Opinion
# 2015-041-506 Claim No. 122603
01-30-2015
JOHN GREER v. THE STATE OF NEW YORK
JOHN GREER Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General
Synopsis
Claim alleging that defendant's negligence caused inmate/claimant to be assaulted by a fellow inmate is dismissed after trial where claimant's testimony showed that he was suddenly and without warning assaulted from behind by unknown fellow inmate and claimant's testimony that he had requested protective custody prior to assault was contradicted by documentary evidence showing that claimant had refused protective custody.
Case information
UID: | 2015-041-506 |
Claimant(s): | JOHN GREER |
Claimant short name: | GREER |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | Caption has been amended sua sponte to reflect the only properly named defendant. |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122603 |
Motion number(s): | |
Cross-motion number(s): | |
Judge: | FRANK P. MILANO |
Claimant's attorney: | JOHN GREER Pro Se |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 30, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
John Greer (claimant) was incarcerated at Bare Hill Correctional Facility (BH) in January, 2013. At approximately 9:15 p.m. on January 16, 2013, while standing at a urinal in the F-2 dorm bathroom, claimant was struck once from behind with a closed fist by a fellow inmate. Claimant was struck in the left eye area, allegedly causing injury to his eye socket. He required several stitches that evening to address his facial injuries.
A claim filed April 9, 2013, alleges defendant negligently performed its obligation "to protect and serve all individuals committed to their care," and further alleges that an assigned correction officer (CO) was on a personal telephone call. Trial of the claim, limited to liability issues, was conducted January 28, 2015.
Claimant was his only trial witness. His direct testimony was succinct. While standing at the urinal, claimant reported that an individual unknown to him, and unidentified by claimant, "snuck up on me" and punched him once with a closed fist to his left eye. Claimant further testified the F-2 dorm CO, during the time of the attack, was on a personal phone call for "at least an hour."
Upon cross-examination, claimant indicated that in his four months of incarceration at BH prior to January 16, 2013, he had reported no concerns for his safety to prison authorities or any concerns about specific individuals, that he had no prior physical altercations, and that on the day of his attack, he had reported no threats to his safety to anyone.
Claimant's testimony that, subsequent to the attack, he requested protective custody was contradicted by Exhibit C, a form dated January 16, 2013, which claimant acknowledged signing, that indicated claimant was refusing protective custody. His direct testimony that the F-2 dorm CO was on a personal phone call for at least an hour was also contradicted by his acknowledgment that he had earlier that evening been in the prison library, returning to F-2 dorm only 15 minutes prior to the attack.
He described being attacked in the bathroom from behind, suddenly and without warning.
The F-2 dorm CO on duty that evening, CO Jeremy Sauve, testified that claimant had never reported personal safety concerns to him at anytime prior to these events. CO Sauve also reported that his duty station was equipped with a phone limited to calls connected within BH only. No outside calls could be made or received at the duty station phone. He also described his duty post, at which he was stationed at the time of the attack, as being about 20 feet from the bathroom, separated by a door, wall and windows.
Sergeant (Sgt.) Mark LaGrow, on duty the evening of January 16, 2013, testified that upon responding to a radio call reporting a fight, he offered claimant protective custody, that claimant refused and that claimant signed Exhibit C, the protective custody refusal form. Sgt. LaGrow also testified that claimant reported no prior incidents with his assailant.
"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]). "This duty, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable" (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The State . . . is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).
In determining if the State provided reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an " 'enemies list' with the institution" (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was "a known dangerous prisoner" (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether "claimant was a known assault risk" (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]).
The State's potential liability for negligent supervision with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant's vulnerability or a particular assailant's violent propensities can be shown. The State is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon "what the State 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]).
The fact that a correction officer is not present at the exact time and place of an assault does not rise to an inference of negligence absent a showing that facility officials had notice of a foreseeable dangerous situation (Colon v State of New York, 209 AD2d 842 [3d Dept 1994]; Padgett v State of New York, 163 AD2d 914 [4th Dept 1990], lv denied 76 NY2d 711 [1990]).
The lack of any known or identified enemies of claimant, the fact claimant had expressed no concerns for his personal safety for the several months he was at BH prior to his attack, the fact that the attack upon claimant was sudden and unexpected, and from behind, defeats any possible conclusion that defendant failed to take reasonable steps to protect claimant from reasonably foreseeable harm. Prisons are sometimes violent locations, housing violent individuals who sometimes unpredictably engage in sudden and violent acts. These realities cannot serve as a basis to find that defendant acted negligently under the circumstances set forth in this claim, and to determine otherwise would reduce defendant to an insurer of inmate safety.
The claimant has failed to prove his claim by a preponderance of the credible evidence. The claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
January 30, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims