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The PEOPLE of the State of New York EX REL. Eric M. BURSE, Esq., on behalf of Relator G, Petitioner, v. Vincent SCHIRALDI, Commissioner, New York City, Department of Correction, Respondents.
In this writ of habeas corpus, Relator G 1 challenges the legality of his pretrial detention at Rikers Island. Relator G's sole claim is that his pretrial detention is unlawful under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This writ was filed in the wake of a motion to seek relief under a federal consent decree in Nunez v. City of New York et al., 11-cv-5845 (SDNY).2 This writ not only corroborated the independent Monitor's general findings in Nunez, but gave them a specific human face. Based on the credible testimony and overwhelming supporting video evidence of deliberate indifference, the writ is sustained and the application to release Relator G is granted. The court makes the following findings:
Relator G, having been charged with burglary in the first degree, was committed to the custody of the New York City Department of Correction (“DOC”) at his New York County Criminal arraignment on June 21, 2021. Relator G filed the instant writ on October 4, 2021, pursuant to CPLR § 7002(a) and § 7002(b)(5). In the petition, Relator G argued that his continued pretrial detention violated both the New York State and Federal Due Process Clauses. In the absence of a finding of a constitutional violation, Relator G asked the court to hold a bail hearing. Following a pre-hearing conference, Relator G withdrew his New York State constitutional claim and his request for a bail hearing. As a result, the sole claim at issue is whether Relator G's pretrial detention is unlawful under the United States Constitution.
Pursuant to CPLR § 7009, and because there were material issues of fact raised by the paper submissions, the court held an evidentiary hearing on the writ. At the hearing, Relator G testified on his own behalf and was cross-examined by DOC counsel. Based on their status as an interested party, the Manhattan District Attorney's Office also participated in the hearing and made legal arguments. See CPLR § 7009(a)(3). However, the court denied the District Attorney's request to cross-examine witnesses as the sole issue raised by Relator G concerned prison conditions at Rikers Island and the deliberate indifference of DOC officials.
On Friday, November 5, 2021, at the close of petitioner's case, DOC announced its intention to call witnesses. The court then granted the petitioner's application to have Relator G released on electronic monitoring pending a decision on the writ. See CPLR § 7009(e). The court found that Relator G established a substantial likelihood of success on the merits and a significant threat of retaliatory violence due to the filing of this writ. See Strachan v. Soloff, 157 A.D.2d 122, 554 N.Y.S.2d 565 (1st Dept. 1990). See also Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001) (noting that federal courts have inherent authority to admit individuals to bail pending disposition of the merits of the habeas petition provided that petitioner raises “substantial” claims and shows that “extraordinary circumstances” exist that make the grant of bail necessary.).
Throughout his testimony, Relator G described squalid conditions, rampant violence among and to detainees, and a lack of essential services such as food and water; Relator G ascribed these conditions mostly to a lack of supervision of other detainees who bullied and commandeered resources. DOC admitted Relator G to an intake unit on Rikers Island on June 21, 2021. Relator G testified that he was held in the intake unit with about 15 other individuals for 3 days—well past the 24-hour timeframe in which inmates are required to be assigned to a housing unit. See Second Remedial Order at 3, Nunez (SDNY) (Sept 29, 2021). This small intake unit had one bathroom and no mattresses or blankets. After three days in the intake unit, correctional officers (hereinafter “COs”) transferred Relator G to a 50-person housing unit at the Otis Bantum Correction Center (OBCC). While at OBCC, three individuals physically assaulted Relator G, after which he was taken to a segregation unit for three days and then to a 50-person housing unit at the George R. Vierno Center (GRVC). At this unit, Relator G once again was assaulted, this time by as many as four detainees, who attacked him with sharp objects fashioned from plastic and metal.3 Relator G received the sum total of two ibuprofens from medical staff to treat injuries from the assault, which included a black eye and bruised ribs.
After the second assault, DOC officials moved Relator G to the intake area at GRVC, where he stayed for 11 days. At the GRVC intake, Relator G was by himself in a small cell with no blankets or mattresses. He could not leave the cell. Relator G testified that he attempted to get the attention of DOC officials to move him out of intake but that they could not do so because of staffing shortages. Relator G testified that during both of his stays in intake units at Rikers, there were days in which he received no food at all. On the days he did receive food, he received no more than one meal per day, which typically consisted of a single bowl of cereal and several scoops of jelly. After this 11-day stint in intake, DOC transferred Relator G to Unit 5B, another 50-person housing unit at GRVC.
