343 F.Supp.2d 234

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

Beatrice MORRIS, Plaintiff,
v.
Gilbert EVERSLEY, Defendant.

No. 00 Civ. 8166(DC).

Nov. 9, 2004.

Background: Former inmate filed § 1983 action alleging that corrections officer sexually assaulted her. After jury found in favor of inmate, she moved for attorney fees and costs.

Holdings: The District Court, Chin, J., held that:
(1) Prison Litigation Reform Act (PLRA) provision restricting attorney fees did not apply;
(2) rates of $315-395/hour for junior associates were excessive; and
(3) reduction of attorney fee award due to inmate's limited success was not warranted.
Motion granted.

*236 Milbank, Tweed, Hadley & McCloy LLP by Joseph S. Genova, Elena A. Agarkova, Atara Miller, Anthony Joseph Rotondi, New York, New York, for Plaintiff.

Hinman Straub P.C. by James T. Potter, David Novak, Albany, New York, for Defendant.

OPINION

CHIN, District Judge.

In this case, plaintiff Beatrice Morris was sexually assaulted by defendant Gilbert Eversley in April 1999, when she was an inmate and he was a corrections officer at the Bayview Correctional Facility ("Bayview"), a women's prison. One night, while Morris was sleeping, Eversley entered her cell and attempted to rape her.

A few weeks before she was released from prison, Morris brought this action for damages pro se under 42 U.S.C. § 1983 and state law against Eversley and other corrections officials. She eventually obtained counsel, and all claims but the § 1983 claim against Eversley were dismissed.

*237 The remaining claim against Eversley was tried twice. In the first trial, the jury found that Eversley had violated Morris's rights by subjecting her to cruel and unusual punishment, but awarded her only $500 in compensatory damages and $7,500 in punitive damages. In the second trial, which was limited solely to the amount of damages, the jury--a different jury--awarded Morris only $1,000 in compensatory damages and $15,000 in punitive damages.

Morris moves for attorneys' fees and costs, seeking an award of $295,818.00 in fees and $58,228.23 in costs.

Eversley opposes the application. First, raising an issue of first impression, he argues that any fee award is subject to the Prison Litigation Reform Act (the "PLRA"), which caps attorneys' fees in "any action brought by a prisoner who is confined to any jail, prison, or other correctional facility" to 150% of the recovery. 42 U.S.C. § 1997e(d). Eversley argues that the cap applies even though Morris was released from prison two-and-a-half weeks after filing suit. Under this theory, Morris's fees would be limited to $24,000--150% of her recovery of $16,000. Second, he argues that even if the PLRA cap does not apply and the Court applies the traditional lodestar method to calculate fees, the requested fees and costs are grossly excessive.

As set forth below, I hold that the PLRA cap on fees does not apply to this case. Accordingly, I apply the lodestar method, and award Morris fees of $154,900 and costs of $25,000.

BACKGROUND
A. The Facts

Early on April 20, 1999, Eversley, then a corrections officer at Bayview, used a master key to unlock Morris's cell. Morris v. Eversley, No. 00 Civ. 8166, 2004 WL 171337, at *1 (S.D.N.Y. Jan.29, 2004). He entered, without asking Morris's permission, as she was still sleeping. Id. Morris awoke when Eversley touched her. Id. She ordered him to get out, but he refused and attempted to rape her. Id.

Eversley was unable to penetrate Morris, and instead ejaculated on her leg and bed. Id. The next morning, using a pair of nail clippers, Morris cut out a piece of her sheet that had been stained by Eversley's semen. Id. She eventually reported the assault to prison officials and handed over the piece of stained sheet. Morris v. Eversley, 282 F.Supp.2d 196, 199 (S.D.N.Y.2003). DNA testing later confirmed that the semen on the sheet was, to a virtual certainty, Eversley's. Morris, 2004 WL 171337, at *1. Any such sexual conduct by Eversley was, by law, unlawful because inmates are deemed incapable of consenting to sexual contact with prison employees. Id. (citing N.Y. Penal Law § 130.05(3)(e) (McKinney 2004)).

B. Procedural History

On October 25, 2000, while incarcerated at the Taconic Correctional Facility, Morris filed a complaint pro se in this Court against Eversley, the New York State Department of Correctional Services, Superintendent Alexandreena Dixon, Assistant Deputy Superintendent of Programs Elnora Porter, and Captain Kenneth Werbacher. See Morris v. Eversley, 205 F.Supp.2d 234 (S.D.N.Y.2002). Morris alleged violations of her rights under federal and state law. (Def.'s Aff., Ex. A).

Morris was released from prison on November 10, 2000, two-and-a-half weeks after filing her complaint. (Def.'s Aff., Ex. B). Milbank, Tweed, Hadley & McCloy LLP ("Milbank") was retained to represent her on a pro bono basis on December 17, 2001. (Pl.'s Mem. at 2). On January *238 18, 2002, with the assistance of counsel, Morris filed an amended complaint, asserting new facts, adding new defendants, and adding new allegations. She asserted claims under 42 U.S.C. § 1983 as well as state law claims for assault and battery and intentional infliction of emotional distress. Id. At the time Morris filed her amended complaint the statute of limitations governing her § 1983 claim had not expired. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.2004) ("The statute of limitations applicable to claims brought under § § 1981 and 1983 in New York is three years."). Defendants had not filed an answer or motion for summary judgment at the time she filed her amended complaint. (Pl.'s Reply Mem. at 1).

On March 15, 2002, Dixon and Porter moved to dismiss the complaint on multiple grounds, including failure to exhaust administrative remedies pursuant to § 1997e(a) of the PLRA. Morris, 205 F.Supp.2d 234. After oral argument on May 24, 2002, Morris discontinued her claims against two defendants added in the amended complaint. On June 13, 2002, I denied the remaining defendants' motion to dismiss this action, noting:
The PLRA requires exhaustion of 'such administrative remedies as are available.' Thus, even if I were to dismiss Morris's claims, no administrative remedies are 'available' to her because she is no longer a prisoner; Morris could simply refile her § 1983 claims unaffected by the PLRA's exhaustion requirement.... [C]onsiderations of judicial efficiency and economy advise against dismissal of Morris's claims.
205 F.Supp.2d at 241 (citations and footnote omitted).

Following discovery, defendants Dixon and Porter, joined by Eversley, moved for summary judgment. On September 23, 2003, I granted the motion for summary judgment as to the supervisory defendants only. Morris, 282 F.Supp.2d at 208-09. Morris and Eversley thereafter stipulated to the dismissal of all remaining claims except the 42 U.S.C. § 1983 claim. (Pl.'s Mem. at 2).

On January 28, 2004, after a three-day trial on the § 1983 claim, a jury found that Eversley acted intentionally and maliciously and violated Morris's Eighth Amendment right to be free from cruel and unusual punishment. Morris, 2004 WL 171337, at *1. The jury, however, awarded Morris only $500 in compensatory and $7,500 in punitive damages. Id. In an order issued February 26, 2004, the Court held that the jury's damages were so grossly inadequate as to shock the conscience, vacated the jury's verdict in part, and ordered a new trial on the issues of punitive and compensatory damages only. On April 21, 2004, after a two-and-a-half-day trial, a second jury awarded Morris $1,000 in compensatory and $15,000 in punitive damages. Judgment was entered in favor of Morris against Eversley for $1,000 in compensatory damages and $15,000 in punitive damages on April 23, 2004.

C. The Fee Application

On May 7, 2004, Morris filed her motion, pursuant to 42 U.S.C. § 1988 and Rule 54(d) of the Federal Rules of Civil Procedure, to recover reasonable attorneys' fees and costs. Morris requests $295,818.00 in attorneys' fees and $58,228.23 in costs.

DISCUSSION
I address first the threshold question of whether the PLRA restrictions on attorneys' fees applies to a case such as this, where the plaintiff in a prisoner's civil rights case is released from prison less than three weeks after filing suit and she asserts significant, meritorious, and ultimately *239 successful claims. As I conclude that the PLRA's restrictions do not apply, I then proceed to a traditional lodestar analysis.

A. Applicability of the PLRA

Eversley asserts that Morris's attorneys' fees award should be capped at 150% of her monetary award, or $24,000, pursuant to the PLRA, 42 U.S.C. § 1997e(d), because Morris was a prisoner when she filed her initial complaint. He asserts that the fact she was released from custody shortly after filing her complaint has no bearing on whether her attorneys' fees award is subject to the PLRA. He also argues that 25% of the $16,000 judgment, or $4,000, must be paid from the plaintiff's judgment to satisfy attorneys' fees, leaving $20,000 to be paid by the defendant.

1. The Statute

In 1996, Congress passed the PLRA, which "contains numerous provisions governing the course of prisoner litigation in the federal courts." Martin v. Hadix, 527 U.S. 343, 349-50, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999). The PLRA, codified in 42 U.S.C. § 1997e, was adopted with "the principal purpose of deterring frivolous prisoner lawsuits and appeals." Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.1997), cert. denied, 523 U.S. 1126, 118 S.Ct. 1812, 140 L.Ed.2d 950 (1998). Section 1997e(d) [FN1] imposes "substantial restrictions" on attorneys' fees that can be awarded to a prisoner-plaintiff who succeeds on a civil rights claim, despite the allowances provided by 42 U.S.C. § 1988. Blissett v. Casey, 147 F.3d 218, 220 (2d Cir.1998).

FN1. 42 U.S.C. § 1997e(d) provides, in relevant part:
(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under [42 U.S.C. § 1988], such fees shall not be awarded, except to the extent that--
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under [42 U.S.C. § 1988]; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of title 18 [of the United States Code] for payment of court-appointed counsel.
42 U.S.C. § 1997e(d).

The Second Circuit has interpreted § 1997e(d) to cap a defendant's liability for attorneys' fees at 150% of a plaintiff's monetary judgment in a civil rights case brought by a prisoner. Torres v. Walker, 356 F.3d 238, 242 (2d Cir.2004). Accordingly, a prisoner-plaintiff's attorneys' fees award is directly proportional to the monetary success of his or her claim. The PLRA also allows for a portion of the prisoner-plaintiff's judgment, up to but not to exceed 25% of the monetary value, to be applied to satisfy the payment of attorneys' fees, but does not provide courts with guidelines for determining the percentage (25% or below) to be applied. 42 U.S.C. § 1997e(d)(2).

The PLRA is not applicable to a plaintiff who is no longer a confined prisoner *240 when the suit is filed. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir.1998) (holding that the term "prisoner" does not comprehend a felon who has been released). If a plaintiff is a prisoner at the time a civil rights violation is suffered, but waits until release from custody before filing a complaint, the attorneys' fees restrictions of § 1997e are simply inapplicable. In such a case, the prevailing plaintiff is free to recover full reasonable attorneys' fees under § 1988. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999) (holding that a prisoner who files a civil rights action after release from confinement is not subject to the PLRA's statutory exhaustion requirement); cf. Gibson v. Brooks, 335 F.Supp.2d 325 (D.Conn.2004) (distinguishing Greig and holding that plaintiff who was incarcerated when civil rights claim accrued, then released, and then re-imprisoned at time he filed suit was subject to exhaustion requirements of PLRA).

The parties have not cited and the Court has not found any decision addressing the applicability of the PLRA restrictions on fees to a situation where a prisoner-plaintiff files suit while she is incarcerated but is released shortly thereafter.

2. The Plain-Meaning Rule

Eversley urges the Court to hold that the plain meaning of the statutory language of § 1997e(d) is that any plaintiff who files an action while he or she is incarcerated is subject to the limitations imposed by the statute, even if the individual is thereafter released. The language of § 1997e(d), however, does not plainly so provide.

Construction of a statute "must begin with the words of the text." Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir.2003). The plain meaning of the words, however, must be considered "by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute." Id. at 345; see also Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ("The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."). Whether the words are plain in their meaning or ambiguous, as the Supreme Court has held:
[i]n the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress....
... When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no "rule of law" which forbids its use, however clear the words may appear on "superficial examination."
United States v. American Trucking Ass'n, Inc., 310 U.S. 534, 542, 543-44, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940) (footnotes omitted). Hence, the apparent facial meaning of a statute does not preclude the Court's examination of the statute's purpose. See Train v. Colo. Pub. Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976).

The plain-meaning rule--the rule that the Court should rely on the literal, unambiguous language of a statute--is "rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170 (1928). The courts generally recognize two exceptions to the plain-meaning rule. First, courts need not adhere to the rule in cases where "literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and *241 those intentions must be controlling." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982). The circumstances that compelled the enactment of a statute "may persuade a court that Congress did not intend words of common meaning to have their literal effect." Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981). Second, courts need not adhere to the plain meaning of the statute when doing so would lead to an absurd result that is "so gross as to shock the general moral or common sense." Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 75 L.Ed. 156 (1930).

I discuss the words of the statute, the legislative intent, and, assuming the words of the statute have the plain meaning urged by Eversley, application of the exceptions to the plain-meaning rule.

i. The Words of the Statute

I begin with an examination of the words of the statute. Section 1997e(d) provides that "[i]n any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under [section 1988], such fees shall not be awarded," except on the terms specified in the statute. 42 U.S.C. § 1997e(d)(1) (emphasis added).

Although Eversley argues that the plain meaning of the language is clear, I disagree. In my view, the language is not free from ambiguity. The words arguably impose two requirements: (1) the action must be brought by a "prisoner," and (2) the plaintiff must be presently confined (as indicated by the words "who is confined" (emphasis added)). If these two elements are not read individually, the terms "prisoner" and the phrase "who is confined" are arguably redundant, and the rule that each word and clause of a statute should be given full effect arguably would be violated. See Cal. Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 106 (2d Cir.2004) ("Statutes should be construed, if possible, to give effect to every clause and word."). Other sections of the PLRA do not include the phrase "who is confined," further suggesting that both terms have meaning.

Significantly, if the plain words are placed in the context of the entire statute as well as Congress's intent in passing the statute, it becomes even more evident that the construction urged by Eversley is wrong. Accordingly, I hold that the words of § 1997e(d) do not plainly require the statute's application to a prisoner-plaintiff who is no longer "confined" when fees are incurred and awarded.

ii. Legislative Intent

Whether the words are plain or ambiguous, the Court must consider the legislature's intent in enacting the PLRA. The statutory construction urged by Eversley is not consistent with the stated congressional purpose of the PLRA. The legislative record reveals that the PLRA's passage was guided by the desire to reduce the tremendous number of frivolous lawsuits filed by inmates and the high costs associated with those actions.

Senator Dole, speaking in support of the PLRA, noted that frivolous prisoner suits "can involve such grievances as insufficient storage locker space, a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party for a departing prison employee, and yes, being served chunky peanut butter instead of the creamy variety." 141 Cong. Rec. S14611-01 (daily ed. Sept. 29, 1995).

Senator Dole also noted that an estimated $81 million is spent each year defending such civil rights claims and that "most of *242 these costs are incurred defending lawsuits that have no merit whatsoever." Id. Senator Kyl read two lists into the congressional record: the "Top 10 Frivolous Inmate Lawsuits in Arizona," which cited a suit against corrections officials filed by a death row inmate for taking away his Gameboy electronic game, and the "Top 10 Frivolous Inmate Lawsuits Nationally," which cited an inmate civil rights claim seeking $1 million in damages because his ice cream had melted. Id.

Some senators, however, expressed hesitation about the breadth of the PLRA. Senator Biden urged Congress not to "lose sight of the fact that some of these lawsuits have merit--some prisoners' rights are violated." Id. He noted a case in the District of Columbia where correctional officers had sexually assaulted female prisoners on a regular basis and prison officials failed to act. He further argued that the PLRA placed "too many roadblocks to meritorious prison lawsuits." Id. Even Senator Hatch, a staunch supporter of the legislation, admitted that the PLRA was not intended to "prevent inmates from raising legitimate claims." Id.

This desire to ensure that meritorious prisoner civil rights claims can proceed is well founded. Sexual abuse of female prisoners by male corrections officers is a pervasive, well-documented, national problem. See Amy Laderberg, The "Dirty Little Secret": Why Class Actions Have Emerged as the Only Viable Option for Women Inmates Attempting to Satisfy the Subjective Prong of the Eighth Amendment in Suits for Custodial Sexual Abuse, 40 Wm. & Mary L.Rev. 323 (1998) ("[S]exual abuse of women inmates by their male guards is a pervasive and legitimate problem in both state and federal prisons of the United States.").

The sexual vulnerability of female prisoners was illuminated by testimony at Morris's second trial. Kenneth Werbacher, the former deputy superintendent for security at Bayview, who was responsible for the care of inmates and supervision of correctional staff while Morris was incarcerated, testified that sexual abuse of inmates was an ongoing problem at Bayview during his tenure. When asked during direct examination why he thought sexual abuse was such a serious problem at Bayview, he replied:
Within the prison system there's a double standard. In a male jail, if a female staff member has sex with an inmate, the staff gets extremely indignant. They'll kick down my door to tell me about it. In a female jail it's different. The staff tends to look the other way.... It gives a boldness to the people that are doing it.
(R. at 170).

Werbacher also testified that the problem of sexual abuse of female prisoners by guards at Bayview was so serious that it compelled him to resign from his position. "It is what caused me to leave, that I had had enough.... I made several attempts through the state system to transfer.... I demoted myself in order to get myself transferred to another job." (R. at 170-71).

In light of the legislative intent driving the PLRA's passage and the need to ensure that meritorious prisoner civil rights suits can proceed, I conclude that the words of the statute must be interpreted so that § 1997e(d) is inapplicable to a case such as this, where the prisoner-plaintiff was released shortly after filing suit and did not engage lawyers until she was no longer confined in prison.

iii. Exceptions to the Plain-Meaning Rule

Even assuming the words of the statute have the literal meaning urged by Eversley, *243 both exceptions to the plain-meaning rule would apply here.

First, literal application of the words of the statute, with Eversley's proposed construction, would be inconsistent with Congress's intent in passing the PLRA. As discussed above, Congress did not intend for prisoner-plaintiffs with meritorious claims to be lumped together with inmates who bring frivolous suits to entertain themselves while in prison.

Second, the "absurdity exception" to the plain-meaning rule would also apply. The construction urged by Eversley would lead to an illogical result by punishing prisoner-plaintiffs who were not the intended targets of the legislation but are subjected to its limitations because of mere happenstance.

As Eversley indicates, some courts have interpreted other PLRA provisions to rigidly apply to any plaintiff who filed a complaint while a prisoner. Few circuits, however, have addressed the scope of § 1997e(d) specifically. While Eversley's rigid construction may make sense for the PLRA sections that have been scrutinized by other courts, that same reasoning applied to § 1997e(d) in the instant case would lead to an absurd outcome.

Eversley cites Harris v. Garner, 216 F.3d 970 (11th Cir.2000), cert. denied, 532 U.S. 1065, 121 S.Ct. 2214, 150 L.Ed.2d 208 (2001), to support his argument that the "fact that Plaintiff was released during the pendency of the litigation has no bearing on the application of the statute, because the date the action was commenced is the controlling date." (Def.'s Mem. at 2). Harris involved § 1997e(e) [FN2] of the PLRA, which sets out elements that must be met to commence an action. Harris, 216 F.3d at 974.

FN2. Section 1997e(e) provides: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."

Eversley also relies on Ahmed v. Dragovich, 297 F.3d 201 (3d Cir.2002). That court also analyzed a different provision of the PLRA, § 1997e(a). [FN3] That section similarly deals with the PLRA requirement that a plaintiff exhaust administrative remedies to commence an action. I previously rejected the strict application of this section to Morris's case in addressing the defendants' motion to dismiss for failure to exhaust her administrative remedies. See Morris, 205 F.Supp.2d at 240-41.

FN3. Section 1997e(a) provides: "No action shall be brought with respect to prison conditions under [section 1983], 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."

Eversley also misreads the Ahmed court's denial of a former inmate's motion to amend his complaint to reflect his release from prison as requiring an analogous, technical application of § 1997e(d) in the instant case. In Ahmed, however, the court did not allow for a relation back amendment because the statute of limitations for the action had run. In this case, Morris could have amended her complaint as of right.

Section 1997e(d), unlike these other sections, addresses limitations on a suit that has already been filed and successfully litigated to conclusion. Neither side cites Robbins v. Chronister, No. 97-3489-DJW, 2002 WL 356331 (D.Kan. March 1, 2002), a case that offers a more persuasive model, as it directly addressed the language of § 1997e(d). That case involved a policeman who violated the plaintiff's Fourth Amendment rights by using excessive *244 force during arrest. The incident occurred before the plaintiff was incarcerated, but the plaintiff did not file his action until he was a prisoner.

The Robbins court concluded that while the plain meaning of the statute supported the conclusion that the plaintiff's attorneys' fees should be limited by the PLRA because the plaintiff was a prisoner when the action was brought, [FN4] the absurdity exception to the plain-meaning rule applied.

FN4. It is not clear whether the plaintiff in Robbins was still confined during the course of litigation or when he made his motion for attorneys' fees.

The Robbins court was particularly persuaded by the legislative history surrounding the PLRA's enactment and that "[i]ronically, with this timing-based distinction, an individual who files his 'peanut butter' lawsuit--the type clearly targeted by the PLRA--after being released from prison is not subject to the PLRA at all." Robbins, 2002 WL 356331, at *6. The court also noted that it could "conceive of no rational justification for distinguishing between prisoner and non-prisoner litigants based upon when they file their lawsuits." Id. at *7 (footnote omitted). The court ultimately concluded that because the plaintiff's claim was not the typical frivolous lawsuit that Congress was attempting to prevent by passing the PLRA and because time-based distinctions in interpreting § 1997e(d) could result in an absurd outcome, the statute did not apply to the plaintiff in that case.

The reasoning of Robbins is instructive. Although Morris was a prisoner when she brought her action, she was released less than three weeks later. She was not confined for the overwhelming majority of the case, and Milbank was not retained until after her release. She was also released from prison before the defendant answered the complaint or filed a motion for summary judgment, and she was able to amend her complaint as a matter of right. She did so. She also could have voluntarily discontinued her action and then refiled it--when she was no longer a "prisoner." See Morris, 205 F.Supp.2d at 241 (denying the defendants' motion to dismiss this action for failure to exhaust administrative remedies pursuant to § 1997e(a) because plaintiff could simply voluntarily discontinue and then refile suit).

Perhaps most significantly, if Morris had simply waited a few weeks to file her suit in the first place, the PLRA would not have been implicated at all. This was purely a matter of happenstance. It would be absurd to interpret § 1997e(d) to impose attorneys' fees limits on a plaintiff who files a successful, non-frivolous civil rights action while a prisoner, but is released from prison less than three weeks later and retains lawyers when she is no longer a prisoner. Accordingly, I hold that § 1997e(d) does not apply to this case.

B. The Lodestar Analysis

I turn, then, to a traditional lodestar analysis of Morris's application for fees and costs.

1. Applicable Law

Under 42 U.S.C. § 1988, in civil rights actions "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." See Raishevich v. Foster, 247 F.3d 337, 344 (2d Cir.2001). The Second Circuit has explained that the award of attorneys' fees is designed to " 'encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.' " Id. (quoting Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982)).

*245 The Supreme Court has held that success on any significant issue in litigation that achieves "some of the benefit" sought is sufficient to qualify a plaintiff as a "prevailing party" for attorneys' fees purposes. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (internal quotations and citation omitted); see Lyte v. Sara Lee Corp., 950 F.2d 101, 103 (2d Cir.1991). At a minimum, the plaintiff "must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) (citations omitted).

Additionally, under § 1988, a prevailing party is entitled to recover "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.1998) (internal quotations omitted). The costs awarded under § 1988 include not only those ordinarily recoverable pursuant to 28 U.S.C. § 1920, Rule 54(d)(1) of the Federal Rules of Civil Procedure, and a judicial district's local civil rules, but also any additional costs ordinarily charged in the particular legal marketplace. Anderson v. City of New York, 132 F.Supp.2d 239, 245 (S.D.N.Y.2001).

i. Lodestar Calculation

Courts typically use a "lodestar" figure as an initial estimate of reasonable attorneys' fees. This figure is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for each attorney or paralegal involved. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992) (citing Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)).

Thus, using the lodestar approach, the Court assesses the reasonableness of the number of hours expended, as well as the reasonableness of the requested rates. Under § 1988, plaintiffs are entitled to reasonable hourly rates that fall within the prevailing marketplace rates "in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The relevant community for a fee determination is the judicial district in which the trial court sits--here, the Southern District of New York. In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir.1987). In addition to looking at prevailing marketplace rates, the Court may rely on its own knowledge of comparable rates charged by lawyers in the district. Ramirez v. New York City Off-Track Betting Corp., No. 93 Civ. 0682, 1997 WL 160369, at *2 (S.D.N.Y. Apr.3, 1997).

ii. Adjustments

Although there is a "strong presumption" that the lodestar figure represents a reasonable fee, City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), "[t]he product of reasonable hours times a reasonable rate does not end the inquiry." Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Other considerations may lead to an upward or downward departure from the lodestar. Id.

" '[T]he most critical factor' in determining the reasonableness of a fee award 'is the degree of success obtained.' " Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933); N.A.A.C.P. v. Town of East Haven, 259 F.3d 113, 117 (2d Cir.2001). The Supreme Court has reasoned that if a plaintiff achieves only limited or partial success, *246 the lodestar amount may be excessive. Hensley, 461 U.S. at 436, 103 S.Ct. 1933. "This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith." Id.

In Farrar, the Supreme Court held that a plaintiff who wins only "nominal damages" is a prevailing party for purposes of a fee award under § 1988, but the Court also held that such a plaintiff's lack of success had to be considered in determining the amount of fees. 506 U.S. at 115, 113 S.Ct. 566.

At the same time, however, courts have expressly rejected a per se "proportionality" rule, i.e., proportionally linking the prevailing plaintiff's attorneys' fees to the degree of monetary success the plaintiff achieved. City of Riverside v. Rivera, 477 U.S. 561, 578, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986). As the Supreme Court has held:
A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. This is totally inconsistent with Congress' purpose in enacting § 1988. Congress recognized that private-sector fee arrangements were inadequate to ensure sufficiently vigorous enforcement of civil rights. In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case.
Id. In City of Riverside, the Court upheld an award of $245,456.25 in fees even though plaintiffs had recovered only $33,350 in both compensatory and punitive damages. Id. at 564-67, 106 S.Ct. 2686.

These two concepts are not at odds. If a prevailing plaintiff recovers only limited monetary damages, that lack of success is to be considered by a court in setting the amount of attorneys' fees. Lack of monetary success, however, does not require a fee reduction. See Ayres v. 127 Restaurant Corp., No. 96 Civ. 1255, 1999 WL 328348 (S.D.N.Y. May 21, 1999) (noting that attorneys' fees award should not be limited for proportionality where plaintiffs were "everyday workers" who were members of a restaurant's wait staff and their income, and therefore their monetary award, was modest). Rather, the degree of monetary success (or lack thereof) is only one factor to be considered. Courts must also consider whether the plaintiff has achieved some other measure of success.

In affirming an award of attorneys' fees that substantially exceeded plaintiffs' recovery, the Court in Riverside recognized that "a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards." City of Riverside, 477 U.S. at 574, 106 S.Ct. 2686. Thus a civil rights plaintiff may obtain important equitable or declaratory relief, or some other non-monetary vindication of his or her civil rights, by, for example, establishing the violation of an important constitutional right. These non-monetary measures of success must be considered as well in setting the amount of a fee award.

2. Application

Milbank submits that partners, senior associates, and associates worked on Morris's case on a pro bono basis for approximately 3,400 hours over a two-and-a-half year period, and that its attorneys recorded the rates they ordinarily charge paying clients. Milbank additionally states that Morris's request only represents fees incurred for legal work specifically related to the trial and retrial of her case, and that it has excluded fees for work prior to the *247 Final Pretrial Conference, Morris's claim in the New York Court of Claims, the supervisory time expended by partners and senior associates, and time expended by associates present at trial but not actively participating. Of the approximately 3,400 total hours Milbank spent on the case, 2,700 hours were spent on these uncharged activities. Morris therefore requests payment for approximately 700 hours of associate time plus payment for the time of administrative staff and costs.

Milbank's billing statement includes charges for the time of six associates at hourly rates of $315-395/hour. These associates graduated from law school between the years of 2001 and 2003. Milbank also requests payment for the time of several legal assistants and administrative staff at rates of $125-175/hour.

Eversley asserts that the rates charged by Milbank's associates are excessive in light of the type of litigation involved, counsel's failure to indicate how long its attorneys have been admitted to the bar, and the reimbursement rates that the State of New York is paying defendant's attorneys. He also argues that the number of hours and the number of attorneys Milbank devoted to the case are excessive and urges the Court to consider the limited financial success of Morris's action. Finally, Eversley argues that the request for costs is exorbitant and includes items that are not recoverable.

i. Lodestar Analysis

The Court finds the rates charged by Milbank for associates' time are excessive in light of the type of litigation involved and the experience level of the associates who worked on the case. While rates of $315-395/hour for junior associates may be warranted for the corporate litigation that Milbank is accustomed to handling for large, fee-paying companies, these amounts exceed the rates usually charged by similarly experienced civil rights attorneys. See Pastre v. Weber, 800 F.Supp. 1120, 1125 (S.D.N.Y.1991) (concluding that defendant should not be required to pay the rates usually charged to clients such as General Motors or IBM, but should be required to pay the rates that "would have been charged by a competent attorney specializing in civil rights litigation"). Although one could debate whether substantially higher rates are warranted for a corporate lawyer with the same number of years experience as a civil rights lawyer, the fact is the markets and billing considerations are different. Moreover, Milbank took this case on as a pro bono matter, in part to give its young lawyers the experience of trying a case before a jury in federal court, and it would not be fair to Eversley to assess fees against him based on the same rates Milbank charges its large corporate clients for very different legal work.

I conclude that the appropriate rate is $200/hour for Milbank's associates, under all the circumstances and given the marketplace rates for similar legal services by other lawyers with one to three years' experience in this District. See Betancourt v. Giuliani, 325 F.Supp.2d 330, 333 (S.D.N.Y.2004) (concluding that an average hourly rate of $200 is reasonable for associate from major New York City law firm); see also Marisol A. ex rel. Forbes v. Giuliani, 111 F.Supp.2d 381, 386-88 (S.D.N.Y.2000) ("[A] reasonable rate scale [for civil rights cases in the Southern District of New York] is as follows: $350 for attorneys with more than fifteen years of experience, $300 for attorneys with ten to fifteen years of experience, $230- 250 for attorneys with seven to nine years of experience, $180-200 for attorneys with four to six years of experience, and $130-150 for *248 attorneys with one to three years of experience.").

I also find that 712 hours is not excessive. Although six associates is excessive, Milbank is not seeking payment for a substantial portion of the 3,400 hours spent on the case. It has limited its fee application to time spent on the trial and the retrial. I would have awarded fees for some of the time spent on discovery, motion practice, and preparing the instant fee application, and hence I will award fees for 712 hours.

Morris requests payment for 172.60 hours of paralegal/legal assistant time. It appears from Milbank's billing statement that the paralegal/legal assistant who devoted the most time to the case, Mimi Einhorn, billed 97.5 hours at $155/hour. That rate is high. I will allow 100 hours of paralegal time at $125/hour.

Finally, Eversley argues that the Court should limit Morris's attorneys' fees award because of her limited monetary success; the first jury awarded her only $500 in compensatory damages and $7,500 in punitive damages and the second jury, considering only damages, awarded her only $1,000 in compensatory and $15,000 in punitive damages.

The argument is rejected. I was baffled that the first jury awarded such low amounts, and yet the second jury did not award much more. It is hard to imagine that Morris could be made whole for the damages she suffered, including the loss of her dignity, by a mere $500 or $1,000 dollars in compensatory damages. See Morris v. Eversley, No. 00 Civ. 8166, 2004 WL 171337 (S.D.N.Y. Jan.29, 2004). Even if both juries had concluded that Morris had "consented" to the sexual contact--an allegation that Eversley never made-- by law Morris could not consent. The fact that a prisoner, even a former prisoner, is unable to recover a fair measure of damages from a jury is not a basis for reducing a fee award.

Moreover, notwithstanding the amounts of the damages awarded, Morris and the Milbank lawyers still obtained a significant victory, one that undoubtedly will help to protect the civil rights of others. The non-monetary value of her victory, and Milbank's work, should not be underestimated. Accordingly, no deduction will be made because of the limited monetary value of Morris's recovery.

Accordingly, the Court will award Morris reasonable attorneys' fees of $154,900 consisting of fees for 712 hours of attorney time ($142,400) and 100 hours of paralegal time at $125/hour ($12,500).

ii. Costs

Morris seeks to recover $4,478.39 in costs pursuant to 28 U.S.C. § 1920 for deposition transcripts, witness fees, and trial transcripts. Morris also seeks to recover $53,749.84 pursuant to 42 U.S.C. § 1988 for general office expenses, messenger fees, photocopying, binding, secretarial assistance, word processing, and electronic legal research.

The requested costs, particularly office expenses and electronic legal research costs, are excessive. I will award costs of $25,000.

CONCLUSION
For the reasons set forth above, Morris's motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 is granted. Morris and her attorneys are awarded fees of $154,900 and costs of $25,000 for a total award of fees and costs of $179,900. The Clerk of the Court is directed to enter a supplemental judgment accordingly.

SO ORDERED.

343 F.Supp.2d 234

END OF DOCUMENT

282 F.Supp.2d 196

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

Beatrice MORRIS, Plaintiff,
v.
Gilbert EVERSLEY, Officer of the Bayview Correctional Center, in his official
and individual capacities, Alexandreena Dixon, Superintendent of Bayview
Correctional Facility, in her official and individual capacities, and Elnora
Porter, Assistant Deputy Superintendent of Programs of Bayview Correctional
Facility, in her official and individual capacities, Defendants.

No. 00 Civ. 8166(DC).

Sept. 23, 2003.

Former inmate brought § 1983 suit against, inter alia, superintendent and assistant superintendent of state correctional facility, after she was allegedly sexually assaulted by correctional officer. On defendants' motion for summary judgment, the District Court, Chin, J., held that: (1) defendants were immune, under Eleventh Amendment, from inmate's § 1983 claims against them in their official capacities, and (2) defendants could not be held personally liable under § 1983 for deprivation of inmate's constitutional rights that allegedly occurred when officer sexually assaulted her in her cell, absent showing that defendants had any personal involvement in deprivation.

Motion granted.

*198 Milbank, Tweed, Hadley & McCloy LLP, by Scott A. Edelman, Esq., Courtney E. Scott, Esq., New York, NY, for Plaintiff.

Eliot Spitzer, Esq., Attorney General of the State of New York, by Jose L. Velez, Esq., Assistant Attorney General, New York, NY, for Defendants.

OPINION

CHIN, District Judge.

In this case, plaintiff Beatrice Morris alleges that while she was incarcerated at Bayview Correctional Facility ("Bayview"), defendant Gilbert Eversley, a correctional officer, entered her cell one night and sexually assaulted her. Morris contends that Eversley's conduct is but one example of an ongoing pattern and practice at Bayview of male correctional officers engaging in sexual contact with female prisoners. By law, any such conduct would be improper, as inmates are deemed incapable of consenting to sexual contact with prison employees. Morris further contends that the supervisors were aware of the inappropriate and prevalent sexual conduct at Bayview because of the number of complaints lodged by female prisoners and one instance where an inmate became pregnant. Despite this knowledge, Morris claims, Bayview supervisors failed to act.

Morris brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated her rights under the Eighth Amendment to the Constitution and state law. Defendants Alexandreena Dixon and Elnora Porter move for summary judgment on the following grounds: (1) they are entitled to immunity under the Eleventh Amendment; (2) they were not "personally involved" in the alleged assault, and therefore are not subject to supervisory liability under § 1983; and (3) they are entitled to qualified immunity. For the reasons set forth below, the motion is granted.

BACKGROUND
A. Facts

1. The Parties

Morris was incarcerated at Bayview for approximately three months, from March 1999 to June 1999. (Morris Dep. at 13). She was then transferred to the Taconic Correctional Facility ("Taconic"), from which she was released on November 15, 2000. (Id. at 13-14).

Eversley was employed by the New York State Department of Correctional Services ("DOCS") as a correctional officer and was assigned to Bayview at the time of the alleged assault in April 1999. (See Porter Aff. ¶ 2; Morris Dep. at 43-45, 53-54; Werbacher Dep. at 11, 135).

Dixon, another DOCS employee, was the Superintendent of Bayview from August 1990 to December 1998. (Dixon Aff. ¶ 1; Dixon Dep. at 8). She then became the Superintendent of Edgecombe Correctional Facility ("Edgecombe") from December 1998 to December 1999, after which she became the Superintendent of Taconic, a position she currently holds. (Dixon Aff. ¶ 1).

Porter, also employed by DOCS, was the Assistant Deputy Superintendent of Programs at Bayview from October 1998 to October 2001. (Porter Aff. ¶ 1; Porter Dep. at 8). In that role, she was in charge of all the program areas and supervised the librarians, educational program teachers, guidance counselors, and recreation area staff. (Porter Dep. at 11-12; Porter Aff. ¶ 3). In November 2001, Porter became *199 the Deputy Superintendent of Programs at Edgecombe. (Porter Aff. ¶ 1).

2. The Assault

On April 19, 1999, Eversley entered Morris's cell while she was sleeping. (Morris Dep. at 45, 130-31). When Morris was awakened by Eversley's touch, she asked him what he was doing there and told him to get out. (Id. at 45-46). Although Morris continued to tell Eversley "stop, get up" and "no," he refused. (Id. at 47). Eversley restrained her, forced himself upon her, and ejaculated on her thigh and the bed. (Id. at 46-48).

The morning after the assault, Morris cut out and saved the portion of the bed sheet on which Eversley had ejaculated. (Id. at 158, 182). Fearing she would be transferred if she reported the incident, Morris did not initially file a grievance or report the incident to prison officials. (Id. at 50, 64- 65). "I just wanted to let it die, just let it end." (Id. at 50). On June 9, 1999, almost two months after the incident, Morris received a disciplinary ticket from Eversley accusing her of threats and smuggling. (Id. at 61-62). That same day, Morris approached Kenneth Werbacher, the Captain and then Deputy Superintendent of Security at Bayview from September 1996 to July 2002 (Werbacher Dep. at 11-12), to discuss the disciplinary ticket. (Morris Dep. at 62-63). Werbacher had received an anonymous tip about the incident and initiated a conversation with Morris about the assault. (Id. at 62-64; Werbacher Dep. at 88-89).

During her conversation with Werbacher, Morris turned over the portion of the bed sheet she had saved from the night of the incident. (Morris Dep. at 69). Werbacher put the sheet in an evidence bag and gave it to Darryl Warner, an investigator from the internal affair's unit of the Inspector General's office (the "IG's office") who happened to be in the building at the time. (Werbacher Dep. at 93-94; Warner Dep. at 8-9). Warner later forwarded the evidence to Faith Watson, an investigator in the sex crimes unit of the IG's office. (Watson Dep. at 6, 28-29; Warner Dep. at 13). Morris was transferred to Taconic shortly thereafter, for her own safety and protection. (Morris Dep. at 70; Watson Dep. at 17-19). Eversley, however, remained at Bayview pending investigation of the allegation against him. (See Watson Dep. at 19-20; Werbacher Dep. at 11, 135).

The portion of the sheet that Morris had saved was sent to be tested; on December 9, 1999, laboratory tests confirmed the presence of semen. (Watson Dep. at 30-32; Scott Decl. Ex. 12). The IG's office then contacted the New York County District Attorney's Office (the "DA's office") to present the case and potentially pursue criminal charges. (Watson Dep. at 36, 40-41). On July 16, 2002, the DNA profile of the semen on Morris's bed sheet was found to match Eversley's DNA profile. (Scott Decl. Ex. 13). Eversley was put on administrative leave on July 24, 2002, suspended on July 29, 2002, and dismissed from service on July 31, 2002. (Dixon Aff. ¶ 10; Velez Aff. Exs. C-E).

3. Standard Procedures

When allegations of a sexual nature arise, standard DOCS policy and procedure consist of immediately forwarding the complaint to the sex crimes unit of the IG's office for investigation. (Werbacher Dep. at 29-31; Dixon Dep. at 37- 40; Porter Dep. at 38-39). No internal investigation is performed. (Dixon Dep. at 37-38). During the course of an investigation by the IG's office, the investigator conveys information to the superintendent or the head of security, Dixon and Werbacher in this case, not to any other staff members. (Watson Dep. at 41-42).

*200 The authority for transferring a correctional officer from one facility to another rests with the Bureau of Labor Relations in Albany. (Watson Dep. at 19-20; Dixon Reply Aff. ¶ 6). Before an allegation is substantiated, it is often easier to transfer an inmate than an officer. (Porter Dep. at 119-20; Dixon Dep. at 83-84). In fact, the collective bargaining agreement between DOCS and the correctional officers' union does not allow any officer to be transferred, reassigned, suspended, or terminated because of an unsubstantiated allegation. (Dixon Reply Aff. ¶ 2). Any decisions regarding the suspension of a correctional officer also involve the Bureau of Labor Relations. (Watson Dep. at 109; Porter Dep. at 115-16).

4. Dixon's Involvement

As Superintendent of Bayview, Dixon would have been informed of any allegations or complaints that were forwarded to the IG's office. (Dixon Dep. at 37-40). While Dixon was at Bayview, if inmate allegations of a sexual nature were brought to her attention, she would immediately forward all appropriate complaints to the IG's office for investigation. (Dixon Aff. ¶ 3).

During her tenure at Bayview, Dixon was not personally aware of past sexual allegations against Eversley, although Dixon does have a "vague memory" of referring one allegation against Eversley to the IG's office in 1996. (Dixon Dep. at 44-45; Dixon Aff. ¶ 5). Any allegations of sexual harassment, for example, would not be reflected in an officer's personnel file unless some disciplinary action was taken. (Dixon Dep. at 60-61). Although Bayview had approximately ten allegations of sexual misconduct investigated by the IG's office each year, only two or three per year were substantiated, and the officers involved either resigned or were fired. (Dixon Reply Aff. ¶ 3). [FN1] Significantly, no allegations of sexual abuse against Eversley were substantiated. (Id.). Additionally, Dixon was aware of only one instance in which an inmate who was not in the work release program [FN2] became pregnant. (Dixon Aff. ¶ 8).

FN1. During the time in question, some 330 to 600 inmates were incarcerated at Bayview. (Werbacher Dep. at 11-12).

FN2. Inmates in the work release program are part of Bayview's minimal security annex. These inmates receive furloughs and have permission to leave the facility to see their families. (Porter Dep. at 26, 52-53).

On April 19, 1999, the date Eversley allegedly assaulted Morris, Dixon was no longer the Superintendent of Bayview. (Dixon Aff. ¶ ¶ 1, 2; Morris Dep. at 45, 130-31). Dixon was unaware of the incident between Morris and Eversley until April 2000, approximately sixteen months after leaving Bayview. (Dixon Aff. ¶ 4). When she was informed about the incident itself, Dixon also learned that Werbacher had referred the allegation to the IG's office immediately upon becoming aware of the situation. (Id.).

5. Porter's Involvement

On June 9, 1999, Morris wrote a letter about the assault. (Morris Dep. at 65). Initially, it was not addressed to anyone, but after a conversation with Anna Ramos, another inmate, Morris addressed the letter to Porter and then handed it to Werbacher during her conversation with him on that day--June 9, 1999. (Id. at 65-67; 85-86; 164-65). Porter was out of town at a conference and neither saw nor received the letter from Morris. (Porter Aff. ¶ 5; Porter Dep. at 91-92). Upon Porter's return, Werbacher informed her that Morris had brought allegations of a sexual nature against Eversley and that the case had *201 been referred to the IG's office; he did not mention the existence of Morris's letter. (Porter Aff. ¶ 5; Porter Dep. at 35-36, 102).

During her tenure as Assistant Deputy Superintendent of Programs at Bayview, Porter never received any inmate complaints of a sexual nature against correctional officers, either personally or through the counselors she supervised. (Porter Dep. at 28, 31, 92-93). Porter was not aware of any rumors at Bayview regarding inappropriate relationships between inmates and staff. (Id. at 19-20). She was aware of one instance in which a correctional officer turned in his badge because of an investigation into improper sexual conduct, and three instances in which work release inmates got pregnant. (Id. at 44-45, 52-53).

Porter had no supervisory authority over any correctional officers or other security staff. (Porter Aff. ¶ 2).

B. Prior Proceedings

Morris brought this action by submitting her pro se complaint to the Court's Pro Se Office on August 2, 2000. She was granted in forma pauperis status, and the complaint was filed on October 25, 2000. The Court later appointed counsel for Morris, and she filed an amended complaint on January 18, 2002. On March 15, 2002, defendants Dixon, Porter, Warner, and Watson moved to dismiss the complaint, and the Court heard oral argument on the motion on May 24, 2002. After oral argument, Morris discontinued her claims against Warner and Watson. [FN3] The motion to dismiss was denied by memorandum decision dated June 13, 2002. See Morris v. Eversley, 205 F.Supp.2d 234 (S.D.N.Y.2002). Following discovery, defendants Dixon and Porter moved for summary judgment. [FN4]

FN3. Morris filed a notice of voluntary dismissal pursuant to Fed.R.Civ.P. 41(a) as to defendants Warner and Watson on June 4, 2002.

FN4. Defendant Eversley joins in defendants Dixon and Porter's motion for summary judgment, by notice dated March 5, 2003.

DISCUSSION
Morris seeks relief pursuant to 42 U.S.C. § 1983, alleging that defendants violated her rights under the Eighth Amendment to the Constitution and state law. Defendants Dixon and Porter move for summary judgment on the grounds that (1) claims against them in their official capacities are barred by the Eleventh Amendment; (2) they have no supervisory liability under § 1983 because they were not personally involved in the alleged assault; and (3) they are entitled to qualified immunity.

A. Applicable Law

1. Summary Judgment Standard

Summary judgment will be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Accordingly, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Id. 477 U.S. at 248, 106 S.Ct. 2505; see Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir.1991). A factual *202 issue is genuine if it can reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. A fact is material if it can affect the outcome of the action based on the governing law. Id. at 248, 106 S.Ct. 2505.

The party seeking summary judgment must demonstrate the absence of genuine issues of material fact, and then the nonmoving party must set forth facts proving that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The nonmoving party "must present concrete particulars and cannot succeed with purely conclusory allegations." Fitch v. R.J. Reynolds Tobacco Co., 675 F.Supp. 133, 136 (S.D.N.Y.1987) (internal quotations omitted). There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. As the Court held in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. (citations omitted). The plaintiff must provide the Court with some basis to believe that his "version of relevant events is not fanciful." Christian Dior-New York, Inc. v. Koret, Inc., 792 F.2d 34, 38 (2d Cir.1986) (internal quotations omitted).

2. Eleventh Amendment

Under the Eleventh Amendment, absent waiver by the state or valid congressional override, state employees in their official capacities are not amenable to suit for money damages. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Cruz v. Gomez, 202 F.3d 593, 595 n. 2 (2d Cir.2000). "States--and state officers, if sued in their official capacities for retrospective relief--... are not 'persons' subject to suit under § 1983." K & A Radiologic Tech. Servs., Inc. v. Comm'r of Dep't of Health, 189 F.3d 273, 278 (2d Cir.1999); see also Delgado v. N.Y. City Dep't of Correction, 797 F.Supp. 327, 328 (S.D.N.Y.1992) (holding that under the Eleventh Amendment a prisoner's civil rights suit alleging assaults and denial of medical treatment was barred as against the New York State Department of Correctional Services). State employees in their individual capacities, however, may be liable for damages under § 1983, even when the conduct in question is related to their official duties. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n. 24, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997).

3. Section 1983

To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show that: (1) the defendants acted under "color of state law" (2) to deprive plaintiff of a right, privilege, or immunity guaranteed by the Constitution or laws of the United States. Shabazz v. Vacco, No. 97 Civ. 3761(DC), 1998 WL 901737, at *2 (S.D.N.Y. Dec.28, 1998) (citing Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir.1994)); see also Am. Mfrs. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). An individual defendant is not liable under § 1983 absent personal involvement. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994); Morris, 205 F.Supp.2d at 241.

a. Personal Involvement

Personal involvement of a defendant in an alleged constitutional deprivation is "a prerequisite to an award of damages*203 under § 1983." Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986) (internal quotations and citation omitted); see also Green v. Bauvi, 46 F.3d 189, 194 (2d Cir.1995) ("[T]o establish a § 1983 claim for the deprivation of a protected liberty or property interest without due process, a plaintiff must ... show that the defendants were personally involved in the unconstitutional conduct."); Casaburro v. Giuliani, 986 F.Supp. 176, 182 (S.D.N.Y.1997). Liability may not be premised on the respondeat superior or vicarious liability doctrines, "[n]or may a defendant be held liable merely by his connection to the events through links in the chain of command." Reynolds v. Goord, No. 98 Civ. 6722(DLC), 2000 WL 235278, at *7 (S.D.N.Y. Mar.1, 2000).

Direct participation, however, is not necessary. A supervisory official may be personally liable if she has "actual or constructive notice of unconstitutional practices and demonstrates 'gross negligence' or 'deliberate indifference' by failing to act." Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir.1989). Thus, the personal involvement of a supervisory defendant may be shown by evidence that "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); see also Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997) (citing Williams, 781 F.2d at 323-24).

b. Eighth Amendment

The Eighth Amendment prohibits the infliction of "cruel and usual punishment" on those convicted of crimes. U.S. Const. amend. VIII. An official violates the Eighth Amendment where (1) the alleged "punishment" is "objectively, sufficiently serious," and (2) the official involved has a "sufficiently culpable state of mind." Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir.1997) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (citation and internal quotations omitted)); Branham v. Meachum, 77 F.3d 626, 630 (2d Cir.1996). The Second Circuit has held that sexual abuse by a corrections officer violates a prisoner's right to be free from cruel and unusual punishment. Boddie, 105 F.3d at 861 ("[S]exual abuse of a prisoner by a corrections officer has no legitimate penological purpose, and is 'simply not part of the penalty that criminal offenders pay for their offenses against society.' " (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970)).

4. Qualified Immunity

"The doctrine of qualified immunity shields government employees acting in their official capacity from suits for damages under 42 U.S.C. § 1983, unless their conduct violated clearly established rights of which an objectively reasonable official would have known." Lowth v. Town of Cheektowaga, 82 F.3d 563, 568-69 (2d Cir.1996); see also Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir.1994) ("[Q]ualified immunity ... shields public officials from liability for their discretionary acts that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (internal quotations omitted)). Even when a plaintiff's federal rights are well-defined, a defendant may successfully claim qualified immunity "if it was objectively *204 reasonable for the public official to believe that his acts did not violate those rights." Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.1991).

The use of summary judgment by government officials claiming qualified immunity is expressly encouraged to reduce the burden of defending insubstantial suits. See Harlow v. Fitzgerald, 457 U.S. 800, 815-16, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992) (holding that defendants claiming qualified immunity to § 1983 action were entitled to summary judgment where factual disputes were not material).

In short, a plaintiff's claims will withstand summary judgment only if she presents some evidence upon which a reasonable fact finder could find that (i) defendants violated well-established federal rights and (ii) it was not objectively reasonable for defendants to believe that their conduct did not violate those rights.

B. Application

1. Eleventh Amendment

Although Morris purports to sue all defendants in both their individual and official capacities, she may sue them only in their individual capacities. Here, all of the defendants are DOCS employees and are therefore immune from suit in their official capacities under the Eleventh Amendment. Moreover, "[s]tates--and state officers, if sued in their official capacities for retrospective relief--... are not 'persons' subject to suit under § 1983." K & A Radiologic, 189 F.3d at 278. Summary judgment is therefore granted as to all claims against defendants in their official capacities.

2. Personal Involvement

Defendants Dixon and Porter argue that they cannot be held responsible for Morris's injuries under § 1983 because they were not personally involved in the deprivation of her constitutional rights. Personal involvement may be found by (1) direct participation in the alleged constitutional violation; (2) failure to remedy the wrong after being informed through a report or an appeal; (3) creation of a policy or custom under which unconstitutional practices occurred or allowed the continuation of such policy or custom; (4) gross negligence in supervising subordinates who committed the wrongful acts; or (5) deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon, 58 F.3d at 873 (citing Wright, 21 F.3d at 501).

Morris contends that Dixon and Porter had actual or constructive knowledge of constitutional violations and are therefore liable for failing to remedy the wrong, creating a policy or custom allowing such violations of constitutional rights, gross negligence in supervising DOCS employees, and deliberate indifference to unconstitutional conduct. Because no reasonable jury could conclude that Dixon and Porter were personally involved in the assault on Morris, summary judgment is granted as to the supervisory liability claim under § 1983 for lack of personal involvement.

a. Direct Participation

Direct participation in the alleged constitutional violation is the first method by which to establish personal involvement. There is no evidence in the record to support an allegation that Dixon or Porter directly participated in Morris's assault. In fact, Morris does not dispute that Dixon and Porter were not directly involved:
Q. Did you think that Superintendent Dixon was involved in the April 18, 1999 incident in any way?
....
*205 A. Not personally.
Q. Do you think that Deputy Superintendent Porter was involved in the incident?
A. Not personally.
(Morris Dep. at 86-87).

b. Failure to Remedy a Known Wrong

A second method of establishing personal involvement is to provide evidence that a defendant was informed of the constitutional violation and did nothing to remedy the wrong. Despite the fact that neither Dixon nor Porter had supervisory authority over Eversley at the time the assault was reported, see infra Part B.2.d, Morris alleges that they knew about the allegation against Eversley but failed to investigate or remove Eversley from his position at Bayview. (Am.Compl.¶ ¶ 33, 49).

When a supervisor refers allegations to the IG's office for "appropriate action," this Court has found no failure to act and therefore no personal involvement. Eng v. Coughlin, 684 F.Supp. 56, 66 (S.D.N.Y.1988) (finding supervisor who forwarded complaint to IG's office did not fail to take action to protect plaintiff). Upon learning of Morris's sexual assault allegation, Werbacher immediately forwarded the complaint to the IG's office for further investigation. (Werbacher Dep. at 93-94). When Dixon and Porter were first informed of the allegation itself, they also learned that Werbacher had sent the complaint to the IG's office. (Dixon Aff. ¶ 4; Porter Aff. ¶ 5). An initial referral to the IG's office is in keeping with standard DOCS policy for allegations of a sexual nature. (Werbacher Dep. at 30-31; Dixon Dep. at 37- 40; Porter Dep. at 38-39). "We see no reason why [the superintendent] should have intervened in advance of an established procedure in which [plaintiff] was to be given the opportunity to substantiate [her] claim...." Colon, 58 F.3d at 873 (finding that no reasonable jury could hold superintendent liable where he took no action to investigate pending a Tier III hearing). Even if Dixon or Porter had supervisory authority over Eversley, the action taken to address Morris's allegation--referral to the IG's office for further investigation-- does not show a failure to investigate, as Morris argues.

As for not removing Eversley from his position at Bayview, even if Dixon were still the superintendent, neither Dixon nor Porter had the authority to take such action. Decisions about transferring correctional officers are made by the Bureau of Labor Relations, not the superintendent of the facility. (Watson Dep. at 19-20; Dixon Reply Aff. ¶ 6). In keeping with the collective bargaining agreement between DOCS and the correctional officers' union, Eversley could not be transferred, reassigned, or otherwise disciplined based only on an unsubstantiated allegation. (Dixon Reply Aff. ¶ 2). When Morris's allegation against Eversley was substantiated, Eversley was suspended and eventually fired. (Dixon Aff. ¶ 10; Velez Aff. Exs. C-E).

Although Eversley remained at Bayview pending substantiation of the claim against him, once Morris brought her allegation of sexual misconduct to Werbacher, she was transferred to another facility for her safety and protection. (Watson Dep. at 17-19). Morris was put in a special unit, monitored closely, and then transferred to another facility at the first opportunity. (Id. at 18-19). As Watson explained, "I had to make sure she was protected from the person that she's alleging who committed [the assault] and from anyone else who could be associated with him." (Id. at 19).

Here, Morris's allegation was forwarded to the IG's office for investigation as per standard procedure, the transfer of correctional officers fell under the authority of the Bureau of Labor Relations rather than *206 that of the superintendent, and Eversley and Morris were separated following her report of the assault. In light of these undisputed facts, I conclude that a reasonable jury could not find personal involvement by Dixon or Porter based on their purported failure to remedy a wrong.

c. Policy or Custom

Personal involvement may also be shown through evidence of a policy or custom that permits unconstitutional practices to occur or continue. "A policy or custom may be inferred from acts or omissions of supervisory officials serious enough to amount to gross negligence or deliberate indifference to the constitutional rights of the plaintiff." Eng, 684 F.Supp. at 65; cf. Vann v. City of N.Y., 72 F.3d 1040, 1049 (2d Cir.1995) ("[D]eliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate...."). Morris contends that sexual misconduct between inmates and prison staff was so rampant, as evidenced by numerous sexual allegations against employees, that Dixon and Porter must have known about it and through their inaction condoned it.

Morris presents no evidence, however, from which a reasonable jury could find that Dixon or Porter created an environment in which the violation of inmates' constitutional rights was encouraged and tolerated. Cf. Sarus v. Rotundo, 831 F.2d 397, 401-02 (2d Cir.1987) (finding no municipal policy of deliberate indifference where plaintiff provided no evidence of inadequate training and supervision, no evidence that other municipalities utilized different procedures, and some evidence that disciplinary actions had been instituted against other officers). Both Dixon and Porter testified that if allegations of a sexual nature were brought to their attention, they would forward them to the IG's office for further investigation. (Dixon Aff. ¶ 3; Porter Aff. ¶ 4). When Dixon was superintendent of Bayview, she would also begin monitoring staff when she became aware of rumors regarding sexual activity between an inmate and employee. (Dixon Dep. at 47-48). "When the buzz started, we started monitoring." (Id. at 48). Although there were two or three substantiated allegations per year, the officers involved were disciplined-- they resigned or were fired. (Dixon Reply Aff. ¶ 3).

In keeping with these policies, once Morris brought her allegation to Werbacher's attention, the case was immediately forwarded to the IG's office. (See Werbacher Dep. at 93-94; Warner Dep. at 8-9). When the allegation was found to be substantiated, Eversley was suspended and fired shortly thereafter. [FN5] (Dixon Aff. ¶ 10; Velez Aff. Exs. C E). Such actions comport with standard DOCS procedure and contradict the assertion that the supervisors at Bayview created a policy and custom of unconstitutional practices. No reasonable jury could find otherwise.

FN5. Approximately three years passed between the date Morris reported the assault and the date Eversley's DNA was found to match with that of the semen found on the sheet. (See Scott Decl. Exs. 12-13). The investigation was under the supervision of the IG's office, not Dixon or Porter.

d. Grossly Negligent Supervision

A fourth method of establishing personal involvement arises through a showing that Dixon and Porter were grossly negligent in supervising Eversley. Morris contends that Dixon and Porter negligently hired, trained, and supervised their subordinates. Because Dixon and Porter had no supervisory authority over Eversley, no reasonable *207 jury could find personal involvement based on grossly negligent supervision.

An official with no "hiring, firing, or disciplinary power over any supervisory staff or personnel of the correctional facilities ... [or] no direct power to control or direct the customs and policies of the facilities" has no personal involvement in the unconstitutional conduct, and a claim under § 1983 cannot be sustained as to that individual. Brody v. McMahon, 684 F.Supp. 354, 356 (N.D.N.Y.1988); see also Van Pelt v. Finn, No. 92 Civ. 2977(MBM), 1993 WL 465297, at *7 (S.D.N.Y. Nov.12, 1993) (finding no personal involvement where defendants acted as advisors, rather than supervisors). When an individual "does not have any say over supervisory decisions," summary judgment is warranted, because personal involvement is lacking. Walker v. Pataro, No. 99 Civ. 4607(GBD)(AJP), 2002 WL 664040, at *14-15 (S.D.N.Y. Apr. 23, 2002) (internal quotations omitted); see also Ramos v. Artuz, No. 00 Civ. 0149(LTS)(HBP), 2003 WL 342347, at *12 (S.D.N.Y. Feb. 14, 2003) (granting summary judgment where defendant Regional Health Services Administrator did not supervise the health care providers alleged to have violated plaintiff's constitutional rights); Saar v. United States Dep't of Justice, 705 F.Supp. 999, 1006 (S.D.N.Y.1989) ("If defendant ... had no control over plaintiff's segregation, he cannot be held personally liable for any [constitutional] violations arising out of that segregation.").

Neither Dixon nor Porter had supervisory authority over Eversley at the time of the alleged assault on Morris. Because Dixon was no longer the Superintendent of Bayview at the time of Morris's assault in 1999 (see Dixon Aff. ¶ 1), she had no authority over Eversley, who remained at Bayview until at least July 2002. (Werbacher Dep. at 11, 135). Porter also had no supervisory authority over Eversley. As the Assistant Deputy Superintendent of Programs at Bayview from October 1998 to October 2001, she supervised the program staff but had no supervisory authority over any security staff, including correctional officers. (Porter Aff. ¶ ¶ 1-3). In particular, Porter did not directly supervise Eversley. (Porter Dep. at 58). Summary judgment as to both Dixon and Porter is therefore warranted; because of their lack of supervisory authority over Eversley, a reasonable jury could only conclude that Dixon and Porter were not personally involved.

Additionally, Morris presents no evidence that the training and supervision of correctional officers were inadequate. She argues that "the record demonstrates that, despite knowledge of sexual misconduct occurring at Bayview, Defendants failed to adequately supervise those officers, including Eversley." (Pl.'s Opp'n at 25). This statement is not supported by a single citation to the record. Morris continues: "The prevalence of allegations of sexual misconduct at Bayview should have put Defendants on notice that the offsite training was inadequate and that additional steps such as supplemental training were necessary to discharge their duties to the inmates." (Id.). Such conclusory statements, without more, are not sufficient to defeat summary judgment.

e. Deliberate Indifference

Finally, personal involvement may arise through deliberate indifference to the rights of inmates by a failure to act on information that unconstitutional acts are occurring. "Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66. Morris asserts that Dixon and Porter knew or should have known of constitutional violations at Bayview, were aware of *208 a serious risk of harm, and failed to take action. "Where supervisors are aware of misconduct but do nothing to alleviate it, they cannot escape liability." (Pl.'s Opp'n at 23).

If a supervisor investigates an inmate's grievances and finds them to be unsubstantiated, there is "nothing in the record indicating that [defendant] ... turned a blind eye." Moncrieffe v. Witbeck, No. 97 Civ. 253, 2000 WL 949457, at *3 (N.D.N.Y. June 29, 2000). Similarly, if a supervisor refers allegations to the IG's office for "appropriate action," "it cannot be said that [defendant] failed to take action to protect [plaintiff]." Eng, 684 F.Supp. at 66. Anytime an inmate allegation of sexual misconduct arose, both Dixon and Porter testified that they forwarded it to the IG's office for further investigation, as per DOCS procedure. (Dixon Aff. ¶ 3; Porter Aff. ¶ 4).

Here, Morris's allegation of sexual misconduct against Eversley was immediately referred to the IG's office for investigation and then subsequently forwarded to the DA's office. Morris was also separated from Eversley as soon as possible and transferred to another facility for her own protection. Nevertheless, Morris argues that Dixon and Porter should have known that there were a number of prior allegations of a sexual nature against Eversley and because they did nothing to protect the other inmates from this "serious risk of harm"--such as monitor Eversley more closely--they therefore exhibited deliberate indifference. (Pl.'s Opp'n at 24; see Dixon Aff. ¶ 5). Because the prior sexual misconduct allegations against Eversley were unsubstantiated and Eversley's post assignments put him primarily in the arsenal with limited inmate contact, no increased monitoring was put into place. (Watson Dep. at 51-53; Dixon Aff. ¶ ¶ 5-6). Taking all these factors together--referring the allegation to the IG's office, transferring Morris to Taconic for safety reasons, not monitoring Eversley after various unsubstantiated sexual misconduct allegations when his position required limited contact with inmates--I hold that a reasonable jury could only conclude that Dixon and Porter did not exhibit deliberate indifference to unconstitutional conduct at Bayview. I therefore grant summary judgment to Dixon and Porter for lack of personal involvement under § 1983.

3. Qualified Immunity

Defendants also argue that they are entitled to qualified immunity. Because I am granting summary judgment as to supervisory liability under § 1983 for lack of personal involvement, I do not reach the qualified immunity argument.

CONCLUSION
This case is a troubling one. A correctional officer entered an inmate's cell, at night, while she was sleeping, and sexually assaulted her. Although I am granting summary judgment in favor of Dixon and Porter on the basis that they cannot be held personally responsible for Eversley's actions, the issues remain as to whether DOCS, as an institution, failed in some respect, and whether the State must bear some responsibility. Surely, Eversley should not have been put in a position where he could harm an inmate as he did here.

Because of the Eleventh Amendment, however, these issues are not for this Court to resolve. Rather, if Morris wishes to pursue this matter against the State, she must proceed under § 24 of the New York Correction Law:
Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties *209 of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state.
N.Y. Correct. Law § 24(2) (McKinney 2003). Accordingly, the claims against Dixon and Porter individually are dismissed with prejudice and without costs. The claims against Dixon and Porter in their official capacities are dismissed without prejudice to the filing of claims against the State in the New York State Court of Claims.

Eversley has purported to join in Dixon and Porter's motion. To the extent he seeks dismissal of the claims against him personally, his motion is denied.

Counsel for Morris and Eversley shall appear for a pretrial conference on September 26, 2003, at 10:30 a.m., in Courtroom 11A of the United States Courthouse, 500 Pearl Street, New York, New York.

SO ORDERED.

282 F.Supp.2d 196

END OF DOCUMENT

205 F.Supp.2d 234

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

Beatrice MORRIS, Plaintiff,
v.
Gilbert EVERSLEY, Officer of the Bayview Correctional Center, in his official
and individual capacities, Alexandreena Dixon, Superintendent of Bayview
Correctional Facility, in her official and individual capacities, Elnora
Porter, Assistant Deputy Superintendent of Programs of Bayview Correctional
Facility, in her official and individual capacities, Darryl Warner, an employee
of the Office of the New York State Inspector General, in his official
and individual capacities and Faith Watson, an employee of Bayview Correctional
Facility, in her official and individual capacities, Defendants.

No. 00 CIV.8166 DC.

June 13, 2002.

Former inmate filed § 1983 action against correctional officer, superintendent of correctional facility, and others, alleging violation of rights under Eighth Amendment and state law in connection with alleged sexual assault by correctional officer. Superintendent and assistant superintendent moved to dismiss for failure to state claim. The District Court, Chin, J., held that: (1) former inmate exhausted administrative remedies available to her as required by Prison Litigation Reform Act; (2) former inmate's allegations supported her claim that superintendent and others were grossly negligent in supervising their subordinates; (3) superintendent and others were not entitled to qualified immunity; and (4) federal subject matter jurisdiction existed over state law claims.

Motion to dismiss denied.

*236 Milbank, Tweed, Hadley & McCloy LLP, Attorneys for Plaintiff, By Scott A. Edelman, Esq., Courtney E. Scott, Esq., New York, for Plaintiff.

Eliot Spitzer, Esq., Attorney General of the State of New York, Attorney for Defendants, By Jose L. Velez, Esq., Assistant Attorney General, New York, for Defendants.

MEMORANDUM DECISION

CHIN, District Judge.

In this case, plaintiff Beatrice Morris alleges that while she was incarcerated at Bayview Correctional Facility ("Bayview"), defendant Gilbert Eversley, a corrections officer, entered her cell one night and sexually assaulted her. Morris contends that Eversley's conduct is but one example of an ongoing pattern and practice at Bayview of male corrections officers engaging in sexual contact with female prisoners. By law, any such conduct would be improper, as inmates are deemed incapable of consenting to sexual contact with prison employees. Morris further contends that the supervisors were aware of the inappropriate and prevalent sexual conduct at Bayview because of the number of complaints lodged by female prisoners and the incidence of pregnancies among inmates. Despite this knowledge, Morris claims, Bayview supervisors failed to act.

Morris brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated her rights under the Eighth Amendment to the Constitution and state law. Defendants Alexandreena Dixon and Elnora Porter move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. [FN1] They contend that *237 Morris has failed to exhaust her administrative remedies and that the amended complaint fails to state claims against them for supervisory liability. They argue also that the state law claims must be dismissed for lack of subject matter jurisdiction. For the reasons set forth below, the motion is denied.

FN1. Morris filed a notice of voluntary dismissal pursuant to Fed.R.Civ.P. 41(a) as to defendants Darryl Warner and Faith Watson on June 4, 2002. Defendant Eversley has answered and has not moved to dismiss.

BACKGROUND
A. Facts

The following facts are drawn from the complaint and attached exhibits as well as the amended complaint. Although defendants deny plaintiff's allegations, as required, I assume plaintiff's alleged facts are true for purposes of this motion. The parties have also submitted additional information concerning Morris's efforts to exhaust her administrative remedies.

1. The Parties

Morris was incarcerated at Bayview, a medium security women's prison, from March of 1999 through June of 1999. (Am.Compl.¶ 12). She was later incarcerated at Taconic Correctional Facility, and was released on parole on November 10, 2000. During Morris's incarceration at Bayview, defendant Eversley was employed as a corrections officer by the New York State Department of Correctional Services ("DOCS"), assigned to Bayview. (Id. ¶ ¶ 4, 14). Defendants Dixon and Porter were also employed by DOCS and assigned to Bayview at that time. (Id. ¶ ¶ 5-6). Dixon served as Superintendent of Bayview, and Porter served as Assistant Deputy Superintendent of Programs. (Id.). Captain Werbacker also worked at Bayview, and had supervisory authority over Eversley. [FN2]

FN2. Captain Werbacker was originally named as "John/Jane Werbacker" in the complaint, but has not been named in the amended complaint. (Am.Compl.¶ 13).

2. The Assault

Throughout Morris's incarceration at Bayview, Eversley had custodial authority over inmates, including Morris. (Id. ¶ 14). This authority translated into "custody and control over Morris'[s] person, her housing, and her rights and privileges as an inmate at Bayview." (Id. ¶ 15). In approximately March of 1999, Eversley began to make sexually suggestive comments to Morris. (Id. ¶ 16). On the night of April 18, 1999, after "lights out" had been called, Eversley entered Morris's cell, without warning, as she lay sleeping. (Id. ¶ 17; Compl. Ex. B). Morris was awakened by Eversley's touch, and immediately told him to get out. He refused. Exposing himself, Eversley pulled back the covers on Morris's bed. Morris was petrified and repeatedly told him to stop; again, he refused. Eversley restrained her, forced himself upon her, and sexually assaulted her. (Compl. Ex. B; Am. Compl. ¶ 18).

3. Morris Seeks Relief

After the assault, Morris retained the bed sheet as evidence of the assault. (Id. ¶ 29). She isolated herself from other inmates and avoided corrections officers, fearing for her safety. (Id. ¶ 23). Morris was initially reluctant to report the assault, fearing that Eversley would retaliate against her. (Id. ¶ 22). On June 7, 1999, Eversley filed a disciplinary report against Morris, citing alleged infractions. (Compl. Ex. A; Am. Compl. ¶ 24). Thereafter, Morris reported Eversley's sexual assault to Captain Werbacker, who had supervisory authority over Eversley. (Am.Compl.¶ ¶ *238 13, 27). She provided details of the assault in a letter, and met with Darryl Warner of the New York State Inspector General's Office to further discuss the attack. (Id. ¶ ¶ 7, 27-28). Morris also gave Warner and Werbacker the bed sheet she had retained from the night of the assault; laboratory testing later confirmed the presence of semen on the sheet. (Id. ¶ ¶ 29, 32).

On June 30, 1999, Morris executed a Notice of Intention To File Claim, addressed to the New York State Attorney General. Morris set forth the nature of her claim in detail, and noted that the administration and the Inspector General's Office had previously been informed of the matter. (Compl.Ex. B).

Notwithstanding Morris's complaint, Eversley has not been removed from his position and is still employed at Bayview. (Am.Compl.¶ 37). He has engaged in sexual conduct with other prisoners at Bayview, as have other corrections officers employed by Bayview. (Id. ¶ 37). Prisoners have also complained to supervisors of unwelcome sexual contact by corrections officers, and prisoners have become pregnant while incarcerated at Bayview. (Id. ¶ ¶ 20- 21). The supervisory authority at Bayview has failed to adequately investigate Eversley's conduct or to discipline him. (Id. ¶ 33).

The District Attorney's Office for New York County is conducting an investigation into facts surrounding Eversley's assault on Morris. (Id. ¶ 32).

B. Prior Proceedings

Morris brought this action by submitting her pro se complaint to the Court's Pro Se Office on August 2, 2000. She was granted in forma pauperis status and the complaint was filed on October 25, 2000. Morris later obtained counsel and filed an amended complaint on January 18, 2002. On March 15, 2002, defendants Dixon, Porter, Warden, and Watson moved to dismiss the complaint, and the Court heard oral argument on the motion on May 24, 2002. After oral argument, Morris discontinued her claims against Warner and Watson.

DISCUSSION
Morris seeks relief pursuant to 42 U.S.C. § 1983, alleging that defendants violated her rights under the Eighth Amendment to the Constitution and state law. Defendants Dixon and Porter move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on grounds that (1) Morris failed to exhaust available administrative remedies; (2) defendants Dixon and Porter were not personally involved; (3) defendants are entitled to qualified immunity; and (4) this Court lacks subject matter jurisdiction over plaintiff's state law claims. [FN3]

FN3. Because Morris has voluntarily dismissed the claims against Warner and Watson, I do not address defendants' arguments in favor of dismissal of the claims against them.

A. Applicable Law

1. Motion to Dismiss Standard

On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, the court must accept the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996) (citation omitted). The issue is not whether the plaintiff will ultimately prevail, but whether she is entitled to offer evidence to support her claim. Id. (citation omitted). Dismissal is not warranted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] *239 claim which would entitle [her] to relief." Cooper v. Parsky, 140 F.3d 433 (2d Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

2. Section 1983

To state a claim under § 1983, a plaintiff must allege a deprivation of a constitutional or federal statutory right and that the deprivation occurred under color of state law. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The Second Circuit has held that sexual abuse by a corrections officer may violate a prisoner's right to be free from cruel and unusual punishment. Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir.1997) ("[S]exual abuse of a prisoner by a corrections officer has no legitimate penological purpose, and is 'simply not part of the penalty that criminal offenders pay for their offenses against society.' ") (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). An official violates the Eighth Amendment where (1) the alleged "punishment" is "objectively, sufficiently serious," and (2) the official involved has a "sufficiently culpable state of mind." Id. (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (citation internal quotation marks omitted)); Branham v. Meachum, 77 F.3d 626, 630 (2d Cir.1996).

3. New York Penal Law § 130.05

New York Penal Law § 130.05, entitled "Sex Offenses; lack of consent," provides that: "Whether or not specifically stated, it is an element of every offense defined in this article ... that the sexual act was committed without consent of the victim." N.Y. Penal Law § 130.05(1) (McKinney 1997). Under this section, "[a] person is deemed incapable of consent when he or she is ... committed to the care and custody of the state department of correctional services ... and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such department ...." § 130.05(3)(e). For purposes of § 130.05, "employee" means, inter alia, an "employee of the state department of correctional services who performs professional duties in a state correctional facility consisting of providing custody, medical or mental health services, counseling services, educational programs, or vocational training for inmates ...." Id.

B. Application

1. Exhaustion of Available Administrative Remedies

Defendants first argue that Morris's claims should be dismissed because she has failed to exhaust her administrative remedies as required by the Prison Litigation Reform Act of 1995 (the "PLRA"). The PLRA provides that "[n]o 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) (1994 ed., Supp. V). The Supreme Court has recently held that this exhaustion requirement "applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 986, 152 L.Ed.2d 12 (2002).

In New York, the administrative grievance process established to resolve prisoners' grievances is known as the Inmate Grievance Program (the "IGP"). N.Y. Comp.Codes R. & Regs. ("NYCRR") tit. 7 § § 701.1-701.16 (1995); see also Cruz v. Jordan, 80 F.Supp.2d 109, 117 (S.D.N.Y.1999). Each prison has established an Inmate Grievance Resolution Committee (the *240 "IGRC"), which is required "to resolve grievances or make recommendations for the resolution of the grievances filed." NYCRR tit. 7 § 701.7(a). According to the IGP, prisoners are generally required, among other things, to submit their grievances to the IGRC within 14 days of the alleged occurrence, and the IGRC must either dismiss the grievance or resolve it on the merits. Id. § 701.7(a)(1)-(5).

Defendants argue that Morris has not pursued any administrative remedies available under the IGP, as she never filed a grievance with the IGRC. (Defs. Mem. Supp. Dismiss at 10). They contend that Morris's release from prison is irrelevant, and insist that the action must be dismissed for failure to exhaust. (Id. at 11-12). They contend, in essence, that Morris is forever barred from pursuing the claims.

These arguments are rejected for the following reasons. First, although Morris failed to file a grievance with the IGRC, she exhausted her remedies under § 701.11 of the IGP. Section 701.11, entitled "Harassment," is specifically designed to address "[e]mployee misconduct meant to annoy, intimidate, or harm an inmate ...." NYCRR tit. 7 § 701.11(a). The section provides: "Allegations of employee harassment are of particular concern to the administrators of department facilities. Therefore, the following expedited procedure for the review of grievances related to harassment shall be followed." Id. § 701.11.

Under the expedited procedure, the prisoner is first directed to bring the offensive conduct to the attention of the employee's supervisor. Id. § 701.11(b)(1). The Superintendent of the facility must then determine if the grievance is a "bona fide" case of harassment. Id. § 701.11(b)(3). If so, the grievance remains on an expedited track for prompt resolution. Id. § 701.11(b)(4)-(6). If not, the grievance is submitted to the IGRC for resolution in accord with the procedure outlined above. Id. § 701.11(b)(3). In either event, the Superintendent is required to deliver a decision, "with reasons stated to the grievant," within twelve working days of receipt of the grievance. Id. § 701.11(b)(5). Extensions may only be granted with the consent of the grievant. Id. If the Superintendent fails to respond to the grievance within the required time limitation, the grievant "may" file an appeal directly to the Central Office Review Committee (the "CORC"), a committee comprised of deputy and assistant commissioners of DOCS or their designees. Id. § § 701.11(6); 701.6(a) & 701.7(c); Cruz, 80 F.Supp.2d at 118.

Morris's "grievance" was covered by § 701.11, as she was alleging that Eversley engaged in conduct "meant to annoy, intimidate or harm" her, beginning with sexually suggestive comments and culminating in forcible restraint and sexual assault. See NYCRR tit. 7 § § 701.11, 701.11(a). In accordance with the expedited procedure, Morris brought the offensive conduct to the attention of Eversley's supervisor, reporting the assault to Captain Werbacker, in writing. (Am.Compl.¶ ¶ 13, 27). At that point, defendant Dixon, the Superintendent, was required to determine whether the harassment was "bona fide" and deliver a decision within twelve working days of receipt of the grievance. Dixon failed to deliver a decision within the time specified. While Morris could have appealed this failure to respond to the CORC, she was not required to do so. Id. § 701.11(b)(6) ("the grievant may appeal his grievance to the CORC") (emphasis added). Moreover, it is undisputed that Morris's allegations were also brought to the attention of the Inspector General's office, the Attorney General's office, and the Manhattan District Attorney's office. Under the circumstances, I conclude that *241 Morris has exhausted her administrative remedies under § 701.11.

Second, even if Morris did not exhaust her administrative remedies, she is no longer incarcerated. Defendants' assertions to the contrary notwithstanding, this fact is highly relevant: the Second Circuit has held that any dismissal for failure to exhaust must be without prejudice. Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir.2002) (citing Giano v. Goord, 250 F.3d 146, 150-51 (2d Cir.2001)). The PLRA requires exhaustion of "such administrative remedies as are available." 42 U.S.C. § 1997e(a). Thus, even if I were to dismiss Morris's claims, no administrative remedies are "available" to her because she is no longer a prisoner; [FN4] Morris could simply refile her § 1983 claims unaffected by the PLRA's exhaustion requirement. Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999) (holding that litigants "who file prison condition actions after release from confinement are no longer 'prisoners' for purposes of § 1997e(a) and, therefore, need not satisfy [its] exhaustion requirements"); Hallett v. New York State Dep't of Correctional Services, 109 F.Supp.2d 190, 197 (S.D.N.Y.2000) (same). As I noted in Hallett, considerations of judicial efficiency and economy advise against dismissal of Morris's claims. 109 F.Supp.2d at 197.

FN4. On their face, the IGP procedures are available only to inmates and visitors to prisons; they do not appear to be available to former prisoners. Accordingly, there are no administrative procedures available to Morris at this juncture. See Liner v. Goord, 115 F.Supp.2d 432, 434 (S.D.N.Y.2000) ("Given the fact that [plaintiff] has been released from prison and could not now be ordered to exhaust all available administrative remedies, the Court will consider the merits and not grant judgment to Defendants for failure to exhaust administrative remedies.").

2. Defendants' Personal Involvement

Defendants Dixon and Porter also argue that they cannot be held responsible for Morris's injuries under § 1983 because they were not personally involved in the deprivation of her constitutional rights. This claim is rejected.

Defendants correctly argue that personal involvement in the alleged constitutional deprivation is a prerequisite to an award of damages under § 1983. See Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1066 (2d Cir.1989) (citation omitted). Direct participation, however, is not necessary. Id. A supervisory official may be personally liable if she has " 'actual or constructive notice of unconstitutional practices and demonstrates gross negligence or deliberate indifference by failing to act.' " Id. (quoting Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir.1989)). Thus, Morris can state a claim for personal involvement by alleging that defendants: (1) participated directly in the alleged constitutional violation; (2) failed to remedy the wrong after being informed through a report or an appeal; (3) created a policy or custom under which unconstitutional practices occurred or allowed the continuation of such policy or custom; (4) were grossly negligent in supervising subordinates who committed the wrongful acts; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)).

Morris has alleged sufficient facts to survive defendants' motion to dismiss. Indeed, Morris has alleged that defendants knew corrections officers at Bayview were engaging in sexual contact with female prisoners but failed to act--thereby allowing the abusive "practice" to continue. For example, she has alleged that defendants previously received complaints from female prisoners regarding sexual abuse *242 by male guards, including Eversley. These complaints were purportedly corroborated by the incidence of pregnancies among inmates. Morris therefore contends that defendants knew or should have known of the illegal conduct. She also alleges that defendants were grossly negligent in supervising their subordinates, because they had received prior complaints about Eversley--and yet failed to adequately monitor his actions such that the assault on Morris could occur.

Finally, Morris has alleged that defendants failed to remedy the wrong after being informed through a report. For example, as required by § 701.11 of the IGP, Morris reported Eversley's assault to Captain Werbacker, Eversley's supervisor, in writing. Section 701.11 then directs the Superintendent to determine whether an inmate's grievance is "bona fide," and to deliver a decision within twelve days of receipt of the grievance. Thus, the IGP presumes the communication of grievances among supervisory officials--in fact, § 701.11 required Captain Werbacker to inform Dixon of Morris's grievance. Yet, the supervisors at Bayview failed to adequately investigate Eversley's conduct, discipline him, or remove him from circulation among the female prison population. In view of these allegations, Morris has alleged defendants' "personal involvement" inasmuch as they knowingly allowed the "practice" of officers sexually abusing prisoners to continue, were grossly negligent in supervising subordinates, failed to remedy the wrong after being informed through a report, or acted with deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citation omitted).

3. Qualified Immunity

Defendants alternatively argue that, in the event Morris's § 1983 claims are viable, they are entitled to qualified immunity. Government officials performing discretionary functions are "shielded from liability for civil damages" as long as their conduct does not breach "clearly established statutory or constitutional rights of which a reasonable person would have known." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). This defense protects the government actor where it is objectively reasonable for him to believe that his actions are lawful at the time of the challenged act. Id. (citations omitted). Thus, "the objective reasonableness test is met--and the defendant is entitled to immunity--if 'officers of reasonable competence could disagree' on the legality of the defendant's actions." Id. (quoting Malley v. Briggs, 475 U.S. 335, 340-41, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

This contention is rejected. Assuming, as I must, that the allegations set forth above are true for purposes of this motion, they plainly state a claim for the deprivation of a constitutional right, namely, the right to be free from cruel and unusual punishment in the form of sexual abuse. Morris has alleged that Dixon and Porter were aware of Eversley's conduct, as well as the similar "practice" carried on by other officers at Bayview.

Under New York Penal Law § 130.05, entitled "Sex offenses; lack of consent," a person is deemed incapable of consent when she is committed to the care and custody of the state department of correctional services. N.Y. Penal Law § 130.05(3)(e). As Superintendent and Assistant Deputy Superintendent of Programs at Bayview, defendants are charged with knowledge of this law. If Morris's allegations are true, no "officers of reasonable competence could disagree" that the *243 defendants' actions were unlawful. Accordingly, at this juncture, defendants are not entitled to the protection of qualified immunity.

4. State Law Claims

Finally, defendants argue that Morris's state law claims must be dismissed for lack of subject matter jurisdiction. "[T]he federal courts' original jurisdiction over federal questions carries with it jurisdiction over state law claims that 'derive from a common nucleus of operative fact,' such that 'the relationship between [the federal] claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional case.' " City of Chicago v. Int'l College of Surgeons, 522 U.S. 156, 164-65, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). This Court has subject matter jurisdiction over Morris's § 1983 claim; as alleged in the amended complaint, the state law tort claims arise out of the same "nucleus of operative fact." The motion to dismiss these claims is therefore denied.

Moreover, to the extent defendants are arguing that the tort claims are in actuality claims against the state that must be heard in the New York State Court of Claims, the argument is rejected as well, for the negligence claims asserted here are the type of tort claims that would support a claim of a constitutional violation that may be addressed under § 1983.

CONCLUSION
For the reasons set forth above, defendants' motion to dismiss is denied.

SO ORDERED.

205 F.Supp.2d 234

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