COLLINS v. THE STATE OF NEW YORK, #2007-029-040, Claim No. 100508-A
State held liable for assault by one inmate on another, after releasing claimant from protective custody, where there was no proof in the trial record of the reason for the decision to release claimant into general population. State’s contention that it has immunity for such decisions is incorrect. The standard, under Sanchez v State, is one of reasonable care, thus the court needs to decide if the decision had a reasonable basis, and cannot presume from the mere fact that a decision was made that it had a reasonable basis.
Claimant short name:
Footnote (claimant name) :
THE STATE OF NEW YORK1
Footnote (defendant name) :
STEPHEN J. MIGNANO
KOOB & MAGOOLAGHAN
By: Elizabeth L. Koob, Esq.
ANDREW M. CUOMO, ATTORNEY GENERAL
By: John M. Healey, Assistant Attorney General
Third-party defendant’s attorney:
October 5, 2007
See also (multicaptioned case)
Claimant, an inmate in the State correctional system, alleges he was assaulted and stabbed by other inmates at Sing Sing Correctional Facility on May 13, 1999 as a result of negligence on the part of the State of New York in failing to place him in protective custody after he informed facility personnel that he had been threatened by members of the Latin Kings gang.
Claimant was transferred from Elmira C.F. to Eastern C.F. in 1992 or 1993. In 1995, while at Eastern, he had problems with members of the Latin Kings and requested placement in protective custody. The Voluntary Protective Custody Status Consideration Form from Eastern 2 indicates that claimant believed he was in danger from identified and unidentified gang members and his request was granted. After two months in protective custody at Eastern, he was transferred to Shawangunk C.F., where he remained in general population for two years without incident. In 1997 he was transferred to Sing Sing.
Although he was aware of gang activity at Sing Sing, claimant felt it was not as bad as at Eastern. He stated that at the end of 1997 he began to receive requests from Latin Kings members for cigarettes. This did not disturb him at first, but later began to get “ridiculous.” 3 In May 1999, an inmate claimant referred to as “Chachi,” allegedly the Latin Kings’ leader, became aware that claimant was having trailer visits with his wife and asked claimant to obtain drugs and money through the visitation process. Chachi allegedly warned him that there would be “repercussions” if he refused. Claimant had a trailer visit on May 8, 1999, immediately after which he told Sgt. Corey that he had been threatened by a Latin Kings member. He again requested protective custody. He stated Sgt. Corey took him into a room, interviewed him and made an audiotape of the interview. 4
Sgt. Corey filled out a Voluntary Request for Protective Custody Form, writing the following:
“Inmate Collins was told there was a contract out on his life stemming from an incident that happened at Eastern C.F. [illeg.] in 1995. He stated that [three named inmates] were threatening to carry out the contract. He also gave me information (on tape) concerning drug trafficking through the visit room as well as possible staff involvement in illegal activities in B-Block.” 5
Claimant confirmed that the above statement accurately reflected his conversation with Sgt. Corey, that he maintained to Sgt. Corey that the incident from Eastern was “flaring up” again. Subsequent to the interview, claimant was placed in protective custody for four to five days. He recalled that Sgt. Corey visited him during this period and told him to “hang in there, be patient,” that his situation was being investigated. He did not recall anyone else visiting him in protective custody.
Explaining the reference to “possible staff involvement” in drug trafficking, claimant testified that he told the Sergeant “you have officers who are selling drugs but you can’t help my problem” in response to the request for more information. Claimant stated he provided the names of some officers that were allegedly involved in drug traffic.
After five days, claimant’s protective custody status ended. He testified that officers came to his cell, walked him to a cellblock and then released him into general population. This was a different cellblock from where he resided before going into protective custody. The next day, at about 6 p.m., in a stairwell on his way to recreation with other inmates a number of inmates assaulted claimant and he was slashed. He retreated to the bubble and told an officer he had been cut. The officers told him to sit down and relax and he would be taken for medical treatment. Claimant was taken for medical treatment, but the wound did not require suturing. 6 After being treated, he was returned to protective custody, where he remained for about two months. 7
Claimant identified photocopies of three photographs which show a laceration on his left bicep. 8 The court viewed a two- to three-inch-long scar, narrow and discolored, across the bicep. On cross-examination, claimant acknowledged that he never requested protective custody prior to May 8, 1999, even though he was previously aware that there were Latin Kings members at Sing Sing. Although he testified on direct that he was transferred to Sing Sing on his own request, which was granted because of his good behavior at Shawangunk, he admitted that he has a disciplinary history that includes fighting and cocaine use. He also acknowledged that there were Latin Kings members at Shawangunk as well as Sing Sing. Claimant did not know the name of the inmate who slashed him, although he confirmed Sgt. Hunlock’s report that he identified the inmate from a series of photos. That inmate was the subject of a disciplinary charge, but claimant did not testify at the hearing and the inmate was found not guilty. Claimant had no history of problems with the inmate prior to the alleged incident.
Claimant agreed with defense counsel that an intake interview with a sergeant was standard procedure upon arrival at a correctional facility and noted that when he was interviewed at Eastern, Shawangunk and Sing Sing, he indicated that he had no known enemies.
Lt. Michael Hasse, a correction officer at Sing Sing for 21 years, testified on behalf of defendant. In 1999, Lt. Hasse was a Sergeant in charge of Sing Sing’s special housing unit, and as such he was familiar with investigations in the facility generally and with staff interviews of inmates concerning security matters. Asked what the facility’s “retention policy” was with respect to tapes of such interviews, he stated there was no written policy, but that the tapes were generally kept until the allegations were investigated, and if the allegations proved unfounded, the tape would be discarded. If there were going to be disciplinary charges arising from an interview, the tape would be retained with the disciplinary hearing file, but otherwise there would be no reason to keep it.
Lt. Haase identified the record of the disciplinary charges brought against inmate Rivera as a result of the incident that is the subject of this claim.9 The record indicates that the charges were dismissed because Rivera had been identified based on an improperly conducted photo array and because the victim (claimant) refused to testify and identify his assailant. Haase had no personal familiarity with, or recollection of, claimant’s case.
Most of the pertinent facts of this case are undisputed. On May 8, 1999, claimant requested he be placed in protective custody because he feared being assaulted by gang members. This fear arose from his prior experience with the gang as well as contemporaneous threats. He was held in protective custody until May 12, when he was released into general population. On May 10, Captain M. Haubert wrote a memorandum to Superintendent Greiner in which he noted that he had listened to the tape of claimant’s interview with Sgt. Corey, that some cells were frisked in response to claimant’s allegations, that the allegations were too general to investigate further, and recommended that the request for protective custody be denied. 10 The tape made by Sgt. Corey was also sent to the Superintendent. The day after being released into population, claimant was assaulted by the other inmates.
The court can only assume that Greiner agreed with Haubert that claimant should not receive protective custody status and that at some point he made a decision to release him into population. Neither Captain Haubert nor Superintendent Greiner testified and the court was not provided with any document reflecting Greiner’s decision.
In most recently addressing the circumstances under which the State of New York may be held liable for an assault on a correctional facility inmate by other inmates, the Court of Appeals reaffirmed that the State’s duty is one of reasonable care: “the State owes a duty of care to safeguard inmates, even from attacks from fellow inmates . . . 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” (Sanchez v State of New York, 99 NY2d 247, 252-253  [citations omitted). Rejecting a “strict requirement of specific knowledge for foreseeability,” the court noted that State liability could be predicated upon “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” (Sanchez, id. at 254 [emphasis in original]).
On the question of whether the subject assault on claimant was reasonably foreseeable within the meaning of Sanchez, claimant pointed to a number of reported decisions in federal cases arising out of gang activity in State prisons, including Sing Sing. Claimant also requested that the court take notice of a report of the State Commission of Investigation titled “Combating GANG Activity In New York,” dated May 2006, that claimant’s counsel obtained from the Commission’s web site, 11 particularly pages 26 to 32 of the report, addressing gang infiltration of correctional facilities. The court reserved decision on defendant’s objection to the report on hearsay grounds, an objection that is now denied as the report is admissible under the “common-law public document exception to the hearsay rule” (Martin v Ford Motor Co., 36 AD3d 867 [2d Dept 2007]; see also Consolidated Midland Corp.v Columbia Pharmaceutical Corp., 42 AD2d 601 [2d Dept 1973]).12 Nevertheless, the court noted at trial that it did not need the exhibit to establish the general proposition that gang violence is a serious problem in the State’s correctional facilities.
Perhaps more germane to the question of whether claimant met his burden of proving that defendant’s response to his request for protective custody fell short of its duty of reasonable care are a number of recent decisions of the Court of Claims, rendered subsequent to Sanchez, in claims brought by alleged victims of gang violence in correctional facilities. In Douglas v State of New York (UID No. 2007-028-012 13, Claim No. 108585, May 17, 2007), Presiding Judge Sise observed that “the detrimental and dangerous role played by prison gangs has become a recognized fact of life in recent years” and noted the “particular difficulties of protecting inmates who may be targeted for harm not by another individual but by the unidentified members of a prison gang.” Judge Sise found State liability for an assault on an inmate who had been slashed at Elmira C.F. after having been the victim of previous slashings at Rikers Island and Downstate C.F., and after having requested placement in protective custody, distinguishing that situation from the facts of Savoca v State of New York (UID No. 2003-010-037, Claim No. 98982, Dec. 3, 2003), where Judge Ruderman held, after finding that the claimant there had not requested protective custody: “[m]erely because claimant feared the Latin Kings and had been the victim of a previous attack by that gang does not establish foreseeability or a duty to provide protective custody to every inmate that either fears or has been assaulted by a gang member.”
In Rosario v State of New York (UID No. 2006-013-517, Claim No. 97663, Dec. 12, 2006), Judge Patti wrote that the facts of that case were clearly distinguishable from the finding in Savoca because there “was a specific threat from two named (albeit nicknamed) individuals, not general allegations of problems with a particular gang or gangs.” Notwithstanding testimony from the Superintendent of Attica C.F. concerning the standards applied in evaluating requests for protective custody, and proof in the record concerning a process for obtaining voluntary protective custody that “involves multiple administrative levels before it is granted,” State liability for the assault was found based on “the specificity of the threats, and the provision of the nicknames of the putative protagonists” (id.).
Here, the record shows that claimant made a clear request for protective custody based not on a generalized fear of gang violence but a history of conflict with the Latin Kings and specific threats. He provided officials at Sing Sing with the specifics of the threats and with specific names. His request was apparently accorded some credibility, at least initially, since he was held in protected status for four days. Apparently, the Superintendent of the facility made a decision to end that status, although the mechanism and the reason for that decision is not part of the record. Defendant did not present a defense based on a contention that the Superintendent’s decision was reasonable, instead it argued that it was a “discretionary” decision entitled to immunity. This contention does not accurately reflect current law which requires that defendant’s conduct be analyzed by a negligence standard, i.e., whether the decision to terminate claimant’s protective custody after four days was a reasonable one.
While the court accords great deference to decisions made by correctional facility officials in the difficult quest to minimize violence in the facilities, such deference cannot extend to presuming that since a decision was made, it must have had a reasonable basis. All that is before the court is a captain’s recommendation to deny claimant’s request because the information he provided was not sufficiently specific. The captain did not testify, so the court does not know why he considered the information insufficiently specific. The superintendent did not testify, so the court does not know when, how or why he made the decision to end claimant’s protected status. The audiotape of the interview was not retained, despite claimant apparently filing a notice of intention to file a claim within a few weeks after the incident. While the court makes no inference as to what the tape contains, other than what Sgt. Corey wrote and what claimant testified (each corroborating the other), the tape, along with the testimony of Capt. Haubert and Superintendent Greiner, could have been used in support of a contention that the superintendent made a reasonable decision. Under these circumstances, the court cannot accept the written, unexplained conclusion of Capt. Haubert as the sole support of a finding of reasonableness. To do so would be to eviscerate the Sanchez standard and substitute one where the sole inquiry would be whether defendant’s employees made a discretionary decision, regardless of whether the decision had any reasonable basis whatsoever. As noted, this is not the state of the applicable law as set forth by the Court of Appeals. A judicial finding cannot be premised solely on proof that a decision was made, but must necessarily be buttressed by evidence as to the reason for the decision, evidence that was not presented in this case.
Thus, the court must find defendant liable for claimant’s injuries. Fortunately, he was able to mitigate his damages by his own actions in quickly extricating himself from the situation. His injuries were limited to a superficial slash wound, not requiring sutures, leaving a two-inch- long thin scar across his bicep. There was no testimony that the wound, or the scar, had or will have any particular impact on claimant’s life. The court finds that the sum of $1,500 constitutes fair and reasonable compensation for the injury, and the Clerk of the Court is directed to enter judgment for said amount and also provide for the return of any filing fee actually paid.
October 5, 2007
White Plains, New York
HON. STEPHEN J. MIGNANO
Judge of the Court of Claims
33.Unless otherwise indicated, all quotations are from the electronically recorded trial proceedings.
44.Claimant testified that he and his counsel had attempted to obtain a copy of the tape, without success.
66.The Report of Inmate Injury indicates that claimant had a “superficial laceration” to his left shoulder that was cleaned, and that no other injuries were noted. Exhibit 15.
77.A May 13, 1999 memorandum from Sgt. Hunlock to Lt. Katzenberger states: “On 5/13/99 Inmate Collins 89T3831 reported to Co Leonard that he was cut on left shoulder. Escorted to E.R. for evaluation. Inmate was interviewed by myself and shown photo array consisting of 6 pictures. Positively ID’d Inmate Rivera, Jorge 94A7707 as inmate that cut him. States that this was from old ‘beef’ from Eastern C.F. Collins moved to HBC 203 pending P.C. recommendation. Cell search, strip frisk and misbehavior report completed.” Exhibit 17.
1212.As to the admissibility of the document in light of its electronic source, see State Technology Law § 306; Miriam Osborn Memorial Home Assn. v Assessor of City of Rye (9 Misc 3d 1019, 1028-1030 [Sup Ct, Westchester Co 2005]). The court notes there was no issue as to authentication of the document, which was available on the State Investigation Commission’s web page as of the trial date and the writing of this decision.