During his testimony, Relator G depicted a state of affairs at Rikers where a skeleton staff of COs ceded control of basic jail operations to other selected incarcerated individuals, whom Relator G referred to as “the leaders.” Relator G testified that the leaders at the various housing units controlled other detainees’ access to food, with the leader receiving meals first and then rationing out the remaining food to the other detainees. The leaders would also control the supply of water in the cell block by directing COs to place the unit's water jug in the cell of a detainee loyal to the leader, i.e. a sidekick. Relator G also testified that he had to request permission of the leader in his cell block to make phone calls, furthering an atmosphere of fear and intimidation.
Relator G offered uncontradicted testimony that he received no recreation time for months. After the writ was filed, for the first time, a recreation team appeared in cellblock 5B. However, Relator G testified, and video surveillance shows, a CO attempting to take the inmates of 5B out of the housing unit to “the yard” for recreational time, only to be overruled by the leader. Relator G testified that he overhead the leader arguing with the recreation COs, with the leader saying that it was “too early” for recreation and that they should come back later. The video supports this testimony as the leader is shown waving and gesturing to the recreation COs. They then leave the unit.
Relator G also testified to a “fight night” incident on October 19, 2021, whereby the leader of 5B forced other inmates to fight each other inside a cell while the rest of the inmates in the housing unit crowded around and cheered. The cells in this unit have concrete floors and metal bed frames and toilets. After witnessing two fights, the leader tapped Relator G on the shoulder, indicating that he was being selected for the next fight. The leader then had Relator G fight another inmate with full force until the leader gave permission to stop. The leader then brought Relator G to his cell, where Relator G received cigarettes and extra food as a reward for fighting. Relator G testified that COs within the housing unit had full knowledge of what was happening during the fight night. Relator G testified—and video surveillance corroborates—that after the first two fights, a female CO approached the leader to tell him to “quiet things down” and make the violence appear less obvious to COs stationed where this could be observed on the monitors. The video surveillance also shows one CO watching several of the fights from an elevated position on the second tier of the housing unit. At no point did any correction official attempt to break up the fights.
During cross-examination, DOC counsel repeatedly asked why Relator G never reported any incidents of violence or poor conditions to DOC staff. Relator G testified that he did not submit a complaint to DOC staff because he had heard about instances of retaliatory violence against those who filed complaints, including an inmate who was jumped after complaining about the leader not allowing him to use the shower. Relator G testified that he felt compelled to participate in the fight night because he feared retaliatory violence if he refused.
The court finds Relator G's testimony credible for several reasons. First, DOC's video surveillance footage corroborates most of Relator G's allegations. Relator G's testimony about the fight night incident perfectly matches the video footage from that night. Similarly, Relator G's claim about the leader overruling a CO about recreational time can also clearly be seen in the video footage. Additionally, the federal monitor's reports in Nunez further corroborate much of Relator G's testimony. The monitor's reports detail how Relator G's lengthy periods in intake are part of a larger systemic pattern in which delays in transferring detainees out of intake causes delays in providing medical services to detainees. The monitor also notes the lack of mandatory recreation, that food and other basic services are not routinely provided to detainees in intake, which is consistent with Relator G's testimony of lack of food and medical treatment while in intake.
In addition to this corroborating evidence, the court notes that DOC failed to present any evidence that might contradict the major allegations raised by Relator G in his testimony. DOC chose to call only one witness, CO Abdul Khlek, to testify during the hearing. Officer Khlek's testimony was limited to subjects of limited relevance to Relator G's claims, such as DOC policies regarding the securing of cell doors at night and viewing of surveillance footage. The petition does not challenge DOC's stated procedures, but rather the actual practices that have come to pass at this facility. While officer Khlek is regularly stationed in Unit 5B, he was off duty during the fight night incident. He had no personal knowledge of any of the violent incidents described by Relator G and captured by the video surveillance footage, or anything to offer about the intake units. DOC had every opportunity to call COs who did have personal knowledge of these incidents and to rebut the claims made by Relator G, but elected not to. As indicated below, the silence spoke volumes.
