Opinion
# 2017-044-005 Claim No. 117532
05-02-2017
JEAN BELOT v. THE STATE OF NEW YORK
JEAN BELOT, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General
Synopsis
Claimant, formerly incarcerated, alleged inmate-on-inmate assault. Claim dismissed after trial due to unforseeability of assault. Defendant was under no obligation to conduct unremitting surveillance.
Case information
| UID: | 2017-044-005 |
| Claimant(s): | JEAN BELOT |
| Claimant short name: | BELOT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117532 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JEAN BELOT, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 2, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a self-represented litigant, filed this claim to recover for personal injuries allegedly received when he was assaulted by a fellow inmate, Eduardo Latorres, on August 13, 2008 while both were at Elmira Correctional Facility (Elmira). Trial of the matter was held in the Binghamton District on April 11, 2017.
At the time he filed this claim, claimant was in the custody of the Department of Corrections and Community Supervision (DOCCS).
At trial, claimant testified that the assault occurred on August 13, 2008 at approximately 7:15 a.m. Claimant was an assigned "water man" for his cellblock (5-Gallery), and so was out of his cell to deliver water to the other inmates. The only other inmate out of his cell was Latorres, who was an assigned porter on the cellblock. Claimant was talking to another inmate (who was in his cell) with a mop in his hand, because water duty usually involves some spillage. He said Latorres walked past him and snatched the mop out of his hand. Claimant asked him what was wrong, and said Latorres responded by threatening him and becoming aggressive. Claimant testified that he did not respond and that Latorres then went back to his cell. Claimant thought that the incident was over at that point.
All quotes herein are taken from the Court's recording of the proceeding unless otherwise indicated.
Claimant said that he continued talking to the other inmate, and did not see Latorres come back out of his cell with a metal shank with which he stabbed claimant in the head. Claimant showed a scar and indentation on his head to the Court and to counsel for defendant. Claimant said he tried to defend himself, but Latorres also stabbed him in his left bicep and cut his left cheek. He stated that they eventually started wrestling, hit the cell bars and fell down, with the weapon between them. He said he started to get up after Latorres dropped the weapon, and he then heard a correction officer (CO) yell at them to stop fighting. He backed up and put his hands on the wall as ordered by the COs. He was frisked and then escorted to the infirmary.
Claimant's Ambulatory Health Record indicates that claimant received seven stitches to close the one- to two-inch laceration in his scalp and five staples to close the laceration in his bicep. The one-inch cut on his cheek did not require stitches, but was cleaned and bandaged. A bite on his shoulder was also cleaned. He was given a painkiller of some kind. Claimant was charged with various disciplinary violations and escorted to the Special Housing Unit (SHU), where he was asked routine intake questions. Claimant testified that he was not in counseling or treatment at that time, but asked to see someone in the Mental Health Unit. He was placed on suicide watch that night. He said he spent one or two nights under observation and then was placed in a SHU cell.
Claimant's Exhibit 19 at 3.
After a hearing, claimant was found guilty of the three disciplinary charges of assault, fighting and violent conduct. Although the hearing officer acknowledged that the nature of claimant's wounds was defensive, he was nevertheless sentenced to six months in SHU. Claimant stated that the "ticket on that incident" was eventually dismissed.
Claimant was eventually transferred from Elmira to Southport Correctional Facility (Southport). While in that facility, he said he was involved with an altercation with some COs on December 31, 2008, in which he was injured. After that altercation he was sent to the Central New York Psychiatric Center in Marcy for some time.
Claimant stated that he had been getting migraine headaches since the fight. He said that at first they were consistent and intense, but decreased over time, although they have never completely stopped. He said that while he was incarcerated he was prescribed Percogesic and then Percocet for the pain. He said that tense situations and stress cause recurrences. Since his release he takes Ibuprofen 600 or Tylenol 3 pills to deal with the pain. He said that since he had been released from prison he had the headaches once or twice a week, on average.
Claimant explained that the basis for his contention that defendant's negligence was the proximate cause of the incident is two-fold. His first argument is that, according to 9 NYCRR 7003.3, any housing unit with 20 or more residents must be actively supervised. The second argument is that Latorres should never have been assigned duty as a porter, which entails certain privileges including less restricted movement around the cellblock, due to his previous history of violent behavior and extensive disciplinary history. Claimant argued that the program committee failed to properly vet Latorres in light of the security concerns his past history posed, noting that at Latorres' arrest he shot at a police officer. Claimant further stated that it was "common knowledge" that Latorres was a member of the "rat hunter" gang. Claimant contended that whether or not defendant's agents were aware of Latorres' gang affiliation, his program placement as a porter was inappropriate, and that there was clearly a foreseeable risk of harm with Latorres being unsupervised in a secluded location.
9 NYCRR 7003.3 (a) provides as follows: "[a]ctive supervision shall be maintained in all facility housing areas, including multiple occupancy housing units, when any prisoners are confined in such areas but not secured in their individual housing units."
9 NYCRR 7003.2 (c) states: "Active supervision shall mean the immediate availability to prisoners of facility staff responsible for the care and custody of such prisoners which shall include: . . . (4) in any facility housing area in which more than 20 inmates are housed, the continuous occupation of a security post within such housing area.
The NYS Criminal Repository Information for Latorres indicates that he was convicted after a bench trial of Attempted Murder in the First Degree (Police/Correction Employee) pursuant to Penal Law 125.27 (Claimant's Exhibit 7 at 6).
On cross-examination, claimant stated that all other inmates on the cellblock were locked in their cells. Claimant was conversing with another inmate through the "gate" to his cell. Prior to the incident, claimant did not know Latorres personally and had only communicated with him regarding the work they did on the cellblock. Claimant acknowledged that he had no problem with Latorres prior to this incident, and had no reason to be fearful of him. Latorres became a porter on that cellblock on June 9, 2008 and they had worked together without any problems until the assault which is the basis of this claim.
Claimant's Exhibit 16.
When claimant was asked whether he could have walked into his cell and locked himself in after Latorres threatened him, claimant responded that Latorres was between claimant and his cell when he threatened claimant, and after Latorres stopped and walked away, claimant thought the incident was over.
Claimant acknowledged that he told the COs that he had injured himself falling down. He said that it is "inmate protocol" not to reveal details regarding fights. He did punch Latorres several times, and was not certain whether he kicked Latorres in the head. Claimant admitted that he had been involved in other fights with inmates prior to this. He noted that in this instance, the charge of assault on another inmate was eventually dismissed although the penalty for the other charges was not modified. Claimant said he knew that Latorres was a gang member because Latorres talked about it during the time they worked together. When asked whether he remembered telling CO Thompson that Latorres was lucky the officers arrived when they did, he denied having made such a statement.
Claimant was asked whether he had ever had a diagnosis regarding his migraine headaches. He stated that he had an MRI (it was actually a CT scan) on December 31, 2008 at Southport which was inconclusive, with no diagnosis of concussion. When asked whether the scan was performed one day after the incident with the officers he eventually agreed, but pointed out that it would have been ordered long before that date. The Radiology Report notes that the reason for the scan was headaches.
Defendant's Exhibit H.
Claimant rested at the close of his testimony. Defendant requested permission to make motions at the end of the trial, which was granted by the Court.
CO George Watts, a 15-year employee of DOCCS, testified on defendant's behalf. He stated that he was on post that morning in charge of 7-Gallery. At approximately 7:20 that morning he would have been standing on a walkway between 7- and 8- Galleries, getting ready for inmates to go to breakfast. He stated he would stand there until the chow bell rang, and would then escort the inmates from the front of the gallery to the back so that they could proceed down the back stairway.
He recalled the altercation between claimant and Latorres. From his post he could see a portion of 5-Gallery as he was looking down from the top tier at an angle. He observed two inmates fighting, and said the altercation took place somewhere around cell four. When he saw them fighting he yelled at them to stop and ran down the stairs to 5-Gallery. He said it took him 5 to 10 seconds to get there. He unlocked the gate and entered, and again yelled at them to stop fighting. He said they did stop fighting, and no physical force was necessary to break up the fight. He stated that both inmates were injured. He also said that CO Thompson, who was in charge of 8-Gallery, was with him.
Watts testified that claimant and Latorres were the only inmates loose on the gallery. Prior to the altercation he was acquainted with claimant, but not with Latorres. He had never had any problems with either inmate prior to this incident. He had no reason to believe that they would be involved in an altercation. Claimant had never informed him (or anyone else, to his knowledge) that his safety was at risk, or that there might be a fight.
On cross-examination, Watts said he did not know which CO was on duty on 5-Gallery that day, but whoever it was would have been posted at the back of the gallery while awaiting the chow bell. He said that officer would be focused on the stairway, as that is where the inmate movement would take place, and so might not have been looking down the gallery toward where claimant and Latorres were fighting.
When asked where most violent incidents in prison take place, Watts responded "all over." Watts further said that with two inmates out of their cells it was a CO's duty to be vigilant, as it is always their job to be vigilant, but they do not have eyes in the back of their heads. He noted that many incidents occur at a time of inmate movement, particularly in housing units, because that creates a distraction so "they can get away with it better."
He did not know whether the chow bell had rung when he observed the altercation, and did not know what drew his attention to the fight. He stated that he had seen porters get into fights before, but that it was not a common occurrence.
CO Thompson, a 27-year DOCCS employee, also testified for defendant. He was responsible for 8-Gallery on the morning of the fight. He was standing at the front of 7- and 8-Galleries with a view of 5-Gallery where he saw claimant hitting Latorres with closed fists. He said claimant was on top of Latorres, who was not fighting back at that point but was simply trying to defend himself. He and CO Watts descended to 5-Gallery, where Watts ordered them to stop fighting. They did so, and claimant was escorted to the infirmary.
He said that prior to this incident he had had no trouble with either inmate. He had no reason to believe that either would be involved in this type of incident. Neither had advised him of any problems or concerns with other inmates. Nothing had occurred prior to the altercation that would indicate a fight was imminent.
Thompson said that at the time he and Watts were standing at the front of 7- and 8-Galleries, there would not have been a CO beneath them at the front of 5- and 6-Galleries. The COs assigned to that tier would have been returning from handing in tickets or would have been at the back of the block to observe inmates descending the stairs for the chow run.
Thompson said that he and claimant had a brief discussion about the altercation approximately one year afterward. Thompson said he encountered claimant, who was on a court trip, and claimant said that it was a good thing the guards were present, because otherwise he would have killed Latorres.
On cross-examination, Thompson said he had never seen porters fight on G-Block. Usually fights would occur when there were no COs in the vicinity. Thompson recalled claimant from a time when claimant was a porter in the infirmary. He described claimant as polite, quiet, and someone who did his job. He said claimant was not prone to violence, and never saw him get angry at anyone or yell at anyone.
Superintendent Paul Gonyea testified as defendant's expert witness regarding inmate programming and security. Gonyea is the superintendent of Mohawk Correctional Facility, and is also the supervising superintendent for the Oneida Correctional Hub (four facilities). He has been employed by DOCCS for 35 years, starting as a CO. His duties and responsibilities are to oversee the overall operation of the facility and to assist the other superintendents throughout the hub. He makes certain that all procedures and policies are carried out and that the facility runs in a fiscally secure manner. He described his extensive training. He said that he had experience in inmate programming, having previously been a program Sergeant, sitting on a program committee with his responsibility being to assess security in each inmate's programming.
With regard to claimant's allegations and the altercation between claimant and Latorres, Gonyea said that he had reviewed the Unusual Incident Report, the directive on program placement, the inmate program manual in effect, and Latorres' criminal history, disciplinary history and program history. Based on his review of those documents he expressed the following opinions.
Claimant's Exhibit 13.
Claimant's Exhibit 15.
Claimant's Exhibit 14.
Claimant's Exhibits 7 and 8.
Claimant's Exhibit 9.
Claimant's Exhibit 6.
Gonyea stated that there was no ground to isolate Latorres from general population. He said that there must be a legal reason to put an inmate in segregation. He found no disciplinary basis, protective custody status or administrative basis to do so. He opined that Latorres should have been allowed to participate in inmate programming in August 2008. He said that inmates are more productive and engage in less inappropriate behavior when they are busy. Further, he stated that based upon the nature of a porter job, Latorres' recent disciplinary history and program history, there was nothing to indicate that it would be inappropriate to place him as a porter. There was no rule or regulation that would have disqualified him as a porter.
On cross-examination, Gonyea acknowledged that gang affiliation information might or might not be in the documents submitted to the program committee. Gonyea said that he would have been more concerned about putting Latorres in a program in recreation, because Latorres seemed to have had problems in situations where there were large congregations of inmates. Gonyea also said that one factor he would take into account regarding the security of a program for Latorres would have been the length of time since he had any problems during programming. Gonyea noted that Latorres' disciplinary history had been fairly good for a long time prior to this altercation.
Gonyea stated that an inmate is assigned to a program by the chair of the program committee. He said that an inmate must appear before the program committee in order to be assigned. Gonyea acknowledged that there was a request dated by CO Bailey for Latorres to become a block porter commencing on June 16, 2008. Claimant asked whether Gonyea had been given any information regarding Latorres' appearance before the program committee, and Gonyea acknowledged he had not. Claimant asked whether Gonyea was aware that an appearance before the program committee at Elmira was not necessary when the request was made by a CO. Gonyea admitted that he was not familiar with the specifics of Elmira's program committee approvals.
The parties agreed that claimant requested this information during discovery, and defendant was unable to locate any documentation addressing the request.
Claimant asked Gonyea whether he was familiar with the term "active supervision," as defined in 9 NYCRR 7003.2 (c), as well as 9 NYCRR 7003.3, which sets forth standards for inmate housing supervision, based upon location, and requires that staff maintain active supervision when inmates are confined in a multiple housing unit area but not secured in their individual cells. Gonyea stated that he was not familiar with those particular regulations.
Counsel for defendant objected on the basis that the referenced statute is applicable to local jail incarcerations, and not to state prison situations. In response, claimant stated (without referencing any authority for the proposition) that DOCCS had adopted those standards.
On redirect examination, Gonyea stated that he was familiar with the provisions of Title 7 of the NYCRR, which is the Title pertinent to DOCCS, rather than those provisions of Title 9 which are entitled "Minimum Standards and Regulations for Management of County Jails and Penitentiaries." Gonyea stated that in a SHU situation it would be necessary to actively supervise a porter out of his cell, but that this was not a requirement in general population. Gonyea noted that there would not be nearly enough staff to perform such active supervision.
Gonyea noted that Latorres' most recent violent conviction (while incarcerated) was in 1995, with some convictions for violent behavior having also occurred prior to that time. He further stated that the percentage of inmates convicted of violent felonies at Elmira is between 60% and 65%, and that if inmates want to fight they will find a way regardless of programming capacity. He affirmed that there was no statutory, regulatory or directive requirement that a porter and/or water man be actively supervised at the time and place the altercation occurred.
Defendant rested its case at the close of Gonyea's testimony. Counsel for defendant moved to dismiss the claim on the basis that none of the prongs set forth in Sanchez v State of New York (99 NY2d 247 [2002]) had been met, and thus that claimant had not set forth a prima facie case. Counsel noted that claimant had admitted having no knowledge of an imminent attack, and had never notified staff of any concerns. Counsel argued that the facility may have been aware that Latorres was prone to perpetrating violence 13 years prior to this incident, but that there had been no violence committed by him in the ensuing time. Counsel argued that under the proof as presented there was no indication that the attack was foreseeable. In response, claimant argued that if the block had been actively supervised there would not have been an opportunity for Latorres to attack him. The Court reserved decision on the motion to dismiss.
It is well-settled that 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 [3d Dept 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 (Colon v State of New York, 209 AD2d 842 [3d Dept 1994]). In order to establish that the State is liable for such an assault, an inmate claimant must allege and ultimately prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and inadequately addressed (Sanchez, 99 NY2d at 253-254; see also Flaherty v State of New York, 296 NY 342 [1947]). In other words, a claimant must prove one of the following: (1) that the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) that the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) that the State had ample notice and opportunity to intervene but did not act (Sanchez, 99 NY2d at 252).
[T]he 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 (id. at 256).
Claimant testified that he was not aware of having any enemies, and that Latorres had not threatened him prior to the attack. He had not complained to any prison officials about a potential risk of being assaulted. Claimant presented no evidence that defendant knew or should have known that claimant was going to be attacked. Although Latorres had been convicted of a violent crime, his most recent violent conduct conviction in prison had occurred 13 years prior to this altercation. Most of the inmates at Elmira have been convicted of violent conduct. Under these circumstances, defendant cannot be held to be on notice that Latorres was prone to perpetrating an assault, nor did defendant have an opportunity to intervene.
Claimant argued that there should have been "active supervision" by the officers in order to prevent the assault. This argument that "unremitting surveillance" was required in this situation was rejected by the Court of Appeals in Sanchez. Further, claimant's argument that active surveillance would have prevented the altercation is simply speculative, particularly in light of the supervision being provided by CO Watts and CO Thompson. Defendant cannot be held liable on this basis. Finally, the provisions of 9 NYCRR 7003.3 are inapplicable to state prisons, despite claimant's assertions to the contrary.
Claimant has failed to meet his burden of proof in this matter and Claim No. 117532 is hereby dismissed. Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied.
Let judgment be entered accordingly.
May 2, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims