Vasquez v State of New York

[*1] Vasquez v State of New York 2007 NY Slip Op 51442(U) [16 Misc 3d 1116(A)] Decided on July 5, 2007 Ct Cl Schaewe, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2007
Ct Cl

Paul Vasquez, Claimant,

against

The State of New York, Defendant.



106143



for Claimant:

Gary E. Divis, Esq.

For Defendant:

Hon. Andrew M. Cuomo, Attorney General

BY: Joseph F. Romani, Assistant Attorney General

Catherine C. Schaewe, J.

Claimant, an inmate, brings this claim against defendant State of New York (defendant), alleging that he was assaulted on March 9, 2002 by an unidentified fellow inmate due to inadequate staffing and negligent supervision by the Department of Correctional Services (DOCS) at Elmira Correctional Facility (Elmira). Trial of the matter was bifurcated and held in the Binghamton District on April 3-4, 2007. This decision addresses only the issue of liability.Claimant had been housed at Elmira for approximately 12 days before the incident, although he had previously been incarcerated at Elmira for approximately 12 years during the course of his sentence. When he was admitted to Elmira shortly before this assault, he advised facility officers that he had no known enemies. He also testified at trial that he was not aware of having any enemies, and that he had no reason to know he was going to be attacked.

At the time of the assault, claimant was seated in the bleachers near the televisions at the basketball court located in Elmira's gym. An allegedly unknown assailant with two accomplices crossed the gym, went up the stairs into the bleachers, and slashed claimant's face with a razor blade. Claimant contends there was no correction officer (CO) on duty on the gym floor (or in the bleachers) at the time of the assault, and that the attack would not have occurred had the gym been properly staffed and supervised. [*2]

The "gym area" at Elmira consists of an outdoor recreation yard and the gym itself, which includes a shower and telephone area adjacent to the gym, as well as a glassed-in office for the COs. There is an elevated observation booth which has windows overlooking both the yard and the gym. A video camera and recorder is maintained in the booth, although its field of view does not capture the entire gym area at once. CO Carloni, who was in the booth at the time of the assault (although she said she did not see the attack), testified that the officer staffing the booth is supposed to rotate the camera to cover different parts of the gym on a routine basis. When the camera is not being moved, the officer must move around the booth in order to see all parts of the gym and yard. That officer's duty is to monitor the inmates with the video camera and through surveillance, and to communicate with other officers in case of any incident.

According to Carloni, the gym area constitutes one security unit, to which ten officers would routinely be assigned. One officer would be assigned to the COs' office, one to the observation booth, and two to a desk in the shower/telephone area. Four officers would normally be assigned to posts outside in the gym yard, and two would be in "roving posts" on the gym floor. The prison log sheet for the gym area for the date and time in question does not indicate which CO took which posts in the yard and gym.

In order to access the gym, all inmates must enter through one gate. According to the prison logs, there were 157 inmates in the gym area at that time. The log also indicates that the temperature in the gym was high, and the officer keeping the log complained, but was advised that nothing could be done without shutting off the heat to the entire facility. Moreover, weather records submitted into evidence indicate that the temperature on that clear day reached 64 degrees.[FN1]

CO Cardinale, who was on duty in the shower area at the time of the incident, testified that he became aware that there was a problem when an inmate caught his attention and gestured toward the bathroom. Cardinale went into the bathroom and found claimant kneeling on the floor in front of a toilet. Cardinale observed that claimant was holding something to his face, and that he appeared to be washing his face in the toilet. Cardinale told claimant to get up, which claimant eventually did, although Cardinale had to tell him more than once. When claimant did arise, he continued to hold a piece of cloth to his face and turned his head away from Cardinale. When Cardinale told him to remove it, Cardinale observed the laceration incurred in the assault, and took claimant to the medical area of the facility. Cardinale recorded claimant's attempt to conceal his injury both in an Inmate Misbehavior Report (Claimant's Exhibit 8) and in a memo to his supervisor, Captain Hughes [FN2] (Claimant's Exhibit 9).

Claimant testified that he was thereafter put into involuntary protective custody, and was charged with failure to report the incident due to his going to the bathroom and attempting to hide his injury, rather than reporting it to a CO. The videotape of the gym at the time of the assault was preserved at claimant's request for use at the disciplinary hearing and was admitted [*3]into evidence at trial (Claimant's Exhibit 4). The tape does not show the actual assault, which occurred out of the field of view of the camera, but it does show three individuals (one of whom was presumably the assailant) walking across the gym floor toward the stairs where claimant was seated in the bleachers. The time stamp on the tape indicates that this occurred at 1:59:17 p.m. At 1:59:42 p.m., an individual identified by claimant during his testimony as a Correction Sergeant is seen on the tape exiting the COs' office and walking out the gym door to the gym yard. At 2:00:09 p.m., the tape shows claimant exiting the staircase to the bleachers,[FN3] holding something to his face [FN4] as he walked into the bathroom area.[FN5] Claimant testified that he looked around the gym area for a CO after he was attacked, but did not see one, so he went into the bathroom to clean the blood off his face.

At trial, claimant attempted to bolster his contention that there were no COs in the gym by reviewing the videotape and attempting to track the COs' activities and locations. During his testimony, he identified the COs based on their attire and the color of their shirts (although, again, the videotape was recorded in black and white). While individuals appearing to be COs entered and exited the security office during the course of the video, it was impossible to determine from the video whether any officers were on the floor of the gym outside the range of the camera.

CO Cardinale testified that he believed eight to ten officers were assigned to the gym area that day.[FN6] He said he did not know how many of those officers were actually in the gym at the time of the assault, nor did he know how many inmates were in the gym. He stated that he had worked security in the gym approximately 20 to 30 times before that day, and did not believe that it was an area with a high incidence of assaults.

Captain William Hughes was on duty at Elmira on the day of the incident, although not in the gym area. He testified that the gym area was not short-staffed on the date of the incident. He also stated that DOCS administration in Albany makes the determinations regarding staffing and how many COs should be assigned to any particular area. Hughes prepared the Unusual Incident Report (Claimant's Exhibit 14) regarding the incident. That report indicates that the gym was closed after the assault was reported, and the inmates and the gym were searched. The report further indicates that a "razor-type weapon" was found in a weight bar in the weight area (which was located directly in front of the bleachers where claimant was sitting when he was attacked). [*4]Hughes testified that there had been no indication prior to the assault that claimant was in danger or that an assault would take place in the gym on that date.

Sergeant Christopher Post was a DOCS employee at Elmira at the time of the incident. He was the kitchen/gym sergeant, and his duties included running the gym at night. Sergeant Post's involvement in this incident arose when a superior at Elmira asked him to investigate an internal written complaint made by claimant alleging that his injuries arose from a lack of security coverage. He interviewed claimant regarding the incident on September 25, 2002, and submitted a written report (Claimant's Exhibit 17) which indicated that claimant did not report the incident when it happened, despite the proximity of the bathroom door to the security office door (that being approximately 10 to 15 feet),[FN7] and further stated that claimant was attempting to hide his injury when he was discovered by CO Cardinale. Post also testified, based on his experience, that the security office was not soundproof, and that any officer in the office was able to both hear and observe what was occurring in the gym itself. He also stated that to the best of his recollection, the window was clear glass, rather than being tinted.[FN8]

Robert DeRosa, a licensed private investigator previously employed by the New York City Department of Correction (NYCDOC) for 26 years, offered expert testimony on behalf of claimant. DeRosa served as warden of the Anna M. Kross Detention Center for Men at Rikers Island and as compliance chief for the NYCDOC before his retirement from the agency in 1995.

DeRosa offered his opinion as an expert in penology and security that the New York State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries (Commission Regulations), promulgated for local correctional institutions, are relevant in establishing a reasonable standard for the operation of any prison within the state (see 9 NYCRR 7000 et seq). He contended that the requirements of Section 7003.2 of the Commission Regulations, which refers to the standard of active supervision of inmates in activities outside the housing units, should have been applied to Elmira's gym area even though that section pertains to local facilities, rather than State prisons. Section 7003.2 defines active supervision to mean that inmates should have an uninterrupted ability to communicate with staff without the aid of any amplifying device; supervisory visits should be conducted at 30-minute intervals; and the staff should be able to immediately respond to emergency situations. DeRosa stated that he reviewed the security post job descriptions for the gym area. He opined that the required level of supervision of the inmates as set forth in those job descriptions was the same as the definition of "active supervision" in section 7003.2.

DeRosa testified that, in his opinion, DOCS' operation of the gym area at Elmira was not consistent with the general principles of penology. He said it was difficult to ascertain the plan for the deployment of the security officers because the post descriptions allow the supervisor to assign the officer to either a roving patrol or a fixed post. He stated that normally he would expect that there would be a logbook kept that would specifically describe the location assigned [*5]to particular officers on that shift. He believed that because the officers were not assigned specific locations for which they are responsible, it was impossible for them to fulfill their duties regarding the care, custody and control of the inmates, and it was further impossible for the officers to respond effectively in an emergency situation. He said that at one point on the videotape (at approximately 1:15 p.m., nearly 45 minutes prior to the assault), it appeared that

there were 11 correction officers located in the security office.[FN9] In his opinion, that continuous flow of officers into the office indicated that security was not being effectively provided, and he believed that rather than being on a "roving patrol," the officers should have been located at designated posts in the gym. DeRosa further stated that his review of the videotape indicated that the supervising officer was not making regular rounds [FN10] to observe and enforce the levels of supervision designated for those officers at any particular time. He also testified that DOCS records show that recreation areas constitute the second most frequent location for inmate-on-inmate assault (the first being the cell blocks), and that Elmira had a relatively high incidence of such assaults among the State's maximum security facilities. Further, in his opinion, a CO should have been stationed in the bleachers.[FN11]

On cross-examination, DeRosa conceded that the purpose of local correctional facilities, such as the one where he was previously employed, was different than that of a state facility. He acknowledged that the local facilities have fewer inmates, who are generally at those facilities for less severe crimes. DeRosa also admitted that he had never been to Elmira, and that he was basing his opinions of how the gym area should be run securely on the descriptions and layout provided to him by various materials, including descriptions given by claimant.

DeRosa acknowledged that the regulation he cited as having been appropriate to this situation (i.e., that the supervisor was not making regular "rounds") was not applicable to state prisons. He was not aware of any regulation pertaining to state facilities which contained such a requirement. He also admitted that it is impossible to prevent weapons, or inmate-on-inmate assaults, at any correctional facility. He further confirmed that there is no regulation requiring constant supervision of inmates, and that constant supervision would be impossible. He acknowledged that assaults occur even when all rules, regulations, directives and general principles of penology are being correctly followed. Finally, he stated that, based on the policies and directives provided to him, he was unaware of any violation of a DOCS directive or regulation in this instance.

At the close of claimant's case, defendant moved to dismiss the claim for failure to [*6]establish a prima facie case, upon which motion the Court reserved decision.

Superintendent John Burge, Sr., the current superintendent at Elmira, testified as an expert in the field of penology on behalf of defendant. Prior to his testimony, claimant's attorney made an oral motion to exclude Burge's testimony on two grounds. First, he contended, Burge's work relationship with the COs testifying and who were involved in this incident would cause him to be biased. Second, it was the attorney's opinion that the witness would be unable to articulate the basis for his opinions, and in fact such opinions might be based on inadmissible evidence. The Court denied the motion, holding that the issue of potential bias could be explored on cross-examination, and that if any bias was established, that would go to the weight the Court gives Burge's testimony. The Court further noted that an expert witness is not required to testify on direct examination regarding the foundation for his opinions, but that the issue could be explored on cross-examination, and that a motion to strike the testimony could be made if necessary.

Burge testified generally regarding security and staffing, particularly with regard to the recreation facilities at Elmira. He stated that DOCS' central office in Albany establishes guidelines regarding staffing, and that the facility is given a "plot plan" that specifies staffing by shifts. He moreover said that security post position descriptions are also prepared in Albany, and are based on staffing levels. He opined that there was adequate staffing in the gym on the day and time claimant was assaulted, but he conceded on cross-examination that he had no personal knowledge of whether the various posts were staffed according to the directives. He further testified that his review of claimant's record did not indicate that claimant was at any particular risk for assault.

The State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [1999]). Despite this obligation, however, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence (Sebastiano v State of New York, 112 AD2d 562 [1985]). In order to establish that the State is liable for such an assault, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and which the State could have prevented (Sanchez v State of New York, 99 NY2d 247, 253 [2002]; see also Flaherty v State of New York, 296 NY 342, 347 [1947]). Sanchez discussed the issue of reasonable foreseeability at some length, and concluded that the State's duty to the inmate not only encompasses what was actually known but also what it should reasonably have known. In other words, the Court said: "the standard of care [is that] normally due any party: reasonable care under the circumstances" (Sanchez v State of New York, supra at 254).

Claimant's theory of liability is essentially that the supervision provided by defendant (i.e., allegedly having no officers on the gym floor) was inadequate for the gym, a location with a relatively high number of assaults, and did not constitute reasonable care under the circumstances. Claimant asserts that having no COs on the gym floor created a situation in which defendant should have had constructive knowledge that an attack was reasonably foreseeable, but failed to take steps to prevent it, and thus breached its duty of care toward him.

However, claimant has failed to meet the burden of proof that any duty was breached in this case by a preponderance of the credible evidence. Claimant's contention that there were no security guards on the gym floor at the time of the assault is supported only by the fact that the [*7]videotape shows no COs on the floor of the gym within the concededly limited range of vision of the camera, and by claimant's own testimony. The Court, after observing claimant's demeanor and testimony, combined with the other testimony and evidence submitted at trial, finds that claimant was not a credible witness regarding his assertion that he looked for a CO to whom to report the assault, and that one was not available in the gym (see Di Donato v State of New York, 25 AD3d 944, 945 [2006]; Williams v State of New York, 291 AD2d 586 [2002]). The Court simply cannot credit claimant's self-serving testimony that he was looking for an officer in the gym to whom he could report the assault, when viewed in conjunction with Cardinale's disinterested testimony that claimant was actually trying to conceal his injury from prison officials immediately after the assault. As well, there is uncontroverted testimony that Cardinale was in the shower/phone area immediately adjacent to the gym, which was a regular guard post, where claimant could have reported the assault to him there if he had actually wanted to report it. Because claimant's testimony was the only basis (given the limited view of the gym floor provided by the camera) for a potential finding that there were no officers on the gym floor, claimant's theory - that defendant had constructive notice that an attack would be reasonably foreseeable, given the lack of supervision - must fail.

As claimant's own expert conceded, assaults can and will occur even when supervision is being appropriately conducted. "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" (Sanchez v State of New York, supra at 256). Based on the evidence presented at trial, this is simply one of those unfortunate and unpreventable cases. Claimant failed to demonstrate that defendant had notice, whether actual or constructive, of a potential attack, and thus failed to show that defendant breached its duty to him. Accordingly, Claim No. 106143 is hereby dismissed.

Let judgment be entered accordingly.

Binghamton, New York

July 5, 2007

CATHERINE C. SCHAEWE

Judge of the Court of Claims Footnotes

Footnote 1:Claimant's insinuation is that all the COs were outside in the gym yard due to the heat in the gym and the pleasant weather outside.

Footnote 2:At the time of the incident, Hughes' title was Lieutenant. However, by the time of trial he had been promoted to Captain.

Footnote 3: The poor quality of the videotape, recorded in black and white, made it effectively impossible to determine any individual's identity. Claimant viewed the videotape during the course of his testimony, and identified himself as the individual walking toward the bathroom.

Footnote 4: Claimant testified he was holding his shirt to his face in an attempt to close the wound.

Footnote 5: Although claimant made much of the fact that there is a gap in the videotape from approximately 2:02 to 2:28, the Court has attached no significance to this, as it occurred both after the assault and after claimant entered the bathroom area.

Footnote 6: Claimant's Exhibit 16 is a handwritten list of the officers who were assigned to the area that day. Including the Correction Sergeant, that exhibit lists nine officers on duty at the time of the incident.

Footnote 7: Claimant testified at trial that he believed that the glassed-in security office was actually the Inmate Liaison Committee (I.L.C.) room, and did not realize that there would be security officers in the office.

Footnote 8: Claimant, on the other hand, testified that the window was tinted.

Footnote 9: It should be noted that DeRosa emphasized that he was basing this assumption regarding the location of the officers on the accuracy of claimant's description of the officers' attire. DeRosa qualified his opinions more than once during the course of his testimony on the ground that he had depended on the accuracy of claimant's statements in forming those opinions.

Footnote 10: See n 9.

Footnote 11: The Court notes that stationing a CO in the bleachers would seriously hamper that officer's ability to respond effectively in an emergency situation on the gym floor, given the layout of the gym at Elmira.