New York State Court of Claims

New York State Court of Claims

R. V. THE STATE OF NEW YORK, #2007-010-014, Claim No. 108458


Synopsis


Claimant who was sexually assaulted by correction officer did not establish defendant’s negligence.

Case Information

UID:
2007-010-014
Claimant(s):
KEVIN R.
1 1.Because the claim involves a victim of a sexual offense, the caption has been amended to protect his identity (see Civil Rights Law §50-b).2 2.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
R.
Footnote (claimant name) :
Because the claim involves a victim of a sexual offense, the caption has been amended to protect his identity (see Civil Rights Law §50-b).
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108458
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
ANDREW PLASSE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Barry Kaufman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 12, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant alleges negligent hiring, retention, and supervision and seeks damages for injuries he sustained during his incarceration at Downstate Correctional Facility (Downstate). Downstate is primarily a reception facility where inmates are temporarily housed until they are classified and transferred to a more permanent location. Claimant had been at Downstate for four or five days when, according to claimant, on October 31, 2002, Correction Officer Rodney Gladden, the officer assigned to housing unit 3A, had sexual contact with claimant on four occasions during Gladden’s 7:00 a.m. to 3:00 p.m. shift. The housing unit had 36 cells and only one correction officer was assigned to the unit. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant testified that he encountered Gladden for the first time on October 31, 2002 when the officers’ shift assignment changed and he was assigned to claimant’s housing unit. Claimant went to the officer’s station early in the day to get a pass. The officer’s station was also referred to as the bubble because of its plate glass windows surrounding the upper portion of the area. Claimant stated that he went to the side door of the bubble and Gladden fondled claimant’s penis and buttocks and they kissed. Thereafter, claimant proceeded with an escort officer to a meeting with a correction counselor. Claimant, however, did not report the incident to his counselor or to the escort officer.

Later that day, claimant purportedly had a second encounter with Gladden in the slop sink area. According to claimant, Gladden followed claimant to the slop sink and then kissed claimant and performed oral sex on him. Claimant then returned to his cell. Claimant did not report this second incident. Claimant could not recall the details of his alleged third encounter with Gladden. According to claimant, the fourth encounter occurred between 2:00 p.m. and 2:45 p.m. and lasted approximately 15 to 20 minutes in the slop sink area where claimant performed anal sex on Gladden. Claimant did not report this incident. However, at approximately 8:00 p.m. that evening, claimant was interviewed by Sergeant Mason. At that time, claimant reported the incidents with Gladden. Claimant also indicated that he had wiped his penis and groin with a paper towel and had saved the paper towel because it contained Gladden’s DNA and evidenced his sexual contact with claimant. Claimant requested to speak to someone from the Investigator General’s Office.

Claimant was immediately reassigned to the special housing unit. The next morning, he was interviewed by Investigator Elizabeth Ceballos from the Inspector General’s Office. Later that day, he was transferred to Sullivan Correctional Facility. Claimant was never issued a misbehavior report.

James Mason testified that on October 31, 2002, he was the sergeant in charge of housing 3 complex for the 3:00 p.m. to 11:00 p.m. shift.[3] In making his rounds, a correction officer gave Mason a sexually explicit letter written by claimant. The letter referred to the slop sink area and claimant’s preference to engage in sexual activity in his cell with the unidentified intended recipient of the letter (id.). Mason immediately began an investigation of the matter and interviewed claimant. Claimant was initially reluctant to discuss the letter, but eventually revealed that it was intended for Gladden and that Gladden was the individual with whom he had had the sexual encounters. Claimant reported that he had something hidden in his cell. Mason secured claimant’s cell and the slop sink and notified the watch commander.

Mason was not aware of any prior inmate complaints regarding Gladden. He also testified that it was standard procedure for one officer to be assigned to a 36 cell housing unit with an escort officer for every two cell blocks and that the staffing had not posed any security problems in the past.

Sergeant Steven Sassi testified that he has been employed by DOCS for 26 years and has been a sergeant for the last five of those years. He has been assigned to Downstate for his entire career. On October 31, 2002, Sassi was the area supervisor for housing units 3A through 3H during the 7:00 a.m. to 3:00 p.m. tour. He explained that each block had 36 cells with one correction officer assigned to each block. There was also an escort officer assigned to every two blocks. He maintained that this was customary staffing. Sassi also testified that on October 31, 2002, as noted in the logbook, he was on housing unit 3A making rounds (Ex. 1). The logbook also revealed that Correction Officer Perry had escorted inmates on that day (id.).

Investigator Elizabeth Ceballos testified that she has been employed by the New York State Department of Correctional Services (DOCS) for 24 years and has been assigned to the Inspector General’s Office for 11 years. Her responsibilities included investigating allegations of sexual conduct between inmates and staff. She was assigned to investigate claimant’s complaint.

In the early morning hours of November 1, 2002, Ceballos reported to Downstate and interviewed claimant. At that time, claimant told Ceballos that he had had sexual contact with Gladden. Claimant conceded that he had not complained to any correction officers or staff before reporting the incident to Sergeant Mason. Ceballos secured claimant’s cell and retrieved paper towels which, when tested, revealed the presence of DNA from both claimant and Gladden (Ex. 2). She also reviewed facility logbooks, cellbooks and Gladden’s personnel folder. There were no prior complaints about Gladden regarding sexual conduct or inmate abuse. Ceballos did not question Gladden because, inter alia, he was not on duty. Gladden was placed on administrative leave and resigned from DOCS in February 2003.

It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks 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). In the instant case, there has been no showing that defendant knew or should have known that Gladden might engage in inappropriate sexual conduct. There had been no prior complaints regarding Gladden and there was no reason to believe that he posed any risk of engaging in such conduct. Accordingly, there is no basis for holding defendant vicariously liable for Gladden’s conduct on the theory of respondeat superior as Gladden’s conduct was not foreseeable or a natural incident of his employment (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932; State Farm Ins. Co. v Central Parking Sys., Inc., 18 AD3d 859). Rather, Gladden’s conduct was clearly a departure from the scope of his employment and committed for wholly personal motives (see N.X. v Cabrini Med. Ctr., 97 NY2d 247 [sexual assault by hospital employee was not in furtherance of hospital business and was committed wholly for personal motives; therefore hospital was not vicariously liable]). Further, there was no evidence that Gladden’s conduct was condoned, instigated, or authorized by defendant (see Yeboah v Snapple, Inc., 286 AD2d 204 [assault by employee was neither condoned, instigated nor authorized by employer; therefore employer could not be held vicariously liable]). Rather, the evidence established that, once defendant learned of the complained of conduct, defendant responded in a timely and appropriate manner (see Martinez v Triangle Maintenance Corp., 293 AD2d 721, 722).

Additionally, on the evidence presented, defendant cannot be held liable under the theories of negligent hiring or negligent supervision (see State Farm Ins. Co. v Central Parking Sys., Inc., supra; Well v Yeshiva Rambam, 300 AD2d 580). There has been no showing that the level of supervision and staffing in the facility was less than adequate or contributed to the likelihood that such activity would occur under the circumstances (see Sanchez v State of New York, 99 NY2d 247). Indeed, Sergeant Sassi testified that he spent his 26 year career at Downstate and the staffing employed on October 31, 2002 was customary for the number of inmates in the area. Lieutenant Mason also testified that the staffing on that day was standard and had not posed any security problems in the past. Accordingly, claimant had failed to meet his burden regarding the claim of negligent supervision (see Judith M. v Sisters of Charity Hosp., supra [defendant hospital established it acted with reasonable care in hiring, retaining, and supervising its employees]).

In sum, upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant failed to establish any basis for holding defendant responsible for Gladden’s inappropriate conduct (see Doe v State of New York, 267 AD2d 913 [State not liable for alleged rape by state trooper]).

Accordingly, defendant’s motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 108458.

June 12, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[3]. Mason has since been promoted to lieutenant.