Opinion
# 2019-029-022 Claim No. 124049
03-25-2019
SHAUN BOLTON v. THE STATE OF NEW YORK
GREENBERG & GREENBERG By: Mark D. Greenberg, Esq. and Geraldine Pomerantz, Esq. LETITIA JAMES, ATTORNEY GENERAL By: Elizabeth A. Gavin, Assistant Attorney General
Synopsis
Claimant was attacked by another inmate in a SHU yard at Green Haven before a correction officer could remove claimant's handcuffs through a hatch in the door, and correction officers waited to respond until a response team arrived. Green Haven's security protocol was to leave inmates handcuffed in the yard until the door was secured, and then for a correction officer to remove the handcuffs through a hatch in the door. After a trial on liability, the court found the state not liable for negligence and negligent supervision and dismissed the claim.
Case information
| UID: | 2019-029-022 |
| Claimant(s): | SHAUN BOLTON |
| Claimant short name: | BOLTON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124049 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | GREENBERG & GREENBERG By: Mark D. Greenberg, Esq. and Geraldine Pomerantz, Esq. |
| Defendant's attorney: | LETITIA JAMES, ATTORNEY GENERAL By: Elizabeth A. Gavin, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 25, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim, filed on March 14, 2014, seeks damages for injuries claimant sustained on June 20, 2012, in the East Yard of the Special Housing Unit ("SHU") at Green Haven Correctional Facility ("Green Haven") when another inmate attacked him. The claim pleads negligence and negligent supervision and control against defendant. A trial on liability was held on November 27, 2018.
Claimant refused to appear and testify on his own behalf. As a result, claimant's deposition did not meet the requirements of CPLR § 3117 or justify the use of the court's discretion, and was not admitted due to his voluntary action (see Barnes v City of New York, 44 AD3d 39 [2007]). Claimant's only witness at trial was Correction Officer ("CO") Robert Morgante. Claimant's exhibits admitted at trial included: a videotape of the incident (Exh. 1); an Unusual Incident Report (Exh. 2); three to/from memos by correction officers (Exhs. 3, 5 and 6); a "Separatees" printout (Exh. 8); DOCCS Directive 4933 (Exh. 9); Green Haven SHU Rules and Regulations (Exh. 12); 14 photographs (Exhs. 13-26); and transcripts of the depositions of CO Morgante, former CO Jose Mena, Sgt. Michael Funk, and Deputy Superintendent ("Dep. Supt.") Edward Burnett (Exhs. 27-30).
"DOCCS" refers to the New York State Department of Corrections and Community Supervision.
Dep. Supt. Burnett was the Deputy Superintendent for Security at Green Haven in 2012, and at Sullivan Correctional Facility when he testified at his deposition in 2016. CO Mena was a correction officer at Green Haven in 2012. When he testified at trial he was employed in the Internal Affairs Division for the Office of Special Investigations. For the sake of clarity, the court will refer to Mena as "CO Mena."
Defendant called the following witnesses to testify at trial as mutual witnesses: Sgt. Michael Funk; Dep. Supt. Edward Burnett; and Michael Capra, the Superintendent of Sing Sing Correctional Facility ("Sing Sing"), who testified as an expert in the field of New York State correctional facility safety and security. Defendant's exhibits admitted at trial included: claimant's disciplinary history (Exh. C); the disciplinary history of his attacker Henry Cox (Exh. D); and a grievance about the attack (Exh. G).
There were two court exhibits: supplemental expert disclosure and C.V. (Court Exh. 1); and claimant's witness list with line numbers for depositions (Court Exh. 2).
The material facts are not in dispute. The videotape of the incident, depositions of correction officers, the Unusual Incident Report, the to/from memos, DOCCS and SHU regulations and the testimony at trial of claimant's only witness, CO Morgante, tell a consistent story (Exhs. 1-3, 5-6, 9, 12, and 27-30). Green Haven has a policy of congregate recreation in the SHU yards, with up to four inmates at a time. This policy of group recreation for SHU inmates at Green Haven is mandated by the "Anderson Stipulation" and is not followed by most correctional facilities in New York, which have a single recreation policy (Burnett Depo. [Exh. 30], pgs. 21-22).
