Claimant's motion for summary judgment on liability denied. Claimant failed to demonstrate that the alleged inmate-on-inmate attack was reasonably foreseeable.
|Claimant short name:||COLEMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||TOWAUN COLEMAN, pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, AAG
|Third-party defendant's attorney:|
|Signature date:||June 24, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries sustained when he was allegedly assaulted by a group of inmates on June 30, 2018. Claimant now moves for summary judgment on liability on the claim. Defendant opposes the motion.
The claim alleges that on June 30, 2018, while claimant was waiting in the recreation yard to re-enter his housing unit, he was putting his shirt back on when he felt someone punch him in the face (see Claim No. 131889, ¶¶ 4-5).(1) The claim alleges that claimant attempted to remove his shirt, which was covering his head, in order to defend himself from the attack, but that he felt "someone grab [his] shirt in an attempt to keep [his] shirt over [his] head," and that claimant felt "an unknown number of individuals cutting . . . the back of his neck and . . . the back of his forearm" (id. at ¶ 5). The claim alleges that there were no correction officers present during the attack, and that when claimant was able to break free and remove the shirt from his head, he observed "inmates standing around looking as if nothing happened" (id. at ¶ 6). The claim alleges that when a correction officer opened the housing block door, he saw that claimant was bleeding and "pulled the pin for the response team to come" (id. at ¶ 7). The claim alleges that the response team pat-frisked claimant and brought him to the "medical treatment center," where it was discovered that he had sustained seven lacerations to his face, back, neck, and left arm (id.). The claim alleges that claimant received twenty-four sutures for his injuries (see id.).
The claim alleges that defendant's agents were negligent in failing to use metal detectors when releasing the inmates for recreation and in failing to be at their posts while inmates were returning from recreation, thus allowing the assault on claimant (see id. at ¶ 8). The claim further alleges that "the lack of security cameras around the facility and the lack of staff break-down in protocol" allowed claimant's attackers to assault him (id. at ¶ 9). The claim alleges that claimant sustained scarring to his face and body, and seeks $800,000 in damages (see id. at ¶¶ 10-11 and Wherefore clause).
In support of his motion for summary judgment, claimant reiterates the allegations as set forth in the claim (see Notice of Summary Judgment, pg. 1; Coleman Affidavit, ¶¶ 2-6), and argues that defendant "does not refute" that claimant was injured during the June 30, 2018 assault or that defendant's agents were negligent in their duties (Notice of Summary Judgment, pp. 1-2). Claimant argues that defendant's agents were negligent in "fail[ing] to provide 'active supervision' " of inmates during recreation, in "fail[ing] to make themselves available to inmates who are being assaulted during the facility's recreational period," and in "failing to give assistance to claimant who was being assaulted during the prison's recreational period," which resulted in claimant sustaining seven lacerations (id. at pg. 2). Thus, claimant argues, "the only genuine issue here . . . is, in regards to the amount of money that should be awarded to claimant for damages, as well as his pain and suffering" (id.).(2)
In opposition, defendant argues that claimant's "conclusory" and "self-serving" affidavit and supporting exhibits are insufficient to meet his burden of demonstrating prima facie entitlement to summary judgment and thus, the burden does not shift to defendant to demonstrate the existence of a material issue of fact (see Rubinstein Affirmation in Opposition, ¶¶ 5-12). Defendant argues that in order to establish that defendant is liable for the assault against him, claimant "must allege and prove that the State knew or should have known that there was a risk of harm to . . . claimant which was reasonably foreseeable and which the State could have prevented" (id. at ¶ 13), and here, "[t]here has been no showing that claimant was known to be at risk either generally (as a disclosed current or former member of a gang, or a victim of same, for example . . . or as a victim of a prior assault), or that his attacker was known for violent propensities" (id. at ¶ 15). Defendant argues that "correction officers assert that they acted within their discretionary authority in determining staffing levels and camera placement," that those "determinations were an exercise of discretion for which . . . defendant may be immune from liability," and that "[d]efendant should therefore have the opportunity to present testimony with regard to, inter alia, its defense that it is immune from liability with regard to its staffing levels and camera usage (or lack thereof)" (id. at ¶ 17). Finally, defendant argues that "there are issues of fact regarding the actual alleged assault and whether the alleged notice claimant has provided to the Court at this procedural juncture is factually sufficient" (id. at ¶ 18).
In reply, claimant argues that the risk of harm to him in the prison recreation yard was foreseeable because the majority of attacks in prisons take place in the recreation yard, and that the fact that correction officers are stationed in the recreation yard shows that the risk of an inmate-on-inmate attack is foreseeable in that location (see Claimant's Reply to Affirmation in Opposition to Motion for Summary Judgment, ¶¶ 5-7).(3)
It is well settled that a "party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 ; see Arias v State of New York, 195 Misc 2d 64, 65 [Ct Cl 2003]). The evidence must be submitted in admissible form and must establish the movant's right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). If the movant establishes prima facie entitlement to summary judgment, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 ). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the burden does not shift to the opponent, and the motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]).
"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252-253 ; see Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). However, "negligence may not be inferred merely because an incident occurred" (Sanchez v State of New York, 36 AD3d 1065, 1066 [3d Dept 2007], lv denied 8 NY3d 815 ; see Vasquez, 68 AD3d at 1275-1276). Rather, in negligence claims against the State for inmate-on-inmate attacks, the scope of the State's duty of care is to provide "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985] [emphasis added]; see Sanchez, 99 NY2d at 253; Dizak v State of New York, 124 AD2d 329, 330 [3d Dept 1986]).
Foreseeability in such cases includes not only what the State actually knew about the risk of an attack on the claimant, but also what it "reasonably should have known - for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez, 99 NY2d at 254 [emphasis in original]; Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). An inmate-on-inmate assault may be foreseeable where defendant knew or reasonably should have known that the claimant's attacker was violent or prone to assaultive behavior (see e.g. Littlejohn v State of New York, 218 AD2d 833, 834-835 [3d Dept 1995]; Colon v State of New York, 209 AD2d 842, 844 [3d Dept 1994]), where the claimant had had previous encounters with his assailant or had known enemies (see Vasquez, 68 AD3d at 185; Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]), or where the area in which the attack took place was "known to be susceptible to inmate-on-inmate attack" (Evans v State of New York, 11 Misc 3d 1065[A], 2006 NY Slip Op 50391[U], *6 [Ct Cl 2006]). Thus, in order to meet his prima facie burden on this summary judgment motion, claimant must demonstrate that the alleged attack on June 30, 2018 was reasonably foreseeable and that defendant was negligent in failing to protect him from that foreseeable attack. Only if claimant makes this prima facie showing will the burden shift to defendant to raise a triable issue of material fact.
In support of his motion for summary judgment, claimant has failed to establish that this inmate-on-inmate attack was reasonably foreseeable. Although claimant alleges that he was attacked by a group of fellow inmates, he states that his shirt was pulled over his head during the assault, and he has not identified any of his attackers, and thus he has not shown that they were prone to violence or had a history of assaulting other inmates. Moreover, claimant has not alleged or established that he had a history with his assailants or that he had enemies within Green Haven CF who may have perpetrated the attack. Although the claim alleges that "most fights, assaults happens [sic] during the recreational go-back" (Claim No. 131889, ¶ 8), and that the majority of attacks take place in the recreation yard (see Claimant's Reply, ¶ 6), claimant has provided no evidence to support those assertions or to establish that such prior assaults put defendant on notice that claimant's assault was reasonably foreseeable. Although claimant has submitted several exhibits in support of this motion, including copies of DOCCS regulations related to supervision of inmates and documentation related to his assault (see Coleman Affidavit, Exhibits A-D), he has failed to offer any evidence on this motion as to the number and type of previous inmate-on-inmate assaults in the recreation yard or their temporal proximity to the attack on claimant (see Vasquez, 68 AD3d at 1276).
Moreover, claimant has failed to establish prima facie that the assault was reasonably foreseeable because correction officers were not at their assigned posts during the alleged assault (see Claim No. 131889, ¶¶ 8-10). In his affidavit in support of the motion for summary judgment, claimant does not assert, as he does in the claim, that correction officers were not at their posts during the alleged assault. Rather, claimant asserts that "[n]o yard officers of the prison/no officers assigned to the prisons [sic] yard, recreational area assisted claimant while he was being assaulted," that they "did [not] call for back up assistance while claimant was being assaulted" or "for medical assistance after claimant had been brutally assaulted," and emphasizes that "[t]he officers assigned to Green Haven [CF] yard/rec area on June 30, 2018 - gave no assistance whatsoever to claimant during nor after he'd been assaulted" (Coleman Affidavit, ¶ 3). Attached to claimant's affidavit are copies of two regulations related to inmate supervision. However, one regulation simply defines the various levels of supervision (see 9 NYCRR § 7003.2), and the other regulation sets forth generally when supervision is required and empowers the chief administrative officer to determine what level of supervision is necessary (see id. § 7003.4). Neither regulation addresses the assignment of correction officers to posts in the recreation yard and, in any event, claimant has proffered no evidence that correction officers were not at their assigned posts at the time of the alleged assault.
Even assuming that claimant had established that the correction officers were not at their assigned posts, "the State's duty to prisoners does not mandate unremitting surveillance in all circumstances" (Sanchez, 99 NY2d at 256), and "[t]he mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence absent a showing that prison officials had notice of a foreseeable dangerous situation" (Evans v State of New York, 11 Misc 3d 1065[A], 2006 NY Slip Op 50391[U], *6 [Ct Cl 2006]). Rather, claimant was required to demonstrate that the correction officers were required by statute, regulation, rule, or policy to be at their posts (see Vasquez, 68 AD3d at 1276), which he has failed to do. Claimant thus has not met his prima facie burden of demonstrating his entitlement to judgment as a matter of law and his motion for summary judgment will be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-95168 is DENIED.
June 24, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 131889, filed August 23, 2018;
2. Verified Answer, filed September 24, 2018;
3. Notice of Summary Judgement, dated December 18, 2019;
4. Affidavit of Towaun Coleman in Support of Summary Judgement, sworn to December 24, 2019, with unenumerated exhibits;
5. Affirmation of Heather R. Rubinstein, AAG, in Opposition to Motion for Summary Judgment, with Exhibits A-C;
6. Correspondence of Towaun Coleman, dated March 15, 2020;
7. Claimant's Reply to Affirmation in Opposition to Motion for Summary Judgment, dated March 15, 2020;
8. Correspondence of Kimberley Broad, Principal Law Clerk, dated June 2, 2020;
9. Correspondence of Kimberley Broad, Principal Law Clerk, dated June 8, 2020.
1. The claim does not identify the correctional facility at which the alleged assault occurred. However, in his notice of motion, claimant states that the assault occurred at Green Haven Correctional Facility (see Notice of Motion, pg. 1). Further, although claimant did not submit a copy of the pleadings with his motion pursuant to CPLR 3212 (b), which would require summary denial of the motion (see Ahern v Shepherd, 89 AD3d 1046, 1047 [2d Dept 2011]), defendant has supplied a copy of the pleadings in opposition to claimant's motion, and thus claimant's omission may be overlooked inasmuch as the record is "sufficiently complete" (Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept 2005], lv denied 5 NY3d 708  [internal quotation marks omitted]).
2. Although claimant has submitted an affidavit in support of his motion, the affidavit merely reiterates the allegations as laid forth in the claim and does not contain any legal argument in support of the instant motion (see Coleman Affidavit in Support of Summary Judgment, sworn to December 24, 2019).
3. Claimant was informed in correspondence from chambers dated June 2, 2020 that he was not entitled to submit a reply to the State's opposition to his motion inasmuch as claimant failed to demand in the notice of motion that defendant's opposition papers be served at least seven days before the motion was returnable, as required by CPLR 2214 (b) (see Broad Correspondence, dated June 2, 2020). In correspondence from chambers dated June 8, 2020, the AAG defending the claim was asked to advise the Court in writing no later than June 15, 2020 whether the State objected to the Court's consideration of claimant's reply papers (see Broad Correspondence, dated June 8, 2020). Having received no reply from the AAG defending the claim, and in the interest of all parties being fully heard, the Court will consider claimant's reply papers.