Opinion
# 2015-038-101 Claim No. 117566
02-18-2015
CHARLIE SCOTT v. STATE OF NEW YORK
CHARLIE SCOTT, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas Monjeau, Assistant Attorney General
Synopsis
Claim for inmate-on-inmate dismissed after trial. Preponderance of the credible evidence did not demonstrate foreseeability of sudden and unprovoked attack.
Case information
| UID: | 2015-038-101 |
| Claimant(s): | CHARLIE SCOTT |
| Claimant short name: | SCOTT |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117566 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | CHARLIE SCOTT, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas Monjeau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 18, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for injuries resulting from an assault by another inmate at Clinton Correctional Facility (CF) on July 23, 2009. The trial of this claim was conducted by video conference on November 13, 2014, with the parties appearing at Upstate CF in Malone, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony, and the single document and four pictures that he offered into evidence were received without objection. Defendant called Department of Corrections and Community Supervision (DOCCS) Sergeant Dennis Livermore, and offered no exhibits. After listening to the witnesses's testimony and observing their demeanor as they testified, and upon consideration of that evidence, all of the other evidence received at trial, and the applicable law, the Court makes the following findings of fact and conclusions of law.
Since DOCCS was known at the time of the events in the claim as the Department of Correctional Services (DOCS), the decision will refer to the executive agency by its former name.
FACTS
On July 23, 2009, claimant was an inmate in the custody and control of DOCS. On that day, during the "noon chow" run in lower F block, 3 company at Clinton CF, claimant was suddenly and without provocation attacked by inmate Cobb. Just prior to the attack, claimant exited his cell and proceeded down the 3 company gallery, where he encountered Cobb, who was standing in front of his cell. Cobb suddenly stabbed him with an "ice pick-type weapon" in the forehead, right temple, left shoulder and right abdomen. Claimant testified that no correction officers (COs) were in the immediate vicinity of the assault, that no COs tried to immediately stop the assault, and that the assault "went on" before the COs intervened. Claimant testified that he could not state the number of COs that were in 3 company during the assault, but that when inmates were being let out of their cells there was usually a CO in the "bubble" who would unlock the cells, one CO in front of the company, and a "bunch" of COs watching. Claimant testified that after the COs broke up the assault, he passed out due to the loss of blood and was taken to the infirmary.
All quotations are to the Court's trial notes or the digital audio recording of the trial, unless otherwise indicated.
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The Clinton CF Correction Officer Procedures Manual, which was received into evidence, addresses procedures for the noon meal and company escort, but does not specifically address whether procedures prohibit inmates from standing in front of their cells during the noon chow run (see Claimant's Exhibit 1, at pp. 9, 16). Claimant testified that DOCS protocols were breached by Cobb being allowed to stand in front of his cell during the noon chow run, but he offered no other evidence that would support this contention.
Claimant testified that on the day before the assault, an unnamed CO called him a "rat" or a "snitch" in front of other inmates, including Cobb, and claimant asserts that this name-calling incident precipitated the assault. On cross-examination, claimant testified that he did not file a grievance related to the unnamed CO's actions. Claimant also testified on cross-examination that had not previously known Cobb, nor had he had any prior dispute with Cobb. Claimant testified that he did not have any gang affiliation and he did not know whether Cobb was affiliated with a gang. Claimant offered no other evidence relevant to what may have caused Cobb to suddenly attack him.
Sgt. Dennis Livermore testified that he was the area sergeant for 3 company at Clinton CF on July 23, 2009. When Sgt. Livermore arrived at 3 company after the incident, all of the inmates but claimant and Cobb had been removed from the gallery. He testified that when inmates are being released from their cells for noon chow, there are two COs on the company, the company officer who is locked in the bubble and who unlocks the cells and observes inmates as they exit their cells and walk down the gallery, and a CO at the end of the gallery near the stairs who supervises the inmates as they descend the stairs to chow. Sgt. Livermore testified that the assault occurred in the middle of the gallery, approximately 60 yards away from the CO that was assigned to the stairs. Sgt. Livermore testified that when an altercation occurs on the gallery, staff first remove all other inmates from the gallery, and then respond quickly to deal with the altercation.
Sgt. Livermore did not witness the assault, but when he responded to it, he observed claimant bleeding from his head, and directed that he be taken to the infirmary. Sgt. Livermore testified that when he asked claimant what had happened, claimant responded with a shocked look on his face that "he [Cobb] stabbed me. On cross examination, Sgt. Livermore testified that he did not remember claimant passing out, but remembered claimant being assisted from 3 company. Sgt. Livermore testified that he investigated the assault, and that the investigation revealed that claimant and Cobb may have had a prior dispute about one or the other taking credit for a crime, but offered no further information about any other history between claimant and Cobb. Claimant never mentioned during the course of the investigation that he had been called a "rat" by a CO, and claimant never requested voluntary protective custody.
DISCUSSION
Claimant argues that the State was negligent in failing to protect him from the attack by Cobb, essentially positing that the assault was reasonably foreseeable because defendant's agents prompted the attack by accusing him in front of other inmates of being a snitch or a "rat." Defendant moved to dismiss the claim at the conclusion of claimant's proof and at the end of its case, on the ground that the evidence did not establish that the attack was reasonably foreseeable. For the reasons that follow, the claim will be dismissed.
"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]). However, the State is not an insurer of the safety of inmates (id. at 253), and the scope of the State's duty of care is limited to 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 Sanchez, 99 NY2d at 253; Flaherty v State of New York, 296 NY 342 [1947]; Dizak v State of New York, 124 AD2d 329 [3d Dept 1986]). Foreseeability rests upon a determination of what the State actually knew, as well as what it reasonably should have known about the risk of an attack on claimant (see Sanchez, at 254; Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). As pertinent here, the foreseeability of an inmate-on-inmate assault may be demonstrated by evidence that defendant knew or should have known that claimant was specifically at risk of being attacked or that the assailant was prone to perpetrate attacks (see Sanchez, at 254-255; Vasquez, at 1276; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]; Colon v State of New York, 209 AD2d 842, 843-844 [3d Dept 1994]; Evans v State of New York, 11 Misc 3d 1065[A], *6 [Ct Cl 2006]). It is claimant's burden to prove his cause of action by a preponderance of the credible evidence (see Pursel v State of New York, 226 AD2d 872, 873 [3d Dept 1996]; Heatley v State of New York, 30 Misc 3d 1202[A], *4 [Ct Cl 2010]; Vasquez v State of New York, 16 Misc 3d 1116[A], *6 [Ct Cl 2007]), and specifically in this case to show by a preponderance of the credible evidence that defendant knew or should have known that the assault was foreseeable.
Claimant's testimony that he was called a "rat" or a "snitch" by an unnamed CO prior to the attack is not credited by the Court, because it appeared to be a contrived attempt by claimant to lay blame at the feet of defendant's agents for this assault, especially in light of Sgt. Livermore's credible testimony that claimant never informed correction officials during the investigation that he was called a "rat" or a "snitch." Thus, the preponderance of the credible evidence does not support a finding that the name-calling incident occurred or that it precipitated the attack on claimant. In addition, claimant never filed a grievance against the unnamed CO whose comments allegedly precipitated the attack on claimant.
Nor does a preponderance of the credible evidence otherwise establish that defendant's agents knew or reasonably should have known that claimant was at risk of attack. Claimant testified that he did not previously know his assailant, nor did they have a dispute prior to the attack. While Sgt. Livermore's testimony suggests that there may have been a prior dispute or some animosity between claimant and Cobb, claimant had not previously requested voluntary protective custody nor did he indicate to defendant's agents that he felt he was in danger. Plainly stated, there was no credible evidence that the assault by Cobb was other than sudden and unprovoked, and there is insufficient credible evidence to support a finding that the attack was or should have been reasonably foreseen by defendant's agents.
"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" (Sanchez, at 256). While claimant's desire to hold someone other than Cobb accountable for the injuries he sustained is understandable, the preponderance of the credible evidence at trial did not demonstrate that this attack was reasonably foreseeable, and thus, the Court grants defendant's motion to dismiss the claim made at the conclusion of trial.
CONCLUSION
The Court finds in favor of defendant. Any motions not previously ruled upon are hereby DENIED. The Acting Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.
February 18, 2015
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims