UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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KADEEMJOHN

USDCSDNY
DOCUMENT ELECTROl'\ICALLY FILED DOC#: ______~~---
DATE FILED: 7('lV7.-

-against-

Plaintiff.

CITY OF NEW YORK., et al.

11 CV 5610 (RPP) OPINION AND ORDER

Defendants.
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ROBERT P. PATTERSON, JR., U.S.D.J.

Defendants in this matter have repeatedly failed to adhere to this Court's orders

mandating production of documents responsive to Plaintiffs document requests served on

Defendants in November of2011. Specifically, Defendants have failed to produce all documents

responsive to Document Requests Nos. 9, 21, 14 and 25. Furthermore, Defendants have failed to

confirm that they produced all documents responsive to Document Requests Nos. 10, 14, 15, 18, 25, and 27. 1 For the reasons stated herein, the Court will impose sanctions on Defendants for

repeatedly failing to comply with this Court's discovery orders.

I. Background

A. The April 23, 2012 Conference

On August 12, 2011, Plaintiff, an inmate at the Robert N. Davoren Center ("RNDC") at

Rikers Island, filed a Complaint alleging that correction officers at RNDC failed to protect

Plaintiff as he was assaulted by other inmates on June 26,2010, while in the custody ofthe New
I Document Requests Nos_ 14, 15, 18, 21, and 27 all concern documents that relate to inmate-on-inmate assaults at RNDC from June 26, 2007 to the present. Document Request No.9 seeks '"the personnel files and institutional files of each of the 2LN Officers, including the pre-employment psychological screening tests and evaluations.'' Document Request No. 10 seeks "the most recent DOC "22R forms'' prepared for each of the 2LN Officers." Letter of Adam R. Pulver dated April 11, 2012 at 4-5.) The full language of the Document Requests at issue are attached to this Order as Appendix A
1

York Department of Corrections ("DOC"). (Compl. ~ 1, 59-62.) Plaintiff alleges that it was the practice of correction officers at RNDC to allow certain inmates to assault other inmates ("The Program") as a means to establish control and discipline at that correction facility. (Id. ~ 1.) Plaintiff suffered serious brain and kidney injuries as a result of the alleged beating. (Id. ~ 63.) Plaintiff brings his claims against the Defendant DOC staff members under 42 U.S.C. § 1983 and the Eighth and Fourteenth Amendments to the Constitution. Plaintiff brings his claim against the
By letter dated February 9, 2012, Plaintiffs counsel informed the Court that Defendants were deficient in producing "First Stage" discovery requests served in November of2011 and requested the Court's assistance. On March 5, 2012, the Court ordered Defendants to produce all responsive documents that remained outstanding in the "First Stage" of Plaintiffs discovery requests by AprilS, 2012. (Tr. of Mar. 5, 2012lfr'g ("Tr. 3/5112") at 20.) In light of Plaintiffs counsel's correspondence with the Court dated April 11, 2012, detailing Defendants' unsatisfactory production of responsive documents, the Court ordered a hearing to be held on April23, 2012. (Order dated Aprill8, 2012, ECF No. 16.) Assistant Corporation Counsel Diep Nguyen, and her supervisor, Division Chief Muriel Goode-Trufant, appeared on behalf of Defendants and informed the Court that they had begun producing Monell discovery pertaining to the "Program" and other inmate-on-inmate assaults, but would need three more weeks to complete that discovery. (Tr. of April23, 2012 Hr'g ("Tr. 4/23/IT) at 10.) Additionally, Defendants objected on privacy grounds to Plaintiffs request for the disciplinary records, personnel files, and psychological screenings of all officers assigned to 2 Lower North at the Robert N. Davoren Complex ("RNDC") at Rikers Island. (ld. at 18.) As it had in the previous
2

conferences, the Court found that any privacy concerns raised by the Defendants were unfounded in view of the existing Protective Order of Confidential Information, which restricted the documents to "attorney's eyes only." (Tr. 3/5/12 at 6; Tr. 4/23/12 at 18-21.) Accordingly, the Court ordered Defendants to produce all outstanding responsive documents by May 21, 2012, (ld. at 21 ), noting as it had previously that it was important that Plaintiff be in possession of all responsive documents prior to the upcoming settlement conference before Magistrate Judge Maas scheduled for May 30, 2012, so that Plaintiff could make an informed presentation. (ld. at 2, 8, 14.)
B. The May 2012 Correspondence By letter dated May 22, 2012, Plaintiffs counsel informed the Court that Defendants' production of responsive documents remained deficient. (Letter of Adam R. Pulver dated May 22,2012 at 1, ECF No. 33.) The letter informed the Court that on May 17, 2012, Plaintiff had spoken to Defendants' counsel who indicated "[they] ... would receive more voluminous disciplinary records and personnel files for all of the officers by May 21, 2012, 'at the latest,"' (Id. at 2), but no such documents had been received. (Id.) By Memo Endorsement dated May 23, 2012, the Court ordered Defendants to produce all outstanding documents immediately or face sanctions for failing to adhere to the Court's previous orders. (Id.) By letter dated May 23,2012, Plaintiffs counsel informed the Court that he had received approximately 3,000 pages of heavily redacted documents, but that the production of documents "did not enclose any cover letter identifying how the documents correspond to the categories in plaintiffs document requests" in violation of Fed. R. Civ. P. 34(b)(2)(E)(i). (Letter of Adam Pulver dated May 23, 2012.) On May 31,2012, Plaintiffs counsel informed the Court that
3

Defendants still had not complied with the Court's order of May 23,2012. (Letter of Adam R. Pulver dated May 31,2012 at 1.) Plaintiff's counsel stated that they had received approximately 4,000 pages ofheavily redacted documents which primarily related to inmate-on-inmate assaults in 2008. (ld.) Plaintiff's counsel also informed the Court that the settlement conference had been rescheduled for June 27, 2012? (Id. at 2.)
C. The June 7, 2012 Conference In view ofPlaintiff's counsel's letter of May 31,2012, the Court held a conference in this matter on June 7, 2012 to resolve the ongoing discovery dispute. Present at the conference for Defendants were Assistant Corporation Counsel Diep Nguyen and her supervisor, Dara Weiss. The Court informed the parties that it had ordered the conference because Defendants had failed to respond to Plaintiffs counsel's letters detailing Defendants' discovery deficiencies. (Tr. of June 7, 2012 Hr'g ("Tr. 6/7/12") at 1.) Plaintiffs counsel informed the Court that they had received a rolling production of about 5,500 pages of heavily redacted documents that were provided without cover letters or a privilege log. Plaintiff's counsel stated that Defendants' redactions were unnecessary in light of the protective order that was in place. Furthem1ore, Plaintiff stated that he had not received a significant set of documents generated by the "Gang Intelligence Unit" at Rikers Island. (Id. at 4.) Plaintiffs counsel informed the Court that they had independently obtained some of these documents from "the media, who obtained [the documents] from the Gang Intelligence Unit," (Id. at 14), and "not a single page from the Gang Intelligence Unit has been provided in this case." (Id. at 15.)
2 On May 23,2012, Magistrate Judge Frank Maas granted Plaintiffs application to adjourn the May 30, 2012 settlement conference based on Defendants having "resisted producing relevant discovery that is central to Plaintiffs claims." (Letter of Adam R. Pulver dated May 22,2012, ECF No. 32.)
4

In response, Defendants' counsel stated that they had produced all responsive documents with respect to inmate-on-inmate assaults while conceding that they did not provide cover letters for all the documents nor provide a privilege log. (Id. at 7.) Ms. Weiss stated that Defendants would remedy the cover letter deficiency and attempt to unredact as many documents as possible by June 11, 2012. (Id. at 10, II.) Defendants' counsel also stated that they would provide a detailed privilege log for any redactions that remained in place after further review. (Id.) The Court ordered that in view of the protective order in this case, only sensitive medical information should be redacted.3 (Id. at 30.)
Ms. Weiss informed the Court that Defendants would attempt to obtain the responsive Gang Intelligence Unit documents in "very short order." (Id. at 20-21.) The Court ordered that Defendants provide cover letters and a privilege log for all the documents already produced by June 11,2012. (Id. at 10.) Additionally, the Court ordered all the responsive Gang Intelligence Unit documents to be produced by June 15, 2012. (Id. at 31.) Plaintiff was to provide the Court with an update on Defendants' cover letter compliance by June 13. 2012.
D. The June 2012 Correspondence By letter dated June 13,2012, Plaintiffs counsel stated that "while Defendants have substantially complied with the Court's orders [from the June 7, 2012 conference], several important categories of documents in the 'First Stage' of discovery remain outstanding." (Letter of Adam R. Pulver dated June 13,2012 at 1, ECF No. 35.) Thus, Plaintiffs counsel requested "that the Court order (I) the immediate production of documents responsive to Requests Nos. 9 and 21; and (2) confirmation that all documents responsive to Requests Nos. 10, 14, 15, 18, 25,
3 The Court subsequently granted Defendants' application to redact certain identifying information of inmates from the memoranda generated by the Gang Intelligence Unit (See Letter ofDiep Nguyen dated June 18, 2012.)
5

27 have been produced or will be produced by June 15, 2012." (ld. at 2.) By Memo
Endorsement dated June 14,2012, the Court ordered that "[d]efendants are to produce the
documents responsive to Nos. 9 and 21 and to confirm all documents responsive to Nos. 10, 14,
15, 18, 15 and 27 by June 15, 2012." (Id.)
By letter dated June 20, 2012, Plaintiffs counsel informed the Court that Defendants had
failed to produce all documents responsive to Document Requests r-ios. 9 and 21. Moreover,
Defendants failed to confirm that they had produced all documents responsive to Document
Requests Nos. 14, 15, 18, 21, 25, and 27. (Letter of Adam R. Pulver dated June 20,2012 at 2,
ECF No. 38.) Plaintiffs counsel further stated that:
In addition to the Court's June 14, 2012 Order, Defendants were ordered on June 7, 2012 to produce all Intelligence Unit documents responsive to the various document requests by June 12, 2012. Although Defendants have produced thousands of pages of highly relevant "Intradepartmental Memoranda" for individual incidents, including dozens of incidents of Program-related intimidation and violence, there are a number of responsive documents that Defendants' counsel knows exists but have, inexplicably, not been produced. These documents include far more detailed investigations into both specific incidents, and the patterns of violence at RNDC, and bear a variety of titles including "Field Investigations" and "Serious Injury to Inmate Investigations." These documents should be produced immediately.
(Id.)
By letter dated June 20, 2012, Defendants' counsel informed the Court that on June 14,
2012, they had received approximately 5,600 documents from the Gang Intelligence Unit
regarding inmate-on-inmate assaults at RNDC. (Letter ofDiep Nguyen dated June 20, 2012 at 2,
ECF No. 39.) As of June 20,2012, Defendants' counsel stated that almost 14,000 documents
had been produced to Plaintiff. (Id.) "Defendants submit that we have complied with Your
Honor's Orders regarding production of documents pertaining to inmate-on-inmate violence at
6

RNDC to allow Plaintiff to evaluate whether there is evidence of Monell liability." (Id.) Defendants' counsel also stated that the "the personnel files of seventeen (17) officers who were assigned to 2 Lower North [RNDC] for the period in question" had been produced. (Id.) Defendants' counsel informed the Court that they were unable to retrieve the personnel files of "several officers" who were assigned to 2 Lower North in 2010 because they were either retired or assigned to another facility. (Id.) Defendants' counsel noted, however, that they had produced the "disciplinary history" of all 32 officers assigned to 2 Lower North at RNDC during the relevant time period. (Id.)
Defendants' counsel also informed the Court that Plaintiff sought documents entitled "Inmate Reports of an Alleged Assault." (Id.) Defendants contended that Plaintiffs request for these documents were duplicative "as the investigations pertaining [to] the assaults are set forth in the approximately 5,600 [Gang Intelligence Unit] documents that Plaintiff already has in his possession." (Id.) The letter closes, "Defendants respectfully submit that we have complied with the Court's Orders and complied with the discovery at this time so that Plaintiff can have an opportunity to evaluate his claims for the settlement conference ....•· (ld.)
By letter dated June 21,2012, Plaintiffs counsel wrote "to respond to Defendants' June 20 Letter in defense of their limited, untimely production." (Letter of Adam Pulver dated June 21,2012 at 1, ECF No. 37.) Once again, Plaintiffs counsel stated that Defendants' latest production was "essentially a 'document dump' ... with 5,000 undifferentiated pages" identified in a cover letter that simply stated:
Please note that the following documents pertain to inmate-on-inmate assaults and/or investigations into the all egcd "Program" and/or inmate-on-inmate assaults at RNDC and are responsive to your Document Request Nos. 14,15,18, 21, 25, and 27: DEFENDANTS 1 DEFENDANTS 3174 and DEFENDANTS 3556- DEFENDANTS 5657.
7

(Id. at 1-2.)
Plaintiffs counsel also informed the Court that Defendants '·do not appear to have
produced any documents responsive to Document Request No. 21 .''4 (Id. at 2-3 (emphasis in
original).) As further outlined in Plaintiffs July 2, 2012 letter, discussed infra, Plaintiff claimed
that Defendants had still not produced documents that detail the '"extensive investigations" that
occur after an inmate-on-inmate assault. (ld. at 2.) Lastly, Plaintiff noted that Defendants
remained deficient in producing the personnel files for all officers assigned to 2 Lower North at
RNDC during the relevant time period. (ld. at 3.)
In response, Defendants submitted a letter to the Court on June 22, 2012 which stated in
relevant part:
Defendants submit that we have produced to plaintiff everything that the Court has ordered us to produce during the April conference and the June 7, 2012 conference. Frankly, with the exception of the six personnel files stated above, we do not understand why plaintiff claims that we have not complied with Your Honor's Orders when we believe that we have complied with them. As stated in defendants' June 20, 2012 letter, we have produced approximately 14,000 documents to plaintiff to date, which include, inter alia. documents detailing interviews with all inmates in every housing area at RNDC after the death of Christopher Robinson, documents detailing interviews with all inmates involved in inmate-on-inmate assaults at RNDC from 2008 to the present, documents detailing interviews with inmates who are released on bail or on their own recognizance from RNDC to ascertain whether they are claiming that "the Program" exists at RNDC, documents detailing interviews with confidential informants to ascertain the reasons behind the fights, interviews with inmates whose accounts appear to have an unusually large amount of money to ascertain the sources of the money, and interviews with inmates to determine if they have any gang affiliation to ascertain their threat, if any, to the safety other inmates and officers.
4 Document Request No. 21 calls for "Copies of all complaints, allegations and requests for investigation communicated to DOC from any source (including, without limitation the Legal Aid Society Prisoners' Rights Project and the New York City Board of Correction) and responses by the DOC with respect to any and all allegations of inmate-on-inmate assaults at RNDC, violence between or among inmates at RNDC and/or The Program for incidents that occurred between June 26, 2007 and the present."
8

Plaintiff now seeks "Field Investigations" and "Serious Injury to Inmate Investigations," which plaintiff has not sought before and which defense counsel has never come across in this litigation or previous litigations on behalf of the Department of Correction. It appears to defendants that plaintiff is moving into "Phase Two" of their discovery requests, and rather than contacting defendants to seek these documents, plaintiff instead chose to write to the Court. Because these documents have not been sought by plaintiff before, defendants respectfully request that we be given time to ascertain if they exist, \Vhether or not they are relevant, and then respond to plaintiffs demands.
(Letter ofDiep Nguyen dated June 22, 2012 at 3, ECF No. 42.)
By letter dated July 2, 2012, Plaintiffs counsel informed the Court that Defendants had
only produced preliminary reports of inmate-on-inmate assaults which are written within 24
hours of the incident, and that Defendants had failed to produce documents detailing later
investigations which may include "the extent of inmate injuries, possible staff complicity, and
steps taken by the Department of Correction central office to address the continuing problem of
gang-initiated assaults ...."(Letter of Adam R. Pulver dated July 2012 ("Pulver Letter
7/2112") at 2.) Accordingly, Plaintiffs counsel asserted that "Field Investigations" and "Serious
Injury to Inmate Investigations" are responsive to Document Requests Nos. 14 and 25. 5 (Id.)
Indeed, Document Request No. 14 calls for:
All communications between June 26, 2007 and the present, including electronic communications, concerning inmate-on-inmate assaults at RNDC, violence between or among inmates at RNDC and/or The Program by all persons assigned to the following DOC positions: The Commissioner of Correction; Chief of Department; staff assigned to the Intelligence Unit and/or Gang Intelligence Unit; Deputy Directors of Investigations; Investigation Division Supervisors [listing more positions].
5 Plaintiffs July 2, 2012 letter states that the documents entitled ''Field Investigations" and "Serious Injury to Inmate Investigations" are responsive to Document Requests Nos. 14 and 24. Plaintiff then quotes the language of Document Requests Nos. 14 and 25. As Document Request No. 24 is not outstanding, the Court will assume Plaintiff is referring to Document Request 25.
9

(Appendix A.) While Document Request No. 25 calls for: All documents maintained in the Intelligence Unit concerning assaults or allegations of inmate-on-inmate at RNDC, violence between or among inmates at RNDC anc!Jor The Program for incidents that Occurred between June 26, 2007 and the present.
(Id.) Additionally, Plaintiffs counsel once again reiterated that Defendants have failed to produce the personnel records of six officers who were assigned to 2 Lower North at RNDC. (Id. at 2.) Plaintiff acknowledged that he was in possession of the disciplinary records for those six officers, but stated that "there is little or no information about the incident that led to that discipline, which is only contained in the full personnel file." (1.4:_) II. The Court Will Impose Sanctions
Despite numerous Orders from the Court, Defendants tailed to confirm that they have produced all documents responsive to Document Requests Nos. 10, 14, 15, 18, 25, and 27. While Defendants submit "that [they] have produced to plaintiff everything that the Court has ordered us to produce during the April conference and the June 7, 2012 conference," it appears there also are still investigative documents outstanding responsive to Plaintiffs discovery requests. It is not an adequate justification that Defendants' counsel is not familiar with "Field Investigations" and "Serious Injury to Inmate Investigations." In view of Document Requests Nos. 14 and 25, Defendants' counsel should have already produced the documents or denied their existence. The time has long passed for Defendants to be conducting searches for relevant documents which should have been turned over to Plaintiff months ago. Defendants have also failed to produce the personnel records (Document Request No. 9.) of six officers who were assigned to 2 Lower North during the relevant time period. Defendants' justification that the officers had either retired or been reassigned to another facility is without merit. Defendants
10

have had over six months to locate and produce the personnel files. Lastly, Defendants do not deny that they have failed to tum over documents responsive to Document Request No. 21.
The Court is well aware that Defendants have produced voluminous amounts of discovery. It is not Defendants' counsel's role, however, to determine the sufficiency of discovery for Plaintiff's counseL If the documents were not of relevance to the Complaint, Defendants should have moved for relief. Nor is it Defendants' prerogative to deem certain responsive documents as "duplicative." The Court has repeatedly ordered Defendants to produce all discovery responsive to Plaintiff's "First Stage" requests. Defendants have failed to do so.
Plaintiff's counsel informed the Court that the parties were not able to reach a settlement agreement at the June 27, 2012 conference with Magistrate Judge Maas. (Pulver Letter 7/2112 at 3.) Defendants' failure to produce the necessary discovery in all possibility hindered any effort of settlement in this case. By their repeated failure to comply with the Court's Orders, Defendants have left the Court with no choice but to impose sanctions. It is well within this Court's discretion to impose appropriate sanctions as long as those sanctions are "just" and "relate to the particular claim to which the discovery order was addressed." Shcherbakovskiy v. Seitz, No. 03 Civ. 1220 (RPP), 2010 WL 3155169, at *8 (S.D.N.Y. July, 30, 2010) (quoting Daval Steel Prods. V M/V Fakredine, 951 F.2d 1357, 1366 (2d Cir. 1991.) The imposition of sanctions under Rule 37 is necessary to discourage dilatory tactics and to avoid a situation where compliance with discovery orders comes "only when the backs of counsel and the litigants [are] against the walL" Sieck v. Russo, 869 F.2d 131, 134 (2d Cir.1989).
Therefore, based on Defendants' counsel's failure to respond to Plaintiff's Document Requests Nos. 9, 14, 21, and 25, the Court imposes sanctions on the New York City Law
11

Department in the amount of $10,000. The Court further orders sanctions upon Assistant Corporation Counsel Diep Nguyen in the amount of $300, and upon Assistant Corporation Counsel Dara Weiss in the amount of$300. Defendants are ordered to confirm production of all "First Stage" discovery by July 20, 2012 or face further sanctions on the Law Department of $1000 a day for every day after July 20, 2012 until such production is complete. IT IS SO ORDERED. Dated: New York, New York
July<& 2012 Robert P. Patterson, Jr. U.S.D.J.
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APPENDIX A

Interrogatory No.4: Identify any and all persons, including DOC employees, who, between June 26,2007 and the present, were questioned, either formally or informally, by the DOC or any officer or employee thereof, any District Attorney's Office, the United States Attorney's Office for the Southern District ofNew York, and/or any federal, state, or local law enforcement or other agency about allegations ofor inmate-on-inmate assaults at RNDC, violence between or among inmates at RNDC and/or The Program, and the names of those who questioned such persons.
Interrogatory No.7: Identify every document that describes, concerns, references and/or mentions, in whole or in part, The Program created and/or prepared between June 26, 2007 and the present.
Interrogatory No.8: Identify every type of document that is generated pursuant to DOC practice or policy whenever there is an inmate-on-inmate assault.
Interrogatory No.·I2: Identify- by name and NYSID number and photograph- any and all inmates assigned or transferred to housing area 2 Lower North at RNDC from June 20, 2010 through June 28, 2010.
Interrogatory No. 18: Identify- by their parties' names, the court, the docket or index number, and the lawyer representing the plaintiff(s)- each and every lawsuit brought against any individual and/or the City for injuries allegedly caused by an inmate-oninmate assault at RNDC. In responding to this answer, you shall limit your response to lawsuits which alleged incidents that occurred between June 26, 2007 to the present.
Document Reguest No. 6: The most recent photographs in DOC records of the officers and captains who were assigned to RNDC housing area 2 Lower North, or to escort inmates assigned to 2 Lower North, from June 20, 20 I0 through June 28, 2010 ("the 2LN Officers").
Document Request No.9: The personnel files and institutional files of each of the 2LN Officers, including the pre-employment psychological screening tests and evaluations.
Document Reguest No. 10: The most recent DOC "22R forms" prepared for each of the 2LN Officers.
Document Request No. 14: All communications between June 26, 2007 and the present, including' electronic communications, concerning inmate-on-inmate assaults at RNDC, violence between or among inmates at RNDC and/or The Program by all persons assigned to the following DOC positions: The Commissioner of Correction; Chief of Department; Staff assigned to the Intelligence Unit and/or Gang Intelligence Unit; Deputy Directors of Investigations; Investigation Division Supervisors; Chief of

'

Staff; Deputy Chief of Staff; Chief of Facilities Operations; Chief of Custody

Management; Deputy Commissioner; Investigations; Deputy Director(s) of

Investigations; Assistant Chief of Special Operations; Assistant Chief, Division I;

Assistant Chief, Division II; Chief, Custody Management; Chief, Administration;

Deputy Warden or Warden in Command, Special Operations Division; Wardens and

Deputy Wardens for Security and or Deputy Warden in Command at RNDC.

Document Request No. 15: All communications between June 26, 2007 and the present, including electronic communications, by all persons employed by the New York City Board of Correction, including but not limited to the Executive Director, Deputy Director, Chief of Field Operations and Field Workers, concerning inmateon-inmate assaults at RNDC, violence between or among inmates at RNDC and/or The Program.

Document Request No. 18: All communications between June 26, 2007 and the present, including electronic communications, between the DOC, including but not limited to the offices of the Commissioner, Chief of Department, Chief of Facility Operations and Deputy Commissioner for Investigations, and the New York City Board of Correction or the New York State Commission on Correction and (b) the Office of the Criminal Justice Coordinator, or the Office of the Mayor, or the Department of Investigation, or the United States Department of Justice, or the offices of the Bronx, Queens, Brooklyn or Manhattan District Attorney concerning inmateon-inmate assaults at RNDC, violence between or among inmates at RNDC and/or The Program.

Document Request No. 21: Copies of all complaints, allegations and requests for investigation communicated to DOC from any source (including, without limitation the Legal Aid Society Prisoners' Rights Project and the New York City Board of Correction) and responses by the DOC with respect to any and all allegations of inmate-on-inmate assaults at RNDC, violence between or among inmates at RNDC and/or The Program for incidents that occurred between June 26, 2007 and the present. Responsive documents include, without limitation, allegations directed or referred to the Investigation Division and "Inmate Reports of an Alleged Assault" forwarded by the Inmate Grievance Committees of the facilities {DOC Form 7316R).

Document Request No. 25: All documents maintained in the Intelligence Unit concerning assaults or allegations of inmate-on-inmate at RNDC, violence between or among inmates at RNDC and/or The Program' for incidents that occurred between June 26, 2007 and the present.

Document Request No. 27: All Unusual Incident Reports or Incident Reports concerning inmate-on-inmate assaults at RNDC, allegations of inmate-on-inmate assaults, violence between or among inmates at RNDC and/or The Program for incidents that occurred between June 26, 2007 and the present.

Copies of this order were faxed to:
Counselfor Plaintiff:
Adam R Pulver Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza 20th Fir. New York, NY 10019 (212)-763-5000 Fax: (212)-763-5001
Counsel for Defendant:
Diep Nguyen New York City Law Department 100 Church Street New York, NY 10007 (212)-341-9848 Fax: (212)-788-9776
Dara Weiss New York City Law Department 100 Church Street New York, NY 10007 (212)-341-9848 Fax: (212)-788-9776

 
 CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11−cv−05610−RPP

John v. City of New York et al Assigned to: Judge Robert P. Patterson Referred to: Magistrate Judge Frank Maas (Settlement) Related Case: 1:12−cv−05881−RPP Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/12/2011 Date Terminated: 08/31/2012 Jury Demand: Defendant Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question

Kadeem John

represented by Jonathan S. Abady Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza 20th Flr. New York, NY 10019 212−763−5000 Fax: 212−763−5001 Email: jabady@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam R Pulver Public Citizen Litigation Group 1600 20th Street, N.W. Washington, DC 20009 202−588−7790 Fax: 202−588−7795 Email: apulver@citizen.org ATTORNEY TO BE NOTICED

Jonathan S. Chasan Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10038 (212)−577−7980 Fax: (212)−509−8433 Email: jchasan@legal−aid.org ATTORNEY TO BE NOTICED

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@ecbalaw.com ATTORNEY TO BE NOTICED

V. Defendant City of New York

represented by Diep Nguyen New York City Law Department 100 Church Street Room 6−188 New York, NY 10007 (212)−341−9848 Fax: (212)−788−9776 Email: NguyenDi@coned.com LEAD ATTORNEY

Defendant Arthur Olivari New York City Department Of Correction (DOC) Supervising Warden
Defendant Larry W. Davis, Sr. Chief Department
Defendant Warden Emmanuel Bailey
Defendant Dep. Warden Walter Nin
Defendant Correction Officer "DJ" Doe Defendant Correction Officer John Does # 1−5

ATTORNEY TO BE NOTICED
represented by Diep Nguyen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Diep Nguyen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Diep Nguyen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Diep Nguyen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

08/12/2011 1 COMPLAINT against Emmanuel Bailey, City of New York, Correction Officer "DJ" Doe, Correction Officer John Does # 1−5, Larry W. Davis, Sr, Walter Nin, Arthur Olivari. (Filing Fee $ 350.00, Receipt Number 1013932)Document filed by Kadeem John.(ama) (Entered: 08/12/2011)

08/12/2011

SUMMONS ISSUED as to Emmanuel Bailey, City of New York, Correction Officer "DJ" Doe, Correction Officer John Does # 1−5, Larry W. Davis, Sr, Walter Nin, Arthur Olivari. (ama) (Entered: 08/12/2011)

08/12/2011 Magistrate Judge Frank Maas is so designated. (ama) (Entered: 08/12/2011)

08/12/2011 Case Designated ECF. (ama) (Entered: 08/12/2011)

08/19/2011 2 AFFIDAVIT OF SERVICE of Summons and Complaint,. City of New York served on 8/16/2011, answer due 9/6/2011. Service was accepted by Dmitry Aronov. Service was made by Mail. Document filed by Kadeem John. (Pulver, Adam) (Entered: 08/19/2011)

08/22/2011 3 AFFIDAVIT OF SERVICE of Summons and Complaint,. Arthur Olivari served on 8/17/2011, answer due 9/7/2011. Service was accepted by P.O. 'John' Hernandez. Service was made by Mail. Document filed by Kadeem John. (Pulver, Adam) (Entered: 08/22/2011)

08/22/2011 4 AFFIDAVIT OF SERVICE of Summons and Complaint,. Larry W. Davis, Sr served on 8/17/2011, answer due 9/7/2011. Service was accepted by P.O. 'John' Hernandez. Service was made by Mail. Document filed by Kadeem John. (Pulver, Adam) (Entered: 08/22/2011)

08/22/2011 5 AFFIDAVIT OF SERVICE of Summons and Complaint,. Emmanuel Bailey served on 8/17/2011, answer due 9/7/2011. Service was accepted by P.O. 'John' Hernandez. Service was made by Mail. Document filed by Kadeem John. (Pulver, Adam) (Entered: 08/22/2011)

08/22/2011 6 AFFIDAVIT OF SERVICE of Summons and Complaint,. Walter Nin served on 8/17/2011, answer due 9/7/2011. Service was accepted by P.O. 'John' Hernandez. Service was made by Mail. Document filed by Kadeem John. (Pulver, Adam) (Entered: 08/22/2011)

08/30/2011 7 NOTICE OF APPEARANCE by Diep Nguyen on behalf of City of New York (Nguyen, Diep) (Entered: 08/30/2011)

09/07/2011 8 ENDORSED LETTER addressed to Judge Robert P. Patterson, Jr. from Diep Nguyen dated 9/6/2011 re: There are no scheduled conference that will be affected by this proposed extension. Accordingly, it is respectfully requested that the Court grant the City's application to extend its time to answer or otherwise respond to the complaint from September 6, 2011, until November 7. 2011.. ENDORSEMENT: Application Granted. So Ordered. City of New York answer due 11/7/2011. (Signed by Judge Robert P. Patterson on 9/7/2011) (rdz) (Entered: 09/07/2011)

09/07/2011 9 ENDORSED LETTER addressed to Judge Robert P. Patterson, Jr. from Jonathan S. Abady dated 9/6/11 re: We are writing to oppose defendants' request for a sixty−day extension of time to answer the complaint. ENDORSEMENT: Application denied. Because the complaint names four supervisory defendants, who may have conflicting interests. It also names "D.J.", Doc and five John/Jane Does, defendants for failure to protect plaintiff from assault or for failing to intervene in the running of the "Program" at 2 Lower North at RMDC in their individual capacities, who may also have conflicting interests, a 60 day extension for time to respond to the complaint is warranted. (Signed by Judge Robert P. Patterson on 9/7/11) (rjm) (Entered: 09/08/2011)

10/12/2011 10 NOTICE OF APPEARANCE by Katherine R. Rosenfeld on behalf of Kadeem John (Rosenfeld, Katherine) (Entered: 10/12/2011)

10/25/2011 11

SCHEDULING ORDER: Experts' deposition due by 9/14/2012. All discovery due by 9/14/2012. All fact discovery due 7/27/2012. Pretrial Order due by 9/28/2012. Jury Trial set for 10/15/2012 at 09:30 AM before Judge Robert P. Patterson. (Signed by Judge Robert P. Patterson on 10/25/2011) (lmb) Modified on 10/27/2011 (lmb). Modified on 10/27/2011 (lmb). (Entered: 10/25/2011)

10/25/2011

Set/Reset Hearings: Jury Trial set for 10/15/2012 at 09:30 AM before Judge Robert P. Patterson. (lmb) (Entered: 10/27/2011)

11/08/2011 12

ENDORSED LETTER addressed to Judge Robert P. Patterson, Jr. from Diep Nguyen dated 11/7/2011 re: I write to respectfully request a brief one−week extension of time, from November 7, 2011, until November 14, 2011, within which the City may answer or otherwise respond to the complaint. ENDORSEMENT: Application granted. So ordered. City of New York answer due 11/14/2011. (Signed by Judge Robert P. Patterson on 11/8/2011) (rjm) (Entered: 11/08/2011)

11/14/2011 13 ANSWER to 1 Complaint, with JURY DEMAND. Document filed by Emmanuel Bailey, City of New York, Larry W. Davis, Sr, Walter Nin, Arthur Olivari.(Nguyen, Diep) (Entered: 11/14/2011)

12/02/2011 14 PROTECTIVE ORDER CONCERNING CONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Robert P. Patterson on 12/2/2011) (jfe) (Entered: 12/02/2011)

12/09/2011 15

ENDORSED LETTER addressed to Judge Robert P. Patterson from Adam R. Pulver dated 12/2/2011 re: We request the Court order Defendants to provide their initial disclosures by the close of business Monday, December 5, 2011. ENDORSEMENT: Defendant's counsel are ordered to serve on Plaintiff's counsel the preliminary disclosures required by the Federal Rules of Civil Procedure on or before 12/12/11. (Signed by Judge Robert P. Patterson on 12/8/2011) (lmb) (Entered: 12/09/2011)

02/07/2012 16 MOTION for Sanctions. Document filed by Kadeem John.(Pulver, Adam) (Entered: 02/07/2012)

02/07/2012 17 MEMORANDUM OF LAW in Support re: 16 MOTION for Sanctions.. Document filed by Kadeem John. (Pulver, Adam) (Entered: 02/07/2012)

02/07/2012 18 DECLARATION of Adam R. Pulver in Support re: 16 MOTION for Sanctions.. Document filed by Kadeem John. (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)(Pulver, Adam) (Entered: 02/07/2012)

02/15/2012 19

ENDORSED LETTER addressed to Judge Robert P. Patterson, Jr. from Diep Nguyen dated 2/14/2012 re: I write to respectfully request a ten−day extension of time, until February 24, 2012, to respond to plaintiffs motion for sanctions,. ENDORSEMENT: Application Granted. SO ORDERED., ( Responses due by 2/24/2012) (Signed by Judge Robert P. Patterson on 2/14/2012) Copies Sent By Chambers. (ama) (Entered: 02/15/2012)

02/17/2012 20

ENDORSED LETTER addressed to Judge Robert P. Patterson from Adam R. Pulver dated 2/15/2012 re: Counsel for Plaintiff requests that the Court allow them until 3/2/2012 to file their reply in further support of their motion for sanctions. ENDORSEMENT: Application granted. Set Deadlines/Hearing as to 16 MOTION for Sanctions : (Replies due by 3/2/2012.) (Signed by Judge Robert P. Patterson on 2/16/2012) (tro) (Entered: 02/17/2012)

02/23/2012 21 SCHEDULING ORDER: A conference in this matter is set for Wednesday, February 29, 2012 at 9:30 a.m. Counsel should be prepared to discuss Plaintiff s discovery issues as stated in its letter dated February 9, 2012. (Signed by Judge Robert P. Patterson on 2/23/2012) (mro) (Entered: 02/23/2012)

02/24/2012 22 MEMORANDUM OF LAW in Opposition re: 16 MOTION for Sanctions.. Document filed by Emmanuel Bailey, City of New York, Larry W. Davis, Sr, Walter Nin, Arthur Olivari. (Nguyen, Diep) (Entered: 02/24/2012)

03/02/2012 23 REPLY MEMORANDUM OF LAW in Support re: 16 MOTION for Sanctions.. Document filed by Kadeem John. (Pulver, Adam) (Entered: 03/02/2012)

03/05/2012

Minute Entry for proceedings held before Judge Robert P. Patterson: Status Conference held on 3/5/2012. (ft) (Entered: 03/08/2012)

03/07/2012 24 SCHEDULING ORDER: Oral Argument set for 3/14/2012 at 09:30 AM before Judge Robert P. Patterson. Counsel should be prepared to discuss Plaintiff's motion for sanctions. (Signed by Judge Robert P. Patterson on 3/7/2012) Copies Faxed By Chambers. (ab) Modified on 3/7/2012 (ab). (Entered: 03/07/2012)

03/28/2012

Minute Entry for proceedings held before Judge Robert P. Patterson: Motion Hearing held on 3/28/2012 re: 16 MOTION for Sanctions filed by Kadeem John. Plaintiff's motion for sanctions is granted. (ft) (Entered: 03/30/2012)

04/11/2012 25 ORDER OF REFERENCE TO A MAGISTRATE JUDGE Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Frank Maas. (Signed by Judge Robert P. Patterson on 4/10/2012) (js) (Entered: 04/11/2012)

04/19/2012 26

SCHEDULING ORDER: In view of the correspondence received from both parties today, a hearing in this matter is set for Friday, April 20, 2012 at 9:30 a.m. The supervising attorney should be present for Defendants. (Status Conference set for 4/20/2012 at 09:30 AM before Judge Robert P. Patterson.) (Signed by Judge Robert P. Patterson on 4/18/2012) (lmb) (Entered: 04/19/2012)

04/19/2012 27

ENDORSED LETTER addressed to Judge Robert P. Patterson from Adam R. Pulver dated 4/19/2012 re: We write, with Defendants counsel's consent, to request an adjournment of the Status Conference scheduled for Friday, April 20, 2012 at 9:30 a.m. ENDORSEMENT: Application granted. Conference will be held 4/23/12 at 4 PM., ( Status Conference set for 4/23/2012 at 04:00 PM before Judge Robert P. Patterson.) (Signed by Judge Robert P. Patterson on 4/19/2012) (lmb) (Entered: 04/19/2012)

04/23/2012 28 ENDORSED LETTER addressed to Judge Robert P. Patterson from Diep Nguyen dated 4/20/2012 re: Counsel for the defendants request an adjournment of the April 23, 2012 conference. ENDORSEMENT: Application denied. The Court is not available on those dates. So Ordered. (Signed by Judge Robert P. Patterson on 4/20/2012) (ft) (Entered: 04/23/2012)

04/23/2012 29

TRANSCRIPT of Proceedings re: Conference held on 3/5/2012 before Judge Robert P. Patterson. Court Reporter/Transcriber: Toni Stanley, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/17/2012. Redacted Transcript Deadline set for 5/29/2012. Release of Transcript Restriction set for 7/26/2012.(McGuirk, Kelly) (Entered: 04/23/2012)

04/23/2012 30

NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 3/5/2012 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 04/23/2012)

04/23/2012

Minute Entry for proceedings held before Judge Robert P. Patterson: Status Conference held on 4/23/2012. Conference is held, all documents pertaining to Mr. John have been turned over. Outstanding discovery are files on other inmates and inmate assaults, this discovery by May 15. Medicalrecords have been provided, plaintiff has already provided their expert report, defendant expert report due by mid−May. Any remaining discovery by 5/21, settlement conference with themagistrate at the end of May._______________________________________________________________________ (cd) (Entered: 04/25/2012)

04/23/2012 Set/Reset Deadlines: Discovery due by 5/21/2012. (cd) (Entered: 04/25/2012)

05/02/2012 31

ENDORSED LETTER addressed to Judge Robert P Patterson from Diep Nguyen dated 5/1/2012 re: Defendants apprised plaintiff that the photos are available and the parties agreed that plaintiff will view the photographs tomorrow. Plaintiff, however, opposes viewing the photographs in the presence of defense counsel Defendants disagree and seek the following protection. ENDORSEMENT: The parties informed the Court on May 2, 2012 that they had resolved this dispute. (Signed by Judge Robert P. Patterson on 5/2/2012) (cd) (Entered: 05/02/2012)

05/23/2012 32

ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Emery Celli Brinckerhoff & Abady, LLP dated 5/22/2012 re: Request for adjournment of conference. ENDORSEMENT: The conference is adjourned to June 27 at 2:00 p.m. (Settlement Conference set for 6/27/2012 at 02:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 5/23/2012) (rjm) (Entered: 05/23/2012)

05/23/2012 33

ENDORSED LETTER: addressed to Judge Robert P. Patterson from Adam R. Pulver dated 5/22/2012 re: Counsel for Plaintiffs write as defendants have failed to comply with the Courts order to produce outstanding discovery by May 15, 2012 and May 21, 2012, Counsel requests the Court order a complete production immediately. ENDORSEMENT: Application granted. Defendants are ordered to produce to plaintiff immediately all outstanding documents and interrogatory responses or face sanctions for untimely. (Signed by Judge Robert P. Patterson on 5/22/2012) (js) (Entered: 05/23/2012)

06/07/2012

Minute Entry for proceedings held before Judge Robert P. Patterson: Status Conference held on 6/7/2012. (jfe) (Entered: 06/29/2012)

06/15/2012 34

STIPULATION AND SETTLEMENT OF ATTORNEYS' FEES. 1. Defendant City of New York shall pay to Plaintiff's counsel Emery Celli Brinckerhoff & Abady LLP ("ECBA") the sum total of Thirteen Thousand Dollars ($13,000.00) for work conducted by ECBA and The Legal Aid Society in this action in connection with Plaintiff's motion for sanctions dated February 7, 2012. This payment shall be in full satisfaction of all claims by ECBA, The Legal Aid Society, and/or Plaintiff for attorneys' fees, costs and/or expenses accrued in connection with Plaintiff's motion for sanctions dated February 7,2012. In the event of any future award of attorneys' fees and costs in this action, Plaintiff's counsel and/or Plaintiff will not seek any additional compensation for attorneys' fees, costs and/or expenses accrued in connection with Plaintiff's motion for sanctions dated February 7, 2012. [* See Order for complete details. *] (Signed by Judge Robert P. Patterson on 6/15/2012) (bw) (Entered: 06/15/2012)

06/15/2012 35

ENDORSED LETTER addressed to Judge Robert P. Patterson from Attorney Adam R. Pulver dated June 13, 2012. ENDORSEMENT: Application granted. Defendants are to produce the documents responsive to Nos. 9 and 21 and to confirm all documents responsive to Nos. 10, 14, 15, 18, 15 and 27 by June 15, 2012. (Signed by Judge Robert P. Patterson on 6/14/2012) (bw) (Entered: 06/15/2012)

06/18/2012 36

ENDORSED LETTER addressed to Judge Robert P. Patterson, Jr. from Diep Nguyen dated 6/18/2012 re: Counsel for the defendants submit that the redactions are necessary as not to compromise the work of the intelligence unit at Rikers. ENDORSEMENT: Application granted without prejudice to plaintiff's counsel making a timely application to reconsider. (Signed by Judge Robert P. Patterson on 6/18/2012) (ft) (Entered: 06/18/2012)

06/21/2012 37 ENDORSED LETTER addressed to Judge Robert P Patterson from Adam R Pulver dated 6/21/2012 re: In response to defendants' 6/20 letter in defense of their limited, untimely production. ENDORSEMENT: Defendants counsel should respond to this letter by 6/22/2012. (Signed by Judge Robert P. Patterson on 6/21/2012) (cd) (Entered: 06/21/2012)

06/22/2012 38

Letter addressed to Judge Robert P. Patterson, from Adam R. Pulver, dated 6/20/2012, re: update the Court on Defendants' continued noncompliance with the Court's discovery−related orders, including the Court's most recent Order, dated June 14, 2012. In light of Defendants' continued violation of the Court's orders, we request the Court issue sanctions at this time. We request the Court order (1) the immediate production of all outstanding documents, complete with discovery letter and privilege; (2) confirmation that all documents responsive to requests 10, 14, 15, 18, 25, and 27 have been produced; and (3) sanctions against Defendants for their disobedience of Court orders and failure to timely produce. Document filed as to Kadeem John.(ja) (Entered: 06/22/2012)

06/22/2012 39

Letter addressed to Judge Robert P. Patterson, from Diep Nguyen, dated 6/20/2012 re: writing to respond to plaintiff's June 20, 2012 letter. We submit that we have complied with the Court's Orders and complied with the discovery at this time so that plaintiff can have an opportunity to evaluate his claims for the settlement conference, which was a concern voiced by both Your Honor and plaintiff in previous court conferences. Like plaintiff, defendants are willing to attend the settlement conference before Magistrate Maas on June 27, 2012. Document filed by Emmanuel Bailey, City of New York, Larry W. Davis, Sr, Walter Nin, Arthur Olivari.(ja) (Entered: 06/22/2012)

06/22/2012 40

Letter addressed to Judge Robert P. Patterson, from Diep Nguyen, dated 6/20/2012, re: writing to respond to plaintiff's June 20, 2012 letter and to clarify one point in the letter I sent to the Court tonight. Defendants already produced a privilege log and cover letter for all of the documents previously produced. The only cover letter and privilege log that remain to be sent to plaintiff as of earlier today (and has now been sent) are for the new 7,800 pages of documents that defendants delivered to plaintiff this week. Document filed by Emmanuel Bailey, City of New York, Larry W. Davis, Sr, Walter Nin, Arthur Olivari.(ja) (Entered: 06/22/2012)

06/25/2012 41

ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Adam R. Pulver dated 6/22/2012 re: In order to better advise the Court of the state of evidence and make for a more meaningful settlement conference, we thus respectfully request plaintiff be allowed until 10:00 a.m. on Monday, June 25, 2012, to file its settlement letter. ENDORSEMENT: Approved. (Signed by Magistrate Judge Frank Maas on 6/22/2012) (djc) (Entered: 06/25/2012)

06/29/2012 42 Letter addressed to Judge Robert P. Patterson, Jr. from Diep Nguyen dated 6/22/2012 re: I write to respectfully respond to plaintiff's June 21, 2012 letter. Document filed by Emmanuel Bailey, City of New York, Larry W. Davis, Sr, Walter Nin, Arthur Olivari.(ama) (Entered: 06/29/2012)

07/09/2012 43

OPINION AND ORDER: #102040 For the reasons stated herein, the Court will impose sanctions on Defendants for repeatedly failing to comply with this Court's discovery orders. Therefore, based on Defendants' counsel's failure to respond to Plaintiff's Document Requests Nos. 9, 14, 21, and 25, the Court imposes sanctions on the New York City Law Department in the amount of $10,000. The Court further orders sanctions upon Assistant Corporation Counsel Diep Nguyen in the amount of $300, and upon Assistant Corporation Counsel Dara Weiss in the amount of$300. Defendants are ordered to confirm production of all "First Stage" discovery by July 20, 2012 or face further sanctions on the Law Department of $1000 a day for every day after July 20, 2012 until such production is complete. (Signed by Judge Robert P. Patterson on 7/8/2012) Copies Faxed By Chambers. (jfe) Modified on 7/10/2012 (jab). (Entered: 07/09/2012)

07/17/2012 44

TRANSCRIPT of Proceedings re: CONFERNCE held on 6/7/2012 before Judge Robert P. Patterson. Court Reporter/Transcriber: Michael McDaniel, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/10/2012. Redacted Transcript Deadline set for 8/20/2012. Release of Transcript Restriction set for 10/18/2012.(McGuirk, Kelly) (Entered: 07/17/2012)

07/17/2012 45 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 6/7/12 has been filed by the court

reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/17/2012)

07/23/2012 46

ENDORSED LETTER addressed to Judge Robert P. Patterson from Muriel Goode−Trufant dated 7/19/2012 re: In light of the settlement, the City respectfully requests that the Court vacate its Order of July 9, 2012, including the requirement that the City Defendants confirm the production of first stage discovery by July 20, 2012, as well as the financial sanctions imposed upon the New York City Law Department and upon attorneys Diep Nguyen and Dara Weiss. ENDORSEMENT: Application granted. In view of the plaintiff's settlement, and consent to the Court relieving the Law Department, Diep Nguyen and Dara Weiss of the financial sanctions imposed in the Order of July 9, 2012, those financial sanctions are hereby ordered not to be enforced. (Signed by Judge Robert P. Patterson on 7/23/2012) (lmb) Modified on 7/30/2012 (tro). (Entered: 07/24/2012)

08/31/2012 47

STIPULATION OF SETTLEMENT AND ORDER OF DISMISSAL: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows: The above−referenced action is hereby dismissed against defendants, with prejudice, and without costs, expenses, or attorneys' fees in excess of the amount specified in paragraph "2" below. And as set forth in this Order. SO ORDERED. (Signed by Judge Robert P. Patterson on 8/31/2012) (ama) (Entered: 08/31/2012)

10/06/2015 48 LETTER from Ammon Ra Sumral dated 9/29/15 re: Non−party Ammon Ra Sumral requests that the Court Clerk's Office send him copies of the complaints and summary judgment orders which were filed in these cases. (sc) (Entered: 10/07/2015)

10/06/2015

Request for Copies of Documents Received: Re (50 in 1:12−cv−05881−RPP) Letter. Request for copies of the complaints and summary judgment orders filed in these casesfrom Ammon Ra Sumrall received on 10/6/15. Transmission to Records Management for processing. (sc) (Entered: 10/07/2015)

 
 Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 1 of 21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
KADEEM JOHN, Plaintiff,
-against-
CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF CORRECTION ("DOC") SUPERVISING WARDEN ARTHUR OLIVARI; CHIEF OF DEPARTMENT LARRY W. DAVIS, SR.; WARDEN EMMANUEL BAILEY; DEPUTY WARDEN WALTER NIN; CORRECTION OFFICER "DJ" DOE; and CORRECTION OFFICER JOHN DOES #1-#5,
Defendants.

J:t:cwA!) 61 o JURY DEMAND

PlaintiffKadeem John ("Plaintiff'), by his attorneys Emery Celli Brinckerhoff & Abady LLP and The Legal Aid Society, for his Complaint, alleges as follows:
PRELIMINARY STATEMENT 1. Kadeem John is the teenage victim of a perverse and pervasive practice, sanctioned at the highest levels ofthe New York City Department of Correction (the "Department" or "DOC"), in which correction officers at a New York City jail engage inmates or allow them to assault other inmates as a way to control and discipline those held in custody. This practice, known commonly as "the Program," has been uncovered and substantiated by investigations ofthe New York City Department oflnvestigation and the DOC's Inspector General, leading to the indictments of a number of correction officers, and the conviction of at least one correction officer, who worked in Robert N. Davoren Complex ("RNDC"), the. principal City jail for adolescent males. In October 2008 an RNDC inmate died as a result of this practice of Department-sanctioned inmate-on-inmate violence. Yet nearly two years after

Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 2 of 21
that tragedy, the "Program" continued, leading to a vicious attack on Mr. John when he was incarcerated at RNDC in 2010, which caused him a serious, continuing injury.
2. The Bronx District Attorney ("DA") has explained that RNDC is run like an organized-crime family, where correction officers, under "The Program," give "favored prisoners free reign to beat, rob and extort whomever they please"- to quote an outraged Daily News editorial. RNDC was an "incubator for violent criminal activity sanctioned by adults in positions of authority," according to the DA. The motive for this brutality was to make correction officers' jobs easier by having the inmates maintain order among themselves.
3. In a January 29, 2009 editorial, The New York Times described this as a "horror story." The Times demanded that "the entire culture" ofRNDC "needs to be changed" and laid the blame squarely on the City for failing to properly train and supervise correction officers. Editorial, Rikers Horror Story, N.Y. Times, Jan. 29, 2009 at A26, available at http://www.nytimes. corn/2009/01/29/opinion/29thu2.html.
4. But despite the knowledge of high level DOC officials, correction staff continued "the Program." And as a direct result, in June 2010, Mr. John was beaten by other inmates who effectively ran the unit in RNDC in which he was housed- with the unjustified failure of corrections officers to intervene. After he was severely beaten in a stairwell, Mr. John was moved into a dayroom, where he remained, in plain view of corrections officers, bleeding internally and slipping in and out of consciousness, for a significant period of time before an officer came to his aid, and finally brought him to the facility's clinic for medical attention.
5. Mr. John sustained serious bodily injuries as a result of the beating, requiring two separate multiple-night hospital stays. He suffered injuries to his brain, kidney, and spleen. He continues to suffer short-term memory issues, blurry vision, and headaches.
2

Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 3 of 21
JURISDICTION AND VENUE 6. This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. §§ 1983 and 1988. 7. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331, 1343(a)(3)-(4) and 1367(a). 8. The acts complained of occurred in the Southern District of New York and venue is lodged in this Court pursuant to 28 U.S.C. § 1391(b).
JURY DEMAND 9. Mr. John demands trial by jury in the action.
PARTIES 10. Kadeem John is a citizen of the United States, and a resident of Brooklyn, New York. At the time these events occurred, Mr. John was 18 years old. At that time, he was in DOC custody at RNDC on Rikers Island in East Elmhurst, New York. 11. Defendant City ofNew York ("City") is a municipal corporation which, through its Department of Correction, operates a number of detention facilities. The Department, through its senior officials at the central office, in each facility, and in its specialized units, promulgates and implements policies, including those with respect to the use, reporting and investigation of force by both inmates and uniformed staff, and access to medical and other program services mandated by local law and court orders. In addition, senior officials in the Department are aware of and tolerate certain practices by subordinate employees in the jails, including those that are inconsistent with formal policy. These practices, because they are widespread, long-standing, and deeply embedded in the culture of the agency, constitute unwritten Department policies or customs. The Department is also responsible for the
3

Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 4 of 21
appointment, training, supervision, and conduct of all DOC personnel, including the defendants referenced herein.
12. At all times relevant hereto, Arthur Olivari was the Supervising Warden of DOC with responsibility for RNDC, acting in the capacity of agent, servant, and employee of the City, within the scope of his employment as such, and acting under color of state law. On information and belief, defendant Olivari, as Supervising Warden, was responsible for the training, supervision, and conduct of all personnel in RNDC, including the defendants referenced herein. As Supervising Warden, defendant Olivari is also responsible for the care, custody, and control of all inmates housed in RNDC. As Supervising Warden, Olivari was provided on a daily basis with reports of inmate-on-inmate violence, applications of force by staff, allegations of unreported use of force, and other breaches of security in the Department jails. In addition, at all relevant times, defendant Olivari was responsible for enforcing the rules of the DOC, and for ensuring that RNDC personnel obey the laws ofthe United States and ofthe State ofNew York. Defendant Olivari is sued in his individual capacity.
13. At all times relevant hereto, Larry W. Davis, Sr., was the Chief of Department of DOC, acting in the capacity of agent, servant, and employee of the City of New York, within the scope of his employment as such, and acting under color of state law. As Chief of Department, he was the highest ranking uniformed member of the department, and was responsible for the supervision, oversight, and discipline of the uniformed security staff in all the Department jails. He was also responsible for the care, custody, and control of all inmates in the Department jails. As Chief of Department, Davis was provided on a daily basis with reports of inmate-on-inmate violence, applications of force, allegations of unreported use of force, and
4

Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 5 of 21
other breaches of security in Department jails. Defendant Davis is sued in his individual capacity.
14. At all times relevant hereto, defendant Emmanuel Bailey was the Warden of RNDC, acting in the capacity of agent, servant, and employee of defendant City, within the scope of his employment as such, and acting under color of state law. On information and belief, defendant Bailey, as Warden ofRNDC, was responsible for supervising correction officers, captains, and other supervisors with respect to the care, custody, and control of inmates confined at RNDC. These responsibilities were required to be carried out in a manner consistent with the legal mandates that govern the operation of the DOC facilities, including Department policies, procedures, directives and protocols. Defendant Bailey is sued in his individual capacity.
15. At all times relevant hereto, defendant Walter Nin was the Deputy Warden for Security ofRNDC, acting in the capacity of agent, servant, and employee of defendant City, within the scope of his employment as such, and acting under color of state law. On information and belief, defendant Nin, as Deputy Warden for security ofRNDC, was responsible for supervising correction officers, captains, and other supervisors with respect to the care, custody, and control of inmates confined at RNDC. He was also responsible for investigating and correcting systemic security problems at RNDC. These responsibilities were required to be carried out in a manner consistent with the legal mandates that govern the operation of the DOC facilities, including Department policies, procedures, directives and protocols. Defendant Nin is sued in his individual capacity.
16. Defendants Olivari, Davis, Bailey, and Nin are collectively referred to as the "Supervisory Defendants."
5

Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 6 of 21
17. At all times relevant hereto, defendant Correction Officer "DJ" Doe, whose full name and shield number plaintiff has been unable to ascertain notwithstanding reasonable efforts to do so, was a correction officer within the DOC, acting in the capacity of agent, servant, and employee of defendant City, within the scope of his employment as such, and acting under color of state law. On information and belief, defendant "DJ" Doe worked at RNDC at the time of the incidents alleged herein, and was assigned to 2 Lower North, and failed to protect plaintiff from assault or intervene in the running of the Program at 2 Lower North. Defendant DJ Doe is sued in his individual capacity.
18. At all times relevant hereto, Correction Officers John/Jane Does# 1-5 (along with Defendant DJ Doe, collectively referred to herein as the "Doe Defendants"), whose actual names and shield numbers plaintiff has been unable to ascertain notwithstanding reasonable efforts to do so, but who are sued herein by the fictitious designation "John Doe" and "Jane Doe," were officers of DOC, acting in the capacity of agents, servants, and employees of defendant City, within the scope of their employment as such, and acting under color of state law. On information and belief, the Doe Defendants worked at RNDC at the time of incidents alleged herein and failed to protect plaintiff from assault or intervene in the running of the Prograrp. at 2 Lower North. The Doe Defendants are sued in their individual capacities.
STATEMENT OF FACTS I. RNDC: A History of Correction Officers Sanctioning Inmate Violence
19. For years-- through Department reports, civil litigation, complaints from prisoners and advocacy organizations, news articles and criminal indictments and convictions-the City and the Supervisory Defendants have been aware of the routine, dangerous and unconstitutional sanctioning of inmate-on-inmate violence at RNDC. In many well-documented
6

Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 7 of 21
instances, DOC staff has instigated, encouraged or sanctioned the use of inmate enforcers to discipline other inmates. That practice caused Mr. John's injuries.
20. RNDC is a facility principally housing 16, 17 and 18 year old males, and, as such, officer-sanctioned violence against these youth is particularly pernicious.
21. On February 26, 2008, the Bronx DA indicted RNDC correction officer Lloyd Nicholson for using inmates as enforcers and encouraging inmate-on-inmate violence. Officer Nicholson was subsequently convicted of gang assault and sentenced to six years in prison. See Bronx District Attorney, Press Release, Former New York City Correction Officer Sentenced to Six Years in Prison For Ordering Inmates on Riker Island to Beat Fellow Detainees at the City Jail, August 6, 2010, at http://bronxda.nyc.gov/information/ 2010/case29.htm.
22. Nicholson's indictment and conviction were the result of investigations by the New York City Department of Investigations and the Inspector General for DOC which, according to the DA, "uncovered a systematic program allegedly run by Nicholson, in which he would use a select group of inmates to maintain order and enforce discipline. The group of inmates would enforce rules of conduct established by Nicholson in exchange for preferential treatment, which included allowing them to extort commissary and telephone privileges as well as personal property from other inmates. It is alleged that Nicholson benefited by not having to constantly monitor his post during his overnight tour of duty." Bronx District Attorney, Press Release, New York City Correction Officer Charged with Gang Assault for Allegedly Ordering Inmates on Rikers Island to Beat Fellow Detainees at the City Jail, Feb. 26, 2008, available at http ://bronxda.nyc. gov/information/2 00 8/case9 .htm.
23. After a bench trial, a judge concluded that "the evidence proved beyond a reasonable doubt that Nicholson, 'acting in concert' with others, caused physical injury to two
7

Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 8 of 21
inmates on June 10, 2007 by ordering six other inmates to beat them. The beating was part of a scheme called 'The Program' in which inmates were used to enforce discipline." Bronx District Attorney, Press Release, Former New York City Correction Officer Convicted of Gang Assault for Ordering Inmates on Rikers Island to Beat Fellow Detainees at the City Jail, June 17, 2010, available at http://bronxda.nyc.gov/information/20 1O/case21.htm
24. On October 17, 2008, "the Program" proved fatal, when teenage inmate Christopher Robinson died at RNDC after being beaten by other inmates.
25. The Bronx DA alleged that Mr. Robinson was "brutally beaten because of his refusal to go along with a violent extortion enterprise against adolescent inmates which was jointly operated by the indicted correction officers and their teenage accomplices."
26. The investigation into Mr. Robinson's death revealed that nine separate officer-sanctioned beatings, of nine different adolescent inmates, had occurred since July 2008.
27. In the wake of Mr. Robinson's death, on January 22,2009, the Bronx DA indicted three RNDC correction officers for conspiracy, enterprise corruption, and/or assault in running "the Program" at RNDC. The DA, in his press release, alleged that correction officers "acted as managers for an organization referred to as 'the Program"' at RNDC. Bronx District Attorney, Press Release, The Death of an 18-Year-Old Inmate on Rikers Island Last October Leads to Numerous Criminal Charges against Three Correction Officers and Twelve Teenage Inmates, Jan. 22, 2009, available at http://bronxda.nyc.gov/information/2009/case3.htm. As the DA was later quoted as saying, "They didn't simply tum a blind eye to violence; they authorized and directed it." John Elgion, Correction Officers Accused ofLetting Inmates Run Rikers Island Jail, N.Y. Times, January 23, 2009. The indictment reportedly said that "the two officers instructed inmates to strike the victims only in the body, to avoid leaving any facial marks that
8

Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 9 of 21
might attract attention. Signals were used to alert inmate to abort assaults when other guards were in the area." !d.
28. Under "the Program," correction officers "would cede responsibility for maintaining order to inmates known as 'the Team' whom they personally selected." The Team would "maintain order" and, in exchange, the officers authorized the Team to extort property from other inmates. "Inmates who refused to go along with the Program were punished by being assaulted" by the Team. The officers would generally "designate the date, time, location and manner ofthe 'beatdown."' !d.
29. As part of"the Program," the officers would conceal evidence ofthese crimes by "failing to intervene or stop the inmate assaults, making false reports about the assaults or directing inmate victims to make false reports regarding the assaults or acts of extortion, and by using violence or the threat of violence to ensure the victims' continued participation in the Program." !d.
30. On information and belief, the criminal case remains ongoing at the time of filing this Complaint.
31. The City and Department were also aware that inmates were suffering injuries from "the Program" through civil litigation. In March 2007, according to allegations in Shuford v. City ofNew York, 09-CV-0945, Tyreek Shuford, an inmate at RNDC, was beaten by other inmates who were assigned by corrections officers to be inmate enforcers at RNDC. According to the allegations in that complaint, the beating arose out of Mr. Shuford's desire to sit in a chair in the dayroom. Notwithstanding the presence of corrections officers, none intervened, or gave Mr. Shuford any medical attention, despite heavy bleeding, for two days.
9

Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 10 of 21
32. On April 16, 2007, according to allegations in another case in this Court (Douglas v. City ofNew York, 07-CV-8443, settled in 2009), Camillo Douglas and Luis Soriano, two RNDC inmates, were beaten by other inmates.
33. According to the allegations in the Douglas Complaint, these beatings were sanctioned by the correction officers in that: (1) at first, all the cells were locked and a correction officer only opened Mr. Douglas's cell, enabling three inmate porters who were members of the Bloods gang to enter and attack Mr. Douglas with broomsticks and metal shanks; (2) while Mr. Douglas was being beaten, a correction officer unlocked all the inmates' cells, enabling additional members of the Bloods gang to beat Mr. Douglas and Mr. Soriano (who had attempted to aid Mr. Douglas); and (3) not a single correction officer attempted to intervene to protect either Mr. Douglas or Mr. Soriano.
34. In fall of 2008, teenage inmate Alcides Polanco, as well as at least five other inmates, was severely beaten for not being a part ofthe "team" at RNDC. This assault occurred merely five days after DOC officials were informed by the Legal Aid Society that another inmate had reported that he was beaten by fellow inmates after being asked if he was "with the Program." The assault on Mr. Polanco was the subject of a case in this Court, Polanco v. City ofNew York, No. 09 Civ. 10131, filed in 2009 and settled and dismissed in 2010.
35. For several years prior to the assault on Mr. John in 2010, the Legal Aid Society had relayed to the Department numerous complaints from RNDC inmates that they were beaten by other inmates for refusing to go along with "the Program," or that they feared for their safety because they did not wish to acquiesce to the gang members' demands.
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Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 11 of 21
36. On November 24, 2008, The Legal Aid Society provided testimony, including over six full pages of written testimony, before the New York City Council about beatings pursuant to "the Program" at RNDC.
37. The DOC Gang Intelligence Unit has compiled extensive data over a period of years documenting large numbers of adolescent inmates who have been assaulted by gang members in "Program"-related incidents. This information confirmed the existence of the Program, and that gangs controlled inmates' daily lives at RNDC, even down to whether inmates could sit at a table. Notwithstanding this investigation and other investigations that have taken place in the wake of the Robinson tragedy, the Program has sadly continued.
38. RNDC is not the only facility at Rikers where guards sanction inmate-oninmate violence. According to press reports, Roger Cullen, a former correction officer at the Anna M. Kross Center ("AMKC"), a facility on Rikers Island, testified under oath about an inmate-on-inmate assault at AMKC in 2003. Cullen testified that the inmate assailant had essentially been deputized as an enforcer by correction officers to control the other inmates.
39. Through DOC's elaborate reporting system, the City and the Supervisory Defendants were aware of the pattern of a large number of incidents involving inmate-on-inmate violence and have failed to take sufficient steps to curb these beatings.
40. The City and the Supervisory Defendants were also aware, or should have been aware, which staff members were involved in incidents in which inmates were injured by other inmates. Yet , notwithstanding that information, they have failed to take sufficient steps to curb these beatings.
41. The City and the Supervisory Defendants were also aware, or should have been aware, ofthe failure of the Department to bring disciplinary charges against those officers
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Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 12 of 21
who sanction or ignore inmate-on-inmate violence, punish staff that sanction such violence, and discourage others from doing so.
42. Through all these cases, Department reports, and other complaints, the City and the Supervisory Defendants have been made aware of the widespread practice by DOC staff of sanctioning or encouraging violence against inmates, at RNDC in particular. They have also been made aware ofthe failures of DOC's Investigation Division to adequately investigate allegations of correction officers' complicity in such beatings, a practice that causes further abuse.
43. Finally, "the Program" has been widely documented and covered in New York media, in numerous articles and television pieces between 2008 and the assault of Mr. John in June 2010. See, e.g., Sarah Wallace, Behind the Walls ofRikers Island, ABC 7 Eyewitness News, April1, 2009, available at http://abclocal.go.com/wabc/story?section=news/ investigators&id=6738749; Graham Rayman, Rikers Fight Club, The Village Voice, Feb. 4, 2009, available at http://www.villagevoice.com/2009-02-04/news/rikers-fight-club; Benjamin Weiser, Lawsuits Suggest Pattern ofRikers Guards Looking Other Way, N.Y. Times, Feb. 3, 2009, available at http://www.nytimes.com/2009/02/04/nyregion/04rikers.html; John Eligon, Correction Officers Accused ofLetting Inmates Run Rikers Island Jail, N.Y. Times, Jan. 22, 2009, available at http://www.nytimes.com/2009/01/23/nyregion/23bronx.html; Graham Rayman, Teen Murder at Rikers Jail, The Village Voice, Nov. 19, 2008, available at http://www.villagevoice.com/content/printVersion/745359.
II. The Events of June 2010 44. PlaintiffKadeem John, then aged 18, was incarcerated and committed to
the custody of the Department on June 10, 2010, for a probation violation and turnstile jump. On
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or around June 14, 2010, Mr. John was moved to the Robert N. Davoren Center ("RNDC"), 2 Lower North ("2LN"), a facility for adolescent males.
45. While in 2LN, Mr. John was subjected to the gang domination and intimidation characteristic of "the Program" at RNDC.
46. Shortly after his arrival, Mr. John learned that an inmate enforcer named "Banks," believed to be a member of"the Bloods" gang, controlled the service of meals, access to telephones, and seating arrangements in the 2LN dayroom. Banks, who had a "Team" of approximately ten members, openly displayed his power in a manner apparent to inmates and DOC staff. To become a member of the "Team," one was required to put in "work"- usually, assault new arrivals to 2LN, and also to clean up around 2LN.
47. Banks and the Team also often required inmates to give them a share of the inmates' commissary allowances. Often, inmates, including Mr. John, would find their commissary items had been removed from their locked cells, and the prevailing wisdom was that Banks or his Team had seized them with the cooperation and facilitation of uniformed staff.
48. Banks's domination was blatant and apparent to the staff, including Defendant Officer DJ Doe and Officer John/Jane Does #1-#5, who were steady officers and observed the gang's demands. Banks sat on top of the Team table, and openly displayed his authority. He often received gifts and extra commissary items passed under his cell door. Banks also controlled the distribution of cigarettes within 2LN. The Supervisory Defendants and Doe Defendants were aware ofthis behavior.
49. Although correction officers would inform inmates when they could use the telephones in 2LN, Banks had an effective veto over their decisions, and would often tell
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Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 14 of 21
inmates they could not use the phone. The Supervisory Defendants and Doe Defendants were aware of this behavior.
50. In the 2LN dayroom, there were three tables, one for Bloods to sit at, one for "the Team," and one referred to as "the dick table," for inmates who were not allowed to sit at either of the other tables.
51. When Mr. John first arrived in 2LN, he did not sit at a table in the dayroom at all; he stood while eating or watching television. After approximately four days, though, tired of standing, he sat down at the Team table. Shortly after, Banks told him he was not allowed to sit there. Banks ordered Mr. John to perform clean up chores or to share his commissary. After Mr. John refused to do so, Banks glared at Mr. John, physically blocked his path with his body, and bumped his shoulder, a gesture Mr. John understood to be threatening. This incident was in open view of the correction officers in the dayroom and in the "bubble."
52. A few days after this incident, out of fear, Mr. John began to sit at the dick table.
53. About a week after Mr. John arrived at 2LN, two new inmates were admitted to 2LN. Mr. John saw Banks take them to the comer and talk with them. Mr. John was later told that the new inmates were told they "would have to put in some work," meaning fight another inmate, to sit at the Blood or the Team table. These new inmates were permitted to sit at the Blood table and were not required to give Banks a portion of their commissary allowance.
54. Shortly thereafter, Mr. John saw two inmates beaten by gang members, including the two newly admitted inmates, in the dayroom. A correction officer intervened in an attempt to stop the beatings, but failed to succeed in doing so. One of the assaulted inmates was brought back to the housing area, where Mr. John heard the inmate's assailants taunting him all
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night, saying, "When we lock you out, it's over for you." The assailants were never moved out of the house. The Supervisory Defendants were, or should have been, aware of this incident.
55. After this fight occurred, a response squad came to the housing area. An Department Captain, whose name is not known, ordered each of the 2LN inmates to line up, on their knees, with their hands behind their heads. The Captain then proceeded to kick each of the inmates, including Mr. John, serially.
56. A few days later, a new inmate (name unknown) who was known to other inmates to be a member of the Bloods transferred to the house. In front of the correction officers, other members of the Bloods asked him, "What's poppin?" (a known Blood greeting), and "What you going to be doing when you get in here?" (a reference to the "work" he would be "putting in"). The corrections officers assigned to 2LN overheard this, yet failed to do anything.
57. Shortly thereafter, Mr. John was told by another inmate that Banks had told this new inmate to "kick Kadeem out of the crib" and that Mr. John was about to "get killed," meaning beaten.
58. The new inmate started to give Mr. John threatening looks, and would frequently intentionally bump him in the dayroom and dining area, which Mr. John understood to be a subtle threat. The inmate also made it a point to be directly behind Mr. John whenever the inmates lined up to move around the facility. This was in full view of the Doe defendants.
59. On Saturday, June 26, Mr. John was in a group of inmates from 2LN and 2 Lower South who went to the gym. While in the gym, Mr. John felt he was being watched by other inmates.
60. After the group lined up to return to 2LN, the newly arrived inmate asked the inmate behind Mr. John to switch places with him. This inmate then stepped on the back of
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Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 16 of 21
Mr. John's sneaker in order to provoke a fight. The group walked down the main corridor, then turned into a stairwell leading to 2LN. At that moment, in the presence of the escorting officers, Mr. John was hit in his temple from behind, then struck in the face and lower back. Approximately four other inmates besides his initial assailant then joined in the beating, while another inmate was being beaten concurrently in the same stairwell. No correction officer intervened to protect Mr. John. Mr. John eventually fell to the floor of the landing and lost consciOusness.
61. Inmates at RNDC are not allowed to walk from the gym to their unit without escorting officers. The escorting officers, Defendant Does, failed to intervene or adequately protect Mr. John from this beating. This beating would not have been possible without the explicit or implicit sanctioning of Department officers, who turned a blind eye to the assault. The Defendant Does also failed to immediately seek medical assistance for Mr. John, in a show of deliberate indifference to the safety and security of inmates.
62. Mr. John woke up in the dayroom of the housing area, lying on a table, feeling intense discomfort in his abdomen. After a significant period of time passed, where one or more correction officers told Mr. John to "stop sleeping," another correction officer eventually emerged from the observation bubble and obtained medical assistance. Mr. John was escorted to the clinic, where he was put on a gurney and taken to Elmhurst Hospital by emergency medical services. Mr. John was slipping in and out of consciousness while at Rikers.
63. Upon arriving at the hospital, Mr. John was diagnosed with a number of serious injuries, including a subarachnoid hemorrhage, splenic hematoma, and left kidney laceration. A later examination indicated a left frontal/mandibular bruise. In addition to
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abdominal and severe head pain, Mr. John had grossly bloody urine. Four days later, he was discharged to Rikers Island and given a prescription for anti-epileptic medication.
64. Upon returning to Rikers, Mr. John experienced worsening headaches, dizziness, blurry vision, and continued renal bleeding. He was referred to Bellevue Hospital on July 7 for follow-up treatment, where a CT scan revealed, inter alia, a renal laceration measuring 1.4 em.
65. Mr. John continues to suffer lingering effects from the beating he suffered. He periodically experiences headaches and violent stomach pain. He has blurry vision in his right eye, and experiences difficulties with short-term memory.
FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983/ Eighth and Fourteenth Amendments
(against Supervisory Defendants and the Doe Defendants)
66. Plaintiff repeats and realleges the foregoing paragraphs as if the same were fully set forth at length herein.
67. On or about June 26, 2010, Mr. John was beaten by several inmate assailants and the Doe Defendants failed to intervene or otherwise protect Mr. John as they were obligated to do, as alleged above.
68. By reason of the foregoing, and by sanctioning, encouraging, and failing to prevent inmate assailants from assaulting, battering, and using gratuitous, excessive, brutal, sadistic, and unconscionable force, the Supervisory and Doe Defendants deprived plaintiff of rights, remedies, privileges, and immunities guaranteed to every citizen of the United States, secured by 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution to be free from cruel and unusual punishment and gratuitous and excessive force.
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69. The Supervisory and Doe Defendants acted under pretense and color of state law and in their individual and official capacities and within the scope of their employments as DOC officers and employees. Said acts by defendants were beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers. These defendants acted willfully, knowingly, and with the specific intent to deprive plaintiff of his constitutional rights secured by 42 U.S.C. § 1983, and the Eighth and Fourteenth Amendments to the United States Constitution.
70. The Supervisory Defendants knew that the pattern of sanctioned inmateon-inmate assaults described above existed in the City jails, including RNDC, prior to and including the time of the assault on plaintiff. Their failure to take measures to curb this pattern of misconduct constitutes acquiescence in the known unlawful behavior of subordinate staff. The prevalence of these practices and general knowledge of their existence at the time of plaintiffs beating, and the failure of defendants to take remedial action despite the fact that the use of inmate enforcers had been persistently brought to their attention, constitutes deliberate indifference to the rights and safety of the inmates in their care and custody, including the inmate named as a plaintiff in this action. These defendants' conduct has been a substantial factor in the continuation of such violence and a proximate cause of the constitutional violations alleged in this complaint.
71. As a direct and proximate result of the misconduct, abuse of authority detailed above, plaintiff sustained the damages hereinbefore alleged.
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Case 1:11-cv-05610-RPP Document 1 Filed 08/12/11 Page 19 of 21
SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983/Eighth and Fourteenth Amendments
(against City of New York) 72. Plaintiff repeats and realleges the foregoing paragraphs as if the same were fully set forth at length herein. 73. Defendant City, through DOC, and acting under the pretense and color of law, has permitted, tolerated and been deliberately indifferent to a pattern and practice of inmateon-inmate assaults sanctioned by uniformed staff and their superiors. The City has been on notice ofthe existence of the Program and the injuries it has inflicted on inmates such as Mr. John for several years, and failed to adequately protect inmates from such violence. The widespread tolerance of correction officers' sanction of inmate assaults, and the existence of the Program generally, constitutes a municipal policy, practice or custom and led to plaintiffs assault. 74. By permitting, tolerating and sanctioning a persistent and widespread policy, practice and custom pursuant to which plaintiff was subjected to a brutal beating by inmate assailants on June 26, 2010, defendant City has deprived plaintiff of rights, remedies, privileges, and immunities guaranteed to every citizen of the United States, secured by 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the Fourteenth Amendment to the United States Constitution to be free from gratuitous and excessive force. 75. As a direct and proximate result of the misconduct, abuse of authority and the policy, practice and custom detailed above, plaintiff sustained the damages hereinbefore alleged.
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THIRD CLAIM FOR RELIEF Negligence
(Against all Defendants) 76. Plaintiff repeats and realleges the foregoing paragraphs as if the same were fully set forth at length herein. 77. Defendant City, through the DOC, the Supervisory Defendants, and the Doe Defendants, owed a duty of care to plaintiff to prevent the conduct alleged, because under the same or similar circumstances a reasonable, prudent and careful person should have anticipated that injury to plaintiff or to those in a like situation would probably result from the foregoing conduct. 78. Despite their knowledge of the existence of the Program and the injuries it has inflicted on dozens of adolescent inmates at RNDC, the City, the Supervisory Defendants, and the Doe Defendants, failed to take adequate steps to address the Program's existence and protect the inmates at RNDC. This failure constituted a breach of their duty, and proximately caused the assault of Plaintiff in June 2010. 79. Additionally, despite their duty to protect Mr. John while escorting him from the gym to 2LN in June 2010, the Doe Defendants failed to take reasonable steps to do so. This failure constituted a breach oftheir duty, and proximately caused the assault on Plaintiff in June 2010. 80. As a direct and proximate result of the negligence detailed above, plaintiff sustained the damages hereinbefore alleged.
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PRAYERS FOR RELIEF WHEREFORE, plaintiff requests that the Court grant the following reliefjointly and severally against defendants:
1. Compensatory damages in an amount to be determined at trial for the physical and psychological injuries sustained by Mr. John as a result of the events alleged herein.
2. Punitive damages in an amount to be determined at trial. 3. An order awarding plaintiff reasonable attorneys' fees, together with the costs of this action. 4. Such other further relief as the Court may deem appropriate. Dated: August 11, 2011 New York, New York
EMERY CELLI BRINCKERHOFF &ABADYLLP
Jonathan S. Abady Adam R. Pulver 75 Rockefeller Plaza, 20th Floor New York, New York 10019 (212) 763-5000 THE LEGAL AID SOCIETY Jonathan S. Chasan Mary Lynne Werlwas 199 Water Street, 61h Floor New York, New York 10038 (212) 577-3530 Attorneys for Plaintiff
21

 
 Case 1:11-cv-05610-RPP Document 34 Filed 06/15/12 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRlCT OF NEW YORK
KADEEM JOHN, Plaintiff,
-against-
CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTION ("DOC") SUPERVISING WARDEN ARTHUR OLlVARI; CAlEF OF DEPARTMENT LARRY W. DAVIS, SR.; WARDEN EMMANUEL DAlLEY; DEPUTY WARDEN WALTER NIN; CORRECTION OFFICER "DJ" DOE; and CORRECTION OFFICER JOHN DOES #1-#5,
Defendants.

No. 11 Civ. 5610 (RPP)
STIPULAnON AN)) SInTLEMENT OF ATTORNEYS' FEES

WHEREAS, Plaintiff commenced this action on August 8, 2011, alleging violations offedel'al and slate law, and
WHEREAS, Plaintiff filed a motion for sanctions on February 7, 2012 and WHEREAS, thc Court granted Plaintiffs motion 011 March 28, 2012, and WHEREAS, counsel for Plaintiff and Defendants now desire to resolve the issue of Plaintiff's counsels' attorney fees, costs and expenses, accrued in connection with their
motion for sanctions without further proceedings; and NOW, THEREFORE, IT IS HEREBY STIPI1LATED AND AGREED, by
and between the undersigned, the attorneys of record for the respective parties (0 the above captioned action, as follows;
1. Defendal1t City of New York shall pay to Plaintiff's cl)unsel Emery Celli Brinckcl'hoff & Abady LLP ("EeBA") the sum total ofThirteen Thousand Dollars ($\3,000,00) for work conducted by ECBA and The Legal Aid Society in this action in connection with

Case 1:11-cv-05610-RPP Document 34 Filed 06/15/12 Page 2 of 3
Plaintiffs motion for sanctions dated February 7,2012. This payment shaU be in [llll satisfaction of all claims by ECBA, The Legal Aid Society, and/or Pluintiff fur Llttorncys' fees, costs and/or expenses accrued in connection with Plaintiff's motion for sanctions dated February 7. 2012. ]n the event of rulY future award ofHttorneys' fees and costs in this action, Plaintiff's counsel and/or Plaintiff will not seek any additional compensation for att0l1leys' fees, costs and/or expenses accrued in connection with Pluintiff's motion for sanctions dated February 7, 2012.
2. Nothing contained hereill shall be deemed to be nn admission by the Defendants that they have in any manner or way violated PlaintifJ's rights, or the rights of any other person or entity. as defined in the constitutions, statutes, ordinances, rule::; or regulations of the United States, the Stale of New York, or the City of New York or any other rules, regulations or bylaws afany department or subdivision of the City of New York.
3. This Stipulation and Order contains all the te1111S and conditions agreed upon by the parties hereto, and nQ ora! agreement entered into at any lime nor any written agreement entered into prior to the execution of this Stipulation and Order regarding the subject matter of the instant proceeding shall be deemed to exist, or to bind the parties hel'eto, or to vary the tenm; and conditions contained herein.
4. This Stipulation shaH Ilot be admissible in, nor is it related lo, lIny other litigation. or settlement negotiations, and nothing contained herein shall be deemed to constitute a policy or practice of the City of New York.
5, The parties further agree that facsimile or electronic copies of signatures are equivalent to originals.
?

Case 1:11-cv-05610-RPP Document 34 Filed 06/15/12 Page 3 of 3

Dated: New York, New York

{j~[I/L~ June {~, 2012,
By: ___

t~~~~-~,

Katherine Roscofeli(

Adam R. Pulver

EMERY CELLI BRINCKERHOFF

&ABADYLLP

75 Rockefeller Plaza, 20th Fl.

New York, New York 10019

(212) 763-5000

-and-

THE LEGAL AID SOCIETY 
 Jonathan S. Chasan 
 Mary Lynne Werlwas 
 199 Water Street, 6th Floor 
 New York, New York 10038 
 (212) 577-3530

Attorneys for Plaintiff

SO ORDERED:

Die guyen, Asst. Corp. Counsel MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE
CITY OF NEW YORK 100 Church Street New York, New York 10007 (212) 341·9848
Attorney for Defendants

3