After unified trial, claimant failed to establish State liability for assault by fellow inmate. Claimant himself minimized earlier verbal exchanges with attacker when voicing complaint to housing officer. No showing that level of observation inadequate, or against penological standards of care.
|Claimant short name:||BLAYLOCK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||MICHAEL BLAYLOCK, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, ATTORNEY GENERAL
OF THE STATE OF NEW YORK
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||November 22, 2010|
|See also (multicaptioned case)|
Michael Blaylock alleges in his claim that defendant's agents at Fishkill Correctional Facility failed to protect him from an unprovoked assault by a fellow inmate on February 4, 2005. Trial of the matter was held on October 25, 2010.
Mr. Blaylock testified that at 6:50 p.m. on February 4, 2005 he was in his cell, when he was attacked by an inmate named Douglas, while Correction Officer Borden, "assigned to provide security . . . sat at his desk approximately 25 feet from [claimant's] room."(1) He said, the correction officer allowed the assailant to walk "right past him with a metal pipe over one foot long into [claimant's] room." When Douglas came into the cell, he "lunged over another inmate, Carrington" to whom claimant was talking at the time. Douglas struck claimant "multiple times" on his right hand, back and head and "upper regions", causing damage to ligaments in his right hand, for which he is "still wearing a brace today," and his shoulder, with lacerations to his hip. [9:41]. Claimant said that "rather than taking measures to physically subdue Douglas" the correction officer instead "stood off shouting orders for inmate Douglas to 'stop', before pulling his radio alarm." After "several moments" of the officer "directing Douglas to stop, and place his hands on the wall, inmate Douglas reluctantly" did so. Claimant, too, placed his hands on the wall. Once both he and his assailant were on the wall, Detective Sergeant Swanson and several other officers "finally" arrived on the unit, and inmate Douglas was placed in handcuffs.
Mr. Blaylock was escorted to the infirmary. He was visually examined, and videotaped by officers, and thereafter treated. He had lacerations on his head, he was given ice, bacitracin, pain medication and then he was sent to special housing unit [SHU]. He said he was experiencing pain in his hand and dizziness, and was ultimately referred to an orthopedist. He was prescribed a "joint jack splint" which he was wearing at trial, and said he may require surgery. Portions of his ambulatory health record were attached to the claim, and confirm that he received some medical treatment, and contemporaneously advised that he was hit with a pipe.
A misbehavior report citing Mr. Blaylock for three facility rule violations, namely, violating a direct order, fighting, and creating a disturbance was submitted. [Exhibit 2]. Therein, officer Borden writes:
"On [February 4, 2005 at approximately 6:50 p.m.] I . . . was at the officer's desk of Housing Unit 21, updating the logbook. While there, I observed inmate Douglas . . . walk by my desk and move toward inmate Blaylock's . . . room. I heard a noise to my left. Turning toward the noise, I observed inmates Douglas and Blaylock fighting in the hall. Both inmates were hitting each other repeatedly. I then pulled my alarm. At this point, I noticed that inmate Douglas was striking inmate Blaylock with an object in his right hand. I gave both inmates numerous direct orders to stop fighting and place their hands on the wall. After the third or fourth direct order, the inmates stopped fighting. It was at this time I noticed that the object in inmate Douglas' hand was a metal pipe. I gave inmate Douglas a direct order to drop the weapon and place his hands on the wall." [Id.].
Claimant was confined pursuant to this misbehavior report, but his conviction at a Tier II hearing was ultimately expunged, as memorialized in a memoranda dated August 5 and 9, 2005. [Exhibit 1].
On cross-examination, it was confirmed that Douglas was housed on the same unit. Mr. Blaylock then said (as he had not during his direct testimony) that he had problems with Douglas before, and that they were reported to Officer Borden. Mr. Blaylock explained that as part of his job assignment as a clerk on the housing unit he was responsible for "getting laundry together and stuff, and assisting the officers." He would get the sheets from the laundry for example, and distribute it to the men by putting it in their cells. One day, Douglas complained to him about how his sheets looked, and Mr. Blaylock told him that this is the way they come in from the laundry, if you have a problem, you need to speak to the officer. Mr. Blaylock said Douglas always seemed to "have an attitude" when claimant gave him the items from the laundry. Those difficulties, he conceded, were limited to issues with the linens.
When asked, Mr. Blaylock described himself as "6 feet 4½ inches to 6 feet 5 inches tall", and conceded that Mr. Douglas was much shorter.
By way of further explanation, Mr. Blaylock then said that the complaints about conflict with Mr. Douglas concerning the linen were voiced to both officer Burnett ("the main, regular housing officer") as well as Officer Borden ("the evening housing officer"). He did not make a request to be moved, or to be placed in protective custody, however, saying "there was not reason to, because at that point I was not being threatened."
Asked if Mr. Douglas engaged in any verbal exchange with Mr. Blaylock before the attack that evening, claimant then conceded that while he was "in the day room" earlier Mr. Douglas and others, including claimant, had words. There was some conflict concerning what channel the television set should be put on, namely the news (which Mr. Blaylock and some others wanted) or hip hop (which Mr. Douglas and some others wanted). Rather than "engage in extended argument", Mr. Blaylock left the day room saying, "watch what you want" taking the soup he had been eating while watching the news back to his room. Inmate Carrington came in to chat, assuring claimant he had "done the right thing" by leaving. About "20 minutes to ½ hour after leaving the day room," Douglas entered claimant's room and started attacking.
No other witnesses testified on claimant's direct case.
Correction Officer Borden testified concerning the events of February 4, 2005, when he was working as first officer on claimant's housing unit. Normally, he said, the floor was a very quiet one. He heard no conversation or loud comments before the altercation. His first notice of the incident was hearing noise ("a distinctive noise of people fighting, skin on skin"), and observing that "one or two doors down" to the left from where he sat at his desk - "Blaylock's room" - Douglas was backing out of the room and Blaylock was "swinging" at him ("they were swinging at each other"). Officer Borden said he immediately pulled his alarm, moved into the center of the hall, and repeated "break it off, break it off", and they finally did. When he first saw them move into the hallway, he saw inmate Douglas, "who was a real small guy" jump on Blaylock's back attacking. The first time he observed any weapon was when he saw Blaylock being struck with "something protruding in inmate Douglas' hand." What the object was - a metal pipe - was only seen after the two had backed off and Douglas dropped the object on direct order. After they separated, they complied with the directive to "go on the wall."
Officer Borden explained that the training from the academy is that anytime there is a fight with two or more inmates you pull the alarm, and "pay attention to what's going on", and "you send out orders to them to stop. Discretion is exercised. When you are by yourself you need to assess the situation." If it is two inmates or more fighting, generally
"you do not physically go in there, they might be fighting, but if you go in there things could turn around, you could be set up, they could take control of your keys, your id, your badge, your radio, your uniform, whatever, then they've got control of the area. You need to stand in an area where you can observe, and use your discretion."
It is a threat to the security of all if a lone officer intercedes when "something" is in the hand of one party in an altercation. Officer Borden said that in this case, when the response team "showed up shortly thereafter, the entire situation was quelled." Blaylock was under control on the wall, Douglas was under control with the officer's hand on his back, and the weapon was in a neutral area.
The only conversation he had with Mr. Blaylock after the matter was under control and the response team had not yet arrived was Mr. Blaylock saying to him that the "matter should be forgotten", and Officer Borden responding that it could not be, that this was a serious matter.
The lead pipe used in the attack was about 15 to 17-inches long, with a diameter of about 3/4" as he recalled, and "might have had a spigot at the end of it."
On cross-examination, the officer agreed he had no previous problems with Blaylock. He did not recall any conversation with claimant prior to the fight where claimant alleged that he said to the officer, "I just had a little problem, nothing serious, with that knucklehead in the t.v. room." Officer Borden also said that in the evening the housing unit is staffed with two officers. The second officer "runs the chow, and does some early evening counts," but at 5:45 p.m. or so he "leaves the housing unit and goes to the package room, and does the movement back and forth from the package room." The second officer could be "over there an hour, two hours, or the whole rest of the night. It depends on how busy the package room is." The second officer does have a station in the television room when he is there.
When asked about the notation in the misbehavior report, to the effect that the officer had noted that Douglas had walked by him, Officer Borden said this was not a "suspicious" occurrence. That an inmate was going in the direction of claimant's room (rather than to his own), was routine. Officer Borden said that it would be far more suspicious if an inmate were going to another inmate's room when the assigned occupant was not present in the room. Inmates housed in the same unit go to each other's rooms when the occupant is there, "a thousand times a day. They cook together, they go to classes together, they go to workout together." They need not ask permission every time.
With regard to the metal pipe "getting past him", after this incident occurred Officer Borden could only surmise that Douglas must have had it up his sleeve, down his pants, or somewhere. It "was February, the heat may or may not have been working" and it "would be easier to conceal something." There were 49 inmates on the floor at that time, and the officer said he was responsible for all their safety as well as his own. If he had seen the pipe or any object they were not allowed to have, there is "no way" that Douglas would have gotten past his desk.
No other witnesses testified.
While the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence. Blake v State of New York, 259 AD2d 878 (3d Dept 1999); Sebastiano v State of New York, 112 AD2d 562 (3d Dept 1985).
More broadly, in order to establish liability on the State's part, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253 (2002); see also Flaherty v State of New York, 296 NY 342, 347 (1947). The Court must look to see if the actions taken by the State were reasonable under the circumstances. The fact that an inmate was able to smuggle this weapon into the housing area does not alone provide an adequate basis to find culpable conduct by defendant. See e.g. Colon v State of New York, UID # 2006-029-550, Claim No.102180 (Mignano, J., January 11, 2006). Nor does the mere fact that a correction officer is not present at the precise time and place of an assault give rise to an inference of negligence absent a showing that officials had notice of a foreseeably dangerous situation. Colon v State of New York, 209 AD2d 842 (3d Dept 1994); Padgett v State of New York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711 (1990). "[U]nremitting supervision" is not required. Colon v State of New York, supra, at 844.
Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent and that such alleged negligence was a proximate cause of his sudden assault by a fellow inmate and his injury. The claimant has simply failed to establish the elements of his claim.
Even if it were assumed that Mr. Blaylock had some conversation that evening with one or the other officers, wherein he stated that he had words with "that knucklehead" in the television room, the way such alleged notice is described thoroughly minimized any conflict, conveying that it was "nothing serious" in Mr. Blaylock's own words. There is no indication that claimant himself found anything of concern about the prior alleged issues surrounding the dispensing of the laundry, or the alleged dispute in the televison room, or in any way alerted the State's agents to any threat of harm. Nor did the State have any reason to know that there might be a threat of harm. Under the facts presented here, however, claimant asks that the Court find that the State is an insurer of inmate safety, which it cannot be.
In this regard, defendant presented sufficient evidence to establish that reasonable security measures had been in place on the day of claimant's attack, while claimant established only that what seemed a minor matter was something to be more wary of.
"While [specific knowledge for foreseeability] offers a bright-line test, that line redefines the traditional standard of reasonableness that has long been the touchstone of the law of negligence, and it cuts off consideration of other factors that have previously been found relevant to foreseeability.
What the State actually knew plainly falls within the ambit of foreseeability. But the . . . actual notice test precludes additional consideration of the State's constructive notice -- what the State reasonably should have known -- for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks . . . (citations omitted). Claimant's testimony that the attack came as a complete surprise to him cannot be the measure of the duty of the State, as his custodian, to safeguard and protect him from the harms it should reasonably foresee based on its knowledge derived from operation of a maximum security prison." (emphasis in original) Sanchez v State of New York, supra, at 254.
Notably, when Sanchez was tried on remand,
"it was dismissed on the merits, notwithstanding expert testimony that the level of supervision provided in the school building at Elmira Correctional Facility (one officer for over 100 inmates in the maximum security facility) was inadequate and not withstanding proof of the frequency of inmate assaults at the facility. The dismissal was affirmed by the Third Department, [36 AD3d 1065, 1067 (3d Dept 2007)] with the court noting the principle that absent a showing of dangerousness, unremitting supervision is unnecessary, and observing that the claimant's statistics as to the frequency of inmate assaults 'prove only that such facilities are dangerous places where the possibility of inmate-on-inmate assaults exists. Such general proof is insufficient to establish that a reasonable probability existed that this claimant would be attacked at this time and place. In the absence of either actual or constructive notice, defendant is not liable.' " Smart v State of New York, UID # 2007-029-053, Claim No. 98024 (Mignano, J., December 21, 2007) affd 65 AD3d 1218 (2d Dept 2009).
In this case, there has been no showing that Mr. Blaylock was known to be at risk either generally (as a disclosed current or former member of a gang, or a victim of same, for example [see e.g. Di Donato v State of New York, 25 AD3d 944, 945 (3d Dept 2006); Verges v State of New York, UID # 2009-009-208, Claim No. 107755 (Midey, J., December 21, 2009)], or as a victim of a prior assault), or that his attacker was known for violent propensities. There has been no showing that the level of observation on a "normally quiet" housing unit was inadequate, or that the level of staffing was against penological standards of care.
More generally, the inherent risk of violent activity in a correctional facility housing dangerous individuals does not mandate imposition of liability for inmate-on-inmate assaults that may occur, if they are not reasonably foreseeable. As unfortunate as this attack was, Mr. Blaylock has not sustained his burden of establishing that the State had actual or constructive notice of the harm that befell him, and then failed to act to prevent that which was reasonably foreseeable, by a preponderance of the credible evidence.
Based on the foregoing, Claim number 112274 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.
November 22, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. All quotations are to audio recordings or trial notes, unless otherwise indicated.