Tangreti v. Semple

          RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          MICHAEL P. SHEA, U.S.D.J.

         In October 2014, when she was an inmate at Connecticut's only women's prison, Cara Tangreti reported that four Department of Corrections (“DOC”) officers had sexually assaulted or abused her. After an investigation, the four officers were terminated, and three were criminally prosecuted. In March 2015, Tangreti filed an action, arising from the sexual misconduct, against the State of Connecticut with the Office of the Claims Commissioner, as permitted by Conn. Gen. Stat. § 4-142. In 2017, Tangreti filed this action under 42 U.S.C. § 1983, alleging that eight DOC supervisory employees-ranging from the Commissioner to a counselor supervisor in the building in which the misconduct occurred-violated her Eighth Amendment rights by exhibiting deliberate indifference to the substantial risk of sexual assault and abuse inflicted on her by the four officers; she also alleged state law causes of action for recklessness and intentional infliction of emotional distress. I granted Ms. Tangreti leave to file an amended complaint in October 2018.

         After discovery was completed, all eight defendants filed a motion for summary judgment, ECF No. 48, as to all counts of Tangreti's amended complaint, ECF No. 37-1. For the reasons that follow, Defendants' motion for summary judgment is denied as to the Eighth Amendment claim against Defendant Bachmann, denied as to the recklessness claim against all Defendants, and denied as to the intentional infliction of emotional distress claim against Defendant Johnson. On all other claims, the motion for summary judgment is granted.

         I. FACTS

         The following facts, which are taken primarily from the parties' Local Rule 56(a) statements and supporting exhibits, are undisputed unless otherwise indicated.

         A. York Correctional Institution (“York”)

         York, one of 14 prisons operated by the Connecticut DOC, is the state's only prison for female offenders. Local Rule 56(a)(1) Statement of Facts (“56(a)(1) Stmt.”), ECF No. 60 ¶ 1. York is composed of numerous buildings, situated on 425 acres. Id. ¶ 2. The Davis Building (“Davis”), where the sexual misconduct against Ms. Tangreti occurred, is a stand-alone, minimum-security building on the east side of the property, with an approximate capacity of 85 inmates. Id. ¶ 3. During all shifts each day, there were 3 correctional officers assigned to Davis- one upstairs, one downstairs, and one “rover.” Id. ¶ 7. On weekdays from 7:00 AM to 3:00 PM, there were “numerous counselors and a counselor supervisor” also in Davis. Id. Supervisory staff at York also conducted tours of Davis; the parties dispute the frequency and nature of these tours. Id. ¶ 8. Lieutenant Modikiah Johnson testified that lieutenants toured Davis twice a day: the “morning tour” took approximately 10 minutes to “walk through the two floors and field any complaints or issues from the inmates, ” and the “afternoon tour” took “a couple of minutes” to “look into the day rooms and speak with the correctional officers about any issues.” Id. ¶¶ 94-96.

         B. Relevant Employees

         Defendant Scott Semple became the interim Commissioner of the DOC in September 2014 and was officially appointed to that position in March 2015. Id. ¶ 28. His office was located at the DOC Central Office in Wethersfield, CT. Id. ¶ 29.

         Defendant David McNeil was hired as the DOC's first PREA Director in September 2013, id. ¶ 53, and remained in that position at all pertinent times, Answer, ECF No. 18 ¶ 5. His office was located at the DOC Central Office in Wethersfield, CT. 56(a)(1) Stmt., ECF No. 60 ¶ 54.

         Defendant Stephen Faucher became the Warden of York in December 2012, id. ¶ 16, and remained in that position at all pertinent times, Answer, ECF No. 18 ¶ 7.

         Defendant Stephen Bates served as the Deputy Warden of Administration at York from December 2013 until September 2016. Id. ¶ 100. He also served as the PREA Coordinator at York from January 2014 through February 2015. Id. ¶ 101.

         Defendant Christine Bachmann was, at all pertinent times, a Counselor Supervisor at York and oversaw the “day-to-day operations of the Marilyn Baker Substance Abuse Program, which is based in the Davis Building.” Id. ¶ 123; Answer, ECF No. 18 ¶ 9.

         Defendant Douglas Andrews was the Administrative Operations Lieutenant at York from January 2014 through May 2015. 56(a)(1) Stmt., ECF No. 60 ¶ 76. His office was located in “York building #6 and it was not part of his responsibilities to tour other buildings” such as Davis. Id. ¶ 78.

         Defendant Modikiah Johnson worked as a Lieutenant at York from September 2010 through January 2015. Id. ¶ 92. His responsibilities included tours of various buildings, including Davis, which he typically toured once a day. Id. ¶¶ 93-94.^[1]

         Correctional Officer Jeffrey Bromley was hired in 1999, id. ¶ 68; Correctional Officer Daniel Crowley was hired in 2012, id. ¶ 67; Correctional Officer Matthew Gillette was hired in 2010, id. ¶ 66; and Correctional Officer Kareem Dawson was hired in 2005, id. ¶ 65. All four were terminated from their employment with the DOC following the DOC Security Division Investigation of Ms. Tangreti's allegations. Id. ¶¶ 35-36.

         C. Sexual Assaults Against Ms. Tangreti

         Ms. Tangreti was incarcerated in York beginning in August 2013. Id. ¶ 147. She was initially housed in a building on the West side of the facility but was transferred to Davis on February 27, 2014. Id. ¶¶ 148-49.

         1. Assaults by CO Jeffrey Bromley

         Although Ms. Tangreti does not “remember the dates exactly, ” see Tangreti Dep., ECF No. 59-1 at 201, she estimates that the first overtly sexual interaction with CO Bromley occurred in approximately May 2014, when CO Bromley asked her to lift her shirt up, which she did. 56(a)(1) Stmt., ECF No. 60 ¶ 152. After that incident and through approximately September 2014, CO Bromley sexually assaulted Ms. Tangreti numerous times: she performed oral sex on him twice, he performed oral sex on her, and he vaginally raped her on one occasion. Id. ¶¶ 152- 55; Tangreti Dep., ECF No. 48-16 at 73, 77 (testifying that she “felt uncomfortable saying no to [the sex acts with CO Bromley]. . . . You don't normally say no to a correctional officer”); see also Id. at 73-76 (describing additional assaults involving kissing, hugging, “him groping me and him putting my hand on his genitals on the outside of his pants, ” and CO Bromley videotaping Ms. Tangreti performing oral sex on him and then “making [her] watch the video” repeatedly). Many of these assaults occurred in the laundry room, where Ms. Tangreti was assigned to work and where CO Bromley came to meet her every morning at 7:00 AM. 56(a)(1) Stmt., ECF No. 60 ¶ 153. Others occurred in CO Bromley's office. Tangreti Dep., ECF No. 59-1 at 205.

         On October 24, 2014, Ms. Tangreti handed CO Crowley a note stating that she was in a relationship with a Correctional Officer. CO Crowley talked to Ms. Tangreti about her note and guessed that she was in a relationship with CO Bromley, but did not report this information to any supervisor and threw away the note. 56(a)(1) Stmt., ECF No. 60 ¶ 165; DOC Security Division Report, ECF No. 59-2 at 118-19 (summarizing interview with CO Crowley). Ms. Tangreti formally reported the sexual assaults by CO Bromley on October 31, 2014, when she was interviewed by Captain Alex Smith-a York Administrative Captain at the time-and Defendant Christine Bachmann. 56(a)(1) Stmt., ECF No. 60 ¶¶ 137, 162; DOC Security Division Report, ECF No. 59-2 at 102-03; Smith Aff., ECF No. 48-15 at 2. Following the DOC Security Division Investigation, CO Bromley was terminated from his employment with the DOC and criminally prosecuted. 56(a)(1) Stmt., ECF No. 60 ¶¶ 35, 37.

         2. Assaults by CO Matthew Gillette

         CO Gillette sexually assaulted Ms. Tangreti on two occasions in September 2014. 56(a)(1) Stmt., ECF No. 60 ¶ 167; Tangreti Dep., ECF No. 48-16 at 106. On the first occasion, he kissed her in the laundry room, “pushed” her into a side room and “told [her] to give him oral sex.” Tangreti Dep., ECF No. 48-16 at 108; 56(a)(1) Stmt., ECF No. 60 ¶ 168. The next day, in a closet in the Davis basement, CO Gillette “asked [her] to bend over, [she] pulled [her] pants down like he asked [her] to do, and he had sex with [her].” Tangreti Dep., ECF No. 48-16 at 111. Later that day, “[h]e kissed [her]” in the laundry room.” Id. at 117. CO Gillette denied these allegations, DOC Security Division Report, ECF No. 59-2 at 113-14, but Defendants admit that “[t]he plaintiff had 2 sexual encounters with CO Gillette in early September of 2014, ” 56(a)(1) Stmt., ECF No. 60 ¶ 167.

         Ms. Tangreti asserts that she told CO Bromley that she had kissed CO Gillette. DOC Security Division Report, ECF No. 59-2 at 103. She officially reported these assaults on October 31, 2014 when she was interviewed by Captain Alex Smith and Defendant Bachmann. Id.; 56(a)(1) Stmt., ECF No. 60 ¶ 139. Following the DOC Security Division Investigation, CO Gillete was terminated from his employment with the DOC and criminally prosecuted. 56(a)(1) Stmt., ECF No. 60 ¶¶ 35, 37.

         3. Assaults by CO Kareem Dawson

         Beginning in March 2014, CO Dawson kissed and groped Ms. Tangreti approximately five times in his office. 56(a)(1) Stmt., ECF No. 60 ¶ 173; Tangreti Dep., ECF No. 48-16 at 119- 20. Also in approximately March 2014, CO Dawson approached Ms. Tangreti while she was in the shower and digitally penetrated her vagina and her mouth. Id. at 121. At CO Dawson's request, Ms. Tangreti also wrote him sexual notes. 56(a)(1) Stmt., ECF No. 60 ¶ 174. On another occasion, CO Dawson forced Ms. Tangreti to give him oral sex in the Davis basement. Tangreti Dep., ECF No. 48-16 at 125-26. CO Dawson denied these allegations, DOC Security Division Report, ECF No. 59-2 at 116, but Defendants admit that “[t]he plaintiff had 2 sexual encounters with CO Dawson: One in the laundry room and one in the basement, ” 56(a)(1) Stmt., ECF No. 60 ¶ 175).

         Following the second assault, Ms. Tangreti told her roommate about the incident. Tangreti Dep., ECF No. 48-16 at 127-28. She officially reported the assaults on October 31, 2014 when she was interviewed by Captain Alex Smith and Defendant Bachmann. 56(a)(1) Stmt., ECF No. 60 ¶ 142; DOC Security Division Report, ECF No. 59-2 at 111-12. Following the DOC Security Division Investigation, CO Dawson was terminated from his employment with the DOC and criminally prosecuted. 56(a)(1) Stmt., ECF No. 60 ¶¶ 35, 37.

         4. Assault by CO Daniel Crowley

         As discussed above, Ms. Tangreti wrote a note to CO Crowley on or about October 24, 2014, stating that she was in a relationship with a Correctional Officer. 56(a)(1) Stmt., ECF No. 60 ¶ 165; DOC Security Division Report, ECF No. 59-2 at 118-19. Ms. Tangreti testifies that, as she was about to hand him the letter, CO Crowley “grabbed [her] face and kissed [her].” Tangreti Dep., ECF No. 48-16 at 99. CO Crowley denied this allegation. DOC Security Division Report, ECF No. 59-2 at 119. Ms. Tangreti officially reported the assault by CO Crowley on October 31, 2014, when she was interviewed by Captain Alex Smith and Defendant Bachmann. Id. at 104. Following the DOC Security Division Investigation, CO Crowley was terminated from his employment with the DOC. 56(a)(1) Stmt., ECF No. 60 ¶ 36.

         D. PREA Investigations

         Congress passed the Prison Rape Elimination Act, 42 U.S.C. §§ 15601 et seq. (“PREA”), in 2003. The Department of Justice then issued rules, effective August 20, 2012, “adopting national standards to prevent, detect, and respond to prison rape, as required by the Prison Rape Elimination Act of 2003.” 77 Fed. Reg. 37105 (June 20, 2012) (codified at 28 C.F.R. § 115); Answer, ECF No. 18 ¶ 25.

         In June 2013, the DOC created a PREA unit. 56(a)(1) Stmt, ECF No. 60 ¶ 52. After that point, PREA investigations were conducted either by the PREA unit or by the DOC Security Division. Id. ¶ 102. Deputy Warden Bates, York's PREA Coordinator from January 2014 through February 2015, “would not be involved in the actual investigations, but he would ensure that the investigations were assigned, conducted and completed.” Id. ¶ 102.

         E. Prior Incidents of Sexual Misconduct at York

         From 2009 to 2012, there were no “substantiated incidents” of “sexual contact between staff and inmates” at York. Id. ¶ 72, 75. Between June 2010 and October 2014, there were 27 total allegations of PREA-related misconduct^[2] against DOC staff at York: the PREA Investigations Unit handled 7 investigations, and the DOC Security Division handled 19. Id. ¶¶ 69-70. The PREA Investigations Unit substantiated 3 of the 7 allegations it investigated. Id. ¶ 70. One case involved a “York maintenance officer having a physical relationship with a former inmate, who had been released on parole, ” and the other two involved sexual correspondence between an inmate and a correctional officer. Id. All three officers resigned or were removed from state service following these investigations. Id. The Security Division substantiated one case involving a correctional officer who had a sexual phone conversation with an inmate. Id. ¶ 69. The officer resigned prior to implementation of any employment penalty. Id.

         CO Gillette was the subject of one other complaint in September 2014, which alleged “undue familiarity between CO Gillette and an inmate, ” who was not Ms. Tangreti. Id. ¶ 66. That investigation was “closed, without a finding” because CO Gillette was soon thereafter arrested and terminated in response to Ms. Tangreti's complaint. Id.

         CO Bromley was the subject of two other PREA-related complaints. A 2013 complaint by a male inmate alleged sexual harassment; following investigation, “that complaint was found to be unsubstantiated.” Id. ¶ 68. On October 2, 2014, a complaint was raised regarding “possible undue familiarity between CO Bromley [and] an inmate, ” who was not Ms. Tangreti. Id. That investigation was “closed, without a finding” because CO Bromley was soon thereafter arrested and terminated in response to Ms. Tangreti's complaints. Id.

         Documents produced in discovery show two additional prior incidents not mentioned in the Local Rule 56(a)(1) Statement. On November 19, 2013, York investigated and substantiated allegations that one inmate “grabbed and pinched [another inmate's] right breast in the hallway of the Davis Building.” Post-Investigation Facility Review, ECF No. 59-3 at 10-11. On January 23, 2014, York investigated and substantiated allegations of an inmate and a CO “engaging in [s]exually harassing activities” within a “housing common area and cell” in a York building. Post-Investigation Facility Review, ECF No. 59-3 at 16-17.

         F. Video Surveillance at York

         Since at least 2007, York has utilized video cameras for surveillance in some but not all parts of its buildings. Id. ¶ 114. Up until at least October 31, 2014, there were no video cameras in Davis. DOC Incident Report, ECF No. 59-2 at 68.

         In 2014, David McNeil, PREA Director for the DOC, was “involved in a DOC grant request for federal funds to cover a number of PREA-related items, including video cameras at some of the buildings at York. That grant was not approved.” Id. ¶ 64.

         York itself also requested video cameras from the DOC in 2014. To receive “authorization, funding, and installation” of video cameras in the DOC, a “requesting facility initially submits a proposal, which is then forwarded ‘up the chain of command' and ultimately to the supervisors at the DOC Central Office, who evaluate and act on the proposal, and then to the DOC Facilities and Construction Departments for funding.” 56(a)(1) Stmt., ECF No. 60 ¶ 19. “On January 29, 2014, Warden Faucher requested that his staff at York prepare a camera proposal for the installation of surveillance cameras” in Davis and another building. Id. ¶ 20. This January 2014 request was the “first camera proposal” that Warden Faucher “was involved with during his tenure at York.” Id. ¶ 23. His staff, including Lieutenant Douglas Andrews, prepared a camera plan proposal on February 19, 2014 and a “supplemental proposal for the installation of video cameras at two additional York buildings” on May 9, 2014. Id. ¶¶ 24-25. These proposals were combined, signed by Warden Faucher on July 2, 2014, and submitted “up the chain of command” in DOC. Id. ¶¶ 25-26. The estimated cost for the project was $450, 000. Id. ¶ 41. Lieutenant Andrews had no further involvement in the request process after preparing the proposal, id. ¶ 83; Warden Faucher had no further involvement in the approval process after signing the proposal, id. ¶ 27. Deputy Warden Bates was “involved in the proposal, early in 2014, ” but had no further involvement in the process after that point. Id. ¶¶ 106-07.

         Commissioner Semple approved the camera plan proposal on August 14, 2014, while he held the position of Deputy Commissioner, but had no further involvement after that point. Id. ¶¶ 42-43. Deputy Commissioner Cepelak, “who approves all DOC project requests, ” approved the camera plan proposal on October 8, 2014. Id. ¶ 47. Stephen Link, DOC Director of Facilities, then approved the request on October 20, requested approval from the Department of Construction Services on October 21, and received approval from that department on October 27. Id. ¶¶ 48-49. However, York did not secure funding for the project at that time; Director Link states that the “project, along with others, was put on hold because of a budget shortfall memorandum received by State Budget Secretary Ben Barnes” on November 12, 2014. Id. ¶ 50; see also Barnes Memorandum, ECF No. 48-14 at 9 (asking all state agency heads to “review your agency's planned spending in order to eliminate, minimize or delay those expenditures that are not absolutely critical in nature, ” including spending on “contractual services and purchased commodities”).

         York resubmitted its camera plan proposal to the DOC on April 22, 2015, received approval on April 24, and installed the cameras “shortly thereafter.” 56(a)(1) Stmt., ECF No. 60 ¶ 51.

         Larry Clymer, an Electrical Design Engineer for the DOC, states that in November 2013, York had a “ratio of .18 cameras per inmate.” Id. ¶ 118; see also Id. ¶¶ 119-21 (noting ratios of .05 and .03 at “similar-type facility[ies] to York” and an average ratio of .138 for all non-maximum-security DOC facilities). Ms. Tangreti disputes whether Mr. Clymer is “competent” within the meaning of Local Rule 56(a)(3) to testify to the size of these inmate populations. Id.

         II. SUMMARY JUDGMENT STANDARD

         “Summary judgment is appropriate only if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Tolan v. Cotton, 572 U.S. 650, 656-57 (2014) (internal quotation marks and citations omitted). “In making that determination, a court must view the evidence in the light most favorable to the opposing party.” Id. at 657 (quotation marks omitted). On summary judgment a court “must resolve all ambiguities and draw all reasonable inferences against the movant.” Caronia v. Phillip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013). If the moving party carries its burden of demonstrating that there is no genuine issue of material fact, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). If “the burden of persuasion at trial would be on the non-moving party . . . the party moving for summary judgment may satisfy his burden of production under Rule 56 in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.” Nick's Garage, Inc. v. Progressive Casualty Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017).

         III. DISCUSSION

         A. Eighth Amendment Violations (Count One)

         In Count One of her First Amended Complaint, Ms. Tangreti alleges that each of the Defendants violated her rights under the Cruel and Unusual Punishments Clause of the Eighth Amendment by exhibitng “deliberate indifference to the substantial risk of sexual assault and harassment.” ECF No. 37-1 at 20. The Eighth Amendment imposes an affirmative duty on prison officials to “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To prove a claim “based on a failure to prevent harm, ” the plaintiff must show (1) “that [s]he is incarcerated under conditions posing a substantial risk of serious harm, ” and (2) that the defendants' state of mind was “one of deliberate indifference to inmate health or safety.” Id. at 834. The second element, “deliberate indifference[, ] describes a state of mind more blameworthy than negligence, ” but “something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835. To be deliberately indifferent, the defendant prison official must “know[] of and disregard[] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” I ...