Opinion
# 2014-039-394 Claim No. 119659 120282
01-09-2014
DE QUAN RAVENELL v. STATE OF NEW YORK
Claimant's attorney: De Quan Ravenell, pro se Defendant's attorney: Hon. Eric T. Schneiderman Attorney General of the State of New York By: Glenn C. King Assistant Attorney General
Synopsis Following a bifurcated trial on the issue of liability, the Court finds that claimant has failed to establish his claim of negligence against defendant. The evidence at trial demonstrated that claimant was assaulted by his cell mate in their shared cell and that a significant amount of time elapsed between when the assault began and when correction officers responded to the altercation. However, even if the Court were to find that the State breached a duty to claimant in failing to respond to the assault in a timely manner and in failing to make its regular rounds, the Court must nevertheless dismiss the claim because claimant has failed to prove that the ascribed negligence of the State was a proximate cause of his injuries.
Case information
UID: 2014-039-394 Claimant(s): DE QUAN RAVENELL Claimant short name: RAVENELL Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119659, 120282 Motion number(s): Cross-motion number(s): Judge: James H. Ferreira Claimant's attorney: De Quan Ravenell, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Glenn C. King Assistant Attorney General Third-party defendant's attorney: Signature date: January 9, 2014 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case)
Decision
Claimant De Quan Ravenell (hereinafter "claimant") filed Claim No. 119659 with the Clerk of the Court of Claims on March 28, 2011. The claim arises from an altercation between claimant and another inmate in their shared cell in the early morning hours of February 13, 2011 at the Upstate Correctional Facility in Malone, New York (hereinafter "Upstate C.F."). The crux of the claim is that correction officers on duty that morning were negligent in failing to respond to the assault in a timely manner and failing to conduct rounds or cell inspections as required.
The Court notes that claimant filed two claims based on the February 13, 2011 incident. Claim No. 119659 was filed with the Clerk of the Court of Claims on March 28, 2011. The second claim, Claim No. 120282, was filed on August 29, 2011. At trial, claimant acknowledged that the two claims are identical and indicated his intent to withdraw Claim No. 120282. Accordingly, the Clerk of the Court is directed to close Claim No. 120282.
A trial on the issue of liability was held on October 2, 2013 at the New York State Court of Claims in Albany, New York. Claimant testified and proffered medical records, an Inmate Misbehavior Report and his claim as evidence. Defendant offered the testimony of a correction officer on duty that morning and an excerpt from a log book reflecting rounds performed that day.
At trial, claimant testified that, on February 13, 2011, he was an inmate at Upstate C.F. in Malone, New York. At the time of the incident, he was double bunked in a Special Housing Unit (hereinafter "SHU"), 8 Building, cell 49, with Wensley Roberts, another inmate. Claimant stated that he had been assigned a bottom bunk because he had a history of seizures. He testified that at "roughly about 4:30, 5 in the morning", he was lying on his bottom bunk and asleep, when Roberts kicked him in the face and woke him up. Because he had been sleeping, claimant was "defenseless" and "didn't get not one hit off." Roberts then "started beating the heck out of [claimant] out of [his] sleep." Claimant stated that he suffered missing teeth, a fractured nose, a head injury and an eye injury as a result of the fracas, and medical records proffered by claimant support his testimony on this point (see claimant's exhibit 1). Claimant testified that his cell mate only suffered a "knot on his head" as a result of the incident. He testified that he thought that he knew Roberts "pretty well" and recalled having a "light argument about sports" with Roberts prior to the attack, but thought that the matter had been resolved.
Unless otherwise indicated, all quotations are from the electronic audio recording of the trial.
Claimant testified that he "made a number of attempts to notify the staff" during and after the attack, and that correction officers were "usually supposed to make rounds . . . every 30 to 45 minutes" but on this occasion "no rounds were made for probably over an hour." His attempts to notify correction staff involved banging and kicking the cell door and yelling. He stated that he "banged on the door to no avail" and recalled feeling lightheaded after the second head injury that he received. He stated that it took "at least an hour and a half" for someone to come to his cell and assist him. He stated that it was "kind of hard to really get a staff's [sic] attention" and that you had to wait for the officers to make the rounds. He believed that staff makes rounds every 30 to 45 minutes, and he knew this because of serving previous periods of time in the "box" or SHU. Claimant testified that, when an officer did arrive, he was "soaked in blood" and the cell was a "bloodbath." He stated that the fight even reached the point where Roberts stopped the beating to assist claimant in banging on the cell door in order to get claimant out of the cell. An Inmate Misbehavior Report was issued to claimant by a sergeant (see claimant's exhibit 2).Claimant testified that the report was incorrect because it described the incident as a "cell fight" when, in claimant's view, it was not a fight because Roberts "jumped" claimant and attacked him while he slept (see id.).
The record is unclear as to whether the cell mate was issued a similar report.
During cross-examination, claimant testified that the altercation lasted 15 to 20 minutes and that it was "maybe an hour or so" before staff came to the cell. During redirect examination, claimant stated that his primary complaint is that "nobody came in an ample amount of time" and that he "could have died." He also stated that, after the altercation concluded, it was another "30 to 35 minutes" before help arrived.
Defendant called Eric Velie, a correction officer at Upstate C.F., to testify. Velie testified that he has worked for the New York State Department of Corrections and Community Supervision (hereinafter "DOCCS") as a correction officer for 12 years, and has worked at Upstate C.F. for the past 5 years, including on February 13, 2011. On that morning, he was working as an 8 Building C-Gallery escort officer, which involved, among other things, escorting medical and nursing staff during sick call as they distribute medicine to inmates.
Velie testified that he had worked at C-Gallery on an "intermittent" basis, "once or twice a week" for "roughly two to three years" prior to February 13, 2011. Velie testified that it was the responsibility of the C-Gallery correction officer to conduct the regular rounds and cell searches. According to Velie, in C-Gallery, rounds are conducted "approximately every half an hour" by the C-Gallery correction officer but "have to be done at irregular times" per Directive 4933.
Velie stated that there is a console officer who keeps a log book as to when the rounds are conducted. The Court received into evidence without objection an excerpt from the log book showing when inmate counts were made, when rounds occurred, and the names of the officers who conducted the rounds between 10:00 p.m. on February 12, 2011, and 9:30 p.m. on February 13, 2011 (see defendant's exhibit A). The exhibit shows, among other things, that rounds began at 10:00 p.m. on February 12, and that rounds occurred thereafter through the early morning hours of February 13, including: 3:50 a.m. rounds started - 4:00 a.m. rounds finished, count called in to watch commander; 4:30 a.m. rounds started - 4:40 a.m. rounds finished; 5:10 a.m. rounds started - 5:15 a.m. rounds finished, count called in to watch commander. The exhibit also indicates that the "end of tour" occurred at 5:45, and that a shift change where the officers on duty are relieved by new officers happened at 6:00 a.m. (id.). Velie stated that the next rounds began at 6:20 a.m. At that time, he escorted the nurse during that round as she distributed medication and provided sick call to inmates who requested it.
Velie also testified to a log book entry that states: "5[:]32 Rds Made." However, the Court has reviewed the exhibit and notes that this entry has lines drawn through it, and the initials MA are denoted in a circle next to the crossed-out entry. The initials appear to be from correction officer M. Ashley, who was on duty at that time (see defendant's exhibit A, at 203). Velie neither explained why the entry is crossed out, nor mentioned while reading the exhibit at trial that the entry was marked up and had lines drawn through it.
Velie recalled that, on the morning of February 13, 2011, while making "the medication run" rounds with a nurse that morning, he "heard banging" as he stepped off the elevator onto the second floor of 8 Building. He went down the hallway to investigate and it "appeared that there was a cell fight at the time." Velie testified that claimant had never informed him that he felt threatened. During cross-examination, Velie stated that he did not know who was the gallery officer who was supposed to make the rounds on or about the time the medical rounds occurred. During redirect, he stated that there are no medical escort rounds during the midnight-early morning shift; rounds at that time are conducted by gallery correction officers. He also explained that, when he testified that rounds are "irregular," he meant that inspections may be off a few minutes, either earlier or later, so that inmates cannot determine when exactly a round may occur.
DISCUSSION
As a preliminary matter, the Court notes that the theory of liability set forth in the claim - and the focus of the evidence presented by claimant at trial - is that State employees were negligent in failing to make their required rounds or cell inspections and in failing to respond to the assault in a timely manner. Indeed, claimant testified that his primary complaint is that "nobody came in an ample amount of time" and that he "could have died." Claimant has not alleged that the State is vicariously liable for the assault committed by claimant's cell mate because it failed to protect him from the assault. However, even if the claim were to be construed as alleging such a cause of action, the cause of action would be dismissed, as there was no proof presented that the assault was reasonably foreseeable, i.e., that the State "knew or had reason to know" that claimant would be assaulted by his cell mate (Sanchez v State of New York, 99 NY2d 247, 253-255 [2002]; see Di Donato v State of New York, 25 AD3d 944, 944 [3d Dept 2006]). In fact, claimant's testimony establishes that the attack came as a surprise to him. As such, the Court's decision will be limited to addressing claimant's allegations that DOCCS employees were negligent with respect to conducting rounds on the morning of February 13, 2011 and in failing to respond to the assault in a timely manner.
In order to establish a prima facie case of negligence, " 'a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff' " (Comack v VBK Realty Assoc., Ltd., 48 AD3d 611, 612 [2d Dept 2008], quoting Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2d Dept 2005]; see Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]). It is well settled that the State, which has "assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can," owes a duty of care to safeguard inmates in its penal institutions (Sanchez v State of New York, 99 NY2d at 252 [2002]; see Flaherty v State of New York, 296 NY 342, 346 [1947]; Di Donato v State of New York, 25 AD3d at 944). However, "the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety" (Sanchez v State of New York, 99 NY2d at 256). Among other things, claimant must establish that the State's alleged delay in conducting rounds or otherwise responding to the assault was the proximate or aggravating cause of claimant's injuries (see e.g. Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and considering the testimony and demeanor of the witnesses, the Court finds that claimant has failed to establish, by a preponderance of the credible evidence, his claim of negligence against defendant.
The Court found claimant to be a credible witness and generally credits his testimony regarding the assault and his attempts to get the attention of correction officers, as well as his testimony that a significant amount of time elapsed - an hour to an hour and a half - between the time when the fight began and when correction officers responded to claimant's calls for help. Claimant testified that he believed that the fight began around 4:30 or 5:00 a.m., but the evidence before the Court suggests that it began later than estimated by claimant. It is clear from the log book that claimant was discovered injured in his cell at 6:40 a.m.; based upon claimant's estimate that an hour to an hour and a half elapsed between the start of the fight and its discovery, the Court finds that it is more likely that the assault commenced sometime between 5:10 and 5:40 a.m. The Court also finds that the credible evidence before it establishes that no rounds occurred in the SHU, 8 Building, where claimant was housed between 5:15 a.m and 6:20 a.m. on the morning in question, a lapse of 65 minutes between rounds. Although Velie referred to a 5:32 a.m. rounds entry in the log book, the entry is crossed out, with initials of the officer on duty next to the marking, suggesting to this Court that rounds were not made at that time. The view the Court finds more credible is that a round finished at 5:15 a.m., and the next round was the round with the nurse and the escort officer, which started at 6:20 a.m. As a result, correction officers did not discover the cell fight between claimant and his cell mate, which had begun sometime between 5:10 a.m. and 5:40 a.m, until 6:40 a.m., during the nurse rounds that began at 6:20 a.m.
Notably, the 6:20 a.m. rounds were rounds by a nurse. Accepting claimant's argument that nurse rounds are not the same as regular security rounds made by a correction officer, the lapse between rounds becomes even longer. According to the log book, it appears that the next "regular" rounds were made at 6:50 a.m.
It appears from the log book that a separate cell fight was discovered at 6:25 a.m. before the one involving claimant was discovered, providing a possible explanation for why it took 20 minutes from when rounds began for correction officers to discover that claimant was injured.
The 65-minute gap between rounds violated DOCCS' internal directives providing for rounds every 30 minutes on an irregular basis.<
Velie testified that rounds are conducted approximately every 30 minutes, on an irregular basis, by the C-Gallery correction officer pursuant to DOCCS Directive 4933. Claimant similarly testified that rounds are conducted in the SHU every 30 to 45 minutes. The Court notes that neither party offered into evidence a copy of the relevant section of DOCCS Directive 4933.
The 65-minute gap was also inconsistent with the way that rounds had been conducted since at least 10:00 p.m. the previous evening as documented in the log book - approximately every 30 to 40 minutes. Specifically, the log book indicates that from 10:00 p.m. through 5:15 a.m., the rounds appear fairly regular, occurring every 30 to 40 minutes and lasting about ten minutes each. Even assuming that rounds occurred at 5:32 a.m., then 48 minutes elapsed before the round with the nursing staff began, still longer than the time between the previous rounds and longer than the time prescribed by DOCCS' directive.
In considering this record as to when rounds were conducted and their duration, the Court is reticent to second-guess decisions made by DOCCS with respect to staffing or surveillance of its facilities, or its determinations as to what is an appropriate amount of time between rounds in a SHU. That being said, the Court is troubled by the fact that claimant received no response to his banging and cries for help for a significant period of time, and the fact that, for whatever reason, rounds were not conducted with the same regularity between 5:15 a.m. and 6:20 a.m. as they had been in the approximately 7 hours prior to the attack. The Court's concern is further heightened by the fact that claimant was housed in a SHU, where inmates are segregated from the general prison population for, among other things, disciplinary reasons and may be, as here, housed in double-occupancy cells (see 7 NYCRR 300.2; 301.2).
However, even if the Court were to find that the State had breached a duty owed to claimant in failing to respond to the assault in a timely manner and in failing to make its regular rounds during the time period in question, the Court nevertheless must dismiss this claim because claimant has failed to prove by a preponderance of the evidence that the ascribed negligence of the State was a proximate cause of his injuries. With respect to the assault, claimant testified that the first hit that he received was a kick to the face, that the attack lasted approximately 15 to 20 minutes, and that his injuries included missing teeth, a fractured nose, more than one head injury and an eye injury. Claimant did not provide any other particulars about the assault. The Court is unable to discern from claimant's testimony - or the medical records proffered by claimant - when each injury occurred during the course of the assault and what injuries, if any, occurred as a result of - or were exacerbated by - the State's delay in discovering the assault and/or making regular rounds. It is impossible to determine, for example, whether claimant's injuries occurred as a result of the first blow to claimant's face, or within one minute of the commencement of the attack, or after the attack had been ongoing for 10 minutes. The Court also received no specific evidence suggesting that claimant's injuries worsened or were aggravated by his having to wait a period of time for help. In sum, claimant submitted insufficient evidence establishing that State's delay in discovering the assault and/or making regular rounds caused or contributed to the injuries suffered by claimant (compare Smith v State of New York, UID No. 2010-013-502 [Ct Cl, Patti, J., Apr. 13, 2010]). As such, the Court is constrained to dismiss the claim.
Although it cannot know for certain based upon this record, the Court is persuaded that, at least, claimant's teeth were knocked out and his nose broken when Roberts initially kicked claimant in the face. As noted above, the State cannot be held liable for the initial attack, as no evidence of foreseeability was proffered.
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Therefore, based upon the foregoing, the Court concludes that claimant has failed to prove his claim by a preponderance of the credible evidence, and Claim No. 119659 is dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly. The Clerk of the Court is also directed to close Claim No. 120282.
January 9, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims