detained pending trial at the Albany County Correctional Facility (“the Albany County Jail”) in Albany County, New York, while in the custody of the New York City Department of Correction (“DOC”). He was released from custody on December 24, 2018. 17. Plaintiff Steven Espinal is a 19-year-old man who is presently in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). He was previously detained pending trial at the Albany County Jail while in the custody of DOC.
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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 8 of 103

18. Plaintiff John Doe is a 24-year-old man who is presently in DOCCS

custody. He was previously detained pending trial at the Albany County Jail while in the

custody of DOC.

19. Plaintiff Pariis Tillery is a 25-year-old man who is currently detained

pending trial at the Anna M. Kross Center in New York City. He was previously detained

pending trial at the Albany County Jail while in the custody of DOC.

20. Defendant City of New York is a municipal corporation duly organized

under the laws of the State of New York.

21. The following Defendants are or were officers, employees, and/or agents

of the City of New York. At all relevant times, each was acting within the scope of his or her

employment as an employee, servant, and/or agent of the City. At all relevant times, each of

them was acting under color of state law. Each of them is sued in his or her individual capacity:

a. DOC Commissioner Cynthia Brann;

b. DOC Bureau Chief Brian Sullivan;

c. DOC Deputy Warden Sharlisa Walker;

d. DOC Captain Edward Williams;

e. DOC Captain Patrick Paskett;

f. DOC Captain Bonar Moise;

g. DOC Correction Officer Kirklon Morgan;

h. DOC Correction Officer Belteshazzar Reid;

i.

DOC Correction Officer Te-Art Jackson;

j.

DOC Correction Officer Gregory Lopez;

k. DOC Correction Officer Edwin Lopera;

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 9 of 103
l. DOC Correction Officer Courtney Corley; m. DOC Correction Officer Aaron Crump; n. DOC Correction Officer Robert McDonald, Jr.; o. DOC Correction Officer Yupeng Cai. 22. Defendant County of Albany (“Albany County”) is a municipal corporation duly organized under the laws of the State of New York. 23. The following Defendants are officers, employees, and/or agents of Albany County. At all relevant times, each of them was acting within the scope of his or her employment as an employee, servant, and/or agent of the County. At all relevant times, each of them was acting under color of state law. Each of them is sued in his or her individual capacity: a. Craig D. Apple, Sr., the Sheriff of Albany County; b. Michael Lyons, the Superintendent of the Albany County Jail; c. Anthony Torrisi, a Lieutenant in the Albany County Sheriff’s
Office who works at the Albany County Jail; d. Mark Valvo, a Lieutenant in the Albany County Sheriff’s Office
who works at the Albany County Jail. e. William Carhart, a Lieutenant in the Albany County Sheriff’s
Office who works at the Albany County Jail; f. Frank Harris, a Captain in the Albany County Sheriff’s Office who
works at the Albany County Jail; g. Dan Poole, a Sergeant in the Albany County Sheriff’s Office who
works at the Albany County Jail;
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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 10 of 103

h. Michael Grimes, a Sergeant in the Albany County Sheriff’s Office

who works at the Albany County Jail;

i. Anthony Colangione, a Sergeant in the Albany County Sheriff’s

Office who works at the Albany County Jail;

j. The following correction officers in the Albany County Sheriff’s

Department who work at the Albany County Jail:

i.

Matthew LaBombard;

ii.

Josiah Haley;

iii.

Michael Beliveau;

iv.

Vincent Adams;

v.

Joseph Kelly;

vi.

William Reddy;

vii.

Damien Anzalone;

viii.

Ryan Lawson;

ix.

Jarred Jarosz;

x.

Thuan Ton;

xi.

Timothy Kehn;

xii.

Trent Shaver;

xiii.

Eugene Ratigan;

xiv.

Anthony DeGonza;

xv.

Kelly Thompson;

xvi.

Joseph Moore; and

xvii.

Anthony Coppolo.

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 11 of 103
24. Defendant Melissa Mylroie, known as “Missy,” is a nurse at the Albany County Jail. She is sued in her individual capacity. At all relevant times she was acting within the scope of her employment as an employee of CFG Health Systems, LLC, as agent and servant of Albany County, and under color of state law.
JURISDICTION AND VENUE 25. This action arises under the Fourteenth Amendment to the United States Constitution, 42 U.S.C. §§ 1983 and 1988. 26. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), 1343(a)(4), and 1367(a). 27. Venue is proper in this Court under 28 U.S.C. § 1391(b) because certain defendants reside in this District and because a substantial part of the events giving rise to the claims occurred in this District.
JURY DEMAND 28. Plaintiffs demand trial by jury.
FACTUAL ALLEGATIONS I. New York City’s Ban on Solitary Confinement for Young People
29. In August 2014, the United States Department of Justice (“DOJ”) issued an investigative report on conditions at Rikers Island. DOJ found, among other things, that the City improperly relied on solitary confinement as a tool to manage adolescent detainees, “expos[ing] them to a risk of serious harm” and raising serious constitutional concerns. DOJ found that putting adolescents in solitary created a “vicious cycle.” Disruptive and unstable
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detainees became more disruptive and unstable when they were put in solitary, isolated from social support and necessary services, and given little incentive to improve their behavior.1
30. In October 2014, the New Yorker told the story of Kalief Browder, who spent three years on Rikers Island as a teenager after being accused of stealing a backpack.2 Kalief spent nearly 17 consecutive months in solitary confinement before the charges against him were dismissed. While in solitary, he became paranoid and repeatedly attempted suicide. After he got out, he had constant flashbacks to his time in solitary and made more suicide attempts. Kalief killed himself less than a year after the article appeared.
31. Both developments brought public attention to the City’s gross overreliance on solitary confinement for young pretrial detainees. And they happened against a backdrop of growing societal recognition of the harm of solitary confinement, particularly for young people.
32. There is clear scientific consensus that long-term solitary confinement inflicts grave psychiatric injury. According to the American Psychiatric Association, solitary is associated with increased risk of self-mutilation and suicidal ideation, greater anxiety, depression, and paranoia.3 About half of all prison suicides happen among the roughly 5 to 6 percent of inmates held in solitary.4

1

See U.S. Dep’t of Justice, CRIPA Investigation of the New York City Department of Correction Jails on

Rikers Island, Aug. 4, 2014, https://www.justice.gov/sites/default/files/usao-sdny/legacy/2015/03/25/SDNY

%20Rikers%20Report.pdf.

2

Jennifer Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, https://www.newyorker.com

/magazine/2014/10/06/before-the-law.

3

Solitary Confinement of Juvenile Offenders, Am Psych. Ass’n, https://www.apa.org/advocacy/criminal-

justice/solitary.pdf.

4

Am. Civ. Liberties Union, Caged In: Solitary Confinement’s Devastating Harm on Prisoners with Physical

Disabilities 25 (2017), https://www.aclu.org/report/caged-devastating-harms-solitary-confinement-prisoners-

physical-disabilities.

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 13 of 103
33. Cognition tends to deteriorate in solitary. Many people held in solitary experience hallucinations and delusions, and some suffer full-blown psychosis, losing touch with the world around them. One eminent psychologist and criminologist has described the isolated detainees’ mental state as “isolation panic”—a feeling of desperation, abandonment, and helplessness that feeds rage, panic, and loss of control.5
34. These risks are particularly acute for young people. Immature adolescent brains are even less well equipped than fully developed adult brains to handle the rigors of prolonged isolation. A 2014 study of detainees in New York City jails found that the two biggest predictors of self-harm were being under age 19 and having been placed in solitary confinement at least once.6
35. Solitary also poses unique threats to young people. Some serious mental illnesses, like bipolar disorder and schizophrenia, do not typically manifest themselves until a person is in her early-to-mid-20s. Solitary confinement can provoke or accelerate the onset of these serious mental illnesses for teenage detainees.
36. Recent developments in constitutional law recognize that the penal system must treat teenagers differently than adults because their immature brains function differently.7
37. In this context, in January 2015, the New York City Board of Correction (the “Board”) adopted a regulation banning solitary confinement (or “punitive segregation”) for detainees age 21 and younger in New York City (the “Under Age 22 Solitary Ban”).

5

Hans Toch, Mosaic of Despair: Human Breakdowns in Prison (1992).

6

Fatos Kaba et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub. Health

442 (2014), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3953781.

7

See Roper v. Simmons, 543 U.S. 551 (2005) (death penalty for juveniles violates Constitution); Graham v.

Florida, 560 U.S. 48 (2010) (juvenile life without parole for non-homicide crimes violates Constitution); Miller v.

Alabama, 567 U.S. 560 (2012) (juvenile life without parole for any offense violates Constitution).

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 14 of 103
38. The Board is an independent body of the City that is responsible for overseeing and evaluating the performance of DOC. The Board is required to establish Minimum Standards for the treatment of detainees held by the City.8 Those Minimum Standards are regulations with binding legal effect, codified in the Rules of the City of New York, which DOC is obligated to follow.9
39. In promulgating the Under Age 22 Solitary Ban, the Board found: “[P]unitive segregation is a severe penalty that should not be used in certain circumstances in [DOC] facilities. In particular, punitive segregation reflects a serious threat to the physical and psychological health of adolescents, with respect to whom it should not be imposed.”10
40. The Under Age 22 Solitary Ban immediately forbid the placement of detainees under age 18 in solitary. It further provided that, as of January 1, 2016, detainees ages 18 through 21 “shall be excluded” from solitary, “provided that sufficient resources are made available to [DOC] for necessary staffing and implementation of necessary alternative programming.”11
41. The Under Age 22 Solitary Ban received glowing press coverage and praise from advocates for detainees’ rights. Mayor de Blasio trumpeted that the City would now “be at the forefront of national jail reform efforts.”12
42. In July 2015, the City submitted to a consent decree in Nunez v. City of New York designed to reduce excessive force by officers against detainees on Rikers Island,

8

See Charter of the City of New York § 626.

9

Rules of the City of New York tit. 40.

10

Id. tit. 40 § 1-17(a) (emphasis added).

11

Id. tit. 40 § 1-17(b)(1)(ii).

12

See, e.g., Mark Berman, New York City Will No Longer Put Its Youngest Prison Inmates in Solitary

Confinement, Wash. Post, Jan. 13, 2015, https://www.washingtonpost.com/news/post-nation/wp/2015/01/13/new-

york-city-will-no-longer-put-its-youngest-prison-inmates-in-solitary-confinement/?utm_term=.be30f8ac1c66.

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 15 of 103
respond to DOJ’s concerns, and reform the City’s jails. To that end, the City agreed in the consent decree to additional reforms relating to solitary confinement for young people.13
43. In practice, however, DOC has long been reluctant to reduce its use of solitary confinement and has resisted implementing the Under Age 22 Solitary Ban.14 For a very long time, solitary confinement had been a primary tool used at Rikers Island to deal with violent, mentally ill, or difficult young inmates.15 Long-serving senior DOC officials, rank-andfile staff, and the correction officers’ union were slow to embrace reform.
44. After the Under Age 22 Solitary Ban was passed, DOC requested and received a series of variances from the Board to delay the implementation of the ban on solitary for detainees aged 18 to 21. DOC claimed it needed more time to develop alternative programming.
45. Finally, in October 2016, the Board determined that DOC had been provided with sufficient resources to implement alternative programming, and the variances ended. For the past two years, it has been unlawful for the City to keep a detainee under the age of 22 in solitary confinement.
46. Regulations passed by the Board also limit the amount of time DOC detainees over age 21 can spend in solitary confinement. For example, an adult detainee cannot spend more than 30 consecutive days in solitary confinement unless he has been sentenced for a

13

See Consent Decree § XVI, Nunez v. City of New York, No. 11-CV-5845 (S.D.N.Y. July 1, 2015), available

at https://www.justice.gov/opa/file/624846/download

14

See, e.g., Letter from Commissioner Joseph Ponte to Stanley Brzenoff, Chair, N.Y.C. Bd. of Corr., Jan. 8,

2016, available at https://www1.nyc.gov/assets/boc/downloads/pdf/Limited%20Variance%20-

%20Elimination%20of%20Punitive%20Segregation%2018-21.pdf.

15

See DOJ Report, supra note 1, at 46-51.

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 16 of 103
serious assault on correctional staff. The maximum sentence for a serious assault on staff is 60 days in solitary confinement.16
47. Even with the Under Age 22 Solitary Ban in effect and the limits on solitary for adults, DOC—one of the largest jail systems in the world—still has powerful tools at its disposal to manage, isolate, and control difficult detainees to the extent it deems necessary.
48. The regulation passed by the Board in 2015 also forbid detainees between 18 and 21 from being placed in “Enhanced Supervision Housing” (“ESH”), a secure unit that is less restrictive than solitary (the “Under Age 22 ESH Ban”).17 Detainees in ESH are entitled to at least seven hours outside their cells each day, during which they can socialize with other detainees. They can also receive some social visitors, and they have access to services and programs accessible to detainees in the general population, including education and chaplains.18
49. Since the Under Age 22 ESH Ban was passed, DOC has continuously requested and received variances from the Board waiving its compliance with this requirement. Therefore, it is currently permissible for DOC to send detainees between ages 18 and 21 to ESH, which is the most restrictive setting for detainees in that age group in DOC custody.
50. DOC maintains a restrictive housing unit at its West Facility on Rikers Island, which, on information and belief, is designed to accommodate violent detainees who have not been adequately controlled in other settings, as well as detainees who are in protective custody for their own safety.

16

Rules of the City of New York tit. 40 §§ 1-16(d)(1) to (4).

17

Id. § 1-16(c)(1)(ii).

18

What is Enhanced Supervision Housing?, N.Y.C. Dep’t of Corr., available at

https://www1.nyc.gov/assets/doc/downloads/press-release/esh-enhanced_supervision_housing_011415_final.pdf

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51. On information and belief, the North Infirmary Command facility at Rikers also includes a highly secure unit designed to house difficult detainees under restrictive conditions.
II. The Substitute Jail Order Process 52. New York State law allows for the transfer of pretrial detainees between
facilities in different counties through a procedure known as a “substitute jail order” (“SJO”). SJOs are issued by the New York State Commission of Correction (“SCOC”), a state body.19
53. SCOC can only issue an SJO under certain specified conditions. All involve imminent threats to safety and basic needs, like a natural disaster that makes a jail unfit to hold detainees, or an inability to provide “vital services” like food or medical care at a jail. Most relevant here, SCOC can issue an SJO “when the safety or security of a [detainee] or group of [detainees] is threatened by their confinement in a facility and the facility administrator reasonably believes that the public interest, as well as the safety of the [detainees], would be better served by their being housed in another . . . facility.”20
54. State regulations create a mandatory procedure to get an SJO. The administrator of the original jail—which, for New York City jails, is Defendant Commissioner Brann—is responsible for finding another suitable jail to receive the detainee in question. He or she must first look for available options within his county. If none exist, he or she may look to see whether a jail outside the county can accommodate the detainee. The administrator must consider the proximity of the other jail, the inconvenience to the detainee’s family and friends,

19

See generally N.Y. Corr. Law § 504.

20

9 NYCRR § 7210.5.

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the impact on his access to legal counsel, and the ability of the receiving jail to keep the detainee safe.21
55. The administrator of the original facility is responsible for finding a receiving jail, providing the relevant information to SCOC, and getting the substitute jail order from SCOC. The original facility must make the logistical arrangements for the transfer.22 The original jurisdiction pays the receiving jurisdiction’s expenses of holding the detainees.
56. The regulations also allow for an urgent transfer from jail to jail under “extraordinary circumstances” in which “the safety or security of a [detainee] cannot be maintained.” Under those circumstances, the administrator of the original facility may make a written request to the New York State Commissioner of Corrections (the “State Commissioner”) to make another facility available to hold the detainee. The State Commissioner must respond with a written determination that another facility is available to hold the detainee.23 The detainee is transferred not to the custody of the receiving facility, but to the custody of the State Commissioner, who must house the detainee in the “most proximate facility.”
57. Irrespective of the procedure by which a detainee is transferred, notice to the detainee is always required. The administrator of the receiving jail “shall provide [the detainee] immediately with a written notification of the reasons for his transfer.”24 The transferred detainee “shall be entitled to all the rights and privileges available to other [detainees] of the receiving facility.”25

21

Id. § 7210.6.

22

Id.

23

Id. § 7210.6(e).

24

Id. § 7210.8 (emphasis added).

25

Id. § 7210.9. In 2017 a bill was introduced in the New York City Council to amend the New York City

Administrative Code to provide City detainees with additional notice before they could be transferred out of the City

by SJO. The bill would require—except in emergency circumstances—that, before any transfer, the detainee and his

criminal defense lawyer be given notice and the detainee be given a chance to make three personal phone calls at no

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58. SJOs are a lucrative business for upstate county jails with excess capacity. In 2013, housing other counties’ detainees on SJOs brought Albany County more than $3 million in revenue. Sheriff Apple explained: “We have the space. We’re trying to run our jail as a business . . . .”26
III. New York City’s Policy and Custom of Rendering Difficult Detainees Upstate to Punish Them By, Among Other Things, Putting Them in Solitary Confinement 59. The City continues to fall chronically short in preventing DOC officers
from using unnecessary force against detainees. Earlier this year, the independent monitor evaluating the City’s compliance with the Nunez consent judgment found: “[DOC] has not yet made significant progress toward the primary goal of reducing the use of unnecessary and excessive force. The use of force has continued to increase rather than diminish, even as the inmate population has decreased.”27
60. Over the past few years, the City has dramatically increased its use of SJOs to send upstate young detainees whom it deems undesirable. It has done so to circumvent its own ban on solitary confinement for detainees 21 and younger. And it has done so even though ESH and other facilities are available within New York City as secure units for detainees who require that level of segregation.
61. A New York Times investigation published on July 22, 2018, found that “[t]ransfers of inmates 21 and younger increased sharply starting in 2015, the year the city

cost. See A Local Law to Amend the Administrative Code of the City of New York, in Relation to Requiring Notice

and Review for Transferring Inmates to Facilities Outside New York City, Int. 1693-2017, available at

https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3137808&GUID=ABF42E83-4564-42C8-9B40-

A9196B7D2197.

26

Kenneth C. Crowe II, County Jails Board Inmates to Cut Down on Expenses, Albany Times-Union, Dec. 2,

2013, https://www.timesunion.com/local/article/County-jails-board-inmates-to-cut-down-on-expenses-5024752.php.

27

Steve J. Martin et al., Fifth Report of the Nunez Independent Monitor 4 (Apr. 18, 2018), available at

https://www1.nyc.gov/assets/doc/downloads/pdf/Fifth_Monitor_Report.pdf.

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adopted the solitary ban, and except for a drop in 2017, the number of such transfers has remained well above the levels seen before the ban.”28
62. On information and belief, the City has sent dozens of detainees 21 and younger to be held upstate since October 2015. Between March 8, 2018 and August 15, 2018 alone, 21 SJOs were issued transferring detainees from the City to the Albany County Jail.
63. It is official City policy that solitary confinement “represents a serious threat to the physical and psychological health of adolescents.”29 And, because DOC has stopped requesting variances from the ban on solitary confinement for detainees aged 18-21, it has been established as a matter of City law that DOC has “sufficient resources” to implement “necessary alternative programming” to maintain order without using solitary.30
64. Nonetheless, the City continues to send detainees under 22 upstate on SJOs, expecting—indeed, knowing—that they will be put in solitary confinement to punish them.
65. In response to public scrutiny over the New York Times investigation, Mayor de Blasio endorsed and ratified the City’s practice. “Occasionally we have to remove a prisoner from our correction system because there is an immediate threat to them and something that requires them being moved to another jurisdiction,” the Mayor said on July 23, 2018.
66. Many of the young detainees transferred from Rikers on SJOs (“Rikers detainees” or “New York City detainees”) have been charged with assaulting correction officers on Rikers Island. To the extent that these detainees face a “threat” at Rikers, to use the Mayor’s

28

Ashley Southall & Jan Ransom, New York City’s Young Inmates Are Held in Isolation Upstate, Despite

Ban. N.Y. Times, July 22, 2018, https://www.nytimes.com/2018/07/22/nyregion/inmate-solitary-young-nyc.html.

29

Rules of the City of New York tit. 40, § 1-17(a).

30

Id. § 1-17(b)(1)(ii).

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 21 of 103
words, that threat comes from retaliation by DOC staff—the very staff hired by the City to maintain order in its jails. The City’s admission that it cannot keep detainees safe from unlawful violence by its own officers is disturbing.
67. Rikers detainees are generally not told in advance that they are being sent out of New York City on an SJO. They are simply told one morning by DOC correction officers to gather their personal effects. They are strip-searched and shackled and loaded into a van. Because this is the same thing that happens when a detainee is moved from jail to jail on Rikers Island, most assume that they are simply being transferred to another facility on Rikers. Sometimes DOC correction officers even tell the detainees they will be coming right back. The detainees are not permitted to call anyone before they leave.
68. Correction officers from DOC’s Emergency Services Unit, or “ESU,” are generally responsible for transferring detainees. Once detainees are loaded into the van, the van keeps driving. It has no windows, so detainees cannot see where they are going. For many of the young detainees who are sent out of New York City on an SJO, the van finally stops in Albany County.
69. The Albany County Jail is about a three-hour drive from New York City, 160 miles from Rikers Island. Being held at the Albany County Jail makes it more difficult for detainees to communicate with their lawyers about their pending criminal cases. It also cuts detainees off from their friends and families, many of whom are indigent and do not have the money or time off work to take long trips to Albany to visit during narrow visiting hours that are frequently early in the morning.
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70. Albany County charges the City $175 a day for each City detainee it houses at the Albany County Jail.31
IV. Albany County’s Policy and Custom of Torturing Rikers Detainees 71. New York City detainees from Rikers Island brought to Albany on SJOs
are generally subject to the same routine of torture on arrival, with some variations, after which they are almost uniformly put in solitary confinement.
72. When the van doors open, a group of approximately ten Albany County correction officers are there waiting. They are wearing green paramilitary uniforms with riot gear, helmets, and visors. This group of officers is called the “Green Team.” Some of the Green Team members have the iconic skull logo of the Punisher—a comic-book antihero who exacts violent revenge on those who have wronged him—on the chest of their body armor.32
73. The Green Team is usually under the command of Lieutenant Anthony Torrisi.
74. Each New York City detainee is removed from the van one-by-one and escorted inside the jail by both the Albany County Jail Green Team officers and DOC ESU officers. The continued involvement of ESU officers is necessary because the detainee is still wearing DOC restraints that need to be returned to Rikers, to which ESU has the keys.
75. Each New York City detainee is escorted to the intake area inside the Albany County Jail. The ESU officers unshackle him and literally hand him over to the Green

31

Southall & Ransom, supra note 28.

32

Whichever officers suit up in green fatigues and riot gear on a given day comprise the “Green Team.” It is

not a separate unit with a fixed membership.

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 23 of 103
Team, who then put him in Albany handcuffs. The detainee is put in a booking cell with several Green Team officers, where Torrisi begins commanding a choreographed routine of torture.
76. “This isn’t Rikers,” Torrisi routinely tells the detainee. “We do what we want here.” The detainee is given a series of arbitrary and increasingly convoluted commands, in the nature of: “Face the wall with your right foot behind your left and your right hand higher than your left,” or “Take off your jumper with your right hand and pass it back to us over your left shoulder.”
77. If the detainee gets confused, as he invariably will, he gets punched. 78. Torrisi then tells the detainee, in sum and substance: “We’re going to take these cuffs off you. When the cuffs come off, you start swinging.” The detainee’s cuffs are removed, and he is then tackled to the floor and beaten until Torrisi orders the Green Team to stop. 79. The DOC ESU officers who brought the New York City detainees to Albany are, on information and belief, often present inside the intake area of the Albany County Jail when these things happen. On information and belief, they can see and hear what is happening and are able to intervene to stop it if they so choose, but they choose not to. 80. After intake, each Rikers detainee is taken to the “BOSS Chair,” a body scanner designed to detect contraband stored in body cavities. The detainee then goes through a metal detector and is brought to a medical x-ray room to be x-rayed for contraband. 81. The Rikers detainee is then taken upstairs to the solitary confinement cell block known as “4 East” and put in a cell which, on information and belief, has already been assigned to them.
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82. At some point during this process—often after the x-ray, but sometimes during an initial strip search in the intake pen—Torrisi claims to have seen contraband, whether real or imagined, inside the Rikers detainee’s rectum.
83. Jails have legitimate security needs and must prevent detainees from bringing contraband or weapons inside. If a search identifies contraband in a detainee’s body, the appropriate responses may include placing the detainee in isolation and waiting until the detainee expels the contraband or seeking the assistance of a medical professional to remove the item with the detainee’s consent.
84. It is unreasonable, unsafe, and inconsistent with standard correctional practice for a guard who has no medical training to attempt to forcibly remove contraband from a detainee’s rectum without his consent in a nonmedical environment.
85. For example, DOCCS, which runs all New York State prisons, allows manual searches of body cavities other than the rectum to be conducted only by medical personnel with the approval of the Deputy Commissioner or Chief Medical Officer of DOCCS, in an examination room with appropriate medical equipment using appropriate medical techniques.33
86. DOCCS guidelines provide that “rectal cavity searches will not be authorized” under any circumstances.34
87. DOC’s own policies and procedures forbid any manual cavity searches by uniformed correctional staff. DOC staff may not engage in “any probing or touching of the genital or anal cavities” when strip-searching detainees. Rather, if DOC staff suspect the

33

See N.Y. State Dep’t of Corr. & Cmty. Supervision Directive No. 4910, § III.H, Nov. 7, 2017, available at

http://www.doccs.ny.gov/Directives/4910.pdf.

34

Id. § III.H.3.

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 25 of 103
presence of contraband in a body cavity after visual inspection of the cavity, they must isolate the detainee until he or she removes or passes the suspected contraband.35
88. But the Green Team is not even engaged in a legitimate effort to conduct manual body cavity searches at all. Rather, it assaults and sexually assaults Rikers detainees under the pretext of attempting to forcibly remove real or imagined contraband from their rectums, but with the real purpose of terrifying and intimidating the Rikers detainees.
89. Green Team officers sometimes use Tasers against cuffed Rikers detainees; insert their fingers into detainees’ rectums; and even sodomize detainees with foreign objects. These actions have no legitimate security purpose. Rather, they are assaults designed to assert the dominance of correctional staff and humiliate, intimidate, and degrade detainees.
90. After undergoing this violent ritual on arrival at the Albany County Jail, Rikers detainees often have visible injuries. Invariably, Defendant Nurse Mylroie, widely known as “Missy,” is the assigned medical provider. She refuses to give the detainees medical care, unhelpfully telling them that they are fine as long as they can walk and talk, and instructs them to take Motrin.
91. After being beaten, Rikers detainees are written up for “assaulting staff,” among other infractions. The written tickets generally say that the detainee “turned off the wall” or “turned around” to assault staff.
92. That any of the Rikers detainees chose to spontaneously assault multiple officers wearing helmets and full riot gear while locked in a confined space is entirely unlikely. That all of them did so rises to the level of systematic fabrication.

35

See N.Y.C. Dep’t of Corr. Directive No. 4508R-E, § V.G.1 & app. B, May 15, 2009.

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 26 of 103
93. After they are assaulted upon arrival at the Albany County Jail, Rikers detainees are given a disciplinary hearing at which they are told it does not matter what they say because they will be found guilty regardless.
94. No testimony is taken at the hearings, and the hearings are not recorded or transcribed in any way. The detainees are found guilty of infractions at the hearing and sentenced to long periods of solitary confinement, often for well more than a year.
95. Several Rikers detainees have observed a “wheel” with a spinning arrow on the table in the hearing room. The wheel resembles the crude device that comes with board games like Twister. The detainees do not know the wheel’s purpose, but some have seen hearing officers spin the wheel during the hearing, and they suspect that the officers may be using the wheel to assign punishments arbitrarily.
V. Albany County’s Policy and Custom of Putting All Rikers Detainees in Solitary Confinement 96. The Rikers detainees spend their remaining time at the Albany County Jail
in solitary confinement. They are in their cells by themselves for a minimum of 23 hours a day, with no meaningful social interaction, environmental stimulation, or human contact. They are offered one hour of “recreation” by themselves in an indoor cage and a 15-minute shower every other day. Most decline the “recreation” time in the cage because the cage is functionally indistinguishable from their cells.
97. The Albany County Jail’s solitary confinement unit, known as “4 East,” consists of approximately 20 cells arrayed on multiple tiers. A typical cell is about 6 feet by 8 feet.
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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 27 of 103
98. Sheriff Apple told the New York Times that it was the Albany County Jail’s policy to put any detainee who has ever assaulted correctional staff, regardless of where or when, in solitary confinement.36
99. On information and belief, every single New York City detainee who has been brought to the Albany County Jail on an SJO in the past two years has been beaten and put in solitary confinement. Plaintiffs are unaware of any New York City detainee who was integrated into the general population at the Albany County Jail.
100. On information and belief, the vast majority of the detainees housed in 4 East at the Albany County Jail over the past two years have been from New York City.
101. In response to a grievance about conditions on 4 East submitted by Plaintiff Doe in June 2018, Major Brian Mooney, the Albany County Jail’s chief administrative officer for grievances, wrote: “Due to the violent and assaultive behavior displayed by the inmates housed from Rikers Island, the facility has adopted new protocols to ensure the safety of all staff that come into contact with them.”
VI. New York City Has Received Repeated Notice of Albany’s Torture and Abuse of DOC Inmates, and Continues to Transfer Detainees There to Be Tortured 102. The City and its policymakers are aware of the increased rate of transfers
of Rikers detainees to the Albany County Jail after the City banned solitary confinement for detainees 21 and younger.
103. The City and its policymakers are aware that detainees routinely fail to receive notice or an opportunity to be heard before being transferred outside the City on an SJO.

36

Southall & Ransom, supra note 28.

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And they are aware that Rikers detainees have repeatedly alleged that guards at the Albany County Jail have beaten them.
104. The City has failed to investigate or remediate these conditions and has continued sending detainees, including many aged 21 and younger, to the Albany County Jail without notice, to be beaten and put in solitary confinement.
105. In August 2017, four New York City Council Members introduced a bill to amend City law to require that Rikers detainees be provided with notice before being transferred outside the City on an SJO. That bill is being considered by the relevant Council committee.37
106. On February 16, 2018, criminal defense counsel for a Rikers detainee who had been transferred to Albany with Mr. Espinal wrote to DOC’s general counsel to inform DOC that his client had been subjected to “multiple beatings” and “mistreatment” at the Albany County Jail. The letter expressed concern for the detainee’s safety and requested his transfer out of Albany to a “safer environment.”
107. On March 3, 2018, Plaintiff Espinal filed a notice of claim with the Comptroller of the City of New York. In that notice, Plaintiff Espinal explained that, upon his arrival in the Albany County Jail, he had been brutally assaulted, tased, and held in a restraint chair for an extended period of time.
108. On April 12, 2018, a Rikers detainee named Julian Cepeda filed an Article 78 petition against DOC and Commissioner Brann, among others, challenging his transfer to the Albany County Jail as a matter of state law. In his petition, Mr. Cepeda alleged, among other

37

A Local Law to Amend the Administrative Code of the City of New York, in Relation to Requiring Notice

and Review for Transferring Inmates to Facilities Outside New York City, supra note 25.

24

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things, that on the day of his arrival at the Albany County Jail, he was “brutally beaten and sexually assaulted, where an officer put on a latex glove and stuck his finger in Petitioner[’s] buttocks.” Mr. Cepeda further alleged that he “made [a] medical complaint about rectal bleeding and visible swollen area to medical staff” but was denied medical attention.
109. On July 10, 2018, Plaintiff Espinal’s criminal defense counsel, Ruben Fernandez of The Bronx Defenders, notified DOC Commissioner Brann and numerous other officials in writing about the abuses and conditions that Mr. Espinal had been subjected to at Albany County Jail. The DOC general counsel’s office responded by denying responsibility for Mr. Espinal’s treatment while he is held at the Albany County Jail.
110. On July 22, 2018, the New York Times published its lengthy story on the treatment of Rikers detainees at the Albany County Jail. The Times explained that detainees were transferred out of New York City without notice and put in solitary confinement at the Albany County Jail. The Times reported on several detainees’ allegations that they had been beaten on arrival at the Albany County Jail.38 In response, Mayor de Blasio defended the City’s practice of sending young detainees to Albany to be put in solitary confinement.
111. On October 31, 2018, Mr. Cepeda, represented by attorney Robert Quackenbush of the Legal Aid Society Prisoners’ Rights Project, filed an amended Article 78 petition again alleging that he had been assaulted without provocation during the admission process at the Albany County Jail. Mr. Cepeda further alleged that he was 20 years old and would be held in solitary confinement in Albany until May 11, 2019.
112. On November 19, 2018, the City opposed Mr. Cepeda’s petition and filed an affidavit sworn to by Defendant Williams. In his affidavit, Defendant Williams explained that

38

Southall & Ransom, supra note 28.

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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 30 of 103
Albany County has shown a unique willingness to accept City inmates with “violent infraction histories.” Defendant Williams testified that “only” the Albany County Jail, and “no other” facility closer to New York City, would agree to house Mr. Cepeda or was “equipped” to house Mr. Cepeda.
113. On December 3, 2018, Plaintiff Tillery, represented by attorney Quackenbush, filed a similar Article 78 petition against DOC and Commissioner Brann challenging his transfer to the Albany County Jail as a matter of state law. He alleged, among other things, that he had been subject to excessive and unlawful force during the intake process at the Albany County Jail.
VII. Albany County’s Systemic Interference with Communications with Counsel 114. Because the Albany County Jail is 160 miles from New York City, it is
not feasible for Rikers detainees’ criminal defense lawyers to pay regular visits to discuss the detainees’ pending criminal cases in New York City courts.
115. Plaintiffs hereby incorporate by reference the Declaration of Ruben Fernandez, to be filed with the Court on the date of this Amended Complaint, which explains why it is effectively impossible for appointed criminal defense attorneys in New York City to effectively counsel their clients in Albany about serious pending charges.
116. At a bare minimum, it is critical that Rikers detainees and their criminal defense attorneys be permitted to hold confidential telephone calls. Such consultation is necessary for the Rikers detainees to participate in and direct their defense of the criminal charges against them.
117. State law governing county jails requires that “all prisoners shall have access to legal counsel,” including “telephone communications.” It further provides that
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Case 1:18-cv-12306-CM Document 112 Filed 06/06/19 Page 31 of 103
“telephone communications between prisoners and their legal counsel shall not be monitored except visually.”39
118. However, there is no such thing as a confidential, unrecorded legal telephone call to or from the Albany County Jail.
119. Detainees in solitary confinement at the Albany County Jail are generally not permitted to use the telephone at all.
120. The Albany County Jail will arrange for detainees in solitary confinement to speak with their attorneys under exigent circumstances. But those calls are monitored by jail staff.
121. Albany County Jail officials have repeatedly represented, including to the Legal Aid Society Prisoners’ Rights Project, that all detainee calls to or from the Albany County Jail—even with counsel—are monitored.
122. In a letter dated August 6, 2018, Chief Deputy Sheriff William Rice stated that Albany County has “no policies or directive[s] addressing confidential telephone communications between incarcerated persons [and] counsel.”
123. Albany County Jail correction officers have made comments to Plaintiffs Espinal and Tillery about the details of Espinal and Tillery’s private conversations with their attorneys. Plaintiffs Espinal and Tillery did not voluntarily disclose those details to their jailors. The only way the correction officers could have learned those details was by listening to the conversations without Plaintiffs Espinal and Tillery’s consent.

39

9 NYCRR §§ 7031.2(a), (b).

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VIII. The Experiences of the Named Plaintiffs 124. Plaintiffs’ experiences are emblematic of the punitive and arbitrary nature
of SJO transfers off Rikers Island and the routinized torture, sexual assault, deliberate indifference to serious medical needs, and unlawful solitary confinement that New York City detainees experience in Albany County.
Davon Washington A. Davon Washington is Detained at Rikers Island Starting in March 2016
125. Davon Washington is a 22-year-old African American young man. 126. Davon was diagnosed as a child with depression. He spent time in his childhood in a group home and in foster care. 127. At the age of 19, Davon was arrested and taken into custody by the New York City DOC. 128. Davon arrived at Rikers Island on or around March 24, 2016. 129. While at Rikers Island, Davon received mental health services, including counseling and medication for attention deficit disorder. He also received educational services in support of his efforts to obtain a GED, and he attended high school at the Island Academy.
B. The March 28, 2018 Transfer of Davon Washington from Rikers to the Albany County Jail 130. While at Rikers Island, in or about March 2018, Davon lodged complaints
with the Legal Aid Society Prisoners’ Rights Project, alleging, among other things, that he was groped by a DOC staff member and denied adequate mental health and medical care.
131. On information and belief, Legal Aid representatives contacted DOC about Davon’s complaints on or about March 16, 2018 and March 26, 2018.
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132. On or about March 22, 2018, DOC ESU officers woke Davon up in the early morning and ordered him to “pack up.” Davon complied, and he was removed from his cell for the day. However, he was returned the same cell at the end of the day.
133. On March 28, 2018, ESU officers woke Davon up in the early morning and again ordered him to pack up.
134. The ESU officers told Davon, in apparent reference to a deputy warden at the jail where Davon was housed, that Deputy Walker “can’t be around you.”
135. The ESU officers strip-searched Devon, placed him in the BOSS Chair, and put him through a metal detector.
136. When Davon asked where he was going, ESU responded, “Off Rikers.” ESU told him, in an apparent reference to Defendant Walker: “You’re going to Albany because Deputy Walker don’t want you.”
137. ESU placed Davon in a transport van with one other detainee. 138. Prior to being removed from Rikers, Davon was given no written notification for the basis of the transfer, received no hearing, and was not permitted to call his family or lawyers to inform anyone of his whereabouts. He was not even told he was going to be transferred. 139. Defendant Williams obtained the SJO transferring Davon to Albany County. 140. The Substitute Jail Order issued by the SCOC is dated March 22, 2018. It states that DOC, “as a result of safety considerations,” is “unfit for the confinement of Devon [sic] Washington.”
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141. ESU officers drove Davon and the other detainee in the van for several hours.
142. When Davon exited the van, he saw a squad of approximately 12 law enforcement officers standing in front of him, wearing green fatigues and riot gear, including helmets and body armor. Davon would later learn that these were correction officers from the Albany County Jail.
143. Several green-suited officers grabbed Davon and took him to the Intake area of the Albany County Jail. Approximately two to three ESU officers also entered the Albany County Jail escorting Davon.
144. The ESU officers removed Davon’s Rikers cuffs and restraints, and he was placed in Albany County Jail cuffs and shackles.
145. Davon followed all orders given to him and was cooperative during this procedure.
C. Defendants Physically and Sexually Assault Davon Washington at the Albany County Jail 146. Several Albany County Jail correction officers then moved Davon into a
small room, Booking Cell #2. 147. Approximately eight to ten Albany County Jail correction officers and
supervisors, including Defendants Torrisi, Valvo, Lawson, Haley, LaBombard, and Anzalone were waiting for him in the room.
148. Defendant Torrisi told Davon to put his head on the wall. Davon complied.
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149. Defendant Torrisi asked Davon, in sum and substance: “What are you doing here?” When Davon stated “I don’t know,” Defendant Torrisi smacked Davon in the face with his open hand.
150. Defendant Torrisi then stated, “Who’s the biggest gang?”, in an apparent reference to alleged gang affiliation, and again smacked Davon in the face several times with an open hand.
151. Defendant Torrisi stated to Davon, in sum and substance: “We’re going to give you instructions, follow them correctly. Once we take these cuffs off, you better start swinging.”
152. Defendants then removed Davon’s handcuffs and began to punch Davon all over his body.
153. On information and belief, the ESU officers were still in the intake area of the Albany County Jail and were aware of what was happening.
154. Davon fell to the ground and curled up in the fetal position. 155. Defendants either kicked and stomped on Davon or simply stood by and did nothing to intervene while Davon lay on the ground and was beaten. 156. Defendant Torrisi stated: “Wake him up. I want him to feel everything. He likes to assault officers.” 157. Four defendants then lifted Davon up and placed him face-first against the wall. They then instructed Davon to take his left shoe off with his right hand and pass it over his right shoulder. They then continued to give him other instructions to undress in a specific way.
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158. Davon was nervous and found it hard to comply with the instructions regarding his right and left hands. Every time he made a mistake, such as by using his left hand instead of his right hand, one of the Defendants would punch him.
159. When Davon was naked, Defendants asked: “We’re gonna ask you once: do you have anything you are not supposed to have?”
160. Anticipating that he might go through a metal detector, Davon told Defendants that he had a bullet fragment in his foot. In response, Defendants stomped directly on Davon’s foot, causing him extreme pain.
161. Defendants then instructed Davon to spread his buttocks and cough. Davon complied.
162. Defendants stated, “I see plastic,” referring to an alleged item of contraband in Davon’s rectum, and continued to beat Davon while he was naked.
163. Defendants then pushed Davon to the floor. One of the Defendants forcefully inserted two fingers into Davon’s rectum. Defendants then stated, in reference to the supposed contraband: “He pushed it back up.”
164. Defendants removed Davon from the cell, placed him in the BOSS chair, and put him through the metal detector to search for contraband. Davon complied with all instructions. There was no indication that he was in possession of any contraband.
165. Davon was bleeding from his nose and mouth. Defendants shouted at him to stop bleeding onto the BOSS chair.
166. Defendants ordered Davon to submit to a medical x-ray to search for contraband. Davon complied.
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167. Defendant Mylroie asked Davon if he had any injuries and he responded that he did. Defendants Lawson and Valvo, who were standing nearby, then punched Davon in the face, stating “Ask him again, any injuries?” Davon then stated “No.”
168. Defendants escorted Davon to Cell #19 in the SHU located in 4 East Housing Unit.
169. Defendants ordered Davon to undress until he was naked. Davon complied.
170. Defendants Torrisi, Lawson, and a correction officer with spiky hair punched and kicked Davon multiple times while he was handcuffed and shackled in Cell #19.
171. Defendant Mylroie came to his cell at one point and asked if he wanted medical attention. Davon had blood all over his face and was visibly injured. Davon was scared and told her that he didn’t need medical attention.
172. Later in the day, Major Brian Mooney came to Davon’s cell and stated to him, in sum and substance: “Don’t mess around. This is not Rikers.”
173. As a result of the beating, Davon was bleeding, his face was swollen, his tooth was chipped, his lip was split, his foot was hurting, and he was bruised all over his back and body. He was in pain for many days after the assault.
174. The Albany County Jail reports concerning the assault against Davon falsely claim that he turned around and attacked staff members inside the booking cell:
At 1:17 p.m. Team 1 removed Inmate Washington from the Rikers transport. Inmate was brought into booking for processing. Inmate was escorted to Booking 2 Cell and read into SHU. When officer removed the handcuffs from inmate, inmate turned around and started punching at officers. Inmate was brought to the floor and restrained with body holds. Inmate was placed back on the wall and the strip search was completed.
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175. Davon received an infraction ticket for the incident on or about March 28, 2018, which falsely accused him of “lunging” at staff and attempting to punch them when his handcuffs were removed.
176. Davon appeared at the disciplinary hearing on April 8, 2018. 177. Davon did not testify at the hearing because he feared further retaliation and violence. According to the facility Inmate Disciplinary Report, his only statement at the hearing was that he had nothing to say about the incident. 178. At the end of a hearing, Davon was sentenced to 360 days of punitive segregation—an extraordinarily long period— by the hearing officer, Defendant Grimes. 179. Since the assault, Davon has continued to experience pain, emotional distress, and traumatic thoughts.
D. Davon Washington Is Held in Solitary Confinement at the Albany County Jail For Nine Months 180. From his arrival at the Albany County Jail on March 28, 2018 until his
departure in or around December 2018, with the exception of court visits, Davon was kept in a small solitary cell for at least 23 hours a day.
181. Davon had nothing to do in his cell: no meaningful human interaction, no education or programming, no music or television, and limited reading materials. He had limited access to phone calls, was not permitted to talk to other detainees, and did not leave his cell except to shower three times a week.
182. Davon was permitted to spend one hour a day out of his cell in a metal cage placed in the hallway outside his cell. The metal cage is placed next to a window. It is an empty, chain-link cage with nothing in it.
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183. Davon was issued a number of disciplinary infractions for talking and “yelling,” when he attempted to speak with the other detainees housed in the SHU. One of these tickets resulted in him losing his commissary and phone privileges for 60 days.
184. If the young detainees in 4 East try to speak with each other, the SHU officers turn on two large fans that make it both loud and extremely cold in the unit.
185. Defendants denied Davon access to educational programming and materials. Davon filed grievances about this educational denial.
186. Davon was placed on psychiatric medication at Albany, including a medicine he had not previously required.
187. Davon also lost a substantial amount of weight—approximately 18 pounds—while at the Albany County Jail. When he arrived, he weighed 155 pounds, and as of October 5, 2018, he was down to 137 pounds. The food portions were small and Davon was constantly hungry, particularly at night. He was placed on Ensure and vitamins in an attempt to counteract the weight loss from inadequate nutrition.
188. While at the Albany County Jail, Davon had no visits from his family because it was too far for them to travel. However, at Rikers, his mother, sisters, brother, and other family members were able to visit him.
E. Albany County Jail Guards Beat Davon Washington in Retaliation for a Legal Visit on October 5, 2018 189. On October 5, 2018, Davon had a legal visit in the Albany County Jail
with his counsel in this action. 190. When the legal visit ended, multiple correction officers escorted Davon
out of the visiting area.
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191. One of them was an individual who was also involved in the initial March 28, 2018 assault on Davon.
192. After the visit, the officers did not take Davon to the search area, as is standard protocol.
193. Instead, three officers took Davon directly back to his cell and pushed him into the back corner of the cell. There are no cameras inside the cell.
194. One of the officers then struck Davon in the face repeatedly on his face with an open hand, switching between striking the left and right sides of his face.
195. He then stated, in sum and substance, referring to Davon’s legal visit: “What did you think, that was going to stop us?” and “What you’re doing is not going to work.”
196. The officers took Davon’s legal paperwork from him.
Steven Espinal A. Steven Espinal Is Detained at Rikers Island Starting on November 18, 2017
197. Steven Espinal is a 19-year-old Latino teenager detained at the Albany County Jail, where he is currently in solitary confinement.
198. Although he has criminal matters pending in the Bronx County Supreme Court, Steven has no adult criminal convictions.
199. Steven was diagnosed as a teenager with bipolar disorder and attentiondeficit/hyperactivity disorder.
200. At the age of 18, Steven was arrested and put in the custody of the New York City DOC.
201. He arrived at Rikers Island on November 18, 2017.
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202. While at Rikers, Steven worked and received mental health services, including counseling, and educational services in support of his efforts to obtain a GED.
203. On February 10, 2018, Steven was detained at the George Motchan Detention Center (“GMDC”).
204. On this date, he and other detainees, all of whom were under 21 at the time, were allegedly involved in an altercation with a correction officer.
205. The correction officer was reported to have suffered a fracture to his spine. 206. The February 10, 2018 incident received widespread media coverage. Representatives of the Correction Officers Benevolent Association (“COBA”) made public statement blaming the incident on Mayor de Blasio’s policy of shielding detainees under 21 from solitary confinement. COBA blamed the inability to isolate detainees under 21 for an increase in attacks on correction officers. 207. On February 10, 2018, DOC ESU officers brought Steven in a van from GMDC to a different building on Rikers Island to be fingerprinted and rearrested. There, the ESU officers hit Steven’s head on a wall and smacked him in the face. 208. On February 11, 2018, Steven was transferred from GMDC to the Otis Bantum Correctional Center (“OBCC”), a different facility on Rikers. 209. On February 12, 2018, Steven was arraigned in Bronx Criminal Court and charged with first-degree assault and other related counts stemming from the alleged February 10 incident.
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B. The February 13, 2018 Transfer of Steven Espinal from Rikers to the Albany County Jail 210. On February 13, 2018, a captain woke Steven up in the early morning and
told him to get dressed because ESU was coming for him. Steven asked where he was going. The captain said he would be coming right back.
211. ESU officers came for Steven and another young man who was allegedly involved in the February 10 incident and put them in a transport van.
212. After Steven was secured in the van, ESU officers drove to another location to pick up two more Rikers detainees who were also allegedly involved in the February 10 incident.
213. Before being removed from Rikers, Steven was given no written notification of the basis of his transfer, received no hearing, and was not permitted to call his family or lawyers to inform anyone of his whereabouts. He was not even told that he was going to be transferred.
214. ESU officers drove Steven and the other three detainees in the van for several hours. Steven did not know where he was being taken.
215. At approximately 11:00am, the van door was opened. 216. Steven saw a squad of approximately 12 law enforcement officers standing in front of him, wearing green fatigues and riot gear, including helmets and body armor. Steven would later learn that these were correction officers from the Albany County Jail. 217. One of the green-suited officers said, “We want Espinal first.” 218. Several green-suited officers grabbed Steven and took him to the intake area of the Albany County Jail. About two to three Rikers ESU officers also entered the Jail escorting Steven.
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219. The Rikers ESU team removed Steven’s DOC handcuffs. 220. One of the Albany County Jail officers took his photograph. 221. Several Albany County Jail officers them re-handcuffed Steven in Albany County Jail cuffs and shackled him. 222. Steven followed all orders given to him and was cooperative throughout this process. 223. That same day, Steven’s criminal defense attorney, Ruben Fernandez, attempted to contact Steven at Rikers by videoconference but was told by DOC staff that Steven had been transferred from one Rikers Island facility to another. Steven’s attorney was unable to contact Steven and did not know his location. 224. DOC has represented in an August 15, 2018 letter to Steven’s criminal defense counsel that it transferred Steven to the Albany County Jail on an emergency basis due to “extraordinary circumstances” under 9 NYCRR § 7210.6(e). 225. However, on information and belief, no written correspondence between the City and the State Commissioner exists, as required by law to authorize such a transfer.40 226. On March 28, 2018—a month and a half after Steven arrived in the Albany County Jail—SCOC issued an SJO on the basis that “the NYC Department of Correction is, as a result of safety considerations, unfit for the confinement of STEVEN ESPINA [sic].” 227. Defendant Williams obtained the SJO transferring Steven to Albany County.

40

See supra ¶ 56.

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C. Defendants Physically and Sexually Assault Steven Espinal at the Albany County Jail 228. After Steven was cuffed and shackled, several Albany County Jail
correction officers moved him into Booking Cell #2. 229. About eight to ten Albany County Jail correction officers and supervisors
were waiting for him there. Defendants Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were present.
230. Defendant Torrisi stated to Steven, in sum and substance: “This isn’t Rikers. This is Albany County. We do what we want.”
231. Defendant Torrisi then punched Steven in the face two times. 232. Defendant Torrisi then said to Steven, in sum and substance, “Once we take these cuffs off, you better start swinging.” 233. Defendants began the process of removing Steven’s handcuffs but did not actually remove them. They began punching Steven all over his body. 234. Steven fell to the ground and curled up in the fetal position. 235. Defendants kicked and stomped on Steven while he lay on the ground and/or stood by and did nothing to intervene. 236. Defendant Torrisi then stated to the other officers, “That’s enough. Let’s get him up, boys.” 237. The officers picked Steven up. Defendant Torrisi told Steven to face the wall and said, in sum and substance, “As soon as I take the cuffs off, put your hands high up on the wall.” Steven complied.
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238. Defendants gave Steven a series of confusing instructions about how to remove his clothing. Steven did his best to comply. When he was unable to do so, Defendants punched him in the ribs.
239. Once his clothing was removed, Defendants provided Steven with an Albany County Jail jumpsuit, which he put on.
240. In total, the assault on Steven in the intake area lasted for several minutes. 241. Defendants then brought Steven to the BOSS chair and instructed him to pass through a metal detector to search for contraband. 242. Defendants then brought Steven to an x-ray room and ordered him to submit to a medical x-ray to search for contraband. 243. Defendants said that the x-ray had detected that Steven had a weapon in his body. 244. Defendants then brought Steven to the 4 East housing unit. 245. He was taken to a nurse at the back of the housing unit, who said that he was fine. 246. Defendants then escorted Steven to Cell #3 in 4 East. 247. Defendants ordered Steven to remove his jumper in the cell and pass it back to them. Steven complied. 248. Defendants then punched and kicked Steven multiple times. An officer said, in sum and substance, “We’re going to get that out of you,” referring to the alleged contraband.
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249. When Steven was on the floor, an officer put on gloves. Defendant Lawson held Steven’s arms down. The gloved officer forcefully inserted his fingers into Steven’s rectum.
250. The officer who had inserted his fingers into Steven’s rectum said he could not feel anything. Other officers said, in sum and substance, “He knows what he’s doing. He’s moving it up.”
251. Steven was bleeding from his rectum and in great pain. 252. Defendants then told Steven to defecate on the floor and threatened to beat the alleged contraband out of his body if he failed to do so. Defendants continued to assault Steven while he was lying naked on the floor. 253. The officers then ordered Steven to stand up. 254. One of the officers said, in sum and substance, “We’re going to make you sh*t it out.” 255. While Steven was standing against the wall, Defendant Beliveau used a taser against him. 256. Steven was standing with his back to the officers when he was tased from a few feet away. He did not know what was happening. He felt extreme pain and felt unable to move. He fell to the ground. 257. The assault on Steven in Cell #3 lasted for several minutes in total. 258. After the assault, Steven was taken to the shower. He was then brought to the restraint chair. 259. The restraint chair is a physical restraint device that allows correction officers to fasten a detainee to a chair at the wrists, ankles, thighs, arms, and head.
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260. While Steven was in the restraint chair, officers slapped and smacked him the face. They asked him, in sum and substance, “How does it feel not to be able to defend yourself?”
261. Steven was held in the restraint chair overnight. While in the chair, he passed out from pain and fatigue.
262. On the morning of February 14, 2018, Steven woke up in the restraint chair. Officers then brought him to the medical area.
263. As a result of the beating, Steven was bleeding, was bruised all over his body, and was dizzy and dazed. He was unable to urinate normally and saw blood in his urine. He could not hear out of one of his ears.
264. On February 14, 2018, Steven was taken to Albany Medical Center, where he was catheterized because he was unable to urinate normally.
265. In the intake area on the way to or from the hospital, Steven encountered Defendant Superintendent Lyons, who observed Steven’s physical condition.
266. Steven feared retaliation from Defendants if he reported that that Albany County Jail guards had assaulted him while these guards listened to his report. He told medical staff that he had lost consciousness the day before in a “fight.”
267. Albany Medical Center staff documented scratches to his face, tenderness to his neck, subrapubic tenderness, “multiple bruises and abrasions on the bilateral upper extremities,” and “midline C spine tenderness” requiring a collar and CT scan of the head and neck.
268. After his return from Albany Medical Center, Steven was sent back to solitary confinement in Cell #3 on 4 East.
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269. On February 16, 2018, Steven was transported to the Bronx for another inperson court appearance in the Bronx. The judge ordered that Steven be given immediate medical attention.
270. The Albany County Jail reports about the assault against Steven claim that he repeatedly “turned off the wall” to assault multiple staff members in riot gear while locked in a confined space:
[W]hile conducting a CERT operation in Booking processing new Riker’s [sic] Island Inmate Boarders, Inmate Espinal did not comply with staff orders during a strip search by turning off the wall towards staff & threatened to cut them. He was taken to the floor & restrained by staff until he was brought under control. After we completed the Booking process, he was taken to the X-ray room, where an X-ray was taken & showed positive for two objects in his rectum. He was then taken to SHU . . . . During his apparent attempt to remove the items, while covered in his own feces, after being given several direct orders to remain facing the wall, inmate turned from the wall & lunged at staff.
D. Steven Espinal Remains in Solitary Confinement at the Albany County Jail, After Nearly a Year There
271. For two weeks, Defendants provided Steven with no notice of the basis for his punitive detention in solitary confinement.
272. An infraction ticket dated February 13, 2018 that falsely accused Steven of assaulting staff was generated, but not served on Steven.
273. A disciplinary hearing was held on February 26, 2018, at which Steven appeared.
274. Prior to the hearing, a sergeant told Steven that “no matter what happened,” he would remain in punitive segregation for however long he was at the Albany County Jail, so he should just “admit to everything” so that it can “go easy.”
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275. Steven had no opportunity to prepare for the hearing and was not given an opportunity to identify or call witnesses.
276. The hearing officer, Defendant Sergeant Colangione, sentenced Steven to an extraordinary 600 days in solitary confinement.
277. On April 10, 2018, Steven appeared on his Bronx criminal matter before Justice Armando Montano. At that time, Justice Montano directed Steven’s release from punitive segregation.
278. Steven remains in solitary confinement, where he has been continuously since February 13, 2018, in violation of a court order.
279. Steven has been kept in a small solitary cell for at least 23 hours a day. Steven has nothing to do in his cell: no meaningful human interaction, no education or programming, no music or television, and limited reading materials.
280. He has limited access to phone calls, is not permitted to talk to other detainees, and other than access to showers three times a week, he is not permitted to leave his cell.
281. Steven usually declines to spend his one hour a day of “recreation” in the cage outside his cell because it is not materially different from staying in his cell.
282. Steven does not have a high school diploma and has been denied access to educational services since February 12, 2018. He has informed DOC and its Institutional Service Unit both verbally and in writing that he wishes to participate in educational services. He received on educational packet in September 2018 but no other materials. Steven was told by corrections officers that he would receive no schooling while in the Albany County Jail.
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283. Steven is permitted visitors one hour a week on Tuesdays from 3:30-4:30. Because the Albany County Jail is such long a distance from his mother’s house in Pennsylvania, she is unable to visit.
284. Steven is only permitted to access mental health services in his cell, when a counselor will come to his cell and speak with him in the presence of a correction officer without privacy or confidentiality.
285. Steven has not received sufficient access to his criminal defense counsel since February 13, 2018. Orders to have Steven produced in court for attorney visits have gone unheeded. On March 26, 2018, Justice Margaret Clancy signed an order to have Steven produced to speak to his attorneys on April 4, 2018. On April 27, 2018, Justice Shari Michels signed an order to have Steven produced on May 1, 2018—a date on which other Rikers detainees housed at the Albany County Jail were to be brought to court. Both orders were transmitted to the New York City DOC—and both orders went ignored.
286. On March 2, 2018, and March 13, 2018, Steven was scheduled to appear in Bronx Supreme Court Criminal Term. Courts in New York City were open, and detainees housed in detention centers closer to the Bronx courthouses were produced for their appearances. But Steven was not produced for his scheduled court appearances because of inclement weather.
287. Since the assault, Steven has continued to experience pain, emotional distress, and traumatic thoughts. He still has difficulty urinating normally and sometimes needs to be catheterized to have urine removed from his bladder.
288. As recently as January 19, 2019, Steven was required to use a catheter and carry a drainage bag at all times at the direction of an outside urologist, as he is still experiencing difficulty urinating.
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E. Defendants Brutally Assault Steven Espinal Again on July 4, 2018 289. On the morning of July 4, 2018, a nurse was making medical rounds in 4
East at the Albany County Jail. 290. Steven was in Cell #11. He was sleeping and did not hear the nurse’s
questions. As a result, he did not respond. 291. Steven sometimes has difficulty waking up because he takes psychiatric
medication that makes him tired. 292. When Steven did not respond to the nurse’s questions, several correction
officers entered his cell. 293. They pinned him to the bed, handcuffed him, and shackled him. 294. The officers then beat Steven for failing to respond to the nurse. 295. The officers grabbed Steven’s hair and sprayed him in the face with
pepper spray at close range. 296. The officers kicked, punched, and elbowed Steven while he was
handcuffed and shackled. 297. After the assault, Steven had difficult opening his jaw, which was swollen
and very painful. 298. Steven also had a deep cut over his left temple. 299. He had pain in his chest, neck, and back. 300. Steven was taken to Albany Medical Center. Upon arrival at the hospital,
Steven was unable to open his jaw. 301. Doctors noted an abrasion to the top of Steven’s left shoulder, as well as
“[h]ead trauma” and “[l]eft jaw pain and swelling post assault.”
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302. Steven was given a CT scan of the head, neck, and cervical spine, which revealed no fractures. The doctor found “asymmetrical soft tissue edema and contusion along the lateral aspect of the left mandible.”
303. A doctor also observed a laceration on the left side of Steven’s face. 304. The medical diagnosis given to Steven by Albany Medical Center was “assault.”
F. Notices of Claim 305. Within ninety days after the February 13, 2018, assault upon Steven,
written Notices of Claim, sworn by Steven, were served upon the City of New York at the Comptroller’s Office at 1 Centre Street, New York, New York and upon the County of Albany at 112 State Street, Albany, New York.
306. On October 5, 2018, a written notice of claim pertaining to the July 4, 2018 assault, sworn by Plaintiff, was served upon the County of Albany at 112 State Street, Albany, New York.
307. An examination pursuant to General Municipal Law § 50-h was conducted by the County of Albany on November 21, 2018, at which counsel for the County inquired of Steven as to both the February 13 and the July 4 assaults.
308. By written agreement, the County has stipulated to the timeliness of the October 5 notice of claim and has waived and forfeited any defense concerning its timeliness.
309. Counsel for the City of New York was invited to participate in the 50-h hearing on November 21 but declined.
310. At least thirty days have elapsed since the service of the Notices of Claim, and adjustment or payment of the claim has been neglected or refused.
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311. This action has been commenced within one year and ninety days after the happening of the events upon which the claims are based.
John Doe A. John Doe Was Detained at Rikers Island on December 18, 2015
312. John Doe is a 25-year-old Latino man from the Bronx. 313. Doe was arrested on December 17, 2015, and was incarcerated in the custody of DOC, mainly on Rikers Island, beginning on that date.
B. After a Visit from a High-Ranking DOC Security Official, John Doe Is Transferred to the Ulster County Correctional Facility on an SJO 314. On or about January 16, 2018, Doe was housed in unit 9 South at the
Manhattan Detention Complex (“MDC”), in Lower Manhattan. 315. Defendant Sullivan came to see Doe in 9 South on or about January 16,
2018. 316. Doe was in the cage outside his cell when Defendant Sullivan came. 317. Defendant Sullivan asked Doe, in sum and substance, “Why are you not
locked in? Typical.” 318. Doe responded that he did not know he was supposed to lock into his cell. 319. Defendant Sullivan said, in sum and substance, “That’s OK. Soon enough
we won’t have to deal with your bullshit anymore. You’re going somewhere good, somewhere that you’ll like.”
320. Doe did not know what Defendant Sullivan was talking about. 321. On January 17, 2018, Doe was transferred, along with other detainees, to the Ulster County Jail on a substitute jail order.
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322. Doe did not receive notice that he was going to be transferred out of New York City in advance.
323. Doe did not know he was going to Ulster County until he got there.
C. John Doe Is Transferred from Ulster County to the Albany County Jail 324. Doe and the other Rikers detainees spent only about a week at the Ulster
County Correctional Facility. 325. Defendant Williams has acknowledged in an affidavit submitted in
another proceeding that he knew Doe would only stay in Ulster County very briefly on his way to Albany. Albany County indicated that it would not be able to receive the Rikers detainees until January 23, so Defendant Williams asked Ulster County whether it could briefly house them until Albany was ready for them.
326. On or about January 24, 2018, Doe was transferred to the Albany County Jail.
327. Doe arrived at the Albany County Jail at around 10:00 or 11:00 am on the date of his transfer.
328. Doe was transported from Ulster to the Albany County Jail by New York City DOC ESU officers.
329. When the door opened, Doe was met by the Green Team, dressed in riot gear and green vests.
330. Defendant Torrisi was in command of the Green Team.
D. Defendants Brutalize and Sexually Assault John Doe 331. The Green Team escorted Doe to a booking cell in which he was subjected
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332. During the search process, Defendants gave bizarrely detailed and confusing instructions about the manner and sequence in which Doe should remove his clothing.
333. As Doe tried to carry out the instructions, Defendants began to hit and kick him, claiming that Doe was carrying out their instructions improperly.
334. After knocking Doe to the ground, Defendants picked him back up and told him to do a better job of listening to their instructions.
335. Defendants then brought Doe to the BOSS Chair, which did not indicate the existence of any contraband in Doe’s body.
336. From the BOSS Chair, Defendants brought Doe to a room with an x-ray table.
337. Defendants forcibly placed Doe on the x-ray table and held him down so that he could be x-rayed.
338. Defendants said that the x-ray detected the presence of a razor secreted in Doe’s rectum.
339. In the x-ray room, Defendant Torrisi slapped Doe twice and said, in sum and substance, “Give me the weapon now, or this will be the worst day of your life.”
340. Another correction officer hit Doe one time in the x-ray room. 341. From the x-ray room, Defendants took Doe to Cell #11 in 4 East. 342. Doe was naked in Cell #11 with eight to ten correction officers, including Defendants Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Harris. 343. In Cell #11, Defendants told Doe, in sum and substance, to remove the razor they claimed to have seen in his body or they would kill him. 344. Defendants removed Doe’s handcuffs.
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345. Six to eight correction officers, including Defendant Torrisi, then began to assault Doe with their fists and batons.
346. During the assault, Defendants kept telling Doe to remove the blade from his rectum.
347. At one point, a correction officer sprayed Doe in the face at close range with pepper spray.
348. During the beating, a correction officer told Doe, in sum and substance: “We kill people here. Is that what you want?”
349. During the events in Cell #11, Doe informed Defendants that he had a bullet in his right leg from being shot on a previous occasion.
350. In response, one of the correction officers began to stomp on Doe’s right leg in an effort to cause him further pain.
351. At a certain point during the beating in Cell #11, Defendant Torrisi told Doe, referring to the alleged contraband in his rectum: “Either you give it to us, or we go in and get it.”
352. Doe responded by asking for food and water to stimulate his bowels. 353. In response, Defendant Torrisi slammed Doe’s head against the wall and caused Doe to bend over. 354. Defendant Torrisi instructed a correction officer to put a baton in Doe’s rectum. 355. The officer jammed a baton into Doe’s rectum and repeatedly pushed it in and out.
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356. When the officer removed the baton from Doe’s rectum, Doe saw blood on the baton.
357. Defendant Torrisi asked Doe whether he had ever felt 50,000 volts course through his body.
358. At that point, an officer used a taser against Doe. 359. Doe involuntarily urinated on himself. 360. The taser wires remained attached to Doe. 361. Defendant Torrisi said, in sum and substance: “We’re going to kill you. This isn’t Rikers anymore.” 362. Defendants tased Doe a second time. 363. Doe involuntarily defecated on himself. 364. While Doe was lying on the ground in his own urine and feces, a correction officer inserted his finger into Doe’s rectum. 365. Defendants then tased Doe a third time, at which point Doe involuntarily defecated on himself again. 366. A correction officer disconnected the wires of the taser from Doe’s body. 367. Defendants then shot Doe again with a different Taser. Again he involuntarily defecated on himself. 368. At that point, Defendants told Doe that the weapon was no longer in his rectum. 369. After Doe was tased for the last time, one of the correction officers hit him and said, in sum and substance, “That’s for getting your sh*t on my shoes, you f*cking animal.” 370. Doe lost consciousness multiple times during the beating.
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E. Doe Is Denied Medical Attention and Made to Sleep in His Own Bodily Waste 371. After the beating in Cell #11, Defendants brought Doe back to the x-ray
room to be x-rayed a second time. 372. Doe asked for medical attention from the person in the x-ray room who
appeared to be a medical professional, but his request was refused. 373. After the second x-ray, Defendants provided Doe with a jail jumper but
denied him the opportunity to clean himself and did not decontaminate him from the pepper spray they used against him.
374. Doe was taken to Cell #14 in 4 East. 375. That night, Doe was forced to sleep with the remnants of his own urine and feces stuck to his body. 376. The next morning, on January 25, 2018, Doe again requested medical attention. 377. Doe had an open wound on his forehead and two black eyes, and his left eye was swollen shut. 378. Doe’s face was bruised and swollen, and his ribs and chest were bruised. 379. Doe’s rectum was damaged and bled for weeks after the incident. 380. Defendant Mylroie denied Doe medical attention and told him to take Motrin. 381. Doe was not examined by a physician until approximately a week after the beating that occurred on January 24, 2018.
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382. The Albany County Jail reports concerning the January 24, 2018 assault on Doe falsely state that Doe “turn[ed] off the wall” to assault staff and “moved toward staff” in an aggressive manner:
During a CERT operation processing new Riker’s [sic] Island Inmate Boarders, Inmate [Doe] was uncooperative during the initial strip search in Booking by turning off the wall towards staff. He was taken to the floor & restrained by staff. He was placed back on wall & the strip search was completed without further incident. He was then escorted to the X-ray room, where an X-ray was taken of him, which was positive for contraband. Inmate was then escorted to SHU Cell 11 . . . . He was again taken to the floor & restrained after he turned away from the wall & lunged at staff. . . . Capt. Harris relieved Sgt. Poole & gave Inmate [Doe] several direct orders to remove the item. Capt. Harris applied two separate five second taser cycles to inmate, when he did not comply with orders & moved toward staff with his hands & arms covered in feces.
F. John Doe Is Placed in Solitary Confinement at the Albany County Jail
383. Doe was issued an infraction ticket on January 24, 2018 that charged him with assaulting staff, among other offenses.
384. A disciplinary hearing was held on February 6, 2018. 385. At the hearing, Doe denied the charges and explained that he had been subjected to an unlawful search and that his rights had been violated. 386. In response, the hearing officer, Defendant Carhart, said, in sum and substance, “OK, you talk a good game, but we are still going to find you guilty regardless.” 387. Defendant Carhart sentenced Plaintiff Doe to the extraordinary sum of 550 days in solitary confinement. 388. Doe spent approximately the next ten months in solitary confinement without meaningful human contact.
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389. Doe had previously spent time in solitary confinement at Rikers Island, but the time in solitary in Albany was significantly more difficult because he had no outdoor recreation, no visitors, limited phone access, and very little contact with other detainees.
390. During the time in his cell, Doe thought constantly about the assault that happened on the day he arrived.
391. He was alone and felt terrified. 392. Doe became paranoid that the correction officers at the Albany County Jail were tampering with his food. 393. Doe usually chose not to take his one daily hour of “recreation” outside his cell because it was functionally no different than staying in his cell.
G. Defendants Attempt to Intimidate John Doe 394. On or about January 26, 2018, Torrisi came to Doe’s cell prior to a legal
visit that Doe received from an attorney. 395. Defendant Torrisi told Doe, in sum and substance, “If you snitch on us, we
will come up here at four in the morning and put you in a body bag. We will kill you. We do that up here.”
396. Torrisi asked Doe if he was a gang member. 397. When Doe said no, Torrisi punched him in the face and called him a liar. 398. On or about March 18, 2018, Defendant Torrisi again punched Doe in the face in retaliation for Doe’s complaints about having been sexually assaulted. 399. Since the assault on January 24, 2018, Doe has continued to experience pain, emotional distress, and traumatic thoughts. He frequently thinks about the assault, and ruminates about it.
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400. While he was detained at the Albany County Jail, John Doe was terrified as a result of the assault. He was afraid to eat because he became scared that guards were poisoning his food.
401. On October 29, 2018, Doe pleaded guilty to criminal possession of a controlled substance in the third degree.
402. Doe is now serving his sentence in the custody of DOCCS. 403. Doe considered the plea offer to be a poor one with a long sentence, but he chose to accept it anyway so he could get out of the Albany County Jail and into a different facility.
Pariis Tillery A. Pariis Tillery Is Detained By DOC Starting on March 4, 2017
404. Pariis Tillery is a 25-year-old African-American young man detained at the Albany County Jail, where he is currently in solitary confinement.
405. Pariis received a GED and then completed two semesters at the New York City College of Technology.
406. Although he has criminal matters pending in the Brooklyn County Supreme Court, Pariis has no adult criminal convictions.
407. On or about March 4, 2017, Pariis was arrested and placed in the custody of the New York City DOC.
408. Pariis was first detained at the Brooklyn Detention Center, where, on August 7, 2018, he was accused of assaulting a correction officer.
409. On August 8, 2018, Pariis was transferred to Rikers Island.
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B. The August 9, 2018 Transfer of Pariis Tillery from Rikers to the Albany County Jail 410. On August 9, 2018, Defendants Brann and Williams obtained an SJO
transferring Pariis to Albany County. 411. On August 9, 2018, a DOC captain woke Pariis up in the early morning
and told him to get dressed because ESU was coming for him. Pariis asked where he was going but was not given an answer.
412. ESU officers came for Pariis and put him in a transport van. 413. Before being removed from Rikers, Pariis was given no written notification of the basis of his transfer, received no hearing, and was not permitted to call his family or lawyers to inform anyone of his whereabouts. He was not even told that he was going to be transferred. 414. ESU officers drove Pariis in the van for several hours. He was the only person in the van. Pariis did not know where he was being taken. He asked repeatedly where he was going but no one would tell him. 415. When the van door opened, Pariis saw a squad of approximately 12 law enforcement officers standing in front of him, wearing green fatigues and riot gear, including helmets and body armor. Pariis would later learn that these were correction officers from the Albany County Jail. 416. Several green-suited officers grabbed Pariis and took him to the intake area of the Albany County Jail. About two to three Rikers ESU officers who had brought Pariis from Rikers also entered the Jail. 417. Pariis followed all orders given to him and was cooperative throughout this process.
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C. Defendants Physically Assault Pariis Tillery at the Albany County Jail 418. After Pariis was cuffed and shackled, several Albany County Jail
correction officers moved him into Booking Cell #2 and removed his handcuffs. 419. About eight to ten Albany County Jail correction officers and supervisors
were waiting for him there. Defendants Lawson, Moore, Jarosz, Harris, and Coppolo were present.
420. One Albany correction officer said to him: “Do the same thing you did on Rikers Island.”
421. One of the Defendants said to Pariis, “Do you know where you are at?” When Pariis said “no,” the Defendant punched Pariis in the face. Eight or nine correction officers then proceeded to beat Pariis about his face and body.
422. Pariis began to bleed from his nose. Defendants placed a “spit mask” on his face, though Pariis was not spitting at anyone.
423. Defendants Lawson, Moore, Jarosz, Harris, and Coppolo punched, kicked, and stomped on Pariis.
424. Pariis fell to the floor, where Defendants continued to kick and punch him.
425. After beating him for approximately 10 minutes, Defendants brought Pariis to the BOSS chair and instructed him to pass through a metal detector to search for contraband. Pariis complied with all instructions. The BOSS chair did not indicate the presence of contraband on Pariis’s person.
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426. Defendants then stated to Pariis, in sum and substance: “Do you have something? You Rikers guys are always lying. If you do have something, we’re going to beat you until you sh*t it out.”
427. Defendants then brought Pariis to an x-ray room and ordered him to submit to a medical x-ray to search for contraband. Pariis complied.
428. Defendants then escorted Pariis to Cell #14 in 4 East. 429. Defendants instructed Pariis to remove his jumpsuit. Pariis complied. 430. Defendants then brandished a taser at Pariis. 431. One Defendant stated to Pariis, “Take it out of your ass, you monkey.” 432. Defendants then hit, punched and kicked Pariis multiple times. An officer said, in sum and substance, “We’re going to get that out of you,” referring to the alleged contraband. 433. The assault on Pariis in Cell #14 lasted for a significant period of time. 434. Pariis was taken back for another x-ray and then returned to his cell. 435. Defendant Mylroie came to his cell and observed his bleeding nose and other visible injuries and told him he was fine. 436. Pariis was in extreme pain after the assault and passed out. He could not hear out of his left ear and his head hurt. His nose was swollen, and he had two black eyes, dizziness, and bruises over much of his body. 437. Pariis told correction officers that his head hurt and that he could not hear from his left ear. He requested medical attention on August 10, 2018. 438. Four days after he was assaulted, on August 13, 2018, Pariis was finally taken for treatment of the serious injuries he suffered during the August 9 assault.
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439. Despite the presence of correction officers with him at the hospital, Pariis told the medical personnel that he had been assaulted by correction officers at Albany County Jail.
440. Albany County Jail medical records dated August 13, 2018, document that he had “Trauma to Head” and “Blood in Ear,” as well as “ecchymosis to orbits.” The Albany County Jail records request that the outside medical provider rule out “skull fracture” and “cranial trauma.”
441. At the emergency room of Albany Memorial Hospital, Pariis was diagnosed with tympanic membrane perforation, head injury, and a concussion. He was prescribed an antibiotic and given multiple CT scans for possible fractures in his skull, face, or body.
442. Tympanic membrane perforation, or a ruptured eardrum, is a hole in the eardrum. It is an injury commonly caused by severe trauma to the head.
443. The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2004), commonly known as the Istanbul Protocol, is the authoritative United Nations document which sets forth international guidelines on how to investigate allegations of torture. Chapter 5 of The Istanbul Protocol, titled “Physical Evidence of Torture,” states: “Trauma to the ears, especially rupture of the tympanic membrane, is a frequent consequence of harsh beatings.” It goes on to describe how to conduct an examination of the tympanic membrane and ear for injuries and hearing loss related to abuse and torture.
444. After his return from Albany Memorial Hospital, Pariis was sent back to solitary confinement in Cell #14 on 4 East.
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445. On or about August 14, 2018, Pariis’s mother and grandmother traveled by bus from Brooklyn to Albany to visit him and observed his injuries from the beating.
446. Albany County Jail medical records dated August 20, 2018 document that Pariis suffered a “L TM perforation, concussion, Head Injury” on August 9, 2018 and that he was “sent to ER on 8/13/18 because of ear pain L TM perf. He was started on Augmentin and referred to ENT. CT head/cspine/facial bones negative.”
447. One month after the assault on September 4, 2018, Pariis was taken to see a doctor at Albany Medical Center to assess the perforation to his left ear. Albany Medical Center records from that visit document that Pariis had suffered “significant facial abrasions and periorbital ecchymoses” as a result of the assault.
448. Periorbital ecchymosis, or “raccoon eye,” is produced by blood tracking into periorbital tissues, which is a frequent symptom after traumatic injuries to the head and neck.
449. Albany County Jail medical records dated November 18, 2018, document that Pariis continues to suffer from headaches from the assault.
450. The Albany County Jail reports about the assault against Pariis claim that he repeatedly “turned around” to assault multiple staff members in riot gear while locked in a confined space:
At the above date and time, Inmate Tillery was admitted to the SHU. Inmate Tillery was escorted to Holding Cell 2 for the read in to be completed. When the mechanical restraints were removed, Inmate Tillery immediately turned around and began throwing punches at officers. Inmate was taken to the floor and restrained. Once compliant, Inmate was placed back on the wall. During the strip search, Inmate again turned towards staff, threw punches, and began spitting. Spit mask applied, Inmate restrained.
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451. After the assault, Defendant Lyons came to Pariis’s cell and stated: “You are not on Rikers anymore, we run this jail.”
452. Since the assault on August 9, 2018, Albany County Jail guards have continued to taunt Pariis about the beating, stating that when he first arrived at Albany County Jail, “you were crying like a little girl.”
453. Pariis has also heard Defendant Torrisi use racial epithets toward another African-American detainee in SHU. Defendant Torrisi stated to another detainee within Pariis’s hearing: “You’ve got to be the stupidest ni**er I ever met. Do you want to get beat up?”
D. Pariis Tillery Is Held in Solitary Confinement at the Albany County Jail from August 9, 2018 to January 23, 2019 454. An infraction ticket that falsely accused Pariis of assaulting staff, dated
August 9, 2018, was generated. 455. A disciplinary hearing was held on August 24, 2018, at which Pariis
appeared. 456. Pariis had no opportunity to prepare for the hearing and was not given an
opportunity to identify or call witnesses. No testimony was taken at the hearing. The hearing was not transcribed or recorded in any way.
457. The hearing officer, Defendant Armstrong, sentenced Pariis to 300 days in solitary confinement.
458. Pariis remained in solitary confinement from August 9, 2018 to January 23, 2019.
459. Pariis was kept in a small solitary cell for at least 23 hours a day. Pariis had nothing to do in his cell: no meaningful human interaction, no education or programming, no music or television, and limited reading materials.
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460. Pariis initially had no access to phone calls and was denied the right to contact his lawyer for his pending criminal case, interfering with his ability to participate in his own defense.
461. Pariis then gained limited access to phone calls, but was not permitted to talk to other detainees, and other than access to showers three times a week, he was not permitted to leave his cell. The cost of collect phone calls from Albany was also prohibitive for Pariis’s family, since the charge is $25 for 30 minutes.
462. Pariis usually declined to spend his one hour a day of “recreation” in the cage outside his cell because it is not materially different from staying in his cell.
463. Pariis was permitted visitors one hour a week. To visit, his elderly mother had to take a long bus ride from New York City. The cost of the transportation for the visit was often prohibitive for her. Because of the distance, cost, a physical disability, and her age, she was rarely able to visit Pariis in Albany. When he was detained in New York City, she visited Pariis frequently, as did other family members and friends.
464. Pariis has family, including a one-year-old son, whom he did not see while held in the Albany County Jail because of the distance. When he was in New York City, Pariis received visits from and had contact with his young son on a regular basis.
465. At the Albany County Jail, Pariis was only permitted to access mental health services in his cell, when a counselor would come to his cell and speak with him in the presence of a correction officer without privacy or confidentiality.
466. Since the assault by Defendants, Pariis has continued to experience headaches, dizziness, tinnitus, ear and other pain, emotional distress, and traumatic thoughts.
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467. On January 23, 2019—less than four weeks after this lawsuit was filed— Pariis had a scheduled court date in Brooklyn. That morning, Albany jail staff told him to pack his things and said he was being transferred. After court, Pariis was not returned to Albany, and was instead taken to the Anna M. Kross Center on Rikers Island, where he is now detained.
468. No one explained to Pariis why he had been sent back to Rikers, how long he will remain there, or whether he will be subject to further transfers in the future.
IX. The Experiences of Other New York City Detainees Transferred to Albany 469. Other New York City detainees transferred to Albany County have been
subjected to the same brutality, following the same pattern.
Richard Roe 470. On January 24, 2018, a then-24-year-old African-American detainee Richard Roe arrived at the Albany County Jail from Ulster County along with Plaintiff John Doe. 471. Albany County Jail officers, under the direction of Defendant Torrisi, beat Richard Roe in his assigned cell in 4 East. 472. Richard Roe was later sentenced to 450 days in solitary confinement. 473. Once again, official reports from the Albany County Jail falsely claim that officers had to use force defensively after the detainee “turned off the wall”: CERT Team 1 escorted [the inmate] through the booking process, x-ray and escort to the SHU. After a positive x-ray for contraband, inmate was placed on the wall in his cell and ordered to remove the object. Inmate turned off the wall 2 times and was taken to the floor . . . .
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David Doe 474. Other detainees who arrived at the Albany County Jail with Plaintiff Steven Espinal on February 13, 2018 were also beaten. 475. On January 24, 2018, 18-year old detainee David Doe arrived at the Albany County Jail from Rikers. 476. Albany County Jail officers, under the direction of Defendant Torrisi, repeatedly punched David Doe in his face and body in a booking cell when he was unable to follow commands to remove his clothing in a specific way. 477. After officers claimed to have seen an object in his rectum on an x-ray, the officers took David Doe to Cell #16 in 4 East. There, they continued to beat David Doe until they claimed that the object had been removed. 478. David Doe, who has since turned 19, remains at the Albany County Jail in solitary confinement.
X. Class Allegations 479. The Plaintiff Class consists of every person who is or will be detained at
the Albany County Jail after being transferred there on a SJO by the City. 480. This action is properly maintainable as a class action because all four
requirements of Federal Rule of Civil Procedure 23(a) are satisfied. 481. Numerosity. The members of the class are sufficiently numerous that
joinder of all members is impracticable. Between March 8, 2018 and August 15, 2018, 21 SJOs were issued transferring detainees from the City to the Albany County Jail. On information and belief, there are presently about ten Rikers detainees at the Albany County Jail. Based on past
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practice, the City is likely to transfer 50 or more additional detainees to the Albany County Jail during the pendency of this case alone.
482. Commonality. There are questions of law and fact common to the class. These include, without limitation: (a) whether City’s practice of transferring City detainees to the Albany County Jail unreasonably obstructs their Sixth Amendment right to counsel in light of the Albany County Jail’s distance from New York City; (b) whether confidential attorney-client communications are reasonably available to City detainees at the Albany County Jail; (c) whether City detainees have constitutionally protected liberty interests in not being held in punitive segregation, either at all or for longer than certain periods of time; (d) whether Albany County has a policy or custom of subjecting City detainees to violent torture; and (e) whether the City is deliberately indifferent to an unreasonable risk to City detainees’ safety by transferring them to the Albany County Jail.
483. Typicality. Steven Espinal’s claims are typical of the claims of class members he seeks to represent. The violations of his right to counsel and his procedural and substantive due process rights are shared by all City detainees transferred to Albany. All members of the class will rely on similar legal theories, and all members of the class have suffered similar harms.
484. Adequacy of Representation. Steven Espinal is an adequate class representative. He is in solidarity with his fellow detainees who are suffering, or will suffer, the same deplorable conditions. He will fairly and adequately protect the interests of other class members. Plaintiffs’ counsel includes attorneys from Emery Celli Brinckerhoff & Abady LLP and the Law Offices of Goldman & Associates. Counsel are experienced in federal civil rights
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class action litigation, including the Nunez class action that led to a consent decree reforming DOC, and have the resources necessary to pursue this litigation.
485. This action is properly maintainable as a class action under Federal Rule of Civil Procedure 23(b)(2) because Defendants City, Brann, and Williams have acted and/or will act on grounds generally applicable to the class, thereby making final injunctive relief appropriate with respect to Mr. Espinal and the class as a whole.
486. Class members are entitled to injunctive relief to end the City’s unconstitutional policy, practice, and/or custom of transferring selected pretrial detainees to the Albany County Correctional Facility, with the expectation that they will be held in solitary confinement in violation of their due process rights and with deliberate indifference to the impact on their right to counsel, their safety, and their mental health.
FIRST CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process (Plaintiffs Washington and Espinal Against Defendants City, Brann, and Williams)
487. The Rules of the City of New York, title 40, § 1-17(b)(1)(ii), confer upon pretrial detainees in City custody who are ages 21 and younger a constitutionally protected liberty interest in not being subjected to solitary confinement.
488. Plaintiffs Washington and Espinal were deprived of that liberty interest when Defendants Brann and Williams obtained SJOs transferring them to Albany County.
489. The deprivation occurred without due process of law because Plaintiffs Washington and Espinal did not receive notice of the impending transfer, notice of the reasons for the transfer, or an opportunity to be heard.
490. Defendant City caused the deprivation because it has an official policy or custom of transferring pretrial detainees ages 21 and younger to other jurisdictions on SJOs
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without providing notice of the impending transfer, notice of the reasons for the transfer, or an opportunity to be heard.
491. Defendant City is also liable for the deprivation because Defendant Brann acted in her capacity as the final municipal policymaker with respect to SJOs pursuant to state law.
492. As a result of Defendants’ unlawful conduct, Plaintiffs Washington and Espinal suffered the injuries hereinbefore alleged.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Substantive Due Process – Punitive Transfer
(All Plaintiffs Against Defendants City, Brann, and Williams; Plaintiff Washington Additionally Against Defendant Walker; Plaintiff Doe Additionally Against Defendant
Sullivan) 493. Defendants Brann and Williams obtained SJOs to transfer Plaintiffs outside the City for the purpose of punishing them and without legitimate penological justification, in violation of their substantive due process rights. 494. As evidenced by the comments made to Plaintiff Washington, Defendant Walker caused Plaintiff Washington to be transferred outside the City on an SJO for the purpose of punishing him and without legitimate penological justification, in violation of his substantive due process rights. 495. As evidenced by his comments to Plaintiff Doe, Defendant Sullivan caused Plaintiff Doe to be transferred outside the City on an SJO for the purpose of punishing him and without legitimate penological justification, in violation of his substantive due process rights.
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496. Defendant City caused the violation of Plaintiffs’ substantive due process rights because it has an official policy or custom of transferring selected pretrial detainees to the Albany County Jail for the purpose of punishing them.
497. Defendant City is also liable for the violation of Plaintiffs’ substantive due process rights because Defendant Brann acted in her capacity as the final municipal policymaker with respect to SJOs pursuant to state law.
498. As a result of Defendants’ unlawful conduct, Plaintiffs suffered the injuries hereinbefore alleged.
THIRD CAUSE OF ACTION 42 U.S.C. § 1983 – First Amendment Retaliation (Plaintiff Washington Against Defendants City, Brann, Williams, and Walker) 499. On or about March 28, 2018, Defendants Brann and Williams requested that Plaintiff Washington be transferred outside the City on an SJO. 500. As evidenced by the comments made to Plaintiff Washington, Defendant Walker caused Plaintiff Washington to be transferred outside the City on an SJO. 501. Defendants Brann, Williams, and Walker did so for the purpose of punishing Plaintiff Washington for the exercise of his First Amendment rights, including by lodging repeated complaints with the Legal Aid Society Prisoners’ Rights Project. 502. Defendants Brann, Williams, and Walker’s actions were without legitimate penological justification. 503. Defendant City is liable for the violation of Plaintiff Washington’s substantive due process rights because Defendant Brann acted in her capacity as the final municipal policymaker with respect to SJOs pursuant to state law.
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504. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the damages hereinbefore alleged.
FOURTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Washington Against Defendants City, Albany County, Apple, Lyons, Torrisi, Valvo,
Lawson, Haley, LaBombard, and Anzalone) 505. On or about March 28, 2018, Defendants Torrisi, Valvo, Lawson, Haley, LaBombard, and Anzalone used objectively unreasonable force against Plaintiff Washington, and/or failed to prevent others from doing so despite being aware of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it. 506. Defendant Albany County caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to violent torture at the Albany County Jail. 507. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Washington’s constitutional rights because, among other things, they were aware of the regular practice of torture of Rikers detainees by officers under their command and failed to take remedial action, they were aware of the torture as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care. 508. Defendant City caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there. 509. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
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FIFTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Sexual Assault of Pretrial Detainee (Plaintiff Washington Against Defendants City, Albany County, Apple, Lyons, Torrisi, Valvo,
Lawson, Haley, LaBombard, and Anzalone) 510. On or about March 28, 2018, Defendants Torrisi, Valvo, Lawson, Haley, LaBombard, and Anzalone sexually assaulted Plaintiff Washington by digitally penetrating him in his rectum and/or failed to take reasonable steps to stop others from doing so despite being aware of the sexual assault and having a reasonable opportunity to intervene to prevent it. 511. The forcible penetration of Plaintiff Washington was undertaken maliciously, with the purpose of humiliating and degrading Plaintiff Washington, and not for any legitimate penological purpose. 512. Defendant Albany County caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to violent torture, including sexual assault, at the Albany County Jail. 513. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Washington’s constitutional rights because, among other things, they were aware of the regular practice of sexual assault by officers under their command and failed to take remedial action, they were aware of the sexual assault as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the sexual assault occurred, and they were deliberately indifferent to the security of detainees in their care. 514. Defendant City caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to sexual assault there. 515. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
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SIXTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourth Amendment – Unreasonable Search (Plaintiff Washington Against Defendants City, Albany County, Apple, Lyons, Torrisi, Valvo,
Lawson, Haley, LaBombard, and Anzalone) 516. On or about March 28, 2018, to the extent their actions can be characterized as a manual body cavity search, Defendants Torrisi, Valvo, Lawson, Haley, LaBombard, and Anzalone conducted an unreasonable manual body cavity search of Plaintiff Washington by digitally penetrating him in his rectum, and/or failed to take reasonable steps to stop others from doing so despite being aware of the unreasonable search and having a reasonable opportunity to intervene to prevent it. 517. The manual body cavity search, to the extent Defendants’ assault can be characterized as such, was unreasonable in light of the scope of the intrusion, the manner in which it was conducted, the purported justification for initiating it, and the place in which it was conducted. 518. Defendant Albany County caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to unreasonable manual body cavity searches, at the Albany County Jail. 519. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Washington’s constitutional rights because, among other things, they were aware of the regular practice of unreasonable manual body cavity searches by officers under their command and failed to take remedial action, they were aware of the unreasonable manual body cavity search as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the unreasonable manual body cavity search occurred, and they were deliberately indifferent to the security of detainees in their care.
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520. Defendant City caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to unreasonable manual body cavity searches there.
521. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
SEVENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Failure to Intervene (Plaintiff Washington Against Defendants City, Paskett, Morgan, Reid, Jackson, and Lopez) 522. Defendants Paskett, Morgan, Reid, Jackson, and Lopez, the ESU personnel who transported Plaintiff Washington to Albany, knew that Defendants Torrisi, Valvo, Lawson, Haley, LaBombard and Anzalone were going to violate, and were in fact violating, the constitutional rights of Plaintiff Washington by using objectively unreasonable force against him, sexually assaulting him, and/or conducting an unreasonable search of him. 523. Defendants Paskett, Morgan, Reid, Jackson, and Lopez had a reasonable opportunity to intervene to prevent these violations. 524. Defendants Paskett, Morgan, Reid, Jackson, and Lopez failed to take reasonable steps to intervene. 525. Defendant City caused the violation of Plaintiff Washington’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there. 526. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
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EIGHTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing (Plaintiff Washington Against Defendants Albany County, Apple, Lyons, and Grimes)
527. On or about April 8, 2018, Defendant Grimes presided over a sham disciplinary hearing with a predetermined outcome, during which Plaintiff Washington was told that anything he did would not matter to the outcome, as a result of which Plaintiff Washington was sentenced to 360 days in solitary confinement.
528. Defendant Albany County caused the violation of Plaintiff Washington’s due process rights because it has an official policy or custom of keeping any detainee who has ever been accused of assaulting staff anywhere in solitary confinement, and an official policy or custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement.
529. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Washington’s constitutional rights because, among other things, they directed their staff to keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
530. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
NINTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Espinal Against Defendants City, Albany County, Apple, Lyons, Torrisi, Harris,
Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February 13, 2018 Incident) 531. On or about February 13, 2018, Defendants Torrisi, Harris, Beliveau,
Adams, Kelly, Jarosz, Lawson, and Ton used objectively unreasonable force against Plaintiff
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Espinal, and/or failed to take reasonable steps to stop others from doing so despite being aware of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it.
532. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to violent torture at the Albany County Jail.
533. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of the regular practice of torture by officers under their command and failed to take remedial action, they were aware of the torture as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care.
534. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
535. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
TENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Sexual Assault of Pretrial Detainee (Plaintiff Espinal Against Defendants City, Albany County, Apple, Lyons, Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February 13, 2018 Incident)
536. On or about February 13, 2018, Defendants Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton sexually assaulted Plaintiff Espinal by digitally penetrating him in his rectum and/or failed to take reasonable steps to stop others from doing so
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despite being aware of the sexual assault and having a reasonable opportunity to intervene to prevent it.
537. The forcible penetration of Plaintiff Espinal was undertaken maliciously, with the purpose of humiliating and degrading Plaintiff Espinal, and not for any legitimate penological purpose.
538. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to violent torture at the Albany County Jail.
539. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of the regular practice of sexual assault by officers under their command and failed to take remedial action, they were aware of the sexual assault as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the sexual assault occurred, and they were deliberately indifferent to the security of detainees in their care.
540. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to sexual assault there.
541. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
ELEVENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourth Amendment – Unreasonable Search (Plaintiff Espinal Against Defendants City, Albany County, Apple, Lyons, Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February 13, 2018 Incident) 542. On or about February 13, 2018, to the extent their actions can be characterized as a manual body cavity search, Defendants Torrisi, Harris, Beliveau, Adams,
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Kelly, Jarosz, Lawson, and Ton conducted an unreasonable manual body cavity search of Plaintiff Espinal by digitally penetrating him in his rectum, and/or failed to take reasonable steps to stop others from doing so despite being aware of the unreasonable search and having a reasonable opportunity to intervene to prevent it.
543. The manual body cavity search, to the extent Defendants’ assault can be characterized as such, was unreasonable in light of the scope of the intrusion, the manner in which it was conducted, the purported justification for initiating it, and the place in which it was conducted.
544. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to unreasonable manual body cavity searches, at the Albany County Jail.
545. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of the regular practice of unreasonable manual body cavity searches by officers under their command and failed to take remedial action, they were aware of the unreasonable manual body cavity search as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the unreasonable manual body cavity search occurred, and they were deliberately indifferent to the security of detainees in their care.
546. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to unreasonable manual body cavity searches there.
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547. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
TWELFTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Failure to Intervene (Plaintiff Espinal Against Defendants City, Paskett, Moise, Lopera, Lopez, Morgan, and Jackson
– February 13, 2018 Incident) 548. Defendants Paskett, Moise, Lopera, Lopez, Morgan, and Jackson, the ESU personnel who transported Plaintiff Espinal to Albany, knew that Defendants Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were going to violate, and were in fact violating, the constitutional rights of Plaintiff Espinal by using objectively unreasonable force against him, sexually assaulting him, and/or conducting an unreasonable search of him. 549. Defendants Paskett, Moise, Lopera, Lopez, Morgan, and Jackson had a reasonable opportunity to intervene to prevent these violations. 550. Defendants Paskett, Moise, Lopera, Lopez, Morgan, and Jackson failed to take reasonable steps to intervene. 551. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to excessive or unlawful force there. 552. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
THIRTEENTH CAUSE OF ACTION Assault
(Plaintiff Espinal Against Defendants City, Paskett, Moise, Lopera, Lopez, Morgan, Jackson, Albany County, Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February
13, 2018 Incident) 553. On or about February 13, 2018, by threateningly approaching Plaintiff Espinal and threatening to hit, punch, kick, tase, and digitally penetrate him, Defendants Torrisi,
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Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton intentionally placed Plaintiff Espinal in apprehension of imminent offensive contact. Defendant Albany County is liable for their conduct under respondeat superior.
554. In addition and/or in the alternative, Defendants Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton had knowledge of the assault and provided substantial assistance by, among other things, restraining and confining Plaintiff Espinal to permit others to assault him. Defendant Albany County is liable for their conduct under respondeat superior.
555. Because Plaintiff Espinal remained in the custody of the City at the time of this incident, Defendant Albany County and its employees Defendants Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were acting as agents and servants of the City. The City is therefore liable for their conduct under respondeat superior.
556. Defendants Paskett, Moise, Lopera, Lopez, Morgan, and Jackson had knowledge of the assault and provided substantial assistance by, among other things, uncuffing Plaintiff Espinal and handing him over to others to be assaulted. Defendant City is liable for their conduct under respondeat superior.
557. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
FOURTEENTH CAUSE OF ACTION Battery
(Plaintiff Espinal Against Defendants City, Paskett, Moise, Lopera, Lopez, Morgan, Jackson, Albany County, Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton – February
13, 2018 Incident) 558. On or about February 13, 2018, by hitting, punching, kicking, tasing, and digitally penetrating in his rectum Defendant Espinal, Defendants Torrisi, Harris, Beliveau,
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Adams, Kelly, Jarosz, Lawson, and Ton committed a willful, unlawful, intentional battery against him.
559. In addition and/or in the alternative, Defendants Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton had knowledge of the battery and provided substantial assistance by, among other things, restraining and confining Plaintiff Espinal to permit others to batter him. Defendant Albany County is liable for their conduct under respondeat superior.
560. Because Plaintiff Espinal remained in the custody of the City at the time of this incident, Defendant Albany County and its employees Defendants Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were acting as agents and servants of the City. The City is therefore liable for their conduct under respondeat superior.
561. Defendants Paskett, Moise, Lopera, Lopez, Morgan, and Jackson had knowledge of the battery and provided substantial assistance by, among other things, uncuffing Plaintiff Espinal and handing him over to others to be battered. Defendant City is liable for their conduct under respondeat superior.
562. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
FIFTEENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Deliberate Indifference to Serious Medical Need
(Plaintiff Espinal Against Defendants Against Defendants Albany County, Apple, Lyons, Mylroie, Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton) 563. As a result of the assault and sexual assault on February 13, 2018, Plaintiff
Espinal was unconscious, had serious visible injuries lasting for several days, had blood in his urine, and was later unable to urinate normally.
564. Plaintiff Espinal did not receive adequate or reasonable medical care.
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565. Defendants Nurse Mylroie, Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton were aware of a substantial risk of harm to Plaintiff Espinal and knowingly disregarded that risk by denying him medical care and/or failing to get medical care for him.
566. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of denying adequate medical care to the transfer detainees from New York City whom it subjects to violent torture.
567. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of their staff’s regular practice of denying medical care to recently beaten transfer detainees and failed to take remedial action, they were aware of Plaintiff Espinal’s condition and failed to take action to remedy it, they created Albany County’s policy or custom of denying medical treatment, and they were deliberately indifferent to the medical needs of detainees in their care.
568. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
SIXTEENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing (Plaintiff Espinal Against Defendants Albany County, Apple, Lyons, and Colangione – February
13, 2018 Incident) 569. On or about February 26, 2018, Defendant Colangione presided over a sham disciplinary hearing with a predetermined outcome, during which Plaintiff Espinal was told that anything he did would not matter to the outcome, as a result of which Plaintiff Espinal was sentenced to 600 days in solitary confinement. 570. Defendant Albany County caused the violation of Plaintiff Espinal’s due process rights because it has an official policy or custom of keeping any detainee who has ever
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been accused of assaulting staff anywhere in solitary confinement, and an official policy or custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement.
571. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they directed their staff to keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
572. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
SEVENTEENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Espinal Against Defendants City, Albany County, Apple, Lyons, Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard – July 4, 2018 Incident)
573. On or about July 4, 2018, Defendants Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard used objectively unreasonable force against Plaintiff Espinal, and/or failed to prevent others from doing so despite being aware of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it.
574. Defendant Albany County caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to violent torture at the Albany County Jail.
575. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they were aware of the regular practice of torture by officers under their command and failed to take remedial action,
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they were aware of the torture as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care.
576. Defendant City caused the violation of Plaintiff Espinal’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
577. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
EIGHTEENTH CAUSE OF ACTION Assault
(Plaintiff Espinal Against Defendants Albany County, Apple, Lyons, Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard – July 4, 2018 Incident) 578. On or about July 4, 2018, by threateningly approaching Plaintiff Espinal
and threatening to hit, punch, and kick him, Defendants Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard intentionally placed Plaintiff Espinal in apprehension of imminent offensive contact. Defendant Albany County is liable for their conduct under respondeat superior.
579. In addition and/or in the alternative, Defendants Torrisi, Harris, Beliveau, Adams, Kelly, Jarosz, Lawson, and Ton had knowledge of the assault and provided substantial assistance by, among other things, restraining and confining Plaintiff Espinal to permit others to assault him. Defendant Albany County is liable for their conduct under respondeat superior.
580. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
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NINETEENTH CAUSE OF ACTION Battery
(Plaintiff Espinal Against Defendants Albany County, Apple, Lyons, Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard – July 4, 2018 Incident) 581. On or about July 4, 2018, by hitting, punching, and kicking Defendant
Espinal, Defendants Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard committed a willful, unlawful, intentional battery against him. Defendant Albany County is liable for their conduct under respondeat superior.
582. In addition and/or in the alternative, Defendants Colangione, Kehn, Shaver, Shaw, Ratigan, DeGonza, Thompson, and LaBombard had knowledge of the battery and provided substantial assistance by, among other things, restraining and confining Plaintiff Espinal to permit others to batter him. Defendant Albany County is liable for their conduct under respondeat superior.
583. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
TWENTIETH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing (Plaintiff Espinal Against Defendants Albany County, Apple, Lyons, and Carhart – July 4, 2018
Incident) 584. On or about July 19, 2018, Defendant Lieutenant Carhart presided over a sham disciplinary hearing with a predetermined outcome, during which Plaintiff Espinal was told that anything he did would not matter to the outcome, as a result of which Plaintiff Espinal was sentenced to 540 days in solitary confinement. 585. Defendant Albany County caused the violation of Plaintiff Espinal’s due process rights because it has an official policy or custom of keeping any detainee who has ever been accused of assaulting staff anywhere in solitary confinement, and an official policy or
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custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement.
586. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Espinal’s constitutional rights because, among other things, they directed their staff to keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
587. As a result of Defendants’ unlawful conduct, Plaintiff Espinal suffered the injuries hereinbefore alleged.
TWENTY-FIRST CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Doe Against Defendants City, Albany County, Apple, Lyons, Torrisi, Poole, Kelly,
Reddy, Lawson, Anzalone, Jarosz, and Harris) 588. On or about January 24, 2018, Defendants Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Harris used objectively unreasonable force against Plaintiff Doe, and/or failed to prevent others from doing so despite being aware of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it. 589. Defendant Albany County caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to violent torture at the Albany County Jail. 590. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they were aware of the regular practice of torture by officers under their command and failed to take remedial action, they were aware of the torture as it was happening and failed to take action to prevent it, they created
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Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care.
591. Defendant City caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
592. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-SECOND CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Sexual Assault Against Pretrial Detainee (Plaintiff Doe Against Defendants City, Albany County, Apple, Lyons, Torrisi, Poole, Kelly,
Reddy, Lawson, Anzalone, Jarosz, and Harris) 593. On or about January 24, 2018, Defendants Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Harris sexually assaulted Plaintiff Doe by, among other things, penetrating him in the rectum with a baton and/or failed to take reasonable steps to stop others from doing so despite being aware of the sexual assault and having a reasonable opportunity to intervene to prevent it. 594. The forcible penetration of Plaintiff Doe was undertaken maliciously, with the purpose of humiliating and degrading Plaintiff Doe, and not for any legitimate penological purpose. 595. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they were aware of the regular practice of sexual assault by officers under their command and failed to take remedial action, they were aware of the sexual assault as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the sexual assault occurred, and they were deliberately indifferent to the security of detainees in their care.
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596. Defendant City caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to sexual assault there.
597. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-THIRD CAUSE OF ACTION 42 U.S.C. § 1983 – Fourth Amendment – Unreasonable Search (Plaintiff Doe Against Defendants City, Albany County, Apple, Lyons, Torrisi, Poole, Kelly,
Reddy, Lawson, Anzalone, Jarosz, and Harris) 598. On or about January 24, 2018, to the extent their actions can be characterized as a manual body cavity search, Defendants Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Harris conducted an unreasonable manual body cavity search of Plaintiff Doe by digitally penetrating him in his rectum, and/or failed to take reasonable steps to stop others from doing so despite being aware of the unreasonable search and having a reasonable opportunity to intervene to prevent it. 599. The manual body cavity search, to the extent Defendants’ assault can be characterized as such, was unreasonable in light of the scope of the intrusion, the manner in which it was conducted, the purported justification for initiating it, and the place in which it was conducted. 600. Defendant Albany County caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to unreasonable manual body cavity searches, at the Albany County Jail. 601. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they were aware of the regular practice of unreasonable manual body cavity searches by officers under their command and failed to take
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remedial action, they were aware of the unreasonable manual body cavity search as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the unreasonable manual body cavity search occurred, and they were deliberately indifferent to the security of detainees in their care.
602. Defendant City caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to unreasonable manual body cavity searches there.
603. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-FOURTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Failure to Intervene (Plaintiff Doe Against Defendants City, Paskett, Lopez, Corley, Morgan, Lopera, Crump, and
McDonald) 604. Defendants Paskett, Lopez, Corley, Morgan, Lopera, Crump, and McDonald, the ESU personnel who transported Plaintiff Doe to Albany, knew that Defendants Defendants Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Harris were going to violate, and were in fact violating, the constitutional rights of Plaintiff Doe by using objectively unreasonable force against him, sexually assaulting him, and/or conducting an unreasonable search of him. 605. Defendants Paskett, Lopez, Corley, Morgan, Lopera, Crump, and McDonald had a reasonable opportunity to intervene to prevent these violations. 606. Defendants Paskett, Lopez, Corley, Morgan, Lopera, Crump, and McDonald failed to take reasonable steps to intervene.
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607. Defendant City caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to violent torture there.
608. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-FIFTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Deliberate Indifference to Serious Medical Need (Plaintiff Doe Against Defendants Albany County, Apple, Lyons, Mylroie, Torrisi, Poole, Kelly,
Reddy, Lawson, Anzalone, Jarosz, and Harris) 609. As a result of the assault and sexual assault on January 24, 2018, Plaintiff Doe was unconscious, had serious visible injuries lasting for several days, and was bleeding severely. 610. Plaintiff Doe did not receive adequate or reasonable medical care. 611. Defendants Mylroie, Torrisi, Poole, Kelly, Reddy, Lawson, Anzalone, Jarosz, and Harris were aware of a substantial risk of harm to Plaintiff Doe and knowingly disregarded that risk by denying him medical care and/or failing to get medical care for him. 612. Defendant Albany County caused the violation of Plaintiff Doe’s rights because it has an official policy or custom of denying adequate medical care to the transfer detainees from New York City whom it subjects to violent torture. 613. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they were aware of their staff’s regular practice of denying medical care to recently beaten transfer detainees and failed to take remedial action, they were aware of Plaintiff Espinal’s condition and failed to take action to remedy it, they created Albany County’s policy or custom of denying medical treatment, and they were deliberately indifferent to the medical needs of detainees in their care.
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614. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
TWENTY-SIXTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing
(Plaintiff Doe Against Defendants Albany County, Apple, Lyons, and Carhart) 615. On or about February 6, 2018, Defendant Carhart presided over a sham
disciplinary hearing with a predetermined outcome, during which Plaintiff Doe was told that anything he did would not matter to the outcome, as a result of which Plaintiff Doe was sentenced to 550 days in solitary confinement.
616. Defendant Albany County caused the violation of Plaintiff Doe’s due process rights because it has an official policy or custom of keeping any detainee who has ever been accused of assaulting staff anywhere in solitary confinement, and an official policy or custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement.
617. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Doe’s constitutional rights because, among other things, they directed their staff to keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
618. As a result of Defendants’ unlawful conduct, Plaintiff Doe suffered the injuries hereinbefore alleged.
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TWENTY-SEVENTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Excessive Force Against Pretrial Detainee (Plaintiff Tillery Against Defendants City, Albany County, Apple, Lyons, Lawson, Moore,
Harris, Jarosz, and Coppolo) 619. On or about August 9, 2018, Defendants Lawson, Moore, Harris, Jarosz, and Coppolo used objectively unreasonable force against Plaintiff Tillery, and/or failed to prevent others from doing so despite being aware of the use of objectively unreasonable force and having a reasonable opportunity to intervene to prevent it. 620. Defendant Albany County caused the violation of Plaintiff Tillery’s rights because it has an official policy or custom of subjecting transfer detainees from New York City to violent torture at the Albany County Jail. 621. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Tillery’s constitutional rights because, among other things, they were aware of the regular practice of torture by officers under their command and failed to take remedial action, they were aware of the torture as it was happening and failed to take action to prevent it, they created Albany County’s policy or custom pursuant to which the torture occurred, and they were deliberately indifferent to the security of detainees in their care. 622. Defendant City caused the violation of Plaintiff Tillery’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there. 623. As a result of Defendants’ unlawful conduct, Plaintiff Tillery suffered the injuries hereinbefore alleged.
TWENTY-EIGHTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Failure to Intervene (Plaintiff Tillery Against Defendants City, Paskett, Cai, Lopera, Jackson, and Morgan)
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624. Defendants Paskett, Cai, Lopera, Jackson, and Morgan, the ESU personnel who transported Plaintiff Tillery to Albany, knew that Albany County correctional staff were going to violate, and were in fact violating, the constitutional rights of Plaintiff Tillery by using objectively unreasonable force against him.
625. Defendants Paskett, Cai, Lopera, Jackson, and Morgan had a reasonable opportunity to intervene to prevent these violations.
626. Defendants Paskett, Cai, Lopera, Jackson, and Morgan failed to take reasonable steps to intervene.
627. Defendant City caused the violation of Plaintiff Tillery’s rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with the knowledge and expectation that they will be subject to excessive and unlawful force there.
628. As a result of Defendants’ unlawful conduct, Plaintiff Tillery suffered the injuries hereinbefore alleged.
TWENTY-NINTH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Deliberate Indifference to Serious Medical Need
(Plaintiff Tillery Against Defendants Against Defendants Albany County, Apple, Lyons, Mylroie, Lawson, Moore, Harris, Jarosz, and Coppolo)
629. As a result of the assault on August 9, 2018, Plaintiff Tillery was unconscious had serious visible injuries lasting for several days or longer. These included perioribital ecchymosis, a swollen nose, and significant facial abrasions. He also complained of an ability to hear out of his left ear.
630. Plaintiff Tillery did not receive adequate or reasonable medical care. 631. Defendants Nurse Mylroie, Lawson, Moore, Harris, Jarosz, and Coppolo were aware of a substantial risk of harm to Plaintiff Tillery and knowingly disregarded that risk by denying him medical care and/or failing to get medical care for him.
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632. Defendant Albany County caused the violation of Plaintiff Tillery’s rights because it has an official policy or custom of denying adequate medical care to the transfer detainees from New York City whom it subjects to violent torture.
633. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Tillery’s constitutional rights because, among other things, they were aware of their staff’s regular practice of denying medical care to recently beaten transfer detainees and failed to take remedial action, they were aware of Plaintiff Tillery’s condition and failed to take action to remedy it, they created Albany County’s policy or custom of denying medical treatment, and they were deliberately indifferent to the medical needs of detainees in their care.
634. As a result of Defendants’ unlawful conduct, Plaintiff Tillery suffered the injuries hereinbefore alleged.
THIRTIETH CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Procedural Due Process – Sham Hearing
(Plaintiff Tillery Against Defendants Albany County, Apple, Lyons, and Armstrong)
635. On or about August 24, 2018, Defendant Armstrong presided over a sham disciplinary hearing with a predetermined outcome, as a result of which Plaintiff Tillery was sentenced to 360 days in solitary confinement.
636. Defendant Albany County caused the violation of Plaintiff Tillery’s due process rights because it has an official policy or custom of keeping any detainee who has ever been accused of assaulting staff anywhere in solitary confinement, and an official policy or custom of conducting sham disciplinary hearings to keep the transfer detainees from New York City whom it subjects to violent torture in solitary confinement.
637. Defendants Apple and Lyons were personally involved in the violation of Plaintiff Tillery’s constitutional rights because, among other things, they directed their staff to
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keep tortured transfer detainees in solitary confinement no matter what, were aware of their staff’s regular practice of conducting sham disciplinary hearings with predetermined outcomes and failed to take corrective action, and created Albany County’s policy or custom of keeping tortured transfer detainees in solitary confinement.
638. As a result of Defendants’ unlawful conduct, Plaintiff Washington suffered the injuries hereinbefore alleged.
THIRTY-FIRST CAUSE OF ACTION 42 U.S.C. § 1983 – Sixth Amendment – Denial of Right to Counsel (All Plaintiffs Against Defendants Albany County, Apple, and Lyons) 639. Defendant Albany County, Apple, and Lyons have a policy or custom of monitoring all detainee phone calls, including telephone calls with counsel that are supposed to be private and confidential, and of denying detainees access to confidential telephonic or videographic communications with counsel. 640. This policy or custom unjustifiably obstructed and/or continues to obstruct Plaintiffs’ access to their criminal defense counsel guaranteed by the Constitution. 641. No legitimate penological justification exists for denying detainees access to unrecorded and unmonitored confidential telephone calls between detainees and their counsel, as evidenced by, among other things, the fact that New York State law requires such calls not to be monitored. 642. As a result of Defendants’ unlawful conduct, Plaintiffs suffered the injuries hereinbefore alleged.
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THIRTY-SECOND CAUSE OF ACTION 42 U.S.C. § 1983 – Sixth Amendment – Denial of Right to Counsel
(All Plaintiffs Against Defendants City, Brann, and Williams) 643. Defendants Brann and Williams transferred Plaintiffs 160 miles away on SJOs to a facility where it is not feasible for their attorneys to visit them with any regularity and where confidential attorney-client communications are not reasonably available. 644. Plaintiffs’ transfer to Albany unjustifiably obstructed and/or continues to obstruct their access to their criminal defense counsel guaranteed by the Constitution. 645. Defendant City caused the violation of Plaintiffs’ rights because it has an official policy or custom of transferring selected detainees to the Albany County Jail with deliberate indifference to the interference with their ability to communicate with counsel and participate in the defense of their criminal cases. 646. Defendant City is also liable for the deprivation because Defendant Brann acted in her capacity as the final municipal policymaker with respect to SJOs pursuant to state law. 647. As a result of Defendants’ unlawful conduct, Plaintiffs suffered the injuries hereinbefore alleged.
THIRTY-THIRD CAUSE OF ACTION 42 U.S.C. § 1983 – Fourteenth Amendment – Deliberate Indifference to Detainee Safety
(All Plaintiffs Against Defendants City, Brann, and Williams) 648. Plaintiffs’ conditions of confinement at the Albany County Jail posed an unreasonable risk to their safety and constituted an objective deprivation of due process. 649. In transferring Plaintiffs to Albany on SJOs, Defendants Brann and Williams acted intentionally to impose this risk to Plaintiffs’ safety, or recklessly failed to act
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with reasonable care to mitigate the risk to Plaintiffs’ safety of which they knew or should have

known.

650. Defendant City caused the violation of Plaintiffs’ rights because it has an

official policy or custom of transferring selected detainees to the Albany County Jail with the

knowledge and expectation that they will be subject to an unreasonable risk to their safety there.

651. Defendant City is also liable for the deprivation because Defendant Brann

acted in her capacity as the final municipal policymaker with respect to SJOs pursuant to state

law.

652. As a result of Defendants’ unlawful conduct, Plaintiffs suffered the

injuries hereinbefore alleged.

*

*

*

WHEREFORE, Plaintiffs respectfully request judgment against Defendants as

follows:

a. Certification of the proposed class pursuant to Federal Rule of Civil

Procedure 23;

b. Compensatory damages in an amount to be determined at trial;

c. Punitive damages against the non-municipal Defendants in an amount to

be determined at trial;

d. A declaration that the City’s policy or custom of transferring young

pretrial detainees outside the City on substitute jail orders to evade the ban on solitary

confinement and/or to punish or retaliate against the detainees violates the United States

Constitution;

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e. A declaration that Albany County’s policy or custom of torturing pretrial

detainees transferred from New York City on arrival at the Albany County Correctional Facility

violates the United States Constitution;

f. A declaration that the City’s policy or custom of transferring pretrial

detainees to the Albany County Correctional Facility with the knowledge and expectation that

they will be subject to excessive and unlawful force violates the United States Constitution;

g. An injunction ordering Defendants to cease holding Steven Espinal in

solitary confinement, nullifying and voiding any substitute jail orders transferring him out of the

City of New York, and ordering Defendants to return him to a correctional facility in the City of

New York;

h. An injunction prohibiting Defendants from retaliating against Steven

Espinal or David Doe in response to the filing of this action, including but not limited to

retaliation in the form of beatings or physical, sexual or verbal abuse;

i.

An injunction prohibiting Defendants City, Brann, and Williams from

transferring class members to the Albany County Correctional Facility;

j.

An injunction requiring Defendants Albany County, Apple, and Lyons to

make unrecorded, unmonitored legal telephone calls available as necessary to Plaintiff Espinal

and other class members;

k. Reasonable attorneys’ fees and costs under 42 U.S.C. § 1988; and

l.

Such other and further relief as this Court may deem just and proper.

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Dated: New York, New York June 5, 2019

EMERY CELLI BRINCKERHOFF & ABADY LLP

By:

/s/

Katherine Rosenfeld

Douglas E. Lieb

600 Fifth Avenue, 10th Floor

New York, New York 10020

(212) 763-5000

LAW OFFICES OF GOLDMAN & ASSOCIATES

By: Steven Goldman 190 East 161st Street, Suite 100 Bronx, New York 10451 (718) 538-5743

Attorneys for Plaintiffs

99

 
 Case 1:18-cv-12306-CM Document 94 Filed 04/30/19 Page 1 of 82
- - - - - - ~---~-~-~----~

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
=-~~~~~~~~~--~-----~X
DAVON WASHINGTON, PARIIS TILLERY, JOHN DOE, and STEVEN ESPINAL, eta!.,

-against-

Plaintiffs,

THE CITY OF NEW YORK, eta!.,

Defendants.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _X

'
18 Civ. 12306 (CM)

DECISION AND ORDER ON THE CITY DEFENDANTS' MOTION TO DISMISS, THE ALBANY DEFENDANTS' MOTION TO SEVER, AND PLAINTIFF
ESPINAL'S MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs Davon Washington ("Washington"), Pariis Tillery ("Tillery"), John Doe ("Doe"), and Steven Espinal ("Espinal") allege that they have been transferred from New York City Department of Correction ("DOC") facilities to the Albany County Correctional Facility ("ACCF") for the purpose of punishment, including placement in punitive segregation for extended periods of time, which is not permitted at DOC facilities. Plaintiffs allege that the transfers have resulted in multiple constitutional violations by Defendants New York City ("the City"), DOC Commissioner Cynthia Brann ("Brann"), DOC Bureau Chief Brian Sullivan ("Sullivan"), DOC Deputy Warden Sharlisa Walker ("Walker"), DOC Captain Edward Williams ("Williams"), and multiple unnamed corrections officers ("COs") (collectively the "City Defendants), including, among others, violation of Plaintiffs' right to procedural due process, substantive due process, and access to counsel. Plaintiffs also bring claims against Albany County and a host of Albany County COs, including the Sheriff and Superintendent of ACCF (collectively the "Albany Defendants"), and Melissa Mylroie ("Mylroie"), a nurse at ACCF, alleging that these defendants subjected them to

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physical and sexual assault, umeasonable search, and sham disciplinary proceedings, and denied them access to counsel and medical care.
The City Defendants have moved to dismiss all of Plaintiffs' claims, while the Albany Defendants have moved to sever the claims against them and transfer those claims to the Northern District of New York. They do not move to dismiss any claims.
The City Defendants' Motion to Dismiss is DENIED. The Albany Defendants' and Defendant Mylroie's Motions to Sever are DENIED without prejudice. Finally, Plaintiff Espinal's Motion for a Preliminary Injunction is DENIED.
FACTS The relevant facts are drawn from the Amended Complaint (the "FAC") and are taken as true for the purpose of resolving this motion. I. The Practice of Solitary Confinement Solitary confinement is the practice of placing inmates in cells by themselves. While in solitary, inmates in have limited to no human contact. In recent years, the practice has come under significant criticism from researchers, policymakers, and even the judiciary for the dire impact that it can have on a detainee's mental health. Research on the impact of solitary confinement illuminates its dangers. Solitary confinement is associated with an increased risk of suicidal tendencies, anxiety, depression, and paranoia. (Am. Compl., Dkt. No. 41, ~ 32.) The impact of solitary is particularly harmful for youth, whose brains are not fully developed and who might experience accelerated onset of serious mental illnesses as a result oftheir time in isolation. (Id ~ 35.) In August of2014, the United States Department of Justice released an investigative report on conditions at Rikers Island, in which it observed that DOC's reliance on solitary confinement to discipline adolescent detainees risked "expos[ing] them to a risk of serious harm"
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and created a "vicious cycle" of behavioral concerns. (Id. ~ 29.) Two months later, the New Yorker told the story ofKaliefBrowder, a Rikers pre-trial detainee who spent 17 months in solitary confinement. The story detailed the paranoia and suicidal tendencies Browder developed while in isolation, and the impact that experience continued to have on him. Browder committed suicide less than a year after the article appeared. (!d. ~ 30.)
II. The 2015 Regulation Limiting Solitary Confinement In January 2015, anned with firsthand knowledge and scientific research about the
dangers of solitary confinement, the New York City Board of Correction (the "Board") adopted a regulation that harmed solitary confinement for inmates under age 22. (!d. ~~ 29-30, 34-35, 37); see also 40 RCNY § 1-17. The Board is an independent body that is responsible for establishing minimum standards for the treatment of detainees held by the City; the standards are codified in the Rules of the City of New York and have binding legal effect. (Am. Compl. ~ 38.)
The January 2015 regulation, codified as 40 RCNY § 1-17, harmed solitary confinement for detainees under the age of 18 immediately, and for detainees aged 18-21 as of January 1, 2016, provided sufficient resources were made available to DOC by that time. See 40 RCNY § 1-17(b)(1). The 18-21 ban finally went into effect in October 2016. (Am. Compl. ~~ 40, 44-45.) 40 RCNY § 1-17 also limited the amount of time any inmate could spend in solitary; adult inmates can spend no more than 30 days in a row in solitary unless the sentence is for a serious assault on correction staff, which can·ies a maximum of 60 days. (!d. ~ 46); see also 40 RCNY § 1-17(d).
Plaintiffs allege that the City is attempting to circumvent the ban on solitary for pretrial detainees under age 22 by sending "undesirable" yOlmg detainees- particularly, but not limited to, those who have been involved in altercations with guards- 160 miles away, to Albany County Correctional Facility ("ACCF"), where they are subjected the harsh punishment of
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punitive segregation - a punishment that could not be imposed upon them at DOC facilities. (Id ~~ 60, 66.) Reports indicate that since the ban was adopted in 2015, transfers of irnnates aged 21 and younger have increased sharply. (Id. ~~ 60-62.) This is despite the fact that Rikers has alternative forms of restrictive housing available for detainees between ages 18 and 21, such as Enhanced Supervision Housing. (Id ~~ 60, 66.)
III. The Transfer Process The transfer of detainees between facilities in New York is governed by both Corrections
Law § 504 and 9 NYCRR § 7210.6. In order to effectuate a transfer between facilities in different counties, the New York
State Corrnnission of Correction (the "SCOC") must issue a "substitute jail order" ("SJO"). (Id. ~ 52.) SJOs are issued under specific circumstances, including when the safety or security of detainees or a group of detainees is threatened by their confinement in a particular facility, and the facility administrator believes that safety and the public interest require that these detainees be housed in another facility. (Id. ~53.)
To obtain an SJO, the administrator of the original facility must follow procedures outlined in 9 NYCRR § 7210.6. (Id ~~52-57.) First, the "faculty administrator determines that it is necessary to transfer an irnnate ... to another suitable place or facility." 9 NYCRR § 7210.6(a). Then, the administrator identifies "another facility within the county which may be designated as a substitute jail." Id. § 7210.6(b) (emphasis added). If there is no "suitable" place in the county, the administrator "shall determine whether the county jail of another county is able to accorrnnodate the irnnate." Id In doing so, the administrator "shall take into account" factors such as the ability to house the irnnate "in a manner consistent with applicable standards" (which in this case would obviously include no solitary confinement for inmates under age 22); "proximity" (a word that means "closeness") to the county jail; "potential inconvenience to the
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family and friends" (who might want to visit but be unable to travel long distances); "access to legal counsel and other resources;" and the ability to "provide proper security and supervision of the inmate." Id. § 7210.6(c). The administrator must obtain "assurance that the facility administrator of the receiving facility will house the inmates." !d. § 7210.6(d). The facility administrator then provides the SCOC with the "pertinent information" needed to determine whether an SJO should be granted. !d. § 7210.6(d). The SCOC then approves the transfer, and the facility administrator makes the necessary arrangements to effectuate the transfer. !d.
An affidavit from former DOC Captain Edward Williams, submitted in an Article 78 proceeding, describes how this process works in practice. (Reply Dec!. of Douglas E. Lieb ("Lieb Dec!."), Dkt. No. 64, Ex. 1 ("Williams Aff.").Y First, Williams would determine that he wanted to transfer the detainee and investigate what other facilities might be suitable. (Id. '\['\[56.) He then would contact the facility and wait to hear if it would accept the detainee. (!d.'\['\[ 10-11.) Once he received the facility's approval, he would submit a transfer request. (!d. '\[14.) The SCOC then issued the SJO approving the transfer. (!d.)
In circumstances in which, due to "extraordinary circumstances," the facility administrator "reasonably believes" that safety of the inmate or public safety and security would be preserved by transfer, the procedures are slightly different. They are outlined in § 721 0.6(e). The rule says that the facility administrator must make a written request to the commissioner to "make available an institution" for the inmate. 9 NYCRR § 721 0.6(e)(1 ). However, as a matter of practice, the facility administrator specifies the institution to which the inmate should be transfen·ed. (Dec!. of Katharine Rosenfeld ("Rosenfeld Dec!."), Dkt. No. 38, Ex. 19) ("In order
1 The Court considers this affidavit on the motion to dismiss because it is incorporated into the Complaint by reference. See Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
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to ensme Mr. Espinal's continued safety and security, a determination was made pursuant to Correction Law §504(2) and in accordance with 9 CRR-NY §7210.6(e)(l), that [ACCF] would serve as the adjunct State correctional institution and application was made to the [SCOC] for approval ofthe transfer.").2 Upon the written determination of the commissioner that "such institution is available," the facility administrator transfers the inmate to the custody of the commissioner. The legal custody of the inmate remains with the facility administrator. 9 NYCRR § 721 0.6(e)(2). In practice, the commissioner then houses the inmate in the designated institution, even though the rule states that the inmate should be housed in the in the "most proximate available institution," considering the secmity needs of the inmate. I d. The rule does not mandate that the administrator consider the other factors listed in § 721 0.6(c) when transferring an inmate pursuant to § 721 0.6(e). Ultimately, if the facility administrator determines that the original facility is inappropriate for the inmate for the longer term, the facility administrator is responsible for finding another suitable facility and must ask the commission to designate it as a substitute jail. !d. § 721 0.6(e)(3).
When an inmate is housed in another facility, the original jurisdiction pays the receiving jurisdiction's expenses of holding the detainee. (Am. Compl. ~55.) This can be a lucrative business for jails; in 2013, housing other counties' detainees on SJOs brought Albany County more that $3 million in revenue. The Sheriff of ACCF has stated that Albany Officials are "trying to run our jail as a business." (!d. ~58.)
2 While this Jetter was submitted in support of Plaintiff Steven Espinal's Motion for a Preliminary Injunction, the Court can consider it on a motion to dismiss because it is incorporated into the FAC by reference. (Am. Compl.1[224.); see also Tellabs, Inc., 551 U.S. at 322.
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IV. The City's Transfer of Detainees to ACCF Plaintiffs allege that the City has a policy and custom of sending difficult young detainees
to ACCF in order to punish them. They allege that a specific pattern is followed when a young detainee is transferred upstate - a pattern to which every New York City detainee who has been brought to ACCF on an SJO in the past two years has been subjected. (Id. '1[ 99.)
First, prior to leaving Rikers, the detainee is strip-searched, shackled, and loaded into a van, which takes him to ACCF. (Id. '1['1[ 67-68.) He receives no advance notice of his transfer, even though such notice is required. (Id. '1['1[ 57, 67.)
Upon anival at ACCF, the detainee is subjected to a "routine of torture." (!d. '1[ 71.) He is escorted to the intake area of the ACCF by DOC Emergency Services Unit ("ESU") Corrections Officers ("COs")- the New York City COs who transported him from Rikers to Albany. (Id. '1[ 74.) There, he is handed over to the "Green Team"- a group of ACCF COs wearing paramilitary uniforms. (Id. '1['1[ 72, 75.) The detainee is transfened from DOC handcuffs to Albany handcuffs, and ACCF COs take him to a booking cell. He is given a series of arbitrary and increasingly convoluted commands to follow; every time he gets confused, he is punched. (Id. '1['1[ 76-77.) Then, the detainee's cuffs are removed and the Green Team, directed by Defendant Tonisi, assaults him. (Id. '1[ 78.) The DOC ESU officers who brought the detainee to Albany are often present inside the intake area while this assault occurs, and can see and hear what is happening. (Id. '1[ 79.)
Next, the detainee is subjected to a body scanner (the "BOSS Chair"), a medical detector, and a medical x-ray, all of which are used to search for contraband in body cavities. (Id. '1[ 80.) He is then taken to a solitary confinement cell. (!d. '1[ 81.) At some point during this process, Defendant Torrisi claims to have seen contraband inside the detainee's rectum, and ACCF COs physically and sexually assault him under the pretext of attempting to remove the real or
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imagined contraband. (Id. ~~ 82, 88.) These attacks often result in injuries, but the detainee is denied sufficient medical care by Defendant Mylroie, the assigned medical provider. (Id ~ 90.)
After the assault, the detainee is written up for "assaulting staff," among other infractions. (Id ~ 91.) He is given a disciplinary hearing, which Plaintiffs allege is a predetermined, sham hearing lacking a standard processes. The hearing always results in the detainee's being found guilty of multiple infractions, (id ~ 93), and the penalty is a long period of solitary confinement -often for over a year, (id ~ 94).
While in solitary confinement at ACCF, the detainee remains in his cell for a minimum of 23 hours per day - he is provided with one hour of "recreation" by himself in an indoor cage, which many detainees decline because it is "functionally indistinguishable from their cells." (Id. ~ 96.) While at ACCF, detainees do not have access to unmonitored legal calls, and have difficulty accessing confidential legal communications. (Id ~~ 120-23.)
Plaintiffs allege that the City and its policymakers are aware of the increased transfer rates, the failure to provide notice of the transfers, and the mistreatment of Rikers detainees in Albany. (Id ~~ 102-03.) They allege the City is on notice because: (l) letters to DOC's general counsel from Plaintiffs' attorneys- and attorneys for non-Plaintiff detainees- have alerted them to the beatings and mistreatment; (2) a notice of claim was filed with the City Comptroller describing Espinal's assault upon his arrival at ACCF; (3) Plaintiff and non-Plaintiff detainees have filed multiple Article 78 petitions asserting that their rights are being violated; and, (4) the New York Times published a story on July 22,2018 detailing ACCF's treatment ofRikers detainees. (Id. ~~ 105-13.) The first of these notices- a letter describing an ACCF CO's assault on a Rikers detainee upon his arrival at ACCF- was sent by the detainee's criminal defense attorney to the City on February 16, 2018. (Id. ~ l 06.)
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V. The Four Plaintiffs' Experiences The named Plaintiffs in this case- Davon Washington, Steven Espinal, Jolm Doe, and
Pariis Tillery- all allege experiences that fit this pattern. (/d. , 124.) A. Davon Washington
Washington was anested and taken into DOC custody in March 2016, at the age of 19. (/d.,, 127-28.) In March 2018, he lodged complaints with Legal Aid Society Prisoners' Rights Project, alleging that he was groped by DOC staff and denied adequate mental health and medical care; Legal Aid relayed these complaints to DOC on or about March 16 and March 26, 2018. (/d. , 131.)
On March 28, 2018, Washington was ordered to pack his things, removed from his cell, and strip-searched. (/d. , 133.) During the search, a CO told him that Defendant Sharlisa Walker "can't be around you," and that he would be going "offRikers" to Albany because "Deputy Walker don't want you." (/d. , 136.) Rikers COs then transported Washington to ACCF. (/d. , 141-42.) Washington was given no notice of the basis of the transfer, received no hearing, and was not permitted to call any family or lawyers to inform them of his whereabouts. (!d., 138.) The SJO authorizing Washington's transfer, procured by Defendant Williams on behalf of Brann, cited "safety considerations" as the reason for the transfer. (/d. ,, 139-40.) There are no indications that Washington was transfened pursuant to "extraordinary circumstances," which leads to the inference that he was transfened pursuant to§ 7210.6 (a-d).
Upon his an·ival in Albany, Washington was greeted by members of the "Green Team," who, along with two to three Rikers ESU officers, brought him into the intake area of the jail. (!d., 143.) The ESU officers removed Washington's cuffs and he was placed in Albany Cuffs. (/d., 144.) The ACCF COs then brought him into booking cell #2, where eight to ten other COs were waiting for him, including Defendant Tonisi. (/d.,, 146-47.) Defendant Ton·isi told
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Washington to put his head on the wall, and then hit him in the face while simultaneously asking Washington why he was transferred to ACCF. (!d. -,r 149.) COs then removed his handcuffs and proceeded to hit, punch, kick, and stomp on Washington while he lay on the ground. (Id. -,r-,r 15055.) The Albany COs then instructed Washington to get naked and continued to beat him. The COs forcefully inserted two fingers into Washington's rectum, attempting to remove purported contraband. (!d. -,r-,r 159, 162-63.) The Rikers ESU officers were still in the intake area and were aware of what was happening. (!d. -,r 153.)
After this beating, Washington was searched for contraband; he sat in the BOSS chair, went through a metal detector, and underwent a medical x-ray. (Id. -,r-,r 164-66.) All the while, he was bleeding from his nose and mouth. When Washington told a nurse that he had injuries, two COs responded by punching him in the face. Immediately after, the nurse again asked him if he had injuries; this time, he said no. (Jd. -,r 167.)
Washington was then taken to a cell in the Segregated Housing Unit ("the SHU")- the housing unit for inmates in punitive segregation - where he was again ordered to get naked. (Jd. -,r 169.) He remained shackled. COs punched and kicked him until he had blood all over his face and was visibly injured. (!d. -,r 171.) Out of fear, Washington denied medical attention when it was offered, but he was clearly injured- his face was bleeding and swollen, his tooth was chipped, and he was bruised all over his body. (!d. -,r-,r 171, 173.)
Washington received an infraction ticket for the incident, which accused him of attacking staff. (!d. -,r 175.) A disciplinary hearing was held; Washington's only statement was that he had nothing to say about the incident. (!d. -,r 177.) The hearing resulted in a sentence of 360 days in punitive segregation. (Jd. -,r 178.)
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Washington was ultimately held in the SHU for around eight months, until his departure
from ACCF in December 2018. (Id 'I 180.) While in the SHU, he was denied access to
educational programming. He was also put on new psychiatric medications and he lost
significant amounts of weight. (Id 'i'i 185-87.) His only time outside of his cell was one hour
per day in an empty, metal, chain-link cage placed next to a window in the hallway outside his
cell. (Id. 'I 182.)
Washington also alleges a separate incident of assault in October 2018, where three ACCF COs assaulted him after a legal visit with counsel in this action and threatened that what
Washington was "doing" was not going to work. (Id 'i'i 189-96.)
B. Steven Espinal
Espinal was arrested in November 2017 at the age of 18. (Id 'i'i 200-01.) On February
10, 2018, he and other detainees were involved in an altercation with a CO, which received
widespread media coverage. (Id 'i'i 204-06.) The Court has viewed the video of the incident; it
appears that Espinal was the initial perpetrator. Espinal was arraigned in Bronx Criminal Court on February 12,2018, on charges
stemming from the February 10 incident. (Id. 'I 209.)
On February 13, 2018, Espinal was picked up by ESU early in the morning, placed in a van with two other detainees who were also alleged to have been involved in the February 10
incident, and driven to ACCF. (Id. 'i'i 210-12.) He was given no notice of his transfer and he was not told where he was going. (Id 'I 213.)
An SJO was issued on that very day, February 13, 2018, on the basis that DOC was "unfit" for Espinal's confinement due to "safety considerations." The initial SJO was requested by Williams upon the application of Brann, and was effective through April!, 2018. (Dec!. of
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Case 1:18-cv-12306-CM Document 94 Filed 04/30/19 Page 12 of 82
Mark D. Zuckerman ("Zuckerman Dec!."), Dkt. No. 53, Ex. C.? Then, on March 28,2018,
another SJO was issued, effective from April!, 2018 sine die until rescinded. (Id.) In a letter sent to Espinal's criminal attorney in August 2018, DOC represented that it had transferred Espinal on an emergency basis pursuant to 9 NYCRR § 7210.6(e). (Am. Compl. ~ 224; Rosenfeld Dec!. Ex. 19.)
Upon his arrival at ACCF, Espinal encountered about 12 members of the Green Team. (Am. Compl. ~ 216.) One of the ACCF COs said, "We want Espinal first," and the ACCF COs, as well as two to three Rikers ESU officers, escorted him into the intake area. (Id. ~~ 217-18.) Espinal was placed in Albany cuffs and shackles, and transferred into booking cell #2, where eight to ten ACCF COs and supervisors were waiting for him. (Id. ~~ 219-221, 228.)
Immediately, Defendant Torrisi punched Espinal in the face, twice. (Id. ~ 231.) Torrisi said, in sum and substance, "This isn't Rikers. This is Albany County. We do what we want." (Id. ~ 230.) The COs punched him all over his body while he was still cuffed. When Espinal fell to the ground, they kicked him and stomped on him. (Id. ~~ 233-35.) After Torrisi decided it was "enough," he told Espinal to face the wall. (Id. ~ 236.) Defendants then gave Espinal a series of instmctions about how to remove his clothes; when he misunderstood or failed to comply, they punched him in the ribs. (Id ~ 238.) After all of his clothes were removed, Espinal was given a jumpsuit and searched for contraband using the BOSS chair, a metal detector, and a medical x-ray. (Id. ~~ 239-43.) The COs reported that the x-ray had detected that Espinal had a weapon in his body. (Jd. ~ 243.)
The COs next brought Espinal to the SHU, where a nurse said he was "fine." (Id. ~~ 24445.) When he got to a cell, the COs again told him to get naked, which he did. They then
3 The Court considers the SJOs on the motion to dismiss because they are incorporated into the Complaint by reference. See Tellabs, Inc., 551 U.S. at 322.
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proceeded to punch and kick him several times, saying that they would get the contraband "out of [him.]" (Id. ~~ 247-48.) While Defendant Lawson held Espinal down, another CO proceeded to forcefully insert his fingers into Espinal's rectum, causing him great pain and to bleed; the CO said he could not feel anything. (Id. ~ 249-50.) The COs then told Espinal to defecate on the floor to remove the contraband, threatening to beat it out of him if he could not extricate it himself, all while continuing to assault him. (Id. ~ 252.) They then ordered that he stand up, informing him again that they were going to make him "s**t it out" and tased him from a few feet away- even though he had his back to them- causing him to fall to the ground. (Id. ~~ 25456.)
Espinal was taken to a shower and then strapped into a restraint chair, a physical restraint device that fastens a detainee to a chair at the wrists, ankles, thighs, arms, and head. (Id ~~ 25859.) While Espinal was in the restraint chair, the COs continued to taunt and assault him. (Id ~ 260.) He was kept in the chair ovemight. (Id. ~ 261.)
When he was released from the chair the next moming, Espinal was bleeding, bruised all over his body, dizzy, and unable to urinate nmmally. (Id ~~ 262-63.) He was taken to Albany Medical Center, where staff documented scratches to his face, tenderness in his neck, midline spine, and suprapubic region, and multiple bruises and abrasions. (Id. ~ 267.) At the hospital, Espinal told the staff he had lost consciousness in a "fight"- he says that he told the staff this lie out of fear that the COs would retaliate against him. (Id. ~ 266.)
After his return from the hospital, Espinal was sent back to the SHU. (Id. ~ 268.) Two days later, on February 16, 2018, Espinal was brought back to the Bronx for a court appearance; the Judge ordered that he be given immediate medical attention. (Id. ~ 269.)
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Espinal was charged with assaulting staff. (!d. ~ 270.) He was never served with an infi·action, although one was generated on February 13, 2018. (Id. ~ 272.) On February 26, 2018, Espinal had a disciplinary hearing, where he had no opportunity to call witnesses. (Id. ~ 275.) Prior to the hearing, a sergeant told Espinal that "no matter what happened," he would remain in punitive segregation. (Id. ~ 274.)
Espinal was sentenced to 600 days in solitary confinement. He remained there for over a year, despite the fact that a state court judge directed that he be released. (Id. ~~ 276-77.) He was in solitary confinement when both the Complaint and FAC were filed. (Id. ~ 278.) During this time, he did not receive educational services, other than an educational packet. (Id. ~ 282.) He received limited mental health services, which were administered in his cell in the presence of a CO. (Id. ~ 284.) The Albany Defendants also failed to comply with court orders that Espinal be produced in court for attorney's visits, and he twice missed court appearances. (!d. ~~ 285-86.)
Espinal was assaulted a second time on July 4, 2018. Espinal did not respond to a nurse making medical rounds because he was on medication that made him drowsy. (!d. ~~ 290-91.) Due to his lack of response, COs entered his cell, pinned him to the bed, handcuffed and shackled him, beat him, and sprayed him with pepper spray. (Id. ~~ 289-96.) Espinal suffered multiple injuries and again had to be taken to Albany Medical Center. (Id. ~ 300.) He had trouble opening his jaw, which was swollen shut, a deep cut on his face, and was diagnosed with "head trauma" and "left jaw pain and swelling post assault." (!d. ~ 301.)
On April4, 2019, Espinal was transferred out of ACCF and into state custody to begin serving his sentence for his underlying crimes. (Dkt. No. 91.) He spent almost 14 months in solitary confinement. At all this time, he was less than 22 years old.
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C. John Doe Doe was arrested in December 2015. (Am. Compl. 'i[313.) There is no indication in the FAC that Doe attacked anyone or presented any danger to anyone at Rikers. In January 2018, while Doe was being housed at the Manhattan Detention Complex ("MDC"), Defendant Sullivan told him, "Soon enough we won't have to deal with your bullshit anymore. You're going somewhere good, somewhere that you'll like." (Id 'i[319.) The next day, Doe was transferred to Ulster County Jail. After about a week at Ulster, he was transferred to ACCF by DOC ESU officers. (Id 'i['i[321, 326, 328.) Defendant Williams acknowledged in an affidavit submitted in another proceeding that he !mew Doe was only in Ulster temporarily, prior to being sent to ACCF, because ACCF indicated that it would not be able to receive the Rikers detainee until January 23,2018. (Id 'i[325.) The SJO for Doe's transfer to ACCF cites "safety considerations" as the reason for his transfer. The SJO was meant to be temporary- from January 24, 2018 through April I, 2018. (Zucketman Dec!. Ex. E.) Nevertheless, Doe remained at ACCF until he was transfetTed to state custody after he pled guilty to his underlying crime in October 2018. (Am. Compl. 'i[401.) Upon his arrival at ACCF, Doe was greeted by the Green Team, under the command of Defendant Torrisi. (!d. 'i['i[329-30.) These COs escorted him to a booking cell, where he was subjected to a strip search and told to follow confusing instmctions as to how to remove his clothes. (Id 'i['i[331-32.) During this process, COs kicked and hit Doe, causing him to fall to the ground. (Id 'lf'i[333-34.) The COs then brought Doe to the BOSS chair and subjected him to an x-ray; during this process he was again hit by COs. (Id 'i['i[336-37.) The COs informed Doe that the x-ray detected the presence of a razor in his rectum, and threatened that if he didn't give up the weapon, it would be the "worst day of[his]life." (Id 'i[339.)
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Doe was then taken to the SHU, where he was held naked in a cell along with eight to ten COs. (Id. ~ 342.) He was again told to extricate the razor. (Id. ~ 343.) After removing his handcuffs, six to eight COs assaulted him with fists, batons, and pepper spray; one CO told Doe, in sum and substance, "We kill people here. Is that what you want?" (Id. ~~ 344-48.) When Doe asked for food and water to stimulate his bowels, Defendant Torrisi slammed his head against the wall and instructed another officer to put a baton in his rectum, causing Doe to bleed. (Id. ~~ 353-56.) Doe was then tasered multiple times, causing him to urinate and defecate on himself and to lose consciousness multiple times. (Id ~~ 358-63.) During the assault, Defendant To!Tisi said, in sum and substance, "We're going to kill you. This isn't Rikers anymore." The COs fmally told Doe the weapon was no longer inside of him, but tased him a final time as revenge for defecating on one CO's shoes. (Id ~ 369.)
Doe was brought back to the x-ray room. There, he asked for medical attention, which was refused. (Id. ~~ 371-72.) He was given clothes, but denied an opportunity to clean and decontaminate himself. (Id. ~ 373.) The next morning, he again requested medical attention for his injuries - which included an open wound on his forehead, two black eyes with one eye swollen shut, bruises to his ribs and chest, and bleeding from his rectum- but Defendant Mylroie denied medical attention, only giving him Motrin. (Id. ~~ 376-80.) Doe was not examined by a physician until a week after the beating. (Id. ~ 381.)
Doe was written up for assaulting staff during his strip search. (Id. ~~ 382-83.) A disciplinary hearing was held on February 6, 2018, where Doe denied the charges against him. (Id. ~ 385.) The hearing officer said in sum, "we are still going to find you guilty regardless," and sentenced him to 550 days in solitary confinement. (Id. ~~ 386-87.) Doe spent ten months in solitary. (Id. ~ 388.) During this time, he was tlu·eatened by ACCF staff who said that they
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would "kill him" if he snitched; he was also punched by COs on multiple occasions. (!d. ~~ 395, 97-98.)
In October 2018, Doe pleaded guilty to criminal possession of a controlled substance in the third degree, and he is now serving his sentence in the custody of the state. (!d.~~ 401-02.) Doe chose to accept what he believed to be a poor plea offer so he could get out of ACCF and into a different facility. (!d. ~ 403.)
D. Pariis Tillery Pariis Tillery was arrested in MaTch 2017 and placed in DOC custody. (!d.~ 407.) He was detained at Brooklyn Detention Center, where, on August 7, 2018, he was alleged to have assaulted a CO. (!d. ~ 408.) The next day, he was transferred to Rikers Island, and the day after that, he was transferred to ACCF. (!d. ~ 41 0.) Tillery was given no written notification for the basis of his transfer, and was not told where he was going or even that he was going to be transferred. (Jd. ~ 413.) The SJO providing for Tillery's transfer, obtained by Brann and Williams, cited "safety considerations." (!d.~ 410; Zuckerman Dec!. Ex F.) Upon his arrival at ACCF, Green Team members greeted Tillery and took him into the intake area of the jail; he was accompanied by two to three Rikers ESU officers. (!d.~~ 415-16.) The ACCF COs cuffed and shaclded him, and brought him into a booking cell where eight to ten ACCF COs and supervisors were waiting. (!d. ~~ 418-19.) The COs assaulted him by punching him in the face and body and by kicking and stomping on him, even after he fell to the floor. (!d. ~~ 420-24.) He began to bleed form his nose and Defendants placed a "spit mask" on his face, even though he was not spitting at anyone. (!d. ~ 422.) Once CO told him, "Do the same thing you did on Rikers Island." (!d. ~ 420.) After about ten minutes, the COs brought Tillery to the BOSS chair and metal detector. The scans did not indicate contraband, but the COs were
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skeptical, telling Tillery that, "You Rikers guys are always lying" and "If you have something, we're going to beat you until you s**t it out." (!d. ,, 425-26.)
The COs then escorted Tillery to a cell in the SHU, where he was instructed to remove his jumpsuit, and told to "take it out of your ass, you monkey" (referring to the alleged contraband), all while being threatened with a taser. (Id. ,, 429-31.) The COs punched, kicked and hit Tillery again, and then brought him for another x-ray. (Id. ,, 431-33.) When he returned to his cell, Defendant Mylroie came to see him and said he was fine, despite the fact that he was in extreme pain, was bleeding, had two black eyes and a swollen nose, and could not hear out of his left ear. (Id. ,, 435-36.)
Tillery requested medical attention the next day, August 10, and told COs that his head hurt and he could not hear from his left ear. (Id., 437.) Yet, it was not until August 13,2018, four days after the assault, that Tillery was taken for treatment at Albany Memorial Hospital. (Id. , 438.) At the hospital, Tillery told personnel that he had been assaulted by the COs. (Id. , 439.) He was diagnosed with a ruptured eardrum, a head injury, and a concussion. He continued to suffer from headaches related to the assault for months. (Id. ,, 447-49.)
Upon his return from the hospital, Tillery was sent back to solitary. (Id. , 444.) Around this time, Defendant Lyons came to his cell and said, "You are not on Rikers anymore, we run this jail." (Id., 451.)
Tillery received an infraction for assaulting staff, and a disciplinary hearing was held on August 24, 2018. (Id. ,, 450, 454-55.) Tillery had no opportunity to prepare, and was not given an opportunity to call witnesses; no testimony was taken. (Id. , 456.) The hearing resulted in a sentence of300 days in solitary confinement. (Id. , 457.)
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Tillery remained in solitary for over five months until January 23,2019. (Id. "if 458.) During this time, he had limited access to human interaction, education or programming, phone calls (including to his attorney), and mental health care; it was also extremely difficult for his
family to visit, including his one-year-old son. (Id. "if"! 460-66.) He was also subjected to taunting by ACCF COs. (Id. "if 452.)
On January 23, 2019, four weeks after this lawsuit was filed, Tillery had a court date in Brooklyn and was told he was being transferred. (Id. "if 467.) After his court appearance, he was not returned to ACCF, but was instead brought back to Rikers. He received no explanation for
his transfer. (Id. "if 468.)
VI. Procedural History Plaintiffs filed their initial Complaint on December 28, 2018. (Dkt. No. 1.) On
January 28,2019, Plaintiffs filed an Amended Complaint (Dkt. No. 30), and Plaintiff Steven Espinal filed a motion for a preliminary injunction (Dkt. No. 31). On February 11, 2019, the City Defendants moved to dismiss (Diet. No. 48); Defendant Sullivan joined this motion on February 25,2019 (Diet. No. 66). On February 15,2019, the Albany Defendants moved to sever (Dkt. No. 58); on February 22,2019, Defendant Mylroie separately moved to sever (Dkt. No. 61). On March 28,2019, Plaintiffs filed a motion to certify the class. (Dkt. No. 86.)
THE CITY DEFENDANTS' MOTION TO DISMISS The City Defendants have filed a Motion to Dismiss pursuant to Rules 12(b)(l), 12(b)(6), and 12(b)(7). In an alternative to their 12(b)(7) motion, they have also filed a motion for an order joining the SCOC as a defendant pursuant to Rule 19(a)(l) and 19(a)(2). This Motion is denied.
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I. The City Defendants' Motion to Dismiss the Entire Action Pursuant to 12(b)(7) The City Defendants argue that they cannot be held liable for constitutional violations
related to Plaintiffs' transfer because the SJOs authorizing the transfers were issued "solely" by the SCOC. (Defs.' Mem. of Law in Supp. of Mot. to Dismiss, for Order Joining State Commission of Correction as Def., and in Opp. to Application for Prelim. Inj. of Pl. Steven Espinal ("City Defs.' Br."), Dkt. No. 52, at 7.) They contend that DOC "merely applied" for the SJOs, and that any liability for constitutional violations related to the transfers must be directed at the SCOC, which ultimately issues the SJOs. (Id.) The City Defendants request two fotms of relief: dismissal for failure to join a necessary party or, in the alternative, an order for Plaintiffs to join the SCOC.
The Court grants neither fotm of relief. The FAC clearly alleges, in both theory and practice, the City Defendants are the driving force behind the transfer process and can (and should) be held liable for their actions.
A. The SCOC Is Not a Necessary Party Under Rule 12(b)(7), an action may be dismissed for failure to join a necessary party under Rule 19. See Fed. R. Civ. P. 12(b)(7). Courts apply a two-part test to detetmine whether an action must be dismissed for failure to join an indispensable party. "First, the court must determine whether an absent party belongs in the suit, i.e., whether the party qualifies as a 'necessary' party under Rule 19(a)." Viacom Int'l, Inc. v. Kearney, 212 F.3d 721, 724 (2d Cir. 2000). If a party does not quality as necessary under Rule 19(a), the Court does not need to make any further decision with respect to the motion to dismiss. I d. If a party does qualify as necessary, the Court looks to whether it is feasible to join that party; if it is not feasible to join the necessary party, the Court determines whether the party is "indispensable." Id. A party is "necessary" under Rule 19(a)(l) if:
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(A) in the person's absence complete relief cannot be accorded among those already parties; or (B) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect that interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. Fed. R. Civ. P. 19(a)(l). Courts assess three factors when determining whether a non-party is required: "(!) whether the court can afford complete relief in the absence of the non-party; (2) whether the nonparty's absence will impair or impede its ability to protect its interests; and (3) whether the existing parties would be subject to 'double, multiple, or otherwise inconsistent obligations."' Harty v. Spring Valley Marketplace LLC, No. 15-CV-8190 (NSR), 2017 WL 108062, at *12 (S.D.N.Y. Jan. 9, 2017). If any one of the three components is satisfied, the absent party constitutes a required party.
I. 19(a)(l)(A)- Complete Relief Under the first factor of the Rule 19(a)(l) analysis, the court looks to whether complete relief cannot be award among the existing parties without joinder of the party in question. Tbis analysis considers only those already parties to the litigation. See MasterCard Int '!Inc. v. Visa Int'l Serv. Ass 'n, Inc., 471 F.3d 377, 385 (2d Cir. 2006). First of all, the Court can afford Plaintiffs complete monetary relief without the SCOC being a party. Joint tortfeasors are not de facto necessary parties; they do not need to be included in a single lawsuit to afford complete monetary relief. See, e.g., Grimes v. CBS Corp., No. 17 CIV. 8361 (AJN), 2018 WL 3094919, at *2-3 (S.D.N.Y. June 21, 2018). All present and absent defendants are jointly and severally liable, so Plaintiffs can choose to sue a subset oftortfeasors and obtain full damages from only those defendants. See, e.g., id. at *2. If the City were to be found liable, it could then seek contribution from the SCOC as a joint tortfeasor. Id. The SCOC
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is not a necessary party simply because it might share responsibility for the violation of Plaintiffs' rights.
Turning to the injunctive relief, the City Defendants contend that Plaintiffs' request for injunctive relief- including prohibiting the City Defendants from transferring class members to ACCF, ordering that Espinal be returned to a conectional facility in New York, and "nullifying and voiding" any SJOs transferring Espinal out of the City- cannot be fulfilled without joining the SCOC, because the SCOC ultimately approves the SJOs authorizing the transfers. (City Defs.' Br. at 7.) As Espinal is no longer at ACCF or in DOC custody, the only remaining request for injunctive relief is the request to prohibit the City Defendants from transfening class members to ACCF.
The core allegations of the FAC are that the City Defendants arranged for detainees aged 21 and younger to be transfened and held in Albany, where they would be subject to "torture" and placed in solitary confinement. (Am. Compl. '1[ 10.) Plaintiffs are not challenging any "actions or policies" of the SCOC - the allegations all have to do with actions taken by the City Defendants. See Brooks v. Roberts, 251 F. Supp. 3d 401,434 (N.D.N.Y. 2017). And Plaintiffs request relief that limits the City Defendants' actions. In particular, they have requested that the Court issue an injunction "prohibiting Defendants City, Brann, and Williams from transfening class members to the Albany County Conectional Facility." (Am. Compl., Prayer for Relief, '1[ i.) Fairly read, the injunction that is sought would prohibit the City officials from invoking the 9 NYCRR 7210.6 procedures in order to transfer class members to Albany- from asking the SCOC to approve their transfers. The SCOC is not only not a necessary party to state a claim, it is not a proper party Defendant for such a claim.
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It is true that the SCOC approves the transfer requests. But nothing in the FAC or the incorporated documents suggest that the SCOC initiates transfer requests or that it plays any role in determining where a detainee will be sent upon transfer. All that is done by the City Defendants. The Court can prohibit the City Defendants from asking the SCOC to approve transfers of young inmates to ACCF without SCOC's being a defendant. See Harty, 2017 WL 108062, at *12 (no joinder when possible to obtain adequate relief among named defendants). Nothing suggests that pretrial detainees are permanently transferred to Albany without the City's request; indeed, any such transfer would be contrary to the law. See 9 NYCRR § 7210.6(c). The only conduct sought to be enjoined is the conduct of the City Defendants- and an injunction directed solely to their conduct would afford Plaintiffs complete injunctive relief.
2. 19(a)(l)(B)(i) Turning to the second factor under Rule 19, the SCOC's absence from this lawsuit would not prevent it fi·om protecting its own interests. The City Defendants point to no interest that would be impeded because of the SCOC's absence. Moreover, "[f]or a party to be necessary within the meaning of Rule 19(a)(l)(B)(i), the absent party must be the one claiming the interest. A party named in the litigation cannot assert the interest on the absent party's behalf." See Cant'! Cas. Co. v. Am. Home Assur. Co., No. 05 CIV 7874 LTS JCF, 2008 WL 1752231, at *4 (S.D.N.Y. Apr. 14, 2008) (internal citations removed). The SCOC has not claimed an interest in the litigation.
3. 19(a)(l)(B)(ii) Finally, as to the third factor, there is no evidence that any party would face "multiple or inconsistent liability" without the SCOC's presence.
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For these reasons, the Court does not find that the SCOC is a necessary party pursuant to Rule 19(a). Accordingly, the Motion to Dismiss the case pursuant to Rule 12(b)(7) is DENIED, as is the motion to direct that Plaintiffs be directed to join the SCOC as a defendant.
II. The City's Motion to Dismiss Pursuant to 12(b)(6) Twenty-two out of the thirty-tluee causes of action in the FAC implicate the City
Defendants. The City Defendants have moved to dismiss all of them. A. Legal Standards 1. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint that fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as tme, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted).
"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." Id A plaintiff must plead facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id; see also Pension Ben. Guar. Corp. ex rei. St. Vincent Catholic Med Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013).
In considering a motion to dismiss, the Court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in favor of the Plaintiff. See Banks v. Cty. of Westchester, 168 F. Supp. 3d 682, 687 (S.D.N.Y. 2016); see also Lopez v. Cipolini, 136 F. Supp. 3d 570, 579 (S.D.N.Y. 2015). However, it is not bound to accept legal conclusions that are "couched as factual allegation[s]." Iqbal, 556 U.S. at 678.
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The Court may consider any written instrument attached to the complaint as an exhibit; any statement or documents incorporated by reference, as well as documents that are integral to the complaint, which means that the complaint "relies heavily" on the document's "terms and effect." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
Ultimately, the motion to dismiss analysis is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 678.
2. Section 1983 Plaintiffs' claims against the City Defendants- with the exception of the thirteenth and fourteenth causes of action- are brought pursuant to 42 U.S.C. § 1983. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured... 42 U.S.C. § 1983. "Section 1983 does not create any independent substantive rights but rather is a vehicle to 'redress ... the deprivation of [federal] rights established elsewhere."' Perez v. Ponte, 236 F. Supp. 3d 590, 609 (E.D.N.Y. 2017), report and recommendation adopted, No. 16CV-645 (JFB)(AKT), 2017 WL 1050109 (E.D.N.Y. Mar. 15, 2017) (quoting Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999)). To state a claim under§ 1983, the conduct "must have been committed by a person acting under color of state law" and "must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). Section 1983 claims may be brought against individuals and municipalities.
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1. Individual Liability For an individual to be held liable under§ 1983, he must have "personal involvement" in the alleged constitutional deprivation. Farrell v. Burke, 449 F.3d 470,484 (2d Cir. 2006). There are five ways that a Plaintiff may establish "personal involvement." They are: "(1) the defendant participated directly in the alleged constitutional violation, (2) 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 [the plaintiffsJ by failing to act on information indicating
that unconstitutional acts were occutTing." Warren v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)); see also Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
'"Direct participation' means 'personal participation by one who has knowledge of the facts that rendered the conduct illegal."' Doe v. Lima, 270 F. Supp. 3d 684, 712 (S.D.N.Y. 2017), aff'd sub nom. Doe v. Cappiello, No. 17-3027,2019 WL 368691 (2d Cir. Jan. 30, 2019) (quoting Provost v. City ofNewburgh, 262 F.3d 146, 155 (2d Cir. 2001)).
"A complaint assetting a § 1983 claim which does not allege facts establishing the personal involvement 'fails as a matter of law."' Ponte, 236 F. Supp. 3d at 609. It is a "condition precedent" to any award of damages. Id at 61 0.
ii. Municipal Liability In Monell v. Department ofSocial Services ofthe City ofNew York, 436 U.S. 658 (1978), the Supreme Court found that a municipality can be held liable under§ 1983. To establish a municipality's liability under § 1983, "a plaintiff is required to plead and prove three elements:
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(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Wray v. City ofNew York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702 F.2d 393,397 (2d Cir. 1983)).
To establish that there was an "official policy or custom," a plaintiff may plead that the constitutional violation was caused by: "(1) a fmmal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage ofwhich a supervising policy-maker must have been aware; or, (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees." Calderon v. City ofNew York, 138 F. Supp. 3d 593, 611 (S.D.N.Y. 2015), on reconsideration in part, No. 14 CIV. 1082 PAE, 2015 WL 6143711 (S.D.N.Y. Oct. 19, 2015) (emphasis added) (citing Brandon v. City ofNew York, 705 F.Supp.2d 261,276-77 (S.D.N.Y. 2010)).
A municipal policy may be rooted in inaction. A "city's 'policy of inaction' in light of notice that its program will cause constitutional violations is the functional equivalent of a decision by the city itself to violate the Constitution." Cash v. Cty. ofErie, 654 F.3d 324, 334 (2d Cir. 2011); see also Amnesty Am. v. Town ofW Hartford, 361 F.3d 113, 126 (2d Cir. 2004) ("[W]here a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a 'deliberate choice,' that acquiescence may 'be properly thought of as a city "policy or custom" that is actionable under § 1983."' (citing City ofCanton v. Harris, 498 U.S. 378,388 (1989)). "Monell's policy or custom requirement is satisfied where a local government is faced with a pattern of misconduct and does
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nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates' unlawful actions." Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). The need to act must be "so obvious" and the "inadequacy of the current practices so likely to result in a deprivation of federal rights" to satisfY the deliberate indifference standard. I d.
A municipality may also be liable under § 1983 if a "final municipal policymaker" made a decision that led to the constitutional violation. See Pembaur v. City ofCincinnati, 475 U.S. 469, 483 (1986). When determining if an official has final policymaking authority, the Court looks to state and municipal law, as well as custom or usage having the force of law. Gersbacher v. City ofNew York, No. 1:14-CV-7600-GHW, 2017 WL 4402538, at *16 (S.D.N.Y. Oct. 2, 2017) (quotingJettv. Dallas Jndep. Sch. Dist., 491 U.S. 701,737 (1989)). This determination is a question oflaw. Jd.
The "plaintiff must [also] demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the alleged injury.", 654 F.3d at 333. There must be a direct causal link between the policy or custom and the constitutional violation. A municipality is held accountable only for its own illegal acts- it cannot be held "vicariously liable" under § 1983 for its employees' actions. Jd.
On a motion to dismiss, "a plaintiff must do more than simply state that a municipal policy or custom exists ... Rather, a plaintiff must allege facts tending to support, at least circumstantially, an inference that such a municipal policy of custom exists." Santos v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012).
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B. Procedural Due Process Claims by Washington and Espinal against the City, Brann and Williams (Count 1)
The first cause of action is brought pursuant to § 1983 by Washington and Espinal against the City, Brann, and Williams, alleging Defendants violated Washington and Espinal's Fourteenth Amendment right to procedural due process. Washington and Espinal claim that they were deprived of their liberty interest of not being subjected to solitary confinement when they were transferred to Albany without notice of the transfer, notice of the reasons for the transfer, or an opportunity to be heard.
1. Both Plaintiffs Have Properly Pleaded That They Were Deprived of a Constitutionally Projected Interest
"The Fourteenth Amendment's Due Process Clause protects persons against deprivations oflife, liberty, or property without due process oflaw, and 'those who seek to invoke its procedural protection must establish that one of these interests is at stake.'" Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016), as amended (Feb. 24, 2016) (quoting Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012)). To determine whether there is a Fourteenth Amendment procedural due process violation, a court undertakes a two-part analysis: First, it determines "whether there exists a liberty or property interest of which a person has been deprived." !d. If that is the case, the court then looks to whether the State's procedures were "constitutionally sufficient." !d.
i. Plaintiffs' Liberty Interest Washington and Espinal claim that the City Defendants deprived them of the liberty interest of not being subjected to solitary confinement, which interest was created by 40 RCNY § 1-17. (Am. Compl. "if 487.) An inmate's liberty interest may arise from "statutes, regulations, or policies enacted by the state." !d. The statute, regulation, or policy must "require, in language of an unmistakably
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mandatory character, that a prisonermay not suffer a particular deprivation absent specified predicates." Vega v. Lantz, 596 F.3d 77, 83 (2d Cir. 2010) (internal quotation marks and citation omitted); see also Hewitt v. Helms, 459 U.S. 460,472 (1983).
40 RCNY § 1-17 limits the uses of punitive segregation for DOC inmates, particularly for young pretrial detainees. The rule says, "[P]unitive segregation represents a serious threat to the physical and psychological health of adolescents, with respect to whom it should not be imposed." 40 RCNY at§ l-17(a). In this vein, the rule mandates that the "following categories of inmates shall be excluded from punitive segregation: (i) inmates under the age of 18; (ii) as of January 1, 2016, inmates ages 18 through 21, provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming;4 and (iii) inmates with serious mental or serious physical disabilities or conditions." I d. at § l-17(b)(1) (emphasis added). The regulation also provides that detainees of any age may only be sentenced to 30 days in punitive segregation for a single offense, or a 60 day sentence for the more serious infraction of assault on staff. !d. § 1-17(d). Moreover, if an inmate is sentenced to punitive segregation for multiple offenses and receives a cumulative sentence of greater than 30 days, he must be released from punitive segregation for at least seven
days every 30 days. Id. § l-17(d)(2).
The Court agrees that this rule creates a liberty interest. The language of the rule is of an "unmistakably mandatory character." Vega, 596 F.3d at 83. It says that the designated inmates "shall be excluded from punitive segregation." 40 RCNY § 1-17 (b) (emphasis added); see also Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) ("[T]he use of terms such as 'must' and 'shall'
4 After the regulation was passed in January 2015, DOC requested and received a series of variances from the Board because it required more time to develop "alternative programming." In October 2016, the variances ended, which means that inmates under 22 are not currently permitted to be subject to solitary confinement. (Am. Compl. ~~ 44-45.)
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in prison regulations give rise to a federally protected liberty interest."). And the rule contains "specified [substantive] predicates" for punitive segregation, Vega, 596 F.3d at 83, as it substantially restricts jail officials' authority to place specific inmates in punitive segregation, cf Cofone v. Manson, 594 F.2d 934, 938 (2d Cir. 1979) (finding state statute that outlined required procedural safeguards prior to transferring a prisoner did not create liberty interest). The regulation is not a "mere adoption of procedural guidelines governing day-to-day prison administration, without more." Butler v. NY Correctional Dep 't, No. 94 CIV. 5054 (AGS), 1996 WL 438128, at *5 (S.D.N.Y. Aug. 2, 1996). It is a substantive mandate as to how DOC must treat its inmates.
Defendants argue that any interest created by 40 RCNY § 1-17 is limited. (See City Defs.' Br. 10-12.)
First, they contend that 40 RCNY § 1-17 is a New York City rule meant to apply to "the Department's facilities," rather than a rule that permanently vests a liberty interest in any inmate who is held in DOC custody at any point. See 40 RCNY § 1-17 (a) ("As implemented by the Department, punitive segregation is a severe penalty that should not be used under certain circumstances in the Department's facilities...."). It is true that the rule only applies to DOC facilities- the Board's rules can only apply to DOC facilities because the Board has jurisdiction over DOC; it has no authority to impose rules on facilities in other counties. (Am. Compl. -,r 38.) But it is equally obvious that the Board does not enact standards with the mindset that the City can avoid compliance by transferring inmates to other counties, where their special rules have not been adopted, under the trumped-up guise of"safety considerations." The fact that a state law permits inmates to be transferred under specified, limited circumstances, does not mean that DOC detainees do not have a reasonable expectation that they- who are charged by New York
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City District Attorneys with the violation of city or state law, and who will be tried in New York City comis- will remain at a DOC facility and subject to its rules during their pretrial dentition (when they are presumed to be innocent). To find otherwise would be to say that the Board's rules are meaningless and can be circumvented simply by transferring an inmate out of DOC's jurisdiction - at least for the period of time the inmate is waiting for trial, sentencing, or transfer to a state facility. Such a finding would not be accord with the Board's delegated authority to oversee DOC.
Defendants also argue that 40 RCNY § 1-17 must coexist with New York State Correction Law§ 504- and its enabling rules and regulations, including 9 NYCRR § 7210.6which regulates the transfer of inmates between facilities. The simple fact that the rule must work alongside state law does not mean that youth held in DOC custody do not have protection from solitary confinement that is sufficiently definite to create a liberty interest. This is especially true here, where it is allegedly possible to protect the liberty interest created by the New York City Rule and still comply with Correction Law§ 504. For example, an inmate under age 22 could be transferred to a facility other than ACCF, which clearly does not meet any of the criteria for transfer in that (1) it does not house young offenders "in a manner consistent with applicable standards" (including that young detainees cannot be subject to solitary confinement); (2) it is anything but "proximate" to New York City; (3) it is located in an area where family and friends cannot visit; and (4) it seriously restricts the ability of counsel to serve their clients. (See 9 NYCRR § 7210.6(c).) Everything in this pleading suggests that the City Defendants are voluntarily and deliberately ignoring these standards- standards that create a liberty interest for Plaintiffs while they are at DOC facilities.
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Finally, the City Defendants assert that continuing to enforce the ban on ptmitive segregation when an inmate is transferred would undermine the section of9 NYCRR § 7210.9, which says that any inmate transferred "pursuant to this Pati shall be entitled to all rights and privileges available to other inmates ofthe receiving facility." But this provision simply sets a minimum of rights and privileges to which a transferred inmate is entitled; it does not say that a transferred inmate gives up any additional rights he had at his original facility.
For these reasons, the Court finds that Washington and Espinal have alleged a liberty interest in being free from punitive segregation, given that they were originally in DOC custody and under the age of 22 at the time of their transfers.
ii. Deprivation of the Liberty Interest Washington and Espinal allege that they were deprived of their liberty interests when they were transferred from DOC facilities to ACCF, where they were placed in punitive segregation for extended periods of time. (Am. Compl. '1['1[180, 278.) The transfer of a pretrial detainee between facilities generally does not implicate due process. See Corley v. City ofNew York, No. 1:14-CV-3202-GHW, 2015 WL 5729985, at *7 (S.D.N.Y. Sept. 30, 2015). But here, because the FAC fairly alleges that Washington and Espinal were deliberately (and maliciously) transferred from a DOC facility- where they could not be subjected to solitary confinement or extended periods of punishment- to ACCF- where they were subjected to solitary confinement and periods of punishment running into years- the act of transferring is directly tied to the deprivation of the right.
iii. The City's Procedures with Respect to the Deprivation of Plaintiffs' Liberty Interest
To establish that there was a procedural due process violation for the deprivation of a liberty interest, a plaintiff must demonstrate that the Goverrunent's procedures associated with
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the deprivation of the right were not "constitutionally sufficient." Generally, a plaintiff must have been given "notice of the case against him and the opportunity to meet it." Spinelli v. City ofNew York, 579 F.3d 160, 169 (2d Cir. 2009) (citing Mathews v. Eldridge, 424 U.S. 319,34849 (1976)). However, "due process is flexible and calls for such procedural protections as the particular situation demands." Spinelli, 579 F.3d at 169. "In determining what is 'due process' in the prison context ... 'one cannot automatically apply procedural rules designed for free citizens in an open society."' Hewitt, 459 U.S. at 472 (citing Wolffv. McDonnell, 418 U.S. 539, 560 (1974)).
To determine whether the State's provided process was constitutionally sufficient, courts apply a three-part balancing test from Mathews v. Eldridge, which weighs: (1) the private interest affected; (2) risk of erroneous deprivation through the procedures applied and the value of additional safeguards; and (3) the government's interest. See Mathews, 424 U.S. at 335; see also Hewitt, 459 U.S. 460 (applying Mathews analysis to prisoner's procedural due process claim).
a. Private Interest First, the Court considers Plaintiffs' interest in being free from solitary confinement. Inmates "held in lawful confinement have their liberty curtailed by definition," so the private interest "must be evaluated ... within the context of the Oail] system and its attendant cmiailment of liberties." Wilkinson v. Austin, 545 U.S. 209,225 (2005). The FAC alleges significant harms attendant to prolonged solitary confinement, and its absolutely deleterious effects on young people. Consistent with these allegations, as well as findings from other courts in this Circuit, the Plaintiffs have successfully pleaded that there is a strong private interest in those aged 21 and younger being free from solitary- particularly those ymmg pretrial detainees who are presumed to be innocent. See Proctor v. LeClaire, 846 F.3d 597, 610 (2d Cir. 2017) (finding private interest implicated by "extended and indefinite stay" in
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solitary to be "weighty"); A.T. by & through Tillman v. Harder, 298 F. Supp. 3d 391,417 (N.D.N.Y. 2018) ("[P]laintiffs have submitted substantial, convincing evidence that defendants' continued use of solitary confinement on juveniles puts them at serious risk of short- and longtetm psychological damage .. .");Brooks v. Terrell, No. CV 10-4009 AKT, 2010 WL 9462575, at *11 (E.D.N.Y. Oct. 14, 2010) ("[I]t is well documented that long periods of solitary confinement can have devastating effects on the mental well-being of a detainee." (internal citation omitted)); United States v. Basciano, 369 F. Supp. 2d 344, 352 (E.D.N.Y. 2005); see also Davis, 135 S. Ct. 2187 (Kennedy, J., concurring) (recognizing that prolonged solitary can exact a "tenible price").
Moreover, here, it is telling that the Board passed 40 RCNY § 1-17, forbidding punitive segregation for specified inmates and for extended periods of time, thereby creating Plaintiffs' interests. Presumably, the Board determined that the potential harms of such confinement to Plaintiffs and others similarly situated were great enough to wanant changes in procedures in the jail system. The Court agrees, and finds that Plaintiffs' interest is strong. This factor favors Plaintiffs.
b. Risk ofEnoneous Deprivation The second factor involves an examination of the procedures applied at the time of the deprivation. A pre-deprivation hearing is usually required to satisfY due process requirements, although post-deprivation process can be sufficient in certain circumstances. See Spinelli, 579 F. 3d at 170. "[N]ecessity of quick action by the State or the impracticality of providing any meaningful pre[-]deprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, can satisfy the requirements of procedural due process." Id. (quoting Catanzaro v. Weiden, 188
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F.3d 56, 61 (2d Cir. 1999)).5 For example, in Spinelli v. City ofNew York, the Second Circuit found that a pre-deprivation hearing was not required when a gun dealer's license was suspended because (l) the City and the public had a strong interest in security, and (2) the deprivation of rights was taken pursuant to the proper authority, in accordance with the designated mles and procedures. Id.
Both Plaintiffs have alleged that they did not receive sufficient notice oftheir transfer prior to being transferred to Albany, and that post-deprivation process (which they did not receive in any event) would be insufficient. (Am. Compl. ~~ 138, 213.) The City Defendants argue that the FAC alleges "exigent circumstances" justifying post-deprivation process, particularly with respect to Espinal, who was transferred after allegedly assaulting a member of the Rikers staff. (See City Defs.' Br. at 2; Defs.' Mem. of Law in Further Supp. of Mot. to Dismiss and/or for Order Joining State Commissions of Correction as Def. ("City Defs.' Reply Br."), Dkt. No. 75, at 3.) Furthermore, they argue that both Plaintiffs had post-deprivation process by virtue of "written notification of reasons for the transfer," and therefore, this not a circumstance in which there was a "total absence of process." Cf JS.R. ex rel JS.G. v. Sessions, 330 F. Supp. 3d 731,741-42 (D. Conn. 2018).
The first question for the Court is whether post-deprivation process - if it were provided (which it was not)- would be sufficient for each inmate as a matter oflaw, given the circumstances surrounding that particular inmate's transfer. According to the SJOs, Plaintiffs
5 Plaintiffs argue that post-deprivation remedies can suffice only for "random, unauthorized acts by state employees." Hellenic Am. Neighborhood Action Comm. v. City ofNew York, 101 F.3d 877, 880 (2d Cir. 1996). But the Hellenic court stated that, "When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process;" it did not say that post-deprivation procedures can never satisfy due process. Id. (emphasis added). Postdeprivation procedures can be sufficient when there is the "necessity of the quick action of the state." Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); see also Spinelli, 579 F.3d at 170.
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were transferred because of "safety considerations" and because the DOC facilities were "unfit" for their confinement. (Zuckerman Dec!. Exs. C-F.) Comis give strong deference to safety concerns with respect to jail conditions. See, e.g., Bell v. Wolfish, 441 U.S. 520, 547-48 (1979); Hewitt, 459 U.S. at 474 ("[A] decision that an inmate or group of inmates represents a threat to the institution's security would not be appreciably fostered by the trial-type procedural safeguards ....").
1. Washington Despite the fact that Washington's SJO says that he was transferred for "safety considerations," the FAC alleges no facts surrounding Washington's transfer that suggest "exigent circumstances" that would wan·ant forgoing pre-deprivation process. There are no allegations in the FAC that suggest that Washington was involved in any altercations prior to his transfer. Rather, the FAC alleges that he was transferred because Legal Aid contacted DOC on his behalf, after he informed them that he was groped by a DOC staff member and denied adequate health care. (Am. Compl. 4jl30.) In other words, the allegation is that he was transferred because he complained about mistreatment- as is his right. The City Defendants do not explain why Washington's making a complaint creates a "safety consideration" that would WatTant Washington's transfer, and why there were "exigent circumstances" that would prevent him from receiving pre-transfer process.6 Based on the allegations made in the FAC, Washington should have received pre-deprivation process. But Washington has alleged that he did not receive sufficient pre-deprivation process. The only notice Washington received was second-hand. As he was being strip-searched, the step
6 The City Defendants also do not contend that it would be difficult to provide pre-deprivation notice. Moreover, factual allegations suggest that it would be administratively feasible: In 2017, the New York City Council introduced a bill to amend the New York City Administrative Code to provide detainees with additional notice before transferring them out ofthe City by SJO. (Am. Compl. ~57 n.25.)
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prior to loading him into the van to take him to Albany, Washington was told that he was going to "Albany because Deputy Walker don't want you." (Am. Compl. ~ 136.) This off-handed comment is not adequate notice- Washington was given no official explanation for his transfer, including the reasons that DOC provided to the SCOC, which was that Washington was transfened for safety concerns. Upon his arrival in Albany, Washington was also not provided with notice ofthe reasons for the transfer, as the City Defendants suggest. (!d. ~ 489.) He was never given a hearing or an opportunity to challenge his transfer. If the FAC is believed, he was simply put into solitary after being beaten to a pulp.
Washington has, therefore, sufficiently alleged that post-deprivation process was inadequate and this factor of the Mathews test favors him. Furthermore, even if the FAC had alleged facts pointing to "exigent circumstances" sunounding Washington's transfer, wananting lack of a pre-deprivation hearing, Washington has also alleged that he also did not receive postdeprivation notice, so this factor would still favor him.
2. Espinal The FAC's allegations about Espinal's transfers do contain facts that the transfer was made under "exigent circumstances." Espinal was transfened from Rikers three days after his altercation with the COs. (Am. Compl. ~~ 203-04, 210.) From this, the Comi can infer that DOC may have needed to take quick action to ensure the safety of inmates, including Espinal, and that pre-deprivation process may not have been constitutionally required. But there is one other thing to consider before coming to any conclusions. In Spinelli, the court found that the State's failure to provide pre-deprivation process may be constitutional when there are exigent circumstances and when the State followed appropriate rules and procedures when depriving the individual of his rights. See Spinelli, 579 F.3d at 171 (finding predeprivation due process was not required when there were exigent circumstances and all rules
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were followed); see also United States v. All Assets ofStatewide Auto Parts, Inc., 971 F.2d 896, 903 (2d Cir. 1992) (following judicial procedures can afford some measure of protection for etToneous deprivation of property). Here, the FAC alleges that the City did not follow the procedures required to authorize Espinal's transfer. Written correspondence is required to authorize a transfer on an emergency basis, and Plaintiffs allege that they have no knowledge of written correspondence from the City to the SCOC. (Am. Compl. ~~56, 225.)
In any regard, even if the City followed appropriate procedures and the circumstances did not warrant pre-deprivation process, Espinal still had a right to post-deprivation process. Postdeprivation procedures should have included notice of the reasoning for the transfer and an opportunity to file an Article 78 petition challenging the transfer, which would satisfy the requirement of notice and the opportunity to be heard. See, e.g., Hellenic Am. Neighborhood Action Comm. v. City ofNew York, 101 F. 3d 877, 881 (2d Cir. 1996). Indeed, 9 NYCRR § 7210.8 requires that "the facility administrator of the receiving facility shall provide him immediately with a written notification of the reasons for his transfer." Id The FAC alleges that Espinal did not receive notice of the reasons for the transfer at all, even upon his arrival at ACCF. (Am. Compl. ~ 489.) This is sufficient to raise a due process concern, even if Espinal in fact had access to the Article 78 proceeding, an opportunity to be heard. See McCann v. Phillips, 864 F. Supp. 330, 339 (S.D.N.Y. 1994) ("The essence of the Due Process Clause is the principle that a person deprived of a protected liberty interest receive notice ofthe reason for, and some opportunity to be heard with respect to, that deprivation."). Moreover, Espinal's beating and detention in solitary may well have interfered with his ability to file an Article 78 proceeding-
something this Court cannot address on a pre-answer motion to dismiss.
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Because Espinal has sufficiently alleged that he did not receive sufficient process, this factor favors him as well.
c. The Govemment's Interest The third factor in the Mathews analysis is the Govemment's interest. The Court must weigh "the Govemment's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335. Courts continually recognize that the Govemment has an important interest in maintaining the safety and security ofjail facilities and inmates in its custody. As the Supreme Court has said, "The safety of the institution's guards and inmates is perhaps the most fundamental responsibility of the prison administration." Hewitt, 459 U.S. at 473. Nevertheless, while "prison officials are to be afforded deference in matters of institutional security, such deference does not relieve officials from the requirements of due process ... " Almighty Supreme Born Allah v. Milling, 876 F.3d 48, 56 (2d Cir. 2017), cert. dismissed, 139 S. Ct. 49 (2018). The relevant inquiry here is whether the City had an interest in not providing adequate process to Plaintiffs, whether that be pre-deprivation or post-deprivation. See Spinelli, 579 F.3d at 174. The Court sees no reason why the Government could not have provided Washington with notice and an opportunity to be heard prior to his transfer (or even after his transfer for that matter). None of the allegations in the FAC suggests that Washington's transfer needed to occur quickly, and without any notice to the Plaintiff. This factor favors Washington. The FAC also contains no allegations that would suggest that there was a reason why Espinal did not receive notice of the reason for his transfer after his transfer. Even though the Govemment has a strong interest in the safety and security of the jail facilities, this does not
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preclude it from providing notice of the reasons for a transfer. Indeed, notice is required by state law, which requires that the administrator of the receiving jail provide immediate notification of the reasons for the transfer. This factor also favors Espinal.
d. Analysis Balancing the Mathews factors, the Court finds that Washington and Espinal have alleged a procedural due process violation. The State has a strong interest in the safety of the inmate and the jail facilities, and Courts generally defer to the State's reliance on this fact when considering what due process is owed. But that does not excuse a failure to provide any notice of the reasons for depriving Plaintiffs of their rights, which is what is alleged to have occuned here for both Plaintiffs (notably, in violation of state law). Accordingly, because the FAC alleges that Plaintiffs received no notice of the reasoning for their transfer, Plaintiffs have successfully alleged that the process was not "constitutionally sufficient." Since Plaintiffs have plausibly alleged procedural due process violations, I tum to whether the City, Brann, and Williams can be held liable for these violations.
2. The City, Brann, and Williams are Proper § 1983 Defendants The City Defendants first argue that they cannot be held liable for transfen·ing Plaintiffs to Albany because the transfers were taken pursuant to SJOs issued by the SCOC, and the SCOC alone should be held responsible for the transfer. However, the Court will not permit the City Defendants to avoid liability for their role in the transfer by pawning it off to the SCOC (as they try to do consistently throughout their brief). As Plaintiffs have outlined for the Court, it is clear that both in theory and in practice, the City Defendants are the driving force behind the transfer process and so can be held liable for their actions. Indeed, the SCOC appears to be nothing more than a mbber stamp for the Facility Administrator's "recommendation."
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A § 1983 action, like its state tort analogs, employs the principle of proximate causation. Townes v. City ofNew York, 176 F.3d 138, 146 (2d Cir. 1999). "[T]ort defendants, including those sued under § 1983, are 'responsible for the natural consequences of [their] actions."' Kerman v. City ofNew York, 374 F.3d 93, 126 (2d Cir. 2004) (quoting Warner v. Orange Cty. Dep 't ofProbation, 115 F. 3d 1068, 1071 (2d Cir. 1991)). "The fact that the intervening third party may exercise independent judgment in detennining whether to follow a course of action recommended by the defendant does not make acceptance of the recommendation unforeseeable or relieve the defendant of responsibility." Id. at 127.
The procedures described by 9 NYCRR § 7210.6 and the practices discussed in Defendant Williams' affidavit confirm that the City is the driving force behind the u·ansfers. It is true that the SCOC approves the request, but there is nothing to suggest that the SCOC does any more than rubber stamp any request submitted by the City. See id. at 126 ("[A]n actor may be held liable for those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties.") (quoting Warner, 115 F.3d at 1071)). Neither party has argued that SJOs are ever denied or that there is any rigor to the approval process. The City Defendants make the recommendation for transfer and handle the majority of the logistics in preparation and implementation; thus, they cannot escape liability for the expected result of these actions.
I now tum to whether Plaintiffs have pleaded facts showing that these three defendants were sufficiently involved in Plaintiffs' alleged constitutional deprivation.
i. Individual Liability Washington and Espinal have pleaded facts showing that both Williams and Brann had personal involvement in their transfers and thus, directly participated in the alleged constitutional violation. Williams obtained the SJOs transferring Washington and Espinal to ACCF. (Am.
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Compl. ~~ 139, 227; Zuckerman Dec!. Exs. C & D.) And Brann, as the facility administrator, formally applied to the SCOC to issue the SJOs. (!d. ~ 54; Zuckerman Dec!. Exs. C & D.) It is clear that they both were personally involved in the transfer, which is directly related to the alleged constitutional violation. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 201 0).
ii. Municipal Liability Washington and Espinal have also pleaded facts to establish that the City can be held liable for the constitutional deprivation under a Monell theory of liability. Plaintiff proposes two theories of municipal liability. First, Plaintiffs allege that the City has a policy or custom of transferring inmates, who are otherwise subjected to 40 RCNY §l-17, out of DOC custody and into facilities where they will be subjected to the punitive measures and violence- and of doing so without providing notice. The FAC alleges that not only were both Washington and Espinal transfened without notice, but so were Tillery and Doe. (Am. Compl. ~~ 138,213,322, 413.) The FAC also alleges that these are not the only four young detainees who have been so transfened. (!d. 'j!~ 470-78.) Taking these allegations in a light most favorable to Plaintiffs, the Court can infer that the City has a custom of transferring these young inmates to ACCF without notice, which is sufficient to establish Monell liability. See also Bertuglia v. City ofNew York, 839 F. Supp. 2d 703,738 (S.D.N.Y. 2012) (denying motion to dismiss when plaintiffs pointed to specific cases of alleged policy and practice occuning); cf Triano v. Town ofHarrison, NY, 895 F. Supp. 2d 526, 536 (S.D.N.Y. 2012) (granting motion to dismiss when plaintiff failed to identifY any details about other instances of misconduct for failure to allege municipal policy or practice). Plaintiffs also argue that the City is liable under Monell because Brann is a "final municipal policyrnaker," and she acted in that capacity when requesting the SJOs pursuant to state law. Pursuant to Corrections Law § 504 and 9 NYCRR § 7210.6, the facility administrator
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provides the SCOC with the request and pertinent information for an SJO to be issued and the SCOC then approves the transfer request. Taking all allegations in a light most favorable to Plaintiffs, on a motion to dismiss, the Court finds that it is possible that Brann could be a "final municipal policymaker" because she ultimately makes the final decision as to whether detainees' transfer requests are submitted to the SCOC. See Gersbacher, 2017 WL 4402538, at *17 (describing relevant materials to consider when detetmining whether an official is a final municipal policymaker, including "custom or usage" and state and city laws).
The Motion to Dismiss the first cause of action is DENIED. C. Substantive Due Process Claims by All Plaintiffs Against the City, Brann, and Williams; by Washington Against Walker; and by Doe Against Sullivan (Count2)
In the second cause of action, all Plaintiffs bring substantive due process claims against the City, Brann, and Williams pursuant to§ 1983. Plaintiffs allege Defendants City, Brann, and Williams transferred Plaintiffs outside of the City for the purpose of punishing them. Plaintiff Washington also brings this claim against Defendant Walker, and Plaintiff Doe brings this claim against Defendant Sullivan.
1. Each Plaintiff Has Plausibly Alleged He Was Transferred As Punishment
Pretrial detainees have a due process right to be free from punishment - they cannot be subject to punishment "neither cmelly and unusually nor otherwise." Darnell v. Pineiro, 849 F. 3d 17, 29 (2d Cir. 2017) (internal quotation marks omitted). One form of punishment is punitive transfers- correction officials may not use inter-facility transfers to punish a pretrial detainee. See, e.g., Perez v. Ponte, 236 F. Supp. 3d 590, 615 (E.D.N.Y. 2017), report and recommendation adopted, No. 16-CV-645 (JFB)(AKT), 2017 WL 1050109 (E.D.N.Y. Mar. 15, 2017).
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Punitive purpose can be proven subjectively or objectively. See Kingsley v. Hendrickson, 135 S. Ct. 2466,2473 (2015), see also Darnell, 849 F.3d at 35 ("[T]he Due Process Clause can be violated when an official does not have subjective awareness that the official's acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm."). If a condition or restriction "is not reasonably related to a legitimate governmental objective- if it is arbitrary or purposeless- a comi permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted." Bell, 441 U.S. at 539.
To survive a motion to dismiss, each Plaintiff must allege that his transfer was "imposed for the purpose of punishment," and that it was not just "an incident of some other legitimate governmental purpose." Bell, 441 U.S. at 538; see also Kingsley, 135 S. Ct. at 2473.
The City Defendants argue that the substantive due process claim must be dismissed because there is no indication of expressed intent to punish any Plaintiff by any City Defendant by virtue of application to SJOs. They also argue that the City Defendants cannot be held liable for Plaintiffs' transfers because the transfers were made by the SCOC. (City Defs.' Br. at 1415.)
I first tum to whether each Plaintiff has alleged that his transfer was taken for the purpose of punishment.
1. Washington Plaintiffs contend that Washington was directly informed that he was being transferred as punishment. The FAC states that COs told Washington that he was being taken "OffRikers" because "Deputy Walker don't [sic] want you." (Am. Compl. ~ 136.) Taking this allegation in a light most favorable to Plaintiff, the Court can infer that Washington could have been transferred because he was not liked by a Rikers CO, an arbitrary reason that is not reasonably related to a government objective. See Perez, 236 F. Supp. 3d at 616 (finding fact that CO told Plaintiff that
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he was going to get treated like an "a**hole" and would be sent "far away where you won't be able to complain" sufficient to find transfer could have taken place with the intent to punish).
The Court can also infer that Washington's transfer was punitive because Washington was transferred within days of complaints being lodged with DOC on his behalf. This quick timeline suggests that the purpose of the transfer was punishment for complaining (which, of course, is retaliation, and is discussed in the context of Washington's First Amendment retaliation claim).
ii. Doe Similarly, Plaintiffs argue that Defendant Sullivan's statement to Doe demonstrates that Doe's transfer was punitive. Defendant Sullivan told Doe, "Soon enough we won't have to deal with your bullshit anymore. You're going somewhere good, somewhere that you'll like." (Id. -,r 319.) Drawing all reasonable inferences in favor of Plaintiffs, the Court can infer that Doe was also transferred to Rikers because he had drawn the ire of Rikers COs.
iii. Espinal and Tillery With respect to Espinal and Tillery, Plaintiffs recognize that their alleged assaults on staff "could have provided a legitimate safety justification for their transfer," but contend that this justification was in fact pretextual. (Pis.' Consolidated Mem. of Law in Further Supp. of Steven Espinal's Mot. for a Prelim. Inj. and in Opp. to the New York City Defs.' Mot. to Dismiss (Pis.' Br.), Dkt. No. 63, at 17.) In the alternative, they challenge the City's purported reason for transfening the Plaintiffs: Plaintiffs' own safety. The FAC cites to Mayor Bill de Blasio's statement that, "Occasionally we have to remove a prisoner from our conection system because there is an immediate threat to them and something that requires them being moved to another jurisdiction," as well as the August 2018 letter from DOC to Espinal's attorney in which the City said that
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Espinal was transfen·ed for his (Espinal's) continued safety and security. (Am. Compl. 'if'! 65,
206; Rosenfeld Dec!. Ex. 19.) Plaintiffs argue that transferring an inmate to protect him from violence by a jail's staff cannot constitute a legitimate govennnental purpose. Since the Court finds that Plaintiffs have plausibly alleged punitive intent, it is not necessary at this stage to determine whether transferring an inmate to protect him from the ire of the jail's staff is a "legitimate purpose," although the Court does note that these allegations suggest that there was intense animosity toward Plaintiffs by Rikers COs, which fmiher supports an inference of punitive intent for the transfers.
Several allegations in the FAC point to an inference that the City's justification for the transfers was pretextual, and that Plaintiffs have plausibly alleged punitive intent.
First, the transfers of Espinal and Tillery are alleged to have occurred quickly after these Plaintiffs were allegedly involved in altercations with staff. Taking this allegation in a light most favorable to Plaintiffs, this timeline suppmis an inference that the transfers were a punitive response to the incident. Of course, this could cut both ways -the transfer could have been because jail staff legitimately deemed their presence in the jail to be a threat to safety and security of the institution- but a motion to dismiss is not the place to make a choice between two plausible inferences.
Second, the FAC alleges that the City's use ofSJOs for "safety" or "security" reasons has increased since the passage of the ban on solitary confinement, and the number of detainees
under the age of 22 transferred for these purposes has doubled. (Am. Compl. 'if'! 61-62.) Taking
this fact in a light most favorable to Plaintiffs, it suggests that the increase in these SJOs is the result of the ban on solitary confinement, and demonstrates an intent to circumvent the regulation in order to punish inmates.
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Third, at the time of Washington and Tillery's transfers, Defendants are alleged to have been on notice of the abuses taking place in Albany, yet continued to transfer detainees there. (Am. Compl. ~~ 105-10.) Moreover, Defendant Williams said in a November 2018 affidavit in an unrelated Article 78 proceeding that, only ACCF has shown a "unique willingness" to accept transfened inmates with "violent infraction histories," indicating that he may have had knowledge that transfened inmates were being subjected to punitive treatment at ACCF. (Am. Compl. ~ 112; Pis.' Br. at 20-21.) Taken together, these allegations suggest the City was aware of what was going on at ACCF and transfened Plaintiffs anyway.
Fourth, Plaintiffs allege that inmates are sent to ACCF, despite the fact that the DOC has ample tools to isolate and control detainees, who can be placed in Enhanced Supervision Housing or restrictive housing at West Facility. (Am. Compl. ~~ 47-50.) They argue that this supports their assertion that safety was not the underlying motivation for the transfer.
Finally, Plaintiffs allege that Tillery was returned to Rikers less than four weeks after Plaintiffs commenced this lawsuit. (Id. ~ 467.) He was not told why he was transfened back to Rikers. (Id. at~ 468.) Plaintiffs argue that this suggests that any initial justifications that he could not be housed inNew York County because of "safety" were pretextual.
Considering these allegations together in a light most favorable to Plaintiffs, it is clear that Plaintiffs sufficiently allege facts that support a plausible inference of punitive intent on behalf of the City Defendants. Plaintiffs have alleged facts to support an inference that these transfers were unnecessary for safety reasons, that they were part of a pattern of pretextual transfers taken in response to the solitary confinement ban, and that, at least with respect to Washington and Tillery, the transfers were taken despite the fact that they were on notice of
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inhumane treatment at ACCF. This is sufficient for the Court to infer that, at the pre-answer stage, all Plaintiffs, including Espinal and Tillery, were transferred with punitive intent.
I now tum to whether Defendants City, Brann, Williams, Sullivan, and Walker can be held liable for the punitive transfers.
2. Plaintiffs Have Plausibly Alleged that Defendants City, Brann, Williams, Walker, and Sullivan are Proper§ 1983 Defendants
The City Defendants contend that the City, Brann, Williams, Walker, and Sullivan cannot be held responsible for the transfers, implying that they cannot be held responsible for any constitutional deprivation related to the transfer because of a lack of involvement in the transfer, (although they fail to make this connection in their brief). (City Defs.' Br. at 14-15.) They further argue that, even if the City Defendants can be held responsible for the transfers, the SCOC exercised independent judgment and therefore was an "intervening factor" that destroys the chain of causation. (City Defs.' Reply Br. at 4-5.)
For reasons I have already discussed, I find the City Defendants' attempt to avoid liability for their role in the transfer uncompelling. The City Defendants can be held liable for constitutional violations related to the transfers, despite the fact that the SJOs are apparently routinely approved by the SCOC.
i. Individual Defendants Plaintiffs have established that Williams and Brann were personally involved in the each one of Plaintiffs' transfers, and can be held liable nnder § 1983. As I have already addressed, Plaintiffs have alleged that Brann and Williams were the driving force behind the applications to the SCOC and instrumental in obtaining the transfers; therefore, they can be held liable for violations related to these transfers. (See infra II.B.2.i; Zuckerman Exs. C-F.)
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There are two additional individual Defendants on this claim. Washington brings a claim against Defendant Walker, and Doe brings a claim against Defendant Sullivan.
Washington alleges that COs told him that he was being transferred to Albany because "Deputy Walker don't want you." (Am. Compl. ~ 136.) This statement is sufficient for the Court to infer that Defendant Walker played a role in securing Washington's transfer, as it alleges that Walker was the driving force behind the transfer.
Doe alleges that, one day prior to his transfer to Albany, Defendant Sullivan told him, "Soon enough we won't have to deal with your bullshit anymore. You're going somewhere good that you'll like." (!d.~ 319.) Taking this fact in a light most favorable to Plaintiff, the Court can infer that Defendant Sullivan had a role in driving or enforcing the transfer, which would be sufficient for§ 1983 liability. See Terebesi v. Torreso, 764 F.3d 217,234 (2d Cir. 2014) ("In this Circuit, a 'direct participant' includes a person who authorizes, orders, or helps others to do the unlawful acts, even if he or she does not commit the acts personally.") At the very least, it is premature to dismiss the claim against Sullivan in a motion to dismiss.
ii. Municipal Liability Plaintiffs argue that the City can be held liable because it has an unconstitutional policy or custom of transferring detainees to Albany in order to punish them. As the earlier analysis of the substantive due process claim recognizes, the FAC contains allegations that support four separate instances where young detainees were transferred to Albany for the purposes of punishment. Cf T.P. ex rei. Patterson v. Elmsford Union Free Sch. Dist., No. 11 CV 5133 VB, 2012 WL 5992748, at *3 (S.D.N.Y. Nov. 27, 2012) (finding a single instance of misconduct insufficient to support allegations of policy or custom). In addition, Plaintiffs have alleged that, since the ban on solitary confinement for younger detainees went into effect, their transfer upstate has increased dramatically. (Am. Compl. ~~ 60-61.) The Court can reasonably infer
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from this fact that young detainees are being transfened to Albany so that they can receive punishment they could not receive at a DOC facility. This is not a legitimate reason for transfer. Accordingly, the Court finds that Plaintiffs have successfully alleged Monel/liability against the City for the punitive transfers.
The Motion to Dismiss the second cause of action is DENIED. D. Plaintiffs' Individual Causes of Action Against the City for Excessive Force, Sexual Assault, and Unreasonable Search (Counts 4, 5, 6, 9, 10, 11, 17, 21, 22, 23 & 27)
Each Plaintiff brings multiple claims against the City related to individual constitutional violations he suffered upon his anival in Albany. Plaintiffs argue that the City is liable for each of these claims because the City has a policy or custom of transfening inmates - particularly those under 22- to Albany, with the "knowledge and expectation" that these inmates will be subjected to sexual assault, unreasonable manual body cavity searches, excessive and unlawful force, and violent torture in violation of their constitutional rights. (See Am. Compl. ~~ 508, 514,520,525,534,540,546,551,576,591,596,602,607,622,627.)
Washington brings claims of excessive force (count 4), sexual assault (count 5), and unreasonable search (count 6). Espinal brings claims of excessive force (count 9), sexual assault (count 10), unreasonable search (count 11 ), and an additional claim of excessive force related to his July 4 incident (count 17). Doe brings claims of excessive force (count 21), sexual assault (count 22), and unreasonable search (count 23). Finally, Tillery brings an excessive force claim (count 27).
The City Defendants make three main arguments as to why all of these claims should be dismissed. First, they argue that the SCOC, not the City, was responsible for the transfers. Second, they argue that Plaintiffs have not plausibly alleged that the City knew of these abuses, such that any policy of transfers was taken with the knowledge and expectation that they would
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be subject to abuse. Third, they argue that there is no causal connection between the City's action and the deprivation of constitutional rights. (City Defs.' Br. at 18-19.)
Twice now I have addressed and rejected the City's first argument: the City can be held responsible for the transfers. (See infra II.B.2.ii; II.C.2.ii.)
Thus, I turn to the City's second argument- that Plaintiffs have not plausibly alleged that the City had a policy of transferring detainees to Albany with the knowledge that they would be subject to abuse.
Plaintiffs argue that the City has failed to act to stop these transfers, despite the fact that Rikers detainees have repeatedly informed the City that ACCF guards abuse Rikers detainees upon their arrival in Albany. Indeed, Plaintiffs allege that the City continues to consistently send young detainees to ACCF, as demonstrated by the increase in the transfer rate. (Pis.' Br. at 2122.)
To succeed on their claims, Plaintiffs must allege that the City policymakers who "speak with final policymaking authority ... concerning the action alleged to have caused the particular constitutional violation at issue" knew of the abuses in Albany at the time Plaintiffs were transferred. Jett, 491 U.S. at 737. Plaintiffs cannot show that the City was deliberately indifferent to what was occurring in Albany unless City officials knew what was occurring in Albany. See Reynolds, 506 F.3d at 192 ("Monell's policy or custom requirement is satisfied where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates' unlawful actions."); Vann v. City ofNew York, 72 F.3d 1040, 1049 (2d Cir. 1995).
To establish that the City lmew of the misconduct, Plaintiffs point to the cumulative effect of the following alleged facts: a February 16, 2018letter from a criminal defense attorney
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to DOC's general counsel explaining that his client had been beaten upon arrival at ACCF; Espinal's March 3, 2018 Notice of Claim; an Aprill2, 2018 Article 78 petition challenging an inmate's transfer to ACCF and alleging that the inmate was beaten and sexually assaulted upon arrival in Albany; a July 2018letter from Ruben Fernandez (Espinal's defense counsel) to Brann explaining that Espinal had been subject to beatings and mistreatment at ACCF; a July 22, 2018 New York Times articles describing the treatment ofRikers detainees at ACCF; and, an October 31, 2018 Article 78 petition in which a detainee alleges he experienced assault without any provocation upon his arrival in Albany. (Am. Compl. ~~ 106-111.)
Doe was transferred to Albany on January 17, 2018; Espinal was transferred on February 13, 2018. (See id. ~~ 210, 321, 324.). It is true that earliest form of official notice to the City that is identified in the Complaint- the February 16, 2018 letter- occurred shortly after Doe and Espinal had been transfeJTed.
Nevertheless, on a motion to dismiss, taking all allegations in favor of Plaintiffs, the Court cannot conclude that the City did not have knowledge of what was going on in Albany prior to transferring Doe and Espinal because Plaintiffs have alleged that Defendant Williams who procured Plaintiffs' SJOs, as well as SJOs transferring other pretrial detainees- allegedly had knowledge ofthe abuses in Albany, but continuously requested the SJOs anyway. Defendant Williams stated in an affidavit in an umelated Article 78 proceeding that "only Albany County Con·ectional Facility would be willing to house [inmates with histories of infections and violence], due to the facility's willingness in the past to accept and house inmates with similar violent infraction histories" and that he "believed" that no other closer jail would be "equipped to house and supervise dangerous, violent inmates." (Williams Aff. ,1~ 8-9.) Taking this statement in a light most favorable to Plaintiffs, the Court can infer that Williams
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consistently sent a subgroup of pretrial detainees to ACCF, detainees who were purportedly difficult to manage, without fully considering whether other facilities might house these inmates, and that it is very likely that he knew (and supported) what was being done at ACCF to "manage" these individuals. (Williams Aff. ~~5-6, 9.) Until the facts about what Williams knew and considered in each instance are developed, I cannot discount the possibility that Williams would have been able to house inmates at facilities closer to New York City, where there was no history of violent reception in the presence of DOC officers- all of which would have been more consistent with the letter and spirit of the regulation than sending them to ACCF was.
Moreover, since the FAC suggests that Williams makes the decisions about whether to apply for the transfers, I cannot reach a conclusion about whether Williams' knowledge could or could not be attributed to the City or that he did not communicate what he knew to others, such as Brann. See Bektic-Marrero v. Goldberg, 850 F. Supp. 2d 418,431 (S.D.N.Y. 2012) (denying motion to dismiss Monell claim when "high-ranking prison officials" were aware ofDOJ report detailing systemic constitutional failures similar to plaintiffs claim).
Furthermore, specifically with respect to Washington and Tillery, it is clear that the City had received formal notice such that it was "faced with a pattern of misconduct" as required for a deliberate indifference claim. Reynolds, 506 F. 3d at 192. At the time of Washington's transfer, high-ranking City officials had two fmms of notice, the February 16, 2018letter and Espinal's March 3, 2018 Notice of Claim. By the time of Tillery's transfer on August 9, 2018, not only had the City received multiple individual complaints- directed at Brann, who was responsible for requesting the transfers- but a story had run in the New York Times, on which the Mayor's office commented. (Am. Compl. ~~ 61, 65.) Defendant Tillery was sent to ACCF three weeks
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after the article was published. Taking these allegations in a light most favorable to Plaintiffs, they are sufficient for the Court to find that at the time of Washington and Tillery's transfers, the City could have been on notice that their transferred inmates would be abused See Okin v. Viii. ofCornwall-On-Hudson Police Dep 't, 577 F.3d 415, 440 (2d Cir. 2009) (finding "consistent pattern of failing to adequately respond to [] complaints" and failing to act lawfully sufficient was sufficient basis for Monell claim).
As to the City's third argument, Plaintiffs have also sufficiently pled causation. In the context ofMonel/liability, "proximate cause" "fairly describes a plaintiffs causation burden with respect to a municipal liability claim under§ 1983." Cash, 654 F.3d at 342. Here, Plaintiffs have alleged that the City was on notice that detainees were likely to be beaten when they were transferred to ACCF; thus, it was clearly foreseeable that such beatings would occur. If this be proved, the City can be held proximately liable for injuries suffered as a result of these beatings. Kerman, 374 F.3d at 127.
Finally, in their reply, the City Defendants raise two additional arguments, neither of which is persuasive. (City Defs.' Reply at 5-6.) The first is that Albany COs were not "subordinates" such that the City cannot be held responsible for "acquiescing" to their action. However, the City Defendants cite no law that suggesting that Albany COs were not acting as "subordinates" of the City; furthermore, they appear to ignore the fact the City is paying ACCF to house these inmates. (Am. Compl. ,, 55, 58.) The second argument is that there can be no constitutional violation for applying under established state law for a transfer to an "accredited institution." Here, too, the City Defendants cite no law supporting this argument, which fails on its face- the fact that ACCF is an accredited institution does not mean that its staff cannot
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commit unconstitutional acts of which the City was aware (and allegedly, of which it took advantage).
Accordingly, the Motion to Dismiss the fourth, fifth, sixth, ninth, tenth, eleventh, seventeenth, twenty-first, twenty-second, twenty-third, and twenty-seventh causes of action against the City is DENIED.
E. Plaintiffs Failure to Intervene Claims Against the City and Frank Foe COs (Counts 7, 12, 24 & 28)
Plaintiffs each bring a failure to intervene claim pursuant to § 1983 against both the City (under Monel[) and the particular DOC ESU COs responsible for transporting Plaintiffs to Albany: Washington brings his claim against Frank Foes #1-3 and the City (count 7); Espinal against Frank Foes #4-6 and the City (count 12); Doe against Frank Foes #7-9 and the City (count 24); and, Tillery against Frank Foes #10-12 and the City (count 28).
Plaintiffs argue that the Frank Foe COs knew the Albany Defendants were going to violate Plaintiffs' constitutional rights and that they had the opportunity to intervene to prevent them from doing so, but they failed to take reasonable steps to intervene. Plaintiffs argue that the City is liable for failing to intervene because it had a policy or custom of transferring Plaintiffs with the lmowledge that they would be subject to excessive and unlawful force.
The City Defendants do not argue that Plaintiffs have not been subjected to constitutional violations; rather, they claim the City Defendants are not proper defendants.
1. Individual Claims Against Frank Foe COs The City Defendants raise their opposition to the claims against the Frank Foe COs for the first time in their reply. (City Defs.' Reply Br. at 10.) First, they appear to be arguing that Plaintiffs should not be allowed to bring these claims, because they did not mention them at the conference this Court held on February 8, 2019. But these claims were pleaded in Plaintiffs'
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Complaint and FAC, both of which were filed prior to the February 8, 2019 conference. Moreover, the fact that Plaintiffs have not yet identified the Frank Foe Defendants is not problematic- "It is proper for a section 1983 plaintiffto use a 'Doe' pleading until such time as her identity can be learned through discovery or through the aid ofthe trial court." Cole v. Artuz, No. 97 CN. 0977 (RWS), 2000 WL 760749, at *6 (S.D.N.Y. June 12, 2000).
Second, the City Defendants argue that these claims should be dismissed because they are "conclusory." But they provide no argument explaining why the claims are "conclusory," merely citing Bouche v. City ofMount Vernon, No. 11 CN. 5246 SAS, 2012 WL 987592 (S.D.N.Y. Mar. 23, 2012). (City Defs.' Reply at 10.) In Bouche, the comt dismissed a failure to intervene claim as "vague and conclusory" when Plaintiff allaged that "defendants" had an affirmative duty to intervene but did not make clear which defendants he was referring to. Bouche, 2012 WL 987592 at *7. Here, Plaintiffs have pointed to unnamed but particular officers who "failed to intervene," so Bouche's reasoning is inapplicable. The Court will not dismiss the claims against the Frank Foe COs based on these grounds.
2. Municipal Liability Plaintiffs each bring a failure to intervene claim against the City, alleging that the City has a policy or custom of transferring detainees to Albany with the knowledge and expectation that they would be subject to excessive and unlawful force there. Tbis is the same theory underlying Plaintiffs' excessive force, sexual assault, and unreasonable search claims, which I have already addressed. For the reasons discussed in the context of these claims, Plaintiffs' claims for failure to intervene survive the motion to dismiss. Accordingly, the Motion to Dismiss the seventh, twelfth, twenty-fomth, and twentyeighth causes of action is DENIED.
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F. Espinal's Claims for Assault and Battery Against the City and Frank Foes #4-6 (Counts 13 & 14)
In the thirteenth and fourteenth causes of action, Espinal brings state law claims of assault and battery, respectively, against the City and Frank Foes #4-6, the DOC ESU COs responsible for transfetTing Espinal from Rikers to Albany. Again, the City Defendants do not argue that Espinal has not pleaded assault and battery, only that the Frank Foes and the City cannot be held liable.
1. Individual Liability of Frank Foes #4-6 The City Defendants argue that Espinal's claims against Frank Foes #4-6 are not meritorious or plausible, but provides no reasoning or case law to support their argument. "Under New York law, an assault is 'an intentional placing of another person in fear of imminent harmful or offensive contact.' A battery is 'an intentional wrongful physical contact with another person without consent."' Rivera v. Puerto Rican Home Attendants Servs., Inc., 930 F. Supp. 124, 132-33 (S.D.N.Y. 1996). The FAC alleges that Frank Foes #4-6 had knowledge ofthe Albany Defendants' intention to assault and batter Espinal, and that they provided substantial assistance by tmcuffing Espinal and handing him over to be assaulted and battered. (Am. Compl. ,, 218-19, 556, 561.) It also alleges that Espinal was assaulted and battered when he was threatened and physically abused by the Albany Defendants. (!d. ,, 228-263, 553, 558.) This is sufficient to state a claim that Frank Foes #4-6 participated in the commission of these intentional torts. See Herman v. Wesgate, 94 A.D. 938, 316 (4th Dep't 1983) (liability for tortious acts extends to all who actively take part in the act or lend aid or encouragement to the wrongdoer).
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2. The City's Liability The City mistakenly identifies these claims as Monell claims, but they are not. Monell liability attaches only to § 1983 claims. On these common law claims, Plaintiffs argue that the City can be held liable under a theory of respondeat superior. Plaintiffs provide two theories of respondeat superior liability. First, they allege that the City is liable for the conduct of Frank Foes #4-6, its employees who committed the battery and assault. Second, Plaintiffs allege that the City is liable for the ACCF COs' conduct, because these COs were acting as agents and servants of the City. "According to well-established New York law, an employer is only liable for the actions of an employee where the employee was engaged in the furtherance of the employer's business and the employer was, or could have been, exercising some control, directly or indirectly, over the employee's activities." Mahmood v. City ofNew York, No. 01 CN. 5899 (SAS), 2003 WL 21047728, at *2 (S.D.N.Y. May 8, 2003). "Under New York law, the City,just like any other private entity, is answerable for the conduct of its officers who commit common-law torts, such as assault and false imprisonment, when they are acting in the course of their employment." Williams v. City ofNew York, 121 F. Supp. 3d 354, 376 (S.D.N.Y. 2015) (internal quotations omitted). However, the City will not be liable for "torts committed by the employee solely for personal motives unrelated to the furtherance of the [City's] business." Vega v. Northland Mktg. Corp., 289 A.D.2d 565,566 (2d Dep't 2001).
It is perfectly clear that the City is potentially liable under a theory of respondeat superior for the actions of Frank Foes #4-6. At the time Frank Foes #4-6 engaged in the conduct alleged, they were City employ acting in the course of their employment.
The more complicated question is whether the City can also be held liable under respondeat superior for the actions of the Albany Defendants.
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When Espinal was assaulted and battered, he had been turned over to the Albany Defendants. But Plaintiffs argue that the City can still be liable for Espinal's damages resulting from these intentional torts because, at the time, Espinal was in the legal custody of the DOC. Plaintiffs have alleged that in an August 15, 2018letter to Espinal's attorney, the City represented that it transferred Espinal to ACCF pursuant to 9 NYCRR § 721 0.6(e) (rather than 9 NYCRR § 7210 (a-c)). Transfers under 9 NYCRR § 7210.6(e) occur when there are "extraordinary circumstances" and involve slightly different procedures for effectuating the transfer. Significantly, when a transfer is effected pursuant to subsection (e), the inmate remains in the legal custody of the facility administrator of the originating facility, even though he is in the physical custody ofthe new facility, until he is permanently transferred.
Defendants argue that 9 NYCRR § 7210.6(e) applies only to "extraordinary circumstances," and that Espinal's transfer did not meet this criterion. That may well prove true, but, taking the factual allegations of the FAC as true- and since the Court has seen the letter in which an assistant general cOlmsel for the City informed Espinal's attorney that he was transferred to ACCF pursuant to this part of the statute- I find that Plaintiffs have sufficiently alleged that Espinal was in the City's custody when he was subject to the abuses in Albany.
The question then becomes whether the Albany COs were acting as agents and servants of the City when they perpetrated an assault and battery on Espinal, such that the City can be held responsible for their behavior.
A principal-agent relationship may be established by evidence of the "consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act." See Fils-Aime v. Ryder TRS, Inc., 40 AD .3d 917, 918 (2007) (internal quotation omitted). By requesting that Espinal be transferred to ACCF pursuant to 9 NYCRR §
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7210.6(e), the City knew (or should have known) that Espinal would remain in its legal custody but would be transferred to another facility. By asking for this specific type of transfer, the City plausibly consented to permit staff at the destination facility to act on its behalf, and conferred authority to Albany with respect to Espinal's care, which Albany accepted by taking Espinal into its custody. See Sauter v. New York Tribune, 305 N.Y. 442,444-45 (1953) (describing delegation of authority in master-servant relationship). Moreover, the ACCF COs were undoubtedly acting in the course of their employment when they assaulted Espinal, and the City could have reasonably anticipated that the COs would commit an assault in these circumstances. See Ramos v. Jake Realty Co., 21 A.D.3d 744,745 (1st Dep't 2005). It is, therefore, presumable that, in these unique circumstances, the City could be held liable for the Albany Defendants' actions under a theory of respondeat superior. It would certainly not be appropriate to dismiss this claim until the facts have been fleshed out in discovery.
Accordingly, the Motion to Dismiss the thirteenth and fourteenth causes of action is
DENIED. G. Plaintiffs' Claims of Deliberate Indifference to Detainee Safety Against the City, Brann, and Williams (Count 33)
In the thirty-third cause of action, all Plaintiffs claim, pursuant to § 1983, that the City, Brann, and Williams exhibited deliberate indifference to their safety in violation of their Fourteenth Amendment rights by transfen·ing them to Albany. With respect to Brann and Williams, Plaintiffs allege that when transferring them to Albany, Brann and Williams acted intentionally to risk Plaintiffs' safety or recklessly failed to act with reasonable care to mitigate the risk to Plaintiffs' safety. With respect to the City, Plaintiffs allege that there was an official policy or custom of transferring selected detainees to ACCF with the knowledge and expectation that they would be subject to an unreasonable risk to their safety there.
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The City Defendants rely on the same arguments that they claim prohibit liability against them for the abuses that occurred in Albany- that they did not transfer Plaintiffs, that Plaintiffs have not alleged individual or municipal knowledge of the abuses, and that there was no causation. Those arguments are no more persuasive in this context than they were in the context in which they were initially raised.
· l. Individual Liability "Allowing an attack on an inmate to proceed without intervening is a constitutional violation in certain circumstances." Rosen v. City ofNew York, 667 F. Supp. 2d 355, 359 (S.D.N.Y. 2009) (internal citation omitted). Allegations that defendants have failed to provide detainees with reasonable safety are evaluated under a deliberate indifference standard. See Milo v. City ofNew York, 59 F. Supp. 3d 513, 524 (E.D.N.Y. 2014). This is a two-prong test: "First, the P1aintiffmust show that the challenged conditions of confinement were 'sufficiently serious to constitute objective deprivations of the right to due process;"' second, the plaintiff must show that the defendant '"acted with at least deliberate indifference to the challenged conditions."' Harris v. City ofNew York, No. 15-CV-6341 (NG) (JO), 2018 WL 1997974, at *4 (E.D.N.Y. Apr. 27, 2018) (quoting Darnell, 849 F.3d at 29). "To establish a claim for deliberate indifference ... , the pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety." Darnell, 849 F.3d at 35.
1. Williams All Plaintiffs have sufficiently alleged a deliberate indifference claim against Williams. As I have already discussed, as part of the FAC, Plaintiffs relied on an affidavit in which
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Williams explained that ACCF was continually willing to accept City inmates with "violent infractions histories" when no other jail would, and that he often sent such inmates to Albany. (Am. Compl. ~ 112.) Given the validity of the alleged facts, viewed in a light most favorable to Plaintiffs, the Court cannot conclude on a motion to dismiss that Williams was unaware that Albany was using force and other unconstitutional tactics to manage these detainees that other facilities did not want to accept. This is all the more true because of the allegations that the "Frank Foe" defendants- who were New York City COs- witnessed, and so understood, at least some of what occurred at ACCF upon arrival. Thus, Plaintiffs have sufficiently alleged that Williams should have known that Plaintiffs were being subjected to umeasonable risk to their safety by being transferred to Albany. Cf StetFart, 2018 WL 1633819, at *7 (granting motion to dismiss when complaint did not allege any individual defendant "was are or should have been aware" ofthe possibility of "excessive risk" to safety).
ii. Brann Plaintiffs also claim that Brann acted intentionally to endanger Plaintiffs' safety, or, in the alternative, that she failed to mitigate risk that she should have known about. Taking all allegations in favor of Plaintiffs, the Court cannot conclude on a motion to dismiss that Brann was unaware of what was going on in Albany, given the alleged knowledge of the Frank Foe COs as well as Williams, who worked with Brann to request the SJOs.
2. Municipal Liability For the reasons already discussed in the context of Plaintiffs' Monell claims against the City for abuses Plaintiffs experienced at ACCF, Plaintiffs' deliberate indifference claims against the City will not be dismissed - Plaintiffs have plausibly alleged that the City was on notice of what was occurring in Albany prior to the transfers, and nevertheless, subjected Plaintiffs to conditions that posed a risk to their safety. (See infra II.D, II.E.2)
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All ofthese issues will undoubtedly be raised again in post-discovery motions. For now, however, the Motion To Dismiss the thirty-third cause of action is DENIED.
H. Washington's First Amendment Claim against the City, Brann, Williams, and Walker (Count 3)
In the third cause of action, Plaintiff Washington alleges a First Amendment retaliation claim pursuant to § 1983 against the City, Brann, Williams, and Walker. He alleges that he was transferred as punishment for the fact that he lodged repeated complaints with the Legal Aid Society Prisoners' Rights Project. (Am. Compl. ,, 130-31,501, 503.)
"To sustain a First Amendment retaliation claim, a prisoner must demonstrate the following: '(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action."' Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489,492 (2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema NA., 534 U.S. 506 (2002).
The first and third factors are at issue here. The City Defendants argue that Washington has failed to plausibly identify an exercise of free speech and that he has not demonstrated an adequate causal connection between the speech and the transfer. The City Defendants do not argue that they did not take adverse action against the Plaintiff, or that these particular Defendants cannot be held liable.
Turning to the first factor, Washington has successfully pleaded an exercise of protected speech. In the prison context, the filing of a grievance is a protected activity. Gill, 398 F.3d at 384; see also Davis v. Goard, 320 F.3d 346, 352-53 (2d Cir. 2003). So is the filing of a lawsuit. See Espinal v. Goard, 558 F.3d 119, 129 (2d Cir. 2009). Furthermore, case law suggests that a prisoner's oral complaint may serve as the basis of a First Amendment claim. See Tirado v.
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Shutt, No. 13 CIV. 2848 LTS AJP, 2015 WL 774982, at *9 (S.D.N.Y. Feb. 23, 2015), report and recommendation adopted in part, No. 13CV2848-LTS-AJP, 2015 WL 4476027 (S .D.N.Y. July 22, 2015) (citing cases); see also, e.g., Varela v. Demmon, 491 F. Supp. 2d 442, 451-52 (S.D.N.Y. 2007).
Plaintiffs argue that Washington's complaints to the Legal Aid Society, which were passed on to DOC, were the "functional equivalent" of filing a grievance and an oral complaint, the only difference being that a third-party conveyed the complaint to DOC. (Pis.' Br. at 23.) The Court agrees. Washington lodged a complaint with Legal Aid, and Legal Aid contacted DOC on his behalf. This is akin to Plaintiffs filing an oral complaint himself. See Meriwether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir. 1989) (finding prisoners participated in speech when, among other activity, they corresponded with public interest organizations).
Legal Aid's complaint to DOC on behalf of Washington also shares key characteristics with a lawsuit, which is also a form of protected speech. In both instances, the complaint is made in a plaintiffs name, but is articulated by a third-party advocate in a better position to communicate the inmate's needs.
Turning to the third factor, to allege a causal connection, the plaintiff must demonstrate that the protected conduct was "a substantial or motivating factor for the adverse actions taken by prison officials." Dorsey v. Fisher, 468 F. App'x 25, 27 (2d Cir. 2012) (summary order). Temporal proximity can be sufficient to establish causation if a plaintiff demonstrates that the protected activity was "close in time" to the adverse action. Espinal, 558 F.3d at 129. There is no "bright line" for temporal proximity and a court exercises judgment based on the case at issue. Id. However, in the Second Circuit, "two to three months" is generally the limit. See
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Adams v. Ellis, No. 09 CIV. 1329 PKC, 2012 WL 693568, at *16 (S.D.N.Y. Mar. 2, 2012) (citing cases), aff'd, 536 F. App'x 144 (2d Cir. 2013).
Here, Plaintiff alleges that Legal Aid communicated his complaints to DOC on or about March 16 and March 26,2018, and that he was transfened on March 28,2018. The temporal proximity between the lodging of Washington's complaints and his transfer is sufficient to allege a causal connection between the speech and the adverse action.
For the reasons, the City Defendants' Motion to Dismiss the third cause of action is
DENIED. I. Plaintiffs' Right to Counsel Claims Against the City, Braun, and Williams (Count32)
In the thirty-second cause of action, Plaintiffs bring § 1983 claims against the City, Brann, and Williams, alleging that their transfer to ACCF violated their Sixth Amendment right
to counsel. The City Defendants make four arguments as to why these claims should be dismissed:
(1) the City Defendants cannot be held responsible for the transfers (an argument that I have repeatedly rejected); (2) the SCOC made findings that "safety concerns" justified the transfer, which makes them a reasonable restriction on the Sixth Amendment right (also rejected, since we cannot at present know what the SCOC did and did not do other than stamp the requests approved); (3) distance itself is insufficient for a Sixth Amendment claim; and, (4) Plaintiffs have not plausibly alleged that they were harmed or prejudiced by the distance. (City Defs.' Br.
at 15-17.) Pretrial detainees have a "constitutionally protected right to the effective assistance of
counsel," which attaches at the initiation of criminal proceedings. Cobb v. Aytch, 643 F.2d 946, 957 (3d Cir. 1981) (citing Kirby v. Illinois, 406 U.S. 682, 689 (1972)). Jail regulations that
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"unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid," but all regulations must be evaluated "in light of the central objective of prison administration, safeguarding of institutional security." Benjamin v. Fraser, 264 F.3d. 175, 184, 187 (2d Cir. 2001) (internal quotations omitted).
Courts have found the transfer of pretrial detainees between facilities that significantly interferes with access to counsel to violate the Sixth Amendment. See, e.g., Cobb, 643 F.2d at 957. In Cobb v. Aytch, the Third Circuit found that the transfer of pretrial detainees from Philadelphia to facilities ranging from 90-300 miles away from the city violated the Sixth Amendment. Id. at 949, 957. In making its decision, the Cobb court relied on "extensive findings" made by the district court with respect to the detainees' access to legal representation. Id. at 957. These findings included that interviews- both pre-trial and pre-sentencing- were "essential" to the detainees' defenses and that local public defenders lacked "resources of money and time" to effectively conduct these interviews at locations distant from the city. I d. at 951. The Second Circuit has twice recognized the validity of the Third Circuit's finding in Cobb, and has remanded a case to the district court to determine whether a transfer to a facility 56 miles away violated a detainees' Sixth Amendment Rights. See Covino v. Vermont Dep 't ofCarr., 933 F.2d 128, 130 (2d Cir. 1991); see also Benjamin, 264 F. 3d at 187.
In support of their Sixth Amendment claim against the City Defendants, Plaintiffs allege that ACCF's location- 160 miles from New York City- makes it extremely difficult for Plaintiffs' criminal defense attorneys to visit their clients. (Am. Compl., 114.) The affidavit of Ruben Fernandez, Plaintiff Espinal's attorney/ explains why the distance and the circumstances of the Albany facility make it "effectively impossible" for appointed criminal defense attorneys
7 The Court may consider the Ruben Affidavit as it was incorporated into the Complaint and the FAC. Te/labs, Inc., 551 U.S. at 322 (2007).
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to effectively counsel their clients. (Id. ~ 115; Aff. of Ruben Daria Fernandez ("Fernandez Aff."), Dkt. No. 37.)
As the City Defendants have pointed out, distance - even with the added hardships faced by a public defender- is not necessarily dispositive; adequately administered alternatives that allow an inmate to communicate with counsel despite him or her being located far from the court might ameliorate any interference with the detainee's Sixth Amendment right (even if they are not ideal). See United States v. Lucas, 873 F.2d 1279, 1280 (9th Cir. 1989). Plaintiffs have presented allegations that the "practical alternatives" available at ACCF are not sufficiently implemented to allow inmates the required assistance of counsel. (Fernandez Aff. ,11 0; see also Am. Compl. ~~ 115-23.) Fernandez's affidavit details that the alternatives provided by ACCFincluding videoconferencing and inmates' production in the Bronx- are inadequate because of poor quality of the videoconferences, a potential lack of privacy, lack of face-to-face contact to establish trust, and the fact that inmates are not produced for conferences and comi dates when they are supposed to be. (Fernandez Aff. ~~ 10, 13.) Plaintiffs have also alleged that there is no access to umecorded legal telephone calls. (Am. Compl. ~~ 118-23.)
Considering these allegations in a light most favorable to Plaintiffs, I find that they are sufficient to survive a motion to dismiss. The alleged distance from New York City to ACCF is greater than cases in which courts have found Sixth Amendment violations plausible. See Covino, 933 F.2d at 130; Cobb, 643 F.2d at 951. Fernandez's affidavit describes why the travel at issue in this case is not an insignificant burden on Plaintiffs' criminal defense attorneys, who are typically public defenders with large caseloads and a myriad of responsibilities, and also why the alternative forms of communication offered by ACCF are inadequate to ameliorate this burden. (Fernandez Aff. ~ 11.)
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Plaintiffs have also sufficiently alleged that they were harmed or prejudice. The FAC alleges that Plaintiffs were all housed significant distances from their attorneys, and in solitary confinement, where they were deprived of confidential legal phone calls. Cf McFadden v. Solfaro, No. 95 CIV. 1148 (LBS), 1998 WL 199923, at *9 (S.D.N.Y. Apr. 23, 1998) (denying Sixth Amendment claim based on far away transfer when Plaintiff offered no specific facts as to how and when he was denied access to counsel).
Of course, to win their case, Plaintiffs will have to establish that "safety issues" did not justify their transfers, despite the fact that the transfer may have burdened their right to counsel. They will also have to provide in more detail the injuries suffered by each Plaintiff as a result of their inadequate access to counsel. But at this stage, Plaintiffs have alleged facts sufficient to support their claim.
The Motion to Dismiss the thirty-second cause of action is DENIED. III. The City Defendants' Motion to Dismiss Pursuant to 12(b)(l)
The City Defendants also moved to dismiss Plaintiffs' claim for permanent injunctive relief for lack of subject matter jurisdiction.8
The City Defendants argue Plaintiffs lack standing to sue for injunctive relief as a class or otherwise. They contend that Plaintiff Espinal- the only Plaintiff who was still being housed at ACCF at the time the City Defendants filed their motion- failed to exhaust his administrative remedies, which would preclude him from bringing a claim for injunctive relief. But the City Defendants waived the PLRA exhaustion affirmative defense (see Dkt. No. 81), so if Espinal
8 The Court notes that there is not one claim that is specifically tied to the request for permanent injunctive relief. One would assume that the City is referring to counts one, two, thirty-two, and thirty-three, the claims brought by all Plaintiffs against the City, Brann, and Williams, which can be remedied with injunctive relief.
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were still in ACCF custody, the Motion to Dismiss for lack of standing would have been denied on this basis.
Since the filing of the briefs related to the Motion to Dismiss, Plaintiff Espinal was sentenced and (quite expediently) transferred to state custody. He is no longer being housed at ACCF. As a result, there is no basis to impose an injunction against Defendants with regard to his housing at ACCF.
This does not, however, mean that this action cannot be maintained- Espinal still has claims for damages- or that it cannot proceed as a class action. The fact that there was standing and a controversy when the case was filed is "sufficient ... to enable the suit to proceed as a class action." White v. Mathews, 559 F.2d 852, 857 (2d Cir. 1977); see also Sosna v. Iowa, 419 U.S. 393,402 n.11 (1975); Swisher v. Brady, 438 U.S. 204, 214 n. 11 (1978); Goetzv. Crosson, 728 F. Supp. 995, 1000 (S.D.N.Y. 1990) ("In instances where a named plaintiffs claim has become moot after a motion for class certification has been filed, the relation-back doctrine provides an exception to the mootness rule ... particularly when there is a 'particular concern' of the potential ability of the defendant to purposefully moot the named plaintiffs' claims after the class action complaint had been filed but before the class had been properly certified.").
In a footnote in their brief and then in one sentence in their reply, the City Defendants argue that class treatment would be improper in this case. The issue of class certification will be addressed in response to the Plaintiffs' Motion for Class Certification, which was filed on March 28, 2019, and which will be briefed after the release ofthis opinion.
Accordingly, the City Defendants' Motion To Dismiss pursuant to 12(b)(1) is DENIED.
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THE ALBANY DEFENDANTS' AND DEFENDANT MYLROIE'S MOTIONS FOR SEVERANCE AND TRANSFER TO THE NORTHERN DISTRICT OF NEW
YORK Both the Albany Defendants and Defendant Mylroie have moved to sever the claims against them from the claims against the City Defendants, and transfer these claims to the Northern District of New York. For the purpose of this motion, the Court relies on the facts taken from the FAC, discussed at the beginning ofthis opinion, which are assumed to be true. In addition, the Court considers additional material submitted by the parties in suppmi of the severance motion. See Dickerson v. Novartis Corp., 315 F.R.D. 18,23 n.l (S.D.N.Y. 2016). I. Legal Standard Federal Rule of Civil Procedure 21 provides that the court may "sever any claim against a party." Fed. R. Civ. P. 21. A trial court has "broad discretion" as to whether to grant a motion to sever. Gram v. Sou/Cycle LLC, 979 F. Supp. 2d 498, 502 (S.D.N.Y. 2013). A court appropriately exercises this discretion when severance "furthers the aims ofjustice, promotes judicial economy and efficiency, and avoids prejudicing the rights of any party." In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 214 F.RD. 152, 155 (S.D.N.Y. 2003). Nevertheless, severance is "a procedural device to be employed only in exceptional circumstances." Wausau Bus. Ins. Co. v. Turner Canst. Co., No. 86017, 2001 WL 963943, at *1 (S.D.N.Y. Aug. 23, 2001) (internal quotation omitted). The moving party "bears the burden of demonstrating that 'severance is required to avoid prejudice or confusion and to promote the ends ofjustice."' N Jersey Media Grp. Inc. v. Fox News Network, LLC, 312 F.R.D. 111, 114 (S.D.N.Y. 2015) (quotingAgnesini v. Doctor's Assoc., Inc., 275 F.R.D. 456,458 (S.D.N.Y. 2011)).
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Second Circuit courts consider the following factors when determining whether to sever a claim: "(I) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions oflaw or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for the separate claims." N. Jersey Media Grp. Inc., 312 F.R.D. at 114 (citing Oram, 979 F. Supp. 2d at 502-03). Some courts have granted severance when only one of these factors is present but generally, severance is granted when more than one condition is met. !d. (collecting cases); see also Oram, 979 F. Supp. 2d at 503.
If a court decides to sever some of the claims, it then considers whether the claims should be transferred - "Where certain claims are properly severed, the result is that there are then two or more separate 'actions,' and the district comt may, pursuant to§ 1404(a), transfer certain of such separate actions while retaining jurisdiction of others." Wyndham Assocs. v. Bintli.ff, 398 F.2d 614, 618 (2d Cir. 1968).
II. Discussion The Albany Defendants submit that Plaintiffs have attempted to "bootstrap" their claims
against the Albany Defendants to those against the City Defendants in order to establish venue in the Southem District of New York. They contend that the claims against them are separate and distinct causes of action, and that the two sets of claims should be tried in separate fora. They also argue that severance would further justice and judicial economy, as well as avoid prejudice, but they provide almost no reasoning as to why this is the case. (Mem. of Law in Supp. ofDefs.' Mot. for Severance and Transfer to the Northem District ofNew York ("Albany Defs.' Sev. Br."), Dkt. No. 59, at 5-6.)
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Plaintiffs argue that their structural reform case regarding the City's decision to send detainees to Albany is entwined with what actually occurred in Albany, and that their choice of forum should not be disturbed. They also argue that the parties, witnesses, and proof overlap substantially, and that piecemeal litigation would prejudice plaintiffs. (Pis.' Consolidated Mem. of Law in Opp. to the Albany County Defs. And Def. Mylroie's Mots. To Sever and Transfer the Case ("Pis.' Sev. Br."), Dkt. No. 69, at 6-12.)
The Court considers these arguments in the context of the five factors used by the Second Circuit to determine if severance is warranted.
A. Arise Out of the Same Transaction or Occurrence "While' [t]here is no rigid rule as to what constitutes the same series of transactions or occurrences,' courts 'repeatedly have interpreted the phrase "same transaction" to encompass "all logically related claims."'" N. Jersey Media Grp. Inc., 312 F.R.D. at 115 (quoting Agnesini, 275 F.R.D. at 458-59); see also Todaro v. Siegel Fenchel & Peddy, P.C., No. 04-CV2939JSWDW, 2008 WL 682596, at *2 (E.D.N.Y. Mar. 3, 2008) ("Applying this standard to motions to sever trials, district courts in this Circuit generally 'permit all logically related claims by or against different parties to be tried in a single proceeding.'" (quoting Blesedell v. Mobil Oil Co., 708 F.Supp. 1408, 1421 (S.D.N.Y. 1989)). Courts take a "case-by-case" approach to determine whether the circumstances constitute one transaction or occun·ence. See Costello v. Home Depot USA., Inc., 888 F. Supp. 2d 258, 263 (D. Conn. 2012). The Court finds that all of Plaintiffs' claims are logically related because they are all part of the single "transaction" of transferring Plaintiffs to ACCF with the intention- and result- that Plaintiffs would be subjected to punitive treatment upon their arrival. Plaintiffs have alleged that actions taken by the Albany Defendants are one part of the City Defendants' larger plan to punish Plaintiffs and others. Plaintiffs' claims depend both on what the City Defendants
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believed would occur in Albany, what actually occmTed, and any coordination between the City and Albany Defendants. It is clear that there is a significant relationship between the two sets of claims.
Notably, this case is unlike prisoner cases in which courts have found severance desirable because claims arose out of unrelated transactions or occurrences. For example, in James v. Osbourne, No. 11 CV 4182 NGG, 2012 WL 4849131, (E.D.N.Y. Apr. 18, 2012), report and recommendation adopted, No. 11-CV-4182 NGG CLP, 2012 WL 4849160 (E.D.N.Y. Oct. 11, 2012), a prisoner brought claims against COs at multiple correctional facilities. Id. at *5. The court severed the claims because the "incidents alleged to have occurred at these three facilities appear[ed] discrete," aside from a general allegation of conspiracy, which had no factual basis. Id. In Melendez v. Wilson, No. 04 CIV. 0073(PKC), 2006 WL 2621083, (S.D.N.Y. Sept. 12, 2006), plaintiff brought claims against 46 defendants and six "John Does," which arose out of 17 individual incidents occurring over two years at two facilities. Id. at *1. The Comt severed the claims arising out of incidents that occurred at a facility outside of its jurisdiction, and
transferred them to the Northern District, where venue was proper. Id. at *10. And, in Salgado
v. NYS Dep 't ofCorr. & Cmty. Supervision, No. 13-CV-01108-RJA-MJR, 2018 WL 1663255, (W.D.N.Y. Apr. 6, 2018), the court severed allegations of excessive force, retaliation, religious discrimination, and deliberate indifference that occurred at one correctional facility from those that occurred at two other facilities, both of which were located in a different district, because "they involve different defendants, locations and time periods as well as separate allegations of
wrongdoing." I d. at *3.
Unlike these cases, Plaintiffs' claims are not "discrete" and do not allege "separate allegations of wrongdoing." This case alleges a general scheme of transferring young prisoners
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out of New York County, where they cannot be kept in solitary confinement, to Albany, where they can be- the City's intent being to punish them and ensure they can be placed solitary confinement. The Albany Defendants are alleged to have acted as the City Defendants' agents for the purpose of punishing the young detainees. Thus, the claims against the City Defendants and the Albany Defendants should be kept together. While not all causes of action are brought against all Defendants, this does not mean that the claims may not be part of the same "transaction" or that they are "indirectly" related. Cf Wyndham, 398 F.2d at 618 (severance is appropriate when "defendants as to whom venue would not be proper in the transferee district are alleged to be only indirectly connected to the manipulations which form the main subject matter of the action").
B. Common Qnestions of Law or Fact It is clear that there are common issues of fact between the two sets of claims. The
details of what happened upon Plaintiffs' arrival at ACCF will be instrumental for both the claims against the City Defendants and the claims against ACCF Defendants.
Information about the assaults on Plaintiffs is relevant to the Plaintiffs' substantive due process claims against the City (count 2), the deliberate indifference claims against Defendant the City, Williams, and Brann (count 32), the failure to intervene claims against the City, Brann, and Frank Foe COs (counts 7, 12, 24, & 28), and Plaintiff Espinal's assault and battery claims (counts 13 & 14). And information as to why and how ACCF administrators determined to place Plaintiffs in punitive segregation- i.e., whether it was pretextual- is probative of Plaintiffs' substantive due process claims against the City Defendants and its procedural due process claims against the Albany Defendants (counts 1, 8, 20, 26 & 30).
Plaintiffs' claims against both the City Defendants and the Albany Defendants for denial of adequate access to legal counsel (counts 31 & 32) are another area of factual overlap. The
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adequacy of the legal services that Plaintiffs had access to at ACCF is relevant to potentially mitigate the hardships caused by the distance between the Bronx and Albany, and of course, is the underlying issue in the claim against the Albany Defendants.
C. Judicial Economy and Overlap of Evidence This factor turns on whether the Court believes that one trial is more efficient than two. "[O]ne trial is usually more efficient than two." N Jersey Media Grp. Inc., 312 F.R.D. at 117. The ultimate question is whether "separate trials will result in substantial overlap of witnesses or documentary proof." Costello, 888 F. Supp. 2d at 264 (emphasis in original) (internal citation omitted). Given that there are overlapping issues of fact, it is not surprising that there is also commonality of witness and evidence, despite the fact that the Albany Defendants' claim that "none ofthe New York City defendants would even take part in the litigation as it pertains to the Albany Defendants." (Albany Defs.' Sev. Br. at 6.) Plaintiffs have identified witnesses - such as Plaintiffs' criminal defense attorneys and the Albany County Defendants - whose testimony would be relevant to claims against both sets of Defendants, particularly those related to access to counsel. Plaintiffs contend that they will require evidence from Albany Defendants to determine the details of coordination between ACCF and Williams (and any other City Defendants involved in the transfer process) to support their substantive due process claims against the City Defendants (count 2), as well as for the "failure to intervene" claims against the Frank Foe COs and the City Defendants (counts 7, 12, 24 & 28). Evidence from Frank Foe COs responsible for transporting Plaintiffs from DOC custody to ACCF are also like to be necessary for Plaintiffs to support their abuse claims against the Albany Defendants. (Pis.' Sev. Br. at 8-9.)
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Defendants provide very limited evidence as to why severance would benefit judicial economy. Defendant Mylroie contends that her claims require different evidence and witnesses than the claims against the City Defendants, and that all ofthis evidence is located either at ACCF or the surr-ounding facilities. (Mem. of Law in Supp. ofDef. Mylroie's Mot. to Sever and Transfer ("Mylroie Br."), Dkt. No. 61-2, at 6-7.) Yet, medical records and any related testimony are likely to be relevant evidence in claims against ACCF and the City to demonstrate Plaintiffs'
injuries. Since there is at least some overlap of witnesses and evidence, which favors judicial
economy, these factors favor Plaintiffs. See Kirkv. Metro. Transp. Auth., No. 99 CN. 3787 (RWS), 2001 WL 25703, at *3 (S.D.N.Y. Jan. 10, 2001) ("The possibility of duplicate presentation of evidence at each trial weighs against severance."); German by German v. Fed. Home Loan Mortg. Corp., 896 F. Supp. 1385, 1401 (S.D.N.Y. 1995) (denying motion for severance when proof of many points would "in significant part require the testimony of the same witnesses and presentation of the same evidence as [would] be required in proving them against the other defendants").
D. Avoidance of Prejudice Courts consider how severance might avoid or generate prejudice to the Parties. "Severance is appropriate where a joint trial 'could lead to confusion of the jmy. "' Costello, 888 F. Supp. 2d at 265 (quoting Deskovic v. City ofPeekskill, 673 F. Supp.2d 154, 171 (S.D.N.Y. 2009). The Court balances the effect of severance on both Plaintiffs and Defendants. See, e.g., S.E.C. v. Parnes, No. 01 CIV 0763 LLS THK, 2001 WL 1658275, at *9 (S.D.N.Y. Dec. 26,
2001). Plaintiffs argue that "piecemeal" litigation would be both impractical and prejudicial.
Specifically, they assert that the Court should not transfer the excessive force and other abuse77

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related damages claims against the Albany Defendants to the Northern District of New York and apply collateral estoppel to the underlying facts, determining the City Defendants' liability for Plaintiffs' injuries at trial in the Southern District only if Plaintiffs prevail in Albany. 9 Plaintiffs argue that they cannot, and should not, have to pause their pursuit of injunctive relief while waiting for the Northern District to litigate, because they would then have to conduct discovery into the events at ACCF in two different cases simultaneously, which would be "costly and cumbersome." (Pis.' Sev. Br. at 10.)
The Albany Defendants have failed to address prejudice in the context of severance, aside from suggesting that it would be inconvenient for Defendants to travel to the Southern District of New York. But as Plaintiffs have pointed out, efficient discovery practices can limit this inconvenience, with the exception of travel for trial. (Pls.' Sev. Br. at 11 (suggesting depositions could be taken in Albany during designating period of time).)
Defendant Mylroie has argued that the case will prejudice her not only because of the distance but also because jurors will be confused between the claims of deliberate indifference and the constitutionality of Plaintiffs' transfer. She argues that her role will be "lost in the weeds" and the factual issues "significantly clouded." (Mylroie Br. at 8.)
This is not a circumstance where the claims against Mylroie are so umelated to the claims against the other Defendants to demonstrate that the jury would be significantly confused. Any potential prejudice could be ameliorated by specific instructions to the jury. See Tee Vee Toons, Inc. v. Rep Sales, Inc., No. 03 CIV. 10148 (JGK), 2009 WL 1422610, at *1 (S.D.N.Y. May 20, 2009) ("Careful instructions and limiting instructions can easily make clear the specific issues that the jury is called upon to decide."); see also Lutz v. Buono, No. 05 CIV. 4879 (GAY), 2009
9 This possibility was initially raised by tbe Court at the February 8, 2019 conference.
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WL 3364032, at* 1 (S.D.N.Y. Oct. 16, 2009) ("Juries in this District routinely decide cases involving multiple plaintiffs and multiple claims, and any risk that the jury may become confused can be addressed by clear jury instructions." (internal quotation removed)). Ultimately, the Albany Defendants have not established that they will experience prejudice if the claims are kept together.
E. Severance Is Not Warranted At This Time Based on these factors, the Court concludes that severance is not warranted at the stage of this litigation. The FAC alleges a scheme that, while driven by the City Defendants, was implemented by both the City and the Albany Defendants. As a result, there are significant overlapping issues of fact (and therefore, witnesses and evidence) between the claims that warrant keeping them together in one fmum in order to promote judicial efficiency and avoid significant prejudice. Discovery in this case will likely provide insight as to whether the evidence and witnesses necessary to support Plaintiffs' claims against the City Defendants and the Albany Defendants are in fact as intertwined as Plaintiffs have alleged. Accordingly, while the Court denies the motion to sever, it does so without prejudice to renewal if, after additional discovery, "such relief appears appropriate." United States v. Yonkers Bd. ofEd., 518 F. Supp. 191, 197 (S.D.N.Y. 1981); see also Lyons v. Litton Loan Servicing LP, No. 1:13-CV-513 ALC GWG, 2014 WL 5039458, at *6 (S.D.N.Y. Sept. 29, 2014) (concluding that "Rule 21 analysis suggests that severance is not warranted at this stage of the litigation" but finding it may be later in the action prior to trial).
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PLAINTIFF STEVEN ESPINAL'S MOTION FOR A PRELIMINARY INJUNCTION
Espinal filed a motion for preliminary injunctive relief on January 28,2019, asking that the Court order that he be held in a DOC facility in New York City during the pendency of his case and until he was released from DOC Custody.
On March 27,2019, Espinal was sentenced in his criminal case, after accepting an offer from the trial judge to plead guilty to the underlying criminal charges against him. (Dkt. No. 89.) On April4, 2019, Espinal was (very quickly) transfen·ed into state custody. As he is no longer being held at ACCF and is no longer in DOC custody, his preliminary injunction application is moot and is denied. (Dkt. No. 91.)
The Court recognizes, as Plaintiffs have pointed out, that while the transfer may moot Espinal's individual application for a preliminary injunction, it does not impact the pending motion for class certification, which may be deemed to relate back to the filing ofthe complaint. See Samele v. Zucker, 324 F Supp 3d 313,330 (E.D.N.Y. 2018).
ADDITIONAL ORDERS In addition to denying the various motions that are disposed of in this opinion, the Court issues the following separate orders. I. Valentin Order To the extent that this has not already occurred, the Defendant City of New York has fifteen days from the date of this opinion to provide counsel for Plaintiffs with the names and addresses of any and all COs who were involved in the transfer of the four named Plaintiffs to ACCF, including the "Frank Foe" defendants who accompanied Plaintiffs when they were taken to Albany. This Valentin order also extends to all COs who were involved in the altercation with Espinal at Rikers Island and the altercation with Tillery at the Brooklyn Detention Center.
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Case 1:18-cv-12306-CM Document 94 Filed 04/30/19 Page 81 of 82
Defendant Albany County also has fifteen days to provide the names and addresses of any and all COs who are alleged to have been involved in the assaults on Plaintiffs, including any "Frank Foe" defendants. See Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam).
II. Reference to Law Enforcement This lawsuit will play out in the ordinary course, with discovery, further motion practice
(which I view as inevitable), and, quite possibly, a trial. However, the Court is deeply troubled by the allegations of the FAC. Many of the actions pleaded therein would, if proved, constitute crimes under federal or state law, or both- whether as deprivations of civil rights or assaults. Barbarity of the sort alleged in the FAC cannot be tolerated in a civilized society; and when such conduct is plausibly alleged, it should be investigated by those responsible for enforcing the criminal law, not just litigated in a civil court.
I recognize that we are at the pre-answer motion stage in this lawsuit. But from the allegations of the FAC, there is reason to conclude, even at this early stage, that at least some of the horrors that are described in that pleading actually took place. Plaintiffs plausibly plead that a Justice of the New York State Supreme Court directed that Espinal be given medical attention when he was brought into the Bronx from Albauy for a court date, and that another Justice of that same court mandated that he be released from punitive segregation. It does not seem to me appropriate that such allegations should remain solely in the purview of civil litigation.
Accordingly, this Court hereby refers the allegations underlying the transfer and subsequent alleged mistreatment of the four named Plaintiffs to the following law enforcement agencies: the United States Attorney for the Southern District of New York; the United States Attorney for the Northern District of New York, the Albany County District Attorney, the New York County District Attorney, and the Queens County District Attorney.
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Case 1:18-cv-12306-CM Document 94 Filed 04/30/19 Page 82 of 82 CONCLUSION
For the above reasons, the City Defendants' Motion to Dismiss is DENIED. The Albany Defendants' Motion to Sever and Transfer and Defendant Mylroie's Motion to Sever are DENIED without prejudice. Plaintiff Steven Espinal's Motion for a Preliminary Injunction is DENIED. The Clerk of Court is respectfully directed to te1minate the motion at Docket Numbers 31, 48, 58,61 & 66 from the list of open motions. Dated: April 30, 2019
Chief Judge BY ECF TO ALL COUNSEL
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 Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 1 of 17

RICHARD D. EMERY ANDREW G. CELLI, JR. MATTHEW D. BRINCKERHOFF JONATHAN S. ABADY EARL S. WARD ILANN M. MAAZEL HAL R. LIEBERMAN DANIEL J. KORNSTEIN O. ANDREW F. WILSON ELIZABETH S. SAYLOR KATHERINE ROSENFELD DEBRA L. GREENBERGER ZOE SALZMAN SAM SHAPIRO

EMERY CELLI BRINCKERHOFF & ABADY LLP
ATTORNEYS AT LAW 600 FIFTH AVENUE AT ROCKEFELLER CENTER
10TH FLOOR NEW YORK, NEW YORK 10020
TEL: (212) 763-5000 FAX: (212) 763-5001 www.ecbalaw.com

DIANE L. HOUK
ALISON FRICK DAVID LEBOWITZ DOUGLAS E. LIEB ALANNA KAUFMAN EMMA L. FREEMAN
DAVID BERMAN ASHOK CHANDRAN
HARVEY PRAGER SCOUT KATOVICH

By ECF

October 18, 2019

The Honorable Colleen McMahon Chief United States District Judge Southern District of New York New York, New York 10007
Re: Washington et al. v. City of New York et al., No. 18-CV-12306

Your Honor:

On behalf of all parties, we write to inform the Court of the enclosed settlement agreement and to request that the Court so-order and enter the stipulation and order of dismissal annexed hereto.

Respectfully submitted,

/s/

Douglas E. Lieb

Encls. c. All counsel of record (by ECF)

Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 2 of 17

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

DAVON WASHINGTON, et. al.,

STIPULATION OF Plaintiffs, SETTLEMENT

-against-

18 CV 12306 (CM)

THE CITY OF NEW YORK, et. al.,

Defendants.

----------------------------------------------------------------------- x

WHEREAS, plaintiffs Davon Washington, John Doe, Pariis Tillery and Steven Espinal commenced this action by filing a complaint on or about December 28, 2018, a first amended class action complaint on or about January 28, 2019, and a second amended class action complaint on or about June 5, 2019, alleging that the defendants violated plaintiffs’ federal civil and related state law rights; and
WHEREAS, defendants denied any and all liability arising out of plaintiffs’ allegations; and
WHEREAS, the parties now desire to resolve the issues raised in this litigation, without further proceedings and without admitting any fault or liability; and
WHEREAS, plaintiffs have authorized their counsel to settle this matter on the terms set forth below;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows:
1. The above-referenced action is hereby dismissed against defendants, with prejudice, and without costs, expenses, or attorneys’ fees except as specified in paragraphs 2 through 10 below. Provided, however, that this Stipulation of Settlement does not prevent

Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 3 of 17
plaintiffs’ counsel from reinstating the lawsuit by amended complaint as set forth in paragraphs 14 or 18 herein in accordance with the parties’ “private settlement agreement” pursuant to 18 U.S.C. §3626(c)(2).
2. Defendant City of New York hereby agrees to pay plaintiff Davon Washington the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys’ fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraphs 11-12 herein, in full satisfaction of all claims, including claims for costs, expenses and attorneys’ fees. In consideration for the foregoing, plaintiff Davon Washington agrees to the dismissal of all the claims against the defendants and to release defendants City of New York, New York City Department of Correction, Commissioner Cynthia Brann, Brian Sullivan, Edward Williams, Sharlisa Walker, Patrick Paskett, Bonar Moise, Kirklon Morgan, Belteshazzar Reid, Te-Art Jackson, Gregory Lopez, Edwin Lopera, Courtney Corley, Aaron Crump, Robert McDonald, Jr. and Yupeng Cai; their successors or assigns; and all past and present officials, employees, representatives, and agents of the City of New York or any entity represented by the Office of the Corporation Counsel, from any and all liability, claims, or rights of action alleging a violation of plaintiff Davon Washington’s civil rights and any and all related state law claims, from the beginning of the world to the date of the General Release, including claims for costs, expenses, and attorneys’ fees, with the exception of any claims for damages, costs, expenses, and/or attorneys’ fees arising from an alleged slashing that occurred on or about June 3, 2019 in DOC custody. Provided, however, this agreement does not prevent plaintiffs’ counsel from reinstating the lawsuit by amended complaint as set forth in paragraph 14 herein in accordance with the parties’ “private settlement agreement” pursuant to 18 U.S.C. § 3626(c)(2).
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3. Defendant City of New York hereby agrees to pay plaintiff John Doe the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys’ fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraphs 11-12 herein, in full satisfaction of all claims, including claims for costs, expenses and attorneys’ fees. In consideration for the foregoing, plaintiff John Doe agrees to the dismissal of all the claims against the defendants and to release defendants City of New York, New York City Department of Correction, Commissioner Cynthia Brann, Brian Sullivan, Edward Williams, Sharlisa Walker, Patrick Paskett, Bonar Moise, Kirklon Morgan, Belteshazzar Reid, Te-Art Jackson, Gregory Lopez, Edwin Lopera, Courtney Corley, Aaron Crump, Robert McDonald, Jr. and Yupeng Cai; their successors or assigns; and all past and present officials, employees, representatives, and agents of the City of New York or any entity represented by the Office of the Corporation Counsel, from any and all liability, claims, or rights of action alleging a violation of plaintiff John Doe’s civil rights and any and all related state law claims, from the beginning of the world to the date of the General Release, including claims for costs, expenses, and attorneys’ fees. Provided, however, this agreement does not prevent plaintiffs’ counsel from reinstating the lawsuit by amended complaint as set forth in paragraph 14 herein in accordance with the parties’ “private settlement agreement” pursuant to 18 U.S.C. §3626(c)(2).
4. Defendant City of New York hereby agrees to pay plaintiff Pariis Tillery the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys’ fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraphs 11-12 herein, in full satisfaction of all claims, including claims for costs, expenses and attorneys’ fees. In consideration for the foregoing, plaintiff Pariis Tillery agrees to the dismissal of all the claims against the defendants and to release defendants City of New York, New York City Department
3

Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 5 of 17
of Correction, Commissioner Cynthia Brann, Brian Sullivan, Edward Williams, Sharlisa Walker, Patrick Paskett, Bonar Moise, Kirklon Morgan, Belteshazzar Reid, Te-Art Jackson, Gregory Lopez, Edwin Lopera, Courtney Corley, Aaron Crump, Robert McDonald, Jr. and Yupeng Cai; their successors or assigns; and all past and present officials, employees, representatives, and agents of the City of New York or any entity represented by the Office of the Corporation Counsel, from any and all liability, claims, or rights of action alleging a violation of plaintiff Pariis Tillery’s civil rights and any and all related state law claims, from the beginning of the world to the date of the General Release, including claims for costs, expenses, and attorneys’ fees. Provided, however, this agreement does not prevent plaintiffs’ counsel from reinstating the lawsuit by amended complaint as set forth in paragraph 14 herein in accordance with the parties’ “private settlement agreement” pursuant to 18 U.S.C. §3626(c)(2).
5. The County of Albany hereby agrees to pay plaintiff Davon Washington the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys’ fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraph 16, in full satisfaction of all claims, including claims for costs, expenses and attorneys’ fees. In consideration for the payment of this sum, plaintiff Davon Washington agrees to the dismissal of all the claims against the defendants and to release defendants County of Albany, Albany County Sheriff Craig Apple, Superintendent Michael Lyons, Anthony Torrisi, Mark Valvo, William Carhart, Frank Harris, Dan Poole, Michael Grimes, Anthony Colangione, Sonny Armstrong, Matthew Labombard, Josiah Haley, Michael Beliveau, Vincent Adams, Joseph Kelly, William Reddy, Damien Anzalone, Ryan Lawson, Jarred Jarosz, Thuan Ton, Timothy Kehn, Trent Shaver, Eugene Ratigan, Anthony Degonza, Kelly Thompson, Joseph Moore and Anthony Coppolo; their successors or assigns; and all past and present officials, employees,
4

Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 6 of 17
representatives, and agents of the County of Albany or any entity represented by the Office of the Albany County Attorney, from any and all liability, claims, or rights of action alleging a violation of plaintiff Davon Washington’s civil rights and any and all related state law claims, from the beginning of the world to the date of the General Release, including claims for costs, expenses, and attorneys’ fees. Provided, however, this agreement does not prevent plaintiffs’ counsel from reinstating the lawsuit by amended complaint as set forth in paragraph 18 herein in accordance with the parties’ “private settlement agreement” pursuant to 18 U.S.C. §3626(c)(2).
6. The County of Albany hereby agrees to pay plaintiff John Doe the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys’ fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraph 16, in full satisfaction of all claims, including claims for costs, expenses and attorneys’ fees. In consideration for the payment of this sum, plaintiff John Doe agrees to the dismissal of all the claims against the defendants and to release defendants County of Albany, Albany County Sheriff Craig Apple, Superintendent Michael Lyons, Anthony Torrisi, Mark Valvo, William Carhart, Frank Harris, Dan Poole, Michael Grimes, Anthony Colangione, Sonny Armstrong, Matthew Labombard, Josiah Haley, Michael Beliveau, Vincent Adams, Joseph Kelly, William Reddy, Damien Anzalone, Ryan Lawson, Jarred Jarosz, Thuan Ton, Timothy Kehn, Trent Shaver, Eugene Ratigan, Anthony Degonza, Kelly Thompson, Joseph Moore and Anthony Coppolo; their successors or assigns; and all past and present officials, employees, representatives, and agents of the County of Albany or any entity represented by the Office of the Albany County Attorney, from any and all liability, claims, or rights of action alleging a violation of plaintiff John Doe’s civil rights and any and all related state law claims, from the beginning of the world to the date of the General Release, including claims for costs, expenses, and attorneys’ fees. Provided,
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Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 7 of 17
however, this agreement does not prevent plaintiffs’ counsel from reinstating the lawsuit by amended complaint as set forth in paragraph 18 herein in accordance with the parties’ “private settlement agreement” pursuant to 18 U.S.C. §3626(c)(2).
7. The County of Albany hereby agrees to pay plaintiff Pariis Tillery the sum of Seventy Five Thousand ($75,000.00) Dollars, plus his pro rata share of attorneys’ fees as set forth in paragraph 9 herein, and to provide the relief set forth in paragraph 16, in full satisfaction of all claims, including claims for costs, expenses and attorneys’ fees. In consideration for the payment of this sum, Plaintiff Pariis Tillery agrees to the dismissal of all the claims against the defendants and to release defendants County of Albany, Albany County Sheriff Craig Apple, Superintendent Michael Lyons, Anthony Torrisi, Mark Valvo, William Carhart, Frank Harris, Dan Poole, Michael Grimes, Anthony Colangione, Sonny Armstrong, Matthew Labombard, Josiah Haley, Michael Beliveau, Vincent Adams, Joseph Kelly, William Reddy, Damien Anzalone, Ryan Lawson, Jarred Jarosz, Thuan Ton, Timothy Kehn, Trent Shaver, Eugene Ratigan, Anthony Degonza, Kelly Thompson, Joseph Moore and Anthony Coppolo; their successors or assigns; and all past and present officials, employees, representatives, and agents of the County of Albany or any entity represented by the Office of the Albany County Attorney, from any and all liability, claims, or rights of action alleging a violation of plaintiff Pariis Tillery’s civil rights and any and all related state law claims, from the beginning of the world to the date of the General Release, including claims for costs, expenses, and attorneys’ fees. Provided, however, this agreement does not prevent plaintiffs’ counsel from reinstating the lawsuit by amended complaint as set forth in paragraph 18 herein in accordance with the parties’ “private settlement agreement” pursuant to 18 U.S.C. §3626(c)(2).
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Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 8 of 17
8. Defendant County of Albany hereby agrees to pay plaintiff Steven Espinal the sum of Two Hundred Twenty Thousand ($220,000.00) Dollars, plus his pro rata share of attorneys’ fees to be paid by the County of Albany as set forth in paragraph 9 herein, and to provide the relief set forth in paragraphs set forth in paragraph 16, in full satisfaction of all claims, including claims for costs, expenses and attorneys’ fees. In consideration for the payment of this sum, plaintiff Steven Espinal agrees to the dismissal of all the claims against the defendants and to release defendants County of Albany, Albany County Sheriff Craig Apple, Superintendent Michael Lyons, Anthony Torrisi, Mark Valvo, William Carhart, Frank Harris, Dan Poole, Michael Grimes, Anthony Colangione, Sonny Armstrong, Matthew Labombard, Josiah Haley, Michael Beliveau, Vincent Adams, Joseph Kelly, William Reddy, Damien Anzalone, Ryan Lawson, Jarred Jarosz, Thuan Ton, Timothy Kehn, Trent Shaver, Eugene Ratigan, Anthony Degonza, Kelly Thompson, Joseph Moore and Anthony Coppolo; their successors or assigns; and all past and present officials, employees, representatives, and agents of the County of Albany or any entity represented by the Office of the Albany County Attorney, defendants City of New York, New York City Department of Correction, Commissioner Cynthia Brann, Brian Sullivan, Edward Williams, Sharlisa Walker, Patrick Paskett, Bonar Moise, Kirklon Morgan, Belteshazzar Reid, Te-Art Jackson, Gregory Lopez, Edwin Lopera, Courtney Corley, Aaron Crump, Robert McDonald, Jr. and Yupeng Cai; their successors or assigns; and all past and present officials, employees, representatives, and agents of the City of New York or any entity represented by the Office of the Corporation Counsel from any and all liability, claims, or rights of action alleging a violation of plaintiff Steven Espinal’s civil rights and any and all related state law claims, from the beginning of the world to the date of the General Release, including claims for costs, expenses, and attorneys’ fees. Provided, however, this agreement
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Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 9 of 17
does not prevent plaintiffs’ counsel from reinstating the lawsuit by amended complaint as set forth in paragraph 18 herein in accordance with the parties’ “private settlement agreement” pursuant to 18 U.S.C. §3626(c)(2).
9. Defendant City of New York hereby agrees to pay plaintiffs the total sum of Two Hundred Thousand Dollars ($200,000) and the County of Albany agrees to pay plaintiffs the total sum of One Hundred Thousand Dollars ($100,000) in full satisfaction of any costs, expenses and attorneys’ fees. Plaintiffs have assigned their rights to attorneys’ fees, costs and expenses to their attorneys, the law firm of Emery Celli Brinckerhoff and Abady LLP. As such, said check for attorneys’ fees will be made payable to plaintiffs’ attorneys, Emery Celli Brinckerhoff and Abady LLP.
10. Defendant Nurse Melissa “Missy” Mylorie agrees to pay plaintiffs the total sum of Ten Thousand ($10,000) in full satisfaction of all claims, including claims for costs, expenses and attorneys’ fees. In consideration for the payment of this sum, plaintiffs agree to the dismissal of all claims against the defendant Nurse Melissa “Missy” Mylorie and to release defendant.
11. The City of New York agrees that it will not seek substitute jail orders to transfer any inmates in the custody of the New York City Department of Correction (“DOC”) to the Albany County Correctional Facility from the date of execution of this agreement through December 31, 2021, inclusive.
12. The City of New York agrees that each and every DOC inmate transferred outside of the City of New York upon a substitute jail order shall, after the inmate is safely secured in the vehicle transporting him/her, be provided in the vehicle before it departs with a written “notice” of transfer. Said notice need not be provided when DOC is in possession of
8

Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 10 of 17
credible intelligence or observable inmate behavior clearly suggesting that serving the inmate with the notice will put DOC staff or other inmates at risk of harm or injury. The “notice” shall contain at least the following terms:
a. Where the inmate is being transferred: b. That the transfer is pursuant to a substitute jail order; c. The reason for the transfer; d. That the inmate will be brought back to New York City for court dates; e. That the inmate will be subject to the rules and regulations of the new jail, including rules about visiting; f. That the new jail is governed by New York State’s Minimum Standards for Management of County Jails; g. That the inmate has the right to make phone calls to the inmate’s lawyer; and h. That if the inmate wants to talk to his lawyer to let them know where they are being moved the inmate, he/she should ask the staff at the new jail. The form of “notice” annexed to this Stipulation of Settlement as Exhibit A is an example of such complying “notice” with the terms of this Stipulation of Settlement. 13. The City’s agreements in paragraphs 11 and 12 herein are expressly made pursuant to a “private settlement agreement” in accordance with 18 U.S.C. § 3626(c)(2). 14. Plaintiffs’ counsel and the City shall make a good faith effort to resolve any disputes that may arise under paragraphs 11 and 12 of the Stipulation of Settlement. In the event of non-compliance with the terms of paragraphs 11 or 12 of the Stipulation of Settlement, plaintiffs’ counsel may seek judicial relief only by reinstating this lawsuit limited to the material
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Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 11 of 17
breach of such non-monetary provision in accordance with 18 U.S.C. §3626(c)(2)(A) by amended complaint to assert the claims of any person allegedly injured by such non-monetary breach of paragraphs 11 or 12 of this Stipulation of Settlement. Prior to reinstating this lawsuit as set forth herein, plaintiffs’ counsel shall notify the City in writing to the New York City Law Department and the DOC General Counsel’s Office of the specific grounds and facts upon which plaintiffs’ counsel alleges non-compliance with paragraph 11 or 12 of the Stipulation of Settlement. The City shall respond within thirty (30) calendar days. If the dispute is not resolved, plaintiffs’ counsel shall notify the City by letter and request that counsel meet and confer. Plaintiffs’ counsel and the City shall meet within ten (10) business days of plaintiffs’ counsel’s notice or on some other date mutually agreed upon by counsel, in an attempt to arrive at an amicable resolution of the dispute. Nothing said by any party or counsel for any party during any and all meetings held pursuant to this section may be used by any party in subsequent litigation in this or any other lawsuit. If the dispute remains unresolved five (5) business days following the conclusion of such meeting or meetings, or if the City does not respond to plaintiffs’ counsel’s initial notice of dispute within thirty (30) days of that notice or if counsel do not meet and confer (or agree to a date to meet and confer) within ten (10) business days of plaintiffs’ counsel’s request to meet and confer, the City shall be so informed by plaintiffs’ counsel in writing, and plaintiffs may then, in connection with the matters which plaintiffs’ counsel identified to the City, reinstate the lawsuit by amended complaint limited to the alleged breach of the non-monetary provision set forth in paragraph 11 or 12 above no sooner than ten (10) days from the written notice referenced herein. Plaintiffs’ counsel’s compliance with the procedures outlined above is a condition precedent to any reinstatement of this lawsuit. Should plaintiffs’ counsel prevail in establishing a material breach of paragraph 11 or 12 of this
10

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Stipulation of Settlement upon any reinstatement, plaintiffs’ counsel shall be entitled to a recovery of reasonable attorneys’ fees and costs.
15. The agreement of the City of New York as set forth in paragraph 14 herein shall remain in effect until December 31, 2021.
16. The County of Albany agrees that, from January 1, 2022 to December 31, 2023, inclusive, any DOC detainees housed at the Albany County Correctional Facility pursuant to a substitute jail order shall be subject to the provisions set forth in 40 R.C.N.Y. §§ 1-17(a-g) concerning punitive segregation.
17. The County’s agreement in paragraph 16 herein is expressly made pursuant to, in accordance with, and within the meaning of, 18 U.S.C. § 3626(c)(2).
18. Plaintiffs’ counsel and the County shall make a good faith effort to resolve any disputes that may arise under paragraph 16 of the Stipulation of Settlement. In the event of non-compliance with the terms of paragraph 16 of the Stipulation of Settlement, plaintiffs’ counsel may reinstate this lawsuit by filing an amended complaint to assert the claims of any person allegedly injured by such non-monetary breach of paragraph 16 of this Stipulation of Settlement. Prior to this lawsuit as set forth herein, plaintiffs’ counsel shall notify the County in writing to the Office of the Albany County Attorney of the specific grounds and facts upon which plaintiffs’ counsel alleges non-compliance with paragraph 16 of the Stipulation of Settlement. The County shall respond within fourteen (14) calendar days. If the dispute is not resolved, plaintiffs’ counsel shall notify the County by letter and request that counsel meet and confer. Plaintiffs’ counsel and the County shall meet (in person or by telephone conference) within five (5) business days of plaintiffs’ counsel’s notice or on some other date mutually agreed upon by counsel, in an attempt to arrive at an amicable resolution of the dispute. Nothing
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Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 13 of 17
said by any party or counsel for any party during any and all meetings held pursuant to this section may be used by any party in subsequent litigation in this or any other lawsuit. If the dispute remains unresolved five (5) business days following the conclusion of such meeting or meetings, or if the County does not respond to plaintiffs’ counsel initial notice of dispute within fourteen (14) days of that notice or if counsel do not meet and confer (or agree to meet and confer) within five (5) business days of plaintiffs’ counsel’s request to meet and confer, the County shall be so informed by plaintiffs’ counsel in writing, and plaintiffs may then, in connection with the matters which plaintiffs’ counsel identified to the County, reinstate the lawsuit limited to the alleged breach of the non-monetary provisions set forth in paragraph 16 above no sooner than five (5) business days from the written notice referenced herein. Plaintiffs’ counsel’s compliance with the procedures outlined above is a condition precedent to any reinstatement of this lawsuit. Should plaintiffs’ counsel prevail in establishing a material breach of paragraph 16 of this Stipulation of Settlement upon any reinstatement, plaintiffs’ counsel shall be entitled to a recovery on reasonable attorneys’ fees and costs.
19. Plaintiffs hereby agree that a violation of paragraph 12 or any section contained herein by the City of New York shall not provide the basis for reinstatement of this lawsuit as against the County of Albany or any agency/employee thereof.
20. Plaintiffs shall execute and deliver to the defendants’ attorneys all documents necessary to effect this settlement, including, without limitation, General Releases based on the terms of paragraphs 2 through 8 above and Affidavits of Status of Liens. Prior to tendering the requisite documents to effect this settlement, Medicare-recipient plaintiffs must obtain and submit a final demand letter from Medicare for the reimbursement of any conditional payments made by Medicare for any injury or condition that is the subject of this lawsuit. A Medicare Set-
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Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 14 of 17
Aside Trust may also be required if future anticipated medical costs are found to be necessary pursuant to 42 U.S.C. § 1395y(b) and 42 C.F.R. §§ 411.22 through 411.26.
21. Nothing contained herein shall be deemed to be an admission by the defendants that they have in any manner or way violated plaintiffs’ rights, or the rights of any other person or entity, as defined in the constitutions, statutes, ordinances, rules or regulations of the United States, the State of New York, or the City of New York or any other rules or regulations of any department or subdivision of the City of New York. This stipulation shall not be admissible in, nor is it related to, any other litigation or settlement negotiations, except to enforce the terms of this agreement or the right of reinstatement by amended complaint as set forth in paragraphs 14 or 18 herein.
22. Nothing contained herein shall be deemed to constitute a policy or practice of the City of New York or any agency thereof.
23. Nothing contained herein shall be deemed to constitute a policy or practice of the County of Albany or any agency thereof.
24. Plaintiffs agree to hold harmless the City of New York regarding any liens or past and/or future Medicare payments, presently known or unknown, in connection with this matter. If conditional and/or future anticipated Medicare payments have not been satisfied, the City of New York reserves the right to issue a multiparty settlement check naming Medicare as a payee or to issue a check to Medicare directly based upon Medicare’s final demand letter.
25. Plaintiffs agree to hold harmless the County of Albany regarding any liens or past and/or future Medicare payments, presently known or unknown, in connection with this matter. If conditional and/or future anticipated Medicare payments have not been satisfied, the
13

Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 15 of 17

County of Albany reserves the right to issue a multiparty settlement check naming Medicare as a

payee or to issue a check to Medicare directly based upon Medicare's final demand letter.

26. This Stipulation of Settlement contains all the tenns and conditions agreed

upon by the parties hereto, and no oral agreement entered into at any time nor any written

agreement entered into prior to the execution of this Stipulation of Settlement regarding the

subject matter of the instant proceeding shall be deemed to exist, or to bind the parties hereto, or

to vary the terms and conditions contained herein.

Dated: New York,New York
October 1,3 , 2019

·sy: E'MERY CELLI BRINCKERHOFF &ABAOYLLP
@1<c Y/.32
Ka-rJ,{erine Rosenfeld Douglas B. Lieb 600 Fifth Avenue, 101h Floor New York, New York 10020
LAW OFFICES OF GOLDMAN & ASSOCIATES Steven Goldman 190 East 161st Street Bronx, New York 10451
Counselfor Plaintiffs
BY: PHELAN, PHELAN & DANEK, LLP

Senior Counsel 100 Church Street
New York, New York 10007

Counselfor City Defendants

BY: OFFICE OF THE ALBANY

COUNTY ATIORNE~

~~//e; John W. L1guon

/cJ~ ?

Michael L. Goldstein

/

112 State Street, Room 600

Albany, New York 12207

Timothy . Brennan 300 Great Oaks Boulevard, Suite 315 Albany, New York 12203

Counselfor Albany Defendants

Counselfor Defendant My/rote

14

Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 16 of 17
Exhibit A

Case 1:18-cv-12306-CM Document 166 Filed 10/18/19 Page 17 of 17

Section I: Inmate’s Information (To Be Completed by OSIU)

Inmate Name (Last, First):

Date:

B+C#: Sending Facility:

NYSID:
I

SRG (if Applicable):
I
Receiving Jurisdiction:

Section II: Reason(s) for SJO (To Be Completed by OSIU)(Select All That Apply)

x Member of Service/Law Enforcement

x Persistent Perpetrator of Violent Incidents

x Testifying

x Perpetrator of Serious Assault

x Court Order

x Safety and Security

x Notoriety/Extensive Media Coverage

x Other (Must describe below)

Section III: Description of Reason(s) for SJO (To Be Completed by OSIU)
**Note: Attach all supporting documentation, including disciplinary infraction dispositions, if applicable**

Section IV: Notice to Inmate
You are hereby notified that you are being transferred pursuant to a Substitute Jail Order to the Receiving Jurisdiction indicated above in Section I. The reason for your transfer is indicated above in Sections II and III.

You are hereby notified of the following: 1. You will be brought back to New York City for court dates. 2. Upon your transfer you will be subject to the rules and regulations of the receiving jurisdiction, including rules about visiting. 3. The receiving jurisdiction is governed by New York State’s Minimum Standards for Management of County Jails. 4. You have the right to make phone calls to your attorney.
5. If you wish to speak with your attorney to let them know where you are being transferred,
you should ask staff at the receiving jurisdiction.

Section V: Service (To Be Completed by Transporting Staff)

Date of Transport:

Time of Transport:

Print Full Name and Rank of Staff Providing Notice: Shield Number:

Signature of Staff Providing Notice:

Distribution: OSIU (Original); Inmate’s Legal Folder (Copy 1); Inmate (Copy 2)