ENEWSLETTER: September 2016

Civil Rights and Personal Injury and General Practice Law Firm, Dedicated to Social Justice

The Law Offices of Frederick K. Brewington is a well-respected litigation firm with an office in Hempstead, Long Island. Our focus is primarily in the area of civil rights, voting rights, employment discrimination, police misconduct, personal injury, medical malpractice, wrongful death and criminal law. However, the Law Offices of Frederick K. Brewington is a full- service law firm handling matters in numerous areas of law and providing a wide range of services from contract formation to litigation and trial practice.

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An Update on Bautista v. City of New York: City of New York’s Attempt to Avoid Municipal Liability Thwarted

On August 18, 2016, Judge Alvin K. Hellerstein issued an ORDER granting in part and denying in part the City of New York’s Motion for Partial Summary Judgment. The Court ruled that Defendants’ motion to dismiss the Monell claim is denied. Plaintiff's allegations and proofs show that defendants Bergdall and Finkel, as Deputy Commissioners, were sufficiently involved in policy and supervision over corrections personnel as to satisfy Monell.

This is a §1983 action alleging use of excessive and unreasonable force, denial of proper medical treatment, assault, and battery which took place at Rikers Island. This matter arises from an incident which began at or about 6 p.m. on the 9th day of January 2013 at the residence of Mr. Jose Bautista in the City and State of New York, County of Kings. At approximately 6:00 in the evening, New York City Police Officer Andrew J. Minella, Shield No. 7463 of the 290 Command, and other officer(s) arrested plaintiff Bautista at his residence. Plaintiff was transported to the 70th Precinct in the County of Kings, and charged with crimes including Assault in the Third Degree, Menacing in the Third Degree and Harassment in the Second Degree.

Mr. Bautista was transported from the 70th Precinct to Brooklyn Central Booking and was thereafter arraigned on the aforementioned charges before a Judge of the Criminal Court of the City of New York, County of Kings, on January 10, 2013. The condition for release from custody set by Judge Antignani on that date was either two hundred and fifty dollars ($250) cash or insurance bond; Mr. Bautista was unable to post bail at arraignment and he was taken into the custody of the New York City Department of Correction following his arraignment.

Mr. Bautista was transported from the Criminal Court of the City of New York, County of Kings, located at 120 Schermerhorn Street to Rikers Island Correctional Facility and jailed at Otis Bantum Correctional Center ("OBCC"), which is one of the jails at Rikers Island. He was placed in a cell at OBCC in a location known as R/R Pen 7, along with other detained persons. Mr. Bautista was in fear of the incarcerated persons with whom he shared the cell at OBCC and notified a correctional officer that he wanted to be moved from the cell because he believed he would be attacked by other incarcerated persons in his cell; plaintiff Bautista was not moved from the cell.

While in the cell at OBCC, Mr. Bautista attempted suicide by hanging himself. The plaintiff made two attempts to hang himself; his first attempt was unsuccessful because the makeshift noose did not successfully hold to the location where plaintiff tied or attached it. Mr. Bautista’s second suicide attempt by hanging was interrupted by the intervention of one or more inmates in his cell. While plaintiff was hanging from a makeshift noose, he was held up by an inmate or inmates who prevented his strangulation and called out loud for help.

OBCC had video cameras which recorded the vicinity of the cell where Mr. Bautista was housed and where he attempted to hang himself on each occasion. Correction officers were either not monitoring the camera feed or were monitoring the feed, but chose not to come to the aid and assistance of Mr. Bautista until inmates in the cell yelled for help. The New York City Department of Correction and individually named defendants failed to adequately monitor the cell, and failed to respond to the location where Mr. Bautista was before and during his attempted suicide by hanging; although the location was monitored by video cameras which recorded the vicinity of the cell when plaintiff made two suicide attempts, there was no response from the correction officers until the inmates called for them.

The individually named correction officers responded to the cell and cut or removed the makeshift noose while failing to hold or support the plaintiff, so as to prevent his fall when the makeshift noose was removed from the bar or location to which it had been attached and/or from the neck of the plaintiff. Multiple individually named correction officer defendants proceeded to assault the plaintiff after he struck the ground; Mr. Bautista was beaten about the abdomen and his face, testicles, legs, back, ankles, hands, upper and lower torso and upper and lower extremities by fists, elbows and knees.

The City moved by Motion seeking partial Summary Judgment as to the liability of the City. That motion was defeated and the Court denied the City’s attempt to separate the case dealing with the systemic failures at Rikers Island.

Mr. Brewington is working this case with co-counsel Paul Layton, Esq. of Manhattan.

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