655 F.3d 89 (2nd Cir. 2011), 08-2079-pr, Amador v. Andrews

Docket Nº:08-2079-pr.
Citation:655 F.3d 89
Opinion Judge:WINTER, Circuit Judge:
Party Name:Lucy AMADOR, Bobbie Kidd, Bette Jean McDonald, Jeanette Perez, Plaintiffs-Counter-Defendants, v. Anginell ANDREWS, Superintendent, Roberta Coward, Dennis Crowley, Alexandreena Dixon, Elaine Lord, Superintendent, Ronald Moscicki, Superintendent, Melvin Williams, Superintendent, Donald Wolff, DOCS Deputy Superintendent, Terry Baxter, DOCS Director of
Attorney:Dori Lewis (Lisa A. Freeman, on the brief), Prisoners' Rights Project Legal Aid Society, New York, NY, and Alison M. Mikkor (Maeve O'Connor, John S. Craig, Donna Krouzman, Lauren Sypek on the brief), Debevoise & Plimpton, LLP, New York, NY, for Appellants. Richard O. Jackson (Andrew M. Cuomo, Att...
Judge Panel:Before: WINTER, CABRANES, and HALL, Circuit Judges.
Case Date:August 19, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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655 F.3d 89 (2nd Cir. 2011)

Lucy AMADOR, Bobbie Kidd, Bette Jean McDonald, Jeanette Perez, Plaintiffs-Counter-Defendants,

Stacie Calloway, Tonie Coggins, Latasha Dockery, Tanya Jones, Kristina Muehleisen, Laura Pullen, Corilynn Rock, Denise Saffioti, Shenyell Smith, Hope Susoh, Nakia Thompson, Plaintiffs-Counter-Defendants-Appellants,

Stephanie Dawson, Shantelle Smith, Plaintiffs-Appellants,

v.

Anginell ANDREWS, Superintendent, Roberta Coward, Dennis Crowley, Alexandreena Dixon, Elaine Lord, Superintendent, Ronald Moscicki, Superintendent, Melvin Williams, Superintendent, Donald Wolff, DOCS Deputy Superintendent, Terry Baxter, DOCS Director of Personnel, Richard Roy, DOCS Inspector General, Barbara D. Leone, DOCS Director of the Sex Crimes Unit of the Inspector General's Office, Peter Brown, DOCS Director of the Bureau of Labor Relations, Glenn S. Goord, DOCS Commissioner, James Stone, Office of Mental Health Commissioner, Michael Evans, DOCS Correction Officer, Michael Galbreath, Sergeant Smith, Mario Pique, Jeffrey Shawver, Robert Smith, Officer Sterling, Delroy Thorpe, Pete Zawislak, Rick Larue, Rico Meyers, Frederick Brenyah, Charles Davis, Defendant-Cross-Defendants-Appellees,

Clarence Davis, DOCS Correctional Officer, Defendant-Appellee,

John E. Gilbert III, Officer, Defendant-Counter-Claimant-Cross-Defendant-Appellee,

Chris Sterling, Defendant-Counter-Defendant-Appellee,

James Hudson, Cross-Claimant,

Delroy Thorpe, Department of Correctional Services, Cross-Defendant. [*]

No. 08-2079-pr.

United States Court of Appeals, Second Circuit.

August 19, 2011

Argued: June 15, 2009.

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Dori Lewis (Lisa A. Freeman, on the brief), Prisoners' Rights Project Legal Aid Society, New York, NY, and Alison M. Mikkor (Maeve O'Connor, John S. Craig, Donna Krouzman, Lauren Sypek on the brief), Debevoise & Plimpton, LLP, New York, NY, for Appellants.

Richard O. Jackson (Andrew M. Cuomo, Attorney General, Barbara D. Underwood, Solicitor General, Benjamin N. Gutman, Deputy Solicitor General, on the brief), Office of the Attorney General, New York, NY, for Supervisory Appellees.

Joseph M. Latona, Buffalo, NY, for Appellee Charles Davis.

Christopher Kennedy (David W. Novak, on the brief), Hinman Straub, P.C., Albany, NY, for Appellees Michael Evans and Jeffrey Shawver.

Linda M. Cronin (Rocco G. Avallone, on the brief), Cronin & Byczek LLP, Lake Success, NY, for Appellees Rick Larue and Rico Meyers.

Hogan Willig and Diane R. Tiveron, of Counsel, Amherst, NY, for Appellee John E. Gilbert III.

Rachel Meeropol, Center for Constitutional Rights, New York, NY, and Giavanna Shay, Springfield, MA, for Amici Curiae The National Prison Project of the American Civil Liberties Union Foundation, National Prison Rape Elimination Commissioner, Professor of Law Brenda V. Smith, Stop Prisoner Rape, and Legal Momentum, in support of Appellants.

Joel Landau, James Bogin, Karen Murtagh-Monks, for Amicus Curiae Prisoners' Legal Services of New York, Albany, NY, in support of Appellants.

Before: WINTER, CABRANES, and HALL, Circuit Judges.

WINTER, Circuit Judge:

Thirteen present and former female inmates of various New York state prisons appeal from Judge Duffy's dismissal of their class action complaint. The complaint, brought under 42 U.S.C. § 1983, sought declaratory and injunctive relief compelling the Department of Correctional Services (" DOCS" ) to alter its practices and procedures so as to enhance the protection of the class from sexual assault, abuse, and harassment. The complaint also asserted individual claims for damages. The dismissal was based on the grounds that some of the claims of named plaintiffs were moot and that the remaining named plaintiffs had failed to exhaust available remedies as required by the Prison Litigation Reform Act of 1995 (" PLRA" ). Appellees are individual line officers (" line officer appellees" ), various

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superintendents and supervisors of certain New York State prisons, and DOCS officials (" supervisory appellees" ).1

A prior panel held that we have appellate jurisdiction over the claims for injunctive and declaratory relief pursuant to 28 U.S.C. § 1292(a)(1). Amador v. Superintendents of Dep't Corr. Servs., No. 08-2079-pr (2d Cir. June 25, 2008). We hold that we lack pendent appellate jurisdiction over the damages claims. We also hold that the claims for injunctive and declaratory relief by appellants who are now free but were in DOCS custody when they brought suit are not moot. Applying a relation-back theory, we hold that appellants' class claims are capable of repetition, yet evading review. We conclude that three appellants have exhausted applicable internal prison grievance proceedings while the remaining ten have not. We vacate the judgment in part and remand for further proceedings.

BACKGROUND

a) The Complaint

Appellants' complaint seeks redress as individuals and as a class for alleged sexual abuse and harassment in violation of rights secured by the First, Fourth, Eighth, and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. The class is described as " all present and future women prisoners in DOCS custody." Compl. at 67, Amador v. Superintendents of Dep't of Corr. Servs., No. 03 Civ. 0650(KTD)(GWG) (S.D.N.Y. Oct. 14, 2003). It alleges that the approximately 3000 women prisoners in DOCS custody are at any time subject to a substantial and unreasonable risk of sexual abuse or harassment as a result of DOCS policies and procedures. These policies and practices, alleged to present common issues of law and fact, include the adequacy of DOCS': (i) screening, assigning, training, and supervising male staff, and the staff at large, regarding sexual misconduct; (ii) reporting and investigatory mechanisms for sexual misconduct; and (iii) investigating and responding to complaints of sexual misconduct. On behalf of the class, the complaint sought injunctive and declaratory relief from the supervisory appellees, who were alleged to have been aware of the abuse and to have failed to take appropriate preventive measures. Appellants also asserted

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individual claims for damages with respect to certain line officers and one DOCS superintendent for their roles in alleged sexual assault, abuse, and harassment of several appellants while they were in DOCS custody. The conduct alleged ranges from unwelcome touching and invasions of privacy to assault and rape.2 More details of the allegations are provided as relevant infra.

b) Procedural History

Each of the appellants was in DOCS custody when the complaint was filed on January 28, 2003. A motion for class certification was filed six months later, followed by an amended complaint adding the claims of two new inmates, Stephanie Dawson and Shantelle Smith. Shortly thereafter, appellees filed various motions to dismiss.

On September 13, 2005, the district court granted the motions in part, dismissing five plaintiffs' injunctive claims on the ground that they lacked standing because they had been released from prison before joining the amended complaint. Two of these plaintiffs, Corilynn Rock and Laura Pullen, now appeal. The district court also converted defendants' motion to dismiss to one for summary judgment on the limited issue of exhaustion and reserved judgment on the motion for class certification. See Amador v. Superintendents of Dep't of Corr. Servs., No. 03 Civ. 0650(KTD)(GWG), 2005 WL 2234050 (S.D.N.Y. Sept. 13, 2005).

On December 4, 2007, the district court granted the motion for summary judgment. See Amador v. Superintendents of Dep't of Corr. Servs., No. 03 Civ. 0650(KTD)(GWG), 2007 WL 4326747 (S.D.N.Y. Dec. 4, 2007). It dismissed as moot the injunctive claims of Stephanie Dawson and Shantelle Smith because they had been released from prison while the motion for class certification was pending. The district court then dismissed for failure to exhaust, the claims of Stacie Calloway, Tonie Coggins, Latasha Dockery, Tanya Jones, Kristina Muehleisen, Denise Saffioti, Hope Susoh, and Nakia Thompson. Finally, the district court dismissed the injunctive claims of Shenyell Smith against the supervisory appellees on the ground that she failed to identify any defendant other than the officer who was alleged to have sexually assaulted her. Having dismissed all the claims against the supervisory appellees for mootness or failure to exhaust, the district court concluded that class certification was not warranted. The district court dismissed all claims for damages save those of Shenyell Smith against Officer Delroy Thorpe. Id.

On plaintiffs' motion for reconsideration, the district court amended its order without explanation, to, among other things, reinstate the claims for damages by certain plaintiffs: Lucy Amador against Michael Galbreath and Robert Smith; Bette Jean McDonald against John E. Gilbert III, Mario Pinque and Donald Wolff; Jeanette Perez against Sergeant Smith, Chris Sterling, and Pete Zawislak; Stephanie Dawson against Federick Brenyah; and Shantelle Smith against James Hudson.

This appeal followed.

DISCUSSION

We review a district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir.2006). Whether

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a plaintiff has exhausted administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), is also a question reviewed de novo, see Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir.2009), as are questions of mootness. White River Amusement Pub., Inc. v. Town of Hartford, 481 F.3d 163, 167 (2d Cir.2007)...

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