Opinion
# 2013-018-414 Claim No. 116825 Motion No. M-82681
03-28-2013
MICHAEL ORSO v. STATE OF NEW YORK
Synopsis
The Defendant had no actual or constructive notice that the inmate would engage in a vicious attack against the claimant. Claimant failed to raise a material issue of fact. A maximum security prison facility is filled with many historically violent individuals, who engaged in heinous conduct as members of society, and many have mental health concerns, but there is simply nothing that would have alerted the State that this inmate was particularly dangerous or that Claimant was particularly in danger to prevent this assault.
Case information
UID: 2013-018-414 Claimant(s): MICHAEL ORSO Claimant short name: ORSO Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116825 Motion number(s): M-82681 Cross-motion number(s): Judge: DIANE L. FITZPATRICK FRANZBLAU DRATCH, P.C. Claimant's attorney: By: Brian M. Dratch, Esquire Elizabeth A. Delahunty, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Bonnie Gail Levy, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: March 28, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant brings a motion for summary judgment, alleging that there are no issues of fact and the claim can be decided as a matter of law. Claimant opposes the motion.
Most of the facts related to the incident are not in dispute. The claim arises from an assault upon Claimant, an inmate, at Five Points Correctional Facility by another inmate on September 26, 2008. Shortly after 11:30 a.m., on that day, Claimant and several of the other inmates from his cell block, 11 Block C-1, were proceeding from the gallery to lunch. Claimant was leaning against the wall by the front part of the gate. He felt something around the lower part of his body, like someone's feet, and then he was cut on the right side of his face from his temple down to this throat; he was severely injured. There were four or five correction officers a few feet away, four of whom witnessed the attack. All of the officers stated they saw Inmate Barrington with a closed fist slash Claimant's head and neck and then drop a razor blade to the ground. Officer C. Learn directed Inmate Barrington to the wall. He complied and was frisked. No other contraband was found. Officer R. Goodell secured the razor.
Defendant's Exhibit L, affiant's numbering, pp. 8-11.
Claimant began serving his prison sentence in January 1998. He was housed in five other prison facilities before coming to Five Points in February 2008, and he has no history of violence at any facility.Claimant was the victim of one prior assault when he was held at Wende Correctional Facility. On the evening of July 17, 2003, in the large recreation yard at Wende, he was assaulted and cut across the face and was then placed in involuntary protective custody. Claimant has never asked to be placed in protective custody at any of the facilities in which he was incarcerated.
Claimant did have a disciplinary history that involved three incidents. He was disciplined for failing to immediately report his injury after he was assaulted in 2003. In December 2006, he was disciplined for false information and smoking, and in June 2008, for altering an item (Defendant's Exhibit I, p. 19).
Claimant testified that prior to this attack, he knew that Inmate Barrington was on his cell block, but he did not know him, had no conversations with him, and had no reason to fear him. Claimant denied any threats or rumored attack by Inmate Barrington. Claimant also denied ever talking about Inmate Barrington to anyone else. Although, after the assault, Inmate Barrington said Claimant had made negative comments which triggered the attack.
At his deposition, Claimant described two prior incidents involving Inmate Barrington before the assault. On those occasions, he saw Inmate Barrington being escorted out of the mess hall for sitting down at the table without any food on his tray. Inmate Barrington was not aggressive or violent at that time, he was simply escorted out of the mess hall.
The deposition of Douglas Botsford was submitted in support of the motion. Mr. Botsford was the Assistant Director of Classification and Movement for the prison system at the time of Inmate Barrington's classification, and he described how inmates are classified when they present to the reception facility. The Initial Security Classification Guideline is used to quantify the inmate's behavior and consists of review of the presenting offense, the most serious prior offenses, violence associated with those crimes, the inmate's time of release, sentence structure, escape or absconding behavior, and institutional record. These factors are used to arrive at a public risk score and an institutional risk score that result in the final classification. Medical and mental health histories are not taken into account in assessing the appropriate security classification. Even though all inmates are evaluated by the Office of Mental Health, an inmate's psychiatric stability or suicidal ideation do not factor into the security classification. There are several levels of security classification. Inmate Barrington was given a maximum security classification, O1 Max A.
The security classification does not determine whether the inmate is in general population or elsewhere. Protective custody is used for inmates that are vulnerable, not for inmates that present a risk to other inmates. Segregation for violent inmates is based upon disciplinary determinations over the course of their incarceration. Inmate Barrington was transferred to Five Points, for disciplinary reasons, after he refused to participate in the program at Willard Drug Treatment facility and received a disciplinary ticket. Five Points is a maximum facility, which provides the highest level of security. According to Mr. Botsford, there was nothing in Inmate Barrington's history that showed he was a particular risk or danger to other inmates.
The deposition of Sergeant William Kelly, a correction officer for 22 years at the time of his deposition, was also submitted. Sergeant Kelly was assigned to the area where Claimant was injured on that day, and he interviewed both Claimant and Inmate Barrington and reported to the watch commander.
Claimant alleges that Sergeant Kelly told him during the interview that the State should have recognized Inmate Barrington's inappropriate behavior and prevented this attack. Claimant also alleges that Sergeant Kelly told him after the attack that Inmate Barrington had mental health issues, and he showed him on the computer that Inmate Barrington had attempted suicide, had certain violent difficult behavior, and had an outstanding warrant for a serious crime. Sergeant Kelly denies this and testified that he interviewed Claimant in the infirmary where there are no computers and, in any event, he would not be able to access the mental health history. What is available is a mental health classification level from 1 to 6. Level 6, according to Sergeant Kelly, means the inmate does not get mental health services, a Level 1 may receive medication.
Claimant also asserts that Correction Officer Richardson told him, after he was injured, that the night before his assault, Inmate Barrington and his cell mate, Inmate Mathis, got into a verbal altercation, and Claimant said that he heard a "disturbance" that night. According to Claimant, based upon what Officer Richardson told him, there was no physical confrontation and no weapons were involved. Claimant also indicates that Officer Richardson told him that he didn't realize that Inmate Barrington was "so wound up or had issues going on with him."
Defendant's Exhibit I, p. 34, lines 7-8.
Part of the supporting documentation is information collected as part of the investigation after the assault, and includes the sworn statements of Inmate Keith Mathis,cell mate of Inmate Barrington, and Inmate Lequan Payne,cell mate of Claimant. Inmate Mathis indicated that before leaving to go to lunch the day of the assault, Inmate Barrington was sitting on his bed watching television and when lunch was called he got up and left. Inmate Mathis did not go to lunch. He had been Inmate Barrington's cell mate for about a month before this incident, and he had no knowledge of why Inmate Barrington would have attacked Claimant. He knew of no conflicts between the two. He also indicated that he got along well with Inmate Barrington and had no problems. Claimant's cell mate also had no knowledge of any reason for the attack by Inmate Barrington.
Defendant's Exhibit L, affiant's numbering p. 22.
Defendant's Exhibit L, affiant's numbering p. 23.
Under separate cover, for confidentiality, Defendant provided Exhibit M which are certified records for Inmate Barrington, including his Custodial Transfer Sheet shortly after he began his incarceration. The document indicates Inmate Barrington had no assaultive behavior, no drugs, weapons or other serious contraband, no self-injury or attempts, no known enemies, and no indication that he was a potential victim. The inmate's adjustment to confinement was fair. On the "Individual Referral Print" it shows an OMH level of 6.
Summary judgment is the functional equivalent of a trial and should only granted where there are no substantive issues of fact, and the claim can be decided as a matter of law (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). To be successful on a motion for summary judgment, the proponent must first present "a prima facie showing of entitlement to judgment as a matter of law. . ." (Winegrad v New York University Medical Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Only then does the burden shift to the opponent to present evidence to show the existence of a material fact requiring a trial (Zuckerman, 49 NY2d at 562).
The State owes a duty to the inmates in its prison facilities to protect them from the foreseeable risk of harm (Flaherty v State of New York, 296 NY 342, 346 [1947]; Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012]; Newton v State of New York, 283 AD2d 992 [4th Dept 2001]). Yet, the State is not an insurer of an inmate's safety and it will not be liable for an inmate on inmate assault unless there is proof that the assault was reasonably foreseeable and the State failed to exercise reasonable care to prevent it (see Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]; Melvin, 101 AD3d at 1654-1655; Newton, 283 AD2d at 993). The risk of a reasonably foreseeable attack encompasses not only what the State knew but also what it should have known based upon its institutional knowledge (Sanchez, 99 NY2d at 256). In this type of case, the State bears a heavy burden on a summary judgment motion, "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." (Sanchez, 99 NY2d at 254).
Defendant has met that heavy burden here. The undisputed evidence establishes that Inmate Barrington had no history of violence or threatening other inmates while in State custody. He was transferred into Five Point because he did not comply with his program at the drug treatment facility and was given the highest security classification.
There are no disputed facts which suggest the State, or even Claimant, knew or suspected that Inmate Barrington would engage in such assaultive behavior. There are no facts to support that the State knew or should have known Inmate Barrington had any problem with Claimant before the attack. It was only after the attack that Inmate Barrington indicated he assaulted Claimant because of negative comments allegedly made by Claimant about him. Claimant denies making any such comments. Whether or not these comments were made is not a material issue where there is nothing to suggest the State knew or should have suspected such behavior.
At the time of the assault, there were four or five correction officers within approximately 18 feet of 32 inmates.Claimant does not allege a lack of supervision. Claimant also does not allege, nor is there any indication he was a likely victim, individually, or as part of a class of inmates.
Claimant indicates there were about 10 - 12 inmates, but a report of the incident in Defendant's Exhibit L reflects 32 inmates. See reports of Correction Officers Goodell and Learn, Defendant's affiant's numbering, pp. 8 and 9.
--------
Claimant tries to raise an issue of fact asserting that Sergeant Kelly told him that Inmate Barrington had a prior history of mental illness and allegedly indicating prison officials should have recognized his inappropriate behavior (see Haymon v Pettit, 9 NY3d 324, 327 [2007]). Sergeant Kelly denies this, but even accepting Claimant's version of the facts, having mental illness does not mean the State should have anticipated his brutal attack. Exhibit M reflects that Inmate Barrington had no known physical or mental health problems on evaluation on his admission into the prison system.
Although Claimant points to Inmate Barrington's unusual behavior in the mess hall on two occasions, even affording Claimant every favorable inference from these facts (id., at 327 n), there is simply no evidence that Inmate Barrington was going to be violent or engage in an assault on a fellow inmate. On both prior occasions, Claimant testified Inmate Barrington left the mess hall without further incident, escorted by a correction officer.
Defendant has established that only one conclusion can be drawn from the material, undisputed facts. The State - - like Claimant - - had no actual or constructive notice that Inmate Barrington would engage in a vicious attack. Claimant has failed to raise a material issue of fact. A maximum security prison facility is filled with many historically violent individuals, who engaged in heinous conduct as members of society, and many have mental health concerns, but there is simply nothing that would have alerted the State that Inmate Barrington was particularly dangerous or that Claimant was particularly in danger to prevent this assault.
Accordingly, Defendant's motion must be GRANTED. The claim is DISMISSED.
March 28, 2013
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support with exhibits attached thereto.
3) Defendant's Memorandum of Law in support.
4) Confidential Information, Exhibit Submitted Under Separate Cover Due to
Confidentiality Stipulation.
5) Affirmation of Elizabeth A. Delahunty, Esquire, in opposition