KENNETH H. V. THE STATE OF NEW YORK, #2008-016-018, Claim No. 101841
After a court order for protective custody was not implemented in a timely
fashion, incarcerated claimant who was then sexually assaulted was awarded
$75,000 for past pain and suffering and $20,000 for future pain and
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
John D. B. Lewis, Esq., and Gary E. Divis, Esq.
Andrew M. Cuomo, Attorney
Generalby: Ralph Bavaro, AAG
May 1, 2008
See also (multicaptioned
This is the decision following the trial on damages of the claim of Kenneth H.
The events that led to Mr. H.’s cause of action began with his arrest for
grand larceny on September 15, 1998. H. was arraigned in Criminal Court of the
City of New York, New York County. Unable to make bail, claimant was remanded
to the custody of the City’s Department of Correction, at its Rikers
On September 16 and 17 at Rikers, H. was sexually assaulted several times. At
his next court appearance, which had been set for September 18, H. instructed
his lawyer to ask for protective custody. She did so and the Court ordered
However, H. was not placed in protective custody until September 24 or 25, and
on September 21, the inmate who had previously assaulted claimant returned and
forced him to perform a sexual act. H. limited his claim against the State of
New York to the September 21, 1998 assault and liability was found therefor.
H. v State of New York, 36 AD3d 511, 828 NYS2d 355 (1st Dept 2007).
The Claim for Damages
On the witness stand, H. described what he felt when his assailant entered his
cell on September 21, and claimant was again forced to commit a sexual act:
“Betrayed. I couldn’t believe it was happening again. Humiliated,
With the inquiry involving a longer time frame, consider this exchange:
Q. Mr. H., did you think about being sexually attacked on September 21, 1998
during your imprisonment . . . when you thought about it how did you
A. I felt very betrayed, afraid, humiliated, powerless and worthless.”
Convicted of grand larceny in the third degree, H. was in prison for over four
years, and was paroled on November 22, 2002. At the damages trial, he testified
I still have a lot of trust issues. I have a lot of fear. I, own my own gym and
I’m afraid to take a shower in it. I don’t like to lock it up at
night by myself. I remember taking a shower at home and the cat hit the shower
curtain and I balled up in a corner, crying.
H. added that he had trouble sleeping, would “wake up in the middle of
the night in sweats . . . I yell out at night.” Then claimant gave as an
example of his trust issues that if his partner told H. to meet him and was ten
or fifteen minutes late, “I’m thinking he’s not going to show
up, what’s he doing? I can’t trust him, where is he? Another let
At trial, on November 27, 2007, claimant called to the stand Dr. Richard G.
Dudley, a board-certified psychiatrist, who has served as a commissioner on the
National Commission of Safety and Abuse in America’s Prisons. Dr. Dudley
met with claimant on four occasions, three times in March and April of 2007 and
the fourth time on the day before both men testified here.
Dr. Dudley concluded that H. suffers from posttraumatic stress disorder (PTSD),
which he described as arising from a severe stressor. The psychiatrist
testified that a life-threatening occurrence is a severe stressor, as is a
“significant threat to your physical integrity [and] rape is always given
as one of [the] examples of the kinds of traumatic events that could cause the
development of PTSD.” Dr. Dudley explained that the central feature of
this kind of disorder is “overwhelming anxiety and avoidance
The psychiatrist concluded that the subject assault of September 21 caused not
only horror and fear, but helplessness, particularly when he believed he had
done everything he could to protect himself, referring to the protective custody
he had sought on September 18, 1998.
Dr. Dudley testified that H. had indicated to him the first symptom of PTSD,
namely that of re-experiencing the traumatic event: “[I]n my,
examinations of Mr. H., he talked about having recurrent dreams, that these
dreams would wake him up, nightmares would wake him up, sweating, frightened,
that he would be talking and thrashing and moving in his sleep.” Dudley
Things that remind him of sexual assault will trigger that kind of fear . . .
that he felt at the time of the assault . . . [T]here are times when he for no
particular reason will think about this assault, while he’s in the midst
of doing something else and thoughts will come into his head about the
experiences of twenty-one of September and those will be distressing as well.
Dr. Dudley stated that claimant told him he had difficulty falling asleep and a
level of irritability that he did not have before what the psychiatrist called
“these events . . . in ‘98." Further, H. is “always worried
that something else is going to happen, being overly careful,” what Dr.
Dudley termed “hyper vigilance” and that claimant has an increased
“startle response,” as when someone taps him on the back.
Defendant points to the more severe nature of earlier sexual attacks on H.:
- In 1995, while incarcerated, he was gang raped at Downstate Correctional
Facility, which he believes caused him to become HIV positive:
Q. And as a consequence of that rape, you contracted HIV, correct?
A. I believe that’s what I said in the report, yes. I’m not denying
Q. And I take it that was a traumatic
According to the records of the Central New York Psychiatric Center, he was also
raped in 1995 at the Oneida Correctional Facility (cl exh 5, p. 6).
- Claimant was attacked twice on September 16, 1998, and once the next day. In
the first attack on September 16, in his deposition testimony (of January 2001),
H. stated that “The inmate had a sharp object and he used that to my
neck.” At trial, he was unclear whether any sharp object was used, but
As I said, I recall there being a sharp object. I don’t recall which
attack in all the attacks it was used. I know there was more than once.
During the September 16 and 17 assaults, claimant was forced to submit to anal
penetration and to perform fellatio:
Q. Question: Was the first incident a sexual assault of some kind?”
Answer: Yes, ma’am.” Question: “And what did that
involve?” Answer: “I believe the correct term would be fellatio and
anal penetration.” Were you asked those questions and did you give those
Q. Okay. The next attack on September 16th, several hours later was anal
penetration only, correct?
A. I believe so, yes.
Q. The next attack on September 17th was oral and anal penetration,
The September 21 assault that is the subject of this lawsuit occurred as
Q. . . . [Y]our assailant came into your cell, he asked you to pull down your
pants, lean over the sink, is that right?
Q. And you pleaded with him not to perform anal penetration, right?
Q. And he complied with your wish right?
Q. And there was no contact with your anus on that occasion, right?
Q. There was not?
Q. And instead he forced you to kiss his penis, right?
Q. And he did not ejaculate?
Defendant went on to elicit from H. that he did not sustain any physical injury
(“not to my recollection”).
Whether physical penetration occurred or whether a weapon was displayed, is not
the point; the subject attack of September 21 was frightening and deeply
unsettling. H.’s personal integrity was again invaded, after he was
promised protection via court order. Such was not promptly implemented, and
claimant naturally felt helpless and vulnerable.
Following the September, 1998 assaults, H. did not seek any psychiatric
counseling or therapy during his time in prison until his release on November
22, 2002, although, to this trier of fact, he may have felt uncomfortable doing
so in that setting.
Following his release, claimant underwent counseling at Callen Lorde Community
Health Center in Manhattan (cl exhs 3 & 4). H. had six sessions with social
worker Karliese Greiner from December 20, 2002 to April 18, 2003 (cl exh 3).
The opening note from the first session reads as follows:
Clt seeking reentry into society aft. 8 yrs incarceration. He already has gained
tremendous awareness and insights into self but wants to examine self more
deeply. Doesn’t want to recreate mistakes of the past [first 28 years of
The consult notes relate to H.’s family, job searches and personal
relationships. There is no specific reference to any sexual assault. There are
references to trust issues with one sentence reading : “Issues with
trust, would like to explore new relationships but needs to get himself
reestablished in the world and is already actively looking for work [has only
been out of jail for 3 weeks]” (id., the 12/20/2002 consult). The
next session contains the following note: “Primary presenting problems are
issues with trust and relationships” (the 1/31/2003 consult).
Ms. Greiner wrote that Mr. H. was able to express his feelings and
“boundaries” clearly and concisely even though he has many stressors
in his life, which he listed as work, relationship issues and family issues
As of mid-2003, Ms. Greiner was no longer affiliated with Callen Lorde, and H.
was seen by social worker Paul Hays from June 3, 2003 through February 24, 2004,
some two dozen times (cl exh 4). The July 1, 2003 session notes refer to
H.’s lack of trust with a friend, M.
The July 15, 2003 entry mentions his “victim role,” in this
Clt [client] and T [therapist] refocus exploration on issues more related to him
as opposed to his rel [relationship] with M. Clt would like to examine his
victim role saying that he does not want to be one but wonders if he still falls
into that and if it affects his rels. Clt would also like to get a better sense
of his feelings about having HIV and having a prison record. Do these things
make it easier for him to stay with M despite the problems they have been
The only direct reference to claimant being assaulted while incarcerated was in
the first consult with Hays on June 3, 2003, and H. spoke only of the 1995
Clt reports that he has moved thru his gang rape and HIV dx (1995), having had 8
yrs of time for introspection while incarcerated, does not feel the need to
focus on these issues at this time.
Note that the previous sentence in the initial consult with Mr. Hays, referred
to “his struggle to trust others, particularly in the context of rels
[relationships] . . .”
Claimant, per his post-trial submission, would place what happened to him
within the purview of the following concepts:
- Although there were prior sexual attacks, the September 21, 1998 assault
aggravated his psychological and emotional state (PJI 2:282).
- Even assuming the September 21 attack, by itself, is properly characterized
as of less severity than prior sexual assaults, if by such date, H.’s
state was the psychological or emotional equivalent of the proverbial
thin-skulled plaintiff, then “defendant must take his plaintiff as he
finds him.” (Claimant citing Warren’s Negligence in the New York
Courts, §238.01 n. 3, as well as PJI 2:283 on increased
susceptibility to injury).
In any event, these principles must be applied to the facts at hand. What
was factually established here is that following multiple sexual assaults within
a few days (as described above), claimant’s lawyer secured a court order,
which was not implemented in a timely manner, leaving H. vulnerable to the
September 21 assault, as described above. It was also established that claimant
was sexually assaulted in prison in 1995.
As for a long-term impact, Dr. Dudley testified at trial on November 27, 2007
that H. suffered from posttraumatic stress disorder. This conclusion is based
on what H. told Dr. Dudley as to what he felt, experienced and so forth (the
same or similar ground covered by claimant in his trial testimony).
To this trier of fact, H. lacked credibility. Claimant’s statements at
trial and to his doctor about the effects of the September 21, 1998 assault as
to his fears and lack of trust etc. are inconsistent with his counseling
sessions at Callen Lorde, his ability to own and manage a business and to
sustain long-term personal relationships. Claimant was evasive on the witness
stand; his demeanor did not inspire confidence in his truthfulness.
Additionally with respect to credibility, defendant cited H.’s four felony
The relevant portion submitted by claimant from the Diagnostic and
Statistical Manual of Mental Disorders of the American Psychiatric
Association (DSM-IV-TR) provides that the characteristic symptoms of PTSD are
“persistent reexperiencing of the traumatic event . . . persistent
avoidance of the stimuli associated with the trauma and numbing of general
responsiveness . . . and persistent symptoms of increased arousal . . .”
(cl exh 2). Claimant did not prove that any of these symptoms obtained.
The defendant’s board-certified psychiatrist, Dr. Paul Nassar, who
conducted an examination of H. on August 1, 2007, further deflated the PTSD
argument. Dr. Nassar concluded that PTSD is a symptom of too much memory, which
H. does not present; that claimant has been able to enter into reasonably
well-functioning relationships; that he has good coping skills; and that his
focus during the counseling at the Callen Lorde Center was on building and
maintaining relationships, not on the prior sexual assault or assaults. Nassar
added that victims of sexual assault are not as comfortable with their bodies,
and displaying them, as H. is with his. (Defendant’s exhibit B is Dr.
Nassar’s eleven-page report).
The assault on H.’s personal integrity and the resulting helplessness
because the State failed to protect him after promising to do so was a serious
one. Over the years, there may have been some sequelae, for example, memories
affecting sleep, but the significant damage to claimant was suffered when the
attack occurred and for some period of time thereafter.
In view of the foregoing, I find that claimant Kenneth H. is entitled to
$75,000 for past pain and suffering and $20,000 for future pain and
Accordingly, the Clerk of the
Court is directed to enter judgment in the amount of $95,000, with interest to
run from January 23, 2007, the date that liability in this matter was first
To the extent that claimant has
paid a filing fee, it may be recovered pursuant to subdivision two of §11-a
of the Court of Claims Act.
May 1, 2008
New York, New
HON. ALAN C. MARIN
Judge of the Court of Claims
. The transcript volume 1, page 90, line 11
has the word “dramatic,” not “traumatic.” Listening to
the tape recording indicates that the latter word was used. Line 4 on the same
page of the transcript reads “getting raped”; the tape recording
indicates that the phrase was “gang raped.”
. But on that issue, defendant cites the
September 25, 1998 consult at St. Barnabas Hospital to the effect that:
“He does not at this time experience anxiety, depression, insomnia,
nightmares, flashbacks, intrusive thoughts, avoidance/numbing, exaggerated
startle or hyper vigilance.” Def exh C.
. See Morales v State of New York
Misc 2d 839, 845-46, 705 NYS2d 176, 180 (2000), affd
282 AD2d 245, 722
NYS2d 860 (1st Dept 2001).
. Claimant was born in January of 1966 and has
a life expectancy of 35 years (PJI
Vol 1B, App A, Table 2).
. See Lifshits v Variety Poly Bags
AD3d 622, 795 NYS2d 657 (2d Dept 2005), lv dismissed
5 NY3d 847, 805
NYS2d 547 (2005); Niles v Shue Roofing Co., Inc.
, 244 AD2d 820,
666 NYS2d 282 (3d Dept 1997).