Sanchez v State of New York

[*1] Sanchez v State of New York 2005 NY Slip Op 51191(U) Decided on June 28, 2005 Court Of Claims Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2005
Court of Claims

Francisco Sanchez, Claimant,

against

THE State of New York, Defendant.



93576



APPEARANCES:

For Claimant:

JOHN D. B. LEWIS, ESQ.

For Defendant:

HON. ELIOT SPITZER, ATTORNEY GENERAL

BY:James E. Shoemaker, Assistant Attorney General and Joseph F. Romani, Assistant Attorney General, of counsel

Ferris D. Lebous, J.

Claimant, Francisco Sanchez, an inmate, brings this claim against the State of New York (hereinafter "State"), alleging that he was assaulted by one or more unidentified fellow inmates due to the negligent supervision by the State Department of Correctional Services (hereinafter "DOCS") at the Elmira Correctional Facility on December 14, 1995. The unified trial of this claim was held in the Binghamton District on February 3, 2004.

FACTS

At trial, claimant testified that on the day of this incident he was attending a meeting on the second floor in a school building within the Elmira Correctional Facility (hereinafter "Elmira"). After the meeting, claimant stated that he was talking to a fellow inmate when he was punched in the face, pushed down, and slashed from behind with a sharp object across his face, nose, and around the back of his head by one or more unknown assailants.

Claimant described the location of his attack in the school building as a classroom area with an "L"-shaped corridor comprised of a longer hallway and a shorter hallway. The longer of the two hallways was approximately 65 feet long and had a storage room at the far end. The shorter hallway (which is where the assault took place) was approximately 10 feet long and contained two other classrooms and a stairwell. A desk for a correction officer was located at the point at which the two hallways met. The officer's desk was located facing the longer hallway with a wall-mounted mirror [*2]positioned facing the shorter hallway so the officer, while stationed at the desk, could see down the shorter hallway.

Claimant stated that all inmates entering the classroom wing before classes had to pass through a metal detector. On this particular evening claimant testified there were approximately 116 honor inmates present for various classes. At approximately 9:20 p.m., after classes had ended, claimant and other volunteer employee inmates were in the process of closing down and cleaning the classroom wing as usual. Claimant testified that he had finished cleaning his room off the shorter hallway and proceeded toward the stairwell, also in the shorter hallway, when he was attacked.

Claimant testified that although there was a correction officer, identified as Correction Officer Mark Bartsch, on duty at the time of the assault, said officer was closing up the storage room which was located at the far end of the longer hallway and around the corner from the location of claimant's attack in the shorter hallway, approximately 75 feet away in total. Claimant also testified that the officer could not use the wall-mounted mirror from his vantage point at the opposite end of the longer hallway since the one-sided mirror was positioned at the bend in the hallway for use by an officer at the desk.

After the assault claimant was transported to the infirmary hospital where he stayed for six or seven days. Claimant received approximately 40 stitches to the back of his head, as well as stitches across the top and right-hand side of his face. Claimant's stitches were removed from his head on December 22, 1995, and his face on December 29, 1995. Furthermore, claimant's right eye was bandaged for approximately six or seven days during which time claimant testified he feared losing the sight in that eye. Claimant also testified that he suffered substantial pain not only from the initial sharp cut to his face, but from receiving stitches, the flattening of his eye lid for several months, and pain in the back of his head for approximately three months. Claimant testified that he continues to suffer facial twitches and has permanent and visible scarring across the nose and the right-hand side of his face and the back of his head.

Claimant also testified that after he was released from the hospital he was placed in involuntary protective custody for approximately five months which is substantially different from the honor block where he was housed prior thereto resulting in the loss of privileges and other freedom of movement. Furthermore, claimant testified that since this incident he is perceived as a snitch by other inmates, although he is not one. Claimant also states he feels rejection as people look away from the scarring on his face or stare at him.

During cross-examination, claimant conceded that he never saw his attacker(s) or a weapon, although he did recall seeing something shiny. Claimant also admitted that he had no prior disciplinary problems or known enemies and has never learned the identity of his assailant(s). In fact, claimant testified that to this day he has no idea of the reasons motivating this assault.

In support of his claim, claimant called Robert DeRosa, a licensed New York State Private Investigator who has acted as a consultant in correctional facility cases since 1995. Mr. DeRosa is [*3]a retired correction officer from DOCS and a member of the American Correctional Association and Warden's Association. Mr. DeRosa testified that the actions of the correction officer on duty this particular evening were inconsistent with the State's duty to protect inmates from foreseeable harm. Mr. DeRosa agreed with the physical description by claimant of the classroom wing as an "L"-shaped corridor. Mr. DeRosa opined that the physical layout of the classroom corridor provided the unidentified attacker(s) an opportunity to assault claimant in an area that was out of the line of sight of the correction officer. Mr. DeRosa further opined that the time of significant inmate movement such as "go-back" is precisely the time when the correction officer should have been positioned so he could see both avenues of the corridor. Additionally, Mr. DeRosa criticized Officer Bartsch's focus on a low priority task of collecting and storing items in the storage area, rather than observing inmate movement at such a crucial time.

Mr. DeRosa further testified that a simple architectural improvement of installing a mirror to allow an officer at either end of the corridor to see around the corner would have improved the correction officer's level of sight and therefore his level of supervision. The witness testified that as a result of the correction officer's distraction and the architectural insufficiency of the mirror as it was installed, the correction officer could not respond to this assault until he heard a commotion. Mr. DeRosa testified that this delay in response gave the attacker(s) time to assault the claimant and to remain undetected. Mr. DeRosa concluded that this assault was preventable and that the same was reasonably foreseeable considering this is a maximum security facility with inmates of high risk and with the number of assaults that occur in this facility every day.

On cross-examination, Mr. DeRosa acknowledged that there is not a standard of unremitting supervision in correctional facilities. In fact, Mr. DeRosa acknowledged that unescorted inmate movement is not, in and of itself, inappropriate or negligent and that a correction officer can leave a post and be distracted performing other duties or even going to the restroom. Furthermore, he acknowledged that this particular victim had no prior disciplinary history and no known enemies. Additionally, Mr. DeRosa conceded that since the assailant(s) here remain unidentified that there is no way to determine the motive for this attack or whether the assailant(s) planned this assault based on the activity of the correction officer on duty. In short, with no known enemies, no prior disciplinary record and no known assailant, when pressed on cross-examination, this witness had difficulty explaining how this particular assault was foreseeable. Moreover, the witness acknowledged that increased staffing and improvements of the physical plant would not necessarily eliminate all assaults.

Claimant next called Correction Officer Mark Bartsch, who was the correction officer on duty in the classroom wing at the time of this attack. Officer Bartsch testified that there were also three civilians present on that date and that each classroom contained a window which was 18 inches by 24 inches. Officer Bartsch testified that during the evening while classes are in session, he makes the rounds, checking in all of the classrooms to make sure that order is maintained. On the date of this assault, Officer Bartsch testified that he alerted the inmates to prepare to return to the housing unit and that the normal procedure was for the inmates to exit into the hallway and prepare to discharge. Officer Bartsch testified that at the time of this assault he was supervising the return of [*4]equipment to the storage room and that while so doing, inmates, as usual, began to congregate in the hallways and wait at the gate in preparation for returning to the housing unit. Officer Bartsch testified that while he was at the storage room, he heard claimant yell out and immediately responded to the location which was down the "L"-shaped hallway and around the corner, approximately 75 feet, and radioed for help. He testified that there had been no prior assaults or problems in this area for five to seven years.

On its case the State called Michael McGinnis, the Superintendent at Southport Correctional Facility since 1996. Mr. McGinnis testified that he had visited Elmira and the area where this incident took place and had reviewed the depositions, photographs, and reports pertaining to this assault. It was Mr. McGinnis's opinion that the inmates in Elmira, a maximum security facility, can be considered to be "the worst of the worst."[FN1] Mr. McGinnis opined that on these facts with unidentified assailant(s) and a victim with no known enemies the assault was not foreseeable.

DISCUSSION

A discussion of the applicable law starts with a review of the prior history of this case which was the subject of a Court of Appeals opinion. By way of background, the State previously moved for summary judgment dismissing this claim which was granted by the Hon. Jerome F. Hanifin. (Sanchez v State of New York, Ct Cl, July 29, 2000, Hanifin, J., Claim No. 93576, Motion Nos. M-60669 & M-60853, Cross-Motion No. CM-60977). On appeal, the Third Department affirmed the trial court's dismissal. (Sanchez v State of New York, 288 AD2d 647). Thereafter, however, the Court of Appeals modified the order by denying the State's motion for summary judgment and remitting the case for trial. (Sanchez v State of New York, 99 NY2d 247). More particularly and as relevant to the determination herein, the Court of Appeals addressed the issue of foreseeability regarding inmate assaults by stating as follows:

[t]he State owes a duty of care to inmates for foreseeable risks of harm; and that foreseeability is defined not simply by actual notice but by actual or constructive notice - by what the "State knew or had reason to know"..., what the State "is or should be aware" of.... The requisite foreseeability is as to a "risk of harm"...or "injury- producing occurrence"...or "risk of an inmate-on-inmate attack...."

***

Finally, we 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. [*5]

(Sanchez, 99 NY2d at 255, 256 [emphasis in original; citations omitted]).

Consequently, this court views claimant's burden of proof to establish liability in this inmate-on-inmate assault case as requiring the demonstration of the following: (1) the State knew or had reason to know that this victim was at risk of being assaulted and yet failed to provide reasonable protection; (2) the State knew or had reason to know that the assailant(s) were prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act.

The first issue is whether the State knew or had reason to know that the victim was at risk of being assaulted and yet failed to provide reasonable protection. It was undisputed at trial that claimant had no known enemies or prior disciplinary history from which this court could conclude that the State had actual notice that claimant was at risk of being assaulted. Rather, claimant argues that the State had reason to know - in other words had constructive notice - of the risk of harm to claimant by way of its own rules and regulations, knowledge that there is an increased risk of attacks during times of increased inmate movement such as "go-backs", and the physical layout of this "L"-shaped hallway, the improper positioning of this officer to see the entire hallway at all times, as well as his attention to insignificant matters such as storing items.

The proof at trial established that claimant had been an instructor in these classrooms and attending this classroom wing for more than two years without incident. Moreover, Officer Bartsch testified that there had been no prior assaults or problems in this area for five to seven years. Additionally, the testimony established that the participants in these evening programs were honor inmates and, as such, would not be in the evening education program were they not maintaining relatively discipline free records. Furthermore, there were three civilians present in the classroom wing at this time providing additional support. Moreover, according to claimant's own testimony, one of these civilians was at the officer's desk after this assault. Also, claimant indicated that he had no known enemies, did not know his assailant(s), and had no reason to believe he would be attacked. Taken as a whole, although claimant may have established that there was a general risk present to all inmates due to the inmate movement and the physical layout of the corridor, the court finds that under these circumstances the State did not know or have reason to know of a heightened risk of assault to this victim. To find otherwise would improperly render the State an insurer of inmate safety as any assault in any "L"-shaped corridor or hidden corner of this classroom wing or at a time of inmate movement could be deemed foreseeable. As such, taken as a whole, the court finds that claimant has failed to establish that the State knew or had reason to know that claimant was at risk of harm.

The court further finds that claimant has also failed in establishing the second issue presented, namely whether the State knew or had reason to know that the assailant(s) were prone to perpetrating such an assault and failed to take proper precautionary measures. In large part claimant's theory of liability is contingent on his expert's speculation that this attack occurred because the assailant(s) knew the officer was at the far end of the longer hallway distracted by a low [*6]priority task. Here, however, the undisputed proof was that the assailant(s) have never been identified. As such, there is no proof in this record that the attacker(s) knew the exact location or actions of the officer or that his usual routine included being at the storage area or, assuming such knowledge, that such was the basis for the attack. Consequently, the motivation behind the assailant(s) timing of this assault of claimant at that location without more remains at best pure speculation. Additionally, the inmate participants in attendance that evening were honor inmates possessing relatively discipline-free records. Although one or more of these honor inmates were, in hindsight, obviously the assailant(s), the State had no reason to know that any of them were prone to perpetrating this assault other than the normal general risk associated with any inmate. To the contrary, by virtue of their eligibility for these evening programs, it is reasonable to assume that this group of inmates was less likely to perpetrate such violent acts. The court finds that the State did not know or have reason to know that the unidentified assailant(s) were prone to perpetrating such an assault.

Next, the court must consider whether the State had ample notice and the opportunity to intervene for the purpose of protecting the claimant but failed to do so. Here, the proof established that the attack lasted approximately 20 seconds. Correction Officer Bartsch was located approximately 75 feet from where the incident took place, albeit around a corner. However, by all accounts, Officer Bartsch was able to respond to the scene in less than a minute. Considering this assault only lasted approximately 20 seconds, the court finds that the officer's location or actions at the other end of the hall at the time of the assault did not constitute negligence.

Furthermore, the court finds claimant's allegations that the State should have provided additional officers in the classroom wing and/or hallways to be without merit. There were plenty of locations where this assault could have occurred within this classroom wing that would be out of sight of even more than one officer, such as the stairwell or in one of the classrooms. Quite simply, there is no proof in this record that a second or even a third officer would have prevented this assault since, given the physical layout nature of this classroom wing, it is hardly possible for even more than one correction officer to have been viewing all inmates, in all areas, at all times, short of requiring an officer in every classroom, stairwell, closet, and hallway. To require the State to provide such additional manpower and supervision in this location in light of the lack of any prior assaults in this area and given the relatively discipline-free records of the inmates attending these programs would improperly render the State an insurer of inmate safety and require unremitting supervision of inmates at all times.

Finally, claimant's arguments regarding the applicability of 9 NYCRR 7003.2 and 7003.4 warrant discussion. As noted by my colleague, the Hon. Judith A. Hard, there is a clear distinction between local jails and State correctional facilities, and DOCS has promulgated regulations that incorporate that distinction. (Lamm v State of New York, Ct Cl, February 28, 2005, Hard, J., Claim No. 99321 [UID No. 2005-032-500]; Correction Law §§ 2, 500 et seq.; 7 NYCRR 1.5).[FN2] As such, [*7]although local jail regulations may be of some guidance to State correctional facilities, they are not a requirement for State correctional facilities. Thus, in this court's view, the "active supervision" requirement is inapplicable to State correctional facilities. Nevertheless, the court will presume for purposes of discussion the applicability or, at a minimum, the relevancy, of these provisions directed to local correctional facilities.

9 NYCRR 7003.2 (c) defines "active supervision" as meaning "[t]he immediate availability to prisoners of facility staff responsible for the care and custody of such prisoners which shall include: (1) uninterrupted ability to communicate orally with and respond to each prisoner unaided by any electronic or other artificial amplifying device;...(3) the ability of staff to immediately respond to emergency situations...." Here, the officer responded to claimant's call for help and was able to immediately respond to the emergency situation presented. The court finds that the State satisfied the duty of "active supervision" as defined by 9 NYCRR 7003.2.

With respect to 9 NYCRR 7003.4 (b), this provision relates to supervision of prisoners outside facility housing areas and states that "[t]he chief administrative officer may determine that supervision, other than active supervision, is required for prisoners participating in activities outside facility housing areas." (Emphasis added). However, under the circumstances presented here, namely the presence in a classroom wing of honor inmates who have had no record of assaults for at least five years and no known history applicable to claimant himself, the court finds that the State

was not obligated to provide any supervision "other than active supervision" as set forth in 9 NYCRR 7003.4 (b).

In sum, based upon the foregoing, the court finds that the claimant has not proven by a preponderance of the evidence that this attack was reasonably foreseeable. In other words, there is nothing in this record to show that the assault on claimant was anything other than a random event of inmate violence by another inmate(s). The court does not believe that the State had notice, actual or constructive, that this claimant was at risk of harm and consequently did not breach any specific duty of safety or protection owed to him. Consequently, the court is satisfied that Elmira officials acted reasonably and appropriately in providing claimant with a relatively safe prison environment.

All motions on which the court previously reserved or which not previously determined at trial, are hereby denied.

Consequently, Claim No. 93576 is hereby DISMISSED.

ENTER JUDGMENT ACCORDINGLY.

Binghamton, New York

June 28, 2005

FERRIS D. LEBOUS [*8]

Judge of the Court of Claims

Footnotes

Footnote 1: Unless otherwise indicated, all quotations are from the court's trial notes.

Footnote 2:Selected unreported decisions from the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decision.htm