SDNY Says Prison Brass Can be Sued for Sex Abuse of Inmate New York State officials claimed that they cannot be sued for the sex abuse, cover-up, and retaliation against Yekatrina Pusepa, a female inmate at Bedford Hills Correctional Facility, at the hands of a prison guard. Last week, a federal judge said they were wrong.

In October 2017, our office, partnering with the Law Offices of Daniel A. McGuinness, P.C., filed a lawsuit alleging that prison officials created an environment that failed to protect Ms. Pusepa, and other female inmates, from the sexual advances of correction staff. Ms. Pusepa, who was 25 at the time, was repeatedly approached by Corrections Officer Ruben Illa. Illa’s advances were notorious in the prison and, the complaint alleges, prison staff knew what Illa was doing and did nothing to stop it, preferring to hold Ms. Pusepa out as bait to try to catch Illa in the act. On one occasion, Illa groped Ms. Pusepa in her cell while two inmates held up a curtain to block the view. On another, he tried to have sex with her in a supply closet, but got scared off. On December 2, 2015, Illa called Ms. Pusepa out to the prison’s medical clinic for no apparent reason, then wrote her up for being out of place. After resigning from the prison, he pled guilty to filing a false report. He denies the sexual contact.

But Ms. Pusepa’s ordeal did not end with the sex abuse. When she refused to cooperate with a Department of Corrections investigation, she was thrown into solitary confinement on trumped-up charges, purposely left alone with a notoriously violent inmate, and verbally threatened and harassed by prison staff, the suit alleges. According to the lawsuit, top officials including Anthony Annucci, Acting Commissioner of DOCCS, Jason Effman, Associate Commissioner and PREA (Prison Rape Elimination Act) Coordinator for DOCCS, and Sabina Kaplan, the Superintendent at Bedford Hills were responsible for what happened to Ms. Pusepa because they were deliberately indifferent to the danger she faced from the guard who assaulted her.

In a motion to dismiss, the supervisory defendants argued they had “no personal involvement” in the illicit conduct against Ms. Pusepa and could not be held liable. Defendants also claimed that Ms. Pusepa was “advocating for aspirational and unrealistic policy changes” to the prison system — changes that could have prevented the unconstitutional conduct.

A federal court in the Southern District of New York did not find Ms. Pusepa’s suggested policies to be either aspirational or unrealistic:

“[Plaintiff] emphasizes that these Defendants allowed prolonged, unmonitored, one-on-one contact between male correction officers and female inmates in areas where sexual abuse was easily accomplished, failed to implement unpredictable supervisory rounds, and failed to enact policies to monitor and discipline staff who engaged in suspicious behavior with inmates. Far from a simple wish list of policy changes, the Second Amended Complaint alleges how this combination of specific policies was the cause of a reasonably foreseeable constitutional violation.”

The consequences of these unsafe policies? Seven criminal charges of rape against Bedford Hills staff, including one conviction and two guilty pleas since 2009; at least seven pregnancies of inmates conceived with DOCCS staff since 2000; and over 200 complaints of “staff sexual misconduct” received by the Office of Special Investigations each year. It’s not “aspirational and unrealistic” to demand an end to the scourge of sexual assaults by prison guards.

Still, defendants argued that they did not have adequate notice that their policies were ineffective at preventing staff from sexually assaulting inmates. Again, the Court did not agree:

“In the Court’s view, it is plausible that this evidence of sexual abuse — particularly the allegations regarding BHCF, where Plaintiff is incarcerated — would have put the Supervisory Defendants on notice that existing policies at BHCF were deficient.”

State officials are finally being held accountable for policies that have repeatedly failed to protect inmates from being raped by prison staff.

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