Opinion
# 2015-041-034Claim No. 122664Motion Nos. M-86191CM-86282
04-29-2015
ROBERT WALKER v. THE STATE OF NEW YORK
THE BEYNENSON LAW FIRM P.C. By: Alek Beynenson, Esq., Of Counsel HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment as to defendant's liability in inmate-on-inmate assault claim is denied where claimant fails to provide a copy of the pleadings with motion; defendant's cross-motion for summary judgment dismissing the claim is granted to extent that cause of action based upon defendant's determination to double cell claimant with assailant is granted and is otherwise denied.
Case information
UID: | 2015-041-034 |
Claimant(s): | ROBERT WALKER |
Claimant short name: | WALKER |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122664 |
Motion number(s): | M-86191, CM-86282 |
Cross-motion number(s): | |
Judge: | FRANK P. MILANO |
Claimant's attorney: | THE BEYNENSON LAW FIRM P.C. By: Alek Beynenson, Esq., Of Counsel |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | April 29, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant moves for summary judgment on his claim alleging, among other causes of action, that he was assaulted and seriously injured by fellow inmate Kareem Jackson (Jackson) at Upstate Correctional Facility (Upstate) on March 23, 2012 due to defendant's negligence in assigning claimant to share a Special Housing Unit (SHU) cell with Jackson while knowing that Jackson was a "violent and aggressive inmate" with "a history of assaults on his cell mates within Defendant's correctional facilities."
Defendant opposes the claimant's motion and cross-moves to dismiss the claim because defendant is immune from liability, as a matter of law, for its discretionary determination that Jackson could be placed in a double cell with claimant without a foreseeable, and unreasonable, risk of harm to claimant.
Defendant has not offered any admissible evidence or legal argument to dismiss the claim's causes of action sounding in negligence other than the purported negligence in placing claimant in a double cell with Jackson nor has defendant addressed the claimant's causes of action based upon state and federal constitutional torts and medical malpractice.
Claimant has not submitted any opposition, beyond the evidence offered on his own motion, to defendant's cross-motion for summary judgment dismissing the claim.
CPLR 3212 (b) requires that claimant provide a "copy of the pleadings" in support of the motion. Claimant's moving papers do not include a copy of either the claim or the defendant's answer and a motion for summary judgment is "properly denied in its entirety on that ground alone" (Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]; see Bonded Concrete v Town of Saugerties, 3 AD3d 729, 730 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]).
Claimant's motion for summary judgment is denied.
The defendant's cross-motion for summary judgment dismissing the claim will be considered next.
"A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law (citations omitted). If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
The claim, as far as pertinent to this motion, alleges a negligence cause of action based upon an inmate-on-inmate assault. "Having 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, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable" (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The State . . . is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).
In determining if the State provided reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an "enemies list with the institution" (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was "a known dangerous prisoner" (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether "claimant was a known assault risk" (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]; Smith v State of New York, 284 AD2d 741 [3d Dept 2001]; Di Donato, 25 AD3d at 945).
The State's potential liability for negligence with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant's vulnerability or a particular assailant's violent propensities can be shown. The State is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon "what the State reasonably should have known--for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez, 99 NY2d at 254).
Importantly, in Sanchez, the Court of Appeals emphasized that:
"[W]e underscore that 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. 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).
In particular, the claim alleges that on March 23, 2012 Jackson assaulted claimant within twenty (20) minutes of claimant being "negligently placed alone with Jackson in a locked cell."
Claimant does not allege that Jackson had any particular animus against him or that Jackson even knew claimant before the assault. Nor does the claim allege that claimant was a target for assault by inmates generally. Rather, the cause of action under review is based upon the allegation that Jackson was a "violent and aggressive inmate" with "a history of assaults on his cell mates within Defendant's correctional facilities." Claimant alleges, in essence, that Jackson should not have been assigned to share a cell with any inmate and that claimant's injuries and damages were proximately caused by the defendant's administrative determination that Jackson was a suitable cell mate for claimant.
Defendant's motion for summary judgment is supported by the affidavit of Donald Uhler (Uhler), Superintendent of Upstate Correctional Facility and Deputy Superintendent of Security at Upstate from October 9, 2009 to May 20, 2014, a tenure which included the time period referenced by the claim.
Uhler points out that Upstate is a "disciplinary facility for inmates who have been found guilty at Tier Hearings." The overwhelming majority of inmates housed at Upstate have "had disciplinary issues at other facilities and are housed in Special Housing Units (SHU)."
Uhler states that Jackson was found guilty of refusing an order to double cell in January 2012 and transferred to Upstate to serve his 90 day sentence. According to Uhler, prior to Jackson's transfer to Upstate, the Classification and Movement Unit of the Department of Corrections and Community Supervision determined, on February 7, 2012, that Jackson was "double cell eligible." Uhler explains that this determination was made after review of Jackson's "mental health status and criminal and disciplinary history" in addition to considering whether Jackson was homosexual.
Upon the arrival of Jackson at Upstate on February 27, 2012, Uhler performed a review, prescribed in detail by 7 NYCRR 1701.5, to determine whether Jackson was suitable for double cell housing. Uhler's review considered the following factors set forth in the regulation, among others, with respect to Jackson: Physical status, including age, height and weight; health, including diseases or disabilities; mental status; history and behavior, including whether Jackson was an "assaultive inmate" while incarcerated, as defined by the regulations and whether Jackson's criminal history included extreme violence; and also, whether Jackson would be compatible with claimant specifically, based upon their ethnic and religious backgrounds, language spoken, physical characteristics of each, ages, criminal histories, program/job assignments, family relationships and known enemies.
In performing his review pursuant to 7 NYCRR 1701.5, Uhler avers that he reviewed voluminous records concerning Jackson, including the following: Disciplinary history; transfer history; enemies list; physical characteristics; security classification; and mental health status. In particular, Uhler notes that Jackson had 3 fighting infractions in 2005 and 1 fighting infraction each year from 2008 through 2011. None of the fighting incidents involved a weapon and none resulted in serious injury to another inmate, leading Uhler to determine that Jackson was not an "assaultive" inmate and had no history of "predatory assault," as defined in the governing regulation.
Uhler further concluded, after review, that Jackson's criminal conviction record did not show a history of "extreme violence" as defined in the governing regulation.
The records reviewed by Uhler revealed that Jackson did not require mental health services and had no disciplinary record of homosexual acts.
After his review, Uhler approved Jackson for SHU double cell occupancy.
The affidavit of Uhler recounts that after his approval of Jackson for double cell occupancy and prior to the incident with claimant on March 23, 2012, Jackson was issued, and found guilty of, 4 misbehavior infractions between February 27-29, 2012. Three of the misbehavior reports were for fighting and one was for "refusing a direct order to double cell."
In his role as the Upstate Deputy Superintendent of Security, Uhler reviewed the 4 misbehavior findings to determine whether Jackson remained suitable for double cell status. Uhler states that:
"[I]t was my judgment that [Jackson's] actions did not require a change in his double cell status. Each of the three 'fights' were started in front of security staff. Investigation revealed the first fight was staged by the two involved inmates (Exhibit E). In all of these incidents the other involved inmate did not sustain any injuries. It was my judgment and that of staff investigating the incidents that inmate Jackson was attempting to manipulate the system in order to attain single cell status."
Finally, Uhler reviewed claimant's status upon his arrival at Upstate on March 23, 2012 and determined that claimant, based upon religion, race, age, language and lack of prior animosity with Jackson, was compatible with Jackson for double cell status purposes.
According to the claim, Jackson assaulted claimant within twenty (20) minutes of claimant being "negligently placed alone with Jackson in a locked cell."
Defendant asserts entitlement to summary judgment on the basis of its defense that its determination finding Jackson suitable to share a cell with claimant is immune from liability as a "discretionary" governmental determination made by its "employees while acting within the scope of their duties."
In McLean v The City of New York (12 NY3d 194, 203 [2009]), the Court of Appeals recited the law as to when the state may be held liable for the negligent performance of a governmental function:
"Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general."
The Court finds that custody and control of inmates is a governmental function. Further, making a determination as to whether or not a particular inmate is suitable for assignment to a double cell with a fellow inmate is a discretionary governmental function and, if such discretion is exercised in making the suitability determination, defendant is immune from negligence liability based upon such a determination.
All correctional facility internal security determinations involve a balancing of risk and resources. The affidavit of Superintendent Uhler demonstrates that in exercising its discretion to consider whether Jackson was suitable for placement in a double cell, the defendant determined, after considering all the required factors, that the risk of Jackson assaulting claimant was not so substantial that placing them in the same cell created an unreasonable risk of harm to claimant (see Di Ponzio v Riordan, 89 NY2d 578, 584 [1997], in which the Court of Appeals explained that "conduct is considered negligent when it tends to subject another to an unreasonable risk of harm arising from one or more particular foreseeable hazards").
Defendant has established, by competent admissible evidence, that it is entitled to judgment as a matter of law on its defense of governmental immunity with respect to the cause of action based upon defendant's determination to double cell claimant with Jackson. Claimant has failed to raise a material triable issue of fact sufficient to preclude an award of summary judgment to defendant dismissing the cause of action based upon the double cell suitability determination.
Defendant has offered neither facts nor argument to dismiss claimant's causes of action sounding in medical malpractice and state and federal constitutional tort. Similarly, defendant has not addressed the claim's several allegations of negligence that are not based on the double cell suitability determination.
The claimant's motion for summary judgment is denied.
The defendant's cross-motion for summary judgment dismissing the cause of action based upon defendant's determination to double cell claimant with Jackson is granted, and it is otherwise denied.
April 29, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment, filed January 20, 2015;
2. Affirmation of Alek Beynenson, dated January 20, 2015, and attached exhibits;
3. Defendant's Notice of Cross-Motion for Summary Judgment, filed February 9, 2015;
4. Affidavit of Michael C. Rizzo, sworn to February 9, 2015, and attached exhibits;
5. Affidavit of Donald Uhler, sworn to February 4, 2015, and attached exhibits.