Opinion
# 2016-040-101 Claim No. 111928
11-17-2016
T.M.K. v. THE STATE OF NEW YORK
DAVID M. GOLDBERG, ESQ. By: LAW OFFICES OF ROBERT E. BROWN, P.C. By: Robert E. Brown, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq., AAG
Synopsis
Court finds that Claimant failed to establish that Defendant was negligent with regard to injuries he sustained when he was assaulted by a fellow inmate.
Case information
| UID: | 2016-040-101 |
| Claimant(s): | T.M.K. |
| Claimant short name: | T.M.K. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 111928 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | DAVID M. GOLDBERG, ESQ. By: LAW OFFICES OF ROBERT E. BROWN, P.C. By: Robert E. Brown, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | November 17, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, T.M.K., failed to establish by a preponderance of the credible evidence that the State of New York was negligent in connection with injuries he sustained in an inmate-on-inmate assault while he was incarcerated at Marcy Correctional Facility (hereinafter, "Marcy"). A bifurcated trial of the Claim, addressing liability issues only, was held on April 26, 2016 at the Court of Claims in Utica, New York. Claimant did not appear at trial. Rather, the Court received Claimant's testimony from his examination before trial (hereinafter, "EBT") conducted on May 11, 2006 (see Ex. 9). The State called three witnesses: Correction Officer (hereinafter, "CO") Brent L. Rogers, who was the housing unit officer when and where the assault upon Claimant occurred; Correction Lieutenant (hereinafter, "Lt.") Cutright; and Mariann Amodio, an inmate classification and movement analyst for the Department of Corrections and Community Supervision (hereinafter, "DOCCS"). Thereafter, the parties requested and were granted additional time to submit post-trial memoranda.
At the beginning of the trial, Claimant's counsel made an application to continue the trial because he was unable to locate his client. It appears T. M. K. no longer lives at the address in Florida he provided to counsel and, despite diligent efforts, counsel was unable to make contact with Claimant. The State opposed the application, noting that it was ready and prepared to proceed and had three witnesses present, including one who traveled from Albany in order to share her testimony. The Court denied the application of Claimant's counsel, noting that T. M. K. failed to provide a reasonable excuse for his failure to appear. Rather, his absence owed to his failure to keep his counsel apprised of his whereabouts.
FACTS
Claimant was sexually assaulted by another inmate, Herman Henson, on September 10, 2005, at approximately 2:00 a.m., in the B1 housing unit at Marcy (hereinafter, the "Honor Dorm"). Marcy is a medium security correctional facility. The Honor Dorm is an open housing unit. Bunk beds are arranged around the perimeter of the room to form an outer ring. Another group of bunks are arranged in a rectangular pattern in the middle of the room to create an inner ring. Bunks are separated from each other by means of three-foot high partitions to create separate areas, or cubes. Between the two rings of bunks is open space that functions as a corridor. The CO's station, or desk, is located in the middle of the outside ring of cubes. CO Rogers, who has been employed at Marcy since 1996, agreed that, from his station, some areas of the corridors/bunks were not visible. Claimant said that he was assigned to the bottom bunk in a cube that was located near one of the corners and his alleged assailant, Inmate Henson, bunked in a cube on the opposite corner of the room.
CO Rogers was the usual officer on the overnight shift in the Honor Dorm. He described the inmates housed there as "a reasonably well-behaved group of men" who had good corrections records. The unit logbook for the Honor Dorm states that there were 59 inmates in the dorm at the time of the assault (see Ex. 7 [p. 182]). CO Rogers said that his usual routine was to make irregularly-timed rounds of the dormitory every 10-15 minutes or so. At around 11:30 p.m. he would be locked into the Honor Dorm with the inmates for the night until about 4:00 the next morning. The unit logbook indicates that lights out occurred in the dorm area at 11:15 p.m. on the night of the assault (see id. [unnumbered page preceding p. 182]). CO Rogers also said, however, that inmates in the Honor Dorm were allowed to stay up until 4:00 a.m. on Friday and Saturday nights. The assault occurred at 2:00 a.m. on September 10, 2005, which, the Court takes judicial notice, was very early on a Saturday morning (see also id. [unit logbook, p. 182 states "9-10 September 2005 Friday- Saturday"]).
All quotations not otherwise attributed are taken from the electronic recording of the trial and/or the Court's trial notes.
