New York State Court of Claims

New York State Court of Claims

SHIELDS v. STATE OF NEW YORK, #2005-013-504, Claim No. 98208


Synopsis


Claimant's cause of action alleging the State's negligence for an assault upon Claimant by a fellow inmate is dismissed, as it could not be established that the assault was reasonably foreseeable.

Case Information

UID:
2005-013-504
Claimant(s):
NORMAN SHIELDS
Claimant short name:
SHIELDS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98208
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
PELUSO & TOUGER
BY: HARRIS, CHESWORTH, O'BRIEN, JOHNSTONE, WELCH & LEONE, LLP
BY: MICHAEL P. LEONE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.
Third-party defendant's attorney:

Signature date:
September 30, 2005
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On March 26, 1997, Claimant, while an inmate at Orleans Correctional Facility (Orleans), was attacked and slashed by five or six other inmates in the D-1 dormitory. He suffered a six-inch laceration to the right side of his neck, which extended from just below his right ear to the back right side of his neck, and a puncture wound to his upper left thigh. He alleges that the State of New York was negligent in failing to provide adequate supervision, and as a result he suffered serious injury. The trial of this claim was bifurcated and this decision deals only with issues of liability.

At trial, Claimant maintained that on the day of the incident the attack actually occurred in two stages. The first stage purportedly started when former Correction Officer (CO) Nowicki, the dorm officer on the 3:00 p.m. to 11:00 p.m. shift that day, allegedly left his post in the D-1 bunk area to go to that part of the D dorm designated as D-2 (Exhibit G) in response to a summons. At that time Claimant was in his cubicle, No. 9, when a group of Hispanic inmates appeared at his cube. Claimant, who was speaking at the time to another inmate named Quick, jumped up on his bed and began swinging at his assailants, who apparently broke off the assault when Nowicki reentered the area.

Claimant maintains that Nowicki then made a phone call and left the bunk area for a second time, leading to the purported second stage of the attack. This time the five or six other inmates returned to Claimant's cube and started to slash at him. He apparently leapt over the partition of his cube (No. 9) into the No. 8 cube and managed to get into the "rec" area of the D-1 dorm. He attempted to exit that area through a door that apparently led to the outside, but found that door to be locked. Claimant immediately attempted to grab a garbage can to fight off his assailants, but the cans were chained either to the wall or to the floor. Claimant then grabbed a fire extinguisher which was mounted next to the exit door and began swinging it at the attackers. At this point Nowicki came into the rec area, as Claimant was trying to spray an inmate who ran into the bunk area. Upon Nowicki's command, Claimant gave up the extinguisher.


Nowicki noticed blood on Claimant's neck and clothing and, after other correction officers arrived on D-1 dorm, had him transported to the facility infirmary for treatment.

Claimant stated that he was not sure why the attack occurred but believed it was over a "Walkman"[1]
that had been given to him by fellow inmate Quick some time prior to the assault. According to Claimant, when Quick first offered the Walkman to him he had initially refused to take it since he couldn't pay for it. Quick then told him that if he didn't take it, it would probably be confiscated by Orleans authorities since he now had two such devices and inmates were not allowed to have two.[2] Claimant then took the Walkman but it was taken from him because it was deemed to be contraband. He was given a written slip reflecting such confiscation but apparently he discarded or lost it.
When the owner
of the Walkman came out of SHU, he met with Claimant and asked for its return and was told that it had been taken from him by the correction officers as contraband. When Claimant was asked for the written slip evidencing the confiscation of the Walkman by the Orleans authorities, Claimant advised that he had thrown it away. The owner then went to the correction officer on duty in the dorm to see if the facility records indicated that the Walkman had been taken as contraband, but apparently was unable to verify that fact. The attack on Claimant then followed this episode.
Following the assault, Claimant was issued a misbehavior citation and was the subject of a protective custody proceeding as a consequence of the altercation.[3]
He was found guilty, was placed in keeplock and lost several privileges while in confinement. There was no evidence produced at trial regarding what action(s) were taken against the assailants or what punishment, if any, they received.
Claimant called no other witnesses, rested and I reserved decision on the Defendant's motion to dismiss.

CO Frank Nicotra, a relief officer at Orleans on the day of the incident, was working the 3:00 p.m. to 11:00 p.m. shift as a D-1 roundsman. During his tenure at Orleans he had also worked as the dorm officer on both the D-1and D-2 dorms, and was familiar with the responsibilities of both positions. He stated that one of his responsibilities as a roundsman was to supervise inmate movement on the walkways as inmates went to programs or outdoor recreation. He stated that generally there were 90 inmates in D-1 and, when not supervising inmate movement, he would generally make random rounds in the bunk, indoor rec, laundry room and shower areas. Using Exhibit G, CO Nicotra pointed out the location of the "bubble" or desk area. Behind the desk was a window which permitted the desk officer to view the rec room and CO Nicotra noted that in D-1 the desk officer was able to see the top bunk in cubicle No. 9, which was just three cubes from the desk. He stated that the dorm officer never remained at his desk throughout his shift, but also made rounds throughout the dorm inspecting the same areas as the roundsman, albeit at different times so as to keep inmates off balance. It was acknowledged by all the Defendant's witnesses that inmate movement was always at a set time of the day.

CO Nicotra explained that the roundsman or rover was given a two-way radio that was equipped with a pin which would activate an alarm should there be a problem which necessitated additional manpower. The desk officer also had a two-way radio, as well as a telephone, for communication purposes. Once inmates who were assigned to a specific program or wished to go to recreation left the dorm area, the desk officer was supposed to make rounds throughout the dorm area and generally mingle with the inmates who remained. Nicotra explained that, while unencumbered visual access of the cubicle area was not always available to the desk officer when he was checking each cube, he would be alerted to trouble by the noise or the sounds associated with "trouble." The desk officer was also required to maintain a log and record the "count" (of inmates), inmate movement and any unusual incident that might have occurred on his shift. Nicotra stated that, while the door between D-1 and D-2 was always locked, it was not unusual for the dorm officer on one side to open it and request an inmate to get the dorm officer on duty in the other dorm area, so that he could speak with him, but a dorm officer never left the area if he was alone on the floor.

On the day of this assault Nicotra recalled being alerted to a problem in D-1 and returning from his post to the rec area where then Sergeant (now Lieutenant) Bivins ordered the assembled correction officers to get all inmates in the area back to their respective cubes so that they could be examined for wounds. He was unaware of Nowicki's location when the fight occurred.

Lt. Bivins was the Housing Sergeant on the day of the assault. As such he was responsible for the A, B, C, D and E housing units, as well as other locations at Orleans. He explained that the dorm officer for D-1 has responsibility for the entire dorm area. The Watch Commander would make at least one round to each of the dorms during his shift. Cube frisks and common area searches for contraband were a part of the daily routine in the dorms, and on the 3:00 p.m. to 11:00 p.m. shift there were two cube frisks. On weekends, two dorms were randomly selected and inmates were taken off the unit to the gym where they would be pat-frisked or searched. Then the officers would go to the unit and search as many cubes as possible before the inmates returned. He stated that the desk officer could not remain at the desk the entire shift and was required to move about the unit also.

While he had no independent recollection of the incident, Lt. Bivins refreshed his recollection by referring to Exhibit C, his report of the incident, but had no independent recollection other than what he read. He did direct all inmates to be returned to their cubes and examined for injury. He sent Claimant to the infirmary for treatment and then ordered a search of the entire area for weapons, which resulted in two weapons being recovered. These weapons were similar to the ones used in the assault, but the authorities could not be sure if those weapons were the ones actually used.

On cross-examination Lt. Bivins reiterated that the dorm officer was assigned to the entire dorm area and not one location. He reinforced the fact that when the dorm officer is alone on the floor he is not, under any circumstance, to leave it. He acknowledged that, when there is inmate movement, inmates know that there is only one correction officer left on the unit. Lt. Bivins also testified that he had no facts to refute that the incident started in the No. 9 cube, nor was he ever aware that an inmate had told Nowicki that an officer from D-2 wanted to see him. Nowicki, when interviewed, never mentioned to Lt. Bivins that he had been called away to D-2, but he was informed by Nowicki that he was in the rec area when he observed Claimant with the fire extinguisher. From the report he was able to state that two misbehavior reports were issued against Claimant and inmate Quick and was unaware of any additional reports or charges against either inmate arising out of this incident. He noted that Quick and Claimant were confined to the Special Housing Unit (SHU) pending completion of the investigation and for their protection.

William Nowicki[4]
testified pursuant to subpoena regarding the incident in question. While he had no independent recollection of the assault, he reviewed the various reports of the altercation prior to testifying, all of which helped to refresh his recollection. As general background, he related that when he was the dorm officer he was in charge of all areas of the dorm he was assigned to. This meant that he made regular rounds within the dorm to check on the inmates including the bunk area, the laundry room and shower area, and the rec room. However, he pointed out that he did not do this at any specific time, choosing instead to vary his routine and timing so that inmates were unaware when he would be in these areas. The witness stated that he spent approximately 15% of his time at the desk. Other correction officers who were on duty would also be in and out of the dorm inspecting the various areas and observing inmates.
Apparently, Nowicki was returning to the sleeping area of the dorm when he first observed Claimant through the window separating the cube area from the rec room. At that time Claimant was apparently attempting to remove the top of a trash can or the can itself which was chained. He immediately notified the Watch Commander that there was a disturbance, left the area of his desk and entered the rec room. When Nowicki got into the rec room area Claimant had removed the fire extinguisher from the wall and was spraying the area. He ordered Claimant to give up the extinguisher and he did so without further incident. It was at that time that Nowicki noticed for the first time that Claimant was wounded and bleeding from the neck. He alerted his superiors and Claimant was ordered to go to the infirmary under escort.

Nowicki had no recollection or knowledge of the first altercation which occurred in the sleeping area. He stated that at the time of these incidents he was the only correction officer in D-1, since inmates were moving from the dorm either to programs or the rec areas, a circumstance which required the roundsmen or rovers assigned to D-1 to be on the walkways observing the inmates. When Nowicki reentered the bunk area he recalled observing only two or three inmates in the rec area adjacent to the sleeping area. He could not recall (1) being told by an inmate that a correction officer on D-2 wanted to see him or (2) leaving the D-1 area. In fact, he testified persuasively that he did not leave the D-1 floor area at any time prior to the second assault, but may have been making rounds within the D-1 area (
see Exhibit G).
At the close of Claimant's proof, and again at the conclusion of its case, the Defendant moved for dismissal of the claim and I reserved decision. I now grant the motion to dismiss.

At the outset, I wish to note that Claimant's trial counsel was retained by Claimant's attorney of record perhaps two weeks prior to this long-standing day certain trial. Given the obvious limitations he faced in conducting this trial, I commend him, as well as the Defendant's counsel, for their diligence, competence and professionalism.

One of the more troubling aspects of this claim is the inconsistency between Claimant's trial testimony and the statements he gave during the investigation of this incident. For example, he initially stated that the altercation centered around someone stealing inmate Quick's boots, not a Walkman (Exhibit O, pg. 2). In addition there is an ambiguous reference to the attack as being related to gang rivalry, coupled
with Claimant's admission in the unusual incident report that he was a gang member (Exhibit C, pg. 2).
At trial he stated that there apparently were two incidents and in his written statement he alludes to one continuous one. At trial he stated that the dorm officer was not present at either of these attacks and had left to go to D-2, yet in his written statement (Exhibit C, pg. 9), he stated that he had dozed off and awoke to see a group of Hispanic inmates at the foot of the bed, leaving me to wonder how he knew where Nowicki had gone or when he supposedly left.

I find Claimant's argument that improper supervision was a proximate cause of his injuries to be unpersuasive. Based on the credible evidence before me, the degree of supervision in place at the time of the incident was consistent with good and accepted practices at Orleans. Claimant called no expert to dispute this fact
, and despite Claimant's counsel's able cross- examination of the Defendant's witnesses, I find their testimony to be credible and persuasive.
It is apparent that the desk officer has a myriad of responsibilities during his shift that requires him to roam the entire D-1 area to observe inmate activities. The fact that Nowicki did not see the attack(s) or was not in the area of the assault(s) at the time of the occurrence(s) does not cast liability on the Defendant (
Sanchez v State of New York, 99 NY2d 247, 255, n. 4), certainly without proof that there was notice of a dangerous situation afoot. In this case, Claimant contends that he had first been attacked when Nowicki was not in the area of the cubes, but never informed him of this incident when Nowicki returned.
Had Claimant done so, putting aside his concern of being labeled a snitch, then his argument might have carried weight. I am cognizant of the fact that being labeled a snitch can, and usually does, result in retribution, but the Defendant cannot be said to have failed in its duty to exercise reasonable care in this situation when it had no notice, actual or constructive, that a dangerous situation existed. When this finding is coupled with the fact that Claimant had no prior problems with the group of inmates who attacked him and that he had not listed them on an "enemy list," Defendant's position that it violated no duty of care to Claimant is firmly established.

Reliance upon
Sanchez v State of New York, (99 NY2d 247, supra) does not benefit Claimant's theory of liability. Sanchez was an inmate-on-inmate assault case where a claim of negligent supervision was dismissed on summary judgment on the ground that the attack was unforeseeable as a matter of law, and the Court of Appeals merely concluded that the record raised a triable issue as to foreseeability. This holding occurred primarily, in my view, because the claimant there provided the unrefuted affidavit of an expert penologist who opined that the State's supervision of Sanchez on the night of the assault violated generally accepted penological standards of care, and the State, without providing any evidence to refute such assertions, was not entitled to summary judgment dismissing the case. In the claim at bar, Claimant provided no expert opinion.
The State's duty to prisoners 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, 99 NY2d 247, supra at 256). No evidence was presented that distinguishes this unfortunate assault from those present every day at any correctional facility.
Accordingly, the claim must be, and hereby is, dismissed. All motions not heretofore ruled upon are now denied.
The Clerk is directed to enter judgment accordingly.

September 30, 2005
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1] A portable audio device.
  2. [2] Quick was the original owner but had traded it to another inmate named "Jay", who, sometime after the trade, was going to the Special Housing Unit (SHU). Since Walkmen are not allowed in SHU, Jay gave it back to Quick for reasons that were unclear. Quick then gave it to Claimant to "hold," a term that was never explained.
  3. [3]Claimant stated that he had not requested protective custody after the attack but eventually was placed in involuntary protective custody.
  4. [4]At the time of the trial, Nowicki was employed as an air controller in Elmira, N.Y., having left the employ of the Defendant as a correction officer in 1998.