Lucente v. County of Suffolk
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Opinion
19-347 Lucente v. County of Suffolk
United States Court of Appeals for the Second Circuit _____________________________________
August Term 2019
(Argued: January 6, 2020 Decided: November 17, 2020)
No. 19-347
_____________________________________
TARA LUCENTE, JANET VIOLA, JAMIE A. CULOSO, Plaintiffs-Appellants, SHARON WATTS, MICHELE ATKINSON, CATHERINE ANDES, Plaintiffs, — v. — THE COUNTY OF SUFFOLK, SUFFOLK COUNTY SHERIFF'S DEPARTMENT, OFFICER JOSEPH FOTI, EACH BEING SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, OFFICER JOHN SANTACROCE, EACH BEING SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, AKA OFFICER SANTA CRUZ, 1
Defendants-Appellees. _____________________________________
Before: KEARSE, CARNEY, and BIANCO, Circuit Judges.
Plaintiffs Tara Lucente, Jamie A. Culoso, and Janet Viola appeal from a judgment of the United States District Court for the Eastern District of New York (Donnelly, J.), dismissing their claims against defendants County of Suffolk and the Suffolk County Sheriff’s Department, as well as Sergeant Joseph Foti and
1 The Clerk of Court is respectfully instructed to amend the caption as set forth above. Corrections Officer John Santacroce, in connection with Foti’s alleged sexual harassment and sexual assault of female inmates at the Suffolk County Correctional Facility in Riverhead, New York, in violation of 42 U.S.C. § 1983. The district court granted summary judgment on plaintiffs’ claims on the grounds that: (1) there was insufficient evidence in the record of a municipal policy or custom to trigger liability under Monell v. Department of Social Services, 436 U.S. 658 (1978); (2) the claims brought by Lucente and Culoso were barred by the statute of limitations under § 1983; and (3) Viola failed to exhaust her administrative remedies with respect to her claims as required under the Prison Litigation Reform Act. For the reasons that follow, we AFFIRM the district court’s grant of summary judgment as to Viola’s claims, but VACATE as to the dismissal of Lucente and Culoso’s claims against Suffolk County and the individual defendants, and REMAND to the district court for proceedings consistent with this opinion.
LUIS C. HANSEN (Darnley D. Stewart, on the brief), Outten & Golden LLP, New York, NY; Laura A. Solinger, Law Offices of Laura A. Solinger, Esq., Southold, NY (on the brief), for Plaintiffs-Appellants.
BRIAN C. MITCHELL (Arlene S. Zwilling, on the brief), Assistant County Attorneys, for Dennis M. Cohen, Suffolk County Attorney, Hauppauge, NY, for Defendants- Appellees County of Suffolk, Suffolk County Sheriff’s Department, and Officer John Santacroce.
WILLIAM P. NOLAN, Esq. Garden City, NY, for Defendant-Appellee Officer Joseph Foti. _____________________________________
2 JOSEPH F. BIANCO, Circuit Judge:
Plaintiffs Tara Lucente, Jamie A. Culoso, and Janet Viola (collectively,
“plaintiffs”) appeal from a judgment of the United States District Court for the
Eastern District of New York (Donnelly, J.), dismissing their claims against
defendants County of Suffolk and the Suffolk County Sheriff’s Department
(together, “Suffolk County”), as well as Sergeant Joseph Foti and Corrections
Officer John Santacroce (collectively, “defendants”), in connection with Foti’s
alleged sexual harassment and sexual assault of female inmates at the Suffolk
County Correctional Facility in Riverhead, New York (the “Riverhead Facility”),
in violation of 42 U.S.C. § 1983. The district court granted summary judgment on
the plaintiffs’ claims on the grounds that: (1) there was insufficient evidence in the
record of a municipal policy or custom to trigger liability under Monell v.
Department of Social Services, 436 U.S. 658, 690-91 (1978); (2) the claims brought by
Lucente and Culoso were barred by the statute of limitations under § 1983; and (3)
Viola failed to exhaust her administrative remedies as required under the Prison
Litigation Reform Act (“PLRA”) with respect to her claims.
On appeal, plaintiffs contend that, with respect to the municipal liability
claim, the district court overlooked evidence in the record that precluded
summary judgment on whether Suffolk County had both actual and constructive 3 knowledge of Foti’s persistent and widespread sexual misconduct involving
female inmates, but failed to adequately remedy it. Lucente and Culoso further
argue that their claims were timely under the continuing violation doctrine.
Finally, Viola submits that the PLRA exhaustion requirement should have been
excused on the theory that a campaign of threats and retaliation against female
inmates at the Riverhead Facility, as well as Foti’s sexual intimidation of her, made
the administrative process unavailable to her.
For the reasons that follow, we AFFIRM the district court’s grant of
summary judgment as to Viola’s claims, but VACATE as to the dismissal of
Lucente and Culoso’s claims against Suffolk County and individual defendants,
and REMAND the case to the district court for proceedings consistent with this
opinion.
I. BACKGROUND
Lucente, Culoso, and Viola, as well as three other former plaintiffs (Sharon
Watts, Michele Atkinson, and Catherine Andes) who settled their claims with
defendants, were all pre-trial inmates at the Riverhead Facility from May 2009 to
April 2011. These women alleged that they were subjected to sexual assault, sexual
harassment, and sexually degrading treatment by Foti during their time at the
4 Riverhead Facility, and that Suffolk County and Santacroce were aware of Foti’s
misconduct but failed to halt it.
At the conclusion of discovery, in response to defendants’ summary
judgment motion, plaintiffs presented various categories of evidence to the district
court to support their claims, including the Internal Affairs Section of the County
Sheriff’s Office (“Internal Affairs”) investigation reports in the 1990s regarding
allegations of sexual harassment and sexual assault against Foti, observations of
various corrections officers regarding Foti’s inappropriate conduct with female
inmates, harrowing sworn accounts from plaintiffs themselves and other inmates
about sexual harassment and sexual assault perpetrated by Foti, and some
inmates’ subsequent attempts to report his behavior to officials at the Riverhead
Facility. Although this evidence was disputed, the district court, in the context of
a summary judgment motion, must view such evidence in the light most favorable
to plaintiffs and draw all reasonable inferences in their favor. See Amore v. Novarro,
624 F.3d 522, 529 (2d Cir. 2010). With that legal principle in mind, plaintiffs’
evidence in support of their claims is summarized below.
5 A. The Riverhead Facility
The organizational hierarchy at the Riverhead Facility was well established
during the time period at issue. Foti was a corrections officer assigned to the
Riverhead Facility’s Rehabilitation Unit (the “Rehab Unit”). Foti reported to
Sergeant Noreen Fisher, who reported to Lieutenant Darlene McClurkin. Fisher
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19-347 Lucente v. County of Suffolk
United States Court of Appeals for the Second Circuit _____________________________________
August Term 2019
(Argued: January 6, 2020 Decided: November 17, 2020)
No. 19-347
_____________________________________
TARA LUCENTE, JANET VIOLA, JAMIE A. CULOSO, Plaintiffs-Appellants, SHARON WATTS, MICHELE ATKINSON, CATHERINE ANDES, Plaintiffs, — v. — THE COUNTY OF SUFFOLK, SUFFOLK COUNTY SHERIFF'S DEPARTMENT, OFFICER JOSEPH FOTI, EACH BEING SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, OFFICER JOHN SANTACROCE, EACH BEING SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, AKA OFFICER SANTA CRUZ, 1
Defendants-Appellees. _____________________________________
Before: KEARSE, CARNEY, and BIANCO, Circuit Judges.
Plaintiffs Tara Lucente, Jamie A. Culoso, and Janet Viola appeal from a judgment of the United States District Court for the Eastern District of New York (Donnelly, J.), dismissing their claims against defendants County of Suffolk and the Suffolk County Sheriff’s Department, as well as Sergeant Joseph Foti and
1 The Clerk of Court is respectfully instructed to amend the caption as set forth above. Corrections Officer John Santacroce, in connection with Foti’s alleged sexual harassment and sexual assault of female inmates at the Suffolk County Correctional Facility in Riverhead, New York, in violation of 42 U.S.C. § 1983. The district court granted summary judgment on plaintiffs’ claims on the grounds that: (1) there was insufficient evidence in the record of a municipal policy or custom to trigger liability under Monell v. Department of Social Services, 436 U.S. 658 (1978); (2) the claims brought by Lucente and Culoso were barred by the statute of limitations under § 1983; and (3) Viola failed to exhaust her administrative remedies with respect to her claims as required under the Prison Litigation Reform Act. For the reasons that follow, we AFFIRM the district court’s grant of summary judgment as to Viola’s claims, but VACATE as to the dismissal of Lucente and Culoso’s claims against Suffolk County and the individual defendants, and REMAND to the district court for proceedings consistent with this opinion.
LUIS C. HANSEN (Darnley D. Stewart, on the brief), Outten & Golden LLP, New York, NY; Laura A. Solinger, Law Offices of Laura A. Solinger, Esq., Southold, NY (on the brief), for Plaintiffs-Appellants.
BRIAN C. MITCHELL (Arlene S. Zwilling, on the brief), Assistant County Attorneys, for Dennis M. Cohen, Suffolk County Attorney, Hauppauge, NY, for Defendants- Appellees County of Suffolk, Suffolk County Sheriff’s Department, and Officer John Santacroce.
WILLIAM P. NOLAN, Esq. Garden City, NY, for Defendant-Appellee Officer Joseph Foti. _____________________________________
2 JOSEPH F. BIANCO, Circuit Judge:
Plaintiffs Tara Lucente, Jamie A. Culoso, and Janet Viola (collectively,
“plaintiffs”) appeal from a judgment of the United States District Court for the
Eastern District of New York (Donnelly, J.), dismissing their claims against
defendants County of Suffolk and the Suffolk County Sheriff’s Department
(together, “Suffolk County”), as well as Sergeant Joseph Foti and Corrections
Officer John Santacroce (collectively, “defendants”), in connection with Foti’s
alleged sexual harassment and sexual assault of female inmates at the Suffolk
County Correctional Facility in Riverhead, New York (the “Riverhead Facility”),
in violation of 42 U.S.C. § 1983. The district court granted summary judgment on
the plaintiffs’ claims on the grounds that: (1) there was insufficient evidence in the
record of a municipal policy or custom to trigger liability under Monell v.
Department of Social Services, 436 U.S. 658, 690-91 (1978); (2) the claims brought by
Lucente and Culoso were barred by the statute of limitations under § 1983; and (3)
Viola failed to exhaust her administrative remedies as required under the Prison
Litigation Reform Act (“PLRA”) with respect to her claims.
On appeal, plaintiffs contend that, with respect to the municipal liability
claim, the district court overlooked evidence in the record that precluded
summary judgment on whether Suffolk County had both actual and constructive 3 knowledge of Foti’s persistent and widespread sexual misconduct involving
female inmates, but failed to adequately remedy it. Lucente and Culoso further
argue that their claims were timely under the continuing violation doctrine.
Finally, Viola submits that the PLRA exhaustion requirement should have been
excused on the theory that a campaign of threats and retaliation against female
inmates at the Riverhead Facility, as well as Foti’s sexual intimidation of her, made
the administrative process unavailable to her.
For the reasons that follow, we AFFIRM the district court’s grant of
summary judgment as to Viola’s claims, but VACATE as to the dismissal of
Lucente and Culoso’s claims against Suffolk County and individual defendants,
and REMAND the case to the district court for proceedings consistent with this
opinion.
I. BACKGROUND
Lucente, Culoso, and Viola, as well as three other former plaintiffs (Sharon
Watts, Michele Atkinson, and Catherine Andes) who settled their claims with
defendants, were all pre-trial inmates at the Riverhead Facility from May 2009 to
April 2011. These women alleged that they were subjected to sexual assault, sexual
harassment, and sexually degrading treatment by Foti during their time at the
4 Riverhead Facility, and that Suffolk County and Santacroce were aware of Foti’s
misconduct but failed to halt it.
At the conclusion of discovery, in response to defendants’ summary
judgment motion, plaintiffs presented various categories of evidence to the district
court to support their claims, including the Internal Affairs Section of the County
Sheriff’s Office (“Internal Affairs”) investigation reports in the 1990s regarding
allegations of sexual harassment and sexual assault against Foti, observations of
various corrections officers regarding Foti’s inappropriate conduct with female
inmates, harrowing sworn accounts from plaintiffs themselves and other inmates
about sexual harassment and sexual assault perpetrated by Foti, and some
inmates’ subsequent attempts to report his behavior to officials at the Riverhead
Facility. Although this evidence was disputed, the district court, in the context of
a summary judgment motion, must view such evidence in the light most favorable
to plaintiffs and draw all reasonable inferences in their favor. See Amore v. Novarro,
624 F.3d 522, 529 (2d Cir. 2010). With that legal principle in mind, plaintiffs’
evidence in support of their claims is summarized below.
5 A. The Riverhead Facility
The organizational hierarchy at the Riverhead Facility was well established
during the time period at issue. Foti was a corrections officer assigned to the
Riverhead Facility’s Rehabilitation Unit (the “Rehab Unit”). Foti reported to
Sergeant Noreen Fisher, who reported to Lieutenant Darlene McClurkin. Fisher
served as the “sexual harassment officer” at the Riverhead Facility. Sealed
Appendix (“Sealed App’x”) at 90. 2 McClurkin reported to a Captain Johnson.
McClurkin usually reported issues to the Warden through the chain of command.
Separately, Internal Affairs received investigation reports regarding allegations
made by inmates and others of sexual misconduct. In addition, Santacroce was an
investigator in the Security Unit of the Riverhead Facility. In this role, Santacroce
and the other security investigators were “in charge of the safety and security of
the facility” which included “movements of inmates.” Id. at 37. Santacroce
testified that the female inmates could go to “anybody” at the Riverhead Facility
with complaints of inappropriate conduct. Id. at 40.
Much of the Riverhead Facility’s inmate programming ran through the
Rehab Unit, where Foti was assigned. Inmates at the Riverhead Facility attended
2Portions of the appendix have been filed under seal and are hereby deemed unsealed to the extent that their content is quoted or described in this opinion. 6 church services, Alcoholics Anonymous, and Narcotics Anonymous meetings in
the chapel in the Rehab Unit. The Rehab Unit also housed the Riverhead Facility’s
law library and classrooms. At the time of plaintiffs’ incarceration, there were no
cameras at the Riverhead Facility except in the visiting room.
B. The Early Investigations of Foti’s Misconduct
Foti began working at the Riverhead Facility as a corrections officer in
January 1988. In the 1990s, Foti was the subject of several Internal Affairs
investigations, including allegations of sexually inappropriate behavior and other
misconduct that could constitute such behavior, and the results of those
investigations were documented. In 1992, an Internal Affairs investigation found
that Foti engaged in misconduct when, on two occasions, he failed to enter a
female inmate’s movement into the logbook after he removed her from her
housing unit for the alleged purpose of cleaning the cellblock. According to Foti,
he was accused of “do[ing] inappropriate things” with the inmate. Id. at 87. As a
result, Foti was reprimanded and cautioned that repetition of this behavior would
result in more serious disciplinary action. In 1994, Internal Affairs opened another
investigation into Foti regarding an allegation of fraternizing with an inmate.
Internal Affairs closed this investigation in 1995, and issued Foti a letter of
7 warning.
In 1997 and 1998, Internal Affairs
opened still more investigations into Foti regarding allegations of harassment by
Foti in his personal life. The subsequent 1997 investigation involved an allegation
by his ex-girlfriend that Foti sexually harassed her; it too was marked closed
“pending further information.” Id. at 87, 238. The 1998 investigation related to
allegations of harassment by Foti’s ex-fiancée that he harassed her from April 1996
to August 1996, and was marked as “closed/unsubstantiated.” Id. at 87, 235. These
Internal Affairs investigation reports were maintained by Suffolk County in an
electronic database that reflects the date that each complaint was sent to the
County Sheriff and the nature of the complaint.
C. The Reputation and Supervision of Foti
Plaintiffs adduced evidence that Foti had a reputation among his fellow
employees for inappropriate behavior with female inmates at the Riverhead
Facility. Corrections Officer Catherine Laton observed that Foti was “overly
8 friendly” with female inmates and he crossed “the line” in his behavior toward the
women. Redacted Appendix (“Redacted App’x”) at 223-24, 228. Laton called Foti
“an accident waiting to happen” with regard to his inappropriate behavior with
female inmates. Id. at 224. Laton observed that Foti would bring female inmates
to the law library out of rotation. On one occasion, Laton observed Foti caress a
female inmate’s arm during a mass service in the chapel. Laton reported her
concerns about Foti’s conduct to her supervisor, Fisher, who was the sexual
harassment officer at the Riverhead Facility, as well as to McClurkin, who was a
lieutenant and the head of the Rehab Unit where Foti worked. After Laton shared
her concerns about Foti to Fisher and McClurkin, both agreed to speak to him.
However, Foti testified that no one ever spoke to him about his alleged
inappropriate behavior.
Fisher testified at her deposition that she was aware of complaints and
concerns expressed by female inmates of inappropriate comments and behavior
toward them by Foti. At some point prior to September 2011, an inmate reported
that she believed Foti was having “inappropriate relations” with two female
inmates. Sealed App’x at 94-95. Specifically, although the inmate had not
observed any misconduct, she believed that Foti was bringing “breakfast specials”
9 (“egg sandwiches and coffee”) to female inmates and “they were doing special
favors for him.” Id. at 95. Another inmate told Fisher that Foti was “too touchy
feely” with the female inmates, that he was a “pig,” and that she did not want to
work in an area with him. Id. at 99. On a separate occasion, another corrections
officer reported to Fisher that she observed Foti massaging a female inmate. Fisher
further stated that Laton told her that Foti was being “overly friendly” with the
female inmates. Id. at 105. Fisher also testified that she led a weekly women’s
group where the female inmates could discuss various personal matters. At one
of the meetings, an inmate told her that Foti would share his sexual preferences
and experiences with women, including experiences with his wife. Id. at 100.
Fisher acknowledged that it was not “a good idea” to discuss these topics in front
of inmates but did not address it with Foti. Id. at 106. In addition, Fisher recalled
that Foti would often receive phone calls from released female inmates because
“he would be teased about it.” Id. at 103. Fisher explained that Foti’s supervisors
“had to correct [his behavior] so many times it was like being a mother . . . you
would be frustrated sometimes and just say, okay, you gotta stop.” Id. at 106.
According to Fisher, she reported some of these complaints and concerns
regarding Foti to her supervisor, McClurkin. For example, Fisher testified that she
10 reported to McClurkin the inmate’s suspicion that Foti was having inappropriate
relations with two female inmates. In response, McClurkin called Foti into her
office to discuss the allegations of the inappropriate behavior, but Foti completely
denied those allegations. 4 Fisher also reported to McClurkin that Foti would call
female inmates out of rotation to the law library and not follow the schedule.
McClurkin and Fisher told Foti he could no longer bring female inmates to the
library out of schedule. Foti said that was “ridiculous” and that he “could decide
when and who he wants to bring down.” Id. at 96. Fisher further described to
McClurkin that Foti visited the female inmates’ tiers to notarize documents, rather
than following the standard procedure of notarizing documents in the law library.
Finally, Fisher stated that she and McClurkin confronted Foti about giving an
inmate a massage, that Foti admitted to doing so, and that McClurkin “yelled at
him, took him into the office and told him to knock it off.” Id. at 104.
D. Foti’s Sexual Harassment and Sexual Assault of Plaintiffs
All six of the original plaintiffs in this case testified in detail at their
depositions about Foti’s sexual harassment and sexual assaults of them while they
4 There is no testimony from Foti confirming that this discussion with McClurkin occurred; rather, as noted above, Foti testified that none of his supervisors ever spoke to him about inappropriate behavior with inmates. 11 were incarcerated at the Riverhead Facility. When combined, the incidents they
testified to spanned from May 2009 to April 2011.
Lucente was incarcerated at the Riverhead Facility from May 10, 2009 until
July 12, 2010. According to Lucente, in June 2009, Foti sexually assaulted Lucente
after removing her and another inmate from a line to the women’s restroom
during a religious retreat at the Riverhead Facility. Foti pushed Lucente against
the wall, grabbed her by the throat, and licked her all over her body, including her
face and chest. Foti then pulled Lucente’s pants down and touched her vagina,
while Lucente tried to escape from him. The other inmate heard Lucente scream
for Foti to stop. Foti told the other inmate to leave, but she refused. Eventually,
Foti retreated and told Lucente to wash her face because she had been crying and
to “keep [her] f***ing mouth shut” about what happened. Redacted App’x at 241-
42. After the sexual assault, Foti continued to sexually harass Lucente whenever
he saw her. Foti would growl at her and rub his body into her when she passed
by. According to Lucente, “this was his thing all the time,” so she stopped going
to the chapel. Id. at 235.
Lucente shared with some of the other female inmates that Foti sexually
assaulted her. Later, Santacroce called Lucente down to meet with her, but
12 Santacroce ignored Lucente’s complaint that Foti attacked her at the religious
retreat, and Santacroce ordered her back to her housing unit. As a result of her
complaint about Foti to Santacroce, Lucente was moved to the maximum security
unit on the fifth floor of the Riverhead Facility where she was placed on twenty-
three hour lockdown. Lucente eventually returned to the Rehab Unit and, on
several occasions when she saw Foti, he would grab his crotch, wag his tongue,
and growl at her. She again explained that, as female inmates passed him by, Foti
would block them so he could forcibly touch them on their arms, back, or
anywhere he could reach. She characterized Foti’s inappropriate behavior in this
regard as “relentless.” Id. at 248.
Viola was incarcerated at the Riverhead Facility from January 13, 2010 to
May 2010. About a month into her incarceration, Viola asked Foti if she could use
the telephone in the chapel of the Riverhead Facility. While she was on the phone
with her mother, Foti grabbed Viola’s hand to rub his crotch. On another occasion,
because she was terrified for her own safety after a fellow inmate was brutally
beaten by two corrections officers in March 2010, Viola asked Foti to use the
telephone again to ask her family to bail her out as soon as possible. During this
13 call, Foti pulled his penis out of his pants and forced her to give him a “hand job”
while she was on the phone. Sealed App’x at 128.
Culoso was incarcerated at the Riverhead Facility from August 2009 until
December 2010. As with other inmates, Foti permitted Culoso to use the telephone
on multiple occasions during which he would make sexual gestures, claw at her,
and grunt. Culoso also testified about a sexual assault that occurred in the law
library. As she entered the law library, Foti was sitting at a desk with the computer
opened to Culoso’s Facebook page. As Foti looked at her Facebook page, he asked
her if she was wearing a bra in one of the photographs. Culoso said Foti told her
that she was getting him “so aroused.” Id. at 184-85. Culoso tried to leave, and
Foti grabbed her by the wrist and rubbed his crotch against her. Culoso’s mother
called the Riverhead Facility to complain about Foti’s behavior. A couple of days
later, an unidentified lieutenant visited Culoso in her housing unit and, after she
recounted what Foti had done to her, advised her not to pursue a grievance against
Foti.
The other plaintiffs in this lawsuit (Watts, Andes, and Atkinson) also testified
to being sexually harassed and sexually assaulted by Foti, as well as experiencing
indifference and/or retaliation from Riverhead Facility personnel when they
14 complained about his conduct, including complaints to Santacroce. Watts
observed Foti flirt with female inmates and touch them inappropriately. Watts
said that Foti would regularly and openly touch himself in front of the inmates
when they were in the Rehab Unit. In July or August of 2009, Foti sexually
assaulted Watts when she asked to use the telephone in the chapel to call her
family. Like Viola, as Watts sat at the desk and used the telephone, Foti unzipped
his pants and forced her to rub his penis. A couple of days later, Watts reported
Foti’s conduct to Santacroce who laughed in response and told her to “suck it up,
it’s jail.” Id. at 11. After speaking to Santacroce about Foti, Watts, like Lucente,
was moved to maximum security on the fifth floor of the Riverhead Facility and
placed on twenty-one-hour lockdown. Watts pleaded with Santacroce to move
her from maximum security but he said not until she “learned how to behave.” Id.
at 23. Once Watts promised to “keep [her] mouth shut,” Santacroce moved her
back to her regular unit. Id. Several months later, in the winter of 2009 to 2010,
Foti assaulted Watts again when she was using the telephone in the chapel. This
time, Foti forced Watts to put her hand around his penis and ejaculated on her
face. After he ejaculated, Foti continued to rub his penis on her face. On a later
occasion, Foti approached Watts as she was making photocopies in the law library
15 and “dry hump[ed]” her from behind. Id. at 171. Subsequently, Foti was in Watts’s
housing unit to notarize documents for female inmates. Watts waited in line and,
when it was her turn, Foti leaned into her and made an inappropriate sexual
comment to her. In the spring of 2010, Foti again assaulted Watts when she was
calling her family to discuss her sentencing. This time, Foti pulled his penis out of
his pants and asked that Watts give him a “blow job.” Id. at 169. Foti forced Watts
to hold his erect penis while she spoke on the phone to her family.
Andes was incarcerated at the Riverhead Facility between February 2010 and
April 2011. On several occasions, Foti commented that Andes was beautiful and
made inappropriate sexual comments to her. One evening in May or June 2010,
when Andes attended a meeting in the chapel, Foti called her into another room.
The two began talking and, at one point, Foti grabbed Andes’s hand and forced
her to put it on his crotch. Foti then pulled Andes into his body and tried to kiss
her, but another inmate, Atkinson, walked in. Atkinson asked what was going on,
and Foti responded by grabbing Atkinson’s chest and asking if she wanted to join
him and Andes. Atkinson smacked Foti’s hand away, and she and Andes left the
room. About a month or two after the incident, Andes approached Santacroce
about Foti’s conduct, but he “shut [her] down before [she] could even say
16 anything.” Redacted App’x at 151. Santacroce said that, unless Andes was in his
office to report information about drugs at the Riverhead Facility, he did not want
to hear her complaint.
Atkinson was incarcerated at the Riverhead Facility between December 2009
and August 2010. Foti sexually assaulted Atkinson on an elevator shortly after she
arrived at the Riverhead Facility. On that occasion, Foti was escorting Atkinson to
the medical unit and, once the two were alone in the elevator, Foti pushed
Atkinson, grabbed her hand, and put it on his exposed penis. Additionally, Foti
made numerous sexually harassing comments to Atkinson and, on several
occasions, touched his crotch in front of her while she attended meetings in the
chapel. After the elevator incident, Foti again exposed himself to Atkinson in the
law library approximately three or four times. According to Atkinson, she filed a
formal grievance about Foti that, as she recalled, reported “the incident that [she]
had with [Foti] in the elevator and [that she] need[ed] to speak to somebody
immediately, that [she] was scared for [her]self and the other women in the
facility.” Sealed App’x at 208-09. She submitted a written grievance to a
corrections officer, and she saw him hand it to a sergeant. Atkinson also tried to
report Foti’s sexual misconduct to Santacroce, who similarly told her, “[i]f you
17 know what’s best for you, you will keep your f***ing mouth shut.” Id. at 210, 212-
13. According to Atkinson, after her conversation with Santacroce about Foti, she
was subjected to retaliation. Specifically, the next time a family member visited,
Atkinson and her visitor were searched, and from then on, she was only permitted
box visits, a more restrictive visitation where no physical contact is allowed
between the inmate and visitor.
E. The 2011 to 2013 Internal Affairs Investigation and Report
Santacroce testified that, in September 2011, three or four different inmates
reported to him that Foti behaved in a sexually inappropriate manner with female
inmates. Santacroce reported the complaints to his supervisor, Sergeant
Lundquist. Internal Affairs was then notified about the allegations of sexual
harassment and sexual assault by Foti. Internal Affairs then took 18 months, from
September 2011 to January 2013, to investigate the allegations of Foti’s misconduct
and to issue its report.
Based upon this investigation and the resulting 26-page report, Foti was
found to have violated the Operations and Procedures Guide for Immoral
Conduct and Conduct Detrimental to the Sheriff’s Office. Specifically, the
investigation included interviews of Watts, Andes, and Culoso, during which they
18 described Foti’s sexual harassment and sexual assaults. 5 The report also included
that Watts sent a letter to a District Attorney’s office chronicling how Foti had
sexually assaulted her. For example, the report notes that Watts stated in the letter
that Foti “unzipped his pants and pulled out his penis” and grabbed her right
hand and “pressed it against his penis.” Id. at 134. Watts reported that this sexual
assault happened on more than one occasion. Watts said in her interview that,
whenever she made a phone call in the Rehab Unit where Foti was posted, he said
to her you “know[] the drill” and would insist she hold his penis while she made
a call. Id. at 136. Andes told investigators that, in one instance, Foti put her hand
on his penis outside of his pants, placed his hand on her vagina, and leaned in to
kiss her. Culoso likewise shared with investigators that, when she was in the law
library, Foti grabbed her around the waist and pulled her into his crotch area.
Culoso explained that Foti was always “touchy feely” and made “several
flirtatious” remarks to her. Id. at 141. Foti also told Culoso that, if she wanted to
make a phone call, he “want[ed] something too.” Id.
The Internal Affairs report also detailed that Foti met a former inmate after
she was released from incarceration and had sex with her in exchange for money
5 Viola, Lucente, and Atkinson were not interviewed by Internal Affairs as part of this investigation. 19 in 2006. That former inmate also stated that, while she was incarcerated at the
Riverhead Facility, she had seen Foti “touching himself while seated at his desk
and [that] he would point out his erection to her.” Id. at 133. Another inmate
referenced in the report said Foti was “very suggestive to the female inmates” and
that he made them “uncomfortable.” Id. That same inmate told investigators that
Foti would look up female inmates’ information on the computer to see their
release date and then offer to drive them home. The Alcoholics Anonymous
counselor explained to investigators that Foti would remove female inmates
during meetings and that she felt like “something was going on” and that these
inmates were “getting favors for something.” Id. at 138. Laton and Fisher reported
to investigators that Foti was sexually inappropriate with female inmates and had
once walked into a room where female inmates were changing even after Laton
told him to stay out. The report uncovered allegations of persistent and egregious
sexual misconduct by Foti; the instances listed above are by no means exhaustive
of what is included in the report but highlight only representative accounts of his
behavior.
As part of the investigation, Internal Affairs inventoried the contents of
Foti’s work locker and found pornography, printouts of female inmates’ criminal
20 records, and inmates’ email addresses, as well as printouts of former female
inmates’ social media pages, and a CD containing naked photos of individuals
unrelated to the jail.
Based upon this investigation, the January 2013 Internal Affairs report
found, inter alia, that: (1) Foti “violate[d] the Operations and Procedures Guide
Section 103-76 Immoral Conduct for being in possession of pornographic images
as well as erotic literature recovered from his locker”; and (2) Foti “violate[d] the
Operations and Procedures Guide Section 103-102 Conduct Detrimental to the
Sheriff[’]s Office for his actions outlined in this case file.” Id. at 147. The latter
finding also related to the items found in Foti’s locker. The report noted the
inability to corroborate the inmate allegations of sexual misconduct with
documentary evidence within the Riverhead Facility, and Foti was not charged
with any violations beyond those related to the contents of his locker.
In January 2013, Foti retired after 25 years and received his pension benefits.
Foti testified that his retirement had nothing to do with the Internal Affairs
investigation, and that none of his supervisors ever spoke to him about any
inappropriate behavior toward female inmates. Internal Affairs closed the
investigation once Foti announced his retirement in late 2012. On December 5,
21 2012, the Sheriff wrote a letter to Foti to accept his retirement effective January 3,
2013. In the same letter, the Sheriff thanked Foti for his “dedicated services for the
past twenty-five (25) years” and noted that Foti’s “professionalism and
competence have certainly been assets to [the Sheriff’s] Office.” Id. at 217.
II. PROCEDURAL HISTORY
On March 28, 2013, five female inmates from the Riverhead Facility – Watts,
Lucente, Atkinson, Culoso, and Andes – filed a complaint in the Eastern District
of New York against Suffolk County, Foti, and Santacroce for violations of
42 U.S.C. § 1983, alleging that Foti subjected them to sexual assault, sexual
harassment, and sexually degrading treatment, and that the other defendants
failed to act in response to Foti’s known conduct. The Complaint asserted claims
for (1) violations of their due process rights under the Fourth, Eighth, and
Fourteenth Amendments of the United States Constitution; (2) cruel and unusual
punishment in violation of the Eighth Amendment; and (3) violations of their
Equal Protection rights under the Fourteenth Amendment. On January 19, 2017,
22 the First Amended Complaint was filed, which added Viola as a plaintiff with
respect to those claims.
On August 22, 2017, following discovery, the district court granted Suffolk
County’s motion for summary judgment in part and denied it in part. The district
court granted the motion on municipal liability and dismissed the claims against
the County of Suffolk and the Suffolk County Sheriff’s Department. The district
court, although noting that “there is a question of fact as to whether plaintiffs told
[Santacroce] that Foti sexually assaulted them,” stated that plaintiffs did not
“adduce[] any evidence that McClurkin or Fisher knew about the sexual assaults.”
Id. at 248 & n.11. The district court further concluded that testimony that Foti was
an “accident waiting to happen” was unavailing because it was an “expression of
potential” and “not a statement that something actually happened.” Id. at 248.
The district court cited certain testimony from female inmates about Foti’s
conduct, namely that he had “inappropriate relations” with two female inmates,
that he shared his sexual preferences and experiences with women, including
experiences with his wife, with inmates, and that he was seen “massaging an
inmate and walking in while inmates were undressing.” Id. at 248-49. The district
court characterized this behavior as “surely disturbing” but concluded that it
23 “d[id] not establish that Fisher knew that Foti committed sexual assault.” Id. at
249. The district court further stated that even if McClurkin, Fisher, and
Santacroce were aware that Foti sexually harassed and sexually assaulted female
inmates, inaction by a few subordinate employees who lacked policymaking
authority was insufficient as a matter of law to create municipal liability. Id. (citing
Rubio v. County of Suffolk, No. 01-cv-1806, 2007 WL 2993833, at *4 (E.D.N.Y. Oct. 9,
2007), aff’d, 328 F. App’x 36 (2d Cir. 2009)). In reaching this conclusion, the district
court explained that Fisher and Santacroce were not “anything other than line
officers,” and plaintiffs had presented no evidence that they made binding policy
or that someone with such policymaking authority had delegated such authority
to them. Id. The district court also noted that, although McClurkin was of higher
rank than Fisher and Santacroce, plaintiffs did not contend that she had
policymaking authority either. Accordingly, the district court granted Suffolk
County’s motion for summary judgment as to the municipal liability claim.
Next, the district court dismissed the claims brought by Lucente and Culoso
(including the claims against Foti and Santacroce individually) on statute of
limitation grounds. The district court reasoned that, because neither Lucente nor
Culoso had alleged that Foti sexually assaulted them within three years of the
24 filing of the complaint, their claims were time-barred. The district court rejected
plaintiffs’ argument that the continuing violation doctrine should extend the
limitations period for all of plaintiffs’ claims. Specifically, the district court
explained that, because plaintiffs failed to establish a municipal policy to ignore
Foti’s misconduct, the continuing violation doctrine did not apply.
The district court also dismissed the claims brought by Viola because she
failed to exhaust her administrative remedies as required by the PLRA. The
district court pointed out that Viola had not alleged “more than a generalized fear
of retaliation” and she did not “claim that she was threatened or warned about
filing a grievance.” Id. at 254. The district court further concluded that, because
Viola did not demonstrate a connection between the beating of another inmate and
her inability to report a grievance, “the grievance procedure was available to her,
and her failure to exhaust the administrative remedies is not excused.” Id.
Following the summary judgment decision, the remaining claims brought
by Watts, Atkinson, and Andes against Foti and Santacroce were scheduled to
25 proceed to trial. However, those parties settled before trial and their claims were
voluntarily dismissed.
Plaintiffs moved for reconsideration of the August 22, 2017 decision. On
November 2, 2017, the district court denied the motion for reconsideration.
Plaintiffs timely appealed both the August 22, 2017 decision dismissing their
claims, and the November 2, 2017 decision denying their motion for
reconsideration.
III. DISCUSSION
A. Standard of Review
We review a district court’s grant of summary judgment de novo. Rubens v.
Mason, 527 F.3d 252, 254 (2d Cir. 2008). A motion for summary judgment may be
granted only “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A “genuine issue” exists and summary judgment is therefore
improper “where the evidence is such that a reasonable jury could decide in the
non-movant’s favor.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008).
In reviewing a district court’s grant of summary judgment, we must “construe the
facts in the light most favorable to the non-moving party and must resolve all
26 ambiguities and draw all reasonable inferences against the movant.” Id. Summary
judgment dismissing a claim “is inappropriate when the admissible materials in
the record make it arguable that the claim has merit.” Kaytor v. Elec. Boat Corp.,
609 F.3d 537, 545 (2d Cir. 2010) (internal quotation marks omitted).
B. Municipal Liability 6
Plaintiffs principally argue that the district court’s decision to grant
summary judgment on the Monell claim against Suffolk County was based upon
the following errors regarding the factual record and the applicable law: (1)
characterizing Foti’s conduct as the “isolated action of a rogue [] officer,” Sealed
App’x at 249 (emphasis added); (2) excluding from consideration formal
complaints regarding allegations of Foti’s misconduct that were sent to the Sheriff
in the 1990s; (3) finding that plaintiffs did not show that a policymaker or
designated policymaker had knowledge of Foti’s sexual misconduct; and (4)
limiting the analysis to knowledge by supervisors of allegations of sexual assaults
by Foti, rather than also more broadly considering knowledge of allegations of
6Both the parties and the district court construed the municipal liability claim against the Suffolk County Sheriff’s Department, which is an administrative arm of Suffolk County, as being against Suffolk County (which also was separately named as a defendant), and we do so on appeal. 27 sexual harassment and other misconduct by Foti towards female inmates.
Appellants’ Br. at 33-37, 38-39, 41.
We agree. As set forth below, construing the evidence in the light most
favorable to plaintiffs, summary judgment on the Monell claim was unwarranted
because there was sufficient evidence in the record to create a material issue of
disputed fact as to whether supervisory officials at the Riverhead Facility
consistently ignored Foti’s widespread pattern of sexual assaults and sexual
harassment of female inmates, such that it constructively supported the inference
that policymakers, at the very least, had a custom or practice of acquiescing to
Foti’s sexual misconduct.
“To hold a [municipality] liable under § 1983 for the unconstitutional actions
of its employees, a plaintiff is required to plead and prove three elements: (1) an
official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial
of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)
(internal quotation marks and alterations omitted); see Monell, 436 U.S. at 690-91.
“[A] municipality cannot be made liable [under § 1983] by application of the
doctrine of respondeat superior,” Pembaur v. City of Cincinnati, 475 U.S. 469, 478
(1986), but rather the plaintiff must “demonstrate that, through its deliberate
28 conduct, the municipality was the moving force behind the alleged injury,” Roe v.
City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (internal quotation marks omitted).
Under Monell, “[o]fficial municipal policy includes the decisions of a
government’s lawmakers, the acts of its policymaking officials, and practices so
persistent and widespread as to practically have the force of law.” Connick v.
Thompson, 563 U.S. 51, 61 (2011). Such a policy “may be pronounced or tacit and
reflected in either action or inaction.” Cash v. County of Erie, 654 F.3d 324, 334 (2d
Cir. 2011). A municipality’s “‘policy of inaction’ in light of notice that its program
will cause constitutional violations ‘is the functional equivalent of a decision by
the [municipality] itself to violate the Constitution.’” Connick, 563 U.S. at 61-62
(quoting City of Canton v. Harris, 489 U.S. 378, 395 (1989) (O’Connor, J., concurring
in part and dissenting in part)).
In order to establish Monell liability based upon a “persistent and
widespread” practice by a subordinate municipal employee (or employees) other
than a policymaker, the employee’s unconstitutional conduct must be “so manifest
as to imply the constructive acquiescence of senior policy-making officials.”
Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870-71 (2d Cir. 1992) (citing City of St.
Louis v. Praprotnik, 485 U.S. 112, 130 (1988); Krulik v. Bd. of Educ. of the City of N.Y.,
29 781 F.2d 15, 23 (2d Cir. 1986)). In other words, there must be “sufficient instances
of tolerant awareness by supervisors of abusive conduct to support an inference
that they had a policy, custom or usage of acquiescence in such abuse.” Jones v.
Town of East Haven, 691 F.3d 72, 82 (2d Cir. 2012); see also Batista v. Rodriguez, 702
F.2d 393, 397 (2d Cir. 1983) (acknowledging that inaction may lead to municipal
liability for the “persistent failure to discipline subordinates who violate civil
rights” as it can “give rise to an inference of an unlawful municipal policy of
ratification of unconstitutional conduct within the meaning of Monell”). It is only
at that point that, although not expressly authorized, the unconstitutional conduct
is so persistent and widespread that it can constitute a custom or usage of which a
supervising policymaker must have been aware. See Bd. of Cnty. Comm’rs v. Brown,
520 U.S. 397, 403-04 (1997).
Within this well-settled legal framework, we proceed to analyze the record
evidence in this case in the light most favorable to plaintiffs.
1. Severity and Scope of the Alleged Unconstitutional Conduct
First, in assessing whether it can be inferred that municipal policymakers
acquiesced in unconstitutional conduct of a subordinate employee, it is important
to analyze the severity and scope of the unconstitutional conduct by the employee
30 or multiple employees. See, e.g., Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 63
(2d Cir. 2014) (noting, in assessing municipal liability, that “the acts of
discrimination and harassment alleged by [the plaintiff] were frequent and
severe”). Here, the district court characterized Foti’s conduct as the “isolated
action of a rogue [] officer.” Sealed App’x at 249. Although there was no evidence
that officers other than Foti participated in the alleged sexual assaults and sexual
harassment of female inmates, there was nothing “isolated” about his alleged
misconduct at the Riverhead Facility. Putting aside the allegations from the 1990s
contained in the Internal Affairs investigations and corresponding reports, the
record includes testimony from six different female inmates – namely, the original
plaintiffs in this case – who accused Foti of sexually assaulting and sexually
harassing them at the Riverhead Facility. In addition to the alleged sexual assaults
and sexual harassment of these six inmates over a period of approximately 18
months, the record is replete with evidence of inappropriate touching and/or other
sexual harassment of female inmates on a regular basis by Foti in or around that
same timeframe. For example, Watts testified that Foti would visit the female tiers
and flirt with the inmates and touch them inappropriately, and would regularly
touch himself in front of the female inmates when they were in the Rehab Unit.
31 Similarly, Lucente explained that, as female inmates passed by Foti in the Rehab
Unit, he would block them so he could forcibly touch them on their arms, back, or
anywhere he could reach. She characterized Foti’s inappropriate behavior in this
regard as “relentless.” Redacted App’x at 248. Thus, this evidence and other
similar information in the record suggests that Foti’s sexual harassment was open
and notorious.
There were also statements by Laton of inappropriate behavior which the
district court failed to view in the light most favorable to plaintiffs. In considering
Laton’s testimony regarding Foti as an “accident waiting to happen” and being
“overly friendly,” the district court dismissed this commentary as an “expression
of potential” and not a statement about what actually happened. Sealed App’x at
248. This is too narrow of a view given Laton’s overall description of Foti’s “overly
friendly” behavior crossing the line. Redacted App’x at 223-24, 228; see also id. at
228 (“I didn’t feel comfortable working with him because of his – I felt he crossed
the line with him being too friendly with the female inmates.”). In particular,
Laton gave an example of Foti’s harassing behavior – caressing a female inmate’s
arm during a mass service. Moreover, in her written statement, Laton described
an incident in September 2011 in which Foti walked into an area where female
32 inmates were undressing, even after Laton told Foti that the inmates were
changing in that area.
There was also testimony about Foti’s unusual practices within the jail that
would allow a jury to rationally infer, in light of the entire record, that Foti created
opportunities to regularly engage in inappropriate behavior towards female
inmates. For example, Laton stated that she observed Foti bring the same female
inmates to the law library more often than was required, and that he would go to
the female housing area to notarize documents even though no other officer did
that. Fisher similarly testified that “Foti would call down the females out of turn
and not follow the schedule,” and “would go up to the female floors and do
[notarizations] instead of having [the inmates] come down to the law library.”
Sealed App’x at 96. Watts testified that Foti used his notary visits to the female
housing area and the law library (where they were not allowed to sign in) to
sexually harass the female inmates. In particular, the allegations that Foti’s most
egregious conduct often took place in the law library would corroborate the
accounts of multiple female inmates (including plaintiffs) of a pattern of sexual
harassment and sexual assaults of female inmates by Foti.
33 In short, construing the evidence in the record most favorably to plaintiffs,
a rational jury could conclude that Foti’s sexual misconduct against the female
inmates (including sexual assaults, verbal harassment, and other inappropriate
behavior) was not isolated, but rather was severe, persistent, and pervasive
conduct that was executed in a manner that would have been difficult to conceal
from supervisory personnel at the Riverhead Facility, including policymakers. See
Matusick, 757 F.3d at 63 (“[B]ased on the pervasiveness of the harassment and the
lack of response, the jury could reasonably have found that [the Director of the
County Water Authority’s] inaction and acquiescence to the harassment that [the
plaintiff] suffered allowed the harassment to become the custom and practice, if
not the policy, of the [County Water Authority].”) Thus, the evidence regarding
the severity and scope of Foti’s misconduct towards female inmates, in
combination with the evidence of awareness of various aspects of that sexual
misconduct by multiple Suffolk County employees within the Riverhead Facility
(discussed infra), provides strong support (if credited by the jury) for plaintiffs’
municipal liability claim.
34 2. 1990s Internal Affairs Investigations of Foti’s Misconduct
With respect to the policymakers’ awareness of Foti’s misconduct, plaintiffs
sought to demonstrate actual knowledge by a policymaker – namely, the Suffolk
County Sheriff at the Riverhead Facility – of Foti’s sexually inappropriate behavior
based upon five formal complaints that were filed against Foti with Internal
Affairs at the Riverhead Facility in the 1990s. 7 Plaintiffs note that each of these
formal investigations about Foti was sent to the Sheriff who thus had actual notice
of these incidents through these reports.
In concluding that this evidence has no probative value regarding whether
the Sheriff was on notice of Foti’s misconduct, the district court noted three of the
reports – namely, (1)
(2) Foti’s
ex-girlfriend’s report in 1997 that he sexually harassed her; and (3) Foti’s ex-
fiancée’s report that he harassed her between April 1998 and August 1998 –
“hav[e] nothing to do with inmates or incidents at the jail where Foti worked.”
Sealed App’x at 264. The district court further explained, with respect to these
three reports, that “[b]ecause these reports do not involve inmates, they cannot
7The district court found that the Sheriff had policymaking authority at the Riverhead Facility, and defendants do not dispute that finding on appeal. 35 establish that the Sheriff knew about—and ignored—any incidents of Foti sexually
harassing inmates.” Id. As to the remaining two reports, which do involve
inmates, the district court concluded that the reports do not make reference to
misconduct of a sexual nature, and thus could not be used to support any
awareness by the Sheriff of Foti sexually assaulting or harassing inmates.
Although the district court correctly identified some of the weaknesses and
ambiguities of this category of proof as it relates to notice, we do not agree that it
has no probative value on that issue when viewed in the light most favorable to
plaintiffs, especially when examined in the context of the entire record.
First, the fact that three of these reports of sexual assault or sexual
harassment by Foti were not alleged to have involved inmates or to have occurred
at the Riverhead Facility does not mean that they would be irrelevant to his
continued employment or to an investigation of alleged similar misconduct by Foti
at the Riverhead Facility itself. As this Court has previously articulated, off-duty
conduct can be relevant for establishing municipal liability. See Vann v. City of New
York, 72 F.3d 1040, 1051 (2d Cir. 1995). The potential relevance of these off-duty
allegations to this case was highlighted by the testimony of Internal Affairs
investigator Theresa Pisciotta, in which she acknowledged that Foti’s indictment
36 in the 1990s (with his ex-fiancée’s minor daughter as the alleged victim) would
have been relevant to her investigation into Foti’s overall sexual misconduct even
many years later.
Second, with respect to the Internal Affairs reports involving female
inmates, a jury could reasonably infer that those reports, although not a model of
clarity, related to inappropriate sexual misconduct with female inmates. With
respect to the 1992 report regarding movement of a female inmate, Foti twice
engaged in misconduct by failing to enter inmate movements in the logbook in
connection with his removal of a female inmate from her housing unit for the
purpose of cleaning the cellblock. Foti testified that he was accused of “do[ing]
inappropriate things” with that inmate. Sealed App’x at 87. The investigation was
closed with Foti receiving a Letter of Reprimand for failing to make logbook
entries. Given that Foti was not asked to describe the nature of the alleged
“inappropriate things” he was accused of doing with the female inmate, the
district court concluded it had no relevance on the issue of notice in this case
because “[t]here is no reason . . . to assume that the ‘inappropriate things’ Foti
referred to were sexual.” Id. at 265. With respect to the separate report in 1995
documenting an “allegation of fraternizing with an inmate” which was closed
37 with a “letter of warning and cautioning” to Foti, id. at 234, the district court
similarly disregarded the report because the district court did “not agree with the
plaintiffs that ‘fraternizing’ is the equivalent of sexual harassment,” id. at 265. We
do not believe that the potential relevance of these reports on the issue of notice
can simply be cast aside because of these ambiguities. As an initial matter, we
conclude that a jury could rationally infer – from Foti’s description of being
accused of doing “inappropriate things” with a female inmate and in light of the
other evidence in this case – that the 1992 investigation of that conduct involved
sexually inappropriate conduct. Id. In any event, each instance of alleged prior
misconduct with female inmates need not be identical to those alleged here, or
even rise to the level of sexual harassment, to have probative value on the issue
of whether the recipient of that information (including a policymaker) would have
had at least some level of notice that the municipal employee was engaging in
unconstitutional sexual harassment of female inmates, especially when combined
with the other evidence in the record.
Thus, we conclude that these reports, construed most favorably to plaintiffs
and in the context of the entire record, are probative of whether the policymakers
had prior notice of Foti’s alleged sexual misconduct toward female inmates, and
38 their failure to properly investigate and act upon such notice. Notwithstanding
the ambiguities in the record with respect to these incidents, plaintiffs should be
able to ask the jury to rationally infer, especially by the time of the fifth report in
1999, that these reports collectively put the Sheriff on notice that Foti was the
subject of serious allegations of sexual assault, sexual harassment, and
inappropriate behavior toward female inmates both on-duty and off-duty, and
that those allegations were not sufficiently investigated and addressed in order to
ensure the future safety of female inmates at the Riverhead Facility.
In reaching this conclusion, we emphasize that this proof was not the
cornerstone of plaintiffs’ evidence with respect to their attempt to prove the
existence of a municipal policy or custom of acquiescing to unconstitutional
conduct by Foti toward female inmates. Instead, the bulk of plaintiffs’ evidence
(as discussed in detail infra) related to establishing that there was widespread
knowledge among supervisors at the Riverhead Facility of Foti’s sexual
misconduct towards female inmates from 2009 to 2011 (when plaintiffs were
incarcerated there), and that corresponding inaction by those supervisors
provided a basis for concluding that the Riverhead Facility’s policymakers, who
ran the facility, had constructive notice of the misconduct. However, even in that
39 context, plaintiffs should be able to utilize these reports from the 1990s as
background to attempt to demonstrate that the Sheriff’s lack of response to the
earlier allegations against Foti evidenced the beginning of a policy or custom of
inaction and acquiescence that continued for well over a decade, which thereby
placed female inmates at risk of subsequent unconstitutional conduct that is now
alleged to have occurred years later with respect to the plaintiffs at the same
Riverhead Facility. It is squarely within the province of the jury to decide, in
determining municipal liability, what weight this evidence should receive on the
issue of a policymaker’s actual or constructive notice of the unconstitutional
conduct in light of all the evidence in this case.
3. Evidence of Supervisory Awareness of Foti’s Conduct
The district court also determined that plaintiffs’ evidence of awareness by
employees and supervisory officials at the Riverhead Facility of Foti’s misconduct
was insufficient as a matter of law to establish municipal liability by
demonstrating that Suffolk County had a persistent and widespread practice of
ignoring Foti’s sexual harassment of female inmates. We disagree. Even assuming
no direct evidence existed that any policymakers were aware of Foti’s sexual
misconduct towards female inmates in the 2009-2011 timeframe, we conclude that
40 the evidence in the record of awareness of such misconduct by supervisory non-
policymakers was sufficient to raise disputed factual issues that preclude
summary judgment on this claim.
Complaints by plaintiffs and other female inmates regarding sexual
misconduct by Foti towards female inmates reached multiple Suffolk County
officials at the Riverhead Facility with an investigatory and/or supervisory
function regarding such allegations. The Riverhead Facility employee who was
alleged to have had the most extensive knowledge of Foti’s sexual misconduct
against female inmates was Santacroce. According to Santacroce, he was an
investigator who was appointed by the Sheriff to manage internal security, which
consisted of ensuring the safety and security of the Riverhead Facility, including
inmates. In opposition to defendants’ summary judgment motion, plaintiffs
pointed to their testimony, as well as that of other witnesses, that Santacroce was
made aware on multiple occasions of Foti’s sexual assaults and sexual harassment
of female inmates and took no action, and in fact often retaliated against the inmate
for complaining. For example, Lucente testified that, when she complained to
Santacroce about Foti’s brutal sexual assault of her, Santacroce ignored her
complaint and simply told her to return to her housing unit. Lucente further
41 testified that Santacroce not only dismissed Lucente’s plea for help, but also
reprimanded her for coming forward by putting her in the maximum security unit.
Similarly, Watts testified that, when she reported Foti’s assaults to Santacroce, he
responded, “[S]uck it up, it’s jail.” Sealed App’x at 10-11. Atkinson likewise
testified that she tried to report Foti’s sexual harassment and sexual assault to
Santacroce, who in turn responded, “If you know what’s best for you, you will
keep your f***ing mouth shut.” Redacted App’x at 212-13. And Andes testified
that she approached Santacroce about Foti but he “shut [her] down” and told her
that, unless she was reporting information about drugs at the Riverhead Facility,
he did not wish to hear what she had to say. Id. at 150-51.
The parties vigorously dispute Santacroce’s level of responsibility at the
Riverhead Facility, with plaintiffs arguing that he was the Head of Security based
upon testimony adduced by them, and Suffolk County countering that he was
only an investigator. This dispute, however, is not dispositive with respect to the
Monell claim because there is also substantial evidence that allegations of Foti’s
alleged sexual misconduct were reported to various supervisory personnel by
both female inmates and other Suffolk County employees.
42 Sergeant Fisher was Foti’s supervisor and, according to Foti, was designated
as the sexual harassment officer at the Riverhead Facility. Suffolk County does
not appear to contest that designation, but rather disputes that such a designation
makes her a policymaker. See Appellees’ Br. at 23. The record contains evidence
of a number of instances in which Fisher received allegations of Foti fraternizing
with female inmates, improperly touching them, and engaging in inappropriate
relations with them, as well as making improper sexual comments towards them.
For example, Fisher testified that, at some point prior to September 2011, an inmate
reported that she believed Foti was having “inappropriate relations” with two
female inmates. Sealed App’x at 94-95. Another inmate also told Fisher that Foti
was “too touchy feely” with the female inmates, that he was a “pig,” and that she
did not want to work in an area with him. Id. at 99. Fisher testified that, at a
weekly women’s group where the female inmates could discuss various personal
matters, an inmate told her that Foti would share his sexual preferences and
experiences with women, including his experiences with his wife. On a separate
occasion, another corrections officer reported to Fisher that she observed Foti
massaging a female inmate. Fisher even admitted that she was aware that Foti’s
supervisors “had to correct [his behavior] so many times it was like being a mother
43 . . . you would be frustrated sometimes and just say, okay, you gotta stop.” Id. at
106.
According to Fisher, she reported to her supervisor, Lieutenant McClurkin,
several of the verbal complaints she received regarding Foti’s inappropriate
behavior and practices with respect to female inmates, including: (1) the complaint
by an inmate, at some point prior to September 2011, that she believed Foti was
having inappropriate relations with two female inmates; (2) Foti massaging the
shoulders of a female inmate; (3) Foti’s practice of calling down female inmates
out of rotation to the law library and not following the schedule; and (4) Foti’s
practice of visiting the female inmates’ tiers to notarize documents, rather than
following the standard procedure of notarizing documents in the law library.
Laton also testified that she reported her concerns about Foti’s conduct to not only
Fisher, but McClurkin as well.
Fisher acknowledged receiving complaints about Foti’s behavior and
testified that she took some remedial action to address them. For example, Fisher
testified, upon learning of the complaint that Foti might be having inappropriate
relations with female inmates, she called Foti into her office to discuss the
allegations of the inappropriate behavior, but Foti completely denied them.
44 According to Fisher, when she learned about Foti’s irregular procedures with
female inmates regarding the law library, she and McClurkin told Foti he could no
longer bring down female inmates to the library out of schedule; Foti said that
instruction was “ridiculous” and that he “could decide when and who he wants
to bring down.” Id. at 96. According to Fisher, she also was present when
McClurkin yelled at Foti for massaging an inmate’s shoulders. Foti denied ever
being confronted by a supervisor about inappropriate conduct towards female
inmates. Id. at 83 (“Q. Did anyone ever tell you that you made any of the inmates
feel uncomfortable? A. Never. Q. You never heard that from any of your
supervisors? A. No. Q. Did any of your supervisors ever tell you that they
believed you were acting in an inappropriate fashion? A. No.”).
The district court found this evidence of supervisory knowledge and
inaction insufficient to preclude summary judgment for two primary reasons.
First, the district court noted that, regardless of any knowledge of Foti’s sexual
harassment of female inmates, plaintiffs had no evidence “that McClurkin or
Fisher knew about the sexual assaults.” Id. at 248 (emphasis added). Second, the
district court noted that there was no evidence that Santacroce, Fisher, or
McClurkin had policymaking authority or had been delegated such authority by
45 an individual with power to do so. Id. at 249-50. However, neither of those
conclusions would support summary judgment on this claim given all the
evidence in the record from which, when construed most favorably to plaintiffs, a
rational jury could conclude municipal liability exists.
As an initial matter, although there was no evidence that Fisher or
McClurkin were aware of the alleged sexual assaults by Foti of several female
inmates, there was evidence that supervisory officials were placed on notice that
two separate inmates were asserting that Foti had sexually assaulted them. Culoso
testified that, a few days after Culoso’s mother called the Riverhead Facility to
complain about Foti’s sexual assault of Culoso, an unnamed lieutenant visited
Culoso in her housing unit and, after she recounted what Foti had done to her, the
lieutenant advised her not to pursue a grievance against Foti. In addition, even
though the district court stated that no formal grievances were filed, Atkinson
testified that she filed a formal grievance about Foti’s sexual assault and sexual
harassment of her, which was never addressed by Suffolk County. Although there
does not appear to be documentation of that grievance in the record, the lack of
any documentation on this issue does not allow Atkinson’s testimony to be
discounted in assessing whether there is sufficient proof to overcome a summary
46 judgment motion. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998)
(concluding that “self-serving” affidavit alone created issue of fact precluding
summary judgment). Thus, plaintiffs did adduce evidence that supervisory
officials within the Riverhead Facility were made aware of allegations of Foti’s
sexual assaults on at least two female inmates. Moreover, Fisher was aware of
allegations that Foti massaged an inmate’s shoulders, and Foti admitted to such
conduct, but claimed he did not think of it as inappropriate.
In any event, neither Fisher, McClurkin, nor any other supervisory
employee need have been aware of a sexual assault to place them on notice as to
Foti’s unconstitutional conduct towards female inmates; rather, it is well-settled
that sexual harassment also violates the Equal Protection Clause. See Gierlinger v.
N.Y. State Police, 15 F.3d 32, 34 (2d Cir. 1994) (“Section 1983 liability can be imposed
upon individual employers, or responsible supervisors, for failing properly to
investigate and address allegations of sexual harassment when through this
failure, the conduct becomes an accepted custom or practice of the employer.”);
see also Matusick, 757 F.3d at 62 (“A custom or policy of harassment and other
discriminatory acts giving rise to hostile work environment claims can form the
basis of section 1983 claims.”). Here, plaintiffs assert that Suffolk County’s custom
47 of ignoring allegations of sexual assault and sexual harassment caused them to be
subject to both forms of such unconstitutional conduct by Foti. Thus, the evidence
in the record regarding awareness by Fisher, McClurkin, and other supervisory
personnel at the Riverhead Facility of sexual harassment of female inmates by Foti
can and should be considered in determining whether a Suffolk County
policymaker was on notice as to Foti’s unconstitutional conduct.
The same is true with respect to evidence of knowledge and inaction by
multiple supervisors regarding Foti’s pattern of fraternizing with the female
inmates. The fact that Suffolk County Correctional Facility’s Harassment Policy
strictly forbids corrections officers from fraternizing with the female inmates
demonstrates a recognition of the inherent safety risk of such fraternization to
female inmates. See Redacted App’x at 253 (“Members of the Correction Division
shall be forbidden to fraternize or converse with inmates on a personal basis. . . .
They shall not discuss any subject non[-]conducive to the well-being of inmates as
individuals or as a group.”). Therefore, although fraternizing with female inmates
may not itself rise to the level of unconstitutional conduct by a corrections officer,
knowledge of such conduct by multiple supervisors and indifference to it may be
highly probative, especially in the context of other evidence, as to (1) an awareness
48 of an extremely high risk that female inmates may be unconstitutionally sexually
harassed or sexually assaulted by that corrections officer, and as to (2) the existence
of a custom of failing to protect inmates from such unconstitutional conduct. For
example, in Cash v. County of Erie, we held that a practice of allowing guards to
have unmonitored one-on-one interactions with inmates of a different sex could
have been rationally considered by the jury in finding that a failure to preclude or
monitor such interactions demonstrated a municipal policy of deliberate
indifference to prisoner safety, which allegedly resulted in the rape of the plaintiff
by a guard:
In concluding that trial evidence was legally insufficient . . . , the district court observed that a policy permitting unmonitored one-on- one interactions between a guard and a prisoner of different sexes was not itself unconstitutional, and that the lack of prior sexual assaults by male guards of female prisoners failed to alert [the Sheriff] to the fact that such a policy posed a risk of rape to [the plaintiff]. We take no exception to the district court's first observation, but we cannot agree with its second.
654 F.3d at 336 (emphasis in original) (citation omitted). We further explained that
the district court erred in reasoning that the prior instances of sexual activity
between inmates and guards gave no indication that such activities were
assaultive, because it “overlook[ed] the fact that, as a matter of New York state
law, any sexual contact between a guard and a prisoner is deemed non-consensual
49 due to the inherent power differential between guards and prisoners.” Id. at 337
(emphasis in original); see also J.K.J. v. Polk County, 960 F.3d 367, 381-82 (7th Cir.
2020) (en banc) (“[The female inmates] were confined in circumstances where they
depended on male guards for nearly everything in their lives—their safety as well
as their access to food, medical care, recreation, and even contact with family
members. With this authority and control for the guards came power and, in turn,
access and opportunity to abuse it. It is difficult to conceive of any setting where
the power dynamic could be more imbalanced than that between a male guard
and a female inmate.” (quotation marks omitted)), petition for cert. filed, No. 20-427
(U.S. Oct. 2, 2020).
Similarly, in the instant case, to establish the County’s responsibility
plaintiffs are not limited to relying on supervisors’ knowledge of sexual assaults
by Foti against female inmates. Rather, the supervisors’ alleged inaction
(including the failure to discipline Foti) in response to all of Foti’s alleged
misconduct toward female inmates, including, for instance, Foti’s proscribed
fraternization with inmates, can be probative of their awareness of Foti’s alleged
sexual assault and sexual harassment of female inmates (even when the
misconduct itself was not of a gravity or pervasiveness to be considered
50 unconstitutional). See Cash, 654 F.3d at 337 (“[K]nowledge that an established
practice has proved insufficient to deter lesser [sexual] misconduct can be found
to serve notice that the practice is also insufficient to deter more egregious
misconduct.”); see also J.K.J., 960 F.3d at 382 (“A reasonable jury could have viewed
the County’s learning of [a correctional officer’s] sexual exploitation of [the female
inmate] as sounding an institutional alarm, making it highly predictable, if not
certain, that a male guard would sexually assault a female inmate if the County
did not act. By that point the risk was not only obvious, but blatantly so. To be
certain, the accusations of [the corrections officer’s] reprehensible conduct fell
short of rape. But it would be naive in the extreme to dismiss the misconduct as
no more than boorish behavior or, more to it, providing no incremental notice of
an obvious risk.” (internal quotation marks omitted)); Gonzales v. Martinez, 403
F.3d 1179, 1187 (10th Cir. 2005) (finding that, in connection with a claim that jail
administrator sexually assaulted the plaintiff inmate, Sheriff’s knowledge of
substantial risk of harm to inmates could be determined based upon, among other
things, his “knowledge of reported risks to inmate health or safety, including the
documented lapse of security in the control room, [and] complaints of sexual
harassment and intimidation”).
51 The district court also erred in concluding that any evidence of knowledge
of Foti’s misconduct by Fisher and McClurkin was insufficient as a matter of law
to trigger municipal liability because neither of these Suffolk County employees
was a legislatively authorized policymaker nor was delegated policymaking
authority. The legal standard for Monell liability is not that narrow. As noted
supra, the Supreme Court has made clear that, if a practice is “so persistent and
widespread as to practically have the force of law,” Connick, 563 U.S. at 61, actual
notice by the policymakers need not be proven. In Praprotnik, the Supreme Court
explained the reasoning behind this theory of municipal liability:
[W]hatever analysis is used to identify municipal policymakers, egregious attempts by local governments to insulate themselves from liability for unconstitutional policies are precluded by a separate doctrine. Relying on the language of § 1983, the Court has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a “custom or usage” with the force of law. That principle, which has not been affected by Monell or subsequent cases, ensures that most deliberate municipal evasions of the Constitution will be sharply limited.
485 U.S. at 127 (internal quotation marks and citations omitted). We therefore have
held that “where senior personnel have knowledge of a pattern of constitutionally
offensive acts by their subordinates but fail to take remedial steps, the
52 municipality may be held liable for a subsequent violation if the superior’s
inaction amounts to deliberate indifference or to tacit authorization of the
offensive acts.” Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir. 1980); see also Krulik, 781
F.2d at 23 (“[A]n individual official’s acts can rise to the level of ‘policy’ when
‘senior personnel’ knowingly ‘acquiesce’ in their subordinates’ behavior.”).
We recognize that, under this theory of Monell liability, “even if a policy can
be inferred from omissions of a municipality, such as where it acquiesces in a
pattern of illegal conduct, such a policy cannot be inferred from the failure of those
in charge to discipline a single police officer for a single incident of illegality”;
instead, there must be “more evidence of supervisory indifference, such as
acquiescence in a prior pattern of conduct.” Turpin, 619 F.2d at 201-02.
In the instant case, construing the evidence most favorably to plaintiffs, (1)
a lieutenant was made aware of Foti sexually assaulting Culoso in or about
January 2010; (2) Atkinson filed a formal complaint regarding Foti’s sexual assault
of her in 2010; (3) at some point prior to September 2011, the sexual harassment
officer (who was a sergeant) was made aware of Foti’s sexual harassment of female
inmates and also knew that Foti’s supervisors “had to correct [his behavior] so
many times it was like being a mother . . . you would be frustrated sometimes and
53 just say, okay, you gotta stop,” Sealed App’x at 106; and (4) after she received that
information, the sexual harassment officer reported some of the alleged
misconduct to her supervisor (a lieutenant) on several occasions. Although there
is some evidence that Foti was confronted about his sexual harassment, Foti
denied that he was ever even approached about inappropriate behavior, and there
is no evidence that the allegations of assaults were ever investigated. Thus, if
plaintiffs’ evidence is credited, it would allow a jury to rationally find that,
notwithstanding the awareness by supervisory personnel of these allegations of a
pattern of misconduct by Foti towards female inmates, no action was taken in
response to any of the inmates’ complaints. See Ricciuti v. N.Y.C. Transit Auth., 941
F.2d 119, 123 (2d Cir. 1991) (concluding that an inference of a municipal policy can
be drawn from circumstantial evidence, including “evidence that the municipality
had notice of but repeatedly failed to make any meaningful investigation” into
allegations of unconstitutional conduct).
On this critical question, the existence of disputed material facts, which are
unsuitable for resolution on summary judgment, is further highlighted by the
evidence in the record of Internal Affairs reports from the 1990s outlining sexual
misconduct and related inappropriate behavior by Foti towards female inmates,
54 both on-duty and off-duty. Thus, given the totality of the evidence in this case, a
jury should decide whether the supervisory personnel with such alleged
knowledge are sufficiently senior, and whether the pattern of unconstitutional
conduct by Foti and alleged inaction by supervisory personnel was sufficiently
persistent and widespread, to allow an inference of policymaker acquiescence that
would trigger Monell liability. 8
Our conclusion on this issue is consistent with our other decisions
addressing analogous factual circumstances. For example, in Matusick, in
upholding a jury verdict, we held that there was a sufficient basis for finding
Monell liability based upon the “pervasiveness of the harassment” and “the lack of
response” from the municipality that could amount to “inaction and acquiescence
to the harassment.” 757 F.3d at 63. In that case, the plaintiff’s complaints of
harassment were not raised with a policymaker, but rather the Coordinator of
Employee Relations and the Director of Human Resources. Id. We concluded that
the latter supervisor’s “high-level position . . . and her failure to address the
harassment supports an inference that [the policymaker whom she reported to]
8 Given this holding, we need not address plaintiffs’ alternative argument that Monell liability can be based upon record evidence that supports a finding that Fisher and Santacroce were policymakers. This of course does not prevent plaintiffs from attempting to establish that proposition in the proceedings on remand. 55 also knew of the harassment and allowed for the conduct to become the accepted
custom or practice of the [municipality].” Id.; accord Doe 1 v. City of Chicago, No. 18
C 3054, 2020 WL 1166222, at *2 (N.D. Ill. Mar. 11, 2020) (noting that, although there
was no evidence that the policymaker was aware of sexual harassment of female
paramedics, evidence of a “widespread practice of sex discrimination” precluded
summary judgment on the Monell claim); DelGadillo v. Town of Cicero, No. 11 C
7342, 2015 WL 1502410, at *8 (N.D. Ill. Mar. 27, 2015) (finding that, although the
plaintiff failed to produce evidence that a policymaker had knowledge of
harassment of a female firefighter, summary judgment was unwarranted on the
Monell claim because of evidence of a “widespread policy or practice of tolerating
discrimination and harassment”); see also Doe C.D. v. Career Tech. Ctr. of Lackawanna
Cnty., No. CV 3:20-0088, 2020 WL 1165837, at *22 (M.D. Pa. Mar. 11, 2020) (denying
motion to dismiss Monell claim where it was alleged that administrators were
aware of a teacher’s “open and widespread sexual abuse and harassment of his
male minor students,” even though there was no allegation of actual knowledge
of abuse by policymakers).
As in Matusick, plaintiffs here have presented evidence that raises genuine
issues of material fact as to whether Suffolk County supervisory officials had
56 knowledge of Foti’s alleged widespread unconstitutional conduct sufficient to
create an official policy or custom of inaction through actual or constructive notice
of (and constructive acquiescence to) that conduct. The district court erred in
concluding otherwise. 9
C. § 1983’s Statute of Limitations and the Continuing Violation Doctrine The district court also held that all of Lucente and Culoso’s claims under
§ 1983, including their claims against individual defendants Foti and Santacroce,
were time-barred. Specifically, the district court concluded that, because the
Monell claim did not survive summary judgment, there was no discriminatory
practice to which the continuing violation doctrine could apply. Moreover, the
district court determined that neither Lucente nor Culoso had alleged any
9 Suffolk County also contends that the lack of evidence of causation supports summary judgment. As an initial matter, Suffolk County failed to raise this causation issue in their summary judgment motion before the district court, and thus may not raise it on appeal. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”). In any event, we find that argument unpersuasive. For purposes of a § 1983 claim under Monell, a plaintiff must demonstrate a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” Canton, 489 U.S. at 385. This standard, which is described later in Canton as a requirement that the municipal policy “actually caused” the constitutional deprivation, id. at 391, supports liability here because there is more than sufficient evidence in the record from which a rational jury could conclude that the alleged failure by Suffolk County to address Foti’s pattern of sexual misconduct towards female inmates was an actual cause of some of Foti’s unconstitutional assaults and harassment of plaintiffs. Accordingly, summary judgment on the causation issue is also unwarranted. 57 unconstitutional act against them that occurred within the applicable limitations
period. Because the continuing violation doctrine can apply to plaintiffs’ claims
and because there is evidence that would allow the jury to conclude that at least
some of Foti’s alleged unconstitutional conduct towards Lucente and Culoso
occurred within the limitations period, summary judgment should not have been
granted on timeliness grounds. 10
The statute of limitations for § 1983 actions arising in New York is three
years. See Owens v. Okure, 488 U.S. 235, 250-51 (1989); Hogan v. Fischer, 738 F.3d
509, 517 (2d Cir. 2013). Here, plaintiffs filed their complaint on March 28, 2013;
therefore, to be timely, Lucente and Culoso’s claims must have accrued on or after
March 28, 2010. However, the threshold question is whether the continuing
violation doctrine can be applied to Lucente’s and Culoso’s claims.
The continuing violation doctrine, where applicable, provides an “exception
to the normal knew-or-should-have-known accrual date.” Harris v. City of New
York, 186 F.3d 243, 248 (2d Cir. 1999). It applies to claims “‘composed of a series
of separate acts that collectively constitute one unlawful . . . practice.’” Washington
v. County of Rockland, 373 F.3d 310, 318 (2d Cir. 2004) (quoting Nat'l R.R. Passenger
10Defendants did not argue in the district court, nor do they argue on appeal, that Viola’s claims were untimely. 58 Corp. v. Morgan, 536 U.S. 101, 111 (2002)). The continuing violation doctrine thus
applies not to discrete unlawful acts, even where those discrete acts are part of
“serial violations,” but to claims that by their nature accrue only after the plaintiff
has been subjected to some threshold amount of mistreatment. Morgan, 536 U.S.
at 114-15. Accordingly, where the continuing violation doctrine applies, the
limitations period begins to run when the defendant has “engaged in enough
activity to make out an actionable . . . claim.” Id. at 117. A claim will be timely,
however, only if the plaintiff “allege[s] . . . some non-time-barred acts”
contributing to the violation. Harris, 186 F.3d at 250. Although the doctrine is
utilized most often in connection with certain Title VII claims, its application is not
limited to that context. This Court, for example, has applied the doctrine to
various constitutional claims brought under § 1983. See, e.g., Fahs Constr. Grp., Inc.
v. Gray, 725 F.3d 289, 291-92 (2d Cir. 2013) (applying doctrine to Equal Protection
claim); see also Sherman v. Town of Chester, 752 F.3d 554, 566-67 (2d Cir. 2014)
(applying doctrine to an unlawful takings claim); Shomo v. City of New York, 579
F.3d 176, 182 (2d Cir. 2009) (applying doctrine to Eighth Amendment deliberate
indifference claim). To trigger the continuing violation doctrine in the context of
an Equal Protection claim, a plaintiff “must allege both the existence of an ongoing
59 policy of discrimination and some non-time-barred acts taken in furtherance of
that policy.” Fahs, 725 F.3d at 292 (internal quotation marks omitted). More
specifically, as it relates to a Monell claim, a plaintiff “will need to allege the
persistence of the municipal policy and non-time-barred acts indicating the
acquiescence of policy-making officials in subordinates’ misconduct.” Shomo, 579
F.3d at 185.
As discussed supra, plaintiffs have presented sufficient evidence to create a
genuine dispute of material fact as to the existence of an ongoing discriminatory
policy by Suffolk County over several years (arguably decades) of ignoring and/or
inadequately addressing Foti’s sexual misconduct with female inmates.
Moreover, there is evidence that Foti’s persistent and widespread misconduct
towards female inmates, as well as Suffolk County’s alleged policy of acquiescence
with respect to that misconduct, continued well after March 28, 2010, and thus
within the three-year statute of limitations period. For example, there is non-time-
barred evidence that Foti sexual assaulted Andes in May or June 2010. Further,
there is evidence within the limitations period that, consistent with Suffolk
County’s alleged policy of acquiescence, Santacroce rejected Andes’s efforts to
report Foti’s ongoing sexual misconduct. See, e.g., Redacted App’x at 151, 194
60 (Andes’s sworn statement that, “a month or two” after Foti assaulted her in May
or June 2010, she tried to report Foti’s misconduct to Santacroce, but was told
“[u]nless [she] was in his office to give him information about drugs being brought
in, he didn’t want to hear anything [she] had to say”). In short, construing the
evidence in the record most favorably to plaintiffs, a rational jury could find, under
the continuing violation doctrine, “the persistence of the municipal policy and
non-time-barred acts indicating the acquiescence of policy-making officials in
subordinates’ misconduct.” Shomo, 579 F.3d at 185.
The continuing violation doctrine can also apply to Lucente’s and Culoso’s
separate § 1983 claims against individual defendants Foti and Santacroce as long
as each plaintiff alleged an unconstitutional act committed by each particular
defendant that falls within the three-year statutory period. See id. at 183 (“The
continuing violation doctrine does not apply to the claim against [the individual
defendant] because there is no indication that [the plaintiff] is able to allege acts
involving [that defendant] that fall within the three-year statutory period.”). On
that issue, we disagree with the district court’s determination that “neither
61 Lucente nor Culoso allege[d] that Foti assaulted them after March 28, 201[0].” 11
Sealed App’x at 251. Culoso testified that Foti sexually harassed and sexually
assaulted her during the course of her incarceration at the Riverhead Facility,
which spanned from August 2009 through December 2010. In her deposition,
Culoso testified that the sexual assault occurred in the law library about two weeks
before she left the Riverhead Facility, and her departure took place in December
2010, which would place this alleged unconstitutional act within the limitations
period. Defendants note that, at other points in her deposition, Culoso testified
that the sexual assault occurred in January 2010. The inconsistencies in the
deposition testimony regarding the date, however, should not be resolved in
defendants’ favor on their summary judgment motion, but rather pose a credibility
issue that should be resolved at trial. See Patrick v. LeFevre, 745 F.2d 153, 160 (2d
Cir. 1984) (concluding that conflicting testimony in a deposition should not be
resolved on summary judgment). In other words, construing the testimony most
favorably to Culoso as we are required to do on a motion for summary judgment,
there exists, at the very least, a genuine dispute of material fact as to whether the
11 The district court opinion included a typographical error, which referenced the commencement of the statute of limitations period as March 28, 2013, but the correct year is 2010. 62 alleged sexual assault occurred within the statute of limitations period. In any
event, separate from the alleged sexual assault, Culoso also testified to persistent
and ongoing sexual harassment by Foti during her time at the Riverhead Facility
until December 2010. Specifically, Culoso testified to Foti’s growling and clawing
at her in a sexual manner each time he saw her during her entire time at the
Riverhead Facility, and that such conduct occurred “all the time.” Sealed App’x
at 182. That ongoing sexual harassment, if proven to have continued into the
limitations period, could also provide a separate basis for a timely claim under the
continuing violation doctrine. Therefore, given these disputed issues of fact,
Culoso’s claims should not have been dismissed as untimely on summary
judgment.
Similarly, the district court should not have dismissed Lucente’s claims as
barred by the statute of limitations. Lucente testified that Foti’s sexual harassment
against her was persistent and ongoing until she left the Riverhead Facility in July
2010. For example, Lucente testified that Foti would open his legs, rub his crotch,
wag his tongue, and growl at her up until the time she left the Riverhead Facility,
and she characterized that conduct as “relentless.” Redacted App’x at 248.
Because Lucente proffered sufficient evidence of sexually harassing acts by Foti
63 that a rational jury could find fell within the statute of limitations period, her
claims against him individually, like the Monell claim, should not have been
dismissed on summary judgment.
In sum, because there is evidence upon which the continuing violation
doctrine can apply as to all of the § 1983 claims in this case, and because there is
evidence of a sexual assault and/or sexual harassment by Foti against Lucente and
Culoso within the limitations period, their claims should not have been dismissed
as untimely on summary judgment, and must proceed to trial. 12
D. The PLRA and Failure to Exhaust on Viola’s Claims
Finally, the district court dismissed Viola’s claims for failure to exhaust
under the PLRA. Although it was undisputed that Viola never filed a grievance,
Viola argues that she satisfied the exhaustion requirement because the
12 Although defendants do not separately argue that the individual claims against Santacroce are untimely, the Court concludes that summary judgment on those claims on timeliness grounds is also unwarranted. As noted above, there is evidence in the record that, during the limitations period, Santacroce furthered Foti’s unconstitutional conduct by, among other things, retaliating against female inmates who complained of sexual harassment by Foti. For example, Atkinson testified that she was told by Santacroce: “If you know what’s best for you, you will keep your f***ing mouth shut.” Sealed App’x at 210. Atkinson testified that this encounter with Santacroce occurred after Foti assaulted Andes, which Andes stated occurred in May or June 2010. Thus, Santacroce’s alleged retaliation against complaining inmates within the limitations period could be found by a jury to have facilitated Foti’s ongoing sexual harassment of Lucente, Culoso, and others and provided a basis for personal liability against him under § 1983. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). 64 administrative process was unavailable to her due to defendants’ intimidation and
retaliation. Given the lack of any evidence that the administrative process was
unavailable to Viola due to threats or any other form of intimidation, we agree
with the district court that the PLRA bars Viola’s claim.
The PLRA was enacted to “curtail what Congress perceived to be inmate
abuses of the judicial process.” Ortiz v. McBride, 380 F.3d 649, 658 (2d Cir. 2004).
The PLRA states that “[n]o 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.” 42 U.S.C. § 1997e(a). The PLRA requires “proper
exhaustion” of administrative remedies, meaning exhaustion in “compliance with
an agency’s deadlines and other critical procedural rules.” Woodford v. Ngo,
548 U.S. 81, 90-91 (2006); see also Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007).
However, prisoners are exempt from the exhaustion requirement when
administrative remedies are “unavailable.” Ross v. Blake, 136 S. Ct. 1850, 1858
(2016). An administrative procedure may be unavailable when (1) “‘it operates as
a simple dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates’”; (2) it is “‘so opaque that it becomes, practically
65 speaking, incapable of use’”; or (3) “‘when prison administrators thwart inmates
from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.’” Williams v. Priatno, 829 F.3d 118, 123-24, 123
n.2 (2d Cir. 2016) (quoting Ross, 136 S. Ct. at 1859-60). We have held that “[t]he
test for deciding whether the ordinary grievance procedures were available must
be an objective one: that is, would a similarly situated individual of ordinary
firmness have deemed them available.” Hemphill v. New York, 380 F.3d 680, 688
(2d Cir. 2004) (internal quotation marks omitted), abrogated on other grounds by Ross,
136 S. Ct. at 1850). On this issue, we have noted that “threats or other intimidation
by prison officials may well deter a prisoner of ‘ordinary firmness’ from filing an
internal grievance, but not from appealing directly to individuals in positions of
greater authority within the prison system, or to external structures of authority
such as state or federal courts.” Id.
We note that, although there is evidence that other plaintiffs faced
retaliation for complaining about Foti’s conduct towards them, there is no
evidence that Viola was ever made aware of any of those instances of alleged
retaliation. Here, Viola has alleged no more than a generalized fear of retaliation
which is insufficient as a matter of law to support a finding that the grievance
66 process was unavailable in order to overcome her failure to exhaust administrative
remedies under the PLRA. Viola asserts that she was afraid to report Foti’s
conduct because of her fear of the ongoing danger of being further sexually
assaulted and sexually harassed by Foti, and because she had learned about the
beating of a female inmate at the Riverhead Facility by at least two corrections
officers. 13 As to the latter concern, Viola stated that, sometime in March 2010, she
learned from several inmates that corrections officers broke that female inmate’s
nose, knocked out her two front teeth, and then attempted to cover up the abuse.
However, neither of those fears related to threats or intimidation in
connection with the grievance process itself. Viola was never threatened, or even
warned, by Foti or anyone else, not to complain or file a grievance, and Viola did
not attempt to report Foti’s misconduct to any official. Foti’s alleged sexual
harassment and sexual assault of Viola, as serious as those allegations are, would
13Suffolk County notes that Viola testified that she was unaware of the grievance process at the Riverhead Facility but that, if she had known about it, she would not have filed a grievance because of fear of retaliation. Suffolk County thus contends that, “[s]ince Viola has admitted that she was unaware of a grievance process at the jail, any claim that she was deterred from filing a grievance based upon a generalized fear is wholly speculative.” Appellees’ Br. at 42. However, because Hemphill utilizes an objective test for determining the availability of the grievance process, and that test is not satisfied here, we need not address this alternative argument that a plaintiff must have been aware of the grievance process in the first place in order to argue that her failure to exhaust that process was due to intimidation. 67 not necessarily alone provide a legal basis to conclude that the entire grievance
process was unavailable to Viola. To hold otherwise would allow any inmate who
was claiming that a prison guard violated § 1983 based upon an act of violence or
other hostile act in the jail to avoid the PLRA exhaustion requirement because of a
generalized fear that any grievance or complaint could lead to more violence by
that guard. Neither the Supreme Court nor this Court has ever interpreted
unavailability of the grievance process to be applied so broadly, and such an
interpretation would thwart the language and purpose of the PLRA. See generally
McBride v. Lopez, 807 F.3d 982, 988 (9th Cir. 2015) (“There is no reason to allow
inmates to avoid filing requirements on the basis of hostile interactions with
guards when the interaction has no apparent relation to the use of the grievance
system. Hostile interaction, even when it includes a threat of violence, does not
necessarily render the grievance system ‘unavailable.’”). In the absence of
evidence that the administrative remedies process is unavailable to inmates, the
PLRA properly incentivizes inmates to seek remediation of their grievances
through the prison system in the first instance, as prison officials are best situated
to efficiently remedy those grievances without the need for protracted litigation.
68 With respect to Viola’s alleged awareness of the attack by corrections
officers on another female inmate, we emphasize that a plaintiff inmate’s
knowledge of threats or violence against another inmate by prison officials could
plausibly constitute intimidation that would satisfy the objective standard where
that conduct was based upon a grievance or complaint raised by that other inmate
or could reasonably be viewed, in light of the full circumstances, as an attempt to
silence that inmate or others. See, e.g., Rodriguez v. County of Los Angeles, 891 F.3d
776, 793 (9th Cir. 2018) (holding that a reasonable fear of retaliation made the
grievance process unavailable where, inter alia, a plaintiff filed a declaration
stating that “he knew from his personal experience that other inmates had been
beaten for filing grievances and that he had heard that anyone who complained
about the beating that occurred during the cell extractions would face retaliation”).
That is not the situation here. Viola has not demonstrated any connection
between the alleged beating of another female inmate and her alleged inability to
report Foti’s conduct. Viola did not contend that the alleged beating of a female
inmate by the corrections officers was done in retaliation for the inmate attempting
to utilize the grievance process or was part of an effort to silence the inmate from
making a complaint of some type; rather, Viola stated in her affidavit that she
69 understood that the inmate was beaten “because she disobeyed their instructions
to go to court.” Redacted App’x at 49, 216. Therefore, that alleged violent act
against another inmate, wholly unrelated to the grievance process or any attempt
to intimidate an inmate from reporting abuse, does not provide grounds for
excusing Viola’s failure to comply with the PLRA’s exhaustion requirement. See,
e.g., McBride, 807 F.3d at 988 (“Although the threat need not explicitly reference
the grievance system in order to deter a reasonable inmate from filing a grievance,
there must be some basis in the record from which the district court could
determine that a reasonable prisoner of ordinary firmness would have understood
the prison official’s actions to threaten retaliation if the prisoner chose to utilize
the prison’s grievance system.” (internal citation omitted)); see also Rinaldi v. United
States, 904 F.3d 257, 267 (3d Cir. 2018) (“We agree that serious threats of substantial
retaliation can trigger this third category of unavailability [under Ross], and thus
join our Sister Circuits who have held, even before Ross, that administrative
remedies are not ‘available’ under the PLRA where a prison official inhibits an
inmate from resorting to them through serious threats of retaliation and bodily
harm.” (citing Hemphill and other cases)).
70 Given that Viola did not point to any evidence of intimidation that would
have deterred a similarly situated individual of ordinary firmness from utilizing
the grievance procedures at the Riverhead Facility, the district court properly
dismissed her claims for failure to exhaust administrative remedies under the
PLRA.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s grant of
summary judgment as to Viola’s claims, but VACATE as to the dismissal of
Lucente and Culoso’s claims against Suffolk County, Santacroce, and Foti, and
REMAND the case to the district court for proceedings consistent with this
Related
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