New York State Court of Claims

New York State Court of Claims
CHICLANA v. THE STATE OF NEW YORK, # 2010-029-033, Claim No. 113408

Synopsis

State not liable for assault by one inmate on another at Bedford Hills Correctional Facility.

Case information

UID: 2010-029-033
Claimant(s): ANA IRIS CHICLANA
Claimant short name: CHICLANA
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113408
Motion number(s):
Cross-motion number(s):
Judge: STEPHEN J. MIGNANO
Claimant's attorney: BARTON BARTON & PLOTKIN LLP
By: Thomas P. Giuffra, Esq.
Defendant's attorney: ANDREW M. CUOMO, ATTORNEY GENERAL
By: Jyotsna Gorti, Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 13, 2010
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On January 20, 2005 at about 10:50 a.m., claimant Ana Iris Chiclana, an inmate at Bedford Hills Correctional Facility, was stabbed in the eye with a ballpoint pen wielded by another inmate, Corenna Ward. That fact is undisputed. What is at issue in this claim is claimant's contention that the incident was the result of negligence on the part of defendant's employees at Bedford Hills.

Correction Officer Osas Imafidon was an eyewitness to Ward's assault on claimant. He testified that both women were residents on the B side of the Intermediate Care Program (ICP), which he described as a unit for inmates with behavior problems. There were 16 inmates on the B side and two correction officers - one in the bubble and one, Imafidon, in the corridor of the unit. The inmates were confined to their cells part of their day but at the time of the assault upon the claimant, the inmates were not locked in their cells. Imafidon witnessed the following:

"A group of inmates were having recreation. Inmate Chiclana - Ms. Chiclana, she was one of the inmates having recreation. Inmate Ward, she was not having rec. She was in her cell. When they were having rec., I observed her - she exited her cell. She walked towards Ms. Chiclana. When she got close to her, she swung - swung her right hand towards the face of Ms. Chiclana. When she did that, she - she ran back to her cell while Ms. Chiclana, she screamed, 'she stabbed me.' She ran towards the bubble and I ran behind her towards the bubble. When we got to the bubble, she was standing by the door. She was screaming, 'she stabbed me, she stabbed me.' "

(Trial Minutes, pp 10-11)

Claimant was escorted to the clinic by the bubble officer and Imafidon retrieved the "assault weapon" - a blood-covered ballpoint pen - and completed an Inmate Misbehavior Report charging Ward with assaulting claimant (Exhibit 1, p 134).

January 20, 2005 was Imafidon's first day assigned to the ICP unit. He testified he was not aware that Ward had made threats against other inmates or that she had assaulted staff members. He was also not aware of claimant having expressed any concerns about her safety.

Claimant testified she had been assigned to the ICP unit from the time of her arrival at Bedford Hills through the 2005 incident in question. She stated that she knew Corenna Ward as a "dangerous person" (T.M., p 91) who would set fires, flood cells, and hurt herself, other inmates and staff members. She claimed she complained to her therapist, Ms. Mannis, about Ward many times and that she also spoke with Deputy Schneider about Ward. According to claimant, Ward would look at her, roll her eyes and "tell me that she would get me in a low voice" (id., p 92). She testified that she told the therapist that Ward had threatened her and that she was scared because she had set fires in the past but that the therapist would pat her head and tell her everything was going to be all right and that she was too sick to go from ICP to general population.

On the day of the incident in question, immediately prior to the assault, claimant and Ward had argued. As claimant described the events:

" . . . one of the ladies, an elderly lady next to me told me - told the officer she wanted to take a bath. The officer said, no. I said that I took a bath and Corrina Ward said, she wasn't supposed to take a bath. I said, mind your own business. And she told me, she went like this with her hand (indicating) and she said, I'll get you, in a low voice. Again she said it but I didn't know what she meant. I didn't think I was in really - you know, any danger. But I know she - I knew she was a threat, but then I was watching TV with - I was watching the aerobics on TV and we were at rec. and I was watching the aerobics on TV, and all of a sudden, I felt a sharp pain in my eye and the blood started to come out."

(Id., pp 93-94).

On cross-examination, claimant added that after Ward said that the elderly inmate was not supposed to take a bath, claimant said to her "leave me alone, you burned up b-i-t-c-h" (id., p 104).

Captain Lawrence Hammond was a lieutenant at Bedford Hills at the time of the incident in question and his duties included making rounds on the ICP, "a housing unit designed for inmates who had disciplinary problems and mental health issues at the same time" (id., p 71). He stated that ICP inmates have less freedom than inmates in general population, although the level of security is roughly the same. According to Hammond, inmates in the facility are allowed to have ballpoint pens, unless they utilize a pen to create an infraction, in which case a deprivation order can be issued. So if an inmate uses a pen as a weapon or threatens to do so, or holds a pen in a threatening manner, officers could restrict the inmate's ability to possess a pen.

Hammond indicated that the correction officers would work with mental health staff in addressing behavior issues of ICP inmates: "[t]he mental health staff and the security staff are required to have weekly meetings . . . at which they discuss the various behavior issues and mental health issues of the inmates who live on the ICP program" (id., p 40). He was aware that Ward had an extensive disciplinary history prior to the attack on claimant, including setting fires and floods and at least one incident that involved an attack on a staff member. He could not recall being aware of any prior attacks on other inmates nor was he aware that Ward had ever threatened to harm another inmate, although he stated that given his rank, it was not something he would have been aware of. All of the ICP inmates had "disciplinary sanctions and mental health issues that precluded them from long-term confinement on special housing" (id., p 72).

Kathryn McDermott, who holds a doctorate in clinical psychology, is the Forensic Unit Chief at the Office of Mental Health's satellite unit at Bedford Hills, responsible for overseeing mental health treatment at the facility. She referred to the unit that claimant and Ward were on - referred to at trial as the ICP and defined only by C.O. Imafidon as the "Intermediate" Care Program- as the "Intensive" Care Program. Regardless of the correct nomenclature, claimant and Ward resided in the Behavior Unit of the ICP which was designed "for patients who had a history of behavior problems, disciplinary, in addition to mental illness" (id., p 261) and was operated so that the inmates had two hours of group therapy with OMH staff each morning and two hours in the afternoon. Dr. McDermott advised that Ward had been incarcerated since 1992, was "high profile from an OMH standpoint," exhibited a lot of behavior problems, mostly self-injurious behavior, and had a diagnosis of schizoaffective disorder (id., p 258). She described Ward as unpredictable and potentially violent and self-abusive and noted she had been back and forth between Bedford Hills and the Central New York psychiatric facility at least 18 to 20 times between her admission to Bedford Hills in 1992 and the January 2005 attack on claimant.

Asked by claimant's counsel whether inmates on the ICP unit could have specific limitations placed on their activities more severe than those generally applicable on the unit based on their individual propensities, a question obviously aimed at the policy that allowed all ICP inmates access to ballpoint pens, the doctor responded by stating that unit policy was what it was and that if a particular inmate could not function within those policies, she would be transferred to a different setting, such as a crisis unit or the Central New York facility.

Helen Mannis, a psychiatric social worker at Bedford Hills, was claimant's counselor during the period leading up to January 2005. She testified that claimant complained about many things, at times was delusional and paranoid and at times complained of being persecuted by the security staff, but she never once complained about a specific inmate and never said she was afraid of any inmate, including Ward.

The essence of claimant's claim of State negligence was contained in the testimony of Daniel Vasquez, a 36-year employee of the California Department of Corrections who was Associate Warden at Soledad State Prison and Warden of San Quentin State Prison for ten years before retiring. Defendant objected to Vasquez being qualified as an expert and his testimony was admitted over objection, with the parties invited to address the objection - essentially that Vasquez's experience in California was not relevant to issues concerning policy and procedure in New York facilities - in their post-trial submissions. The court finds no grounds to strike Vasquez's testimony. The weight to be afforded his testimony will be addressed but the fact that his experience was in California and not New York is not a basis for preclusion.

Vasquez testified that he was familiar with programs such as the ICP program at Bedford Hills because similar programs exist in California facilities. He disagreed with some aspects of how the Bedford Hills program was run, particularly that inmates were selected by corrections personnel to be in the program whether they wanted to or not, which he felt was not advisable because there's no accountability on the part of the inmate and no incentive to make the program work.

With respect to Corenna Ward, Vasquez's opinion was that she should not have been able to walk around the ICP unit on the date she assaulted claimant because of her prior disciplinary history - Vasquez asserted she had a track record of violent conduct - in particular an assault on a staff member in December 2004. He stated it was shocking to him that she could have been involved in such an incident and not have been confined to special housing (SHU) or keeplock a few weeks later (see Exhibit 7, pp 239-240, Superintendent's Hearing Disposition, in which the hearing officer noted that claimant's "mental state" was considered to be a contributing and mitigating factor).

Vasquez asserted that there are some inmates who cannot be allowed to interact with other inmates and must be perpetually confined to special housing or isolation. He opined that, based on her record, Corenna Ward should have been housed in SHU in January 2005, not on the ICP: "she had no business in that program" (TM, p 165). That record included multiple incidents of violent conduct, including the December 2004 assault, arson and fighting with other inmates. It did not include assaulting other inmates or using a pen as a weapon.

A second point of disagreement between Vasquez and the State officials who ran the ICP program was whether inmates on the ICP unit should have been allowed access to ballpoint pens. Unit policy allowed for possession of pens, as was the case in general population, while Vasquez felt that pens should have been banned in the ICP.

On cross-examination, Vasquez acknowledged that his experience was not in the mental health field and he did not know the nature of Ward's illness. He noted that in California, inmates in psychiatric units are not allowed to have pens while in New York they are and, while his disagreement with that policy was a central point in his testimony, he conceded that different states had different policies with respect to mentally ill inmates "[a]ccording to the resources that they have available and what they think they can do with them" (id., p 221). This statement by Mr. Vasquez places this matter squarely within a discretionary decision and policy analysis.

* * *

The law governing potential State liability for an inmate-on-inmate assault in a State correctional facility was restated in Sanchez v State of New York (99 NY2d 247 [2002]):

"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates . . . That duty does not, however, render the State an insurer of inmate safety. Like other duties in tort, the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable."

(id., 252-253 [citations omitted]). The Court clarified that "reasonably foreseeable" means actual or constructive notice - not only what defendant's employees knew but what they had reason to know - but at the same time the Court stressed that:

"the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and 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."

(id., 256).

In decisions favorable to claimants, the requisite foreseeability element is generally found upon proof of actual or constructive notice that (1) the victim was at unusual risk of being attacked, (1) (2) the perpetrator had an unusual propensity to attack, (2) or (3) the surrounding circumstances were likely to have engendered or facilitated an attack. (3) Claimant had advanced arguments in support of a finding of liability under each of these three broad categories.

Initially, the court rejects the contention that defendant's employees had actual notice of the likelihood claimant would be assaulted by Ward by virtue of her alleged statements to her therapist and to a deputy superintendent that she was in fear of Ward. This testimony was flatly contradicted by the therapist and the court finds absolutely no credible proof that claimant ever complained about Ward or in any manner made known that she was in fear of her. There was also no proof that defendant's employees were aware of any heightened tension between claimant and Ward that morning arising from the exchange of words related by claimant.

Claimant's essential contention was that it was negligence to have housed Ward on the IPC unit, given the level of security there and given her prior record. That conclusion - based solely on the testimony of a witness who is an expert in security matters but a lay person with respect to mental health matters - was not supported by evidence that Ward's record should have disqualified her from residence on the unit. More importantly, it ignores the basic principle that decisions as to inmates' placement in the therapeutic unit were based on mental health as well as security considerations. All of the inmates on claimant's unit had disciplinary problems and all were diagnosed as mentally ill. As Dr. McDermott testified:

"the whole purpose of the Behavior Unit is that the mentally ill should not be placed in isolation - for 23 hours a day. They need treatment, and so the idea of the Behavior Unit is they are locked in their cell except for treatment, which is four hours a day. So they are - they come out for groups, then depending on - part of the Behavior Unit is you earn good behavior, so you can earn more time out of your cell"

(TM, p 281).

In other words, the policy of the State of New York, as reflected in Dr. McDermott's testimony, is diametrically opposed to claimant's expert's conclusion that Corenna Ward should have been housed in SHU rather than on the IPC unit because the State has determined to address mentally ill inmates who cause disciplinary problems in a different manner than Vasquez would were he making the decisions. (4) Since claimant produced not one iota of evidence that defendant's policy in this regard was not reasonable, all that was shown was a difference of opinion among experts - with claimant's expert lacking any expertise as to the mental health side of the equation - not any negligence on the part of the State of New York.

Indeed, the decisions involved (1) in addressing inmates with mixed mental health and disciplinary problems on a special unit, (2) in determining the level of security on the unit including whether to allow possession of pens, and (3) the specific decision to house Ward on the IPC unit and not in SHU, notwithstanding that she committed offenses that would justify SHU confinement, are exactly the types of decisions discussed in Arteaga v State of New York (72 NY2d 212):

"What, if any, disciplinary action to take in a given situation is a matter requiring consideration of broad policies and general objectives in the application of the governing rules and regulations to the particular circumstances. Where some correction officers might think it necessary to confine an inmate, others, because they considered the infraction to be less serious or evaluated the inmate's behavior pattern differently, could reasonably conclude otherwise. Similarly, what some Hearing Officers might regard as barely enough proof to warrant a finding of guilt in a Superintendent's hearing, others might reasonably reject as insufficient.

"Like the decisions of the Board of Parole in Tarter v State of New York (supra), and of the probation officer in Tango v Tulevech (supra), the actions of Correction Department employees in preparing and filing misbehavior reports, confining inmates, and making dispositions following Superintendents' hearings entail discretionary decisions in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results (see, Tango v Tulevech, supra, at 41). We conclude, then, that actions of correction employees, in circumstances such as those here, are quasi-judicial in nature and deserving of absolute immunity. In carrying out their duties relating to security and discipline in the difficult and sometimes highly stressful prison environment, correction employees, like other officials with quasi-judicial responsibilities, should not be inhibited because their conduct could be the basis of a damage claim (see, Tarter v State of New York, supra, at 518; Butz v Economou, 438 US 478, 514)."

(id., 219).

In accord with these principles, the court finds that claimant failed to prove that it was negligent to establish the IPC unit, that it was negligent to allow inmates on the unit to possess ballpoint pens or that it was negligent to house Ward on the unit. Claimant also failed to prove that defendant's employees were aware or should have been aware of any heightened risk to her, or any particular danger posed by Ward over and above the risks and dangers that are an integral part of a unit of a maximum security prison designed to house mentally ill inmates with disciplinary problems. While the assault upon claimant was tragic, it was not the result of negligence on the part of the State of New York. Accordingly, the Clerk of the Court is directed to enter judgment of dismissal.

August 13, 2010

White Plains, New York

STEPHEN J. MIGNANO

Judge of the Court of Claims


1. See e.g. Sebastiano v State of New York (112 AD2d 562 [3d Dept 1985]); Douglas v State of New York (Ct Cl, Sise, P.J., Claim No. 108585, UID No. 2007-028-012, May 17, 2007); Collins v State of New York (Ct Cl, Mignano, J., Claim No. 100508-A, UID No. 2007-029-040, Oct. 5, 2007).

2. See e.g. Blake v State of New York (259 AD2d 878 [3d Dept 1999]); Littlejohn v State of New York (218 AD2d 833[3d Dept 1995]).

3. See e.g. Sanchez v State of New York (99 NY2d 247, 254-255 [2002]); Blake v State of New York (259 AD2d 878 [3d Dept 1999]); Huertas v State of New York (84 AD2d 650 [3d Dept 1981]); Gangler v State of New York (Ct Cl, Midey, J., Claim No. 96352, UID No. 2006-009-159, March 29, 2006).

4. Ward's mental state was taken into account as a mitigating factor in assessing discipline after the December 2004 incident.