GOVERNMENT CONTRACTOR DEFENSE
DISALLOWED IN ASSAULT CASE


 Mark Hamblett
New York Law Journal
12-26-2002
 

A corporation that runs a correctional center for the federal government cannot invoke the government contractor defense in a suit claiming one of its employees sexually assaulted inmates, a U.S. District judge for the Southern District of New York has ruled. 

Judge Sidney H. Stein rejected a motion by Correctional Services Corp. (CSC) to dismiss a lawsuit charging the company was responsible for an employee's sexual assault of four women inmates at the Le Marquis Community Correctional Center in Manhattan. 

In Scainetti v. United States, 01 Civ. 9970, the inmates at the halfway house claimed CSC employee and inmate counselor Miguel Carriera "lured" them into his office and assaulted them on four separate occasions between Nov. 6 and Dec. 28, 1998. 

The company, which was sued for negligence, claimed the government contractor defense, which essentially extends the doctrine of sovereign immunity to private parties that have contracted with the federal government to carry out a project. 

But Judge Stein said that the 2nd U.S. Circuit Court of Appeals, in Malesko v. Correctional Services Corp., 229 F.3d 374 (2000), noted that the defense "only shields a government contractor from claims arising out of its actions where the government has exercised its discretion and judgment in approving precise specifications to which the contractor must adhere." 

And so, Stein said, a contractor can still be found liable where it "exceeded the authority given to it by the federal government," or "where the federal government's authority was not validly conferred." 

While Scainetti and her fellow plaintiffs agreed that the government's authority was "validly conferred" to CSC, they alleged the company failed to "enforce and heed" specifications for inmate safety in community programs that are outlined in the Federal Bureau of Prisons Community Corrections Manual. 

That manual, they said, calls for "supervision and separation by sex to provide privacy and protection" for inmates." 

Judge Stein said the plaintiffs had met the standard to overcome the contractor defense, at least in their pleadings. 

"As CSC is charged with not following 'reasonably precise' federal government specifications, it cannot invoke the government contractor defense to shield itself from liability," he said. 

Stein noted that Le Marquis Community Correctional Center and CSC were also the subject of the Malesko case, which made its way from the 2nd Circuit to the U.S. Supreme Court. 

Malesko involved a federal offender with a heart condition who claimed his constitutional rights were violated when he was forced to take the stairs to his fifth-floor room, suffered a heart attack, and fell. 

In 2001, the Supreme Court ruled in Malesko that companies operating federal prisons, unlike state prisons, cannot be sued for violating the constitutional rights of inmates. 

That issue was not implicated in Scainetti, Judge Stein said, because the plaintiffs did not allege constitutional violations. 

But Stein noted that the Supreme Court said the heart attack victim in Malesko "could have filed a state tort claim," because his complaint "arguably alleged no more than a quintessential claim of negligence." 

Given that language in Malesko, Stein said, the plaintiffs' case in Scainetti could proceed on a theory of "ordinary negligence."


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