Claimant stated that he is 6 feet tall and his weight fluctuated within 10 pounds of 195 lbs. during his period of incarceration (Ex. 9 [EBT], p.11). He described only two prison altercations prior to the alleged attack. He was "jumped" by three or four unknown inmates in Marcy's prison yard bathroom. He also had a fight with one other inmate in 2003 (see id., pp. 28-31).
CO Rogers struggled to recall Claimant, but described a shorter individual, about 5' 10" tall with a "reasonably slight build," weighing perhaps 135-145 lbs.
Claimant had been in the Honor Dorm for 30-60 days prior to the incident and agreed that, prior to the date of the attack, he was not concerned about his general safety (Ex. 9, pp. 24, 40). Specifically, he had no reason to believe that Mr. Henson, who had been in the Honor Dorm for about a month, intended to harm him (id., pp. 40-41, 53). CO Rogers described Inmate Henson as a "tall, powerful kind of guy" and Mr. Henson did some boxing while incarcerated (Ex. A, p. 51 [Mr. Henson's EBT conducted on April 11, 2014 (hereinafter, "Henson EBT")]). Claimant knew that Inmate Henson was serving a life sentence, but did not know the particulars of his offense (Ex. 9, p. 43). Nevertheless, Claimant said that he and Mr. Henson had gotten along well, played cards, and cooked together sometimes (id., pp. 41, 47). Claimant thought that Inmate Henson was easygoing and had no concerns that Mr. Henson might be aggressive because he "didn't seem like that type of person" (id., pp. 47, 48, 53).
Claimant said that Inmate Henson came to his cube after lights out once, a few days before September 10, 2005 (Ex. 9, pp. 43-44), on either September 6, 2005 or September 7, 2005. Claimant said that, on that occasion, Mr. Henson stayed for a couple of minutes, during which Claimant reluctantly acquiesced to Mr. Henson's sexual advances (Ex. 9, p. 46). The September 10, 2005 inmate misbehavior report reports that Claimant indicated that this first sexual encounter with Mr. Henson was consensual (see Ex. 3-A [Ex. 19 to Henson EBT]). The next day, Claimant told another inmate about the incident, who advised him to report it immediately, but Claimant said that he felt "dirty" and "low" (Ex. 9, p. 51). Moreover, he did not believe that Mr. Henson would do it again (id., pp. 48-49). Thus, he chose not to speak with a CO, or to report the incident (id., p. 51). A few nights later, on September 10, 2005, Mr. Henson again visited Claimant's cube. Claimant said that he was afraid of Inmate Henson on this second visit because he was more aggressive and forced Claimant to engage in the same sex act as had occurred a few nights earlier, this time, however, under the threat of violence if Claimant did not submit (Ex. 9, pp. 46- 47). He stated that "he told [Mr.] Henson no[,] several times, but Inmate Henson raped him anyway" (Ex. 3-A [Ex. 19 to Henson EBT (Inmate Misbehavior Report)]).
see Ex. 2 (Claimant's medical records, including Ambulatory Health Records [hereinafter, "AHR"] entries dated afternoon/evening of September 10, 2005, and Patient Referral Form of same date).
see Ex. 3-A (the Inmate Misbehavior Report regarding the September 10, 2005 incident [Ex. 19 to Henson EBT]).
Claimant said that he tried to report the assault to CO Rogers, but he was sleeping, adding "He's an older guy. He always sleeps" (Ex. 9, p. 48). CO Rogers was 62 years old in 2005. In addition to working at Marcy, at the time, CO Rogers was a farmer, and also cared for an elderly parent. He said that he averaged about five hours' sleep on work nights, although he slept more on days off. He dismissed as "most unlikely" Claimant's allegation that he was asleep, noting that he would and should be disciplined if that were to occur and that has "never happened." Asked on cross-examination if he had ever fallen asleep on the job, CO Rogers replied, "not to my knowledge." He did confirm that Claimant never approached him about the assault.
Claimant said that he could not speak with the CO on duty the next morning because Mr. Henson was watching him (Ex. 9, pp. 48, 52). Finally, on the next shift, Claimant asked to go to the medical unit for emergency treatment of a pain in his stomach, where he was able to report the incident (id., pp. 48, 52; see Ex. 2 [Claimant's AHR entries dated afternoon/evening of September 10, 2005]).
Later on September 10, 2005, Claimant was taken to Faxton-St. Luke's Healthcare in Utica, New York, for a medical examination (see Ex. 1). He presented complaining of bloody stool, with rectal pain, and painful bowel movements (id., unnumbered p. 5). The emergency department note states that he "was allegedly assaulted sexually by another male inmate via rectal intercourse earlier today. He says this happened on one other occasion also … Examination of his rectum shows no tears or bleeding but does show some soiling of blackish stool at the 3 and 9 o'clock positions lateral to the rectal sphincter, but this is not significant" (id., unnumbered p. 12). The listed diagnosis was "sexual assault" (id., unnumbered p. 3). Claimant did not file any grievance concerning the incident (Ex. 9, p. 51).
Mr. Henson told a New York State Police investigator, on September 13, 2005, that he knew Claimant, had loaned him cigarettes so Claimant could pay off a drug debt, and had been to Claimant's bunk, but he denied having any kind of sexual or physical contact with Claimant (Ex. 3-A [Ex. 18 to Henson EBT]). The DOCCS' investigator who authored the Inmate Misbehavior Report on September 14, 2005 relates, however, that despite initial denials, when Mr. Henson was asked if the sexual contact with Claimant could have been consensual on account of the cigarettes' loan, he replied, "it could have been like that" (Ex. 3 [Legal File, pp. 61-62]; Ex. 3-A [Ex. 19 to Henson EBT]). Mr. Henson was found guilty both of an unauthorized exchange involving the cigarettes and of having committed a sex offense because the hearing officer concluded that Mr. Henson forced Claimant to have sex with him (Ex. 3 [Legal File, pp 58-59]; Ex. 6). Among other penalties imposed, Inmate Henson was confined to SHU for a period of nine months (see id. [Legal File, p. 56). One month after the assault, Inmate Henson's status was reclassified (see discussion below) to that of a maximum security inmate (Ex. A [Henson EBT], p. 115). Notwithstanding all the foregoing, Mr. Henson wrote to Assistant Attorney General G. Lawrence Dillon, Esq., on May 6, 2011 to deny that he had sexually assaulted Claimant (Ex. 3-A, [Ex. 1 to Henson EBT]; Ex. B) and, at his 2014 EBT, Mr. Henson denied that he had sexual contact, consensual or otherwise, with Claimant (Ex. A, pp. 112-113).
Exhibit 1 to the Henson EBT, which is contained in Claimant's trial Exhibit 3-A, is the same document as Defendant's trial Exhibit B. That being the case, Claimant's objection to the introduction of Exhibit B, upon which the Court reserved decision at trial, is now overruled, and Exhibit B is admitted into evidence.
At the time of the assault, Inmate Henson had been incarcerated since 1972 (see Ex. 3-A, [Legal File, p. 2208]) and had a voluminous disciplinary history (see Ex. 3; Ex. 11). In the1980s, he was described as "a superficial conformist" (Ex. 3-A [Legal File, p. 2214]) whose overall behavior had been "horrendous" (id. [Legal File, p. 1623]). A 1996 report noted an improved disciplinary record since the late 1980s, although it also speculated that some of that improvement might be attributable to Mr. Henson being "jail wise" (Ex. 11 [Legal File, p. 1222]).
Exhibit 11 was offered by Claimant, and accepted by the Court, not as evidence of Inmate Henson's violent propensities, but rather, to evidence his long history of disciplinary problems.
At trial, Claimant's counsel highlighted incidents in which Mr. Henson allegedly: participated in murdering another inmate in 1983 (Ex. 3-A [Legal File, p. 2214]); had a "hit" list of COs in 1983 (id., pp. 2206, 2208, 2217]); committed acts of extortion in 1982, 1985, 1986, 1997, and 1998 (id., p. 366, 370-371, 1646, 1652,1658, 2152, 2210); fought in 1981 (id., p. 712-713); and engaged in several acts where sexual misconduct was alleged, or at least that was what was insinuated (id., pp. 798, 801, 2221 [November 1976: Mr. Henson allegedly made sexual advances towards/sexually assaulted another inmate], 773 [November 1978: Mr. Henson was observed in a cell with his arm around the waist of another inmate], 1129 [March 1986: Mr. Henson was reported to be associating with gay inmates], 177, 981- 982 [February 1989: Mr. Henson was found guilty of being out of place and causing a miscount when he was found climbing out from under his bed with another inmate], 1176 [September 1985: anonymous letter alleged that Mr. Henson raped a Muslim and threatened retaliation by Muslim inmates]).
The Court observes that a note in Mr. Henson's Legal File indicates that the murder allegation was erroneously included in his records and would be deleted (Ex. 3, p. 2213). The Court also notes that there is no indication in the record that Mr. Henson was found guilty of having violated any rules proscribing sexual conduct in connection with any of the above-referenced incidents.
Mr. Henson specifically was charged with having solicited sexual acts in a February 3, 2004 misbehavior report (Ex. 3 [Legal File, pp. 142- 145]; Ex. 3-A, [Ex. 3 to Henson EBT]). An inmate asserted that "he was thrown around the laundry room" by Mr. Henson on that date, suffering a "scrape and red marks on his upper torso" (Ex. 3 [Legal File, p. 145]). The accuser also alleged that Mr. Henson had demanded sex from him some five months earlier, on August 21, 2003, but that he had dissuaded Mr. Henson by giving him cigarettes and stamps (id.). At the subsequent disciplinary hearing, however, Mr. Henson was found not guilty of the sex offense, as well as bribery and extortion charges, although he was found guilty of violent conduct (id. [Legal File, p. 142]; Ex. 3-A [Ex. 4 to Henson EBT]).
Ms. Amodio has been employed by DOCCS for 27 years and has worked as a classification movement specialist since 2006, trained to review inmates' security classification status. She explained that an inmate's security classification is first reviewed within seven years of his earliest release date, and every six months thereafter. Each review evaluates the severity of any disciplinary sanctions imposed against the inmate since the previous review. Thus, remote events that may have happened years, or even decades, ago are not germane to such review. It, likewise, does not consider allegations that did not result in a finding of guilt. Ms. Amodio agreed that there are more medium security correctional facilities than there are maximum so that space availability also may be considered when reviewing an inmate's security classification and placement in a particular prison. However, she further agreed that serious Tier III sanctions are not overlooked in making such assignments.
Ms. Amodio reviewed Inmate Henson's security classification history, noting that he was first eligible for review in 1993, at which time his status was reduced from that of a maximum to a medium security inmate. In 1998, he was reclassified back to maximum security status after a serious drug offense. In 2002, his status again was reduced to medium. Ms. Amodio said that the classification criteria in effect in 2006 were the same as those applicable in 2002 when Mr. Henson's status was changed to a medium classification and that the procedures had been properly followed. Moreover, she confirmed that none of the seven Tier II tickets Inmate Henson received from September 25, 2002 until May 5, 2005 (the last one he received prior to the date of the attack on Claimant) were serious enough to have warranted a reclassification of his status from medium back to a maximum security inmate. Similarly, the hearing officer noted among the reasons for the disposition of the May 5, 2005 incident the fact that Mr. Henson had incurred no Tier II/III misbehavior reports during the preceding 15 months (Ex. 3 [Legal File, p. 68]).
Mr. Henson's Legal File reveals that those Tier II tickets were for: (1) smoking in un-designated areas; (2) visiting with another inmate at a time when he had lost recreation privileges; (3) refusing an order to clean a bathroom as per his work assignment; (4) smuggling packets of kitchen spices; (5) gambling; (6) the 2004 violent conduct matter discussed above; and (7) creating a disturbance by talking loudly and refusing a direct order to be quiet (see Ex. 3 [Legal File, pp. 67-71, 75, 77-80, 82-85, 142-145, 179-193]).
Lt. Cutright has been employed by DOCCS for 33 years and has been at Marcy since 2006. One of his duties as a housing lieutenant is to review inmate housing placements and, as such, he is familiar with the criteria for placement in the Honor Dorm. Lt. Cutright confirmed that, in his experience, the eligibility requirements for placement in the Honor Dorm have not changed materially, namely that an inmate must have been at Marcy for at least 90 days and without Tier II or Tier III disciplinary offenses during the preceding 120 days. CO Rogers also thought that the 120-day requirement had been in effect during the 21 years he worked at Marcy. On cross-examination, Lt. Cutright agreed that the criteria do not take into account whether an inmate had a long history of prior disciplinary actions, or violent or dangerous propensities.
At trial, Defense counsel posited that Inmate Henson was moved to the Honor Dorm on August 5, 2005 and that his last infraction took place on May 5, 2005. Thus, Mr. Henson did not satisfy the eligibility requirement that he be free of disciplinary problems for a period of 120 days, being shy of the mark by about two and one-half weeks. Lt. Cutright said that, in his experience, it was not unusual to move inmates on account of space considerations so that, if there was space in the Honor Dorm, but no inmate met the eligibility criteria, the inmate who came closest to satisfying the requirements would be placed in the Honor Dorm. This was done to alleviate overcrowding in the prison's general population.
LAW
"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]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). As in any other negligence action, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" (Sanchez v State of New York, supra at 252; see Basso v Miller, 40 NY2d 233, 241 [1976]; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). Even though the "precise manner in which the harm occurred" may not have been foreseeable, liability attaches if it was "within the class of reasonably foreseeable hazards" to which the duty applies (Sanchez v State of New York, supra at 252; Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]). Moreover, it applies to those risks that were foreseeable, "not simply by actual notice but by actual or constructive notice - by what the 'State knew or had reason to know' " (Sanchez v State of New York, supra at 255, quoting dissenting op at 260 [emphasis in original]). In the instant Claim, it encompasses those risks that Defendant reasonably should have foreseen in the context of its operation of a prison and having custody of inmates forcibly surrounded by felons - many of them with a proven capacity for violence (Sanchez v State of New York, supra at 256).
At the same time, Defendant's duty to prisoners does not "mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. 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 v State of New York, supra at 256; Elnandes v State of New York, 11 AD3d 828 [3d Dept 2004]).
The State has been found negligent in inmate-on-inmate assault claims where a claimant was able to establish that the attack was foreseeable because: (1) Defendant knew, or should have known, that the claimant was at risk of assault, yet failed to provide reasonable protection; (2) Defendant knew, or should have known, that the assailant was prone to perpetrate an attack, yet failed to take proper precautionary measures; or (3) Defendant failed to intervene or act when it knew, or should have known, that surrounding conditions were likely to engender or facilitate an attack (Smart v State of New York, UID No. 2007-029-053 [Ct Cl, Mignano, J., Dec. 21, 2007], affd 65 AD3d 1218 [2d Dept 2009]; Douglas v State of New York, UID No. 2007-028-012 [Ct Cl, Sise, P.J., May 17, 2007]; Shearin v State of New York, UID No. 2007-028-011 [Ct Cl, Sise, P.J., May 8, 2007]).
DISCUSSION
The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so. The Court finds that the witnesses who appeared at trial provided generally sincere and credible testimony. The Court finds that Claimant did not meet his burden of proof and failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with the attack perpetrated upon him.
Claimant failed to establish that Defendant knew, or should have known, that he was at risk of assault and failed to provide reasonable protection. In his EBT testimony, he described himself as being six feet tall and weighing in the neighborhood of 200 lbs. He related only two altercations with other inmates prior to the assault on September 10, 2005. He stated that he had no concerns about his general safety prior to the attack and, specifically, that he was on friendly terms with his assailant so that he had no concerns about Mr. Henson. Thus, the Court finds that Claimant failed to establish by a preponderance of the credible evidence that Defendant knew, or should have known, that he was at a greater risk of assault than any other inmate in the inherently-volatile environment of a correctional facility.
The reliance by Claimant's counsel upon the recollection of CO Rogers that Claimant was smaller is unavailing. The Court concludes that T. M. K. had a superior knowledge of his own physical attributes than did the CO, who, at the time of Trial, was recollecting an individual from ten years ago. --------
The Court further finds that Claimant failed to establish that Defendant knew, or should have known, that Inmate Henson was prone to perpetrate an attack and failed to take proper precautionary measures. With respect to any specific propensity Mr. Henson had to commit a sexual assault, Claimant points to several instances in which charges of sexual misconduct were alleged or implied. The Court notes that in only one 1985 case was an actual sexual assault alleged and that accusation came in the form of an anonymous and unsubstantiated letter, apparently submitted by other inmates. In any event, in none of the cases was Inmate Henson found guilty of any sex-related offense, including the most recent one in 2004. Moreover, the Court notes that the allegations of sexual misconduct in the 2004 matter were not part of the instant offense, but rather, were over five months old at the time they were made. For all the foregoing reasons, the Court rejects any suggestion that the State was, or should have been, on notice that Mr. Henson was a sexual predator.
Of course, Claimant is not required to establish that the precise manner in which the attack occurred was foreseeable. Rather, liability will attach so long as the assault was "within the class of reasonably foreseeable hazards the duty exists to protect." The Court finds that, in this instance, it was not.
To be sure, Mr. Henson had a lengthy disciplinary record, but one which also was accumulated over many decades. Claimant highlighted a number of Mr. Henson's violent offenses, but most of them were at least 15 years old, with many dating to the mid-1980s, and some earlier than that. The Court concludes that this litany of horribles from Mr. Henson's past is simply too remote in time to establish that the State was, or should have been, on notice that he possessed similar violent propensities in 2005. Indeed, the Court credits Ms. Amodio's persuasive testimony that none of Mr. Henson's seven Tier II infractions in the three years after he was reclassified as a medium security inmate in 2002 were of sufficient severity to warrant his return to maximum security status. The Court further concludes from its own review of those offenses that none of them put, or should have put, the State on notice that Mr. Henson might have the sort of violent propensities he exhibited in his assault on Claimant (see footnote 7 above). That includes the 2004 incident which, though worthy of sanction, appears to be more in the nature of a tussle, resulting as it did in a "scrape and red marks on [the] upper torso" of the victim, rather than the sexual assault that Mr. Henson inflicted upon Claimant.
Thus, to the Court's mind, this is not an instance where there was an escalation in Inmate Henson's assaultive behavior in the weeks and days preceding the assault such that the "manifest foreseeability of risk … should have been obvious" (Littlejohn v State of New York, 218 AD2d 833, 834-835 [3d Dept 1995]; see Blake v State of New York, 259 AD2d 878, 879 [3d Dept 1999] [foreseeability where assailant had attacked another inmate in recreation yard with a sharp object and the weapon was never found]). Rather, here Mr. Henson had one infraction for violent conduct in the nearly three years preceding the attack, and that one appears to have been markedly less severe, and did not warrant or result in the loss of his classification as a medium security inmate (see Melvin v State of New York, 101 AD3d 1654, 1655 [4th Dept 2012] [no foreseeability where assailant had not been cited for any violent behavior in over three years and there was no history of violence between the two inmates]). In this regard, the Court further notes that Mr. Henson's disciplinary history dating back to 1990, includes only one other infraction for an overt act of violence, a fight in 1990 for which Mr. Henson received 30 days in keeplock (see Ex. 3 [Legal File pp.72-75]).
Likewise, Claimant failed to establish that there was any want of proper supervision on the part of the State. It is true that Mr. Henson was received into the Honor Dorm before he satisfied the requirement that he be without Tier II or Tier III disciplinary infractions for 120 days. However, it was more than 120 days from May 5, 2005, the date of his last offense, until the date of the attack on September 10, 2005. Thus, even assuming, arguendo, that his initial placement in the Honor Dorm was improper, Mr. Henson would have been eligible to be there, in strict accordance with the 120-day rule, prior to September 10, 2005. Thus, the Court concludes that the decision to move Mr. Henson a few weeks early was not a substantial factor in causing the assault that occurred.
The Court rejects both the general assertion by Claimant's counsel that it would be impossible for CO Rogers not to sleep regularly while on the job given his arduous responsibilities outside the prison, as well as Claimant's specific testimony that CO Rogers was asleep immediately after the attack occurred so that he could not report it. Claimant's counsel suggests that CO Rogers was being coy when he said that, to his knowledge, he had not slept on the job. To the contrary, the Court concludes that the officer was being forthright and candid when he said that it was "most unlikely" that he would have been asleep. To the Court's mind it is, indeed, most unlikely that a CO would sleep after he had been locked into a housing unit for the night along with 59 inmates, no matter how "reasonably well-behaved" they might be. In fact, it is beyond unlikely. Rather, it is incredible to posit, as Claimant does, that CO Rogers would be asleep when the assault took place at 2:00 a.m., on a Friday evening into Saturday morning, when the inmates were allowed to stay up until 4:00 a.m., even if it was after lights out at 11:15 p.m.
Finally, Claimant failed to establish that Defendant did not intervene or act when it knew, or should have known, that surrounding conditions created an increased likelihood that an assault would occur. No such exigent circumstances were shown to exist at the time.
For all the foregoing reasons, Claimant failed to establish his Claim by a preponderance of the credible evidence.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter judgment dismissing the Claim.
November 17, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims