Whistle-Blower’s Censure Supports Prison Suit

     MANHATTAN (CN) – A tax fraudster can advance claims that he was punished in prison for telling his lawyer that a guard had sexually harassed him, a federal judge ruled.
     Alvaro Garcia spent 30 months in prison after pleading guilty in late 2006 to conspiring to defraud the Internal Revenue Service.
     After his transfer to Manhattan’s Metropolitan Correctional Center, he claims that he was repeatedly groped, fondled and sexually harassed by corrections officer Joel Rodriguez.
     He filed multiple grievances complaining that Rodriguez had rubbed his penis against his buttocks.
     “The plaintiff jumped away in surprise, then the defendant grabbed the plaintiff’s hips, and forcibly pulled the plaintiff toward his penis and rubbed against the plaintiff’s buttocks,” according to the 34-page complaint Garcia wrote about his alleged attack.
     Rather than stop the alleged incidents, other prison officials allegedly goaded Rodriguez and threw Garcia in a cell spattered with blood and feces for four days, according to the complaint.
     The initial pro se complaint listed 24 people and entities affiliated with the MCC as defendants and charged various constitutional violations.
     Rodriguez eventually retained a lawyer, but in 2009 a federal judge nixed most of the suit, including Eighth Amendment claims against Rodriguez.
     The order clearing Rodriguez found that the allegations against him did not rise to the level of cruel and unusual punishment, but could sustain a state court lawsuit.
     No such case appears on the New York County Supreme Court database, and Garcia’s lawyer has not immediately responded to a question about whether he has considered pursuing that option.
     On Friday, the final two defendants, prison teacher Laticia Hicks and caseworker Hector Suarez, failed to secure summary judgment against the remaining claims, which allege that they tried to muzzle Garcia.
     Hicks had been Garcia’s computer teacher at MCC, and Garcia said he had been using the software during practice time to write his lawyers about alleged run-ins with Rodriguez.
     Hicks allegedly stood behind Garcia as he wrote the letter and ordered him to shut it down, ostensibly for using Microsoft Word when he should have been practicing Excel.
     Garcia said he was taken the next day to the office of case manager Suarez.
     Inside, Suarez allegedly cursed at Garcia for writing his attorney, called him “crazy,” brushed off the allegations as “BS” and said he was going to “take care of business.”
     Suarez allegedly never said anything about him using the wrong software during this encounter.
     That same day, Suarez conducted a Unit Disciplinary Committee hearing at the prison and found Garcia guilty of “Using any Equipment or Machinery Contrary to Instructions or Posted Safety Standards.”
     “The punishment for this prohibited act was 90 days loss of commissary, 60 days loss of phone privileges suspended 180 days pending clear conduct, and transfer to Unit 5 North for 90 days,” U.S. Magistrate Judge Henry Pitman wrote.
     Garcia said that Unit 5 North was typically reserved for alleged murderers with an enhanced flight risk, and that he had to seek counseling after his stay there because other inmates regularly threatened him with violence.
     To toss the case, the two prison officials claimed that the case against them rested on the “speculation” that Hicks read the letter on Garcia’s screen.
     Pittman nevertheless concluded that Garcia’s incident report, “in which Hicks clearly states that she witnessed plaintiff ‘preparing a letter,'” belies these assertions.
     Garcia showed he had a “clean disciplinary record prior to the incident at issue,” and that prison officials failed in deposition to cite “any other instances of prisoners being disciplined for similar conduct,” the 20-page opinion states.
     A Justice Department lawyer declined to comment.

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