Claim alleging that defendant negligently failed to protect claimant from assault by fellow inmate is dismissed after trial where evidence showed that the attack upon claimant was sudden and unprovoked and further showed that claimant had denied any enemies in the prison system, denied any enemies at Clinton Correctional Facility (CCF), had no fear for his safety at CCF, denied any need for protective custody both before and after the attack and denied ever seeing or knowing the inmate-assailant, either before or after the attack.
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||LAW OFFICE OF ANDREW C. LAUFER, PLLC
By: Andrew C. Laufer, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Thomas J. Reilly, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 13, 2019|
|See also (multicaptioned case)|
On the morning of March 14, 2017, Joseph Johnson (claimant), newly incarcerated at Clinton Correctional Facility (CCF), was attacked and cut by fellow inmate Acosta. Claimant had arrived at the facility the previous evening. Claimant was attacked by inmate Acosta shortly after their common housing company, Lower F, had entered the west mess hall for breakfast.
Claimant filed his amended claim June 27, 2017, setting forth the following causes of action:
FIRST CAUSE OF ACTION
Allegations of defendant negligence in the "hiring, retention, supervision, and training of its agents, servants and employees;"
SECOND CAUSE OF ACTION
Referring to several policies, practices and customs, claimant set forth allegations of various defendant failures, due to "negligence, deliberate indifference, conscious and reckless disregard to the safety, security, supervision and statutory rights of Claimant;"
THIRD CAUSE OF ACTION
In seeking punitive damages from the agents, servants and employees of defendant, claimant alleged that defendant "[i]n deliberate indifference to the life, safety, and welfare of plaintiff [sic] . . . refrained from intervening in the acts leading to Claimant's injuries;" and,
FOURTH CAUSE OF ACTION
Allegations that defendant and its agents, servant and/or employees "were negligent in regards to Claimant's security, supervision, health, safety and welfare, and breached that duty of care."
The applicable law is clear. "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 ). "This duty, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable" (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The State . . . is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).
In determining if the State provided reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an " 'enemies list' with the institution" (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was "a known dangerous prisoner" (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether "claimant was a known assault risk" (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]).
The State's potential liability for negligent supervision with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant's vulnerability or a particular assailant's violent propensities can be shown. The State is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon "what the State 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]).
The fact that a correction officer is not present at the exact time and place of an assault does not rise to an inference of negligence absent a showing that facility officials had notice of a foreseeable dangerous situation (Colon v State of New York, 209 AD2d 842 [3d Dept 1994]; Padgett v State of New York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711 ).
A correctional facility superintendent has discretion to "provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities" (see Correction Law § 137)  and § 18 ; see Matter of Shabazz v Portuondo, 260 AD2d 733 [3d Dept 1999], lv denied 94 NY2d 756). In general, courts should defer to prison authorities in matters of internal prison security (Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]).
Trial of the claim was conducted June 11, 2019. The trial addressed liability alone. Prior to trial, claimant moved (Motion No. M-93996) to preclude certain witness testimony.
During pre-trial discovery, claimant demanded of defendant "[n]ames and addresses of each person claimed by Defendant to be a witness to any of the following: (a) the assault and attack upon Claimant; (b) the medical treatment of Claimant; (c) the investigation into the incidents alleged in this Claim." After defendant responded, "[u]known at this time," defendant never thereafter augmented its response.
Accordingly, claimant moved before trial to preclude the trial testimony of eventual trial witnesses Ronald Wood and Jeffrey Bezio. The Court has read and considered the following papers: a) Claimant's Notice of Motion filed May 22, 2019; b) Affirmation in Support of Andrew C. Laufer, Esq., dated May 21, 2019, with appended exhibits; c) Affirmation in Opposition of Thomas J. Reilly, Esq., dated May 29, 2019, with appended exhibits; and d) Affirmation in Reply of Andrew C. Laufer, Esq., dated June 3, 2019 with appended exhibit.
At trial, subject to the claimant's pending motion, the Court permitted the two involved witnesses, Mr. Wood and Mr. Bezio, to testify, and reserved decision on claimant's motion.
The Court has additionally considered the oral advocacy presented at trial by the parties in support of and in opposition to Motion No. M-93996, and has further considered the trial testimony of Mr. Wood and Mr. Bezio.
Now, for the reasons that follow, claimant's motion to preclude (Motion No. M-93996) is in all respects denied, and the trial testimony of Mr. Wood and Mr. Bezio is accepted as part of the trial record.
Initially, and most importantly, none of the trial testimony provided by Ronald Wood or Jeffrey Bezio fell within the limited parameters delineated in claimant's pre-trial demand.
Neither man testified to claimant's medical treatment. Then-Sgt. Wood's testimony was limited to the conduct of his CCF intake interview of claimant, conducted the day prior to the incident, and to discussion of the memorialization of that interview by admitted Trial Exhibit 1, page 80. Sgt. Wood neither observed the attack upon claimant, nor did he investigate it afterward.
Sgt. Bezio's testimony was limited to discussing admitted Trial Exhibit A, page 2, the inmate count sheet for the breakfast served in the west mess hall on the morning of March 14, 2017. As with Sgt. Wood, Sgt. Bezio provided no trial testimony regarding the assault upon claimant or about any post-incident investigation.
Moreover, beyond the non-objectionable trial testimony that trial witnesses Wood and Bezio did provide, the identities and involvement of both men, through the conduct of substantial pretrial discovery, were well known to the claimant prior to the trial, and the defendant's use of the two at trial was neither a surprise to claimant nor did it in any manner prejudice claimant by running afoul of his pretrial demand.
There is no factual dispute that inmate Acosta's attack upon claimant was sudden, unprovoked, unanticipated and that it concluded quickly, within a matter of seconds. Claimant testified that on the morning of March 14, 2017, shortly after arriving in the west mess hall for his first breakfast ever at CCF, while sitting and eating his cereal, he was attacked from behind, assaulted and cut by an attacker subsequently identified as inmate Acosta. He and inmate Acosta began fighting, went to the floor, and, when ordered by responding officers, complied with orders to cease fighting. Claimant sustained cuts to his face, arms and hand by Acosta's use of a razor blade fashioned into a homemade knife, requiring sixty-two stitches to close.
Claimant testified to the following additional facts:
1. He did not see Acosta until the two went to the floor;
2. He had never before seen Acosta, and never again saw Acosta after the assault;
3. He had no known enemies in the prison system;
4. He had no known enemies at CCF;
5. He recognized no inmate in his housing company as they assembled for breakfast that morning;
6. He had no fear of any inmates as he arrived at CCF, and had no knowledge of any inmate at CCF wanting to harm him;
7. He saw no one approach him from behind before the assault;
8. The fight with Acosta lasted "a matter of seconds;"
9. No words were exchanged between the two before, during or after the fight; and,
10. After the attack, claimant declined an offer of protective custody, believing he had no enemies at CCF.
Claimant's testimony was consistent with the testimony of Sgt. Ronald Wood, the individual who conducted claimant's CCF intake interview the evening prior to the attack.
Claimant was transferred from Southport Correctional Facility and arrived at CCF for the first time on the evening of March 13, 2017. As part of an intake process, he was interviewed by Sgt. Wood. At trial, now-Lt. Wood testified that he memorialized his interview of claimant in Trial Exhibit 1, page 80, and that during the intake interview claimant advised that he had no known enemies, that claimant did not request protective custody, that claimant, contradicting the Department of Corrections and Community Supervision institutional records, denied gang affiliation with Crips, instead claiming gang affiliation with Bloods, and finally, that claimant expressed no concerns or reservations about his personal safety at CCF.
In addition to claimant and Lt. Wood, Sgt. Jeffrey Bezio and Correction Officer (CO) Seth Bombard and CO Carl Benware testified at trial.
Correction Officer Bombard's testimony had little probative value. He was not present in the west mess hall when the altercation between claimant and inmate Acosta began. He was in the Rotunda located 30 to 50 feet from the mess hall, and he responded within a matter of seconds to a response call initiated by Sgt. Bezio, only to observe the two involved inmates already fighting. He ordered the combatants to cease fighting, which they did, and he cuffed Acosta and escorted him to the medical facility.
Similarly, Sgt. Bezio's testimony was of limited value. He provided no testimony about the fight or about any post-incident investigation. He testified about the inmate mess hall count at breakfast that day and indicated that there were seven COs present in the mess hall at the time of the incident.
Correction Officer Benware was present in the mess hall when inmate Acosta attacked claimant. He testified "I saw the fight after it had already been engaged," and denied seeing the attack as it was initiated. He testified to seeing the two involved inmates standing, as claimant threw punches at Acosta and Acosta made "slashing type motions." He verbally ordered the inmates to stop fighting and they complied.
A number of the defendant's officers testified that once seated in the mess hall, inmates are not permitted for any reason to rise from their seats. To do so, they must first seek and receive permission from an officer to stand.
Correction Officer Benware specifically denied the accuracy of an Unusual Incident Report (dated March 27, 2017) of the incident (Exhibit 1, page 22) which describes a call between Lt. T. Marcil and Lt. Colin Fraser. The Unusual Incident Report states, in part, "[d]uring morning breakfast in west messhall Officer C. Benware observed inmate Acosta, J. 16 A 1060 LF-4-16 walk up to inmate Johnson, J. 14 A 0271 LF-4-29, and begin making slashing type motions to inmate Johnson's head and body area."
Correction Officer Benware, at trial, testified, "[t]hose are inaccurate statements," denied making any such statements, and denied seeing Acosta walk up to claimant and begin to slash him.
Although the Amended Claim's First Cause of Action alleges defendant negligence in the "hiring, retention, supervision, and training of its agents, servants and employees," no proof supporting these allegations was presented at trial. Accordingly, claimant's First Cause of Action fails.
The Amended Claim's Third Cause of Action seeks punitive damages from defendant's agents, servants and employees. Claimant's Third Cause of Action fails because the State's "waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State" (Sharapata v Town of Islip, 56 NY2d 332, 334 ).
Essentially, claimant's assertion of defendant negligence devolves to an allegation that CO Benware, although observing inmate Acosta walk toward claimant prior to assaulting Mr. Johnson, negligently failed to order Acosta to stop and/or to retake his seat. Claimant's allegation presumes that inmate Acosta, if given any such order, would have complied, would have retaken his seat and would have aborted his intended attack upon claimant. It should also be noted that no trial proof was presented that inmate Acosta had ever first taken a seat, from which he rose, after entering the mess hall that morning, prior to his advance upon claimant.
Correction Officer Benware denied making any statement to anyone that he had observed Acosta walk toward claimant and begin his attack upon him and CO Benware specifically denied observing any such conduct by inmate Acosta on the morning of March 14, 2017.
Moreover, although the statement attributed to CO Benware in Exhibit 1, page 22, by reason of a conversation between Lt. Marcil and Lt. Fraser is contained within an admitted exhibit, its evidentiary value is undercut by its double-hearsay nature. First, neither Lt. Marcil nor Lt. Fraser were called as trial witnesses to explore the underlying events or discussion which led to the creation of the Unusual Incident Report. Next, the statement attributed to CO Benware could have been inaccurate due to mistake, misunderstanding, mischaracterization or by an unsupported assumption involving conversations by and between Benware and an unnamed fourth party, by and between Benware and Marcil and/or by and between Marcil and Fraser. Finally, beyond CO Benware's specific repudiations at trial, no contemporaneously created reports or documents detailing the events of March 14, 2017, all of which were created on the date of the incident, substantiate or corroborate the Unusual Incident Report statement that CO Benware observed Acosta's attack upon claimant unfold (see Exhibit 1, pages 27, 29, 30, 31, 32 [CO Benware's report to Sgt. Bezio], 33, 34, 35, 36, 38, 40 and 46 [CO Benware's inmate misbehavior report]).
Finally, addressing other aspects of claimant's allegations, claimant provided no proof, expert or otherwise, that defendant's staffing of the west mess hall on the morning of March 14, 2017, or that defendant's practices and procedures for the weekly dispensation and collection of razor blades to address inmates' shaving needs, were either violative of penological standards or were in any manner negligent.
Simply stated, claimant failed to prove by a preponderance of the credible evidence any aspect of defendant's alleged negligence. The attack upon claimant was sudden, unprovoked and concluded in seconds. Claimant had denied any enemies in the prison system, denied any enemies at CCF, had no fear for his safety at CCF and denied any need for protective custody both before and after the attack. Finally, claimant denied ever seeing or knowing inmate Acosta, either before or after the attack.
Defendant is not an insurer of claimant's safety. There is no obligation that defendant provide claimant, or any inmate in its custody, constant, unremitting, complete and proximate protection from fellow inmates during each and every minute of incarceration. Lastly, for all of the reasons previously noted, inmate Acosta's attack upon claimant was not foreseeable.
Trial proof failed to prove claimant's allegations of defendant negligence. Claim No. 129591 is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
November 13, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims