Kisembo v. NYS Office of Children & Family Servs.
| Decision Date | 01 February 2018 |
| Docket Number | 1:17–CV–354 |
| Citation | 285 F.Supp.3d 509 |
| Parties | Charles A. KISEMBO, Joseph Skabowski, and David Van Leuven, Plaintiffs, v. NYS OFFICE OF CHILDREN AND FAMILY SERVICES, Gladys Carrion, Individually, and as agents, servants and/or employees of the NYS Office of Children and Family Services, Sheila J. Poole, Individually, and as agents, servants and/or employees of the NYS Office of Children and Family Services, Roberto Velez, Individually, and as agents, servants and/or employees of the NYS Office of Children and Family Services, John Dixon, Individually, and as agents, servants and/or employees of the NYS Office of Children and Family Services, Farouk Mallick, Individually, and as agents, servants and/or employees of the NYS Office of Children and Family Services, and Gary B. Pattman, Individually, and as agents, servants and/or employees of the NYS Office of Children and Family Services, Defendants. |
| Court | U.S. District Court — Northern District of New York |
SMALLINE, HARRI LAW FIRM, OF COUNSEL: MARTIN D. SMALLINE, ESQ., Attorneys for Plaintiffs, 100 State Street, Suite 420, Albany, NY 12207
HON. ERIC T. SCHNEIDERMAN, KEITH J. STARLIN, ESQ., Ass't Attorney General, Attorneys for Defendants, Office of the Attorney General, The Capitol, Albany, NY 12224
Plaintiffs Charles A. Kisembo ("Kisembo"), Joseph Skabowski ("Skabowski"), and David Van Leuven ("Van Leuven") (collectively "plaintiffs") are three Youth Division Aides ("Aides") employed by the New York State Office of Children and Family Services ("OCFS") at Brookwood Secure Center ("Brookwood"), a juvenile detention facility located in Claverack, New York.
Plaintiffs contend that defendants OCFS, Acting OCFS Commissioner Sheila J. Poole ("Commissioner Poole"), current Brookwood Director Gary B. Pattman ("Director Pattman"), former OCFS Commissioner Roberto Velez ("Commissioner Velez"), former OCFS Commissioner Gladys Carrion ("Commissioner Carrion"), former Brookwood Director Farouk Mallick ("Director Mallick"), and former Brookwood Director John Dixon ("Director Dixon") (collectively "defendants") have violated their constitutional rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment.
In particular, plaintiffs' complaint alleges that in 2007 defendants enacted a use-of-force protocol that obligates Brookwood staff members facing a disturbance to exhaust non-physical options before resorting to the use of force. According to plaintiffs, defendants continue to enforce this protocol despite knowing full well that it places staff members at increased risk of injury or death.
Defendants have moved under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure seeking to dismiss plaintiffs' complaint in its entirety. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument.
OCFS supervises the operation of Brookwood, a juvenile detention facility that houses a population of "male individuals up to the age of 21 years old." Compl. ¶ 21. Because these inmates are typically "physically mature, with known violent criminal histories, including assault and murder," employees at Brookwood are "often requir[ed to use] immediate, forcible restraint to prevent [inmates] from inflicting life threatening assaults upon the staff." Id.
On February 27, 2007, Commissioner Carrion replaced the existing use-of-force and physical restraint policies and procedures at Brookwood with a revised Protocol (the "2007 Protocol" or the "Protocol") that was "intended to limit the use of restraint to circumstances when all mandated, proactive, non-physical, behavioral management techniques had been tried and failed." Compl. ¶ 18.
The 2007 Protocol, which would later come to be known as the "therapeutic" or "sanctuary" model of dealing with juvenile inmates, "mandated that when the use of physical restraint is necessary, the staff shall employ only the mandated minimum amount of physical control necessary to stabilize the Juvenile Inmate in a dangerous or violent situation." Compl. ¶¶ 19, 21.
To that end, the Protocol required Aides like plaintiffs to use "initial, proactive non-physical behavioral management [NPBM] techniques" before resorting to physical restraint.2 Compl. ¶ 20. In addition, the Protocol discouraged plaintiffs and other Aides at Brookwood from using "touch controls," such as "tapping," "prodding," or other "incidental gesture[s]" when addressing, confronting, or directing juvenile inmates at the facility. Id.
Prior to the implementation of the 2007 Protocol, Aides at Brookwood lacked "deterrent devices" but "were at least allowed to use decisive measures to physically restrain the [juveniles] when in imminent danger of violent assault." Compl. ¶ 24. However, after the Protocol was implemented, Aides "were no longer allowed to use decisive measures to physically restrain [inmates] when in imminent danger of violent assault." Id. ¶ 25.
Plaintiffs allege the 2007 Protocol "has promulgated a culture of predatory behavior on the part of certain violent [inmates], who have become intimately aware of the limitations placed upon the Aides in defending themselves from unprovoked assaults that are intended to cause injury or death." Compl. ¶ 27. As a result, the Protocol "has caused a culture of trepidation and fear among the Aides," who are unable to defend themselves. Id. ¶ 28.
The 2007 Protocol also altered how inmate-on-staff assaults were treated at Brookwood. Compl. ¶ 33. Before the Protocol, an inmate who assaulted an Aide or other staff member would "immediately be moved to a modified special program ("MSP") for a thirty-day period, in which there would be 24–hour supervision and he would be escorted from his unit for school, recreation, and medical care only." Id.
Since 2007, however, "there is no such procedure" in place, "leaving the Aides vulnerable to further attack." Compl. ¶ 35. Further, plaintiffs allege defendants fail to abide by certain reporting regulations instituted by the Public Employee Safety and Health Bureau ("PESH") that require facilities like Brookwood to document incidents "involving physical violence against the Aides." Id. ¶ 37.
Finally, plaintiffs allege the unsafe environment created by the 2007 Protocol has been exacerbated by OCFS's recent decision to reduce certain staffing levels at detention facilities like Brookwood. Compl. ¶¶ 29–30. For instance, the Special Services Unit ("SSU") staff—who were previously stationed in all common areas and hallways for immediate crisis response and to assist with all inmate movements in the hallways—were eliminated and reassigned to individual units, leaving the hallways and other common areas unprotected. Id. ¶ 31. According to plaintiffs' complaint, these staffing reductions occurred some time in 2016. Id. ¶ 52.
All three plaintiffs allege that they suffered serious on-the-job injuries at the hands of violent juvenile inmates that are traceable to the changes wrought by the 2007 Protocol.3
Van Leuven is a 280–pound, 52–year-old male who has worked as an OCFS Aide since January of 2001. Compl. ¶ 97. Since 2005, Van Leuven has also been qualified as a "facility-based trainer" and he is therefore familiar with the "supervision, counseling, control, and, when necessary, restraint of [inmates] within the maximum secure juvenile facilities." Id. ¶ 99. Van Leuven became the facility trainer at Brookwood on March 23, 2014. Id. ¶ 97.
On December 12, 2014, at approximately 4:30 p.m., Van Leuven attempted to intervene in an argument in the hallway between a juvenile inmate and an SSU staff member. Compl. ¶¶ 100–04.
When Van Leuven attempted to resolve the situation using NPBM techniques, a second juvenile inmate "grabbed him with a bear hug, and another [inmate], ... hit [him] over the head, neck, and shoulder with a crutch." Compl. ¶ 105.
Although Van Leuven "attempted to gain control of [the situation] by putting [the inmate] in a standing physical restraint, in response [the inmate] continued to hit [Van Leuven] with the other crutch, injuring his right wrist and arm." Compl. ¶ 106.
Van Leuven was transported to the hospital, "where he was treated for a severe headache, blurred vision, and was later found to have sustained compressed and fractured vertebrae of the neck, resulting in pain and loss of movement." Compl. ¶ 107.
As a result of this incident, Van Leuven "suffers from anxiety, sleeplessness, agitation, and post-traumatic stress." Compl. ¶ 107.
Kisembo is a 180–pound, 60–year-old male who has worked for OCFS for over twenty years. Compl. ¶ 39. As a result of his two-decade tenure, Kisembo "had been trained and was experienced in all the procedures instituted by OCFS with regard to supervision, counseling, control, and, when necessary, restraint of [inmates] within the secure juvenile facilities such as Brookwood." Id. ¶ 40.
On December 11, 2016, at around 6:30 a.m., Kisembo began his shift at Brookwood, where he was assigned as a member of the SSU staff, the "kitchen dining room staff," and the medical round staff. Compl. ¶ 44. At around 11:00 a.m., medical staff asked Kisembo to escort three juvenile inmates—one at a time—to the medical department. Id. ¶ 46.
Kisembo located the first of the three inmates, who was on a "safety watch," in another part of the Brookwood facility. Compl. ¶ 48. According to Kisembo, this inmate was "approximately 6 feet tall, weigh[ed] approximately 200 pounds, and [was] known to have committed multiple prior assaults of Aides at Brookwood." Id. ¶ 49. In any event, the inmate "appeared compliant" when Kisembo first approached him, and so Kisembo and other staff member began the process of escorting the inmate to the medical department. Id. ¶ 50.
Kisembo, the inmate, and the second staff member were about one-quarter of the way down a hallway leading to the medical...
To continue reading
Request your trial
-
Bldg. & Realty Inst. of Westchester & Putnam Cntys. v. New York
... ... Shi-Shi Wang, Esq. New York State ... Office of the Attorney General New York, NY Counsel for ... primary residence or for the use by an immediate family ... member. HSTPA, Part I. The HSTPA repealed the ... Bryant v. N.Y. State Dep't of Corr. Servs ... Albany, 146 F.Supp.2d 422, 425 (S.D.N.Y.2001) ... Amendment." (quoting Kisembo v. NYS Off. of Child ... & Fam. Servs., 285 ... 2011); N.Y. State Citizens' Coal, ... for Children v. Velez, 629 F. App'x. 92, 94 (2d Cir ... 2015) ... ...
-
Nassau & Suffolk Cnty. Taxi Owners Ass'n, Inc. v. State
...'against a state official in his or her official capacity, notwithstanding the Eleventh Amendment." Kisembo v. NYS Office of Children & Family Servs. , 285 F.Supp.3d 509, 520 (N.D.N.Y. 2018) (quoting Brown v. New York , 975 F.Supp.2d 209, 222 (N.D.N.Y. 2013) ); Nolan v. Cuomo , No. 11 CV 58......
-
Doe v. Patrick
...of official power whose very variety makes formulation of a more precise standard impossible." Kisembo v. NYS Office of Children & Family Servs., 285 F. Supp. 3d 509, 521 (N.D.N.Y. 2018). That said, the "shock the conscience standard is not easily met." Vosburgh v. Burnt Hills - Ballston La......
-
Page v. Cuomo
...a constitutional sense, but not against a government action that is incorrect or ill-advised." Kisembo v. N.Y. State Office of Children & Family Servs. , 285 F. Supp. 3d 509, 521 (N.D.N.Y. 2018) (citation omitted). There is nothing conscience-shocking about the Executive Order. As the foreg......