Noguerav.Hasty

United States District Court, S.D. New YorkJul 21, 2000
99 Civ. 8786 (KMW)(AJP) (S.D.N.Y. Jul. 21, 2000)

99 Civ. 8786 (KMW)(AJP)

July 21, 2000


REPORT AND RECOMMENDATION


PECK, Magistrate Judge.

To the Honorable Kimba M. Wood, United States District Judge:

In this action brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), plaintiff Luz Betty Noguera alleges that, while she was an inmate at the Metropolitan Correctional Center ("MCC") in Manhattan, she was repeatedly raped and sexually abused by defendant Lt. Wade Smith, and that the other defendants — Wardens Dennis Hasty and R.M. Reish, Captain Nelson Aponte and Lt. Hubert R. Garvin — were deliberately indifferent to a serious risk to her health and safety caused by Lt. Smith's behavior. (See generally Dkt. No. 15: Compl. ¶¶ 10-27.) In addition, Noguera has asserted additional claims against Lt. Smith under state law for assault and battery (Compl. ¶¶ 28-30) and intentional infliction of emotional distress (Compl. ¶¶ 31-33).

Parenthetical references to "Compl." refer to the Second Amended Complaint filed on March 10, 2000. The prior complaints will be referred to as the August 10, 1999 Complaint and the December 1, 1999 Amended Complaint, respectively.

All five defendants have moved for summary judgment on Noguera's claims, arguing that they are not exhausted as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e (a), and are time-barred. Warden Hasty, Warden Reish, Capt. Aponte and Lt. Garvin further move for summary judgment arguing they were not personally involved in the conduct and their responses to it were reasonable.

For the reasons set forth below, summary judgment should be GRANTED GRANTED in its entirety for Lt. Garvin. Disputed material facts preclude summary judgment for Warden Hasty, Warden Reish, Captain Aponte and Lt. Smith; therefore, summary judgment should be DENIED DENIED as to them.

FACTS Introduction

Noguera alleges that Lt. Wade Smith, a high ranking officer at the Metropolitan Correctional Center ("MCC") in Manhattan, repeatedly raped, sodomized and otherwise sexually abused her from late 1995 until early 1997. Bolstering her claim, Noguera provided materials in discovery indicating that Lt. Smith similarly sexually abused several other women and suggesting that prison authorities were aware of his conduct. Indeed, in 1999 Lt. Smith was indicted on two counts of sexual abuse and one count of providing contraband to a prisoner related to incidents that took place after his alleged sexual abuse of Noguera ended. (Ex. K: Indictment.) Lt. Smith resigned from the Bureau of Prisons on May 22, 1999 (Ex. J: 5/19/99 Resignation Letter) and in September 1999 pled guilty to a single charge of providing contraband to a prisoner (Ex. L: Plea Agreement). Noguera was transferred from the MCC to the Federal Correctional Institute at Tallahassee, Florida in June 1999. (Ex. N: Noguera Dep. at 32, 71-73; Noguera Response to Defs. Rule 56.1 Stmt. ¶ 20.)

References to lettered exhibits are to the exhibits to the April 28, 2000 Affidavit of Assistant United States Attorney Michael M. Krauss, who is counsel for all defendants except defendant Lt. Smith.

References to "Defs." are to the four defendants, other than Lt. Smith, represented by the U.S. Attorney's office.

Lt. Smith's Sexual Abuse of and Retaliation Against Noguera

Noguera was incarcerated at the MCC from June 3, 1994 through June 4, 1999 based on a drug conspiracy conviction. (Noguera Dep. at 6, 30, 32; Noguera Response to Defs. Rule 56.1 Stmt. ¶ 1.) Wade Smith, now 44, was a lieutenant assigned to the MCC since 1990. (Ex. 6: Lt. Smith Dep. at 6, 24.) Specifically, Lt. Smith was a GS-11 "operations lieutenant," responsible for running the institution when the warden was absent. (Ex. O: Reish Dep. at 12-13, 15.) As such, inmates and staff were required to carry out his orders immediately. (Id. at 16.)

Lt. Smith's Sexual Abuse of Noguera

According to Noguera, her relationship with Lt. Smith began as a "friendly" one in 1995. (Ex. N: Noguera Dep. at 42-43.) By the end of 1995, however, Lt. Smith became "more than friendly" with Noguera, touching her breasts and genitals from one to three times a week and engaging in sexual intercourse and oral sex in the small supply closet in the unit used as an office for officers. (Id. at 44-45, 47-50.) Noguera, who said she is "gay," did not want Lt. Smith to do what he did. (Id. at 45-46, 56-57.) While Noguera admits that she never directly told Lt. Smith to stop, she also testified that she was "in a position that whatever I said it was not going to go." (Id. at 46.) Moreover, she felt that she would be placed in solitary confinement if she resisted. (Id. at 46-47.) From 1995 to January or February 1997, Noguera repeatedly was forced to engage in oral sex with Lt. Smith and three times had sexual intercourse with him. (Id. at 47, 51-53; see also Noguera 5/18/00 Aff. ¶ 2.) All of these sexual contacts were non-consensual (Noguera Dep. at 45-46, 56-57) — Noguera felt "I ha[d] to do it . . . I'm the inmate, he's the lieutenant. If I don't do what he wants I'm going to pay for it . . . He's going to find a way to nail me." (Noguera Dep. at 56.)

Sexual activity between a person in authority in a federal prison and a person under his or her authority constitutes a criminal offense by the person in authority. 18 U.S.C. § 2243 (b).

Early in 1997, after Noguera had spoken to prison authorities, she attempted to take the condom Lt. Smith had used during intercourse in order to prove that sexual contact had occurred. (Noguera Dep. at 54-55.) After that, Lt. Smith grew suspicious and stopped having sexual contact with Noguera. (Id.) Lt. Smith's sexual abuse of Noguera stopped by January or February 1997. (Noguera Response to Lt. Smith Rule 56.1 Stmt. ¶ 6; Noguera Response to Defs. Rule 56.1 Stmt. ¶ 14.)

In his deposition, Lt. Smith denied ever having any sexual contact or intercourse with Noguera, touching any part of her body, being touched by her, asking to see her private parts, being in her cell or being in the unit office with her. (Ex. 6: Smith Dep. at 36-37, 41.)

Lt. Smith's Attempts at Retaliation and Coverup

Noguera claims that Lt. Smith expressed concern about keeping their relationship secret beginning in late 1996, when he "asked [her] threateningly whether [she] had spoken to anyone about him." (Noguera 5/18/00 Aff. ¶ 3.) She also claims that after she disclosed to prison officials that Lt. Smith was raping her, he retaliated against her by "intimidating and harassing [her] and telling other inmates at the MCC that [she] was a `snitch,' which further isolated Noguera, causing Noguera further emotional pain and anxiety." (Compl. ¶ 23; Noguera 5/18/00 Aff. ¶ 2; Noguera Response to Defs. Rule 56.1 Stmt. ¶ 14.) Noguera continued to fear for her life, she says, until Lt. Smith resigned his post at the MCC in May 1999. (Noguera 5/18/00 Aff. ¶ 3.) Noguera testified that her prison counselor, Wanda Wingate, as well as Lt. Garvin and her fellow inmates told her that Lt. Smith was telling inmates that she was a "snitch." (Noguera Dep. at 89-90.).

Lt. Smith denied telling "anybody at MCC, either staff or inmates, that Noguera was a snitch." (Smith Dep. at 69.)

Lt. Smith's Reputation as a Sexual Predator

By the time of Lt. Smith's alleged sexual abuse of Noguera, he had acquired a "reputation" at the MCC. As Corrections Officer Tonya Henley, described in her deposition:

Lieutenant Smith was — upon my first entering MCC New York, he was considered a predator lieutenant on new staff, female staff members, and I was warned, you know, just to watch out for him.

(Ex. 1: Henley Dep. at 22.) Soon after she started, C.O. Henley was asked to bring a female inmate to meet privately with Lt. Smith in the supply closet office. (Henley Dep. at 28-29.) Lt. Smith and the female inmate were in the office for an inappropriately long time, C.O. Henley felt, and her fears were confirmed when the female unit manager scolded Lt. Smith, saying "Smitty, don't start this shit here early in the morning." (Id. at 29-30, 33.) When C.O. Henley mentioned the incident to another female corrections officer and sought advice on whether to report it, she was told: "Henley, this has been going on for a long time, don't even waste your time." (Id. at 30.) C.O. Henley understood that to mean that superiors were already aware of Lt. Smith's "inappropriate" sexual behavior towards inmates and staff. (Id. at 33-34; see also id. at 62-63: "I think that Lt. Smith had either a sex addiction because it wasn't only with inmates, it was also with several of my co-workers, . . . a lot of them had sex with him . . . I knew that the man had a problem. Institution was aware that the man had a problem.")

C.O. Henley also was well aware of Lt. Smith's sexual abuse of Noguera. Noguera first told C.O. Henley about Lt. Smith's abuse in the summer of 1996. (Henley Dep. at 49, 57.) Noguera provided vivid details of Lt. Smith's sexual abuse of her, including descriptions of Lt. Smith's penis, and her attempts to obtain proof. (Henley Dep. at 49-61, 128-31.) Noguera also told C.O. Henley that after she tried to pull off Lt. Smith's condom, he stopped having sexual relations with her and "started seeing another inmate." (Henley Dep. at 52-53, 129-30.) C.O. Henley also stated that Noguera stayed locked in her cell on days when Lt. Smith was on duty because she was afraid to leave as a result of Lt. Smith telling other inmates she was a snitch. (Id. at 61, 64-66, 132; see also Noguera Response to Defs. Rule 56.1 Stmt. ¶ 14.) On one occasion, Henley observed Lt. Smith trying to intimidate Noguera. (Henley Dep. at 67-68.)

At some point, although it is not exactly clear when, C.O. Henley reported the pervasive climate of sexual harassment at the MCC to then Warden Reish. (Id. at 148-49.) C.O. Henley testified that towards the end of Warden Reish's tenure, he admitted to her that "[h]e knew what was going on but he had other fish to fry[.]" (Id. at 151.) In her conversation with Warden Reish, C.O. Henley did not specifically mention Noguera's allegations about Lt. Smith, she said, because Warden Reish told her he was already aware of them from an investigator's report. (Id. at 152-53.)

Noguera's Allegations Against the Other Defendants Former Warden R.M. Reish

Ralph M. Reish was the MCC warden from September 6, 1994 through July 6, 1997. (Ex. O: Reish Dep. at 5; Noguera Response to Defs. Rule 56.1 Stmt. ¶ 16.) He is now the warden at the Federal Correctional Institution in Minorsville, Pennsylvania. (Reish Dep. at 5.) Warden Reish testified that, as far as he knew, Lt. Smith had a "reputation for being a good lieutenant" that lasted throughout Warden Reish's command of the MCC. (Id. at 24-25.) However, Warden Reish admitted that he was aware of "rumors" that Lt. Smith was "dating staff" (id. at 29), and that he received and referred Noguera's complaint about Lt. Smith's sexual misconduct to the Bureau of Prisons' Office of Internal Affairs ("OIA") (id. at 31-32). Warden Reish did not form a belief one way or the other as to the truth of Noguera's allegations against Lt. Smith but "knew it was something that we had to have investigated." (Id. at 44.)

On April 26, 1996, at around the time that several inmates were complaining of sexual misconduct by MCC staff, Warden Reish ordered the Office of the Special Investigative Supervisor ("SIS"), the prison's internal investigative unit, not to interview inmates in their office because, he said, such interviews could cause inmates to be labeled as informants. (Id. at 45-47; see also Ex. 3: Garvin 4/26/96 Memo to Files.) Lt. Garvin, an SIS investigator, created a contemporaneous file memorandum memorializing Warden Reish's policy. According to Lt. Garvin's memo, Warden Reish said the following at the meeting that morning:

I do not want you or your staff to bring anymore female inmates from 5-South [Noguera's all-female unit] for interviews or questioning regarding staff activities on the unit. I personal [sic] wanted to catch him (Lieutenant Smith) red handed, but now you have blown it by bringing the female inmates to your office and questioning them about Lieutenant Smith's involvement with inmates on the unit[.] Don't you realize that they (the inmates) go back and tell him that you were questioning them about his activities on the unit. I do not want you or your staff to bring anymore female inmates to your office regarding staff without contacting me first for my approval.

(Ex. 3: Garvin 4/26/96 Memo to Files.) At his deposition, Warden Reish denied making the precise statement about Lt. Smith but agreed that female inmates should not be called down to the SIS offices. (Reish Dep. at 46-47.)

Warden Reish also testified that he "may have" told Lt. Smith to stay off the female unit while he was under OIA investigation. (Id. at 65-67.) However, Warden Reish does not claim to have taken any other measures to protect Noguera even after Lt. Smith's alleged conduct was reported to him from multiple sources.

Lieutenant Hubert Ray Garvin

Hubert Garvin, a GS-9 lieutenant, worked in the SIS office at the MCC from May 1995 through August 1997. (Ex. S: Garvin Dep. at 8, 17.) His main responsibility at SIS was to investigate allegations of inmate misconduct. (Noguera Response to Defs. Rule 56.1 Stmt. ¶ 4.) In December 1997, he was transferred to the federal correctional facility in Chicago. (Garvin Dep. at 5.)

On April 28, 1996, Lt. Garvin interviewed Noguera in 5-South (the female housing unit) regarding her allegations that she had been subjected to sexual abuse by Lt. Smith. (Noguera Response to Defs. Rule 56.1 Stmt. ¶ 4; Garvin Dep. at 98.) At the interview, Noguera informed Lt. Garvin that she had had sexual intercourse with Lt. Smith; Lt. Garvin asked her to put the allegation in writing. (Noguera Response to Defs. Rule 56.1 Stmt. ¶¶ 2-3; Garvin Dep. at 93.) This took place just two days after Warden Reish ordered SIS not to interview inmates in their offices — an order that Lt. Garvin felt was "kind of like, tying our hands." (Garvin Dep. at 59.) In fact, Noguera alleges that Lt. Garvin told her that he feared for his job if he investigated Lt. Smith too aggressively. (Noguera Dep. at 97.)

In a May 8, 1996 memorandum to the associate warden, Lt. Garvin admitted that he told Noguera's lawyer that he did "not know anything about any misconduct in regards to" Noguera — despite the fact that Noguera had detailed her allegations just a few days earlier. (Ex. 5: 5/8/96 Memo from Lt. Garvin to A.W. Stiefel.)

Lt. Garvin stated that in order to protect Noguera, he passed along to his supervisor her complaint against Lt. Smith. (Garvin Dep. at 95-96.) Lt. Garvin said that there was "nothing else [he] could do personally, as a staff member." (Id. at 96.)

Warden Dennis Hasty

On July 6, 1997, Warden Reish left the MCC and was replaced by Dennis Hasty, who had not worked at the MCC previously. (Noguera Response to Defs. Rule 56.1 Stmt. ¶ 16.) Shortly after Warden Hasty arrived, he was informed by Kenneth Haas, an MCC unit manager, of the swirl of rumors and allegations of sexual misconduct surrounding Lt. Smith and others. (Haas Dep. at 456, 65.) Haas tried to bar Lt. Smith from the all-female unit. (Haas Dep. at 65-68.) However, his recommendation was not followed, at least not permanently. (Haas Dep. at 63-65.)

At his deposition, Warden Hasty admitted being aware of the investigations of Lt. Smith, but was not asked about Haas' specific allegation that he advised Warden Hasty to bar Lt. Smith from the female unit. (See Hasty Dep. 51-53.)

Lt. Smith claims to have told his supervisors, including the wardens he worked for, about rumors that he had inappropriate relationships with inmates. (Lewis Aff. Ex. B: 11/21/96 Investigative Report at 6: "Smith maintained he always informed his supervisors, associate wardens, and the warden about the rumors. . . ." about alleged inappropriate sexual relations with female inmates; Ex. 7:9/12/96 Lt. Smith Aff. ¶ 4: "From the beginning, I let my supervisor, the associate wardens and the wardens know about the rumors I heard.")

Captain Nelson Aponte

Captain Nelson Aponte began working at the MCC on December 7, 1997 as the department head in charge of custody. (Ex. Q: Aponte Dep. at 5, 27; Noguera Response to Defs. Rule 56.1 Stmt. ¶ 17.) As such, Lt. Smith reported to him. (Aponte Dep. at 29-30.) He considered Lt. Smith "a good lieutenant" and his "right-hand man." (Id. at 39.) Capt. Aponte testified that he first heard about charges of sexual misconduct by Lt. Smith at the beginning of the investigation that led to Lt. Smith's removal and indictment. (Id. at 43.)

In addition, Haas told Capt. Aponte about the rumors about Lt. Smith. (Haas Tr. at 56-58.) Haas expressed to Capt. Aponte misgivings about Lt. Smith's conduct:

I told [Capt. Aponte] that Lieutenant Smith spent a lot of time on the female floor, a lot of time which I feel he doesn't need to be there, that his job does not require him to be on the floor and that I was suspicious of that, suspicious of what he would be doing there and I thought it would be best if he didn't spend time there.

(Haas Dep. at 57.) Haas recommended to Capt. Aponte that Lt. Smith be barred from the female floor. (Haas Dep. at 62, 65-66.) Capt. Aponte later told Haas that he had warned Lt. Smith, in "colorful" profanity-laced language, to keep away from the female unit. (Haas Dep. at 66-67.)

Noguera's Efforts to Report the Sexual Abuse and Exhaust Available Administrative Remedies

In April 1996, Noguera reported to her prison counselor, Corrections Officer Wanda Wingate, that Lt. Smith was having unwanted intercourse with her. (Noguera Dep. at 57-58, 86-87; see also Ex. 2: Wingate Dep. at 12-22; Noguera 5/18/00 Aff. ¶ 4; Noguera Response to Defs. Rule 56.1 Stmt. ¶ 2.) As a result, Noguera was interviewed by Lt. Garvin and interviewed in her native Spanish by an Officer Ortiz. (Noguera Dep. at 57-58; Noguera 5/18/00 Aff. ¶ 4; Wingate Dep. at 21-22; Garvin Dep. at 93-94; Noguera Response to Defs. Rule 56.1 Stmt. ¶¶ 3, 8.) Noguera asked the officials "for help," to "tell [Lt. Smith] to stay away from me. To let him know to stop bothering me." (Noguera Dep. at 58-59.) She also testified that she informed the FBI in 1996 or 1997 and also informed Corrections Officer Tonya Henley. (Id. at 59-61, 118-21; Noguera 5/18/00 Aff. ¶ 4.) Noguera provided detailed accounts of the abuse to C.O. Henley. (Noguera Dep. at 60-61; Henley Dep. at 128-31; see page 7 above.)

Lt. Garvin asked Noguera to write out her complaints against Lt. Smith. (Noguera Dep. at 87; Noguera 5/18/00 Aff. ¶ 4; Noguera Response to Defs. Rule 56.1 Stmt. ¶ 3.) Noguera arranged to have her counselor deliver a complaint letter to Lt. Garvin. (Noguera Dep. at 87.) By letter dated April 29, 1996, Noguera complained about sexual misconduct by three staff members including Lt. Smith. (Ex. D: 4/29/96 Noguera Letter; see Noguera Response to Defs. Rule 56.1 Stmt. ¶ 5.) She alleged that Lt. Smith had been sexually harassing her since May 1995. (Ex. D.) Specifically, she alleged in the letter that Lt. Smith had "asked me to show him my private parts," displayed condoms on two separate occasions, "told me he was going to kidnap me," and accused her of "always" menstruating when she resisted his advances. (Id.) At the close of the letter she expressed hope that "this would be kept in the strict [sic] of confidence." (Id.; see also Noguera Response to Defs. Rule 56.1 Stmt. ¶ 6.) The letter did not state that Lt. Smith had forced her to have intercourse and oral sex with him. (See generally Ex. D.)

In May 1996, Noguera's letter made its way through Lt. Garvin to Warden Reish. (Lewis Aff. Ex. C: 1/24/97 Investigative Memo at 1.) As required by Bureau of Prisons regulations, Warden Reish forwarded it to the Bureau of Prisons Office of Internal Affairs ("OIA") in Washington. (Id. at 2; Lewis Aff. ¶ 3 Ex. A; Noguera Response to Defs. Rule 56.1 Stmt. ¶¶ 9-10.) OIA investigator Rita M. Lewis, who had participated in other investigations of sexual misconduct by MCC staff, conducted an investigation of Noguera's allegations in December 1996 — some six months after Noguera's April 1996 complaint. (See Lewis Aff. ¶¶ 6-10; Noguera Response to Defs. Rule 56.1 Stmt. ¶ 13.) On January 24, 1997, Investigator Lewis submitted an investigative memorandum finding Noguera's allegations not sustained because they could not be corroborated. (See Lewis Aff. ¶ 11 Ex. C at 5; Ex. 8: BOP OIA Memo, indicating case closed on 2/5/97 as "not sustained"; see also Noguera Response to Defs. Rule 56.1 Stmt. ¶ 13.)

Noguera's Present Federal Action

Noguera filed her initial federal complaint on August 10, 1999, shortly after she was transferred out of the MCC. (Dkt. No. 1:8/10/99 Compl.) The original complaint named the United States, the Bureau of Prisons, the MCC, as well as Warden Hasty and Lt. Smith. (Id.; see also Noguera Response to Defs. Rule 56.1 Stmt. ¶ 21.) No other defendants were named in the original complaint.

Noguera filed her first amended complaint on December 1, 1999. (See Dkt. No. 8:12/1/99 Amended Compl.) In it, she dropped the institutional defendants, continued the claims against Warden Hasty and Lt. Smith, and added Capt. Aponte and Lt. Garvin as defendants. (Id.)

Finally, on March 10, 2000, Noguera filed her second amended complaint, adding Warden Reish as a defendant. (Dkt. No. 15: Compl.) The first claim, against all defendants, is a Bivens claim brought under the Eighth Amendment for non-consensual sexual activity by Lt. Smith and the other defendants' failure to stop that activity. (Compl. ¶¶ 10-27.) The current complaint also asserts state law claims against Lt. Smith for assault and battery (id. ¶¶ 28-30) and intentional infliction of emotional distress (id. ¶¶ 31-33). Noguera seeks damages, punitive damages and attorney's fees. (Id., Wherefore clause.)

ANALYSIS I. LEGAL BACKGROUND A. Summary Judgment Standards

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

See also, e.g., Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *4 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Gill v. DeFrank, 98 Civ. 7851, 2000 WL 270854 at *4 (S.D.N.Y. March 9, 2000) (Peck, M.J.), report rec. adopted in relevant part, 2000 WL 897152 (S.D.N.Y. July 6, 2000) (Buchwald, D.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N Y Feb. 3, 2000) (Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 534 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.); Watson v. McGinnis, 981 F. Supp. 815, 817 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Greenfield v. City of New York, 2000 WL 124992 at *3; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 817; Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *3 (S.D.N.Y. March 24, 1997) (Peck, M.J.).

See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.

See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534.

See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513. The Court draws all inferences in favor of the nonmoving party — here, Noguera — only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.

See, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.

Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818.; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted).

Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Gill v. DeFrank, 2000 WL 270854 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Gill v. DeFrank, 2000 WL 270854 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

See also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12; Carbonell v. Goord, 2000 WL 760751 at *5; Gill v. DeFrank, 2000 WL 270854 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

B. Eighth Amendment Claims under Bivens

Under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics and its progeny, federal courts can hear suits for money damages against government officials accused of violations of constitutional rights. Bivens v. Six Unknown Agents, 403 U.S. 388, 396-97, 91 S.Ct. 1999, 2004-05 (1971); see also, e.g., Carlson v. Green, 446 U.S. 14, 18-19, 100 S. Ct. 1468, 1471 (1980) ("Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right."). As Justice Harlan wrote in his oft-cited concurrence in Bivens: "[F]ederal courts do have the power to award damages for violation of `constitutionally protected interests' and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment." Bivens, 403 U.S. at 399, 91 S.Ct. at 2006 (Harlan, J. concurring); see also Erwin Chemerinsky, Federal Jurisdiction § 9.1.2 (2d ed. 1994). The Supreme Court subsequently expanded the Bivens doctrine to provide money damages for infringements of other constitutional rights by federal officers, including the infliction of cruel and unusual punishment under the Eighth Amendment. Carlson v. Green, 446 U.S. at 18-22, 100 S.Ct. at 1471-74; see also, e.g., Farmer v. Brennan, 511 U.S. 825, 828-34, 114 S.Ct. 1970, 1974-78 (1994); Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 2466-67 (1988) (summarizing causes of action recognized under Bivens, including Eighth Amendment cruel and unusual punishment); Erwin Chemerinsky, Federal Jurisdiction § 9.1.2 at pp. 528-29 ("[I]n subsequent decisions the Court recognized the existence of causes of action for infringements of the Fifth, Eighth and First Amendments. Lower federal courts have recognized Bivens suits for violations of the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments.") (fns. citing cases omitted).

More recently, the Second Circuit unambiguously ruled that "sexual abuse of an inmate by a corrections officer may reach constitutional dimensions and give rise to an Eighth Amendment claim. . . ." Boddie v. Schneider, 105 F.3d 857, 859 (2d Cir. 1997); accord, e.g., Liner v. Goord, 196 F.3d 132, 135-36 (2d Cir. 1999); Williams v. Keane, 95 Civ. 379, 1997 WL 527677 at *8-10 n. 8 (S.D.N.Y. Aug. 25, 1997) (Peck, M.J.) ( cases cited therein); Sims v. Artuz, 96 Civ. 216, 1997 WL 527882 at *9-10 (S.D.N.Y. Aug. 25, 1997) ("It is well established that allegations of a prison officer's sexual abuse of an inmate may give rise to an Eighth Amendment claim."). In addition, this Court has previously found that, as Noguera alleges Lt. Smith did here, "a guard's intentionally calling a prisoner a snitch in order to cause [her] harm by other inmates states an Eighth Amendment . . . claim." Watson v. McGinnis, 964 F. Supp. 127, 131-32 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.) (citing cases).

As Warden Reish candidly conceded here, being labeled a snitch "[i]n a prison . . . can get you killed." (Ex. O: Reish Dep. at 47.)

II. THE PLRA DOES NOT BAR NOGUERA'S CLAIMS BECAUSE HER WRITTEN COMPLAINT AND COOPERATION WITH PRISON AUTHORITIES SUFFICED TO EXHAUST HER ADMINISTRATIVE REMEDIES Defendants argue that Noguera's claims should be dismissed under the PLRA for failure to exhaust available administrative remedies. (Defs. Br. at 11-24.) The PLRA mandates that a prisoner exhaust administrative remedies before bringing suit in federal court under federal law:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a); see, e.g., Odumosu v. Keller, No. 99-0215, 205 F.3d 1324 (table), 2000 WL 241644 at *1 (2d Cir. Feb. 1, 2000).

Applicability of the PLRA's exhaustion requirement to this case is not entirely clear. The question of whether lawsuits seeking only money damages for past, completed conduct must be administratively exhausted where administrative procedures provide no mechanism for monetary compensation is hotly contested, both among the district courts of this Circuit and among the circuits. See Vasquez v. Artuz, 97 Civ. 8427, 1999 WL 440631 at *5 (S.D.N.Y. June 28, 1999) (Peck, M.J.) (collecting cases). While I have previously ruled that "the administrative exhaustion requirement in § 1997e(a) applies to prisoner claims for monetary damages even where monetary damages are not available through the prison administrative process[,]" id. at *6, that conclusion may have been undercut by a recent "unpublished" Second Circuit opinion. In Odumosu v. Keller, 2000 WL 241644 at *1-2, the Second Circuit held that exhaustion was not required for a Bivens suit for money damages by a federal prisoner because the Bureau of Prisons Administrative Remedy Program does not provide for financial compensation to complainants: "The harm from defendants' failure to protect [plaintiff] is complete and no additional damages accrue. Therefore, all the benefits of allowing the BOP to be informed of complaints even if it cannot provide a remedy are absent in this case. . . . In short, administrative action could afford [plaintiff] neither meaningful review nor appropriate remedy and the benefits of exhaustion do not obtain in this case. We will not require [plaintiff] to engage in the futile pursuit of seeking administrative remedies that are not available." Id. Pursuant to Second Circuit Rule § 0.23, unpublished opinions "shall not be cited or otherwise used in unrelated cases before [the Second Circuit] or any other court." Because the Court has determined that Noguera's efforts were sufficient to exhaust administrative remedies, even if exhaustion were required, the Court need not determine whether exhaustion is necessary where, as here, only monetary damages are sought.

The Third, Sixth, Seventh and Eleventh Circuits require exhaustion even when a complaint seeks money damages which are not available through administrative channels. See Booth v. Churner, 206 F.3d 289, 299-300 (3d Cir. 2000); Lavista v. Beeler, 195 F.3d 254, 257 (6th Cir. 1999) (exhaustion required at least where complaint seeks injunctive as well as monetary relief); Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 537-38 (7th Cir. 1999); Alexander v. Hawk, 159 F.3d 1321, 1325-28 (11th Cir. 1998). The Fifth, Ninth and Tenth Circuits have come to the opposite conclusion, holding that suits seeking money damages may be brought without administrative exhaustion where administrative processes do not provide for cash compensation. See Miller v. Menghini, 213 F.3d 1244 (10th Cir. 2000); Wright v. Hollingsworth, 201 F.3d 663, 665 (5th Cir. 2000); Rumbles v. Hill, 182 F.3d 1064, 1068-69 (9th Cir. 1999), cert. denied, 120 S.Ct. 787 (2000).

See also Snider v. Dylag, 188 F.3d 51, 55 (2d Cir. 1999) ("We note that it is far from certain that the exhaustion requirement of 42 U.S.C. § 1997e(a) applies to deliberate indifference claims . . . where the relief requested is monetary and where the administrative appeal, even if decided for the complainant, could not result in a monetary award."); cf. Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (noting Circuit split on whether administrative exhaustion is required in suits seeking monetary damages that are not available through prison administrative processes, but declining to resolve those "complex legal issues . . . without the benefit of a more complete record.").

BOP's Administrative Remedy Program ("ARP") is a four-step grievance procedure available to all federal prisoners. See generally 28 C.F.R. § 542.10-19. Under the ARP regulations, an inmate is required to try to resolve her complaint informally by submitting an "Inmate Request to Staff Member" — known in prison slang as a "cop-out" (Haas Dep. at 166-67) — to the appropriate staff member. 28 C.F.R. § 542.13(a). Only then, but not later than twenty days after the event that triggered the inmate's complaint, may an inmate submit a formal written "Administrative Remedy Request," on form BP-9. Id. § 542.14(a). The warden's office must respond to the inmate's BP-9 within twenty days. Id. § 542.18. An inmate dissatisfied with the warden's response may appeal to the local BOP regional director within twenty days, on form BP-10. Id. § 542.15(a). The regional director has thirty days to respond. Id. § 542.18. An inmate who is unhappy with the decision of the regional director has thirty days to submit a final appeal, on form BP-11, to the general counsel at the BOP's central office. Id. § 542.15(a). The general counsel must respond within forty days. Id. § 542.18. Administrative exhaustion is complete when the general counsel rules on the inmate's final appeal. Id. § 542.15(a). At any point in the process, if the inmate does not receive a timely response, she may consider the failure to respond to be a denial of the grievance and proceed to the next level. Id. § 542.18. Special provisions cover emergency requests and sensitive matters: if the request is an emergency "which threatens the inmate's immediate health or welfare," the warden must respond within three calendar days. Id. Sensitive matters that "the inmate reasonably believes . . . the inmate's safety or well-being would be placed in danger if the Request became known at the institution," may be filed directly with the Regional Director. Id. § 542.14(d)(1).

In this case, Noguera complained orally that she was being sexually abused by Lt. Smith. (See page 12 above.) When Lt. Garvin asked her to put her complaint in writing, she immediately complied. (See page 13 above.) The pertinent information was given to an investigative lieutenant, then sent to the warden and the BOP Office of Internal Affairs in Washington. (See pages 13-14 above.) Noguera cooperated with a subsequent interview, apparently conducted by the FBI. (See page 13 above.) At no time did she refuse to provide any information or fail to cooperate with authorities in any way. Her complaint was investigated at the highest possible level, by an OIA official independent of the MCC. (See page 14 above.) A final investigative report was rendered. (Id.) Ultimately, Lt. Smith was removed based on an alleged sexual attack on another inmate. (See page 3 above.) After all that, no further administrative remedy was, or is, available to Noguera. The procedure Noguera followed put both the institution itself and the BOP in Washington on notice of her complaints about Lt. Smith's conduct.

Prison officials concede that Noguera's letter was an appropriate avenue for administrative relief for her complaints against Lt. Smith. Warden Reish himself explained that Noguera's letter was sufficient to initiate the administrative remedy process:

Q. Would the content of the Noguera letter to you qualify as a request for administrative relief for a remedy?
A. You could submit it on that, but I probably said — I'm sorry. I shouldn't speculate. It would qualify for it, yes.
Q. When you say "qualify for it," the content of [the letter] would qualify as, in your mind, a request for administrative relief by an inmate?
A. It would probably be a sensitive issue because of the nature of what it deals with.
Q. Other than providing this letter to you was there anything else that an inmate would have been required to do?

. . . .

A. Yeah, an inmate would be required to cooperate with an investigation when they came in.

(Reish Dep. at 92-93.) Later in the deposition, after consulting with counsel, Warden Reish backpedaled and declared that the Noguera letter was not "a request for administrative relief" because it was not on the right form. (Reish Dep. 95-96.) He admitted again, though, that because the complaint pertained to sexual contact between a prisoner and staff, he would have handled it the same way — forwarded it to internal affairs — whether it was on a BP-9 or in a letter. (Reish Dep. at 96.)

Kenneth Haas, the unit manager responsible for 5-South (the female unit) when Noguera was there, suggested that the Administrative Remedy Program is not an appropriate vehicle for a complaint of sexual abuse. (See Haas Dep. 167-70.) "[T]here is a serious allegation on [Noguera's letter], you don't put that on" an inmate request to staff member, he testified. (Id. at 168.) Rather, he said, it was sufficient for Noguera to communicate her complaint "to any staff member" who would refer it to the warden. (Id. at 170-71.) Warden Hasty agreed, testifying that an allegation of sexual contact between an inmate and a guard "can be brought to the attention of any employee and then it will be passed up the chain of command to [the warden's] office." (Hasty Dep. at 23.)

To the extent the ARP was not the correct vehicle for exhausting a sexual assault claim administratively, Noguera was not required to use the ARP in the first place. "Section 1997e(a) . . . clearly does not require a prisoner to exhaust administrative remedies that do not address the subject matter of his complaint." Snider v. Melindez, 199 F.3d 108, 114 n. 2 (2d Cir. 1999). Even if the ARP grievance procedures apply to claims of sexual abuse by a prison official, Noguera has made a sufficient showing that a report to a prison official and subsequent cooperation with the investigation was a proper mode for administrative redress for sexual abuse by a corrections officer. Therefore, in this unusual case, there was no need for Noguera to pursue the entire ARP in order to exhaust her administrative remedies.

Defendants cite my opinion in Vasquez v. Artuz, 1999 WL 440631, for the suggestion that an inmate "writing a letter to the Acting Commissioner of the Department of Corrections, rather than filing a formal appeal" led to dismissal for failure to exhaust administrative remedies. (Defs. Br. at 18.) That is an incorrect reading of Vasquez. There, the complaint was dismissed without prejudice because the plaintiff had stipulated that he had "not exhausted his administrative remedies." Vasquez v. Artuz, 1999 WL 440631 at *7. The only issue reached in Vasquez — not an issue in this case — was whether PLRA exhaustion was required.

The Court notes that simple letter complaints to the Commissioner of the New York State Department of Correctional Services about excessive force and medical indifference appear quite common, and such complaints are not normally sufficient to serve as a proxy for following and exhausting proper administrative remedies. See, e.g., Adams v. Galletta, 96 Civ. 3750, 1999 WL 959368 at *3 (S.D.N.Y. Oct. 19, 1999) (letter to warden insufficient to exhaust administrative remedies where inmate wanted to challenge "Central Monitoring Case" status and was notified of specific administrative procedures to do so); Salahuddin v. Mead, 95 Civ. 8581, 1997 WL 357980 at *4 (S.D.N Y June 26, 1997), rev'd on other grounds, 174 F.3d 271 (2d Cir. 1999); cf. Richardson v. Coughlin, No. 93-CV-6254, 2000 WL 815117 at *4-5 (W.D.N.Y. June 19, 2000) (superintendent's ignoring of complaint normally handled by Inmate Grievance Office does not suffice to allege personal involvement by superintendent); Pritchett v. Artuz, 99 Civ. 3957, 2000 WL 4157 at *6 (S.D.N Y Jan. 3, 2000) (blatantly ignoring prisoner's letter not sufficient to allege superintendent's personal involvement). In contrast, one would hope that complaints to a BOP warden about sexual abuse of an inmate by prison officials are not common and thus may be sufficient to exhaust administrative remedies.

Noguera has accomplished everything that might have happened if she had written out her complaint on the ARP forms instead of in a letter that was quickly given to the warden and sent by him to the OIA for investigation. Formal procedures were triggered, thus providing an administrative record and obviating any threat of weakening or undermining the administrative scheme. (See Defs. Br. at 19-20.) Since Noguera's letter set in motion the administrative process and she fully cooperated with that process, she has satisfied the PLRA's exhaustion of remedies requirement. Defendants' summary judgment motion based on the PLRA exhaustion requirement should be denied.

III. THE STATUTE OF LIMITATIONS DOES NOT BAR NOGUERA'S CLAIMS BECAUSE SHE ALLEGES UNCONSTITUTIONAL CONDUCT WITHIN THE RELEVANT LIMITATIONS PERIODS

Defendants argue that, because of the statute of limitations, all claims that arose before March 10, 1997 should be dismissed with respect to Warden Reish, claims that arose before December 1, 1996 should be dismissed with respect to Capt. Aponte and Lt. Garvin, and claims prior to August 10, 1996 should be dismissed with respect to Warden Hasty. (Defs. Br. at 34-36.) Lt. Smith joins generally in the other defendants' motion. (Lt. Smith Br. at 2.) These calculations are based on the three-year statute of limitations generally applicable to Bivens suits. Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999) (citing Owens v. Okure, 488 U.S. 235, 249-51, 109 S.Ct. 573, 582 (1989) (applying New York three-year statute of limitations for residual personal injury claims to § 1983 actions)). Lt. Smith further argues that the state common law claims against him for assault and battery (Compl. ¶¶ 28-30) and intentional infliction of emotional distress (Compl. ¶¶ 31-33) are barred under New York's one-year statute of limitations for intentional torts, CPLR § 215(3). (Lt. Smith Br. at 5-7.)

A. Lt. Smith

Taking these contentions in reverse order, Lt. Smith's motion should be denied because Noguera has provided evidence of his misconduct after August 10, 1996. Lt. Smith's final sexual contact with Noguera is alleged to be January or February 1997. (See page 5 above.) Thus, the Bivens statute of limitations does not bar the action against Lt. Smith.

Whether the statute of limitations bars recovery for Lt. Smith's conduct prior to August 10, 1996, see, e.g., Bonner v. Guccione, 916 F. Supp. 271, 277 (S.D.N.Y. 1996) (in action for continuing sexual harassment, conduct prior to limitations period is actionable where course of conduct falls within the limitations period), is an issue best left for trial and post-trial motions, particularly since Lt. Smith's briefing on this issue is inadequate. Similarly, since Noguera has alleged retaliation that may include acts after August 10, 1998 and since both Noguera and Lt. Smith were at the MCC until Lt. Smith resigned on May 22, 1999, it would be inappropriate to grant summary judgment for Lt. Smith on the common law claims.

The Court rejects Noguera's claim that the statute of limitations should be equitably tolled until Lt. Smith resigned in May 1999, because of her fear of Lt. Smith. (Noguera Br. at 22-23.) Noguera was represented by counsel in her criminal case, and she informed her counsel of Lt. Smith's sexual abuse while Lt. Smith still worked at the MCC. Moreover, Noguera filed an internal prison complaint against Lt. Smith in April 1996 (see pages 12-13 above), and could just as easily have filed this lawsuit. She is not factually entitled to equitable tolling of the statute of limitations. See, e.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (equitable tolling only applies when "extraordinary circumstances" prevent a plaintiff from filing a lawsuit on time).

B. Warden Hasty and Capt. Aponte

Since Warden Hasty only arrived at the MCC on July 6, 1997, there are no claims asserted against him outside (before) the limitations period applicable to him, i.e., before August 10, 1996. Therefore, no time bar operates against Warden Hasty.

Similarly, Capt. Aponte began working at the MCC in December 1997 (see page 11 above) and the limitations period applicable to him begins on December 1, 1996, three years before the complaint naming Capt. Aponte was filed (see page 14 above). Therefore, since Capt. Aponte's only potentially actionable conduct occurred within the limitations period, the claims against him are not time barred.

C. Lt. Garvin

Lt. Garvin's statute of limitations argument is moot because, as explained below, his summary judgment motion is granted on the merits.

D. Warden Reish

That leaves Warden Reish. Reish, who was warden during Lt. Smith's sexual relationship with Noguera, left the MCC on July 7, 1997. However, he was not named in this lawsuit until March 10, 2000, and so on its face his conduct prior to March 10, 1997 appears time-barred. However, summary judgment on behalf of Warden Reish based on the statute of limitations would be inappropriate for two reasons.

First, Noguera has adduced sufficient evidence to suggest that she was placed in danger and that Lt. Smith's retaliation against her — and Warden Reish's toleration of it — continued beyond March 1997. Therefore, a trial is necessary in any case to determine Warden Reish's liability for events from March 10, 1997 through when he left the MCC on July 7, 1997.

Second, the action against Warden Reish is not time-barred for acts after August 10, 1996 because Rule 15(c) of the Federal Rules of Civil Procedure provides that, in appropriate circumstances, an amended pleading relates back to the date of filing of the original pleading for purposes of the statute of limitations. Rule 15(c) provides:

(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint [i.e. 120 days], the party to be brought in by amendment
(A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and
(B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
The delivery or mailing of process to the United States Attorney, or United States Attorney's designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of subparagraphs (A) and (B) of this paragraph (3) with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.

Fed.R.Civ.P. 15(c). Thus, when a plaintiff seeks to add an additional defendant beyond the statute of limitations, relation back is provided when the claim arises out of the same conduct alleged in the complaint and within 120 days of the filing of the complaint, the party to be brought into the suit has received notice so that he will "not be prejudiced in maintaining a defense on the merits," and the new party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the new party. See, e.g., Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996); Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-69 (2d Cir. 1996); Byrd v. Abate, 964 F. Supp. 140, 144-45 (S.D.N.Y. 1997); William H. McGee Co., v. M/V Ming Plenty, 164 F.R.D. 601, 604-05 n. 3 (S.D.N.Y. 1995) (Griesa, D.J. Peck, M.J.).

In this case, Warden Reish does not dispute that the claim against him arises out of the conduct alleged in the initial complaint, nor does he dispute that he received notice. (Defs. Br. at 35-36.) Rather, Warden Reish argues that the mistake requirement is not satisfied because Noguera's initial failure to name him was not a "mistake" for Rule 15(c) purposes but rather stemmed from Noguera's lack of knowledge of Warden Reish's identity. (Defs. Reply Br. at 14.) Warden Reish cites Barrow v. Wethersfield Police Dep't, 66 F.3d at 469, for the proposition that relation back is available "only if the change is the result of an error, such as a misnomer or misidentification." (Defs. Reply Br. at 14.) Shortly after Barrow, however, the Second Circuit permitted a prisoner to benefit from relation back where, as here, he had mistakenly failed to name individual corrections officers who allegedly had permitted him to be brutalized by other prisoners. Soto v. Brooklyn Correctional Facility, 80 F.3d at 34-35. That case carefully distinguished the Barrow holding:

[I]n [Barrow], we declined to read Rule 15 as permitting the plaintiff to amend his complaint, after the limitations period, to name individual police officers. In that case, however, the District Judge had expressly admonished the plaintiff, before the limitations period had expired, to discover the names of the individual officers and to amend his complaint to add them as defendants. The plaintiff's only response was to name ten "John Doe" officers. The Department refused to accept service on behalf of the unnamed officers, and the limitations period expired. We distinguished that case from one involving an innocent mistake of law:
Here we are not faced with a plaintiff who mistakenly believed that suing the police department, rather than a department head, would suffice. Instead, Barrow was informed by the court — within the limitations period as Barrow construes it — that he needed to name the individual officers as defendants. Therefore, Barrow was not "mistaken" for purposes of Rule 15(c) — he knew exactly what the court required.

74 F.3d at 1367.

Unlike Barrow, Soto did not know that he needed to name individual defendants, and his failure to do so, under the circumstances of this case, can be characterized as a "mistake" for purposes of Rule 15(c)(3).

Soto v. Brooklyn Correctional Facility, 80 F.3d at 37. The Soto Court also pointed out that other jurisdictions have held that the term "mistake" in Rule 15(c) includes mistakes of both law and fact. Id. at 36.

In this case, it is clear that the failure to name Warden Reish in the initial complaint was a result of plaintiff's counsel's mistake of fact as to who was the warden at the time of Lt. Smith's sexual abuse of Noguera. Noguera's brief alleges, and the government does not deny, that Warden Reish was added to the complaint after it became clear that he, not Warden Hasty, was in charge of the MCC during the relevant time period. (Noguera Br. at 24-25; Defs. Br. at 34-36.) Furthermore, it is clear from the caption and wording of the initial complaint that Noguera intended to sue the supervisory personnel at the MCC at the time of Lt. Smith's alleged unconstitutional conduct. (See, e.g., 8/10/99 Compl. ¶¶ 14-17.) The failure to name Warden Reish in that document was a mistake that comes within the meaning of Rule 15(c).

As a former warden who had been informed of alleged improper sexual relationships between staff and inmates at the MCC, Warden Reish had notice of the possibility of lawsuits and knew or should have known that the references to supervisory personnel in Noguera's initial complaint referred to him. Whether or not he had actual notice, his attorney is the same as that of the other defendants (except Lt. Smith) and thus notice may be imputed. See, e.g., Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989); Susan Faris Designs Inc. v. Sheraton New York Corp., 98 Civ. 8166, 2000 WL 191689 at *4 (S.D.N.Y. Feb. 10, 2000) ("Notice of allegations against proposed defendants may be imputed to them through a shared attorney if the attorney knew or should have known that but for a mistake concerning the identity of the proper party, the proposed defendants could be added."); Scott v. Coughlin, 944 F. Supp. at 270 ("Under the constructive notice doctrine, `the court can impute knowledge of a lawsuit to a new defendant government official through his attorney when the attorney also represented the officials originally sued, so long as there is "some showing that the attorney[s] knew that the additional defendants would be added to the existing suit."'"); see also Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998) (discussing appropriate changes to named defendants in civil rights suits where precise responsibility for violation is unclear before discovery).

As a result, the complaint against Warden Reish relates back to the filing of the initial complaint, August 10, 1999, and events after August 10, 1996 are not time-barred.

Noguera relies on Rule 15(c)(1) to argue that relation back should be analyzed under New York state law and that under the New York Court of Appeals' decision in Buran v. Coupal, 87 N.Y.2d 173, 638 N.Y.S.2d 405 (1995), relation back is appropriate. (Noguera Br. at 24-25). While this conclusion appears to be correct, the Court need not reach the question since relation back is appropriate under Rule 15(c)(3) as well. See Charles Allen Wright, Arthur R. Miller Mary Kay Kane, Federal Practice Procedure: Civil 2d § 1503 (2000 Supp.) (1991 amendments permit relation back even if the federal rule is not satisfied, when relation back is allowed under "whatever may be the controlling body of limitations law," quoting Fed.R.Civ.P. 15, 1991 Advisory Committee Note).

IV. SUMMARY JUDGMENT IS GRANTED FOR CAPT. APONTE AND LT. GARVIN BECAUSE NOGUERA HAS NOT SHOWN THAT THEY ACTED UNREASONABLY, BUT FACTUAL ISSUES PRECLUDE SUMMARY JUDGMENT FOR WARDENS HASTY AND REISH A. Governing Legal Standards 1. Deliberate Indifference to Substantial Risk of Serious Indifference to Substantial Risk of Serious Harm Similar to a suit brought under 42 U.S.C. § 1983, a Bivens action lies against a defendant only when the plaintiff can show that defendant's personal involvement in the constitutional violation. See, e.g., Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987), cert. denied, 489 U.S. 1065, 109 S.C.t. 1338 (1989); Mallard v. Menifee, 99 Civ. 0923, 2000 WL 557262 at *3 (S.D.N Y May 8, 2000) ("[T]o establish a Bivens claim, plaintiff must allege facts showing that the individual defendant [warden] personally participated in the alleged Constitutional violation. . . . Supervisors are not liable under Bivens based solely on the alleged misconduct of their subordinates.") (citing cases); Petrazzoulo v. United States Marshals Service, 999 F. Supp. 401, 409 (W.D.N.Y. 1998) ("It is well-settled that a [federal] defendant's personal involvement in the alleged constitutional violation is a prerequisite to an award of money damages."); Krebs v. Tutelian, 97 Civ. 0554, 1998 WL 108003 at *5 (S.D.N.Y. March 12, 1998); see also, e.g., Ella v. Jackson, No. 96-3721, 2000 WL 823360 at *2 (2d Cir. June 22, 2000); Carbonell v. Artuz, 99 Civ. 3208, 2000 WL 760751 at *6-7 (S.D.N.Y. June 13, 2000) (Peck, M.J.) ( cases cited therein) (describing personal involvement requirement for § 1983 claims and ways of proving defendants' personal involvement). It is not enough to show that a defendant "ultimately supervised those who allegedly violated plaintiff's Constitutional rights." Mallard v. Menifee, 2000 WL 557262 at *3 (citing Shannon v. United States Parole Comm'n, 97 Civ. 6420, 1998 WL 557584 at *2 (S.D.N.Y. Sept. 2, 1998)). Respondeat superior does not apply in Bivens actions. E.g., Ellis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981); Querim v. Equal Employment Opportunity Comm'n, 97 Civ. 4031, 2000 WL 249271 at *11 (S.D.N.Y. March 6, 2000).

The Supreme Court has made clear that a "prison official's `deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 1974 (1994). In Farmer, the defendants were alleged to have placed a pre-operative transsexual with feminine characteristics in harm's way by housing her with the rest of the prison population. Farmer v. Brennan, 511 U.S. at 830-31, 114 S.Ct. at 1975. Similarly, here, defendants Hasty, Aponte, Garvin and Reish are alleged to have permitted Lt. Smith to work in Noguera's (female) unit; by doing so, the argument goes, they manifested deliberate indifference to a substantial risk that Lt. Smith would force Noguera to have sex with him, thus subjecting her to "serious harm."

Accord, e.g., Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); McCorkle v. Juchenwicz, 94 Civ. 6363, 1999 WL 163205 at *4 (S.D.N.Y. March 23, 1999); Doyle v. Coombe, 976 F. Supp. 183, 186 (W.D.N.Y. 1997), aff'd, 159 F.3d 1346 (2d Cir. 1998).

Noguera must show something more than that the defendants placed her in a dangerous situation. As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). "Objectively, the alleged deprivation must be `sufficiently serious.'" Id.; see also, e.g., Carbonell v. Goord, 2000 WL 760751 at *6; Gill v. DeFrank, 98 Civ. 7851, 2000 WL 270854 at *10 (S.D.N.Y. March 9, 2000) (Peck, M.J.), report rec. adopted in relevant part, 2000 WL 897152 (S.D.N Y July 6, 2000) (Buchwald, D.J.). Eighth Amendment protection extends to "`a condition of urgency' that may result in . . . `extreme pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Clearly, rape and sexual abuse rises to this level. Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir. 1997) ("There can be no doubt that severe or repetitive sexual abuse of an inmate by a prison officer can be `objectively, sufficiently serious' enough to constitute an Eighth Amendment violation."); accord, e.g., Holton v. Moore, No. Civ. A. 96CV0077, 1997 WL 642530 at *2 (N.D.N.Y. Oct. 15, 1997) (Pooler, D.J.); Fisher v. Goord, 981 F. Supp. 140, 171-72 (W.D.N.Y. 1997).

"Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553; accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *6; Gill v. DeFrank, 2000 WL 270854 at *11. "The required state of mind, equivalent to criminal recklessness, is that the official `"knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. at 1979)); accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *6; Gill v. DeFrank, 2000 WL 270854 at *11; see also, e.g., LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998) ("To succeed in showing deliberate indifference, [plaintiff] must show that the acts of defendants involved more than lack of due care, but rather involved obduracy and wantonness in placing [him] in danger.").

2. Qualified Immunity

As the Second Circuit has explained, government actors are entitled to qualified immunity from liability for civil damages when they perform discretionary functions "if either (1) their conduct `did not violate clearly established rights of which a reasonable person would have known,' or (2) `it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.'" Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998); accord, e.g., Martinez v. Simonetti, No. 99-7154, 2000 WL 129188 at *7 (2d Cir. Feb. 4, 2000). "The availability of the defense depends on whether a reasonable officer could have believed his action to be lawful, in light of clearly established law and the information [he] possessed." Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996) (internal quotation marks omitted).

See also, e.g., Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *7 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Gill v. DeFrank, 99 Civ. 7851, 2000 WL 270854 at *8-9 (S.D.N.Y. March 9, 2000) (Peck, M.J.), report rec. adopted in relevant part, 2000 WL 897152 (S.D.N.Y. July 6, 2000) (Buchwald, D.J.); Ali v. Szabo, 81 F. Supp.2d 447, 460-61 (S.D.N.Y. 2000) (Pauley, D.J. Peck, M.J.); Jackson v. Johnson, 15 F. Supp.2d 341, 351 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 536-37 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.).

See also, e.g., Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040 (1987); Martinez v. Simonetti, 2000 WL 129188 at *7; Carbonell v. Goord, 2000 WL 760751 at *7 n. 17; Gill v. DeFrank, 2000 WL 270854 at *8.

Defendants appropriately do not dispute that it was clearly established that a prison official's deliberate indifference to a substantial risk that an inmate might be raped by a prison guard violates the Eighth Amendment. (See pages 35-38 above.) Rather, defendants argue under the second prong of the qualified immunity test that they acted reasonably under the circumstances. (Defs. Br. at 24-29.)

"The objective reasonableness test is met — and the defendant[s] [are] entitled to immunity — if `officers of reasonable competence could disagree' on the legality of the defendant[s'] actions." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995); accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *7; Gill v. DeFrank, 2000 WL 270854 at *9. However, defendants are entitled to summary judgment on qualified immunity grounds only if, viewing the evidence in the light most favorable to and drawing all reasonable inferences in favor of the plaintiff (here, Noguera), no rational jury could conclude that it was objectively unreasonable for defendants to believe that their actions did not violate a clearly established right. See, e.g., Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir. 1996); In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996); Lennon v. Miller, 66 F.3d at 420-21; Carbonell v. Goord, 2000 WL 760751 at *7; Gill v. DeFrank, 2000 WL 270854 at *9. "In other words, if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Lennon v. Miller, 66 F.3d at 420; accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *7; Gill v. DeFrank, 2000 WL 270854 at *9.

B. Application of these Legal Standards 1. Warden Hasty and Warden Reish

Summary judgment for Warden Hasty and Warden Reish is inappropriate because Noguera has provided sufficient evidence for a jury to conclude that the wardens knew of the risks to Noguera of sexual abuse and/or retaliation and nevertheless permitted Lt. Smith to continue to work in her unit.

Specifically, unit manager Haas testified that he warned Warden Hasty of the danger of permitting Lt. Smith in the female unit, and Warden Hasty brushed off the warnings. (See page 11 above.) Likewise, Lt. Garvin warned Warden Reish of Noguera's allegations against Lt. Smith, and Warden Reish responded that he preferred to catch Lt. Smith "red-handed" rather than pre-emptively protect the women prisoners from him. (See pages 8-9 above.) Whether these actions were "objectively reasonable" is a question of fact for the jury. See, e.g., Spruce v. Sargent, 149 F.3d 783, 785-86 (8th Cir. 1998) (judgment as a matter of law in warden's favor overturned where evidence showed warden knew of excessive risk of sexual abuse of inmate at hands of fellow inmates but nevertheless refused to separate him from the other inmates); compare, e.g., Funches v. Reish, 97 Civ. 7611, 1998 WL 695904 at *4 (Oct. 5, 1998) (summary judgment granted for warden where plaintiff did not show that warden knew inmate's medical condition or medical care).

While Warden Hasty arrived at the MCC several months after the last time Lt. Smith allegedly raped Noguera (see Defs. Br. at 25-26, 31-32), the fact that Noguera was not actually raped or sexually abused while Hasty was warden does not reduce the recklessness of Warden Hasty's alleged actions: viewing the facts in a light most favorable to Noguera, a jury could conclude that unit manager Haas warned Warden Hasty that Lt. Smith was having sex with women in his custody and Warden Hasty nevertheless did not take appropriate steps to reduce Lt. Smith's unfettered access to the female unit. "Prison officials have a constitutional duty to act reasonably to ensure a safe environment for a prisoner when they are aware that there is a significant risk of serious injury to that prisoner. The failure to do so violates that prisoner's rights, whether or not an attack actually occurs, and if it does occur, whether or not the injuries suffered in the attack are serious." Heisler v. Kralik, 981 F. Supp. 830, 837 (S.D.N.Y. 1997), aff'd, 164 F.3d 618 (2d Cir. 1998); accord, e.g., Baumann v. Walsh, 36 F. Supp.2d 508, 514 (N.D.N.Y. 1999); Sims v. Bowen, No. 96-CV-656, 1998 WL 146409 at *3 (N.D.N.Y. March 23, 1998) (Pooler, D.J.); see also, e.g., Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 1976-77 (1994) (prison officials have a duty to protect prisoners from violence); Helling v. McKinney, 509 U.S. 25, 32-33, 113 S.Ct. 2475, 2480-81 (1993) (a prisoner need not show current suffering from an official's deliberate indifference to her serious medical need; a showing that a condition of confinement that is "sure or very likely to cause serious illness and needless suffering" in the future is sufficient).

Therefore, since precisely what the wardens knew, what steps they took to protect Noguera, what harm or risk of harm Noguera suffered, and, as to qualified immunity, whether it was objectively reasonable for the wardens to take (or fail to take) the action that they did, all remain in dispute, material issues of fact preclude summary judgment for Warden Hasty and Warden Reish. See, e.g., Smith v. Greifinger, No. 99-0042, 208 F.3d 203 (Table), 2000 WL 288362 at *4 (2d Cir. March 17, 2000) (no summary judgment for superintendent on qualified immunity grounds where fact question existed as to whether superintendent was notified of violation and failed to remedy it); Johnson v. Meachum, 839 F. Supp. 953, 958 (D.Conn. 1993) (Cabranes, D.J.) (no dismissal based on qualified immunity where conduct of warden was not established to be "objectively reasonable" on the factual record before the court).

2. Lt. Garvin

Lt. Garvin stands on a different footing from Wardens Reish and Hasty and Capt. Aponte because it is not disputed that he took affirmative steps to put an end to Lt. Smith's alleged abuse. (See page 10 above.)

Lt. Garvin was outranked by Lt. Smith and therefore had no power to compel him to stay away from the female prisoners. (See page 9 above.) Moreover, he diligently followed up with Noguera when her complaint about Lt. Smith came to his attention. (See page 10 above.) Under Bureau of Prisons guidelines, Lt. Garvin was not permitted to investigate staff misconduct at his own institution without prior approval from the BOP's Internal Affairs Office in Washington, D.C. (See Lewis Aff. ¶ 3.) Rather, he was required to do precisely what he did do: pass the information up the chain of command. (Ex. S: Garvin Dep. at 95-97.) Noguera has not provided any evidence that there was anything more that Lt. Garvin could have done to protect her. Therefore, no reasonable factfinder could conclude that Lt. Garvin acted with deliberate indifference or was objectively unreasonably; he did not violate Noguera's Eighth Amendment rights and also is entitled to qualified immunity. Lt. Garvin's summary judgment motion should be granted. See, e.g., Prater v. Dahm, 89 F.3d 538, 541-42 (8th Cir. 1996) (prison officials entitled to qualified immunity where they took reasonable steps to protect inmate from violence at hands of another inmate, even though harm ultimately ensued); Breland v. Abate, 917 F. Supp. 220, 222-23 (S.D.N.Y. 1996) (no deliberate indifference where corrections officer took reasonable steps to protect prisoner).

3. Capt. Aponte

As Lt. Smith's supervisor, Capt. Aponte was in a more powerful position than Lt. Garvin, and therefore was better able to protect Noguera. He responded to the danger facing Noguera by ordering Lt. Smith to stay out of her unit. (See page 12 above.) Nevertheless, drawing all reasonable inferences in Noguera's favor, a rational factfinder might find disagreement among prison officials as to the reasonableness and sufficiency of Capt. Aponte's actions — i.e., a rational factfinder, on this evidence, might or might not conclude that Capt. Aponte acted reasonably. Defendants have not provided evidence from which the Court can determine, at this point, the reasonableness of Capt. Aponte's measures to protect Noguera. It is not clear on this record, for example, whether Capt. Aponte's vulgarity-laced statement to Lt. Smith was a direct order that Capt. Aponte could presume would be followed, or a mere suggestion. Nor is it clear whether Capt. Aponte did anything to determine whether Lt. Smith complied. Since facts material to the determination of whether or not Capt. Aponte is protected by qualified immunity remain disputed, summary judgment at this point is not warranted. See, e.g., Mitarotonda v. Gazzola, No. 98-7604, 172 F.3d 38 (Table), 1999 WL 39013 at *1-2 (2d Cir. Jan. 22, 1999) (qualified immunity should be addressed by jury if fact finding is required); Blissett v. Coughlin, 66 F.3d 531, 538, 539 (2d Cir. 1995) ("defendant bears the burden of pleading and proving the affirmative defense of qualified immunity and where facts are in dispute, summary judgment is not appropriate); Nicholas v. Tucker, 95 Civ. 9705, 2000 WL 280332 at *5 n. 29 (S.D.N Y March 14, 2000) ("where there are disputed issues of fact relevant to the qualified immunity defense, summary judgment is not appropriate.") (collecting cases).

CONCLUSION

For the reasons set forth above, summary judgment should be GRANTED GRANTED in its entirety for Lt. Garvin. Summary judgment should be DENIED DENIED for Warden Hasty, Warden Reish, Capt. Aponte and Lt. Smith.

Pursuant to the Court's prior scheduling order, the Pretrial Order is due August 25, 2000, and the case is to be considered trial ready before Judge Wood thereafter on 24 hours' notice.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).