Anonymous v State of New York

[*1] Anonymous v State of New York 2012 NY Slip Op 52159(U) Decided on September 27, 2012 Ct Cl DeBow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2012
Ct Cl

Anonymous, Claimant,

against

State of New York, Defendant.



113033



For Claimant:

CLAIMANT, Pro se

For Defendant:

ERIC T. SCHNEIDERMAN, Attorney General

of the State of New York

By: Michael C. Rizzo, Assistant Attorney General

W. Brooks DeBow, J.

Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for injuries resulting from an alleged sexual assault by his cellmate at Upstate Correctional Facility (CF) in September 2006. The trial of this claim was conducted by videoconference on May 3, 2012, with the parties appearing at Upstate Correctional Facility (CF) in Malone, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony; defendant called Department of Corrections and Community Supervision (DOCCS)[FN1] Offender Rehabilitation Coordinator Kyle Kasper and Correction Officer (CO) Kenneth Ellsworth. Numerous documents were offered and received into evidence, and the [*2]parties submitted post-trial memoranda. After listening to the witnesses's testimony and observing their demeanor as they testified, and upon consideration of that evidence, all of the documentary evidence received at trial, the parties' post-trial submissions, and the applicable law, the Court makes the following findings of fact and conclusions of law.

FACTS

On September 6, 2006, claimant, an inmate in the custody and control of DOCS, was transferred to Upstate CF in Malone, New York. On that date, a nurse completed a "Screening and Physical Assessment for Placement in a Double-Cell" form to determine claimant's ability to share a cell with another inmate (see Claimant's Exhibit 2). The form stated that claimant's medical records did not reveal any medical condition that would have precluded claimant from being doubled-celled, nor did the physical assessment of claimant reveal any physical or medical conditions that would have precluded him from being double-celled (see id.). Proof was adduced at trial that claimant's left hand was injured and in a splint at the time he was received at Upstate CF. As indicated on the form, such an injury might be pertinent to whether claimant should have been assigned a bottom bunk, but not whether he should not be double-celled (see id.).

On September 7, 2006, the day after claimant was received at Upstate CF, a Special Housing Unit (SHU) Mental Health Assessment of claimant was conducted (see Claimant's Exhibit 3). The mental health assessment form stated that claimant's mood was "fearful" and that he had feelings of helplessness and thoughts of suicide, and that he had experienced auditory hallucinations (see Claimant's Exhibit 3). Claimant was described as having poor insight, understanding of current circumstances and judgment (id.). In an entry from claimant's Mental Health Record that was completed on September 7, 2006 and which appears to be part of the Mental Health Assessment, it is noted that claimant stated that he had been sexually assaulted in 2003 at Upstate CF while in general population, that he was known as a "snitch" because he has many enemies, that he was "vulnerable" and needed protective custody, and that he could not be doubled-celled (see Claimant's Exhibit 5). This entry further indicated that the information reported by claimant was "passed on to security staff" (id.).

On or about September 8, 2006, an Upstate CF SHU Double-Cell Information Sheet regarding claimant was completed (Claimant's Exhibit 16). The Information Sheet noted that claimant was not "highly assaultive," did not engage in "predatory sexual behavior," and the offense for which he was incarcerated was not "extremely violent [in] nature" (id.). The Information Sheet further noted that claimant was not "victim prone," that claimant had an Office of Mental Health (OMH) classification of Level 4 which did not preclude him from being double-celled, and that the Health Services Review that had been conducted on September 6, 2006 approved of claimant being double-celled (id.). The Information Sheet also identified claimant's two known enemies. The Information Sheet indicates that the DSS (Deputy Superintendent for Security Services) checked a box on the Double-Cell Information Sheet indicating that the double-cell recommendation was disapproved. However, the Information Sheet contains no comment explaining this check mark, and there were no factors in the review that militated against assigning claimant to a double cell. To the contrary, claimant was assigned to a double cell by the Office of Classification and Movement on or about September 8, 2006. [*3]At trial, claimant testified that he had told DOCS officials during his interviews that he was victim prone and homosexual. However, none of the forms that were completed at or about the time of claimant's arrival at Upstate CF indicate that he is homosexual, or that he so reported (see Claimant's Exhibits 2, 3 and 5).

