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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION STUART ELCONIN ROSOFF, Plaintiff,

v.
UNITED STATES OF AMERICA, D. BERKEBILE, R. DELATORRE T. LLOYD, M. MENDOZA, and T. ROBERTS, Defendants.

Civil No. 3:09-CV-2471-0

PLAINTIFF'S SECOND AMENDED COMPLAINT TO THE HONORABLE UNITED STATES DISTRICT COURT: Plaintiff Stuart Elconin Rosoff ("Rosoff') files this Amended Complaint against Defendants United States of America, D. Berkebile, R. Delatorre, T. Lloyd, M. Mendoza, and T. Roberts (collectively "Defendants") and respectfully shows the Court the following: PARTIES 1. Rosoff is a natural person who is currently incarcerated in the Federal

Correctional Institute in Otisville, New York, but at all times relevant to this complaint was incarcerated at the Federal Detention Center in Seagoville, Texas ("FDC Seagoville"), a facility in the Federal Correctional Institution in Seagoville, Texas ("FCI Seagoville") (collectively
"FDCIFCI Seagoville").

2.

Defendant United States of America, which has been served, filed a written

answer, and entered its appearance in this case, administers the federal prison system through the Federal Bureau of Prisons ("BOP"), which operates FDCIFCI Seagoville as a low security prison facility for male inmates.

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3.

Defendant D. Berkebile, who has been served, filed a written answer, and entered

his appearance in this case, is currently the warden at the Federal Correctional Institution in Beckley, West Virginia, but at all times relevant to this complaint was the warden at FDC/FCI Seagoville. 4. Defendant R. Delatorre was an Operations Lieutenant at FDC/FCI Seagoville at

all times relevant to this complaint.

5.

Defendant T. Lloyd was the Captain at FDC/FCI Seagoville at all times relevant

to this complaint. 6. Defendant M. Mendoza, who has been served, filed a written answer, and entered

her appearance in this case, is currently the Associate Warden at the Federal Correctional Institution in Anthony, Texas, but at all times relevant to this complaint was the lail Administrator at FDC Seagoville and the Executive Assistant at FCI Seagoville.
7.

Defendant T. Roberts was an Operations Lieutenant at FDC/FCI Seagoville at all

times relevant to this complaint.

JURISDICTION AND VENUE

8.

The Court has jurisdiction over this action because the claims herein arise under

federal law pursuant to 28 U.S.C. 1346(b) and Bivens v. Six Unknown Named Agents of the

Fed. Bureau ofNarcotics, 403 U.S. 388 (1971).

9. The Court has specific personal jurisdiction over Defendants because Defendants

committed acts and omissions in the state of Texas that give rise to the claims asserted. See

Moncrief Oil int '[ v. OA 0 Gazprom, 481 F.3d 309, 311 (5th Cir. 2007).

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10.

Venue is proper in this Court pursuant to 28 U.S.C. 1391(e) and 1402(b)

because a substantial part of the events and omissions giving rise to the claims against federal officers occurred in Seagoville, Texas, which is located within the Northern District of Texas.

FACTS

11.

While Rosoff was incarcerated at FDC/FCI Seagoville in December 2007,

Rosoff's former counsel suggested in a newspaper article that Rosoff would help the government prosecute other perpetrators. Defendants and/or their agent(s) thereafter informed Rosoff that as a result of these published comments, Rosoff would be given "administrative detention" status and placed in protective custody in a cell by himself in the Special Housing Unit (commonly known as "the Hole"), an area separate from the general inmate population that is reserved for administrative detention inmates. 12. BOP's Institution Supplement for FCI Seagoville mandates that inmates meeting

certain criteria must be placed in single cells when in protective custody. Upon information and belief, Rosoff met these criteria, and thus he was required to be placed in a single cell while in protective custody. Further, upon information and belief: FDC/FCI Seagoville is required to follow a mandatory BOP policy whereby administrative detention inmates in protective custody cannot be housed with inmates who are in administrative detention for other reasons, including but not limited to misconduct or rule violations. This policy is necessary because those in protective custody are known to be a greater risk of attack from fellow inmates, and therefore the placement of an inmate in protective custody in a two-man cell in the Hole with a known violent or disruptive inmate would create an unusually high likelihood of assault against the inmate in protecti ve custody.

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13.

Despite Rosoff's protective custody status and the availability of empty single

cells, Rosoff was placed in a two-man cell in the Hole with Timothy Lee York ("York"), a selfprofessed member of the Aryan Brotherhood and a violent felon serving a 41-year sentence for attempting to destroy a courthouse with a homemade bomb. 14. York had previously caused a disturbance in the prison by shouting racial slurs as

he loudly and conspicuously refused to be placed in a cell with a black inmate. Because he refused to follow orders given by an officer, York was then given administrative detention status for violation of prison rules and assigned to the Hole. 15. When Rosoff was initially placed in the cell with York, York asked Defendants

and/or their agent(s) whether Rosoff was being sent to the Hole for protective custody and was told that Rosoff was not. Upon information and belief, York learned of RosofI's protective custody status from other inmates soon after Rosoff was moved into his cell. 16. A BOP employee interviews and examines all newly-arrived inmates at FDCIFCI

Seagoville to ascertain any gang affiliations or other potential threats to the safety of the inmate population. As a result, upon infonllation and belief, Defendants already knew or should have known at the time of Rosoff's cell assignment that York was affiliated with the Aryan Brotherhood, a white-supremacist gang known for its rabid, unrelenting, and violent hatred of blacks, Jews, and other racial and ethnic minorities. York's gang affiliation was made even more clear by his tattoos depicting Aryan Brotherhood symbols and slogans, at least one of which is a swastika, and by the aforementioned incident in which York's racially-motivated outburst led to his confinement in the Hole.

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17.

Rosoff is Jewish, a fact that Defendants also knew or should have known at the

time of this cell assignment because Rosoff so indicated when asked to specify his religious affiliation upon entering the prison. 18. On December 27, 2007, only a day after Rosoff had been moved into the cell,

York drew a picture of a noose alongside a double lightning bolt-a symbol commonly used by white supremacist and neo-Nazi groups-and left it in the cell where Rosoff would be likely to see it. 19. While Rosoff was sleeping later that night, at approximately 2:00 A.M. on

December 28, 2007, York attempted to kill Rosoff by strangling him with a makeshift rope. Rosoff was eventually able to struggle free, but York then commenced viciously beating Rosoff in the head. By the end of the attack, Rosoff was left with head injuries, a broken nose, and permanent damage to his left eye. As a result of this incident, Rosoff experiences blurry vision, memory loss, emotional distress, sleeplessness, and recurring nightmares continuing up to the present. York has since been indicted on counts of bias-motivated assault and attempted murder in connection with his attack on Rosoff. COUNT I NEGLIGENCE UNDER THE FEDERAL TORT CLAIMS ACT AGAINST THE UNITED STATES OF AMERICA 20. Rosoff adopts and incorporates by reference the allegations set forth in the

Paragraphs 1-19 as though fully set forth herein. 21. The Federal Tort Claims Act ("FTCA") allows that the United States shall be

liable for torts committed by its employees to the same extent as a private individual under like circumstances, provided that the injured party has exhausted all administrative remedies. See 28 U.S.C. 2674.

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22.

Rosoff pursued all available administrative remedies to obtain relief on this claim,

culminating in the timely-filed Administrative Tort Claim TRT-SCR-2009-00310, which was denied by BOP on August 9, 2009. 23. At all times relevant to this complaint, Defendants D. Berkebile, R. Delatorre, T.

Lloyd, M. Mendoza, and T. Roberts were acting within the scope of their employment as employees of the United States under 28 U.S.C. 2675. 24. Under Texas law, which would apply to a private individual under like

circumstances, a defendant is liable for negligence where (1) defendant owed a legal duty to plaintiff, (2) defendant breached that duty, and (3) the breach proximately caused damages to plaintiff. Nabors Drilling, USA., Inc. v. Escoto, 288 S.W.3d 401,404 (Tex. 2009). 25. Defendant United States of America owed Rosoff the duty set forth in 18 U.S.C.

4042(a)(2)-(3), which requires BOP to "provide for the safekeeping, care, and subsistence" and to "provide for the protection ... of all persons charged with or convicted of offenses against the United States." 26. Moreover, Defendant's own policy set forth a general duty to place protective

custody inmates in single cells and a specific non-discretionary duty to avoid placing inmates in protective custody into cells in administrative detention areas with inmates placed into administrative detention for other reasons. 27. While acting in the scope of their employment with BOP, Defendants D.

Berkebile, R. Delatorre, T. Lloyd, M. Mendoza, and T. Roberts placed Rosoff, who was in protective custody, in an isolated cell with York, who was in administrative detention for violation of prison rules, despite their knowledge of two independent reasons that Rosoff was unusually likely to suffer harm as a result: (1) York was affiliated with a gang whose members

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would be particularly inclined toward violence against Jews, and (2) York was a known violent inmate who would be especially inclined toward violence against an inmate in protective custody and in fact had inquired about whether Rosoff was in protective custody. This act is a breach of the statutory duty to provide for the "safekeeping" and "protection" of Rosoff, a breach of the duty to place protective custody inmates in single cells, and a breach of the duty to avoid placing an inmate in protective custody in the same cell with an inmate in administrative detention for other reasons. 28. These breaches were a cause-in-fact of Rosoff's injuries under Texas law, as they

were a substantial factor in bringing about the injuries and the injuries would not have happened absent the breach. Further, the injuries were foreseeable for multiple reasons. First, Defendants knew that York suspected Rosoff's protective custody status and nonetheless ignored a rule that was in place to prevent exactly this source of violence against inmates in protective custody. Second, the propensity of members of certain gangs to attack Jews and other minorities is so widely known and understood that BOP routinely gathers information on gang affiliations in an effort to avoid such violence. 29. As a result of these breaches, Rosoff suffered injuries and seeks actual damages

for physical pain and impairment, mental anguish, disfigurement, and medical expenses. COUNTll VIOLATION OF EIGHTH AMENDMENT UNDER BIVENS AGAINST D. BERKEBILE, R. DELATORRE, T. LLOYD, M. MENDOZA, AND T. ROBERTS 30. Rosoff adopts and incorporates by reference the allegations set forth in Paragraphs

1-29 as though fully set forth herein. 31. Under the Supreme Court's holding in Bivens, a plaintiff whose constitutional

rights have been violated by federal authorities may recover money damages. Bivens, 403 U.S.

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at 397. At all times relevant to this complaint, Defendants D. Berkebile, R. Delatorre, T. Lloyd, M. Mendoza, and T. Roberts acted under color of federal authority. 32. Defendants D. Berkebile, R. Delatorre, T. Lloyd, M. Mendoza, and T. Roberts

violated Rosoff's Eighth Amendment right prohibiting cruel and unusual punishment through their reckless or callous indifference to the federally protected rights of Rosoff and deliberate indifference to a substantial risk of serious harm to Rosoff. Specifically, these Defendants were aU personally involved in the decision to place Rosoff in a cell with York in the Hole, and they were aware of facts from which an inference of excessive risk to Rosoff's health or safety could be drawn. Further, upon information and belief, these Defendants actually knew of and

disregarded the substantial risk to Rosoff's health and safety. See Brown v. Armendariz, No. 3:07-CV-245 1-0, 2009 WL 812156, at *8 (N.D. Tex. Mar. 26, 2009) ("[A] transfer of an inmate into an unsafe environment may state an Eighth Amendment claim against the transferring officer."). Essentially, these Defendants were recklessly or callously indifferent to Rosoff's

federally protected rights and deliberately indifferent to a substantial risk of serious harm to Rosoff. 33. As a result of the Defendants' actions, Rosoff was denied his Eighth Amendment

rights and sutfered damages.

REQUEST FOR RELIEF

WHEREFORE Rosoff respectfully requests that the Court grant the fonowing relief: 1. For Count I, against Defendant United States of America: a. An award of compensatory damages for past and future physical pain, past and future physical impairment, past and future mental anguish, and medical expenses in the amount of $5 million.

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2.

For Count II, against Defendants D. Berkebile, R. Delatorre, T. Lloyd, M.

Mendoza, and T. Roberts: a. An award of compensatory damages for past and future physical pain, past and future physical impairment, past and future mental anguish, and medical expenses in the amount of$5 million. b. 3. 4. An award of punitive damages.

An award of reasonable attorney's fees and costs as allowed by law. An award of such other just and equitable relief as this court deems fit. DEMAND FOR JURY TRIAL

Rosoff demands trial by jury on Count II of this complaint.

Dated: December 13,2010

Respectfully submitted,

AKIN GUMP STRAUSS HAUER & FELD LLP

/s/ Diane P. Couchman Diane P. Couchman State Bar No. 04876000 Britton D. McClung State Bar No. 24060248 Andrew F. Newman State Bar No. 24060331 Jenny M. Walters State Bar No. 24047361 1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201 (214) 969-2800 (214) 969-4343 (fax) ATTORNEYS FOR PLAINTIFF STUART ELCONIN ROSOFF

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff Stuart Rosoff s Second Amended Complaint has been forwarded via regular mail on this the 13 day of December, 2010, to the following counsel of record: D. Shane Read Assistant United States Attorney 1100 Commerce Street, Third Floor Dallas, Texas 75242-1699
ATTORNEY FOR DEFENDANTS

lsi Diane P. Couchman Diane P. Couchman

880530-000 I 200292249

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