Opinion
# 2019-038-578 Claim No. 130530 Motion No. M-93988
08-12-2019
ANTHONY CUMMINGS, #06-A-0656 v. THE STATE OF NEW YORK
ANTHONY CUMMINGS, Pro se LETITIA JAMES, Attorney General of the State of New York By: Elizabeth A. Gavin, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment on claim for inmate-on-inmate assault denied for failure to establish prima facie that it was reasonably foreseeable that claimant would be attacked in prison recreation yard.
Case information
| UID: | 2019-038-578 |
| Claimant(s): | ANTHONY CUMMINGS, #06-A-0656 |
| Claimant short name: | CUMMINGS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130530 |
| Motion number(s): | M-93988 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ANTHONY CUMMINGS, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Elizabeth A. Gavin, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 12, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State facility, filed this claim seeking monetary compensation for injuries sustained when he was allegedly attacked by another inmate in the recreation yard at Green Haven Correctional Facility (CF) on August 14, 2017. Claimant moves for summary judgment, and defendant opposes the motion.
The claim alleges that on August 14, 2017, claimant was leaving the recreation yard at Green Haven CF when he was "cut across his face and his eye with a razor by another inmate while awaiting on the wall by the door to go back into A-Cell-Block" (Claim No. 130530, ¶ 3). The claim further alleges that claimant immediately knocked on "the A-Block door" to alert a correction officer to the attack and that the correction officer (CO) pulled the alarm when he saw that claimant was bleeding (id.). The claim alleges that "[t]here was no [CO] at the entrance to A-Block Door, as there was supposed [to be] at that post, but who was instead over by the inmate phones in the yard" (id. at ¶ 3). The claim further alleges that "[t]his was not an isolated incident" and that defendant "had knowledge that inmates [were] taking weapons to the yard and attacking other inmates with them" (id. at ¶ 5). The claim also alleges that the metal detectors at Green Haven CF were not being used at the time of the alleged attack (see id.).
It is well settled that a "party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; see Arias v State of New York, 195 Misc 2d 64, 65 [Ct Cl 2003]). The evidence must be submitted in admissible form and must establish the movant's right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]).
"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]; see Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). However, "negligence may not be inferred merely because an incident occurred" (Sanchez v State of New York, 36 AD3d 1065, 1066 [3d Dept 2007], lv denied 8 NY3d 815 [2007]; see Vasquez, 68 AD3d at 1275-1276). Rather, in negligence claims against the State for inmate-on-inmate attacks, the scope of the State's duty of care is to provide "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985] [emphasis added]; see Sanchez, 99 NY2d at 253; Dizak v State of New York, 124 AD2d 329, 330 [3d Dept 1986]).
Foreseeability in such cases includes not only what the State actually knew about the risk of an attack on the claimant, but also what it "reasonably should have known - for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez, 99 NY2d at 254 [emphasis in original]; Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). An inmate-on-inmate assault may be foreseeable where defendant knew or reasonably should have known that the claimant's attacker was violent or prone to assaultive behavior (see e.g. Littlejohn v State of New York, 218 AD2d 833, 834-835 [3d Dept 1995]; Colon v State of New York, 209 AD2d 842, 844 [3d Dept 1994]), where the claimant had had previous encounters with his assailant or had known enemies (see Vasquez, 68 AD3d at 185; Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]), or where the area in which the attack took place was "known to be susceptible to inmate-on-inmate attack" (Evans v State of New York, 11 Misc 3d 1065[A], 2006 NY Slip Op 50391[U], *6 [Ct Cl 2006]). Thus, in order to meet his prima facie burden on this summary judgment motion, claimant must demonstrate that the alleged attack on August 14, 2017 was reasonably foreseeable and that defendant was negligent in failing to protect him from that foreseeable attack. Only if claimant makes this prima facie showing will the burden shift to defendant to raise a triable issue of material fact.
In support of his motion for summary judgment, claimant reiterates the allegations as stated in his claim (see Cummings Affidavit in Support of Motion for Summary Judgment, ¶ 5) and asserts that "[n]ot one [CO] noticed what was tak[ing] place with [him] because they were not at [their] assigned posts" (id.at ¶ 6). Claimant argues that the COs who were assigned to the Green Haven CF recreation yard had a duty "to observe and secure the safety of the inmates in the yard" and that their negligence in "not being at [their] assigned posts in the yard[] greatly contributed to [c]laimant sustaining the gash on his face and eye" (id. at ¶ 7). Claimant argues that the duty of the Green Haven CF COs to remain at their posts in the recreation yard was "ministerial, [and] involve[d] no discretion" (id. at ¶ 8), that "[a]n inmates [sic] [c]onstitutional [r]ight to be free from attack is implemented by prison regulations in the State," and that "[i]t is fundamental that DOCCS must follow it's [sic] own regulations" (id. at ¶ 9).
In opposition to the motion, defendant argues that claimant has failed to meet his prima facie burden and thus is not entitled to summary judgment. Defendant argues that claimant has not identified any rule or regulation defendant violated when the COs stationed in the Green Haven CF recreation yard allegedly failed to remain at their designated posts at the time of the alleged attack, nor has claimant alleged any special duty owed to him by defendant to support his claim that defendant is liable to him for failing to perform a ministerial duty (see Gavin Affirmation in Opposition to Motion for Summary Judgment, ¶6). Defendant argues that the State's duty to protect inmates from attacks by fellow inmates does not require that the State provide constant surveillance, that claimant has failed to demonstrate how the attack was reasonably foreseeable, and that claimant was unable to identify his attacker at the time of the incident (see id. at ¶ 7, Exhibit D).
In support of his motion for summary judgment, claimant has failed to establish the existence any of the circumstances, as discussed above, under which this inmate-on-inmate attack was reasonably foreseeable. Claimant was not able to identify his attacker, and therefore he has not shown that his attacker was prone to violence or had a history of assaulting other inmates or that he had a history with his assailant, nor does he allege that he had an enemy or enemies who might have perpetrated such an attack. Although the claim alleges that defendant was aware that other inmate-on-inmate attacks had occurred in the recreation yard (see Claim No. 130530, ¶ 5), he has provided no evidence on this motion to demonstrate that those prior assaults put defendant on notice that claimant's assault was reasonably foreseeable. Specifically, claimant failed to offer any evidence on this motion as to the number and type of the previous inmate-on-inmate assaults in the yard and their temporal proximity to claimant's attack (see Vasquez, 68 AD3d at 1276). Moreover, claimant failed to establish prima facie that the assault was reasonably foreseeable because the COs stationed in the recreation yard were not at their assigned posts at the time of the alleged attack. Even assuming that claimant had established that the COs were not at their assigned posts, "the State's duty to prisoners does not mandate unremitting surveillance in all circumstances" (Sanchez, 99 NY2d at 256), and "[t]he mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence absent a showing that prison officials had notice of a foreseeable dangerous situation" (Evans v State of New York, 11 Misc 3d 1065[A], 2006 NY Slip Op 50391[U], *6 [Ct Cl 2006]). Rather, claimant was required to demonstrate that the COs were required by statute, regulation, rule, or policy to be at their posts (see Vasquez, 68 AD3d at 1276), which he has failed to do. Lastly, although claimant argues that the COs breached a ministerial duty by failing to be at their assigned posts, claimant has not identified any rule or regulation that required them to remain in one location while stationed in the recreation yard.
Absent the identification of any rule or regulation defendant allegedly violated when the Green Haven CF COs failed to remain at their assigned posts in the recreation yard, the Court cannot conclude that the duty defendant allegedly violated here was a ministerial rather than a discretionary one (see Cummings Affidavit in Support of Motion for Summary Judgment, ¶ 8). --------
In sum, claimant has failed to submit any evidence in admissible form to demonstrate that the alleged attack was foreseeable, and thus he has not met his prima facie burden of demonstrating his entitlement to judgment as a matter of law and his motion for summary judgment will be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-93988 is DENIED.
August 12, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim number 130530 with attachments, filed November 8, 2017; 2. Verified Answer, filed November 27, 2017; 3. Claimant's Reply to Defendant's Answer, filed December 13, 2017; 4. Notice of Motion for Summary Judgment, undated; 5. Affidavit in Support of Motion for Summary Judgment, sworn to May 8, 2019, with unenumerated exhibits; 6. Affirmation in Opposition to Motion for Summary Judgment, dated August 2, 2019, with Exhibits A-D.