The US Constitution “does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). However, it does not permit inhumane prisons either. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Specifically, the Supreme Court has interpreted the Eighth Amendment's prohibition of “cruel and unusual punishment” as imposing duties on prison officials to provide humane conditions of confinement, ensure that inmates receive adequate food and medical care, and take reasonable measures to guarantee the safety of inmates. See e.g., Brown v. Plata, 563 U.S. 493, 508, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011); Farmer, 511 U.S. at 832, 114 S.Ct. 1970; Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Additionally, prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Farmer, 511 U.S. at 833, 114 S.Ct. 1970. While these decisions concern the rights of convicted prisoners under the Eighth Amendment, the Supreme Court has held that the Due Process Clauses of the Fifth and Fourteenth Amendments provide at least as great protection to pretrial detainees. See Kinglsey v. Henderson, 576 U.S. 389, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015); City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983).
To establish a Due Process Clause claim for unconstitutional conditions of confinement, a pretrial detainee must show that prison officials acted with “deliberate indifference” to the challenged conditions. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). A pretrial detainee must satisfy two prongs to establish a deliberate indifference claim: an “objective prong” showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process, and a “mens rea prong” showing that the officer acted with at least deliberate indifference to the challenged conditions. Id. To establish an objective deprivation, a pretrial detainee must show that the prison conditions pose an unreasonable risk of serious damage to physical and mental health. There is no “static test” for determining whether a deprivation is sufficiently serious. Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Instead, the challenged conditions must be evaluated in light of contemporary standards of decency. Id.
As to the mens rea prong, the federal circuit courts differ on whether prison officials must have actual knowledge of the conditions that pose an unreasonable risk or whether it is sufficient for a petitioner to show that prison officials should have known and were reckless with respect to the conditions that posed an excessive risk to health or safety. Compare Darnell with Whitney v. City of St. Louis, 887 F.3d 857 (8th Cir. 2018). Nonetheless, if prison officials cannot meet their Due Process obligations to detainees, then courts, where appropriate, must remedy the constitutional violation by releasing detainees from prison. See Brown v. Plata, 563 U.S. 493, 511, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011).
Under either applicable standard, Relator G has met his burden. Whether prison officials must have actual knowledge is not at issue here because there is no doubt that DOC officials had actual knowledge of the threats to Relator G's health and safety. As discussed above, COs in Relator G's housing unit knew that inmates were being forced to fight each other yet did nothing to intervene. Furthermore, the Office of the Monitor in Nunez v. City of New York has repeatedly detailed the extent of the current crisis at Rikers and provided recommendations for how DOC should address these problems so that detainees like Relator G do not suffer unreasonable risks of serious harm. The monitor's office described Rikers Island as having a “pervasive high level of disorder and chaos” stemming from the culmination of decades of mismanagement and dysfunctional staffing practices. Nunez, Monitor's Report at 1-2 (Aug. 24, 2021). These systemic issues have resulted in the steady increase in serious use of force incidents, significant delays in transferring detainees out of intake, the deterioration of basic security protocols, and the denial of basic services. Id. at 2-3. “This state of seriously compromised safety has spiraled to a point at which, on a daily basis, there is a manifest risk of serious harm to both detainees and staff.” Id. at 4. In response to the monitor's findings, Judge Laura Taylor Swain of the Southern District of New York ordered DOC to implement the monitor's recommendations to address current lapses in security management. Second Remedial Order, Nunez (SDNY) (Sept. 29, 2021).
While the monitor's office has noted some recent positive actions to address the mass absenteeism of correctional officers, the monitor maintains that the risk of harm to incarcerated persons in the daily operations of the jails remains high. See Nunez, Monitor's Report at 1-2 (Nov. 17, 2021). On October 19, 2021—the day of the fight night incident—there were 1,467 uniformed DOC staff out on sick leave, 31 COs who did not report for a shift without providing a reason, and 73 reported instances of a housing unit having no or insufficient staff. Id., Appendix B. The rate of staff absenteeism remains high as the number of COs who did not report for a shift without providing a reason increased from 37 people on September 23rd to 39 people on November 3rd. Id., Appendix B. DOC officials have also continued to fail to provide adequate medical care to detainees on Rikers. In September 2021 alone, DOC reported more than 8,300 instances in which incarcerated people were not produced for scheduled medical services. DOC September 2021 Medical Non-Production Report, available at https://www1.nyc.gov/site/doc/about/monthly-medical-reports.page. Earlier this month, Judge Elizabeth Taylor of the Supreme Court, Bronx County ordered that DOC must ensure that detainees can go to on-site clinic at least five days a week and within 24 hours after a visit request. Agnew et al. v. DOC, Index No. 813431/2021E, Decision and Order (Sup Ct, Bronx County) (December 6, 2021).
