The Second Circuit appeals panel sent the case back to U.S. District Court in Manhattan to try to determine if the case should proceed as a class-action suit on behalf of some 2,200 current prisoners, as well as future female inmates, and whether better protective measures should be required.
The Second Circuit panel concluded U.S. District Judge Kevin Duffy was wrong to dismiss the claims of women who have already been released from prison. The panel said Duffy properly dismissed claims of those who had not exhausted internal grievance procedures.
The three-judge panel cited at least three ex-inmates who still have status to sue and challenge prison policy on behalf of the group.
Spokeswoman Linda Foglia said the Department of Correctional Services doesn't comment on pending litigation.
The Legal Aid Society's Dori Lewis, lead attorney in the suit originally filed in 2003, said the other 10 women could still be witnesses about what happened to them.
"We'll probably need to show this is a current and ongoing problem," Lewis said.
Lewis said a guard at the Taconic Correctional Facility in Westchester County is charged again with raping an inmate, after he was acquitted of similar charges in 2003 but continued supervising female prisoners. One of the problems with the existing internal grievance procedure is that cases get referred to the inspector general, where physical proof is required, which she called an unrealistically high threshold.
Frederick Brenyah, who pleaded not guilty to the recent rape charge, has been suspended from his prison job since his arrest last September, Foglia said. Correction officials tried to fire him after his 2003 acquittal but an arbitrator returned him to work pursuant to his union contract, she said.