Colman v. Vasquez

• Decision Date: 30 March 2001
• Docket Number: No. 3:99CV2446 (JBA).,3:99CV2446 (JBA).
• Citation: 142 F.Supp.2d 226
• Parties: Rosanna COLMAN, Plaintiff, v. Ricardo VASQUEZ, Lt. Meredieth, and Warden Harding, Defendants.
• Court: U.S. District Court — District of Connecticut

142 F.Supp.2d 226

Rosanna COLMAN, Plaintiff, v. Ricardo VASQUEZ, Lt. Meredieth, and Warden Harding, Defendants.

No. 3:99CV2446 (JBA).

United States District Court, D. Connecticut.

March 30, 2001.

COPYRIGHT MATERIAL OMITTED

Katrena K. Engstrom, William & Pattis, New Haven, CT, for Plaintiff.

William A. Collier, U.S. Attorney's Office, Hartford, CT, Joseph R. Lipton, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OF DECISION

ARTERTON, District Judge.

Plaintiff Rosanna Colman's complaint alleges that she was harassed and sexually abused by a corrections officer at Danbury Federal Correctional Institution (Danbury-FCI), in violation of her constitutional rights, and was subjected to retaliation when she complained of his actions. Plaintiff further challenges the use of cross-gender pat searches in the sexual trauma unit at FCI as violative of the United States Constitution. Plaintiff's Complaint seeks damages for the assault, the alleged retaliation, failure to train, and failure to properly investigate the incident, alleging violations of the First, Fourth, Fifth, and Eight Amendments, as well as the Violence Against Women Act ("VAWA"), 42 U.S.C. § 13981, and state tort claims. Defendant now moves to dismiss all claims except for her Eighth Amendment claim against the alleged assailant, Officer Vazquez.

Factual Background

Taking the plaintiff's allegations to be true, as the Court must in determining a motion to dismiss, see Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 409 (2d Cir. 2000), the Complaint reveals the following narrative. Upon her arrival at Danbury-FCI in June of 1995, Ms. Colman, a native of Venezuela, was assigned to the institution's sexual trauma unit, and was forced to submit to pat searches by male guards, including defendant Vazquez. Complaint ¶ 12. Plaintiff alleges that Vazquez made "unauthorized approaches" of a sexual nature towards her, and that she complained to a Danbury-FCI psychiatrist, who in turn informed Lieutenant Meredieth. Complaint ¶ 13. The harassment continued unabated for several months, culminating in a physical assault in March of 1997. Complaint ¶ 16. Ms. Colman again reported the assault to Meredieth, after which she was subjected to taunts and humiliation by Vazquez. Complaint ¶ 21. Ms. Colman alleges that Vazquez has had sexual relationships with other Danbury-FCI inmates, and that defendants Meredieth and Harding "knew or should have known" that he was unfit for the position, but failed to take any steps to prevent him from committing the alleged assaults. Ms. Colman further alleges that Danbury-FCI's investigation into her complaint was inadequate, as Vazquez was never disciplined, although she repeatedly complained to Meredieth, she continued to come into contact with Vazquez, and was subjected to further harassment by him as a result of her complaints. Ms. Colman's complaint also maintains that she was placed in administrative segregation after she contacted the Venezuelan Embassy for assistance regarding the situation with Vazquez, and that Meredieth conducted a spurious investigation of her claim, although reassuring her that an investigation was underway. Complaint ¶¶ 26-28. Specifically, plaintiff alleges that when Meredieth was replaced by another lieutenant, she discovered that no investigation had actually been conducted, and that the investigating officer to whom she and a witness inmate had previously given a statement was not, in fact, an investigator for the Office of the Inspector General (OIG) as claimed. Complaint ¶ 36.

Discussion

A. Withdrawn Claims

The United States has filed a Notice of Substitution (Doc. # 20), contending that the United States has been substituted for the individual defendants on the state law claims under operation of law under the Federal Employees Liability Reform Act, 28 U.S.C. § 2679, since those claims are brought for negligent or wrongful acts of the defendants taken within the scope of their office or employment. See 28 U.S.C. § 2679(b)(1). The United States then moved to dismiss plaintiff's state law claims for failure to comply with the Federal Tort Claims Act. Doc. # 18. The individual defendants have moved to dismiss plaintiff's constitutional and federal statutory claims, on grounds of qualified immunity. See Doc. # 16.

In her opposition to the above motions, plaintiff conceded that she had not pursued her administrative remedies under the Federal Tort Claims Act, and therefore withdrew her state common law claims against the defendants. See Mem. in Opp. at 5. Ms. Colman's opposition also indicates that she is withdrawing her VAWA claim in light of United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and her Fifth Amendment substantive due process claim. Id. Accordingly, defendant's motion to substitute (Doc. # 20) is GRANTED, and the United States Motion to Dismiss (Doc. # 18) is GRANTED. What remains for consideration in light of the above concessions is defendants Harding and Meredieth's claim that plaintiff's First, Fourth, and Eighth Amendment claims should be dismissed.

B. Remaining Claims

1. Constitutionality of Pat Searches

The Complaint alleges that Vazquez violated plaintiff's "right to be free against unreasonable searches and seizures under the Fourth Amendment and to be free from cruel and unusual punishment under the Eighth Amendment," Complaint ¶ 47, and that Warden Harding's authorization of cross-gender pat searches of trauma unit inmates was also a violation of her Fourth and Eighth Amendment rights. Complaint ¶ 51. Defendants argue that because Ms. Colman's Complaint does not allege a violation of clearly established law, they are entitled to qualified immunity. In particular, defendants maintain that since the Eighth Amendment is the "explicit textual source of constitutional protection" for the alleged infringement of a prisoners rights, plaintiff has no claim under the Fourth Amendment. Even if inmates do maintain a residua of Fourth Amendment protection, defendants' argument continues, cross-gender pat searches do not violate the Fourth Amendment, at least not to the extent that it was unreasonable for Warden Harding to believe that such searches were lawful in light of then-established law. Defendants also argue that such a policy is lawful under the Eighth Amendment, or that it was at least reasonable for Harding to think so, thus entitling the defendants to qualified immunity on the Eighth Amendment claim.

A government official is entitled to qualified immunity from suit for actions taken as a government official if (1) the conduct attributed to the official is not prohibited by federal law, constitutional or otherwise; (2) the plaintiff's right not to be subjected to such conduct by the official was not clearly established at the time of the conduct; or (3) the official's action was objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken. See Cuoco v. Moritsugu, 222 F.3d 99, 109 (2d Cir. 2000). "Ordinarily, these issues should be approached in sequence, for if the second is resolved favorably to the official, the third becomes moot; a favorable resolution of the first moots both the second and the third." Rohman v. New York City Transit Auth., 215 F.3d 208, 214-15 (2d Cir. 2000).

As to the first prong of the analysis on plaintiff's Fourth Amendment claim, the Court disagrees that as matter of law an inmate in these circumstances has no claim under this amendment. In support of their argument defendants point to Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), which held that the "Fourth Amendment proscription against unreasonable searches does not apply within the confines of a prison cell." The Second Circuit, however, has since concluded that inmates do retain a limited right to bodily privacy under the Fourth Amendment. See Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992) (addressing constitutionality of visual body-cavity searches; concluding that although inmates do retain limited Fourth Amendment rights, prison officials had sufficient justification to intrude upon such interests). Citing Covino, other Circuits have reached similar conclusions, expressly disagreeing with the other case on which defendants primarily rely, Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir.1995) ("the [F]ourth [A]mendment does not protect privacy interests within prisons."). See Somers v. Thurman, 109 F.3d 614, 618 (9th Cir.1997) (discussing cases from the Second, Sixth, and Eleventh Circuits, and noting that "the Seventh Circuit stands alone in its peremptory declaration that prisoners do not retain a right to bodily privacy."). As Ms. Colman does retain some limited Fourth Amendment right to bodily privacy, the Court rejects defendants' legal contention that her only source of constitutional protections is the Eighth Amendment.

Defendants also argue that Ms. Colman was not deprived of her Fourth Amendment rights when she was subjected to a pat search by a guard of the opposite sex, and point to numerous cases from other jurisdictions reaching this conclusion. The defendants' marshaling of this precedent, however, overlooks two important distinctions. First, the procedural posture of the cases cited by the defendants differs markedly from the present case. Every case cited by defendant was decided on summary judgment or after a preliminary injunction hearing or trial, when the reviewing court had the opportunity to evaluate the record to determine whether the regulation or policy allowing such searches was reasonably related to legitimate penological interests, as required Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). See, e.g., Covino, 967 F.2d at 78 (testimony at preliminary injunction hearing that visual body-cavity searches of male inmates were necessary to preserving order, that contraband had been discovered, and...