Dep. Supt. Burnett explained at trial that the Anderson Stipulation refers to a court mandate in a lawsuit brought by inmates in the 1990s. The court took judicial notice that the congregate recreation policy at Green Haven was court-mandated (T: 101-102)
"T:(#)" refers to the relevant page(s) of the trial transcript. " "
On June 20, 2012, pursuant to Green Haven's SHU Rules and Regulations (Exh. 12, pg. 2) and DOCCS Directive 4933 § 304.3 (Exh. 9), claimant was handcuffed at his SHU cell, then escorted by CO Morgante and CO Mena to the "frisk room" for the East Yard, where claimant was going for his daily one-hour period of recreation. The East Yard is accessed from the "frisk area" by a door that locks automatically when closed (Exh. 12). Claimant did not mention to either officer the possibility that another inmate would assault or attack him in the yard (Exhs. 5-6 [to/from memos]).
The claim alleges that the officers were informed it would be a problem to place him in the yard handcuffed.
Claimant was placed in the yard handcuffed, joining three other inmates who were in the yard unrestrained. The security protocol requires that any inmate being placed in the yard remains handcuffed until the door is secured, then his handcuffs are removed by a correction officer through a hatch in the door. Specifically, the rule provides that,
"[w]hen an inmate is put into the yard, he will back up and place his hands in the hatch of the door for removal of restraints. Any movement in or out of yard, all inmates will stand at rear of the yard, hands in pockets, back against wall until outgoing or incoming inmate has restraints removed" (Exh. 12, pg. 3).
To protect the correction officers working in SHU, the inmates "were never unrestrained without being behind a secured door" (Exh. 30, pg. 15, lines 7-8).
Sgt. Funk and Dep. Supt. Burnett testified at their depositions that in 2012 the policy was for the inmate to put his hands in the hatch to have his handcuffs unlocked (Exh. 29, pg. 9; Exh. 30, pgs. 17-24). However, CO Morgante testified at his deposition that he would stick his hands through the hatch to unlock the inmate's handcuffs because he found it quicker and easier than having the inmate put his hands in the hatch (Exh. 27, pgs. 22-23). CO Mena agreed that the method used by CO Morgante was "the way it was done" (Exh. 28, pg. 11).
After claimant was put in the yard, he backed up to the door, but before CO Morgante could remove the handcuffs, inmate Cox rushed over and attacked claimant, beating him and stomping his head into the cement (Exh. 27 at pgs. 19, 40-41; Exhs. 1-3, 5-6). Sgt. Funk was notified and he called for a response team. CO Ross issued direct orders for Cox to stop, and the three COs in the frisk room were banging on the windows yelling "break" and ordering Cox to get off of claimant, but Cox did not comply. Policy required that the COs wait to enter the yard until the on-site supervisor, who was Sgt. Funk that day, determined there was adequate help. Otherwise the officers run the risk of getting hurt (Exh. 27, pgs. 24-30). When the response team arrived and entered the yard, Cox stepped away (Exh. 2 [Unusual Incident Report]; Exh. 27, pg. 31).
Claimant pulled forward and CO Morgante could not reach him anymore (Exh. 27, pgs. 20-21).
A "separatee list" is prepared by MIS in Central Office so the department knows which inmates to keep separated. SHU also maintains a list of "known enemies" and if the COs hear of any potential problem, they report it to the Supervisor. Inmates will have recreation alone if there is a specific security concern, such as an incident between two inmates, or animosity that is apparent to staff. There are inmates in SHU not on the separatee list who will be kept apart because they start to aggravate each other or develop tension (Burnett Depo. [Exh. 30], pgs. 19-23). A separatee list for Henry Cox, printed on January 15, 2015, did not identify claimant (Exh. 8). Although Dep. Supt. Burnett recalled Cox was "a chronic SHU, chronic disciplinary guy," he did not recall details about Cox or his disciplinary history (Exh. 30, pg. 36).
CO Morgante estimated that the majority of inmates in SHU were sent there because of violent behavior (Exh. 27, pgs. 35-37). As for violent incidents in the SHU yard, when Dep. Supt. Burnett came to Green Haven in 2006, he was concerned that the policy of putting a restrained inmate in the yard with unrestrained inmates would lead to violence. Without providing specifics, he recalled approximately five violent incidents taking place under these circumstances, and Sgt. Funk generally recalled violent incidents in the yard (Exh. 30, pgs. 35-36, 40; Exh. 29, pg. 37). Dep. Supt. Burnett also testified that in his estimation, there was on average one such incident a month, but there was no cumulative record (Exh. 30, pgs. 24-25).
At trial, CO Morgante identified photographs of the East Yard, the frisk room, the door with the hatch between the yard and the frisk room, and windows to the East Yard. He pointed out relevant areas on the photographs as he testified briefly to what happened before, during and after the attack on claimant (T: 44-50; Exhs. 13-14, 18-24 and 26).
After claimant rested his case, defendant made an oral motion to dismiss the claim for failure to establish a prima facie case. The court reserved decision.
Defendant then presented its case, calling CO Morgante, Sgt. Funk and Dep. Supt. Burnett to testify. Their testimony about the incident and the relevant policies and rules was consistent with their deposition testimony. CO Morgante also testified that: claimant had the option to refuse the yard that day; claimant said nothing during the transport; and if claimant had told him of a possible attack, he would not have been allowed in the yard (T: 57-58). Sgt. Funk also testified that: the SHU recreation area was one of the most dangerous areas for correction officers at Green Haven; the policy was to remove an inmate's cuffs immediately after he enters the yard because it is dangerous for him to be in the yard restrained; and given there were four inmates in the yard, it was not safe for COs to enter the yard without the response team; it is up to the supervisor when they enter the yard (T: 81, 84-87).
Dep. Supt. Burnett added that: it was appropriate for the correction officers to wait for the response team before entering the yard, and doing so did not violate policy; there is no computer in SHU, but a separatee list could be printed from computers elsewhere; SHU has its own list of known enemies; officers would have reported any problem they heard about to the supervisor; and if Cox's 2015 separatee list did not list claimant as an enemy, claimant would not have been listed as an enemy in 2012 (T: 104-109). He also explained why Green Haven has a group recreation policy for SHU. "[T]he situation for rec at Green Haven SHU is [. . .] unique in that there's a stipulation that's a Court mandated stipulation, I believe it happened in 1990 sometime, in which Green Haven is mandated to offer group recreation for inmates up to a group of four to recreate together in the same recreation area" (T: 101-102).
Defendant then called Michael Capra, Superintendent of Sing Sing. The court admitted Supt. Capra as an expert in correctional facility security. He went through the sequence of events on the six-minute video showing the full attack (Exh. 1). According to his testimony, the first set of loud banging on the video is the yard door being unlocked, there is a pause, and then a second set of loud banging representing the door being re-secured, and within a second or two of the second set of loud banging, the assailant Cox initiated the attack. In the expert's opinion, based on these facts: claimant's and Cox's disciplinary histories would not preclude them from participating in group recreation; regardless of where claimant was standing for his cuff removal, there would not have been time to remove the restraints prior to his being attacked; although there may have been a "minor" violation of policy by not having claimant put his hands in the hatch, that violation could not have been the proximate cause of claimant's attack and injuries since the video conclusively demonstrates there would not have been time to remove the handcuffs, regardless of the position of claimant and the correction officer. Supt. Capra also concluded that the response by the correction officers was appropriate in that they waited for the response team to arrive before entering the yard (T: 133-134, 146-149, 154-157, 165, 209-210).
The three defense exhibits included claimant's and Cox's disciplinary histories and claimant's grievance about the attack (Exhs. C, D and G). Cox's history shows he was in SHU for violations related to alcohol and gangs, and three months before the attack on claimant, he was disciplined for fighting and sentenced to 15 days keeplock to be served in 2013 (Exh. D at 001-002). In his grievance, claimant requested not to be handcuffed while in the yard. He alleged that he was put in the yard handcuffed even though the officers had been informed there would be a problem. The allegation was investigated, the correction officers denied the allegation, and the grievance was denied as unsubstantiated. On appeal, the Central Office Review Committee accepted claimant's request in part, advising claimant "to address any safety issues with an area supervisor," and found there was insufficient "evidence to substantiate any malfeasance by staff" (Exh. G).
"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 [2002]; see Flaherty v State of New York, 296 NY 342, 346 [1947]; DiDonato v State of New York, 25 AD3d 944 [3d Dept 2006]). "Because the State is not an insurer of an inmate's safety, it will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Schittino v State of New York, 262 AD2d 824, 825 [3d Dept 1999], lv denied 94 NY2d 752 [1999]; see Sanchez at 252-253; Ford v State of New York, 121 AD3d 749, 750 [2d Dept 2014] [affirming finding that attack not reasonably foreseeable]; Melvin v State of New York, 101 AD3d 1654-1655 [4th Dept 2012] [affirming finding that attack not reasonably foreseeable]; Smart v State of New York, 65 AD3d 1218 [2d Dept 2009]).
Cases finding State negligence as a cause of an inmate-on-inmate assault generally find that the claimant has established the requisite element of reasonable foreseeability based on proof of one of three things: (1) that defendant knew or should have known that the claimant was at risk of being attacked (see Blake v State of New York, 259 AD2d 878, 879 [3d Dept 1999] [same assailant committed similar assault in yard months before assault on claimant]); (2) that defendant knew or should have known that the assailant was likely to attack (id.); or (3) that defendant knew or should have known that the surrounding circumstances were likely to have engendered or facilitated an attack (see Sanchez at 255 [State's knowledge of potential danger where congregated inmates are unsupervised, and of guard's inattentiveness, raised issue of fact as to constructive notice]). As in any negligence case, claimant must also establish that the precautionary measures taken by defendant did not rise to the level of due care and that such was a proximate cause of the assault (see Kalem v State of New York, 213 AD2d 515 [2d Dept 1995], lv denied 86 NY2d 701 [1995]).
At trial, and more specifically in his post-trial brief, claimant limited his theory of foreseeable danger:
"Claimant is not seeking a finding under either of the first two elements of the foreseeability test. Thus, Claimant did not present evidence at trial that defendant knew or should have known that the claimant specifically, unlike other SHU inmates handcuffed behind their backs, was at risk of being attacked, or that defendant knew or should have known that Mr. Cox in particular, unlike other inmates with lengthy disciplinary records confined to SHU, was likely to attack" (Post-Trial Brief at n. 6).
Claimant also "does not challenge the appropriateness of the congregate recreation policy" (Post-Trial Brief, pg. 3, n. 4). Claimant's argument is that "defendant knew or should have known that the surrounding circumstances were likely to have engendered or facilitated an attack" (Post-Trial Brief, pgs. 4-5). By "surrounding circumstances" defendant is referring to the policy of removing an inmate's handcuffs after he is put in the yard with unrestrained inmates.
This was a valiant attempt by claimant's counsel to build a case without the only witness who could testify to the facts of the claim, that being claimant himself. Despite counsel's argument, the fundamental flaw in claimant's argument is that he is, in effect, challenging an administrative agency's rules and regulations, which the Court of Claims does not have jurisdiction to review (see Carver v State of New York, 79 AD3d 1393, 1394 [3d Dept 2010], lv denied 17 NY3d 707 [2011] [Court of Claims has jurisdiction over claims to recover money, and not to review an administrative agency's determination]). Such an agency determination is subject to review in the context of a CPLR Article 78 proceeding commenced in Supreme Court (see Family & Educ. Consultants, LLC v New York State Ins. Fund, 2019, 169 AD3d 1187 [3d Dept 2019] [no jurisdiction over determination whether therapists are employees under Worker's Compensation Law]).
Even if claimant were arguing that he was uniquely at risk, or that Cox was especially dangerous, the trial record would be deficient. The court credits the testimony of COs Morgante and Mena that during claimant's transfer, he did not express any reluctance about going to the yard. Defendant's expert also opined that Cox's and claimant's disciplinary histories did not preclude them from participating in group recreation, and they were not known enemies before the incident. Claimant did not elicit testimony or present evidence to the contrary.
The court will also consider and discuss the evidence and testimony submitted on defendant's case, particularly the testimony of defendant's expert Supt. Capra. The expert's testimony is relevant to claimant's argument that CO Morgante's violation of Green Haven's rule, requiring that inmates put their hands in the hatch to be uncuffed, somehow proximately caused claimant to be attacked by Cox. The court agrees with the opinion of defendant's expert, that the CO's minor violation of policy could not have been the proximate cause of the attack because there would not have been time to remove the handcuffs, regardless of where claimant was going to put his hands. Claimant did not contradict this opinion, which is supported by the evidence. The videotape clearly shows that Cox attacked claimant within seconds of the door being secured, and claimant did not elicit any testimony or submit evidence showing otherwise.
Finally, defendant's expert testified, corroborating both Sgt. Funk and Dep. Supt. Burnett, that the response by the COs was appropriate in that they waited for the response team to arrive before entering the yard. Claimant did not contest this determination.
Accordingly, the court finds defendant not liable for negligence and negligent supervision, and dismisses Claim No. 124049. Defendant's motion to dismiss is denied as moot. The Clerk of the Court is directed to enter judgment accordingly.
March 25, 2019
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims