Opinion
# 2011-031-506 Claim No. 109858
06-30-2011
VERNON KING MINGO v. THE STATE OF NEW YORK
Synopsis
Claimant failed to demonstrate that Defendant was negligent relating to assault upon him by other inmates. Case information
UID: 2011-031-506 Claimant(s): VERNON KING MINGO Claimant short name: MINGO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 109858 Motion number(s): Cross-motion number(s): Judge: RENÉE FORGENSI MINARIK Claimant's attorney: VERNON KING MINGO, PRO SE HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: BY: BONNIE GAIL LEVY, ESQ. Assistant Attorney General Third-party defendant's attorney: Signature date: June 30, 2011 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Vernon King Mingo filed claim 109858 on September 16, 2004 alleging that on July 2, 2003, Correction Officers at Auburn Correctional Facility (Auburn) failed to protect him from an assault by other inmates. I conducted the video-assisted trial of this matter on April 28, 2011.
In his direct case, Claimant testified that on July 2, 2003 at approximately 9 p.m., he was leaving the Auburn bathhouse with another inmate when he noticed two inmates standing in the stairwell. As Claimant continued down the stairwell, one of the men suddenly lunged at him with a shank. Claimant began to struggle with the two inmates, pushing one of them to the other side of the steps. As the fight continued, the man that had left the bathhouse with Claimant fled down the stairs and out of the area. Claimant alleges that there was a Correction Officer present at the bottom of the stairwell who must have heard the fight begin but, instead of coming up the stairs to help, he yelled from the bottom of the stairwell asking if there was a problem. Claimant stated that the Correction Officer then waited three to six minutes before actually going up the stairs to investigate. According to Claimant, this delay caused him to sustain further and more severe injuries, including stab wounds, than he would have received had the officer immediately gone up the steps.
On cross-examination, Claimant confirmed that he had no reason to suspect he would be attacked and had, on two previous occasions, signed protective custody waivers. Claimant admitted that he did not try to get help by running back to the shower room where two guards were stationed. He also conceded that when the Correction Officer yelled up to see if there was a problem, he did not respond. Claimant also admitted that, had he yelled for help, the officers in the shower room would also have been able to hear him. Claimant gave no description of his attackers to the guards, he did not ask to press charges, and he again signed a protective custody waiver because he did not feel he was in danger after the attack.
The State called Correction Officer Gordon Simons to testify. Officer Simons was working the day of the incident and it was his duty to supervise the stairwell area leading to the bathhouse where the assault took place. Officer Simons testified that, while on duty, he would start at the bottom and make his way up the stairwell, he would stay on each landing for a few minutes then continue to walk back and forth. Officer Simons stated that he did this approximately seven times an hour. He stated that when he was not making these rounds through the stairwell, he was standing at the only entrance/exit to the bathhouse (depicted in Exhibit D). On the day of the assault, Officer Simons testified that at no point after he heard the fight break out, did anyone run by him to get out of the area, and that as soon as he heard "unusual sounds," he ran up the stairs where he found Mr. Mingo. Officer Simons stated that after he found Claimant on the stairs and he had been escorted away, they searched the area for a weapon and frisked the remaining inmates but found no weapon.
Kristen Owens, a nurse at Auburn, was also called to testify. Nurse Owens testified that on the day of the assault, she saw Claimant to evaluate his injuries. Nurse Owens stated that Claimant had superficial puncture wounds, as well as abrasions to the neck, back and chest area. Nurse Owens testified that Claimant was sent to the hospital to have the puncture wound in his neck sutured.
The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm (Flaherty v State of New York, 296 NY 342) including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 767 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and had an opportunity to intervene in a way that would have prevented the assault, but failed to do so (Huertas v State of New York, 84 AD2d 650). In Sanchez v State of New York (99 NY2d 247), the Court of appeals explained that the State can be liable if the assault upon an inmate was reasonably foreseeable and the State failed to take reasonable steps to prevent the assault.
In this instance, there was no such notice. Claimant did not know his assailants. The assault was sudden and without warning. Even Claimant was taken completely by surprise. Accordingly, unremitting supervision was unnecessary (see Hirsh v State of New York, 8 NY2d 125; Padgett v State of New York, 163 AD2d 914; Carlino v State of New York, 30 AD2d 987, 988).
Further, I credit Officer Simons's testimony that he reacted promptly and appropriately to break up the fight when he heard the sounds of the inmates scuffling. For these reasons, I find that Claimant has failed to demonstrate that Defendant was negligent in any way relating to the assault and the injuries he sustained as a result.
Accordingly, Claim No. 109858 is hereby DISMISSED.
Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
June 30, 2011
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims