Walton v State of New York

[*1] Walton v State of New York 2008 NY Slip Op 52671(U) [22 Misc 3d 1134(A)] Decided on December 8, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2008
Ct Cl

Michael Walton, Claimant,

against

The State of New York, Defendant.



112582



APPEARANCES:

For Claimant:

ANDREW F. PLASSE, P.C.

BY: Andrew F. Plasse, Esq., of counsel

For Defendant:

HON. ANDREW M. CUOMO, ATTORNEY GENERAL

BY: Joseph F. Romani, Assistant Attorney General

Catherine C. Schaewe, J.

Claimant, a former inmate, brings this claim against defendant State of New York (defendant), alleging that he was assaulted on July 20, 2005 by a fellow inmate, George Adorno, due to defendant's failure to adequately protect him while he was incarcerated at Elmira Correctional Facility (Elmira). Trial of the matter was bifurcated and held in the Binghamton District on October 7, 2008. This decision addresses only the issue of liability.

At trial, claimant testified that he was incarcerated in Protective Custody (PC) at Elmira at the time of the assault. He said he had requested PC sometime in late April or early May of 2005 because he had advised facility officials of the possibility of some sort of planned protest or disturbance by other inmates. In response to this request, he was taken out of general population and placed in cell 3-13 in the PC Unit. While housed in that cell, he began to receive threats from other inmates in that gallery, apparently due to the information he had provided to prison officials. Claimant wrote a letter to Elmira's Superintendent West on June 3, 2005 [FN1] to convey his concern about his safety, in which he stated: "I . . . [h]ave been receiving threats from other inmates on the [g]allery that [sic] I'm housed . . . These inmates have also been trying to gather the other inmates to jump me cut me or stab me . . . I fear for my life and my safety is in danger." Claimant requested that his cell be changed to a location on "the Flats"[FN2] away from gang [*2]members and other threatening inmates.

Claimant's concerns were investigated, and claimant was moved on June 9, 2005 to another cell designated PC 1-5, located on the flats. The brief facility memorandum [FN3] discussing the investigation of the threats and claimant's move stated:

[Claimant] gave taped testimony to the [Elmira] administration . . . and is in PC for that reason. Now . . . [he] is requesting protection within the PC Unit.

On 6/9/05 [claimant] was moved from PC-3-13 to PC-1-5, which offers much better officer visibility. CC Giblin has already contacted Albany Movement and Control to have [claimant] transferred. ADSP Thompson has been advised of the situation and agrees to contact Albany to attempt to expedite [claimant's] transfer.

Claimant testified that he continued to have problems with other inmates, even after this move. He said that the inmate in the adjacent cell, who was a porter,[FN4] routinely threatened and harassed him. He stated that he advised the night officer of the ongoing problems. On June 26, 2005, claimant wrote a second, lengthy letter to Superintendent West,[FN5] in which he stated that his safety continued to be endangered, and that he was receiving threats that he would be cut or jumped because he was an informant. While he did not mention specific names of the inmates who were threatening him, he wrote: "I heard one inmate who is [a] porter encourage [another] inmate to do harm to me."

Claimant was again moved to a new cell, and another memorandum was prepared in response to claimant's second letter.[FN6] This memorandum stated in part: [Claimant's] concerns have already been addressed . . . [Claimant was] moved to the PC annex to ensure less contact with the other PC inmates. ADSP Thompson has contacted Albany Movement and Control to expedite [claimant's] transfer . . . Both staff and [claimant] await the expected transfer.

At trial, claimant said that the cell he was moved to after writing this second letter was located in the PC "Annex", close to the officer's station.

Claimant said that for most of the time he was housed in the PC unit, he did not leave his cell for recreation during the day, although he felt more secure going at night. He said he was afraid to go to the shower, and afraid to eat the food delivered to him by the porter, Adorno. He saw Adorno on a daily basis even after he was transferred to the PC Annex, because Adorno was the only porter assigned to that tier of the PC unit. Claimant stated that he continued to complain to any correction officer who came by his cell about his concerns for his safety. [*3]

On July 20, 2005 (notably, 41 days after the June 9, 2005 facility memorandum indicating that a facility transfer for claimant had been requested of Albany), claimant was watching television in his cell. He said it was either late morning or early afternoon. He felt something hit him in the face, twice. He realized that Adorno had struck him with an ice scraper through the bars of his cell while calling him names. Claimant called for help from the correction officer, and said that Adorno was still holding the ice scraper when the officer arrived.

Four pictures of the ice scraper used in the assault were submitted into evidence.[FN7] Testimony later in the trial, from Elmira's Deputy Superintendent of Security Wenderlich, indicated that the scraper was between four and five feet long. The pictures indicate that it consisted of a wooden handle with a heavy metal blade attached to one end. The blade appears to be approximately five to six inches wide. In one of the pictures, the scraper is depicted on the floor leaning on a four-drawer vertical metal filing cabinet. In that photograph, the handle extends above the top of the filing cabinet.

Claimant rested his case at the end of his testimony. Defendant moved to dismiss the claim on the ground that claimant had failed to make a prima facie case. The Court denied the motion.

Deputy Superintendent of Security Wenderlich testified on defendant's behalf. Wenderlich confirmed that claimant was incarcerated in the PC unit at claimant's own request, after claimant advised prison officials of an upcoming disturbance. Wenderlich stated that finding a safe location to house claimant was difficult, both because of his long list of enemies and because officials did not know who was threatening him. Wenderlich said that Adorno was not listed on claimant's enemies list, nor had Adorno's name come up during officials' investigation of claimant's complaints about the threats he was receiving.

Wenderlich described the PC Annex, where claimant was housed at the time of his attack. He indicated that the officer's station on the ground floor of the PC unit lies between the galleries on the left of that station and a section of six cells on the right of the station, known as the Annex.[FN8] He said the cells in the Annex are isolated from the other PC galleries by the officer's station, and are 10 to 12 steps away from the station. However, he also stated that the cell in which claimant was housed was not directly visible from the officer's station. He said the officer would have to get up and take about six steps and look around a corner in order to see claimant's cell. He called the Annex an "ultra PC,"[FN9] where claimant would have been isolated from all but the five other inmates housed there.[FN10] Wenderlich asserted that there was no other location at Elmira where claimant could have been housed that would have been more safe than the Annex. [*4]

Wenderlich testified that he was aware that claimant was being threatened, prior to the attack, because of claimant's complaints. He said that contact had been made directly with the Department of Correctional Services' (DOCS) Division of Classification and Movement to advise that Elmira's security officers supported the request that claimant be transferred to another facility. Wenderlich said that the Classification and Movement Division had not responded to the request by the date of the assault, as far as he was aware.

Wenderlich said that porters in the PC unit are also PC residents themselves. He said that there would normally be five to six porters out of their cells during the day shift: one or two per gallery, and one or two out on "the floor." He said that there was no particular process involved in becoming a porter. An inmate who wanted to become a porter would simply make his request known to the officer supervising the block, and that officer would make a determination based on his knowledge of the inmate's work ethic and whether the officer thought he could trust that inmate. He said that the inmate would not go before a board or fill out an application. He was not certain whether the officer would involve his sergeant in the decision, or not. He did not believe the inmates were paid for the porter's position. He believed that being a porter would be a "preferred" position, because it would get the inmate out of his cell. He did not think there was a waiting list to become a porter.

Wenderlich said that ice scrapers were commonly used at the facility to scrape wax or paint off the floors or to remove loose floor tiles. He was not aware of any other incidents at Elmira where an ice scraper was used as a weapon.

CO Zaffarano, who has been employed by DOCS for 20 years, also testified on defendant's behalf. He said that he was working in the PC unit as the second officer essentially a "gopher" in his capacity as a vacation relief officer on the day claimant was assaulted. He said that he did not specifically recall claimant. He did remember Adorno, with whom he had more contact because of Adorno's duties as a porter. He was not aware of any dispute between claimant and Adorno, and he also said he had never had any problems with Adorno.

Zaffarano said that at the time of the assault, Adorno was performing maintenance in the area of claimant's cell in the PC Annex, removing wax from the floor with an ice scraper. Zaffarano said that this was a job that was performed quarterly. An inmate performing the wax removal would sign the ice scraper out with his identification card.

Zaffarano said that he recalled the assault. He said that, as usual, there was a great deal of noise on the block, and a great deal of regular daily activity. He was seated at the officer's station at the time. He said that the desk was approximately 20 feet away from claimant's cell, but that claimant's cell was not in his direct line of vision. Shortly prior to the incident, Zaffarano stated, Adorno complained to Zaffarano that claimant was "badgering" him from his cell. Zaffarano said that he advised Adorno to ignore claimant and continue with his maintenance work. Zaffarano said he told Adorno that he could stop working there if the conversation was bothering him.

Approximately 15 minutes later, claimant then called out to Zaffarano. Zaffarano went to claimant's cell, where claimant told him that Adorno had attacked him with the ice scraper. Adorno was holding the ice scraper when Zaffarano arrived at claimant's cell. Adorno denied assaulting claimant. Zaffarano testified that he could see a mark over claimant's eye. Zaffarano had claimant escorted to the infirmary for treatment, and took the ice scraper away from Adorno, [*5]who was relieved of his duties and returned to his cell for an investigation of the incident. Adorno was eventually issued a disciplinary ticket. Zaffarano said he was not aware of any other incident where an ice scraper was used as a weapon by an inmate. Zaffarano also said that he was supervising Adorno by performing "an occasional spot-check on him."

Defendant's final witness was Sergeant Howarth, who had been a DOCS employee at Elmira for 12 years at the time of trial. Howarth was called to the scene when claimant was attacked, and investigated the incident between claimant and Adorno. He said there was no record of any dispute between claimant and Adorno, or between claimant and any of the porters on the PC unit. Howarth also testified that claimant did not tell him of any problems he was having with Adorno.

As a result of his investigation, Howarth stated, he determined that claimant and Adorno got into an argument, which resulted in Adorno assaulting claimant. He said he did not conclude that the attack had any relationship with the information given by claimant to prison officials regarding the planned inmate disturbance.

When Howarth was asked on cross-examination why there was not closer supervision while an inmate was using an ice scraper in claimant's vicinity, if claimant had been transferred to the PC Annex to keep him more secure, Howarth stated that porters are given a certain amount of trust. Defendant rested its case after Howarth's testimony.

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 both reasonably foreseeable and inadequately addressed (Sanchez v State of New York, 99 NY2d 247 [2002]; see also Flaherty v State of New York, 296 NY 342 [1947]).

In this case, the documentary evidence and the testimony of all the witnesses clearly establishes that defendant was well aware that there was a reasonably foreseeable and high risk of harm to the claimant. Not only was claimant concerned for his own safety, which concern he thoroughly expressed to prison officials, but those same officials concurred in his assessment and believed that it was in claimant's best interests to be moved to another facility. Defendant apparently contends that, because it was not aware of the potential for risk to claimant coming specifically at the hands of Adorno, the attack was not foreseeable. This argument is unavailing in this particular instance. Just as "the precise manner in which the harm occurred need not be foreseeable" (Sanchez v State of New York, supra at 252), so too need it not be foreseeable precisely who delivers the blow in order to establish liability.

This same concept must also apply to the actual basis for the attack as well, at least in this case. Howarth testified that his investigation showed that the attack was unrelated to the information given by claimant to facility officials, but rather was based on some sort of argument between claimant and Adorno. The Court gave no weight to Zaffarano's testimony that claimant was "badgering" Adorno, as the sole basis for that assertion was Adorno's statement to Zaffarano to that effect - in other words, the hearsay statement of a convicted felon. The Court further gave [*6]no weight to Howarth's attribution of the cause of the assault being an argument, as no basis for that conclusion was submitted. Defendant was well aware that claimant was in extreme danger of assault by other unknown inmates, particularly even some who were housed in that specific PC unit. Being aware of this foreseeable risk of harm to claimant, defendant had a duty to protect and keep him safe from attack. Defendant obviously did not fulfill this duty.

Addressing the second part of the Sanchez test, defendant's response to the known and foreseeable risk of harm to claimant was patently inadequate. Defendant placed claimant in a cell where he could not be directly seen from the officer's station,[FN11] the requests from facility officials to Albany to expedite claimant's move to another prison were apparently ignored for at least 41 days, and, just for good measure, an inmate with a long-handled ice scraper with a heavy metal blade was allowed to "work" unsupervised outside claimant's cell.[FN12] It is only surprising that claimant was not assaulted sooner. This combination of factors, and in particular the last one, inescapably leads to a finding of liability by the Court. Further, the Court declines to attribute any portion of that liability to claimant, as the Court gave no weight to the slight evidence that claimant might have said something to Adorno to incite the attack (see supra at 9).

Consequently, the Court holds that defendant is 100% liable for claimant's injuries. The Clerk of the Court is directed to enter interlocutory judgment in favor of claimant on the issue of liability in accordance with this Decision. Trial on the issue of damages will be scheduled as soon as practicable.

Any and all motions on which the Court previously reserved or which were not previously determined at trial are hereby denied. Let interlocutory judgment be entered accordingly. Footnotes

Footnote 1: Defendant's Exhibit A at 2.

Footnote 2: This apparently means a "ground level" cell.

Footnote 3: Defendant's Exhibit C at 4.

Footnote 4: Claimant later testified that the person housed in the adjacent cell at the time was George Adorno, the inmate/porter who assaulted him. When he was housed in PC-1-5, however, he testified he did not know Adorno's name.

Footnote 5: Defendant's Exhibit B at 2-4.

Footnote 6: Defendant's Exhibit C at 3.

Footnote 7: Claimant's Exhibit 3.

Footnote 8: Interestingly, both Correction Officer (CO) Zeffarano and Sergeant Howarth testified that there are four cells in the PC Annex.

Footnote 9:All quotes herein are taken from the Court's recording of the proceedings, unless otherwise indicated.

Footnote 10: Obviously, those inmates housed in the PC Annex were not isolated from porters.

Footnote 11: It should be noted that, as in Sanchez v State of New York, supra, at n 4, this is not a case in which liability is predicated solely on the ground that a Correction Officer could not see claimant at the time he was assaulted.

Footnote 12: Inmate Adorno's lengthy disciplinary history, a redacted version of which was disclosed to claimant's counsel after an in camera review by the Court (Walton v State of New York, Ct Cl, May 16, 2007, Schaewe, J., Claim No. 112582 [UID # 2007-044-534] ), was inexplicably not submitted into evidence at trial. Accordingly, the Court has given that history no weight.

However, the Court notes in passing the facility's somewhat unusual practice - as "explained" with some significant degree of uncertainty by Deputy Superintendent of Security Wenderlich - of allowing inmates to become porters essentially at the whim of a block officer, without any further review of the inmate's criminal and disciplinary history and background, which is particularly troublesome in the unit which purportedly exists for the protection of inmates at known risk for assault.