Opinion
# 2016-038-568 Claim No. 118188 Motion No. M-88971
10-31-2016
JOHN H. WHITE PRISONER No. 08A3366 v. STATE OF NEW YORK
JOHN H. WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment on claim for inmate-on-inmate assault denied. Defendant did not demonstrate by proof in admissible form that claimant had not communicated in writing his concern for his safety to the Superintendent of the facility prior to the alleged assault, and thus, defendant's prima facie right to judgment was not established. In any event, claimant raised triable issues of material fact regarding whether he had verbally informed a sergeant of the threat posed by his cellmate as well as whether claimant was the aggressor.
Case information
| UID: | 2016-038-568 |
| Claimant(s): | JOHN H. WHITE PRISONER No. 08A3366 |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the State of New York as the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118188 |
| Motion number(s): | M-88971 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN H. WHITE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 31, 2016 |
| City: | Saratoga Springs |
| 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 he sustained on January 7, 2010 when he was allegedly attacked by his cellmate in their cell at Upstate Correctional Facility (CF). The trial of the claim was scheduled to be conducted on August 18, 2016 but was adjourned following the filing on July 25, 2016 of defendant's instant motion for summary judgment, which claimant opposes.
The claim alleges that prior to the date of the assault, claimant advised defendant of the threat imposed by his cellmate, inmate Francis, in writing to Upstate CF Superintendent David Rock. It further alleges that claimant verbally informed Sergeant Thompson that his cellmate possessed a weapon and that they were incompatible, and that in the hours prior to the assault, claimant told Sgt. Thompson multiple times of the emergency nature of his request that he and Francis be separated. The claim asserts that defendant is at fault for failing to heed his warnings that his cellmate posed an imminent threat with a weapon.
The first issue presented by defendant's motion for summary judgment is whether the alleged attack upon claimant by his cellmate was foreseeable because "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 State's duty of care is not absolute, however, as its scope 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, 343 [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 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]), and, as pertinent here, 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 or that the alleged assailant was prone to perpetrate attacks (see Sanchez, at 254-255; Vasquez, at 1276; Littlejohn v State of New York, 218 AD2d 833, 834 [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 well established that a movant for summary judgment must establish, by proof in admissible form, the 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 (see Alvarez v Prospect Hosp.; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A Court's task on a summary judgment motion is issue identification, not issue resolution (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 397, 404 [1957]).
In support of its motion, defendant submits the affidavit of then-Sergeant (now Captain) Steven Thompson, in which he avers that on January 6, 2010 (the day before the assault), claimant notified him that he wanted a cell change because he and his cellmate were not getting along. Sgt. Thompson states that when he asked claimant if he felt threatened and if there was a weapon, claimant "stated to the contrary" (Thompson Affidavit, ¶ 3). Sgt. Thompson averred that later that day, the cellmate stated to him that there were no problems. Sgt. Thompson's affidavit further asserts that on January 7, 2010, claimant again requested a cell change because he and his cellmate were not getting along, but that claimant did not state that he felt threatened or that the cellmate had a weapon (see id., ¶ 5). Also on January 7, 2010, claimant's cellmate indicated to Sgt. Thompson that claimant was difficult to get along with (see id., ¶ 6), and Sgt. Thompson avers that his investigation of the incident "concluded that [claimant] started the fight" (id., ¶ 12).
Defendant argues that it "exercised reasonable care to protect Claimant from foreseeable risks" (Calabrese Affirmation, ¶ 11) because Sgt. Thompson had investigated claimant's assertions that he and Francis were incompatible, and claimant had not advised Sgt. Thompson that Francis possessed a weapon or that claimant felt threatened by Francis (see id., at ¶¶ 11, 13, 14). While Sgt. Thompson's affidavit may establish that an assault on claimant by his cellmate was not foreseeable to him, personally, defendant's submission in support of its motion does not address the allegation in the claim that claimant had written to Superintendent Rock prior to the date of the incident "advising him of the threat imposed by cellmate" (Claim No. 118188, ¶ 2; Calabrese Affirmation, Exhibit A). Thus, defendant has failed to establish prima facie its right to summary judgment as a matter of law on the issue of foreseeability of the alleged attack on claimant by his cellmate. Further, to the extent that Sgt. Thompson avers that claimant told him only that claimant and Francis were incompatible and never informed him that he felt threatened, claimant's sworn submission in opposition to the motion asserts that defendant's personnel were informed by claimant of the threat of an attack by Francis (see Claimant's Submission, ¶¶ 3, 14), and also that defendants knew or should have known that claimant was at risk of being attacked if double-bunked (see id., ¶ 69). Thus, to the extent that Sgt. Thompson's affidavit makes out defendant's prima facie showing of entitlement to judgment as a matter of law because he lacked knowledge that claimant was at risk of being assaulted by his cellmate, claimant has raised triable issues of fact regarding the foreseeability of such an assault, and thus, summary judgment will not be granted.
Although claimant's sworn submission includes at the outset a reference to two Federal statutes that permit unsworn declarations made under penalty of perjury and establish the Federal penal offense of perjury (see 28 USC § 1746 and 18 USC § 1621), the lack of an express statement that claimant's sworn document is submitted under penalty of perjury gives pause as to whether the submission is in admissible form. However, defendant has not replied to the submission, thereby waiving any objection to its admissibility (see Akamnonu v Rodriguez, 12 AD3d 187 [1st Dept 2004]; Sam v Town of Rotterdam, 248 AD2d 850, 851 [3d Dept 1998] lv denied 92 NY2d 804 [1998]). --------
The affidavit of Sgt. Gary Gettmann that is also submitted in support of defendant's motion states that he witnessed the alleged assault, and that claimant was the aggressor in the altercation (see Gettmann Affidavit, ¶¶ 5, 7, 13). Defendant argues that claimant's conduct was a superceding cause of the assault, even if it was foreseeable that claimant was at risk of being attacked by his cellmate, and thus, that defendant is entitled to judgment as a matter of law. As set forth in claimant's sworn opposition to the motion, "[c]laimant denies initiating the physical altercation" (Claimant's Submission, ¶ 40), thus raising a triable issue of material fact regarding the question of superceding cause, and defendant's motion for summary judgment cannot be granted.
To the extent that claimant's submission in opposition to the motion requests affirmative relief in the nature of compelling disclosure, it is denied because such relief must be sought by way of motion.
Accordingly, it is
ORDERED, that defendant's motion for summary judgment (M-88971) is DENIED, and it is further
ORDERED, that this claim shall be tried by videoconference technology on Thursday, December 1, 2016, with the parties appearing at Upstate Correctional Facility and the Court sitting in Saratoga Springs, New York.
October 31, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim No. 118188, filed March 26, 2010; (2) Verified Answer, filed June 17, 2010; (3) Notice of Motion for Summary Judgment, dated July 25, 2016; (4) Affirmation of Christina M. Calabrese, AAG, in Support of Defendant's Motion for Summary Judgment, dated July 25, 2016, with Exhibits A-D, including Affidavit of Captain Steven Thompson, sworn to July 25, 2016 and Affidavit of Sergeant Gary Gettmann, sworn to July 19, 2016; (5) Claimant's Submission in Opposition to Motion, sworn to September 30, 2016, with Exhibits; (6) Claimant's Affidavit of Services, September 30, 2016.