|Claimant short name:|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has sua sponte amended the caption to reflect the properly named defendant.|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||JEFFREY WYNN, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Dorothy M. Keogh, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 12, 2019|
|See also (multicaptioned case)|
This decision follows a trial on the claim of Jeffrey Wynn ("Claimant" or "Wynn"), an inmate proceeding pro se, which was conducted via video conference from Sing Sing Correctional Facility ("Sing Sing") on October 29, 2019. By claim filed on October 31, 2016, Claimant seeks to hold defendant State of New York liable for injuries he sustained as the result of a fight with another inmate. More specifically, the claim alleges that on September 7, 2016, Wynn was moved to cellblock A at Sing Sing, and on September 22, 2016 an altercation took place in A block yard with another inmate named Doggett. As a result, Claimant's face was cut with a sharp metal object requiring stitches to the right side of his face and earlobe. The claim further alleges that prison authorities at Sing Sing knew or should have known that Doggett, with whom Wynn had a prior altercation in December 2015, represented a threat to Claimant, and that he never should have been moved to the same cellblock with that inmate.
At trial, Claimant gave the following account: In December 2015, Wynn and Doggett were both housed on cellblock B at Sing Sing and they got into a fight. After the fight, Doggett was moved to cellblock A, and Wynn remained on cellblock B. Then on September 7, 2016, Wynn was informed that he was being moved to cellblock A. A couple of weeks later, Claimant went to A block yard and a fight with Doggett ensued and someone cut his face. Claimant could not see who it was that cut him because his eyeglasses were knocked off during the fight. Wynn stated that the fight started by a punch, but not thrown by Claimant. After the incident, Claimant was seen by the medical staff at Sing Sing and treated with Bacitracin and gauze. He then was taken to an outside hospital where he received 34 stitches.
On cross-examination, Claimant reiterated that he did not know if Dogget was the individual who slashed him. Wynn stated that after the 2015 incident he did not want to be in protective custody, but that after the September 2016 altercation he did accept protective custody. He stated that after the earlier incident he did not believe he was in jeopardy by staying in the general population. Claimant acknowledged that he signed a form whereby he declined protective custody after the 2015 fight (Def. Ex. A). Wynn explained that after the 2015 incident he did not feel threatened because Doggett had been moved to cellblock A and since he remained on cellblock B their paths would not cross. However, after the September 2016 altercation, because he was wounded, he opted for protective custody.
Defendant called Correction Officer Mowatt to testify on its behalf. Mowatt is employed by Department of Corrections and Community Supervision ("DOCCS"), and has been assigned to Sing Sing since 2013. He remembered working on the evening September 22, 2016, at which time he was assigned as the Officer in Charge of A yard. There were three other officers in the yard with him and they all made security rounds. Mowatt testified that there were approximately 200 inmates in the yard at the time of the incident. He stated that fights between inmates were a common occurrence and it would not be possible to have every inmate under constant supervision in the yard. He was unaware of any problems between claimant and Doggett prior to the September 22 fight. Mowatt recalled that while he was doing a security round, he observed Wynn and Doggett throwing punches at each other. He saw that Wynn had been slashed but he did not see the slashing take place. He issued a direct order that they stop and he and another officer had to separate the pair. As a result of the incident, Inmate Misbehavior Reports ("IMR") were issued to the inmates, containing the same violations (Def., Ex. B.). A tier III hearing was conducted, whereby Claimant was found guilty of all the charges in the IMR (Def. Ex. D).
Defendant also called Lieutenant Bodge to testify. Bodge is employed by DOCCS, and has been assigned to Sing Sing for approximately six years. Bodge stated that Sing Sing is a maximum security facility, and that a significant number of inmates confined there are violent felons. He noted that it is "very common" for inmate fights to take place. He testified that he was the Shift Commander at the time of the September 22 incident and that all procedures, including the writing of an unusual incident report, a use of force report, and misbehavior reports, were followed. He testified that prior to the September 22 fight he was unaware of any problems between the two inmates. As to the December 2015 incident, the lieutenant stated that unless a fight between inmates involved major injuries, the use of weapons, or use of force, no red flags are raised. Bodge was shown defendant's exhibit A and stated that it contained the IMRs issued to Wynn and Doggett as a result of the December 2015 fight, and it also showed that the inmates refused protective custody. He testified that Doggett's transfer to A block after the December 2015 fight was normal procedure and done to avoid further problems. He added that unless an altercation presented extenuating factors (use of a weapon, serious injuries, etc.) inmates would not be listed in each other's separate or enemies list.
According to Bodge, Claimant was transferred to A block in September 2016 so that he could participate in a work program in the Sing Sing infirmary. He stated that because of the program's proximity to A block it was standard procedure to transfer an inmate there under the circumstances. If Wynn had any safety concerns, he could have informed the staff and an investigation would have taken place. Bodge was shown the logbook where such requests are entered and there were no requests for protective custody from the time Claimant was transferred to cellblock A on September 7 to the time of the fight on September 22 (Def., Ex. C). He noted, however, that there was an entry for a request for protective custody made by Claimant after the September 2016 incident.
On cross-examination, Bodge clarified that Claimant was moved to A block so that he could work in the infirmary, and not that he ended up actually working in the infirmary.
The State has a duty of care to "safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252  [citations omitted]). The State is not, however, an insurer of prisoner safety, and therefore "the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable" (id. at 253). Foreseeability of an inmate-on-inmate assault includes both what defendant actually knew and what the State should have known (see Barnette v City of New York, 96 AD3d 700, 701 [2d Dept 2012]). However, "unremitting supervision" of prisoners, so as to ensure their safety, is not required (Colon v State of New York, 209 AD2d 842, 844 [3d Dept 1994]).
In order to prove a breach of the State's duty of care, a claimant must establish one of the following: (1) defendant knew, or should have known, that 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) the State had notice and the opportunity to intervene and failed to act (see Sanchez, supra; see also Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]; Huertas v State of New York, 84 AD2d 650 [3d Dept 1981]).
Although claimant had a previous altercation with Doggett, that incident was relatively minor; according to the IMRs and Inmate Injury Reports concerning the December 2015 incident, no weapons were used, no serious injuries were suffered by either inmate, and the use of force was not required (Def., Ex. A). In addition, both inmates declined protective custody by signing a "Refusal of Admission to Protective Custody" form (id.), and there is no evidence that Doggett or Wynn had the other on an enemies list. The record, which includes the testimony of Lieutenant Bodge and "Protective Custody and Involuntary Protective Custody Log" entries for the relevant period, further indicates that from the time Claimant arrived on cellblock A on September 7, 2016, to the time of the September 22, 2016 fight, neither did he raise concerns with staff, nor did he seek protective custody (Def. Ex., C). Moreover, there is no allegation that the correction officers failed to act once the altercation was detected.
The Court notes that prison authorities are entitled to deference in the realm of managing the safety and security in their facilities (see Matter of Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004] [courts generally defer to prison administrators in matters of security]; see also Young v State of New York, UID No. 2008-031-516 [Ct Cl, Minarik, J., Nov. 20, 2008], quoting Tucker v State of New York, Claim No. 85578 [Ct Cl, Bell, J., Aug. 28, 1996] ["deference to the judgment of correctional facility authorities must be the rule, and a court cannot properly substitute its judgment for that of such authorities"]). In Sanchez, the Court of Appeals recognized that:
"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."
(99 NY2d at 256).
Here, Claimant failed to establish by a preponderance of the credible evidence that the risk of an inmate assault upon him was reasonably foreseeable, and therefore, liability will not lie against the State.
In view of the foregoing, claim no. 128746 is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
November 12, 2019
Central Islip, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims