Opinion
# 2017-038-104 Claim No. 123302
02-27-2017
MILTON THOMAS v. THE STATE OF NEW YORK
MILTON THOMAS, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General
Synopsis
Claim for injuries sustained in inmate-on-inmate assault and in an alleged assault by correction officers dismissed after trial. Claimant did not establish by a preponderance of the evidence that the absence of a CO from her post made it reasonably foreseeable under the circumstances that claimant would be assaulted by another inmate. Credible evidence did not preponderate in favor of claimant's allegations that he was assaulted and sodomized by COs.
Case information
| UID: | 2017-038-104 |
| Claimant(s): | MILTON THOMAS |
| Claimant short name: | THOMAS |
| Footnote (claimant name) : | Claimant, whose claim alleges that he is a victim of a sexual assault offense, has submitted correspondence in which he declines the confidentiality protections of Civil Rights Law § 50-b (see Civil Rights Law § 50-b [2] [c]). |
|---|---|
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123302 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | MILTON THOMAS, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 27, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim alleging that he sustained personal injuries as the result of two assaults at two different correctional facilities caused by defendant's employees on two distinct occasions. Specifically, the claim alleges that defendant is liable because a correction officer (CO) was absent from her post when he was assaulted by an inmate at Altona Correctional Facility (CF) on June 24, 2012, and it further alleges that he was assaulted by correction officers at Upstate CF on August 20, 2012. The plenary trial of this claim was conducted on October 17, 2016 in Albany, New York. Claimant testified on his own behalf and presented the testimony of Department of Corrections and Community Supervision (DOCCS) Correction Officers (COs) Jacqueline Ahern, Ronald Graveline and Chris Curran, DOCCS Sergeant Scott Santamore and DOCCS Nurse Maribeth Warner. Defendant presented no witnesses. Several documentary exhibits offered by the parties were received into evidence, as were photographic and demonstrative exhibits offered by claimant. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of the testimony and the other evidence received at trial and the arguments of the parties made in post-trial submissions, the Court concludes that the preponderance of the credible evidence does not establish defendant's liability.
By correspondence dated November 12, 2016 claimant transmitted to the Court Claimant's Exhibits 10, 12 and 13 that were marked for identification but not received into evidence, and other documents. Claimant's post-trial submissions also included a document and photograph that were not offered or received in evidence during the trial. In rendering this decision, the Court has considered only the exhibits that were received at trial.
FACTS
Claimant testified that on June 24, 2012, he was sleeping in the top bunk in G dormitory at Altona CF when he was awakened by inmate Watson, his "bottom bunky," who was shaking claimant's bed. Claimant testified that he asked Watson to stop shaking the bed or he would have to talk to CO Ahern, the CO assigned to G dorm. Watson did not stop so claimant went to CO Ahern's desk, but she was not there. After he waited at the desk for fifteen minutes, Watson approached him with eight or nine other inmates who claimant understood to be members of a prison gang, and he realized that he was going to be subjected to a gang assault. Claimant testified that Watson called him a "snitch" and a "[expletive] bitch," to which claimant replied, "so are you," and they exchanged further words. Claimant testified that Watson punched him with a glancing blow, and claimant went into a defensive stance. Watson came back at him and they exchanged blows, and Watson fell to the ground after claimant punched him. Claimant testified that one of Watson's gang associates bashed him in the back of the head with a padlock that was in a sock and that the rest of the associates rushed him and beat him, and he was rendered unconscious for a few minutes. Claimant recalled hearing someone say words to the effect of "leave him alone," and he was helped back to his bunk by another inmate. Claimant testified that approximately 30 minutes elapsed between the time that he went to CO Ahern's desk and his return to his bunk.
Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.
Claimant testified that he did not seek out CO Ahern after the assault, but she came to his bunk and told him that someone had told her that there was a "disturbance." The claim that was served on the Attorney General states that claimant reported the assault (see Defendant's Exhibit E, at ¶ 3[f]). Claimant testified that CO Ahern called the Watch Commander and that two other COs subsequently escorted him to the day room and then to the infirmary, where his injuries were examined and he was sent to Plattsburgh Hospital for further care. Claimant testified that he was informed at Plattsburgh Hospital that he had been issued an inmate misbehavior report for fighting and creating a disturbance, and that he was transferred to Upstate CF on June 25, 2012.
CO Ahern was assigned to work the 11 p.m. to 7:00 a.m. shift on June 24, 2012 in G dormitory at Altona CF, which is a medium security facility. CO Ahern testified that during that late night shift she is locked in with the 60 inmates assigned to G dormitory, and that her post includes the dormitory where the inmates sleep, the day room and the bathrooms. CO Ahern testified that she did evening security rounds between 2:35 a.m. and 2:55 a.m. on June 24, 2012, which included locking up after late night activities in the day room and checking for contraband. CO Ahern testified that when she returned to her desk in the dormitory at approximately 2:55 a.m., everything appeared to be "fine," she called her supervisor and then went to the bathroom for approximately seven to ten minutes. CO Ahern testified that it was her practice to notify her supervisor when she went to the bathroom, but that she was not required to call for relief because the bathroom was part of her post. CO Ahern did not hear any screams while she was in the bathroom, and she testified that there were big fans in the dormitory and the day room that create a lot of "white noise" that "drowns out a lot of sounds." CO Ahern testified that when she returned to her desk from the bathroom she observed that there were more inmates awake than asleep at that late hour, that multiple inmates were standing in the cubes and that there were "a lot of eyes on her," and she suspected that something had occurred in her absence. CO Ahern testified that she made another round, that a note had been dropped informing her that a fight had occurred between claimant and Watson, and that she notified her supervisor. CO Ahern testified that claimant did not report the assault to her. When the supervisor responded, he and another CO went to claimant's cube and escorted claimant and Watson to the day room, where they were both frisked and Watson was handcuffed. It was noted that claimant had an injury to the back of his head, and both inmates were thereafter brought to the medical department.
An Inmate Injury Report that was completed immediately following the incident on June 24, 2012 states the following in the "Inmate's Statement" section: "[Claimant] claims he was dragged out of his top bunk. [Claimant] states he got punched in the back of his head. [Claimant] also says he was hit in [right] jaw" (Claimant's Exhibit 8). The Inmate Injury Report also noted that claimant had a laceration of between one and one and one-half inches on the back of his head, a scratch below his right ear, reddened areas on his forehead and that his right jaw was swollen (see id.). On June 24, 2012, claimant executed a document refusing protective custody after his fight with Watson.
The form refers to the "fight with inmate Watson" (Defendant's Exhibit D), but it is erroneously dated June 24, 2011. Claimant acknowledged that he declined protective custody and executed the form on June 24, 2012.
Claimant testified that on August 20, 2012 two COs came to his cell and directed him to pack up his belongings because he was being transferred to another cell. Claimant testified that he told the COs that he did not want to transfer, and they responded that he would have more privileges in the cell to which he was being transferred. Claimant testified that he replied that he did not need any more privileges and just wanted to be left alone. Claimant testified that he told the COs that he could not walk because his knees were numb from the assault at Altona CF and that the two COs left and went to the Upstate CF medical department. Claimant testified that two COs - a male and a female - told him that they had been advised by the medical department that he could walk, and they instructed him to pack up his belongings for the transfer. Claimant testified that he did so and placed his belongings through the feed up hatch in his cell door, and they were put onto a cart. Claimant testified that he put his hands through the hatch and was handcuffed for the transfer.
Claimant testified that his cell door was opened and he was directed to walk backwards out of his cell. Claimant testified that the female CO grabbed his shoulder and asked if he was "OK," to which claimant stated that he was not alright, that he felt dizzy, but that he would try to walk. Claimant testified that he turned around, he was having problems with stability, placed his shoulder against the wall and put both of his hands on the cart and proceeded to walk. Claimant testified that after taking three steps he fell forward and hit the side of his head on the wall. Claimant testified that when the female CO again asked him if he was OK, he replied that he was not and that when he tried to get up, she told him to stay down on the floor. Claimant testified that the male CO called for a sergeant, and that Sergeant Santamore responded two minutes later and asked claimant if he was alright, to which he responded in the negative. Claimant testified that while he was on the floor a male nurse walked by and stated "Not again Mr. Thomas" and shouted to Sgt. Santamore "He wants to be on a stretcher."
In his testifying, claimant never mentioned Sgt. Santamore by name, merely referring to "the sergeant" in his testimony. However, it is clear from his subsequent questioning of Sgt. Santamore that he was the sergeant to whom claimant was referring.
Claimant testified that Sgt. Santamore ordered the two COs to take him back to his cell and that the COs threw him in the cell "like a piece of garbage." Claimant testified that approximately eight COs and Sgt. Santamore came into his cell and surrounded him. Claimant testified that Sgt. Santamore sat on the bottom bunk in the cell and said to him "[Expletive] you don't want to [expletive] with us" and smacked him in the face. Claimant testified that he replied "Sergeant, what have I done to you, I haven't done anything wrong." Claimant testified that Sgt. Santamore replied "Yes, [expletive], you tried to fake and I'm going to show you what we do to [racial slur] who [expletive] with us" and told claimant that "You're lucky I wasn't the one with the lock in the sock," and that "if you keep [expletive] with us and we're going to kill you." Claimant then testified that Sgt. Santamore told CO Curran to "show him what we do to [racial slur] who won't comply." Claimant testified that CO Graveline pulled claimant's pants down and CO Curran shoved the back end of a tube of toothpaste up his rectum, causing him to scream in pain while the rest of the COs laughed. Claimant testified that Sgt. Santamore told him "This is what we do to [racial slur] who won't comply" and that "We're going to kill you if you keep on screaming." Claimant testified that CO Curran pushed the toothpaste tube up his rectum at least four times, causing him extreme pain, and that he did not want to scream because he believed that they would kill him. Claimant testified that Sgt. Santamore tore up a picture of he and his wife and flushed it down the toilet and that Sgt. Santamore said to claimant "[Racial slur], you have some nerve" and smacked him again, and that the COs then left, taking the tube of toothpaste with them.
Claimant testified that after the assault he told the afternoon nurse about the assault, to which she replied "haven't we all been violated at some time in [our] lives." Claimant testified that he wrote to Upstate CF Superintendent Rock and the Inspector General's Office about the assault. The Court received in evidence correspondence dated August 20, 2012 by claimant to Upstate CF Superintendent Rock that states as follows:
The correspondence bears the salutation "Dear Sir" (Defendant's Exhibit B), but claimant acknowledged that he had written the correspondence to Upstate CF Superintendent Rock. --------
"Early today this mornin [sic] on 8-20-12 aprox [sic] between the hours of 8 am and 9 am I was notified by my block officer that I will be move [sic] or transfered [sic] from 18 cell below to a [sic] upper cell one flight aboved, [sic] I calmly protested to the female officer and her male companion officer that I was onable [sic] to walk stedfast [sic] without the experience feelings of diziness, [sic] off balance[,] poor vision and pain with constant spinal and head aches. I attempted and try to walk while pushing a cart with my belongins [sic] and personal property. I suddenly aquired [sic] a faint dizzy feelings and fell to the concrete ground hitting my head. More officers were summon[ed] and called for their assistants [sic] while I laid handcuff[ed] on the floor. I was then told by the Block Sgt. on called, [sic] that I will comply with the orders to be move[d] upstairs to level 2 because medical personel [sic] insist that there is no reasons or fault that may impaired [sic] my ability to walk. I was them [sic] draged [sic] roughly back into my cell 11C18B, I was then beaten slap punch [sic] and kicked by several's [sic] officers including the Sgt. on called, [sic] I begin to yeld [sic] and protest Why are you all doing this to me. The Sgt then stated you are lucky I don[']t have a lock in a sock, he then threthens [sic] and address me as [racial slur] you will die here if your black ass don[']t comply while he slaps me repeatedly on my face. I was then punch[ed] in my stomach by another officer while I lay on the floor handcuff[ed]."
(Defendant's Exhibit B). Claimant testified that he omitted the details of the alleged sodomy from his letter to Superintendent Rock because he was afraid of retaliation.
CO Curran testified that on August 20, 2012, he was assigned to assist CO Graveline with the escort of claimant to another cell, and that when claimant was so informed he stated that he had a medical permit that required him to remain on the bottom tier of the block. CO Curran testified that he went to the nurses station and was informed that claimant did not have a permit, so claimant was instructed that he had to move and he packed up his belongings. CO Curran testified that as claimant was being escorted he stated that he did not feel well and he leaned against the wall. CO Curran testified that Sgt. Santamore came to claimant's location and directed CO Graveline to assist claimant to the floor. CO Curran testified that he and CO Graveline assisted claimant back to his cell and onto the cell floor, and that he did not recall claimant having fallen to the floor. CO Curran unequivocally testified that no one used a racial slur in claimant's cell, and that Sgt. Santamore did not tell him to "show [claimant] what we do to [racial slur]." CO Curran further testified that he did not put a tube of toothpaste up claimant's rectum, as he "would never do that to anybody." CO Curran testified that he did not strike claimant nor did he see anyone strike claimant, that he did not call claimant any names, and that he did not see anyone put a tube of toothpaste in claimant's rectum.
CO Graveline testified that he did not recall his interaction with claimant on August 20, 2012. In a memorandum to Sgt. Santamore dated September 2, 2012, CO Graveline stated:
"On 8/20/12 I was escorting [claimant] from his cell and he stated, 'I don't feel good'. [Claimant] then leaned against the gallery wall. The Sgt. was called to come to the cell area. The Sgt. directed me to assist [claimant] to the floor. [Claimant] did not fall and hit his head on the floor. The nurse reported to the area and evaluated [claimant]. [Claimant] was directed to stand up and walk back into his cell. I maintained control of the waist chain and escorted [claimant] into his cell. [Claimant] was not dragged to his cell. [Claimant] then laid on the cell floor. The Sgt. directed me to remove the waist chain and handcuffs from [claimant] I did not hit or kick [claimant] and I did not see anyone else hit or kick [claimant]. I did not hear the Sgt. threaten to hit [claimant] with a lock in a sock."
(Claimant's Exhibit 11). CO Graveline testified that during 13 years as a CO he has never struck an inmate or been ordered to strike an inmate, and he denied that he put a tube of toothpaste up claimant's rectum or used racial epithets against him.
Sgt. Santamore testified that on August 20, 2012 he was notified to report to claimant's cell, and that when he arrived claimant was not feeling well and was leaning up against the wall. Sgt. Santamore testified that he had claimant returned to his cell where he was laid down and had his handcuffs and waist chain removed. Sgt. Santamore notified medical staff, who came and evaluated claimant, after which he left claimant's cell and had no further interactions. Sgt. Santamore testified in no uncertain terms that he did not strike or threaten claimant, that he is not a racist and did not use racial slurs against claimant, that he never stated to claimant that he wished he'd had "the lock in the sock" and did not know the meaning of that phrase, that CO Graveline did not pull claimant's pants down, that CO Curran did not sodomize claimant, that he did not direct or observe claimant being sodomized, and that he did not tear a photograph of claimant and his wife.
Claimant's AHR reflects that he was seen by medical staff at Upstate CF several times between August 20, 2012 and his transfer to Bare Hill CF on August 28, 2012. On August 22, 2012, it is noted that NSC was attempted, but claimant was not seen because the light was not on in his cell and he was not at the door (see Defendant's Exhibit C [1st 8/22/12 AHR entry]). Claimant's AHR reflects that he was seen on August 22, 2012 and "no acute or chronic illnesses" were noted (id. [2nd 8/22/12 AHR entry]). Two entries in claimant's AHR indicate that claimant was seen by medical personnel on August 27, 2012, and that he had a "panic attack," was "extremely agitated" and that he was "ordered admitted to OMH [Office of Mental Health] Rm#10 for OMH eval and med observation" (id. [8/27/12 entries]). Claimant's AHR notes that he was discharged by OMH on August 28, 2012 (see id. [8/28/12 8:30 entry]).
Claimant testified that when he arrived at Bare Hill CF he was "very hysterical," and told a doctor who was examining him that he was sodomized, but the doctor did not take him seriously or examine his rectum. Claimant testified that when he told a female medical professional at Bare Hill CF that he had been sodomized a week earlier and that he was defecating blood, he was laughed at and was told "We don't do that. We don't do those things here." Claimant's AHR reflects that when he was examined at Bare Hill CF on August 28, 2012, he was viewed in shorts at his cell, that no bruises or injuries noted, and that claimant denied any pain or injuries (see Defendant's Exhibit C [8/28/12 11:35 AHR entry]). An entry by Nurse Warner in claimant's AHR dated August 30, 2012 notes that claimant was seen at emergency sick call (ESC), during which he stated that he was assaulted on August 20, 2012 at Upstate CF and was "hit in [abdomen] & [right] side of head" (Defendant's Exhibit C [8/30/12 AHR entry]). Warner noted that claimant was "extremely exaggerated," "shaking" and "trembling," and that "no marks [were] noted" and no treatment was given. An Inmate Injury Report was completed by Warner on August 30, 2012, in which claimant made and subscribed the statement: "I got assaulted Monday @ Upstate" (Defendant's Exhibit A). Warner testified she did not remember claimant and did not recall her interaction with him on August 30, 2012. Warner testified that if an inmate had informed her that he had been assaulted with a toothpaste tube being inserted into his rectum she would have noted the complaint and been mandated to report it, and would have had a physician examine the inmate immediately as nurses cannot do rectal examinations.
Claimant testified that he was at Bare Hill CF for approximately 10 days before he was transferred to Gouverneur CF, and that he was interviewed by a lieutenant at the behest of Upstate CF Superintendent Rock prior to his transfer. Claimant told the lieutenant that he had been beaten and sodomized at Upstate CF, but no record of the interview was offered into evidence. Claimant's AHR reflects that he was seen by medical staff at Bare Hill CF on several occasions between August 30, 2012 and his transfer to Gouverneur CF on September 14, 2012. Bare Hill CF staff noted that claimant exhibited signs of anxiety, had tremors, was agitated and upset, and he was sent for mental health observation at the Clinton CF satellite. Claimant testified that when he was seen by psychiatrists and psychologists at Clinton CF he did not tell them everything that had happened because he did not trust them because Altona CF, Upstate CF, Bare Hill CF and Clinton CF are in close proximity to each other.
Claimant testified that after he arrived at Gouverneur CF, he told a nurse that he had been sodomized. Claimant's AHR reflects that when he arrived at Gouverneur CF on September 14, 2012 he told medical staff that he was "jumped in June 2012" and "had a head injury & has been having residual problems ever since" (Defendant's Exhibit C [9/14/12 AHR entry]). Claimant's AHR reflects that on September 20, 2012 claimant stated that "he was hit with a lock in the sock @ Upstate in July," that he was assaulted in August "by staff, was beaten up, and was sodomized by CO's" and that "a tube of toothpaste was inserted into his rectum" (id. [9/20/12 11:15 a.m. AHR entry]).
DISCUSSION
Claimant argues that defendant is liable in negligence for the incident at Altona CF on June 24, 2012 because CO Ahern was absent from her desk for an extended period of time, thus allowing the assault by other inmates to occur. Claimant also offered proof to support a cause of action for damages from a brutal and unprovoked battery and sodomy by COs at Upstate CF on August 20, 2012. At the conclusion of claimant's case, defendant moved to dismiss the claim on the ground that claimant had failed to establish prima facie defendant's liability, and argued in its post-trial submission that claimant failed to prove that the assault at Altona CF was foreseeable, and that the preponderance of the credible evidence does not establish that he was the victim of an assault.
As an initial matter, the Court does not fully credit claimant's version of the events in the early morning hours of June 24, 2012 at Altona CF for the following reasons. First, the Inmate Injury Report that was completed immediately after the incident includes claimant's statement that he was dragged out of bed and was punched in the back of the head (see Claimant's Exhibit 8), which is clearly inconsistent with his trial testimony that he was the subject of a gang assault and was struck in the back of the head with a "lock in a sock." Second, while the Inmate Injury Report further notes a number of injuries to claimant's body, the injuries are far less extensive than would be expected after a brutal gang assault. Thus, the preponderance of the credible evidence does not establish that claimant was the victim of a gang assault as he described during his trial testimony.
The credible evidence does establish, however, that claimant was assaulted by Watson, and defendant may be held liable for injuries sustained during an inmate-on-inmate assault under certain circumstances. "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]). 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]; see Sanchez, 99 NY2d at 253; Flaherty v State of New York, 296 NY 342, 343 [1947]; Dizak v State of New York, 124 AD2d 329, 330 [3d Dept 1986]). In other words, there is no duty to protect an inmate from unforeseeable attacks, because such a duty would improperly make the State an insurer of the safety of inmates (cf. Sanchez at 253). In the context of inmate-on-inmate assaults, foreseeability rests upon a determination of what the State actually knew, as well as what it should have reasonably 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]). An inmate-on-inmate assault may be found to have been foreseeable where defendant knew or reasonably should have known that the claimant was at risk of being attacked, that the assailant was prone to perpetrate attacks, or that, based upon the correction facility's prior experience and expertise, a particular class of inmates or a particular location within a facility may present a risk of attack (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 claim 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]).
Claimant's argument in support of liability rests upon the undisputed fact that CO Ahern was not at her desk at the time of the incident, which the Court finds took place during the seven to ten minutes that CO Ahern was in the bathroom. However, the "State's duty to prisoners does not mandate unremitting surveillance in all circumstances" (Sanchez. at 256; see also Colon v State of New York, 209 AD2d 842, 844 [3d Dept 1994]), and "liability cannot be predicated on the mere fact that [an] officer could not see claimant at the time of the attack" (Sanchez, 99 NY2d at 255, 263; Vasquez, 68 AD3d at 1276). CO Ahern's absence from her desk at the time of the altercation does not ipso facto establish defendant's liability. Claimant adduced no evidence that CO Ahern's limited absence from her desk in a medium security correctional facility at 3:00 a.m. while most inmates were sleeping posed a risk of attack. No evidence was adduced that there were assaults or other incidents during similar absences in the past, or that CO Ahern's absence violated any correctional policies or procedures, or that the facility had any prior experience that would have alerted defendant to such a risk. Further, no evidence was offered to establish that claimant was specifically at risk of attack, or that Watson was prone to perpetuate an attack. Accordingly, the preponderance of the credible evidence does not establish that it was reasonably foreseeable that the assault by Watson would occur, and thus, defendant will not be held liable for injuries sustained in the Altona CF incident.
Claimant's second cause of action, grounded upon his allegations that he was the victim of a brutal and unprovoked battery and sodomy by COs at Upstate CF on August 20, 2012, requires him to "prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the [claimant's] consent" (Bastein v Sotto, 299 AD2d 432, 433 [2d Dept 2002]). It is claimant's burden to prove his cause of action by a preponderance of the credible evidence (see Tomaino v State of New York, 22 Misc 3d 1013, 1019 [Ct Cl 2008]; Kosinski v State of New York, UID No. 2000-028-0012 [Ct Cl, Sise J., Nov. 30, 2000]), and the credibility of the witnesses at trial is a critical factor in the determination of whether claimant has met that burden (see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Medina v State of New York, UID No. 2007-028-010 [Ct Cl, Sise, P.J., Mar. 2, 2007]).
At trial, claimant and the correction officers presented two drastically different and irreconcilable versions of the incident on August 20, 2012. Claimant testified that he was the subject of a brutal and unprovoked attack and sodomy by COs because he did not want to move into a new cell. Sgt. Santamore and CO Curran testified that claimant became ill during the transport and was taken back to his cell and examined by medical personnel without further incident. While it is clear to the Court that claimant fervently and sincerely believes that the events at Upstate CF transpired in the manner that he testified, the Court finds claimant's versions of the events at Upstate CF to be not credible for the following reasons.
First, the Court notes that while claimant initially took the position on the day of the alleged assault at Upstate CF that he was dragged, beaten and subjected to racial slurs by COs (see Defendant's Exhibit B), he conspicuously failed to complain about the alleged sodomy in his first letter to Upstate CF Superintendent Rock on the date of the alleged assault, a rather glaring and crucial omission. Although claimant testified that he purposefully omitted the allegation out of fear of retaliation, that justification rings hollow in view of the fact that his letter included the serious allegation of a racially motivated attack, which, by any measure, could provoke retaliation as well. Second, claimant's failure to mention the alleged sodomy for a full month after it occurred casts further doubt on the accuracy of his testimony. Claimant testified that he wrote to the Inspector General and spoke to a lieutenant about the alleged sodomy, however, it is not corroborated by any other testimonial or documentary evidence of those communications. His testimony that he reported the alleged sodomy when he arrived at Bare Hill CF is contradicted by the August 30, 2012 Inmate Injury Report in which Warner recorded that claimant had reported that he had been assaulted without any reference to sodomy, and the Court finds persuasive Warner's emphatic and credible testimony that had claimant mentioned the sodomy she would have noted it because she was mandated to report allegations of sexual abuse. Claimant's failure to report the alleged sodomy for a period of one month severely undermines the credibility of his testimonial version of the events of that day. Third, the complete absence of any contemporaneous notation in claimant's AHR about any physical injuries sustained by him in the alleged brutal attack by the COs further undermines his version of the events at Upstate CF. Finally, in viewing claimant's demeanor at trial, while claimant presented as an earnest witness, his testimony was occasionally confused and unfocused and generally unreliable, particularly in light of its conflict and inconsistencies with other, more credible, evidence.
On the other hand, the Court found the testimony of Sgt. Santamore and CO Curran to be extremely credible. Both witnesses vehemently, earnestly and resolutely testified that the alleged assault did not transpire. Their testimony was generally consistent with each other's and the contemporaneous documentary evidence, and thus, the Court credits and gives significant weight to their testimony. Accordingly, the preponderance of the credible evidence does not establish that claimant was the subject of a brutal battery and sodomy.
CONCLUSION
Claimant has failed to prove by a preponderance of the credible evidence defendant's liability, and thus, claim number 123302 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
February 27, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims