united states district court eastern district of new … answer 2.pdf · eastern district of new...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x EHAB ELMAGHRABY and JAVAID IQBAL, Civil Action No. CV-04-1809 Gleeson, J. Plaintiffs, Azrack, J. -against- ANSWER TO AMENDED COMPLAINTJOHN ASHCROFT, Attorney General of the United States; KATHLEEN HAWK SAWYER, former Director of the Federal Bureau of Prisons; DENNIS HASTY, former Warden of the Metropolitan Detention Center; LINDA THOMAS, former Associate Warden of Programs of the Metropolitan Detention Center; LIEUTENANT BUCK, LIEUTENANT CUSH; LIEUTENANT GUSS; LIEUTENANT ORTIZ; LIEUTENANT PEREZ; LIEUTENANT BIRAR; UNIT MANAGER SHACK; CORRECTIONS OFFICER ROBINSON; COUNSELOR COTTON; CORRECTIONS OFFICER HOSAIN; CORRECTIONS OFFICER TORRES; DR. LORENZO; and “JOHN DOE” CORRECTIONS OFFICERS NOS. 1-32, “John Doe” being fictional first and last names, Defendants. ------------------------------------------------------------x Defendant, Steven Barrere, (referred to herein as “Barrere”), by his attorneys, Cullen and

Dykman Bleakley Platt LLP, as and for his answer to the Amended Complaint, sets forth the

following:

1. Admits that plaintiffs were detained at the Metropolitan Detention Center

(“MDC”) and housed in the MDC’s Administrative Maximum (“ADMAX”) Special Housing

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Case 1:04-cv-01809-JG-SMG Document 54 Filed 11/05/04 of 36 PageID #: 273

Unit (“SHU”) and except as so admitted denies the remaining allegations contained in paragraph

1 of the Amended Complaint.

2. Denies the allegations contained in paragraph 2 of the Amended Complaint and

refers all questions of law to the Court at the trial of this action.



4. Denies the allegations in paragraph 4 of the Amended Complaint.







8. Denies knowledge or information sufficient to form a belief as to the allegations

contained in paragraph 8 of the Amended Complaint that plaintiff Elmaghraby is a native and

citizen of Egypt where he currently resides and admits that Elmaghraby was detained in the

MDC, and except as so admitted, denies the remaining allegations in paragraph 8 of the

Amended Complaint.


in paragraph 9 of the Amended Complaint that plaintiff Iqbal is a native and citizen of Pakistan,

where he currently resides and admits that Iqbal was detained in the MDC, and except as so

admitted, denies knowledge or information sufficient to form a belief as to the remaining

allegations in paragraph 9 of the Amended Complaint.

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contained in paragraph 10 of the Amended Complaint.





















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22. Admits that Lieutenant Steven Barrere is and was at the times set forth in the

Amended Complaint employed as a federal corrections officer at MDC and except as so admitted

denies the remaining allegations in paragraph 22 of the Amended Complaint.



















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46. Denies the allegations contained in paragraph 46 of the Amended Complaint

insofar as they refer to Barrere and except as so denied, Barrere denies knowledge or information

sufficient to form a belief as to the remaining allegations in paragraph 46 of the Amended

Complaint and refers all questions of law to the court at the trial of this action.

ANSWERS TO GENERAL BACKGROUND













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54. Admits that the ADMAX-SHU is on the ninth floor of the MDC and except as so

admitted denies knowledge or information sufficient to form a belief as to the remaining

allegations of paragraph 54 of the Amended Complaint.









59. Admits that the BOP established regulations and procedures for the MDC, and

except as so admitted, denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph 59 of the Amended Complaint.

60. Admits that the BOP established regulations and procedures for the MDC and






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62. Denies the allegations in paragraph 62 of the Amended Complaint insofar as they

refer to Barrere and except as so denied, Barrere denies knowledge or information sufficient to

form a belief as to the remaining allegations in paragraph 62 of the Amended Complaint.





















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ANSWER TO “CRUEL AND INHUMAN CONDITIONS OF CONFINEMENT IN THE ADMAX SHU”



78. Admits that plaintiff Ehab Elmaghraby was housed in the ADMAX-SHU at MDC

and except as so admitted, denies knowledge or information sufficient to form a belief as to the

remaining allegations contained in paragraph 78 of the Amended Complaint.







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82. Denies the allegations contained in paragraph 82 of the Amended Complaint.



insofar as “MDC Staff” refers to Barrere and except as so denied, Barrere denies knowledge or

information sufficient to form a belief as to the remaining allegations in paragraph 84 of the

Amended Complaint.




Complaint.




Complaint.


insofar as “MDC staff” refers to Barrere and except as so denied, Barrere denies knowledge or


Amended Complaint.




Complaint.

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insofar as “MDC officers” refers to Barrere and except as so denied, Barrere denies knowledge

or information sufficient to form a belief as to the remaining allegations in paragraph 89 of the

Amended Complaint.




Amended Complaint.




Complaint.

92. Denies the allegations contained in paragraph 92of the Amended Complaint.











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ANSWER TO “USE OF EXCESSIVE FORCE ON EHAB ELMAGHRABY”



sufficient to form a belief as to the allegations in paragraph 100 of the Amended Complaint.





insofar as “officers” refers to Barrere and except as so denied, Barrere denies knowledge or

information sufficient to form a belief as to the allegations in paragraph 102 of the Amended

Complaint.












Complaint.

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Complaint.




Complaint.




ANSWER TO “USE OF EXCESSIVE FORCE ON JAVAID IQBAL”










116. Denies the allegations contained in paragraph 116 of the Amended Compllaint

insofar as the “officers” refers to Barrere and except as so denied, Barrere denies knowledge or

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information sufficient to form a belief as to the remaining allegations contained in paragraph 116

of the Amended Complaint.








insofar as the “officers” refers to Barrere and except as so denied, Barrere denies knowledge or


Amended Complaint.








Complaint.



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Complaint.




ANSWER TO “STRIP AND BODY CAVITY SEARCHES OF MR. ELMAGHRABY"










ANSWER TO “STRIP AND BODY CAVITY SEARCHES OF MR. JAVAID IQBAL"




Complaint.


insofar as “MDC corrections officers” refers to Barrere and except as so denied, Barrere denies

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knowledge or information sufficient to form a belief as to the remaining allegations in paragraph





Complaint.




Complaint.




Amended Complaint.




Complaint.


in paragraph 142 of the Amended Complaint.


insofar as “several other MDC officers” refers to Barrere and except as so denied, Barrere denies

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knowledge or information sufficient to form a belief as to the remaining allegations in paragraph



insofar as “the officers” refers to Barrere and except as so denied, Barrere denies knowledge or


Amended Complaint.


insofar as “the officers” refers to Barrere and except as so denied, Barrere denies knowledge or


Amended Complaint.




Complaint.




Complaint.




Complaint.

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Complaint.




Complaint.




Complaint.




Complaint.

ANSWER TO “INTERFERENCE WITH RELIGIOUS PRACTICE”




Complaint.



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insofar as “MDC staff” refers to Barrere and except as so denied, Barrere denies knowledge or


Amended Complaint.




ANSWER TO "INTERFERENCE WITH RIGHT TO COUNSEL"









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Complaint




Complaint

172. Denies the allegations contained in paragraph in paragraph 172 of the Amended

Complaint.









ANSWER TO "DELIBERATE INDIFERENCE TO SERIOUS MEDICAL NEEDS"

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insofar as they relate to Barrere, and except as so denied, denies knowledge or information

sufficient to form a belief as to the allegations contained in paragraph 179 of the Amended

Complaint.



















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ANSWER TO "GENERAL ALLEGATIONS"








ANSWER TO FIRST CAUSE OF ACTION

201. Defendant repeats his answers to the allegations contained in paragraphs

numbered 1 through 200 as if fully set forth herein.

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ANSWER TO SECOND CAUSE OF ACTION




contained in paragraph 205 of the Amended Complaint and refers all questions of law to the

Court at the trial of this action.



ANSWER TO THIRD CAUSE OF ACTION






ANSWER TO FOURTH CAUSE OF ACTION



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ANSWER TO FIFTH CAUSE OF ACTION




in paragraph number 214 of the Amended Complaint.



ANSWER TO SIXTH CAUSE OF ACTION




in paragraph number 217 of the Amended Complaint and refers all questions of law to the Court

at the trial of this action.

218. Denies knowledge or information sufficient to from a belief as to the allegations


ANSWER TO SEVENTH CAUSE OF ACTION

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in paragraph 220 of the Amended Complaint and refers all questions of law to the Court at the

trial of this action.



ANSWER TO EIGHTH CAUSE OF ACTION


numbered 1 through 221 of the Amended Complaint as if fully set forth herein.




ANSWER TO NINTH CAUSE OF ACTION


numbered 1 through 224 of the Amended Complaint.



ANSWER TO TENTH CAUSE OF ACTION

228. Defendant repeats his answers to the allegations contained in paragraphs 1

through 227 as if fully set forth herein.

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ANSWER TO ELEVENTH CAUSE OF ACTION






ANSWER TO TWELFTH CAUSE OF ACTION






ANSWER TO THIRTEENTH CAUSE OF ACTION






ANSWER TO FOURTEENTH CAUSE OF ACTION

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ANSWER TO FIFTEENTH CAUSE OF ACTION






ANSWER TO SIXTEENTH CAUSE OF ACTION




refers all questions fo law to the Court at the trial of this action.


ANSWER TO SEVENTEENTH CAUSE OF ACTION



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ANSWER TO EIGHTEENTH CAUSE OF ACTION




refers all questions of law to the Court at the trial of this action..





contained in paragraph 256 of the Amended Complaint and refers all questions of law to the



ANSWER TO NINETEENTH CAUSE OF ACTION







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ANSWER TO TWENTIETH CAUSE OF ACTION








sufficient to form a belief as to the remaining allegations and refers all questions of law to the


ANSWER TO TWENTY-FIRST CAUSE OF ACTION








sufficient to form a belief as to the remaining allegations and refers all questions of law to the



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AFFIRMATIVE DEFENSES

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

271. Plaintiffs have failed to state a claim upon which relief may be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

272. Plaintiffs’ claims are barred by the applicable statute of limitations.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

273. This Court lacks subject matter jurisdiction over all or some of the claims in this

action.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

274. Plaintiffs’ claims are barred by the doctrines of waiver, estoppel and laches.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

275. Plaintiffs lack standing to sue.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

276. Plaintiffs may not maintain all or part of the claims of this action based on the

doctrine of sovereign immunity.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE

277. This Court lacks subject matter jurisdiction under the Alien Tort Claims Act.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE

278. Plaintiffs are not entitled to a jury trial on all or some of the claims herein.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

279. Plaintiffs failed to comply with the jurisdictional prerequisites required to

maintain this action.

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AS AND FOR A TENTH AFFIRMATIVE DEFENSE

280. Defendant Barrere’s actions alleged in the Amended Complaint are protected

under the qualified immunity doctrine.

AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE

281. Defendant Barrere’s actions alleged in the Amended Complaint are protected

under the doctrine of absolute immunity.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE

282. Plaintiffs may not maintain this action due to their failure to exhaust their

administrative remedies.

AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE

283. At all times alleged in the Amended Complaint, Defendant Barrere was acting

pursuant to established policies, regulations and procedures established by his employer.

AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE

284. All of Defendant Barrere’s actions alleged in the Amended Complaint were

reasonably related to the BOP’s/MDC’s interest in maintaining jail security.

AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE

285. Insofar as the allegations against Defendant Barrere, plaintiffs had no right to

counsel during the times alleged in the Amended Complaint.

AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE

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286. Plaintiffs’ claims against Barrere are barred by the Liability Reform Act (28 USC

§2679).

AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE

287. Plaintiffs’ detention was objectively reasonable.

AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE

288. Plaintiffs’ claims are barred since maintenance of safety or order in the prison

context is a compelling governmental interest.

AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE

289. Plaintiffs may not maintain this action since they failed to invoke the procedures

for religious accommodation.

AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE

290. Plaintiffs’ action is barred on the grounds that they are parties to an action that

was instituted prior to the instant action and seeks the same relief sought therein.

AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE

291. Prison regulations do not create a clearly established right that was violated by

defendant Barrere.

AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE

292. Confinement to the SHU does not itself violate plaintiffs’ due process rights.

AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE

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293. The complaint fails to allege a clearly established Fourth Amendment right that

was violated by defendant Barrere.

AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE

294. The complaint does not state a violation of the First Amendment.

AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE

295. The complaint failed to sufficiently allege that Barrere had discriminatory

purpose.

AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE

296. The RFRA is unconstitutional and cannot be the basis of a clearly established

right.

AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE

297. An action pursuant to 42 U.S.C. §1985(3) is barred against federal officials acting

in their official capacities, including Barrere, sued in their individual capacities.

AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE

298. This court lacks subject matter jurisdiction over the “customary international law”

claims.

AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE

299. Plaintiff’s tort claims are barred by the Federal Tort Claims Act.

Dated: Garden City, New York November 5, 2004 CULLEN AND DYKMAN BLEAKLEY PLATT LLP

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By: /s/ James G. Ryan_________________ James G. Ryan (JR-9446) Attorneys for Defendant, Steven Barrere 100 Quentin Roosevelt Boulevard Garden City, New York 11530 (516) 357-3700 TO: Koob & Magoolaghan Alexander A. Reinert (AR-1740) Attorneys for Plaintiffs South Street Seaport 19 Fulton Street, Suite 408 New York, New York 10038

[email protected] Haeyoung Yoon (HY-8962) Attorneys for Plaintiffs Urban Justice Center 666 Broadway, 10th Floor New York, New York 10012

[email protected] Brian D. Miller Larry L. Gregg Richard W. Spoonseller Office of the U.S. Attorney Attorneys for Defendant John Ashcroft Civil Division 2100 Jamieson Avenue Alexandria, VA 22314

[email protected]

Mark E. Nagle John Julian Vecchione Sheppard Mullin Richter & Hampton LLP Attorneys for Defendant Kathleen Hawk Sawyer 1300 I St. NW, 11th Floor Washington, DC 20005

[email protected]

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F. Ryan Keith Crowell & Moring LLP Attorneys for Defendant Dennis Hasty 1001 Pennsylvania Avenue, NW Washington, DC 20004-2595

[email protected] Allan Taffet Duval & Stachenfeld LLP Attorneys for Defendant Michael Zenk 300 East 42nd Street, 3d Floor New York, NY 10017

[email protected] Barry M. Lasky Lasky & Steinberg PC Attorneys for Defendant Clemett Shacks 595 Stewart Avenue, Suite 410 Garden City, NY 11530

[email protected] Nicholas Gregory Kaizer Law Offices of Richard Ware Levitt Attorneys for Defendant Raymond Cotton 148 East 78th Street New York, NY 10021

[email protected] Raymond Granger Attorney for Defendant Elizabeth Torres 757 Third Avenue, 7th Floor New York, NY 10007

[email protected] James Matthews Matthews & Matthews Attorneys for Defendant Mundo 191 New York Avenue Huntington, NY 11743

[email protected]

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