On September 11, 2006, claimant wrote to the Upstate CF Deputy Superintendent for Security Services (DSS) Bezio requesting to be single-celled (Defendant's Exhibit A). Claimant stated therein that his "life [was] constantly being in danger, not only [at Upstate CF] , but throughout the State," that he was "very victim-pron [sic]," and that he had previously been housed in protective custody twelve times (id.). Claimant's correspondence also advised that he had been sexually assaulted at Upstate CF by his cellmate in 2003 and that he was taking medication for his mental condition as a result of the assault. Claimant pleaded that his victim-prone history "speaks for itself" and that DOCS officials in Albany have been "made aware that [his] life is in danger regardless of who is [his] cellmate" (id. [emphasis added]). Claimant's correspondence did not refer to his homosexuality. On September 12, 2006, the following day, DSS Bezio wrote a memorandum to Lieutenant Zerniak, asking him to investigate and report on claimant's request, specifically requesting him to interview claimant and to have a corrections counselor investigate (Defendant's Exhibit B).

Kyle Kasper, an Offender Rehabilitation Coordinator employed at Clinton CF, was assigned by Lt. Zerniak to investigate claimant's request that he be single-celled. Kasper interviewed claimant on September 13, 2006 and also spoke to DOCS Psychologist J. Marinelli, who had also interviewed claimant. Kasper also reviewed claimant's file, facility files and computer records. Kasper detailed his investigation in a memorandum to Lt. Zerniak, dated September 13, 2006, (see Defendant's Exhibit C). The memorandum stated that claimant had not reported an alleged sexual assault when he had been previously housed at Upstate CF in 2003, and that "he also claims that he is bisexual and prone to sexual assault by other inmates. He states that he has been placed in protective custody in several correctional facilities due to his sexual vulnerability" (id.). Kasper's research revealed that in "many cases" claimant's requests for protective custody were denied, and that claimant's prior placements in protective custody in several facilities were "mostly voluntary and due to being labeled as a snitch by Bloods gang members [and] not by being sexually assaulted or sexually vulnerable" (id.). Based upon his investigation, Kasper was of the opinion — shared by Marinelli — that claimant's allegations were not sufficiently substantiated and that claimant was "fabricating his story in an attempt to remain single celled" (id.).

On September 15, 2006, Lt. Zerniak sent DSS Bezio a memorandum reporting that he had interviewed claimant on September 13, 2006, and claimant did not then express any problems. Lt. Zerniak related Kasper's conclusion that claimant was "manipulating the system in an attempt to be single celled" (see Defendant's Exhibit D), and that OMH staff had interviewed claimant and felt that "there [was] no problem at [that] time" (id.). In a memorandum to claimant dated September 15, 2006, DSS Bezio essentially denied claimant's request to be single-celled, and stated that "[n]o further action [was] warranted at [that] time" (Claimant's Exhibit 6).

As indicated above, claimant had an extensive history of seeking voluntary protective custody (VPC) at the many correctional facilities in which he had been housed during the ten years preceding his transfer to Upstate CF, as reflected in the VPC Status Consideration Forms [*4]that were received into evidence as Claimant's Exhibit 17. These forms demonstrate that claimant was assigned to VPC on nine different occasions in eight different facilities dating back to November 1996, that his requests for VPC were denied on five separate occasions, and that he had refused VPC on one occasion. Claimant's VPC Status Consideration Forms indicate that he sought VPC because he believed his safety to be in jeopardy because he was being threatened or extorted by inmates, was labeled a "snitch" by the Bloods gang, or was assaulted, and that VPC was granted or denied based upon review and consideration of the circumstances of each request. No mention was made in any of the VPC Status Consideration Forms of claimant's sexuality or that he had ever been placed in VPC because of vulnerability related to his sexuality.

Kasper testified that there are not enough cells at Upstate CF to grant all inmate requests for a single cell, and that DOCS staff investigates inmates' requests to be single celled. According to Kasper, single cells at Upstate CF are generally given to homosexuals, inmates with an OMH Level 1, or vulnerable inmates such as snitches. Kasper also testified that in considering whether to assign an inmate to a single cell, there must be evidence that the inmate is either vulnerable or mentally unstable, and that an inmate may be found to vulnerable because they are a snitch or homosexual. According to Kasper, a snitch who may be vulnerable in one facility is not necessarily vulnerable at their next facility if there is no evidence of potential threats or names of potential enemies at the particular subsequent facility. Kasper testified that claimant's prior VPC Status Consideration Forms (see Claimant's Exhibit 17) should have been part of the records that he reviewed in making his determination, but that he did not specifically recall them from his investigation, which was done nearly six years prior to his testimony at trial. Based upon his review at trial of the VPC Status Consideration Forms, Kasper confirmed that claimant did not need to be single-celled upon his arrival at Upstate CF in 2006, and that VPC was not warranted at that time.

Claimant was double-celled until September 15, 2006, when his initial cellmate was moved out of the cell. Claimant was without a cellmate for three days, and on September 18, 2006, another inmate was moved into the cell with claimant. The new cellmate was not one of the two inmates who were identified as enemies of claimant during his double-cell review (see Claimant's Exhibit 16). According to claimant, his new cellmate was a member of the Bloods gang who started "bossing" claimant around, and who took claimant's food, to which claimant did not object to because of the cellmate's gang status (see Claimant's Exhibit 8, at p.1). Claimant testified that he was raped by his cellmate on September 21, 2006. Claimant testified that he did not report the rape immediately because his cellmate had threatened him, but that the following day when claimant was attempting to secretly talk to a corrections officer to report the rape, his cellmate hit him over the head. CO Kenneth Ellsworth testified at trial that he had been an escort officer on September 22, 2006, that claimant had called him over to his cell and had begun to say something, at which time claimant's cellmate hit claimant in the back of the head, an incident that was documented in Claimant's Exhibit No.7. Claimant's affirmed statement given to the State Police that day, however, indicates that claimant was attacked by his cellmate following a cell search by corrections officers, when claimant was about to ask the corrections officer where his dentures were (see Claimant's Exhibit 8, at p.3). Claimant testified at trial that his cellmate was known to be a homosexual predator.

DISCUSSION[*5]

Claimant argues that the State clearly had a duty to protect him from the attack by his cellmate, inasmuch as he was victim prone and known to be at risk of attack and that the State had notice and an opportunity to intervene to protect him but failed to do so. Defendant contends that the claim should fail for lack of proof that claimant's mental health condition precluded him from being double celled and a further lack of proof of facts that would have made it reasonably foreseeable that claimant would be assaulted by his cellmate. Defendant further contends that defendant's decision to place claimant in a double cell was a discretionary determination entitled to governmental immunity.

"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, 252-253 [2002]). However, the State is not an insurer of the safety of inmates (id. at 253), and the scope of the State's duty of care is limited to providing "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985]; see Sanchez, 99 NY2d at 253; Flaherty v State of New York, 296 NY 342 [1947]; Dizak v State of New York, 124 AD2d 329 [3d Dept 1986]). Foreseeability rests upon a determination of what the State actually knew, as well as what it should have reasonably known about the risk of an attack on claimant (see Sanchez, at 254; Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). Some of the circumstances that may demonstrate the foreseeability of an inmate-on-inmate assault include where defendant knew or reasonably should have known that the claimant was specifically at risk of being attacked, that the assailant was prone to perpetrate attacks, or that a particular class of inmates or a particular location within a correctional facility may present a risk of attack (see Sanchez, at 254-255; Vasquez, at 1276; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]; Colon v State of New York, 209 AD2d 842, 843-844 [3d Dept 1994]; Evans v State of New York, 11 Misc 3d 1065[A], *6 [Ct Cl 2006]). It is claimant's burden to prove his cause of action by a preponderance of the credible evidence (see Pursel v State of New York, 226 AD2d 872, 873 [3d Dept 1996]; Heatley v State of New York, 30 Misc 3d 1202[A], *4 [Ct Cl 2010]; Vasquez v State of New York, 16 Misc 3d 1116[A], *6 [Ct Cl 2007]), and more particularly in this case, to show by a preponderance of the credible evidence that defendant knew or should have known that there was a risk that claimant would be attacked by his cellmate.[FN2]

Claimant argues that because his requests for VPC had been granted on some prior occasions, and because he identifies as a victim-prone inmate, any attack against him would be foreseeable. He contends that "[r]egardless of reporting safety concerns to correctional staff regarding one particular inmate. Claimant's concerns, and notice, was as a whole . . . Claimant's multiple notices were blanketed" (Claimant's Post-Trial Memorandum, ¶4[D]). This argument is flawed in two respects. First, it asserts an overly broad scope of foreseeability of harm in the prison context that would render defendant an insurer of claimant's safety. Second, the argument [*6]that defendant knew he was generally "victim-prone" and therefore at risk of being attacked is not supported by the evidence at trial.

Prior to claimant's arrival at Upstate CF, corrections officials at other facilities had determined that, based upon the circumstances at those facilities, claimant should be placed in VPC for his safety, for one of two reasons. Specifically, the evidence at trial demonstrated that claimant had previously been placed in VPC due to concerns that members of the Bloods gang would retaliate against him because he was a snitch, and he had previously been placed into VPC because he was being threatened by specific inmates. Thus, defendant knew or had reason to know that claimant was at risk of being attacked by members of the Bloods gang and by certain specific inmates who had threatened claimant. The evidence therefore demonstrates that an attack by a cellmate would have been foreseeable if claimant was double-celled with an inmate who fell within one of these two groups.

Claimant testified that his assailant was a member of the Bloods gang, but there was no credible corroborating evidence of this self-serving testimony regarding his cellmate's Bloods gang membership, and thus, the Court accords this evidence little weight. Further, even if there was persuasive evidence that claimant's cellmate was a Bloods gang member, there was no evidence adduced at trial that defendant's agents knew or reasonably should have known of that gang affiliation. Similarly, there was no evidence at trial that claimant's assailant was one of the inmates who had previously threatened claimant or was a known enemy. Accordingly, the evidence related to claimant's prior VPC history or his assailant's alleged gang membership does not prove to a preponderance of the credible evidence that it was reasonably foreseeable that claimant would be attacked by the inmate with whom he was double-celled.

Claimant also essentially argues that the attack was foreseeable inasmuch as he was susceptible to attack because of his homosexuality, and because his assailant was a homosexual predator. However, there was no corroborating evidence of claimant's own trial testimony that his assailant was a homosexual predator, and thus, the Court accords that testimony little weight. Moreover, even if such testimony were to be heavily weighted, there was no evidence adduced at trial that prison officials knew or reasonably should have known that the cellmate was a homosexual predator, and thus, this line of argument does not demonstrate to a preponderance of the credible evidence that an attack by this cellmate was reasonably foreseeable. Finally, to the extent that claimant's fractured finger made the attack reasonably foreseeable, there was no proof whatsover that any such impairment rendered claimant prone to or defenseless against a sexual assault. In sum, the preponderance of the credible evidence at trial fails to establish that the sexual assault by claimant's cellmate was reasonably foreseeable, and thus, defendant will not be held liable to claimant for any injuries sustained in that assault.

Inasmuch as the Court has concluded that defendant is not liable to claimant for injuries sustained as a result of the assault by his cellmate, the Court need not decide whether defendant would be entitled to governmental function immunity for a discretionary determination to place claimant in a double cell.

CONCLUSION

The Court finds in favor of defendant. Any motions not previously ruled upon are hereby DENIED. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.

Albany, New York

September 27, 2012

W. BROOKS DeBOW

Judge of the Court of Claims Footnotes

Footnote 1: Since DOCCS was known at the time of the events in the claim as the Department of Correctional Services (DOCS), the decision will refer to the executive agency by its former name.

Footnote 2:Inasmuch as claimant's theory of liability is that it was reasonably foreseeable that claimant was at risk of attack, the Court need not consider whether claimant's assailant was prone to violence or whether there was a particular class of inmates or particular location that presented a risk of attack.