Opinion
# 2011-038-104 Claim No. 109954
07-06-2011
GABRIEL G. H. MIDALGO v. THE STATE OF NEW YORK
Synopsis
Claim for "conspiracy" does not state a cause of action. Proof at trial did not establish by a preponderance of the credible evidence that corrections officers paid inmates to assault claimant, or that two inmate-on-inmate assaults at different correctional facilities were reasonably foreseeable, or that he had been assaulted by correction officers. Further, claimant did not prove that defendant should be found liable for failing to place him in protective custody. Case information
UID: 2011-038-104 Claimant(s): GABRIEL G. H. MIDALGO Claimant short name: MIDALGO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 109954 Motion number(s): Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: Gabriel G. H. Midalgo, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the Defendant's attorney: State of New York By: Stephen J. Maher, Assistant Attorney General Third-party defendant's attorney: Signature date: July 6, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant stated at trial that his name is actually "Gabrian Hidalgo," but that the Department of Correctional Services assigned him the name "Gabriel Midalgo" due to an administrative error. The Court notes, however, that all of the documents pertaining to this claim - including the pleadings and other supporting documents that were signed by claimant - recite claimant's name as the purportedly erroneous "Gabriel Midalgo."
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that certain correction officers subjected claimant to retaliatory actions between January 2003 and June 2004 due to claimant's pending federal court claims. The trial of this claim was conducted by videoconference on May 11, 2011, 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 offered no witnesses. Claimant offered seven documents into evidence, all of which were received in evidence. Defendant offered three documents into evidence, all of which were received in evidence. After listening to the claimant's testimony and observing his demeanor as he did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court makes the following findings of fact and conclusions of law.
FACTS
This claim alleges numerous wrongful acts by correction officers from January 2003 through June 2004. The evidence presented at trial focused primarily upon three events: an alleged inmate-on-inmate assault on April 18, 2004 that was allegedly paid for by correction officers; another alleged "for hire" inmate-on-inmate assault on June 25, 2004, and then on that same day, an alleged assault of claimant by correction officers. The competent and credible evidence at trial establishes that claimant filed a federal lawsuit against eighteen Upstate CF prison officials sometime prior to April 18, 2004.On April 27, 2004, claimant, then an inmate at Upstate CF, wrote to the Inspector General (IG) of the Department of Correctional Services (DOCS),stating that certain Upstate CF correction officers have "placed a hit on me and have conspired on more than one occasion to have me set up and assaulted in retaliation for filing" a federal lawsuit against correction officers (Claimant's Exhibit 2 [emphasis in original]). The April 27, 2004 letter further indicates that claimant was attacked on April 18, 2004 by two unknown "hired" inmates while he was on the "visiting floor" at Upstate CF, and that after the attack a correction officer told him that "a check aint [sic] worth dying for your [sic] better drop your lawsuit or it's going to get worse" (id.). The letter also indicates that multiple unknown inmates had been threatening claimant and that he believed that he would be "framed and or assaulted in the next month or so to prevent [claimant] from being released into the general population in a plot to make him 'max out' from Upstate [CF]" (id.). No documentary evidence that would corroborate the occurrence of an assault on April 18, 2004, such as an incident report or claimant's ambulatory health records, were offered into evidence by claimant.
Although claimant testified that his federal lawsuit was filed on or about May 2004, the evidence, as discussed in greater detail below, demonstrates that the lawsuit was filed prior to the allegedly retaliatory assault on claimant on April 18, 2004 (see Claimant's Exhibit 2).
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the claim relates to acts that occurred prior to the name change, this decision will refer to the executive agency by its former name.
On June 13, 2004, claimant wrote to DOCS Commissioner Goord stating that his "life and well being is in danger," and that correction officers paid two inmates to assault him on April 18, 2004 (Claimant's Exhibit 1). The letter also indicated that after the assault, claimant "immediately requested to be placed in protective custody but the Sgt. ignored [him]" (id.). Claimant's letter further asserted that his life and that of his "families" had been threatened by gang members, and that the correction officers named in his federal lawsuit indicated to him that when he was "returned to general population on June 21 [indeciperable], [he] will be leaving with a bus full of hired hitmen who's going [to] cut, stab or murder [him]" (id.). Claimant requested in the letter that he be placed in protective custody immediately and be segregated from the other inmates on the bus.
On June 25, 2004, claimant was assaulted by an unknown inmate in a hallway in Clinton CF, sustaining a one-inch laceration to his left cheek, a four inch laceration to the right rear side of his neck, and some superficial scratches to his arm and nose, for which he was treated at the Clinton CF infirmary. Claimant testified that following the assault, he was shown a photo array of suspects, but that correction officers had conspired against him and therefore a picture of his assailant was not in the array. Claimant also testified that his assailant was paid. A Clinton CF memorandum completed by Sergeant (Sgt.) Brannen after the assault indicated that claimant was unable to identify his assailant, that claimant feared for his life, and that claimant stated that he was being set up by correction officers (Defendant's Exhibit A). Sgt. Brannen's memorandum further states that claimant was interviewed for placement into voluntary protective custody (VPC) status, that claimant was uncooperative and refused to sign a VPC request, and thus Sgt. Brannen changed claimant's placement to involuntary protective custody (IPC) and claimant was later placed in IPC.
Claimant was brought to an office to speak to Sgt. Olsen following his treatment at the Clinton CF infirmary. According to claimant, Sgt. Olsen angrily questioned him about why he had sent the letter to Commissioner Goord. Claimant testified that Sgt. Olsen left the office after he finished questioning claimant, and that claimant was thereafter attacked by correction officers. Claimant testified that he passed out during the attack and woke up in the Clinton CF infirmary, where he was treated and thereafter sent to the "satellite unit"under the guise of treating his "mental health problems." A Clinton CF memorandum completed by Sgt. Olsen indicates that on June 25, 2004 he interviewed claimant concerning a complaint he had filed (Defendant's Exhibit B). According to Sgt. Olsen, as claimant was being escorted to his IPC cell after the interview, claimant attempted to flee his escort and that correction officers used force and mechanical restraints to control claimant.
All quotations are to the Court's trial notes or the digital audio recording of the trial, unless otherwise indicated.
DISCUSSION
The gravamen of claimant's theory of liability is that the correction officials named in claimant's federal lawsuit conspired to harm claimant in retaliation for filing his federal lawsuit. Claimant has asserted that correction officers paid inmates to assault him, and also personally assaulted claimant for notifying Commissioner Goord of the conspiracy. To the extent that claimant is asserting a claim for conspiracy, the Court of Appeals has "long ago held, [that] 'a mere conspiracy to commit a [tort] is never of itself a cause of action' " (Alexander & Alexander of N.Y. v Fritzen, 68 NY2d 968, 969 [1986], quoting Brackett v Griswold, 112 NY 454, 467 [1889]). "Allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort" (id.). If the alleged conspiracy results in an otherwise actionable tort, the proper cause of action is the tort and not the conspiracy (see Green v Davies, 182 NY 499 [1905]; Lamm v State of New York, UID #2005-032-500, Claim No. 99321, Hard, J. [Feb. 28, 2005]). Thus, in alleging that correction officers conspired to assault claimant, claimant states causes of action only for the alleged assaults or other tortious conduct.
Claimant's allegations that correction officers hired inmates to assault claimant are supported only by claimant's own statements in letters to DOCS and his own testimony. While it is clear to the Court that claimant sincerely believes that inmates were hired to assault him, there is no other credible evidence to support this claim. Claimant's allegations of an assault "for hire" arrangement, without some form of corroboration, are not sufficiently persuasive to permit the Court to conclude that correction officers paid inmates to assault claimant. Thus, to the extent that the payment of inmates for the purpose of assaulting claimant constitutes an independent tort, the preponderance of the credible evidence does not support such a cause of action.
Claimant's allegations that he was assaulted by correction officers in an office after Sgt. Olsen questioned him on June 25, 2004 is not supported by the credible evidence. As an initial matter, in observing claimant's testimony, the Court found that claimant was not credible in this regard. Further, claimant's version of the events is contradicted by Sgt. Olsen's memorandum, which states that force was used upon claimant in response to his attempt to flee his escort, and the Court has no reason to reject this evidence. Therefore, claimant has not shown by a preponderance of the credible evidence that defendant's employees committed the intentional torts of assault and battery, and thus, defendant is not liable to claimant therefor.
Claimant also appears to contend that defendant is liable in negligence because it had notice of the conspiracy and threats against claimant and failed to act against the threats and place him in protective custody. While the State has a duty to protect inmates in its care and custody from attacks from other inmates, that duty does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). Rather, that duty includes 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 Flaherty v State of New York, 296 NY 342 [1947]; Dizak v State of New York, 124 AD2d 329 [3d Dept 1986]). As for what constitutes a foreseeable risk of harm, the Court looks not only to what the State knew, but what it should have reasonably known about the risk of an attack on claimant (Sanchez, at 254). The record is bereft of any evidence that would demonstrate that defendant had any knowledge prior to April 18, 2004 that claimant was at risk of an inmate-on-inmate assault. Indeed, claimant's own evidence demonstrates that DOCS first learned of the alleged assault after it had already transpired (Claimant's Exhibit 2). Thus, to the extent that claimant has established that he was the victim of an inmate-on-inmate assault on April 18, 2004, he has failed to prove by a preponderance of the credible evidence that such an assault was reasonably foreseeable, and thus, defendant cannot be held liable therefor.
As for the June 25, 2004 inmate-on-inmate assault, there was evidence that prior to this date, claimant had notified DOCS that he believed he would be assaulted. In his April 2004 letter to the IG, claimant generally stated that he believed he would be assaulted at some point in the next month in an effort to prevent him from being transferred out of Upstate CF. In his June 13, 2004 letter to the Commissioner of DOCS, claimant stated that he felt his safety was in danger, that he was being threatened by gang members, and that he would be assaulted on June 21 when he was on a bus. In the Court's view, however, these statements to DOCS did not provide defendant with notice that would render the June 25, 2004 inmate-on-inmate assault reasonably foreseeable. The April 2004 letter did not identify any inmate or inmates that claimant feared, or even a discernible class of inmates that was threatening him. Further, the letter indicated that he feared that he would be assaulted in the next month, and that the assault would occur at Upstate CF prior to his transfer into general population, which did not transpire. Thus, the April 2004 letter did not put defendant on notice that he would be assaulted at Clinton CF in late June 2004. Claimant's second letter indicated that he felt threatened by gang members - without specifying which gang members - and that he would be assaulted on June 21 on a bus, which also did not occur. Claimant was assaulted on June 25 at Clinton CF by an unknown inmate, who may or may not have been a gang member, but there was no testimony regarding the circumstances of the assault nor any other credible evidence that would permit the Court to conclude that defendant should have reasonably foreseen that claimant was at risk of an attack (see DiDonato v State of New York, 25 AD3d 944 [3d Dept 2006]).
Claimant's argument that defendant is liable because it violated DOCS Directive 4948 in not placing him in protective custody upon his request prior to the assault on June 25, 2004 is unavailing. While DOCS Directive 4948 sets forth the minimum conditions of confinement for inmates who are in VPC and IPC status, it does not provide standards or procedures for the placement of inmates into VPC or IPC status. Therefore, claimant has not demonstrated that defendant violated DOCS Directive 4948 by failing to place him in protective custody. Furthermore, while defendant could be held liable for failing to exercise reasonable care with regard to claimant's protective custody request (see Collins v State of New York, UID #2007-029-040, Claim No. 100508-A, Mignano, J. [Oct. 5, 2007]), claimant adduced no evidence as to the process and procedures for the placement of inmates into protective custody or the circumstances of defendant's response to his protective custody request. Thus, the Court cannot conclude that defendant failed to exercise reasonable care with regard to claimant's protective custody request.
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.
July 6, 2011
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims