Opinion
# 2012-015-536 Claim No. 118117
03-22-2012
BROWN v. THE STATE OF NEW YORK
Synopsis
Following trial, pro se inmate's claim for injuries sustained in an inmate-on-inmate assault was dismissed. Claimant failed to establish by a preponderance of the credible evidence that the negligence of the State was a proximate cause of his injuries. Case information
UID: 2012-015-536 Claimant(s): GREGORY BROWN Claimant short name: BROWN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118117 Motion number(s): Cross-motion number(s): Judge: FRANCIS T. COLLINS Law Office of Nora Constance Marino Claimant's attorney: By: Nora Constance Marino, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Thomas Monjeau, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: March 22, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate, seeks damages for injuries sustained in an inmate-on-inmate assault in the recreation yard at Great Meadow Correctional Facility (Great Meadow) on October 29, 2006. This decision follows a bifurcated trial on the issue of liability on September 28, 2011.
Claimant testified he arrived at Great Meadow in early October 2006. On October 29, 2006, a Sunday, he and other inmates exited the mess hall and entered the recreation area known as the Big Yard. The claimant testified that although he observed metal detectors in place at the entrance to the Big Yard, they were not operating nor were inmates entering the yard subjected to either a handheld metal detector or pat frisk. After entering the yard the claimant joined a line of inmates waiting to use the weightlifting area. As he was standing in line the inmate in front of him reached to put his arm around the claimant's neck. Claimant alleges he then called for assistance from correction officers who he contends made eye contact with him and then looked away. None of the correction officers responded to his calls for assistance and the claimant sustained a cut on his face when the assailant attacked him with a razor. Claimant estimated he was cut with the razor approximately 35 seconds after calling for assistance and that it took correction officers approximately 10 minutes to respond to his calls. Claimant did not know the inmate who attacked him and testified that other inmates stepped in front of him to prevent him from pursuing his assailant. Eventually, correction officers responded to the scene, placed the claimant on the wall and then took him to the infirmary.
On cross-examination the claimant confirmed that his notice of intention to file a claim verified on January 3, 2007 (Exhibit A), alleges he was suddenly attacked by an unknown inmate and makes no allegations about a struggle or calls for assistance from correction officers. He also acknowledged that documents connected with his grievance of the matter (Exhibit B, p. 3) similarly make no reference to either a struggle or calls for assistance.
According to the claimant, there are two recreation periods at Great Meadow, one in the afternoon and one in the evening. He testified that at each recreation period he attended since arriving at Great Meadow he had observed metal detectors being used on inmates entering the Big Yard. However, metal detectors were not used on weekends nor were inmates entering the yard pat frisked.
Claimant testified that following the assault he did not attempt to seek further assistance from correction officers or to report the assault. Instead, he attempted to follow his attacker but was prevented from doing so by an individual he identified as Inmate Frazier. Once correction officers responded to the altercation, both the claimant and Inmate Frazier were pat frisked and questioned. Claimant did not know the names of the correction officers with whom he allegedly made eye contact. He estimated that approximately10 minutes elapsed between the initiation of the assault and claimant's first contact with correction officers, and that he struggled with Inmate Frazier for approximately five or six minutes. Claimant testified that although he never actually saw his attacker's face, Inmate Frazier referred to the attacker as "C Banger". Claimant stated that he had no dispute with C Banger at the time of the incident and no words were exchanged between the two inmates prior to the assault. He had no reason to expect that C Banger posed a threat to him and there was no notice to the Department of Corrections and Community Supervision (DOCCS) of any such danger or threat. Claimant agreed that he testified at an examination before trial that he had heard the name "C Banger" previously while incarcerated at Elmira Correctional Facility.
Correction Officer John Beecher testified that he has been employed at Great Meadow Correctional Facility since 1982. Correction Officer Beecher testified that in 2006 he was a tower guard at Great Meadow. As part of his duties, he was responsible for monitoring the Big Yard in an effort to stop or prevent inmate assaults. In the event he witnessed an assault, procedures required that he notify the area supervisor of the assault utilizing either a two-way radio or phone. While the area supervisor and all other COs receive transmissions made by two-way radio, communications made by phone are received only by the area supervisor.
Although Correction Officer Beecher testified at trial that he is not familiar with procedures governing the use of metal detectors at Great Meadow, he acknowledged stating at his examination before trial that metal detectors are not used at Great Meadow during weekend afternoon recreation periods due to reduced staffing. He agreed that the use of razors as a weapon is a problem at Great Meadow, a fact to which he previously testified at a deposition.
According to the witness, he was at his assigned station in a tower overlooking the Big Yard on October 29, 2006. He stated that he observed the claimant turn around to face Inmate Frazier who was behind him. The two exchanged punches and then both began walking away. Correction Officer Beecher observed that the claimant was bleeding and contacted his area supervisor. Correction officers then entered the yard and took both inmates into custody. He estimated there were approximately 200 inmates in the Big Yard as well as two correction officers and an area sergeant, which he described as typical at Great Meadow.
On cross-examination the witness stated that, since he began working at Great Meadow in 1982, metal detectors have not been used during the afternoon recreation period on weekends due to reduced staffing. Rather, inmates are pat frisked before entering the mess hall and, sometimes, after leaving the mess hall and prior to entering the Big Yard. Inmates attending the recreation period exit directly from the mess hall to the Big Yard while inmates not participating in recreation are escorted back to the cell block by the company COs who then return to the Big Yard to assist the sergeant and two COs assigned there. Correction Officer Beecher marked in red on Exhibit C-4 the tower where he was on duty on the date of the incident and he marked in green the area he observed the claimant and Inmate Frazier. In what took only "a second or two", the claimant turned around and he and Inmate Frazier began punching each other (Tr. p. 95). The witness reported the incident to the sergeant's stand and observed as the claimant and Inmate Frazier both walked in a northerly direction and then back towards the sergeant's stand. He did not observe the claimant involved in an altercation with any inmate, other than Inmate Frazier. He estimated "maybe three minutes" expired between the first exchange of punches and the time correction officers responded and took the claimant and Inmate Frazier into custody (Tr. p. 99). The witness then observed other correction officers begin to search the yard for any possible weapon used in the assault. At the time he observed the exchange of punches between the claimant and Inmate Frazier, company COs had not yet returned to the yard from the cell blocks.
On redirect examination the witness again testified that metal detectors are not used during the weekend recreation periods due to reduced staffing levels. He acknowledged that metal detectors are more likely to find weapons than a pat frisk although he had testified on cross-examination that inmates also make weapons from non-metal objects such as plexiglass.
Lieutenant Keven Smith testified that he has been employed by DOCCS at Great Meadow Correctional Facility for twenty-nine years. Lieutenant Smith was Watch Commander for the 6:30 a.m. - 2:30 p.m. shift at Great Meadow on October 29, 2006.
The witness stated that he was familiar with security procedures and protocols in place at Great Meadow in October 2006. In that regard, he testified that on weekdays "the first ten companies en route to the meal are subject to walk-through metal detector" (Tr. p. 116). The first ten companies allowed to proceed to the mess hall change to insure randomness. On weekends, inmates proceeding from the housing unit to the mess hall are subject to random pat frisks augmented with hand-held metal detectors. Inmates are observed while in the mess hall and any inmate determined to be acting in an unusual or suspicious manner is pat frisked prior to exiting the mess hall and entering the Big Yard. Walk-through metal detectors are not used on weekends primarily due to reduced correction officer staffing levels. Walk-through metal detectors are used on weekdays as inmates enter the mess hall for lunch. Lieutenant Smith explained that on weekdays inmates proceed to their individual program area following the lunch meal and walk-through metal detectors are used to insure the safety of civilian employees administering the programs. On weekends, inmates proceed directly to the yard from the mess hall following lunch. Upon questioning from the Court, Lieutenant Smith agreed that the primary distinction made between the use of walk-through metal detectors on weekdays and weekends is the reduced number of correction officers on duty on weekend days.
The witness testified that he had "some recollection" of the assault involving the claimant on October 29, 2006 and was involved in preparation of an unusual incident report regarding the matter (Tr. p. 122). He stated that when an inmate assault occurs both inmates are pat frisked and the area searched for weapons. He was aware that no weapon was recovered in relation to the assault upon the claimant. With regard to staffing levels in the Big Yard on weekends, Lieutenant Smith testified that a sergeant and two COs are generally posted at the sergeant's stand and what is known as the "storehouse gate"; while additional COs occupy posts in the towers surrounding the yard (Tr. p. 123). In addition, company officers for cell blocks allowed to participate in weekend afternoon recreation periods escort inmates who are not going to the yard back to the cellblock and lock them in. The company officers remain at the cellblock until the next company returns, assist in securing the inmates and then report to the yard. He estimated that 15 - 20 correction officers are in the yard during weekend recreation periods depending on which companies are participating in recreation. The weightlifting area portion of the yard remains closed until a full security contingent is in place and all company officers have reported to the yard. He stated that the Big Yard is monitored through the use of stationary posts as well as roaming patrols.
On cross-examination the witness testified that walk-through metal detectors are used on weekdays to protect civilian employees involved in inmate programs. He stated that although inmates participating in afternoon weekend recreation periods are not subject to walk-through metal detectors, "every inmate that goes to the evening recreational period goes through the metal detector" (Tr. p. 129). He attributed the failure to use walk-through metal detectors during afternoon weekend recreation periods to reduced staffing levels stating:
"On the afternoons, the day shift officers of the - - who are supervising the companies that are not in the yard are alternately supervising cell cleanup and block cleanup. On the weekends they cover congregate religious services" (Tr p. 130).
Lieutenant Smith explained that it requires seven correction officers to operate a walk-through metal detector. One officer observes inmates as they enter the metal detector and another monitors the detector as inmates pass through. An additional five correction officers are available to perform pat frisks. While he acknowledged that a walk-through metal detector may detect weapons not found during a pat frisk, he also stated that weapons not detected by the metal detector can be discovered as a result of a pat frisk. Reviewing Exhibit E, an unusual incident report prepared following the incident involving the claimant, the witness testified that the report indicates that both inmates were pat frisked and the area where the incident occurred was searched. In fact, Lieutenant Smith personally directed the yard sergeant to undertake a search of the area where Correction Officer Beecher observed the inmates exchange punches.
On redirect examination the witness testified that walk-through metal detectors do not detect non-metallic weapons. He estimated that 160 correction officers are on duty on weekdays during the 6:30 a.m. to 2:30 p.m. shift while 125 - 130 correction officers are on duty during the same shift on weekends. In addition to reduced staffing levels, on weekends correction officers are involved supervising religious services and cell and block cleanup activities.
The Court of Appeals has made clear that "[h]aving 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 [2002]). This duty does not require "unremitting surveillance in all circumstances," nor does it cast the State in the role of an insurer of inmate safety (Id. at 256). Rather, the duty is limited to risks of harm that are reasonably foreseeable, which includes not only what the defendant actually knew but what it should have known (Id. at 253- 254; see also Vasquez v State of New York, 68 AD3d 1275 [2009]; Di Donato v State of New York, 25 AD3d 944 [2006]). "Although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent" (Sanchez v State of New York, 99 NY2d at 252). Claimant in the instant action seeks to premise the liability of the State on two bases: First, that had prison officials utilized the available metal detectors on inmates entering the Big Yard, the weapon with which he was slashed would have been detected and the incident averted. Second, claimant contends that prison guards failed to come to his aide in the 35-second interval between the time he called for help and the time he was cut with a sharp object.
The only theory of liability alleged in the notice of intention, which claimant sought and was granted permission to treat as a claim (Brown v State of New York, [UID No. 2010-015-101, Claim No. 114292, Motion No. M-76952, CM-77040], Ct Cl, January 8, 2010, Collins, J.), was that correction officers failed to promptly intercede in the altercation in order to prevent or disrupt the assault. The Notice of Intention (hereinafter referred to as the "claim") states, in pertinent part, the following:
Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us/decision.htm.
"While waiting in line all of a sudden an unknown inmate turned face to face with me and slashed me down the left front side of my face with a razor blade like weapon. . . . This assault happened in an area of the facility's 'Big yard' that has a total of six guard stations for security purposes, two of these guard stations are in close vicinity of the assault when it happened, and those officers in those stations looked on as I was being assaulted by said unknown inmate. By these officers deliberate acts to allow me to be assaulted, failed to protect me from serious physical harm, as they knowingly looked away from me as I was being assaulted" (Exhibit A, Notice of Intention treated as a claim).
Recognizing the fact that the claim did not allege a failure to utilize metal detectors, claimant's counsel moved pursuant to CPLR 3025 (c) to conform the pleadings to the proof (Tr. pp. 110-111). Claimant's counsel also requested that the pleadings be conformed to the proof with respect to the allegation in the claim that "all of a sudden an unknown inmate turned face to face with me and slashed me . . ." Claimant contends that the claim should be conformed to reflect claimant's trial testimony that 35 seconds elapsed between the time he called for help and the time he was slashed.
CPLR 3025 (c) permits "pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just . . ." Whether to grant such a motion is determined by considering "such factors as the delay in moving, surprise, and significant prejudice, the latter being the foremost consideration" (Rothstein v City Univ. of N. Y., 194 AD2d 533, 534 [1993]). With respect to actions against the State, additional consideration must be given to the jurisdictional constraints of the Court of Claims. "Under section 8 of the Court of Claims Act, the State has waived its sovereign immunity from liability 'provided the claimant complies with the limitations of this article' ", including the pleading requirements of § 11(b) (Kolnacki v State of New York, 8 NY3d 277, 280 [2007]). "The Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]). Noncompliance with the statute renders a claim jurisdictionally defective (see Kolnacki v State of New York, 8 NY3d at 280-281 [2007]; Davis v State of New York, 64 AD3d 1197 [2009], lv denied 13 NY3d 717 [2010]; Wilson v State of New York, 61 AD3d 1367 [2009]; Hogan v State of New York, 59 AD3d 754 [2009]; Nasir v State of New York, 41 AD3d 677 [2007]). A jurisdictionally defective claim may not be cured by amendment (Dinerman v NYS Lottery, 69 AD3d 1145 [2010]; Hogan v State of New York, 59 AD3d 754, 755 [2009]; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [1986]).
Court of Claims Act § 11 (b) requires that a claim set forth "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed". In Heisler v State of New York (78 AD2d 767 [4th Dept 1980]) the Appellate Division, Fourth Department, made clear in discussing the pleading requirements of section 11 (b) that while pleading with "absolute exactness" is not required, the claim "must be specific enough so as not to mislead, deceive or prejudice the rights of the State" (Id. at 767). Heisler was cited with approval by the Court of Appeals in Lepkowski (supra), for the conclusion that the guiding principle underlying section 11 (b) is whether the State is able " 'to investigate the claim[s] promptly and to ascertain its liability under the circumstances'" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003], quoting Heisler v State of New York, 78 AD2d 767, 767 [1980]).
One recent case from the Appellate Division, Fourth Department, held that " 'lack of prejudice to the State is an immaterial factor' " in determining compliance with § 11 (b) (Wilson v State of New York, 61 AD3d 1367, 1368 [2009], quoting Byrne v State of New York, 104 AD2d 782, 784 [1984]). However, upon consideration of the Court of Appeals holding in Lepkowski (supra), which cited Heisler, (supra) with approval, this Court does not view the holding in Wilson v State of New York (supra) as overruling Heisler ( but see Yanus v State of New York, 937 NYS2d 825 [2011]).
In Lepkowski the Court of Appeals described each of the five requirements of a claim set forth in Court of Claims Act § 11 (b) as "substantive conditions upon the State's waiver of sovereign immunity" (Lepkowski, supra, p. 207). Here the claimant has failed, in the notice of intention/claim, to state the nature of a claim for the alleged negligence of the State in not utilizing available metal detectors. The allegations in the instant claim are insufficiently specific to enable the State to investigate the contention that defendant was negligent in failing to utilize the available metal detectors for inmates entering the Big Yard. While the claim clearly apprised the defendant of the claimant's allegation that correction officers deliberately failed to prevent the assault, it did not allege as a basis for liability the State's negligent failure to utilize available metal detectors. The claim, having failed to apprise defendant that a negligence claim of this nature would be asserted, failed to satisfy the pleading requirements of Court of Claims Act § 11 (b) and is, therefore, jurisdictionally defective with respect to any such theory of liability. Inasmuch as a jurisdictional defect in a claim may not be cured by amendment, the claimant's motion to amend the claim to conform to the proof presented at trial is denied (Dinerman v NYS Lottery, 69 AD3d 1145 [2010], supra; Hogan v State of New York, 59 AD3d 754, 755 [2009], supra; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [1986], supra).
Moreover, the Court is unable to conclude that the defendant's failure to utilize the available metal detectors was anything other than a discretionary determination for which DOCCS is immune from liability (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428 [2011]; McLean v City of New York, 12 NY3d 194 [2009]). The evidence adduced at trial established that DOCCS' decision not to utilize the metal detector on weekends was based on staffing limitations. In light of those limitations, it was decided that inmates attending weekend afternoon recreation would be observed by correction officers while in the mess hall and those exhibiting suspicious behavior would be pat frisked prior to entering the Big Yard. Given the absence of evidence indicating that the safety measures employed on the premises violated penological standards or practice (Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]; Trimarco v Klein, 56 NY2d 98 [1982]), DOCCS' discretionary determination regarding how to best allocate its staff "cannot be dictated by the edict of a court or the retrospective conclusions of [the factfinder]" (Matter of World Trade Ctr Bombing Litig., 17 NY3d at 452). The State is therefore immune from liability for such discretionary determinations.
In support of the contention that inmate-on-inmate assaults with the use of razors are foreseeable at Great Meadow, claimant requests the Court to take judicial notice of certain materials taken from the Correctional Association of New York website (Court Exhibit 1). This is not an official website of the State of New York and the facts contained therein do not "rest[ ] upon knowledge or sources so widely accepted and unimpeachable that it need not be evidentiarily proven" (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009] [internal quotation marks and citation omitted]). Furthermore, none of the materials from the website sought to be introduced establish a deviation from accepted penological standards or practice.
Finally, there is no reasonable basis in the proof presented at trial upon which to find that the use of metal detectors would have prevented the attack on the claimant. In this regard, claimant's trial testimony, taken together with testimony provided at his examination before trial, fails to establish that the claimant was attacked with a metal razor. No weapon was recovered and claimant only testified to his surmise that a metal razor was used, based upon impressions formed from his observations of the shape of the object and the fact that "the scar tissue of my scar clearly states that I was cut with a razor" (Tr. p. 22). To sustain a cause of action alleging negligent failure to utilize available metal detectors the least that must be shown, by a preponderance of the evidence, is that the claimant was attacked using a weapon of the type the machines are designed to detect. Upon this record it is as likely the claimant was cut by a non-metallic object, as by one made of metal. Even the claim is ambiguous on this issue, alleging the claimant was attacked "with a razor blade like weapon" (see Exhibit A). As a result, were the merits reached, the cause of action premised upon the failure to use metal detectors for inmates entering the Big Yard would be dismissed.
To the extent claimant seeks to amend the claim to reflect his trial testimony regarding the 35-second interval between the time he requested assistance and the moment he was slashed, this motion is also denied. The fact that claimant's trial testimony is at odds with the allegation in the claim that the assault was "sudden" raises issues of credibility for which amendment of the claim, to negate the inconsistency, would not be appropriate. Indeed, the Court finds claimant's trial testimony unpersuasive for several reasons. First, the claimant stated in his sworn claim, drafted prior to retaining counsel, that the assault was "sudden". Moreover, claimant failed to mention calling out for assistance or a 35-second delay between the time he sought assistance and the time he was slashed in either the claim or his grievance. While the claim alleges that the correction officers "knowingly looked away from me while I was being assaulted", Correction Officer Beecher testified that he observed Inmate Frazier and the claimant exchange punches and then walk in a northerly direction before turning back toward the sergeant's stand. When he observed claimant bleeding, he contacted his area supervisor. Only three minutes passed from the time he observed claimant and Inmate Frazier fighting to the time correction officers responded and took them into custody. The misbehavior report drafted by Officer Beecher is consistent with his testimony at trial (Exhibit B). Absent evidence indicating a motive for correction officers to ignore claimant's request for help, the Court is unable to credit claimant's description of the events at trial.
Claimant denied knowledge of the identity of his assailant, and no evidence was adduced tending to establish that the assault on the claimant was anything other than the sudden, unforeseeable occurrence originally described in the claim (see Elnandes v State of New York, 11 AD3d 828 [2004]). The fact that prison officials were generally aware that weapons may be possessed and used by inmates in the Big Yard is insufficient "to establish that a reasonable probability existed that this claimant would be attacked at this time and place" (Sanchez v State of New York, 36 AD3d 1065, 1067 [2007]). That being the case, claimant failed to establish by a preponderance of the credible evidence that the negligence of the State was a proximate cause of his injuries.
Based on the foregoing, the claim is dismissed.
All motions not decided herein are denied.
Let judgment be entered accordingly.
March 22, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims