Lone Gan v. Hasty

• Decision Date: 22 June 2006
• Docket Number: No. 04 CV 2743(NG)(VVP).,04 CV 2743(NG)(VVP).
• Citation: 436 F.Supp.2d 419
• Parties: Bryan LONEGAN; Olivia Cassin; Janet Sabel; Yvonne Floyd-Mayers; Jennifer Baum; and Marianne Yang, Plaintiffs, v. Dennis HASTY; David Rardin; James Sherman; Salvador Lopresti; William Beck; John Osteen; Laytema James; Richard Diaz; and Reynaldo Alamo, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 419

436 F.Supp.2d 419

Bryan LONEGAN; Olivia Cassin; Janet Sabel; Yvonne Floyd-Mayers; Jennifer Baum; and Marianne Yang, Plaintiffs, v. Dennis HASTY; David Rardin; James Sherman; Salvador Lopresti; William Beck; John Osteen; Laytema James; Richard Diaz; and Reynaldo Alamo, Defendants.

No. 04 CV 2743(NG)(VVP).

United States District Court, E.D. New York.

June 22, 2006.

COPYRIGHT MATERIAL OMITTED

Nelson Andrew Boxer, Alston & Bird LLP, New York, NY, for Plaintiffs.

Matthew Scarlato, Michael L. Martinez, Justin P. Murphy, Shari Ross Lahlou, Crowell & Moring LLP, Washington, DC, Kenneth A. Stahl, United States Attorney's Office, Brooklyn, NY, Bridgett McMillan, Bridgett McMillan, Attorney at Law, New York, NY, Jerold D. Wolin, Wolin & Wolin, Jericho, NY, James J. Keefe, James J. Keefe PC, Garden City, NY, David A. Koenigsberg, Menz Bonner & Komar LLP, Raymond Granger, New York, NY, Debra L. Roth, Thomas M. Sullivan, Shaw, Bransford, Veilleux & Roth, PC, Washington, DC, for Defendants.

OPINION AND ORDER

GERSHON, District Judge.

Plaintiffs, who are attorneys employed by the Legal Aid Society of New York, claim that, by secretly recording their conversations with certain detainees at the federal Bureau of Prisons' Metropolitan Detention Center ("MDC"), located in Brooklyn, New York, defendants, a former warden of MDC and other employees of the Bureau of Prisons ("BOP"), violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (the "Wiretap Act" or "Title III"), 18 U.S.C. §§ 2510-2522, and the Fourth and Fifth Amendments of the U.S. Constitution. The former warden, Dennis Hasty, moves the court pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiffs' complaint on a variety of grounds, including qualified immunity. For the reasons set forth below, plaintiffs' Fifth Amendment claim is dismissed, and Hasty's motion is otherwise denied.

FACTS

For purposes of the motion to dismiss, all factual allegations set forth in the complaint are accepted as true and all reasonable inferences are drawn in favor of plaintiffs.¹

In connection with the federal government's investigation of the terrorist attacks that occurred on September 11, 2001, 84 individuals ("Detainees") were arrested and detained at MDC on immigration charges. Detainees remained at MDC for approximately eleven months. During most of that time period and at all times relevant to this case, defendant Dennis Hasty was the warden of MDC. Hasty retired in April 2002 and was succeeded as warden by Michael Zenk. None of the Detainees were charged with criminal activity related to terrorism, although some were charged with other crimes. Most of them were eventually deported.

Conditions of Detention

At MDC, inmates who are deemed to pose a heightened security risk are segregated from the general population in an area called the Special Housing Unit ("SHU"). In September 2001, one wing of the SHU was modified to enable confinement of the Detainees in the most restrictive and secure conditions permitted by BOP policy. The modified wing was called the "administrative maximum SHU" or "ADMAX SHU." It was separated from the rest of the SHU by an area containing a holding cell, a lieutenant's office, and a visiting area (the "Visiting Area"). The Visiting Area consisted of three adjacent meeting spaces, each divided by a metal wall approximately three feet high and a thick glass partition that extended from the top of the wall to the ceiling, preventing physical contact between inmates and visitors. Whenever a Detainee was taken from his cell, he would be escorted by three officers and a lieutenant at all times. During routine escorts on the ADMAX SHU, Detainees were handcuffed behind their backs and placed in leg restraints. When escorted to visits, Detainees were handcuffed in front, restrained in waist chains, and placed in leg restraints; after visits, they were pat-searched or strip-searched.

On October 5, 2001, in response to allegations by a Detainee that he had been physically abused by MDC officers, MDC instituted a policy requiring officers to videotape Detainees whenever they were outside of their assigned cells. Subsequently, this policy was adopted by the BOP. In a memorandum dated October 9, 2001, the BOP Northeast Regional Director instructed all wardens in the region, including Hasty, to videotape post-September 11th detainees whenever they were escorted outside of their cells in order to deter unfounded allegations of abuse.

Plaintiffs' Meetings with Detainees

In October 2001, one of the Detainees telephoned the Legal Aid Society to request legal assistance. In response, plaintiffs Olivia Cassin and Bryan Lonegan went to MDC to meet with the Detainee. Subsequently, the Legal Aid Society received requests for legal assistance from other Detainees. Between October 23, 2001 and December 31, 2001, plaintiffs conducted approximately 30 meetings with various Detainees at MDC. The purpose of the meetings was to provide the Detainees with legal advice and, in some instances, to assist them in securing representation from other attorneys. Nearly all, of the meetings took place in the Visiting Area.

A regulation promulgated by the United States Department of Justice ("DOJ"), codified at 28 C.F.R. § 543.13(e), which was in effect during the time period at issue and remains in effect at present, prohibits auditory monitoring of attorney-client meetings at federal prisons. On October 31, 2001, the Attorney General issued a directive, codified at 28 C.F.R. § 501.3(d), authorizing auditory monitoring of such meetings under limited circumstances, which include that the monitoring be approved by the Attorney General based on reasonable suspicion that a particular inmate may use communications with attorneys to facilitate acts of terrorism and that prior notice be given to both the inmate and the inmate's attorney.

Plaintiffs allege that they had an expectation of privacy when meeting with Detainees. Some plaintiffs observed video-cameras positioned near the Visiting Area and asked MDC officers whether the cameras were on. They were told that the cameras were not on. Subsequent to the issuance of the Attorney General's directive, plaintiffs asked MDC officers whether their meetings with Detainees were being recorded pursuant to its terms. They were told that the meetings were not being recorded.

The OIG Investigation

In March 2003, the Office of the Inspector General ("OIG") of the DOJ began a comprehensive administrative investigation into alleged abuse of Detainees by MDC officers.² The results of this investigation were published in a December 2003 report entitled "Supplemental Report on September 11 Detainees' Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York" (the "OIG Report"), which is annexed to plaintiffs' complaint as Exhibit 1 and incorporated therein by reference.³ Hasty, who retired in April 2002, did not participate in the investigation, but his successor, Michael Zenk, did. The information that Warden Zenk provided to OIG investigators concerning events during Hasty's tenure was based on briefings by staff members.

The investigation uncovered evidence of physical and verbal abuse of Detainees by MDC officers. In addition, the investigation revealed efforts by MDC officers to interfere with Detainees' access to legal counsel. Detainees were denied regular access to the telephone for the purpose of making legal phone calls. OIG Report at 42. And, their meetings with attorneys were routinely recorded. OIG Report at 31-33, 44.

In connection with its investigation, OIG requested that MDC produce all videotapes of Detainees. MDC officers resisted this request, stated that many such tapes had been destroyed in the normal course of business, and delayed in producing the tapes that were not alleged to have been destroyed. OIG Report at 39-42. On August 20, 2003, investigators visiting MDC discovered in a storage room 308 videotapes, the existence of which had not been made known to OIG. With respect to these tapes, the OIG Report states: "We took the 308 newly discovered videotapes to review. These 308 tapes provided much of the evidence discussed in this report corroborating many of the [D]etainees' allegations. Many of the tapes contradicted statements of MDC staff members about the treatment of the [D]etainees." OIG Report at 41 (footnote omitted). The OIG Report goes on to note that "even with these newly discovered tapes, significant gaps existed in the MDC's production of videotapes. For example, .. . . many tapes start or stop in the middle of [D]etainees' escorts. There are also no tapes from some `use of force' incidents [i.e., incidents in which Detainees alleged improper use of force by MDC personnel]." OIG Report at 41. Viewing the videotapes led OIG investigators to conclude that many MDC officers "lacked credibility." OIG Report at 42. The videotapes revealed that "some staff members engaged in the very conduct they specifically denied in their interviews," which caused investigators "to question the credibility of these staff members and their denials in other areas for which we did not have videotape evidence." OIG Report at 42.

The videotapes showed that during the period from October 2001 to February 2002, meetings between Detainees and their attorneys were routinely recorded by videocameras that captured both sound and visual images. In relevant part, the OIG Report states:

We found that MDC staff members not only videotaped the [D]etainees' movements when taken from their cells to visit with their attorneys, they also recorded [D]etainees' visits with their attorneys using videocameras set up on tripods outside the attorney visiting rooms. In total, we found more than 40 examples of staff videotaping [D]etainees' attorney visits. On many videotapes, we were able to hear significant portions of what the [D]etainees were telling their attorneys...