Federal judge calls for prosecutors to investigate allegations of ‘horrors’ at Albany County’s jail

Enterprise file photo — Michael Koff
A federal judge has called on federal and state prosecutors, including the Albany County District Attorney, to investigate allegations of mistreatment at Albany County’s jail. 

Colleen McMahon, a judge in Manhattan Federal Court, last week allowed a suit brought by four young men, transferred from jail on Rikers Island in New York City to Albany County’s jail while awaiting trial, to proceed.

She has also taken the unusual step of calling on federal and state prosecutors to investigate the suit’s allegations of mistreatment at the county jail.

“The Court is deeply troubled by the allegations,” she wrote, stating that “barbarity of the sort alleged … cannot be tolerated in a civilized society; and when such conduct is alleged, it should be investigated by those responsible for enforcing the criminal law, not just litigated in a civil court.”

The suit was filed in December against the city of New York and workers in its Department of Corrections as well as Albany County and many of its employees and officers, including Sheriff Craig Apple.

“The truth will come out,” Chief Deputy William Rice told The Enterprise this week, “but we have to go through legal channels.”

Rice was responding to calls The Enterprise made to Sheriff Apple. “The county attorney’s office prefers us not to comment at all,” said Rice.

“Have we ever had a lawsuit like this before?” Rice rhetorically asked The Enterprise, noting his frustration in not being able to tell the other side of the story.

He concluded, “We believe the justice system will work.”

The suit alleges that the young men, upon arrival in Albany County, were routinely assaulted, including sexual assault, by prison officers and that they were then forced to live in solitary confinement for months on end.

The judge wrote, near the end of her 82-page decision issued on April 30, that “there is reason to conclude, even at this early stage, that at least some of the horrors that are described in that pleading actually took place.”

The suit, filed on Dec. 28, 2018, describes in detail the experiences alleged by each of the four plaintiffs:

— Davon Washington, 19, an African American living in the Bronx who was released from custody on  Dec. 24, 2018;

— Steven Espinal, 19, a Latino who was, at the time the suit was filed, still in solitary confinement in Albany County’s jail but on April 4 was transferred into state custody;

— “John Doe,” 24, a Latino from the Bronx; and

— Pariis Tillery, 25, an African American in solitary confinement in Albany County’s jail at the time of the suit.

The descriptions are strikingly similar. The young men, none of them convicted of a crime, are taken from Rikers without explanation, with no means of notifying their lawyers or families, and are put in a van with no windows and driven for about three hours to Albany without being told where they are going, the complaint says.

When they arrive, a dozen or so guards in green fatigues, known as the Green Team, put them in cages and “deliver commands that are bizarrely detailed and confusing,” the suit says, and, when the disoriented young men get it wrong, they are punched and kicked. The guards say they are hiding contraband in their bodies and, when they deny it, they are beaten some more, the complaint says, and some are shot with tasers between beatings.

“Guards insert their fingers and batons into the young men’s rectums … The young men lie naked on the floor, crying, pleading, covered in their own urine and feces,” the suit alleges. “There are no rules, no procedures, no laws in this place. The young men are far from their families, far from their lawyers, cut off from the outside world. They fear that they could be killed at any moment and no one would know what happened to them.”

McMahon wrote, “Plaintiffs plausibly plead that a Justice of the New York State Supreme Court directed that Espinal be given medical attention when he was brought to the Bronx from Albany for a court date, and that another Justice of the same court mandated that he be released from punitive segregation. It does not seem to me appropriate that such allegations should remain solely in the purview of civil litigation.”

McMahon then called on federal and state prosecutors, including the Albany County District Attorney, to investigate the allegations of mistreatment.

The Enterprise asked Cecelia Walsh, spokeswoman for Albany County District Attorney David Soares, if the district attorney would be investigating the allegations.

Walsh responded in an email on Wednesday, “I can confirm that we are in receipt of the written decision and that the referral is under review.”

The suit was filed by Katherine Rosenfeld and Douglas E. Lieb of Emery Celli Brinckerhoff & Abady in Manhattan, and by Steven Goldman of Goldman & Associates in the Bronx.

Judge’s decision

The New York City defendants moved to dismiss all of the plaintiffs’ claims, which McMahon denied.

The Albany defendants did not move to dismiss any claims but, rather, moved to sever the claims against them and transfer those claims to the Northern District of New York. The motion to sever was denied without prejudice, meaning without any loss of rights or privileges.

McMahon notes that the suit “alleges a scheme that, while driven by the City Defendants, was implemented by both the City and Albany Defendants. As a result, there are significant overlapping issues of fact (and there, witnesses and evidence) between the claims that warrant keeping them together in one forum in order to promote judicial efficiency and avoid significant prejudice.”

McMahon notes that the suit also alleges New York City is “attempting to circumvent the ban on solitary for pretrial detainees under age 22 by sending ‘undesirable’ young detainees — particularly, but not limited to, those who have been involved in altercations with guards — 160 miles away, to Albany County Correctional Facility … where they are subjected to the harsh punishment of punitive segregation — a punishment that could not be imposed upon them at DOC [Department of Corrections] facilities.”

She also writes, summarizing points made in the suit, “When an inmate is housed in another facility, the original jurisdiction pays the receiving jurisdiction’s expenses of holding the detainee … This can be a lucrative business for jails; in 2013, housing other counties’ detainees on SJOs [substitute jail orders] brought Albany County more than $3 million in revenue.”

Further, defendant Melissa Mylroie, whom the suit alleges, as a nurse at Albany County’s jail, did not give detainees proper medical care, made a motion to sever, which was denied without prejudice. Mylroie argued that jurors would be confused between the claims of deliberate indifference and the constitutionality of the plaintiffs’ transfer, and that her role would be “lost in the weeds” and the factual issues “significantly clouded,” court papers say.

McMahon wrote, “This is not a case where the claims against Mylroie are so unrelated to the claims against the other Defendants to demonstrate that the jury would be significantly confused. Any potential prejudice could be ameliorated by specific instructions to the jury.”

Finally, Espinal made a motion for a preliminary injunction, which was also denied. McMahon explained that Espinal was sentenced on March 27 in his criminal case, after accepting an offer to plead guilty, and was “very quickly” transferred into state custody, on April 4. This made his application for an injunction moot.

Jail policies

The Enterprise filed a Freedom of Information Law request, based on accusations made in the suit, requesting any documents that define policies or instruct employees of the Albany County Correctional Facility on the following topics: Use of tasers; use of pepper spray; rectal insertions or rectal examinations; beatings by correctional officers; solitary confinement; or privacy for inmates’ phone conversations with lawyers.

“Please be aware that any information requested which is not included with this response is not included within any existing general order,” wrote Undersheriff Michael S. Monteleone to Albany County Clerk Bruce A. Hidley in answering the request.

No policy on solitary confinement, also known as punitive segregation, was forthcoming.

Chief Deputy Rice said that the reason the Albany County jail has no policy or procedures for solitary confinement is simple. “We don’t have solitary confinement,” he said.

Policies at the jail, Rice said, are ever-evolving. “Every year, we do a policy review,” he said.

Corrections officers, Rice said, get training at a corrections academy and sheriff’s deputies are trained at a law-enforcement academy.

Rice said of jail employees, “Every one goes through training. Every one is issued policies and procedures.” The documents are fully reviewed, and signed, he said. “It’s all done through the training unit.”

The suit claims that, after an initial assault on arriving in Albany County, Rikers detainees “spend their remaining time at the Albany County Jail in solitary confinement,” each one in a cell that is typically 6 by 8 feet.

“They are in their cells by themselves for a minimum of 23 hours a day, with no meaningful social interaction, environmental stimulation, or human contact,” the suit says; they are offered one hour of “recreation” by themselves in an indoor cage, which most decline “because the cage is functionally indistinguishable from their cells.”

Albany County provided a 16-page document on physical force that says it is to be used “only to maintain the safety, security and good order of the facility.” The policy further states, “All force must be used in accordance with all laws, statues [sic], regulatory guidelines and department regulation as appropriate.”

The policy defines “hard restraints” like handcuffs, leg irons, and belly chains; “soft restraints” like leather belts, wrist and ankle restraints, and the restraint chair; and Conducted Energy Devices, known as CEDs, like tasers, electronic stun shields, and electronic restraint belts.

“Any CED may not be used to punish, discipline, or retaliate against an inmate,” the rules say, naming four “strictly prohibited acts,” such as, “Stunning an inmate after he/she has ceased to offer resistance.” Planned uses of CEDs are to be videotaped.

The policy has a table on the “Use of Force Continuum,” illustrating the “progression of force.” It notes that the goal is de-escalation and that the inmate always determines the level of resistance.

At the bottom of the continuum is an inmate’s verbal or visual resistance for which an officer can respond, for example, with verbal directions. Moving up the continuum, an inmate’s passive resistance may be met with aerosol, soft-hand techniques, escort maneuvers, or CED stun devices.

For active resistance, the response options are the same except soft-hand techniques are replaced with hard-hand techniques. For combative resistance, impact weapons, non-aerosol chemical agents, CED stun devices, and less-than-lethal munitions are to be used.

For destructive or lethal actions by inmates, deadly physical force, firearms, or CED stun devices may be used.

“Give the inmate a chance to comply and de-escalate,” says the policy. “As an officer you are not the aggressor, the inmate is. Only the inmate can escalate the situation, not the staff.”

The policy further states, “Physical force shall require authorization by a supervisor or other competent authority, prior to its being used. The exception is when there is an imminent danger of harm to staff, inmates or the public, or to prevent an escape and the staff member present believes immediate intervention is required to prevent the danger or harm.”

Similarly, the policy says that use of restraints requires authorization by a supervisor and “restraints shall only be authorized to protect staff, the public and/or inmates; to prevent escape, assault and only when all other reasonable methods have failed to gain control of individuals involved.”

All use of restraints is to be temporary and medical staff is to be notified when restraints are anticipated. The application of planned restraints is to be videotaped and restrained inmates are to be monitored with behavior “reevaluated for continuance.”

“When possible, the inmate will be fully clothed upon being placed in the restraint chair,” the policy states, and checked by medical staff. “Use of restraints to control violent inmate behavior is a reportable incident under the NYS Commission of Corrections Minimum Standards,” the rules say.

The second and final document from the FOIL request was a six-page policy on the use of chemical agents; two of those pages were a form to be filled out after incidents where chemicals are used.

The policy states the only chemical to be used at the jail is Oleoresin Capsicum, or OC, which is commonly known as pepper spray. It can be administered in liquid, dust, aerosol, or smoke or gas form and is to be “reasonably applied only when necessary to protect the safety, security and good order of the facility.” Inmates who have been sprayed are to “remain on a constant observation until the completion of the medical assessment.”

No policies on rectal insertions or rectal examinations, or privacy for inmates’ phone conversations with lawyers were forthcoming from Albany County in answer to the FOIL request.

The suit by the Rikers detainees alleges, “Green Team officers sometimes use Tasers against cuffed Rikers detainees, insert their fingers into detainees’ rectums; and even sodomize detainees with foreign objects.”

The suit contains samples of prison write-ups, usually saying Rikers detainees assaulted staff, while, the suit says, hospital medical records tell a different story.

The suit further alleges that, although state law governing jails requires that “all prisoners shall have access to legal counsel,” including telephone communications … that shall not be monitored except visually,” there is “no such thing as a confidential, unrecorded legal telephone call to or from the Albany County Jail.”

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