New York State Court of Claims

New York State Court of Claims

TAYLOR v. THE STATE OF NEW YORK, #2000-010-068, Claim No. 87532


Synopsis


Defendant not negligent for correction officer's failure to break up inmate fight before response team arrived.

Case Information

UID:
2000-010-068
Claimant(s):
ELIZABETH TAYLOR
Claimant short name:
TAYLOR
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
87532
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
ANTONIA KOUSOULAS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New York
By: R. Verle Johnson, Assistant Attorney General Janet Polstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 19, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for injuries she allegedly sustained on July 17, 1991 when she was incarcerated at Bedford Hills Correctional Facility ("Bedford").
The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant alleges that on July 17, 1991, she was assaulted in her Housing Unit 114 A&B by inmates Beatrice Gonzalez and Suzanne Marel who also resided in that unit. Claimant contends that, prior to the attack, defendant was on notice that Gonzalez and Marel had demonstrated hostility toward claimant.
Claimant also contends that the correction officer on duty failed to appropriately respond to the altercation.
Claimant testified that she was acquainted with Marel and Gonzalez and had argued with them prior to the assault
. Claimant described the two as lovers and part of a clique that created disturbances in the housing unit. Claimant maintains that on June 27, 1991, she wrote a letter which was typed by her friend and co-inmate, Karen Ely, documenting an "ongoing problem" (Ex. 1). Claimant stated therein that she had been targeted by a group of women who had made "snide comments" that could result in "disastrous consequences if it is left unchecked." She warned, "It is imperative that the facility administration break up this clique before somebody gets seriously hurt" (Ex. 1). Claimant testified that a day or two later she gave the letter to Sergeant Allsopp for his investigation. Allsopp was on vacation for most of July and claimant did not follow up on the letter until after the incident.
Claimant testified that on prior occasions, the women called
claimant a "rat" (T:101-02)[1] and that Marel pushed claimant. Claimant insisted that she had advised Correction Officer Robinson and Sergeant Palmer about these comments and had requested a transfer from the housing unit. Claimant, however, was never moved. Specifically, claimant recalled that on July 16, 1991, Marel and Gonzalez yelled cruel remarks at claimant in the presence of Robinson. In response, Robinson directed the inmates to stop arguing. According to claimant, Robinson asked claimant not to transfer her housing and assured claimant that Marel would be moved.
Claimant conceded that prior to July 17, 1991, she never told the officers that she was afraid of being assaulted, nor did she request being placed in protective custody. Claimant explained, "when you're doing 25 to life, it's very hard to do it one small room away from all civilization in protective custody. So it's not something -- it's not a place anybody would want to spend that much time in" (T:129). Despite being incarcerated for 22 years, she stated that she was unfamiliar with an enemies list.

Claimant testified that on July 17, 1991 between 2:00 p.m. and 2:45 p.m., she was in the recreation area performing her inmate work assignment as a porter. Only those inmates who have work assignments or are waiting to use the irons, washers and dryers were permitted to be out of their cells at this time. Correction Officer Ray Bridges was stationed in a raised area known as the bubble from where he could observe the recreation area and housing corridors. Claimant recalled that at 2:30 p.m., she became engaged in a heated conversation with Marel and Gonzalez. Marel called claimant an old rat and spit in claimant's face. Claimant spit back. Marel approached claimant taunting, "kill her, I want her dead" (T:141). Claimant then threw her iced tea at Marel. Gonzalez punched claimant, causing her to fall to the floor, and kept hitting claimant.
Claimant also felt someone kicking her. Bridges, who was at a distance of five feet, did not intervene and remained in the bubble.
Karen Ely, another resident of Housing Unit 114 A&B in 1991, testified on behalf of claimant. Ely and claimant had been friendly since 1984. According to Ely, tension existed on the unit with physical brawls erupting one to two times a week. Ely had observed Marel menace claimant and Ely testified that she typed the June 27, 1991 letter for claimant and was present when claimant gave the letter to Allsopp.
Ely did not witness the July 17, 1991 assault.
Ely maintained that she had observed a prior shoving incident involving Marel and that the correction officer on duty did not take any action. Ely testified that Marel had menaced Ely and claimant in late spring of 1991 and Ely had reported it in writing to Captain Palmer. Ely refused protective custody because she believed it punished the victim.

Deborah Irving, who had been incarcerated in Bedford, also testified on behalf of claimant. Irving knew claimant, but did not consider her a friend. Irving stated that Marel had been harassing claimant for a few months prior to the July incident. Marel's behavior, however, was not within view of the correction officers.
Irving further testified that raised voices were commonplace in prison and the unit was known for being noisy (Ex. 17). She stated that, after a while, you "tune out" arguments (T:88).
On July 17, 1991, Irving was in the back of the rec area waiting to use the iron, as a
series of events unfolded quickly. She observed claimant, Marel and Gonzalez arguing near the bubble. Irving approached Bridges and asked him to do something. He did not respond. Irving further observed spitting. Claimant threw the liquid from her cup and Gonzalez knocked claimant down and slammed her head on the floor. Irving related that she screamed at Bridges to do something and he just froze. When he did not react, approximately three minutes after the physical altercation began, Irving pushed her body between claimant, Marel and Gonzalez. Irving yelled and other inmates came to her assistance in ending the brawl. Irving took claimant to her cell and then to the facility hospital.
The EBT testimony of Correction Officer Janet Robinson was received into evidence (Ex. E). Robinson testified that she was not aware of any tension between claimant and Marel or Gonzalez prior to the July 17
th incident. Further, Robinson was not aware of any complaints from other inmates about Marel or Gonzalez. Robinson denied ever telling claimant that she would try to move Marel out of the unit.
Lieutenant Norval Allsopp[2]
testified that in July 1991, he was an area sergeant at Bedford in Housing unit 114 A&B. In this capacity, Allsopp was responsible for the safety of inmates and in charge of correction officers. Allsopp testified that threats among inmates are commonplace and "get" and "kill" are normal everyday terms used in prison (T:248-49, 253-54). Allsopp explained that if a correction officer witnesses inmate violence, facility procedure required the officer to pull the pin on his/her personal alarm system. Officers were cautioned not to intervene because the fight might be a setup to divert attention. Moreover, an officer might be outnumbered and attacked. Rather, the officer should order the inmates to stop, make mental notes for reports to be filed, and wait for a response from additional officers. The personal alarm system relayed a signal to the central base area and an alarm was sounded, alerting designated emergency response personnel to respond to the problem area.
Allsopp denied ever receiving a letter from claimant and Ely. He further stated that, if he had received such letter, he would have merely forwarded it to the watch commander because it did not require immediate attention. He explained that the letter did not detail specific threats to claimant nor did it request a transfer; rather it referred to breaking up a clique led by an inmate who had recently been removed from the unit. Allsopp further testified that he was never advised by any other Department of Correctional Services ("DOCS") personnel that there were problems in Housing Unit 114 A&B or with Marel and Gonzalez.

Correction Officer Ray Bridges testified that he was stationed at the bubble in Housing Unit 114 A&B on July 17, 1991 and recalled the fight that developed. He related that a verbal argument between claimant, Marel and Gonzalez escalated after Marel spit on claimant and she spit back. Claimant then threw a drink on Gonzalez and Marel. Gonzalez struck claimant, causing her to fall to the floor. Claimant kicked Marel. Other inmates attempted to separate them.

Bridges testified that, prior to the spitting, he directed the inmates to stop arguing. When claimant was struck, Bridges pulled the pin of his personal alarm system. Several correction officers responded to the alarm in less than two minutes. He further testified that the entire incident, from the beginning of the argument until the inmates were separated, happened very quickly, in less than three minutes.

Bridges testified that the Employee Manual mandated that correction officers not intercede in a fight, but wait for additional assistance. He had no knowledge of any previous threats or arguments involving claimant. When asked about his recollections of claimant, Bridges replied, "She [claimant] felt that she was the real Elizabeth Taylor *** and was kind of uppity, *** she just felt that she was a high-profile person, and that she shouldn't be there" (T:317). Bridges testified that claimant had initiated the argument; this was also reflected in the Inmate Misbehavior Report Bridges filed against claimant and Marel (Exs. 11, D).

Marie Noonan, Senior Correction Counselor at Bedford, testified that she searched claimant's file and did not find an enemies list; requests for transfer to another unit or facility; nor a copy of claimant's letter dated June 27, 1991 (Ex. 1). Noonan stated that, if such documents existed, they would normally be in claimant's file.

It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (see, Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risk of harm includes the risk of attack by other prisoners (see, Littlejohn v State of New York, 218 AD2d 833). However, "[t]he State is not an insurer of inmate safety; its duty is to exercise reasonable care to prevent foreseeable attacks by other inmates" (Padgett v State of New York, 163 AD2d 914). The mere occurrence of an unprovoked, unexplained attack by a fellow inmate, with whom claimant had no prior contact, does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see, Stanley v State of New York, 239 AD2d 700; Roudette v State of New York, 224 AD2d 808; Leibach v State of New York, 215 AD2d 978; Padgett v State of New York, supra). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see, Leibach v State of New York, supra; Padgett v State of New York, supra).
Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
defendant did not have notice of a foreseeable dangerous situation, that the verbal discourse rapidly accelerated into physical violence, and that Bridges' response was appropriate and in accordance with proper procedure (see, Schittino v State of New York, 262 AD2d 824 [inmate fight escalated quickly after claimant threw liquid at assailant; correction officer's response was appropriate and failure to intervene was not negligent]). Notably, claimant's file did not contain an enemies list, a transfer request, nor a copy of claimant's June 27, 1991 letter. Claimant's testimony, that she was unfamiliar with an enemies list, was not worthy of belief and detracted from her overall credibility given that she has been incarcerated for 22 years. Allsopp denied knowledge and receipt of claimant's letter and further testified that he was never advised by any DOCS personnel that there were problems in the housing unit or specifically with Marel or Gonzalez. As testified to by Irving, prison is noisy and raised voices in arguments are commonplace. Bridges directed the inmates to stop arguing and, when claimant was struck, he activated his personal alarm system. Several officers responded to the scene in less than two minutes. Contrary to claimant's argument, Bridges was not required to intervene before the other officers responded to the scene (see, Pierrelouis v State of New York, 255 AD2d 824 [correction officer alerted response team of inmate fight and was not negligent for failing to intervene before the team's arrival]).
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 87532.

October 19, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
All references to the trial transcript are preceded by the letter "T."
[2]
Allsopp was promoted from Sergeant to Lieutenant in 1998.