The Rikers Island complex consists of ten jails.
The Rikers Island complex consists of ten jails. (Tim Bodenberg/Flickr CC)

Attorneys seeking to win class certification for female prisoners who have been or fear being raped or sexually abused by corrections officers at Rikers Island have turned to a federal appeals court.

Plaintiffs lawyers have asked the U.S. Court of Appeals for the Second Circuit to overturn a lower court’s Jan. 4 decision denying certification, insisting the rape and sexual abuse of women by corrections officers at the Rose M. Singer Center at Rikers are best handled on a class-wide basis.

The lawsuit, Doe v. City of New York, 15 Civ. 3849, alleges unconstitutional conditions of confinement and seeks individual damages for the name plaintiffs, two women who were allegedly raped by Corrections Officer Benny Santiago. They are also seeking class-wide injunctive and declaratory relief on behalf of possible sexual assault victims among the more than 6,000 women who pass through the Singer Center every year.

One of the allegations made in the suit is that, contrary to state law, male officers have been supervising female prisoners without the presence of a matron. The city counters that under the law, a female inmate and male officer cannot be alone together, however, male officers may supervise groups of female inmates.

Part of the relief the plaintiffs are seeking is correcting deficiencies in the assignment and supervision of officers who conduct unannounced supervisory rounds, and a lack of monitoring by those up the chain of command.

Attorneys from Cleary Gottlieb Steen & Hamilton and the Legal Aid Society argued for class certification from Southern District Judge Alvin Hellerstein at a hearing on Jan. 4.

According to a transcript of the hearing, Cleary Gottleib associate Danielle Mindlin said “court oversight here is extremely important,” and urged Hellerstein to certify a class of “all women who were or will be subjected to sexual abuse.”

Hellerstein was skeptical because of a potential conflict between the injunctive remedies being sought for the class and the ability of other victims to sue for damages.

Assistant Corporation Counsel Kimberly Joyce told Hellerstein that deficiencies in hiring, training and supervision were already being addressed as part of the consent decree the city recently signed dealing with excessive force at Rikers in Nunez v. City of New York, 11 civ. 5845.

But Hellerstein said, “I think the women who are claiming rape have a unique grievance that needs to be uniquely addressed,” so their case was different than Nunez.

One factor the judge considered was whether the proposed class was large enough to warrant certification. Joyce argued that the “numerosity” requirement was lacking.

The city was working off the number of 40 women who had made complaints, but said those complaints ranged from the rape of Jane Does 1 and 2, to allegations of inappropriate touching, many of which, Joyce, said, have been disproved by video surveillance.

Hellerstein said numerosity was not the issue, as the “real concern is adequacy of representation and typicality and the relationship between a class action here and the existence of causes of action for money damages.”

The judge denied the plaintiffs’ motion with “substantial misgivings,” in part because the constant turnover in the population would make it difficult to determine who is in the class and who is out, and the preclusion of class members from seeking money damages.

“The prospect of being unable to sue for money damages because they’re already in a class … is a daunting prospect, and potentially highly prejudicial to them,” he said. “They have to give up the right in order to become part of the class, and then what happens if they lose? Do they have no ability to sue for their money damages, even when they were raped in the prison system?”

In a Jan. 5 order, the judge reiterated that proceeding as a class action “will delay the adjudication of the serious and troubling allegations” made by the Jane Does and could preclude “unidentifiable future victims” from suing their attackers and the city.

At the circuit, the plaintiffs have the backing of New York City Public Advocate Letitia James and members of the New York City Council, who submitted an amicus brief in favor of certification through Deputy General Counsel Amanda Masters.

Masters wrote that “damages claims do not preclude Jane Doe 1 and 2 from being adequate class representatives” and “courts should not construe rape as such a special type of assault that cannot be systematically addressed.”

Mindlin said Thursday the plaintiffs must still win leave to appeal from the circuit.

“Women in city custody at Rose M. Singer Center should not be subjected to the constant threat of rape and sexual abuse as they are now,” she said, adding that “a class action would address the problems at the Rose M. Singer Center on a systemic basis and could led to important reforms that would benefit all of the women” detained there.

Mindlin was joined by Mitchell Lowenthal, senior counsel at Cleary Gottlieb.

William Gibney, Barbara Hamilton and Marlen Bodden appeared for the Legal Aid Society.

Joyce was joined by Assistant Corporation Counsel Arthur Larkin in representing the city. Assistant Corporation Counsel Fay Sue Ng represents the city at the circuit, where the case is Doe v. City of New York, 16-173-cv.

Julie Ortiz of Koehler & Isaacs represents Santiago.