DOC acknowledges the current staffing crisis at Rikers Island but denies that prison officials have been deliberately indifferent to Relator G's risk of harm. DOC maintains that they have taken several short and long-term actions to improve conditions at Rikers. These measures include revising sick leave policies to reduce absenteeism and recruiting former DOC staff to increase the number of available staff. Furthermore, DOC notes that overcrowding is beginning to improve as 350-400 individuals are expected to be released from Rikers following the Governor's “Less is More Act”. See Governor's Memo approving NY-Senate-Assembly bill S1144A, A5576A. In light of these actions, DOC asserts that they have not committed a constitutional violation as they are taking reasonable care to mitigate the risk of harm at Rikers Island.
Furthermore, DOC claims that Relator G's injuries were not sufficiently serious to constitute an objective deprivation. DOC points to the fact that Relator G, nor any of the other detainees in his housing unit, suffered any serious injuries that required medical attention during the fight night incident. DOC also argues that Relator G's diagnoses of anxiety, ADHD, and moderate drug dependency did not constitute serious or life-threatening mental health conditions, such that any failure to provide medication did not constitute an objective deprivation. Finally, DOC argues that the leader of the housing unit merely “bullied” Relator G by denying him food and water and forcing him to engage in the fight night incident, and that such bullying is not sufficiently serious to form the basis of a successful deliberate indifference claim.
To put it bluntly, this court disagrees. Based on the evidence presented, the court concludes that DOC was deliberately indifferent to an unacceptable risk of harm to Relator G's well-being. Relator G has conclusively established that DOC failed to act—and continues to fail to act—with reasonable care to mitigate unreasonable risks to his health and safety that were known to DOC. Specifically, DOC failed to protect Relator G from constant physical violence and the implicit threat of violence engendered by DOC ceding control of the housing units to detainees. While Relator G readily acknowledged on cross examination that he was only mildly scraped up when forced to fight by the leader, this is not a defense when individuals who have no other recreation are then compelled to go at one another, unsupervised, in an enclosed area consisting entirely of concrete and metal. Further, aside from the control by the leaders, the court finds that DOC failed to provide Relator G with adequate food and medical care on an ongoing basis, particularly within the intake units. These conditions of confinement are sufficiently serious to pose a risk of serious damage to Relator G's physical and mental soundness. Furthermore, DOC officials knew about these conditions and failed to take reasonable care to mitigate the excessive risks to Relator G's well-being.
Additionally, although not addressing the main claim, Dr. Ronald Paynter testified that in his opinion, Relator G received inadequate medical care during his detainment at Rikers. Dr. Paynter diagnosed Relator G as suffering from anxiety, ADHD, and moderate drug dependency. Upon arriving at Rikers, Relator G had a health intake appointment where he was prescribed a two-week course of medication to help with drug withdrawal. However, Relator G only received one dose that day and never received any other doses of the withdrawal medication. Relator G also testified that he never received any additional mental health medication throughout his time at Rikers. Relator G also testified that after testing positive for COVID, he was removed to another housing area for only two days and returned to the same housing unit without any explanation. While these claims of insufficient medical care would not be sufficient in and of itself to sustain the writ, Relator G's testimony fits the overall pattern of DOC failing to provide adequate medical care to detainees on Rikers Island. See Agnew et al. v. DOC, Index No. 813431/2021E, Decision and Order (Sup Ct, Bronx County) (December 6, 2021).
DOC points out that two courts of coordinate jurisdiction have recently dismissed writs based on the current conditions at Rikers, People ex re. Belkin (Perez) v. Schiraldi, Index No. 812951/2021E, Decision and Order (Sup Ct, Bronx County) (September 30, 2021), and People ex rel. Rodriguez (Mustafaev) v. Schiraldi, SCID No. 30115-2021, Decision and Order (Sup Ct, NY County) (October 5, 2021). In denying the respective habeas writs, both courts found that the petitioners failed to establish deliberate indifference. The case at hand differs markedly from these two decisions. First, the petitioner in Mustafaev mainly challenged his bail conditions rather than the actual jail conditions at Rikers. Second, unlike the petitioner in Perez, Relator G's claims of horrific personal treatment were neither “exaggerated” nor “fabricated.” Perez at 2. As discussed above, DOC's video surveillance and the Nunez monitor's reports largely corroborate Relator G's claims of violence and inadequate medical care. Neither court actually held a fact-finding hearing. No similar findings of fact were made in Mustafaev or Perez.
In Perez, the court of the Supreme Court, Bronx County, acknowledged that conditions at Rikers are “deplorable” and “deadly serious.” Id. at 1. Nonetheless, the court dismissed the writ indicating that the petitioner's claim fell short of meeting the deliberate indifference standard in part because “there is no proof that these conditions affect relator in any way different from any other detainee.” Id. at 3. To this court, it is not at all clear why a habeas petitioner would need to show that they have suffered an injury that is unique as compared to other detainees. As discussed above, the deliberate indifference standard has two prongs, neither of which requires a showing of unique injury. In fact, reading in this type of requirement would mean that habeas petitioners would be less likely to prevail as overall prison conditions deteriorate as a petitioner will likely experience some unacceptable risk of harm that is at least partially connected to the risks that all detainees within the same correctional facility might face. Such a perverse outcome undoubtedly runs contrary to the due process protections afforded to pretrial detainees, as well as the Eighth Amendment's prohibition against cruel and unusual punishment.
DOC also objects to release in this case because they fear that granting Relator G's writ application will open the floodgates to challenges from other detainees who experience similar conditions at Rikers, resulting in an unwelcomed intrusion into DOC's day-to-day operations. Yet courts cannot shrink from the obligation to rectify constitutional violations against incarcerated individuals “simply because a remedy would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011); see also People ex rel. Stoughton v. Brann, 67 Misc. 3d 629, 122 N.Y.S.3d 866 (2020) (granting the temporary release of 18 pretrial detainees at Rikers as a result of the COVID-19 pandemic). Moreover, the same or similar relief is being sought in two pending class actions, but here Relator G has proven his individual case.
In short, DOC did not meet its due process obligations to Relator G, and as a result, the court must remedy the constitutional violation by granting Relator G's release. This is not an outcome without consequence. The respondent and his superior utterly failed the public as well as this relator by ignoring the looming threat of a crisis at Rikers Island, by delaying emergency measures as staff shortages increased, and by not adopting an “all hands on deck” approach to this entirely foreseeable crisis. Respondent and his superior's failures are well documented in the latest report of the Nunez Monitor as well as the recent decision in Agnew et al. v. DOC, Index No. 813431/2021E, Decision and Order (Sup Ct, Bronx County) (December 6, 2021).
Management is a process of planning and organizing to address foreseeable crises, not only of controlling immediate crises. In this case, the lack of management by respondent, and presumably by his superior, was tantamount to deliberate indifference. Not all the CO staff were individually deliberately indifferent, but they were placed in an untenable position, as the video of the lone officer trying to stave off an attack involving four detainees with a single can of pepper spray aptly illustrates. As a result of glaringly obvious mismanagement, Relator G has not only suffered at the hands of violence-prone detainees, but also lacked adequate food, exercise, and health services.
Important to the larger understanding of this case, respondent's deliberate indifference has obligated this court to release a detainee who is alleged to have committed a violent felony offense, for which the Manhattan District Attorney's office requested that bail be posted. Moreover, this court had set bail, finding that bail was the least restrictive means to ensure Relator G's return to court under the factors enumerated in CPL § 510.30.
For the foregoing reasons, the court sustains this writ of habeas corpus and orders Relator G's release.
This shall constitute the decision and order of the court.
1. The court has shielded the petitioner's name in response to a request to anonymize this written decision. Because of the threat of violence to Relator G due to the filing of this writ and the court's perception of the respondent as unable to prevent violence at this time, the court refers to the petitioner as “Relator G”.
2. On August 18, 2011, a class of prisoners filed a lawsuit against DOC under 42 U.S.C. § 1983 for cruel and unusual punishment. On October 21, 2015, Judge Laura Taylor Swain of the SDNY approved a consent settlement with the court enforcing implementation of the terms of the settlement. The consent settlement included provisions prohibiting certain types of force and mandating new reporting procedures for all use of force events. As part of the consent settlement, the parties also agreed to an independent court-appointed Monitor who would write progress reports every four months. Since implementation began, the Monitor has repeatedly reported that the City has established a record on non-compliance with the most fundamental goals of the consent settlement. The case remains ongoing.
3. Relator G introduced DOC video surveillance of this incident. The video shows that before the assault, one of the attackers covered the pantry camera with a towel, obscuring the video footage for approximately two hours. When the video resumes, it shows the assault spilling out of the pantry and into a hallway area. At this point, a female officer is seen with a can of pepper spray pointing and spraying it at multiple detainees who are wielding weapons and throwing large objects at her and Relator G.
April A. Newbauer, J.
Response sent, thank you
Docket No: Index No. 21-53252
Decided: December 22, 2021
Court: Supreme Court, New York County, New York.
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