Opinion
128321
10-09-2020
Kevin ARMWOOD, Claimant, v. The STATE of New York, Defendant.
Claimant's attorney: ANDREW F. PLASSE & ASSOCIATES, LLC, By: Andrew F. Plasse, Esq. Defendant's attorney: HON. LETITIA JAMES, Attorney General for the State of New York, By: Joseph Scolavino, Assistant Attorney General
Claimant's attorney: ANDREW F. PLASSE & ASSOCIATES, LLC, By: Andrew F. Plasse, Esq.
Defendant's attorney: HON. LETITIA JAMES, Attorney General for the State of New York, By: Joseph Scolavino, Assistant Attorney General
Walter Rivera, J.
The following papers numbered 1-2 were read and considered by the Court on the State's motion for summary judgment:
Notice of Motion, Memorandum of Law and Exhibits 1
Answering Affirmation of Claimant's Counsel in Opposition and Exhibits 2
State's Sur-Reply 3
State's Memorandum of Law 4
Supplement Affirmation of Claimant's Counsel 5
This claim arises out of an inmate-on-inmate assault that occurred on January 7, 2016, in the B-Block yard at Sing Sing Correctional Facility (Sing Sing), when claimant's face was slashed with a stainless steel scalpel razor blade. The assailant is alleged to be Victor Cain. The State moves for summary judgment dismissing the claim arguing that the State cannot be held liable for the attack upon claimant because the attack was not reasonably foreseeable and the State was not negligent. In support of its motion, the State submits claimant's deposition testimony wherein he described the incident as an unanticipated attack by Victor Cain, with whom claimant had no prior history nor reason to fear that Cain would perpetrate an attack upon claimant (State's Ex B, pp 41-43, 51). The State also submitted the deposition testimony of New York State Department of Corrections and Community Supervision (DOCCS) Captain Michael Barnes. Barnes explained the security measures employed by DOCCS and its use of magnetometers and other technology to detect concealed weapons (State's Exs. B, C).
Claimant opposes the motion arguing that there are questions of fact precluding an award of summary judgment to defendant. Specifically, claimant argues that there is an issue of fact as to whether it was reasonably foreseeable to the State that claimant was at risk of being assaulted due to claimant's extensive disciplinary history for violence and fighting and claimant's designation by DOCCS as a member of the Bloods gang. Claimant further argues that, given his disciplinary history and purported gang affiliation, the State should not have housed him in general population. Additionally, claimant argues that there is a question of fact as to whether the State was negligent in relying upon magnetometers to detect concealed weapons made of stainless steel, such as the one used to slash claimant, and whether the State was negligent in failing to update its technology with equipment that could detect such weapons.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from reasonably foreseeable risks of harm including the risk of attack by other inmates (see Flaherty v. State of New York , 296 NY 342 [1947] ; Littlejohn v. State of New York , 218 AD2d 833 [3d Dept 1995] ). "[T]he State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety ... [t]he 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 , 99 NY2d 247, 256 [2002] ; Sanchez v. State of New York , 36 AD3d 1065 [3d Dept 2007] ). The 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 reasonably foreseeable danger (see Colon v. State of New York , 209 AD2d 842, 844 [3d Dept 1994] [unremitting supervision in the facility's vocational training engine repair shop was unnecessary absent a showing that the inmate participants were dangerous and the absence of a correctional officer at the time of the inmate-on-inmate assault, "in and of itself, is insufficient to support a finding that the State failed to exercise reasonable care"]). The "defendant's duty is limited to providing reasonable care to protect inmates from risks of harm that are reasonably foreseeable, i.e., those that defendant knew or should have known" ( Vasquez v. State of New York , 68 AD3d 1275, 1276 [3d Dept 2009] ). Additionally, prison authorities should be afforded deference in matters of internal security and the housing assignments of its inmates (see Arteaga v. State of New York , 72 NY2d 212 [1988] [correctional facilities have broad discretion in formulating and implementing policies related to maintaining order and security in their facilities]; Matter of Blake v. Selsky , 10 AD3d 774, 775 [3d Dept 2004] [courts generally defer to prison authorities in matters of internal security such as the determination as to whether an inmate's presence in general population would threaten the safety and security of the facility]).
Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; Winegrad v. New York Univ. Med. Ctr ., 64 NY2d 851, 853 [1985] ; Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). "Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers" ( Alvarez , 68 NY2d at 324 ; see Winegrad , 64 NY2d at 853 ).
The Court rejects claimant's argument that there is a question of fact as to whether it was or should have been reasonably foreseeable to the State that claimant was at risk of being assaulted due to his extensive disciplinary history for violence and fighting. It is well settled that the disciplinary history of the assailant is a factor to be considered in determining whether the assault was or should have been reasonably foreseeable (see Adeleke v. County of Suffolk , 156 AD3d 748 [2d Dept 2017] [the dangerous propensities of the inmates involved in the assault was a factor to be considered in addressing whether the assault was or should have been foreseeable to the County]; Wassmann v. County of Ulster , 144 AD3d 1470 [3d Dept 2016] [the County was awarded summary judgment in an inmate assault case where there was no proof that the County knew of the assailant's violent propensities and prior prison disciplinary history before placing him in close custody with the plaintiff]; Rodriguez v. City of New York , 38 AD3d 349 [1st Dept 2007] [in assessing the foreseeability of an inmate assault, the Court noted that the City of New York had actual knowledge of the assailant's known and well-documented propensity for violence]). Claimant's counsel conceded at oral argument that he could not find any caselaw supporting his argument that the disciplinary history of the victim, as opposed to the assailant, was a factor that should be considered in determining whether the attack was or should have been reasonably foreseeable to the State and, on the record before this Court, such a finding is not warranted.
The Court also finds that, on the record before this Court, claimant has not established that there is a genuine issue of material fact as to whether the State either knew or should have known that, given claimant's gang affiliation, housing claimant in general population posed a foreseeable risk of attack to claimant (see Matter of Blake , 10 AD3d 774 [the placement of an inmate in general population or in segregated housing is a matter of internal security to which courts generally give deference to prison authorities]). While claimant described his alleged assailant as having an "aura" of being a gang member, claimant did not identify his alleged assailant as a member of a particular gang, nor was there any direct evidence linking him to a gang (Claimant's Deposition, Ex. B, p 40). It was also not established that claimant was at special risk of attack either by a gang member or due to claimant's own gang affiliation. Prior to the attack, claimant did not have any relationship with his alleged assailant nor was claimant in apprehension of an attack. Claimant did not seek protective custody nor request a transfer from housing in general population to be segregated from any gang members (id. at 44). Thus, the Court finds that claimant's arguments that there is a genuine issue of material fact as to whether the attack upon claimant was or should have been reasonably foreseeable by the State due to claimant's gang affiliation and housing in general population is unsupported by the record before this Court (see Williams v. State of New York , 125 AD3d 1472 [4th Dept 2015] [where claimant was assaulted after being placed in a holding pen with gang members from the same housing unit as another gang member who had had an altercation with claimant earlier that day, the State was not held liable for the assault because there was no record evidence to establish that prison officials were aware of the risk of harm to claimant posed by his attackers and there was no evidence that the State should have foreseen the assault upon claimant]); Di Donato v. State of New York , 25 AD3d 944 [3d Dept, 2006] [the State was not liable for the slashing of claimant's face during his incarceration, where there was no direct evidence linking the unknown assailant to any gang and it was not established that claimant was at special risk for an attack by a gang member]).
At oral argument, the Court focused upon the deposition testimony of Captain Michael Barnes, upon which the State relies. Barnes, who was employed by DOCCS at Sing Sing for 30 years including the date of claimant's assault, testified at his deposition that, prior to the assault upon claimant, Sing Sing security was aware that stainless steel blades were used by inmates in assaults and that the magnetometers in use at Sing Sing could not detect a stainless steel blade if it was covered by a sheath (State's Ex C, pp 30-33). Barnes further testified that there was advanced technology, namely Cell Sense, which could detect a stainless steel blade, even if encased in a sheath. While Barnes testified that Cell Sense was in use at Sing Sing on the date of his deposition, significantly, Barnes was "not 100 percent sure" if Cell Sense was "available" on the date of claimant's assault (id. at 31-32). The Court is mindful that the State's determination whether to upgrade its technology used to search for concealed weapons is inherently a matter of internal security to which courts accord deference to the expertise of the prison authorities (see Matter of Blake , 10 AD3d 774 ). However, upon careful consideration of the record before this Court and the applicable law, the Court finds that Barnes' deposition testimony presents genuine issues of material fact which preclude the Court from finding as a matter of law that the injuries that claimant sustained in the attack with a stainless steel weapon were not reasonably foreseeable (see Sanchez , 99 NY2d at 256 ["(t)o obtain summary judgment (in an inmate-on-inmate assault case), the State must meet a high threshold: there must be only one conclusion that can be drawn from the undisputed facts—that as a matter of law injury to (claimant) was not reasonably foreseeable"]). Specifically, the Court finds that there are genuine issues of material fact as to whether Cell Sense was available for use at Sing Sing on the date of the attack upon claimant and, if available, whether the State's failure to employ the use of Cell Sense, prior to the attack upon claimant, constitutes negligence attributable to the State which could be determined to be a proximate cause of the injuries that claimant sustained.
Accordingly, the State's motion for summary judgment dismissing Claim No.128321 is DENIED.