Doe v. The Nys Office of Children And Family Services
| Decision Date | 07 July 2021 |
| Docket Number | 1:20-cv-01195 (BKS/CFH) |
| Parties | JANE DOE and JANE ROE, Plaintiffs, v. THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES, TABERG RESIDENTIAL CENTER FOR GIRLS, “JOHN” MONTANA, “JOHN” DIEGO, “JOHN” MURPHY, “JOHN” AIELLO, “JOHN” SMITH, and JOHN and JANE DOES 1-5, Defendants. |
| Court | U.S. District Court — Northern District of New York |
For Plaintiffs: Vik Pawar Pawar Law Group P.C.
For Defendants New York State Office of Children and Family Services, Montana, Murphy, Aiello, and Smith: Letitia James Attorney General for the State of New York Shannan C Krasnokutski Assistant Attorney General
Plaintiffs Jane Doe and Jane Roe bring this action against the New York State Office of Children and Family Services (“OCFS”) and Taberg Residential Center for Girls as well as Montana, Diego, Murphy, Aiello, Smith, and five John and Jane Doe defendants.[1] (See generally Dkt. No. 1). Plaintiffs allege the following federal claims under 42 U.S.C. § 1983: First Amendment retaliation, Fourteenth Amendment substantive due process, Fourth Amendment unreasonable seizure and excessive force, Fourteenth Amendment equal protection, supervisory liability, and failure to intervene. (Dkt. No. 1). Plaintiffs also allege state law claims, including: assault and battery, harassment, intentional and negligent infliction of emotional distress, violations of the New York Constitution, New York Civil Rights Law, and New York Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296(1), (6), negligent screening, training, hiring and retention, negligence, and respondeat superior. (Id.). Defendants OCFS, Montana, Murphy, Aiello, and Smith[2] move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) and for partial summary judgment under Rule 56 on the ground that Plaintiff D.B.'s claims were filed after the statute of limitations expired. (Dkt. No. 13). Plaintiffs oppose Defendants' motion and cross-move under Rule 15 to file an amended complaint. (Dkt. No. 21). For the reasons that follow, the parties' motions are granted in part and denied in part.
Taberg Residential Center for Girls is a “limited secure facility, ” where “juveniles can be placed pursuant to order of” New York Courts. (Dkt. No. 21-1, ¶ 15). Taberg “offers various services to juvenile girls in all areas from counseling to medical and mental health services.” (Id. ¶ 18). Defendants Sussana Tillino, Michael Montana, Jamie Murphy, Joseph Aiello, and Ryan Smith were employed by Taberg while Plaintiffs were residents there. (Id. ¶¶ 21-24). Tillino “was the site director at Taberg and responsible for the supervision of the staff at Taberg.” (Id. ¶ 25). Montana, Murphy, Aiello, and Smith held the job titles of “Youth Div. Aide, ” “correctional or security officers, juvenile counselors, [or] mentors.” (Id. ¶¶ 33, 38).
Plaintiffs D.B. and C.P., who were “considered ‘juvenile delinquents, '” were placed at Taberg by New York Courts “working in conjunction with” OCFS. (Id. ¶¶ 12, 31). D.B., born in 1998, was a “juvenile resident” at Taberg from July 2014 to October 2015-age 15 to 16.[4] (Id. ¶¶ 27-28). C.P., born in 2000, was a “juvenile resident” “on various occasions” from January 2014 to October 2018-age 13 to 17. (Id. ¶¶ 28-30). Upon placement at Taberg, D.B. and CP were “admonished that . . . they were expected to abide by the rules and regulations, and that they were subject to punishment of various degrees if they did not adhere thereto.” (Id. ¶ 32).
Montana, who wore a uniform and carried metal handcuffs, a radio, state identification, and a flashlight, was a “mentor” or “Youth Div. Aide” at Taberg. (Dkt. No. 21-1, ¶¶ 38, 50). Montana “use[d] his influence to groom both plaintiffs and then use[d] that same power to physically and sexually abuse them.” (Id. ¶ 41). Montana “purchase[d] contraband and other items for plaintiff to gain their compliance with his sexual demands.” (Id. ¶ 44). These items included outside food from McDonald's or Subway or Chinese restaurants, which “was not otherwise permitted or available” to residents, as well as soaps, sponges, mp3 players, “[f]uzzy” pillows, and comforters. (Id. ¶ 44).
Montana engaged in unprotected sex with D.B. and C.P. and had “sex with the plaintiffs whenever the opportunity arose.” (Id. ¶¶ 46, 49). Montana would “push a big chair against the door so to prevent others entry to the places where the sexual encounters were taking place.” (Id. ¶ 55). When Plaintiffs voiced concern about unprotected sex or STDs, Montana would “boast that he [was] clean, ” ask about birth-control, and “warn them that they ‘better not get pregnant.'” (Id. ¶¶ 47-48). Montana “would take off his uniform wearing only his white undershirt when he was engaged in sexual contact with the plaintiffs” and would “put his hands over” Plaintiffs' mouths “to silence the noise or prevent them from screaming” during sex. (Id. ¶¶ 51, 53). In addition to engaging in sexual intercourse, Montana would direct Plaintiffs to pose nude while he pleasured himself and gave Plaintiffs “‘nickies': hickies that Montana would plant on their faces, shoulders, arms and necks.” (Id. ¶¶ 56, 61). Following sexual encounters, Montana “would . . . squeeze handcuffs tighter on plaintiffs as if they were at fault for [the] sexual encounter.” (Id. ¶ 64). The physical and sexual assaults were violent, leaving Plaintiffs with “rug burns” and bodily injuries that required medical attention. (Id. ¶ 60). Montana would also gesture at Plaintiffs with his handcuffs and flashlight, issuing “veiled threats by suggestion that he could do a lot more to plaintiffs with his power if they ‘ever crossed the line.'” (Id. ¶ 67).
Montana was also “in charge of assigning ‘restrain time' to the plaintiffs, ” and would offer “to reduce that time” in exchange for sex. (Id. ¶ 45). Montana also had access and permission to “utilize physical restraints, ” which he used “on both plaintiffs almost on a daily basis.” (Id. ¶ 42). Montana physically assaulted Plaintiffs and “verbally abuse[d] them when he unnecessarily used restraints on them”; Montana called Plaintiffs “his ‘bitches.'” (Id. ¶ 59). When using physical restraints on Plaintiffs, Montana “would do so in such a manner to physically cause undue pain and suffering to plaintiffs, ” using “his hands” to “beat” them, which he “seemed to enjoy.” (Id. ¶¶ 62-63).
Montana “had a close relationship” with Director Tillino, “who allowed Montana to essentially ‘run the place.'” (Id. ¶ 65). Montana “would have himself assigned to late hour ‘suicide watch' duty for plaintiffs, ” where he would “be in a position of privacy for the purpose of sexual encounters with the plaintiffs.” (Id. ¶ 54). “Montana was in charge of security cameras and conducted his activity in the ‘blind spots' so that” his sexual activity with Plaintiffs “could not be observed or recorded.” (Id. ¶ 55). Montana's sexual encounters with Plaintiffs took place in their individual cells, the front wing rooms by the gymnasium, the youth counselor's office, the staff lounge, and Director Tillino's office. (Id. ¶ 52).
Plaintiffs allege that Murphy and Smith “used the same grooming process and would [also] sexually and physically assault both plaintiffs.” (Dkt. No. 21-1, ¶ 68). They insisted Plaintiffs “call them ‘Daddy' and would refer to . . . plaintiffs as their ‘princess.'” (Id. ¶ 69). Murphy and Smith passed messages to Plaintiffs on scrap paper, where they wrote “explicit and erotic messages” about engaging in sexual acts with Plaintiffs. (Id. ¶ 71). Murphy and Smith “brush[ed] up against Plaintiff's [sic] bodies, ” moved “into a position behind them and grinding their genital area against [Plaintiffs'] buttocks, ” while commenting “[b]etcha that feels good, don't it.” (Id. ¶ 73). Murphy and Smith “exposed themselves to plaintiffs and repeatedly request[ed] that they expose their private parts to them.” (Id. ¶ 74). When Plaintiffs refused Murphy and Smith's sexual advances, “they became physically abusive” by “pushing them off balance and pushing them into walls.” (Id. ¶ 75).
Plaintiffs acknowledge that Aiello and Diego did not engage in sexual contact with them but allege that these Defendants “used unnecessary force and restraints on the plaintiffs, ” “press[ed] their knees on plaintiffs' backs and yank[ed] their arms in a violent fashion behind their backs and tightly handcuff[ed] them, ” “punch[ed] and kick[ed] them, ” held Plaintiffs “down on the hard floor” and “spit on” them. (Dkt. No. 21-1, ¶¶ 76-80).
Director Tillino, the Site Director at Taberg, supervised Defendants and “personally witnessed the physical assaults but failed to reign in the defendants.” (Dkt. No. 21-1, ¶ 85). Tillino gave Defendants “power to do as they wished”-giving them keys and allowing Defendants to make their own hours and to bring in contraband or outside items for Plaintiffs. (Id. ¶¶ 83-86). Plaintiffs assert that “the fact they could get away” with “sexual contact and physical abuse” “meant they were being protected by Tillino.” (Id. ¶ 88).
In general, leave to amend should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Where plaintiffs seek to amend their complaint while a motion to dismiss is pending, a court ‘has a variety of ways in which it may deal with the pending motion to dismiss from denying the motion as moot to considering the merits of the motion in light of the amended complaint.'” Haag v. MVP Health Care, 866 F.Supp.2d 137, 140 (N.D.N.Y. 2012) (quoting Roller Bearing Co. of...
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