Following Trial, pro se Claimant's Claim alleging the State was negligent for allowing him to be assaulted by a fellow inmate dismissed.
|Claimant(s):||MONIE JACKSON, DIN#: 99-A-1122|
|Claimant short name:||JACKSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Monie Jackson, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Christina Calabrese, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||November 4, 2019|
|See also (multicaptioned case)|
Claimant pro se, Monie Jackson, failed to establish by a preponderance of the credible evidence that the State of New York was negligent in connection with injuries he sustained in an inmate-on-inmate assault while he was incarcerated at Franklin Correctional Facility (hereinafter, "Franklin"). In addition, Claimant's second cause of action alleging the State was responsible for losing certain items of his personal property is also dismissed.
The trial of this Claim was held by video conference on August 13, 2019, with the parties at Clinton Correctional Facility in Dannemora, New York, and the Judge at the Court of Claims in Albany, New York. At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim, and the State's Answer. Claimant submitted into evidence seven documents (Exs. 1 through 7). The State submitted into evidence one document (Ex. A). Claimant testified on his own behalf and the State called two witnesses, Correction Sergeant (hereinafter, "Sgt.") Jeremy Gillis and Correction Captain (hereinafter, "Capt.") Frank Quimby.
Claimant testified that he had a verbal altercation with Inmate Robinson on the afternoon of November 7, 2012, which almost lead to a physical altercation. Claimant stated that the housing officer observed the incident. Claimant stated he went to his cubicle to sit on his bed and the other inmate walked away stating that the matter was not over and that he would get Claimant. Claimant further stated that, at approximately 4:30 p.m. the same afternoon while he was standing in the doorway of the dormitory bathroom, he was assaulted by Inmate Robinson with a can top, slashing Claimant's forehead above his left eye. Claimant said that he fought back and hit his assailant with a mop wringer (see also Court Ex. 1, ¶¶ 3-5; Exs. 2, 5-6). Claimant also testified that he was sent to the Special Housing Unit (hereinafter, "SHU") after he returned from the hospital to receive stitches to close his wound. Claimant stated that several items of his personal property were missing when he received his property, as his property was packed up without him being present (see also Ex. 7).
Sgt. Gillis testified that he has been employed by the Department of Corrections and Community Supervision (hereinafter, "DOCCS") since 1998 and that, on November 7, 2012, the date of the incident, he was a correction officer at Franklin and was working as a Housing Officer in the dormitory in which Claimant was housed. The witness stated that he was letting the inmates out for the "afternoon yard" when he heard a commotion, turned around, and saw Claimant and Inmate Robinson fighting. He told the inmates to "break it up" several times, they did not, so he called for the Response Team and, once the Response Team arrived, they stopped fighting. Sgt. Gillis testified that Claimant never told him that he feared for his safety, nor did Claimant tell him that Inmate Robinson threatened Claimant. He further stated that he did not see a verbal altercation between Claimant and Inmate Robinson earlier that day, he did not observe Inmate Robinson ever threaten Claimant, and he did not know that a physical altercation would occur that day between Claimant and Inmate Robinson.
Capt. Quimby testified that he has been employed by DOCCS for 35 and one-half years and that, on the date of the subject incident, he was a Lieutenant at Franklin and worked as a Watch Commander. Capt. Quimby stated that, prior to the incident on November 7, 2012, Claimant and Inmate Robinson were not known enemies and they were not the subject of a separation order.
"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 ; see Flaherty v State of New York, 296 NY 342, 346 ; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). As in any other negligence action, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" (Sanchez v State of New York, supra at 252; see Basso v Miller, 40 NY2d 233, 241 ; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). Even though the "precise manner in which the harm occurred" may not have been foreseeable, liability attaches if it was "within the class of reasonably foreseeable hazards" to which the duty applies (Sanchez v State of New York, supra at 252; Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]). Moreover, it applies to those risks that were foreseeable, "not simply by actual notice but by actual or constructive notice - by what the 'State knew or had reason to know' " (Sanchez v State of New York, supra at 255, quoting dissenting op at 260 [emphasis in original]). In the instant Claim, it encompasses those risks that Defendant reasonably should have foreseen in the context of its operation of a prison and having custody of inmates forcibly surrounded by felons - many of them with a proven capacity for violence (Sanchez v State of New York, supra at 256).
At the same time, Defendant's duty to prisoners does not "mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, supra at 256; Elnandes v State of New York, 11 AD3d 828 [3d Dept 2004]).
The State has been found negligent in inmate-on-inmate assault claims where a claimant was able to establish that the attack was foreseeable because: (1) Defendant knew, or should have known, that the claimant was at risk of assault, yet failed to provide reasonable protection; (2) Defendant knew, or should have known, that the assailant was prone to perpetrate an attack, yet failed to take proper precautionary measures; or (3) Defendant failed to intervene or act when it knew, or should have known, that surrounding conditions were likely to engender or facilitate an attack (Smart v State of New York, UID No. 2007-029-053 [Ct Cl, Mignano, J., Dec. 21, 2007], affd 65 AD3d 1218 [2d Dept 2009]; Douglas v State of New York, UID No. 2007-028-012 [Ct Cl, Sise, P.J., May 17, 2007]; Shearin v State of New York, UID No. 2007-028-011 [Ct Cl, Sise, P.J., May 8, 2007]).
The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so. The Court finds that Claimant did not meet his burden of proof and failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with the attack perpetrated upon him.
Claimant failed to establish that Defendant knew, or should have known, that he was at risk of assault and failed to provide reasonable protection, or that the other inmate, Mr. Robinson, was prone to perpetrate an attack upon Claimant and failed to take proper precautionary measures. Under the circumstances of this Claim, the Court concludes that Claimant failed to establish by a preponderance of the credible evidence that Defendant knew, or should have known, that Mr. Jackson was at a greater risk of assault than any other inmate in the inherently-volatile environment of a correctional facility. No evidence was presented to establish that Defendant knew, or should have been expected to know, that Mr. Robinson was prone to perpetrate his attack upon Claimant. The evidence at trial established that Mr. Robinson and Claimant were not known enemies prior to this incident. Moreover, Claimant's unproved assertion that he and Mr. Robinson had a verbal dispute earlier that day, does not establish, to the Court's mind, that Defendant was aware, or on notice, that Mr. Robinson was prone to attack Mr. Jackson. Claimant, likewise, failed to establish that Defendant failed to intervene or act when it knew, or should have known, that surrounding conditions created an increased likelihood that an assault would occur.
Claimant failed to establish this cause of action by a preponderance of the credible evidence.
The Court will now address Claimant's bailment cause of action. Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in the Court of Claims Act, either personally or by certified mail, return receipt requested. Pursuant to Court of Claims Act provisions applicable to inmate bailment actions (Court of Claims Act § 10), Claimant was required to file and serve his claim within 120 days after the date on which the inmate exhausted his administrative remedies. The statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Claimant's Exhibit 7 includes a copy of his institutional Claim form for the property allegedly lost. The claim was disapproved, on the basis that Mr. Jackson did not establish he owned or possessed the articles, on December 3, 2012. Claimant appealed the determination to the Superintendent, who also disapproved the institutional claim, on the basis there was no new evidence to support the claim, on December 6, 2012. Claimant then had 120 days to file his Claim with the Court of Claims and serve it upon Defendant. The Claim was filed in the Office of the Clerk of the Court on July 12, 2013 (Court Ex. 1). This is well beyond the 120-day time period. However, Defendant did not make a pre-Answer motion to dismiss on the grounds that the bailment cause of action was untimely filed pursuant to Court of Claims Act §10 (9).
In addition, in its Answer, filed in the office of the Clerk of the Court on September 13, 2013, Defendant asserted four defenses to the Claim, however, none of the defenses asserted that the bailment cause of action was untimely served upon Defendant, or filed with the Court of Claims, as required by Court of Claims Act §10(9) (Court Ex. 2). Thus, the defense was waived and the State's Motion to dismiss the bailment cause of action as untimely filed, made at the conclusion of Claimant's case and at the conclusion of the trial, is denied.
Claimant testified that his property was packed up when he was sent to SHU and that much of his property was missing when he received it. He stated that he was missing a radio, a lamp, a fan, and sneakers. He further testified that any documentation to prove that he had the property has been lost. Claimant's Exhibit 7, page 8 is a copy of Claimant's Institutional Claim dated November 17, 2012. The Institutional Claim lists six items that are missing. Of the items Claimant is seeking damages for in his Court of Claims Claim, the only items listed in the Institutional Claim are a lamp and sneakers. There is no mention of the radio or fan. Additionally, Exhibit 7 contains a copy of a Franklin Inmate Permit for a fan dated January 23, 2013, approximately two months after Claimant asserts he lost the fan (Ex. 7, p. 6).
To establish a prima facie case of negligence in a bailment transaction, "[C]laimant must demonstrate that his property was deposited with the [D]efendant and the [D]efendant failed to return it … Once [C]laimant meets his burden, there is a rebuttable presumption that the [D]efendant is negligently responsible for the loss, and [D]efendant must come forward with proof explaining the loss" (Rivera v State of New York, UID No. 2008-041-501 [Ct Cl, Milano, J., Jan.10, 2008], quoting Amaker v State of New York, UID No. 2006-032-511 [Ct Cl, Hard, J., Aug. 14, 2006]; see Claflin v Meyer, 75 NY 260, 262 ; Tweedy v Bonnie Castle Yacht Basin, Inc., 73 AD3d 1455 [4th Dept 2010]; Ramirez v City of White Plains, 35 AD3d 698 [2d Dept 2006]; Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [3d Dept 1981]; Singer Co. v Stott & Davis Motor Express, 79 AD2d 227, 231 [4th Dept 1981]; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; 7 NYCRR 1700.7[b]). "With respect to value, Claimant must satisfy the court of the fair market value of the items in question … Receipts are the best evidence of fair market value [less depreciation], although uncontradicted testimony concerning replacement value may also be acceptable" (Kilpatrick v State of New York, UID No. 2008-030-001 [Ct Cl, Scuccimarra, J., Jan. 22, 2008]; see Phillips v Catania, 155 AD2d 866 [4th Dept 1989]; Alston v State of New York, 9 Misc 3d 1126[A] [Ct Cl 2005]; Schaffner v Pierce, 75 Misc 2d 21 [Nassau County Dist Ct 1973]).
Based upon the credible evidence submitted at trial and the testimony adduced, the Court finds and concludes that Claimant has failed to establish, by a preponderance of the credible evidence, that the items he asserts were lost were part of the property that Claimant turned over to Defendant when he entered SHU, that he owned the items on the date he entered SHU, or their reasonable value at the time they were allegedly lost.
Accordingly, the Court finds that Claimant failed to establish his cause of action for lost personal property by a preponderance of the credible evidence and the cause of action, therefore, is dismissed. All motions made at trial are denied as moot.
The Chief Clerk is directed to enter judgment accordingly.
November 4, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims