Opinion
# 2014-018-534 Claim No. 117140 Motion No. M-85136 Cross-Motion No. CM-85417
09-30-2014
AL ROBINSON v. STATE OF NEW YORK
SIVIN & MILLER, LLP By: Edward Sivin, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Defendant's motion for summary judgment for lack of subject matter jurisdiction is denied. Defendant's summary judgment motion for lack of foreseeability and discretionary acts is also denied because of questions of fact. Claimant's cross motion for summary judgment is denied due to questions of fact.
Case information
| UID: | 2014-018-534 |
| Claimant(s): | AL ROBINSON |
| Claimant short name: | ROBINSON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117140 |
| Motion number(s): | M-85136 |
| Cross-motion number(s): | CM-85417 |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | SIVIN & MILLER, LLP By: Edward Sivin, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 30, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant seeks summary judgment in this matter and Claimant has cross moved for the same relief.
Claimant, pro se, served a notice of intention to file a claim on December 8, 2008, and with the help of counsel, filed a claim on July 20, 2009, and served it on July 21, 2009. The claim seeks damages for injuries Claimant sustained when, on October 13, 2008, his cell mate at Five Points Correctional Facility (Five Points) attacked him while he was sleeping by stabbing him in the eye with a pen and biting his arm. In the claim, Claimant alleges the State is liable because it failed to protect Claimant from injury despite knowledge of his cell mate's mental illness, the State disregarded the risk of the attack, it failed to treat or sequester the cell mate despite the State's knowledge that the cell mate was a known risk to other inmates, and the State improperly assigned the cell mate to double-cell housing in violation of Department of Corrections and Community Supervision (DOCCS) Regulations (7 NYCRR) section 1701.5; Executive Department Regulations (9 NYCRR) section 7621.7, and DOCCS Directive 4003. Claimant also alleges the State refused Claimant's prior requests to be moved to a different cell. Defendant interposed a verified answer with 11 affirmative defenses. Discovery has been completed and this claim is scheduled for trial.
In support of its summary judgment motion, Defendant raises four grounds it argues warrant the Court granting it judgment as a matter of law. First, the Court lacks personal and subject matter jurisdiction because the notice of intention and claim fail to meet the requirements of Court of Claims Act section 11 (b). The defective notice of intention renders the service and filing of the claim nine months after the date of accrual untimely pursuant to Court of Claims Act section 10. Secondly, the attack on Claimant was unforeseeable. Third, the failure to move Claimant to a different cell was a discretionary decision for which the State is immune from liability; and fourth, cell placement decisions were discretionary determinations for which the State is immune from liability.
In opposition to Defendant's motion and in support of his own motion for summary judgment, Claimant argues that the Court should grant him judgment as a matter of law because the State failed to follow its own rules and regulations, and failed to provide him with adequate protection from his cell mate assaulting him. Claimant further argues that, at the very least, there are questions of fact which require a trial.
In August 2008, Claimant was transferred to Five Points, a maximum security, Maximum A facility, which was built with double-bunked cells. Claimant was assigned to be double-celled with Inmate Clifford Damon (Damon). Damon was convicted of murder in the second degree (Penal Law § 125.25) for dragging his girlfriend out of her apartment by the hair and repeatedly punching her and stabbing her, causing her death. He was also convicted of attempted murder in the second degree for stabbing and injuring a man in the apartment with the girlfriend. Damon was received by DOCCS on June 17, 2008, from Riker's Island, and he arrived at Five Points on July 9, 2008. Claimant testified at his deposition that he told his counselor, Courtney Greene, and his regular housing officer, Officer Steven R. Matice, that he was concerned about Damon, their incompatibility, and Damon's mental illness, and was told by both to write to Sergeant (Sgt.) Shields. Claimant testified that he wrote three letters to Sgt. Shields, one on September 2, 2008, another on September 12, 2008, and a third on September 22, 2008, seeking a new cell placement. Sgt. Shields recalls receiving only one letter involving religious differences, and he responded to Claimant, in writing, denying his request. Sgt. Shields said he interviewed Claimant in an office, although Clamant recalls only a brief conversation in a hallway after he wrote the first letter.
Most of the State's correctional facilities were built as single-cell facilities and later modified for double-cell.
Claimant's Exhibit 5.
Claimant testified that he did not keep a copy of this letter.
Claimant's Exhibit 6.
See Defendant's Exhibit 9 and attached Exhibits A and B, and Claimant's affidavit.
Claimant testified that he had concerns about Damon pacing at night, talking to himself, and keeping Claimant up at night. Claimant did not recall telling Counselor Greene about all of his concerns, but there were prior incidents with Damon that bothered Claimant. First, on a couple of occasions, Damon became angry with Claimant for not adequately cleaning the cell, and on one occasion, Damon became angry when Claimant did not complete the job Damon began of cleaning the cell floor. Claimant told Counselor Greene about this latter incident. He also told Officer Matice about Damon's pacing. Claimant denied any prior threats or violence. Claimant testified at his deposition to one incident where he awoke to find Damon standing in the cell with a pen in his hand. Claimant did not tell anyone about this specific incident before he was assaulted. Officer Steven had no recollection of Claimant voicing his concerns, and Counselor Greene had only a vague recollection about speaking with Claimant about Damon.
The letters Claimant alleges he sent to Sgt. Shields refer to incompatibility and Damon's mental illness. The last letter indicates Claimant was concerned about sleeping in "close quarters" with Damon and a desire to avoid adverse circumstances that could lead to violence by one of them in the future.
Claimant's Exhibit 6.
On October 13, 2008, Damon stabbed Claimant in his left eye with a pen while Claimant was sleeping and bit him in the course of the altercation. Claimant lost his eye, sustained bite marks to his left arm, and allegedly now suffers from post-traumatic stress disorder (PTSD). Claimant contends Damon's violent criminal history should have excluded him from placement in a double-cell and this, with Claimant's letters, should have alerted Defendant to the risk of Damon's attack and led the State to protect Claimant.
DEFENDANT'S MOTION
A. Subject Matter Jurisdiction
Defendant first seeks dismissal of the claim on the grounds that the notice of intention and claim fail to satisfy the pleading requirements of Court of Claims Act section 11 (b), arguing that because the notice of intention is defective, the claim is untimely. The State asserts that the notice of intention fails to allege all of the specific acts of negligence raised in the claim, fails to assert how the State's negligence caused Claimant's injuries, and fails to state where the incident took place. Defendant has raised these objections in its verified answer as its first and second affirmative defenses.
However, even if not raised as an affirmative defense, the requirements of Court of Claims Act section 11 (b) are jurisdictional requirements, and the failure to comply raises issues of subject matter jurisdiction that can be raised at any time (see Kolnacki v State of New York, 8 NY3d 277 [2007]).
The notice of intention Claimant drafted pro se reads:
"On October 13th, 2008 at 10:45 a.m. while residing at the Five Points Corr. Facility. [sic] I, Al Robinson was attacked while sleeping and stabbed in the left eye by my cell mate, who was later deemed to be mentally ill and should not have been housed in a double bunk setting [sic]. It should also be noted that Prison [sic] officials may have had prior knowledge of attacker's psychiatric condition."
Court of Claims Act section 11 (b) provides:
"[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained . . . The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claim need not be stated."
The total sum claimed must be set forth in all claims other than personal injury, medical, dental or podiatric malpractice or wrongful death (Court of Claims Act § 11 [b]).
"The failure to satisfy any of the [11 (b) requirements] is a jurisdictional defect." (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). The Court of Appeals has consistently held that "[s]trict compliance with the jurisdictional requirements of the Court of Claims Act is necessary." (See id.; Lepkowski v State of New York, 1 NY3d 201 [2003]; Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Although a notice of intention bears the same requirements as a claim for purposes of stating the location and nature of the action, courts have typically viewed the notice of intention with more leniency. A notice of intention is not a pleading and does not serve the same purpose as the claim, so it is viewed more liberally (Klos v State of New York, 19 AD3d 1173 [4th Dept 2005]; see also Czynski v State of New York, 53 AD3d 881 [3d Dept 2008]; Epps v State of New York, 199 AD2d 914 [3d Dept 1993]). A notice of intention must set forth the general nature of the claim with enough detail to enable the State to investigate (Ferrugia v State of New York, 237 AD2d 858 [3d Dept 1997). The guiding principle is whether it is definite enough to "enable the State . . . to investigate the [potential] claim promptly and to ascertain its liability under the circumstances" (Lepkowski v State of New York, 1 NY3d at 207 [2003] quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).
Although Claimant did not explicitly state that the incident occurred at Five Points, the notice of intention states he was residing there at the time of the incident, includes that correctional facility as his mailing address, and reflects that the attack was committed by his cell mate while he was sleeping. Similar descriptions have been found sufficient (see Mosley v State of New York, 117 AD3d 1417 [4th Dept 2014]; Cain v State of New York, UID No. 2006-013-006 [Ct Cl, Patti, J., Mar. 1, 2006]; Moran v State of New York, UID No. 2000-001-012 [Ct Cl, Read, P. J., May 26, 2000]).
Whether Claimant has adequately set forth the nature of the claim requires more discussion. Defendant contends that the notice of intention misled the State into investigating and assessing its liability based upon the allegation that the State should not have double-bunked Damon because the State may have known about his psychiatric condition. Defendant asserts that in investigating those allegations, the State would have looked to "what information it had, prior to the assault of Claimant" to indicate why Damon should not have been double-celled due solely to his mental condition. Since Damon had no documented history of psychiatric conditions or a mental health screening assessment at a level one, the State contends it could have assessed it had no liability. The State argues any other theory of liability in the claim should be stricken as beyond the jurisdiction of this Court for failure to comply with Court of Claims Act section 11 (b).
Defendant's Affirmation/Memorandum of Law in Response to Claimant's Opposition to Defendant's Motion for Summary Judgement and Claimant's Cross Motion for Summary Judgment, p. 2, ¶ 7.
The statute requires Claimant to set forth the "nature" of the potential claim. The nature of something is its "inherent character or basic constitution" - the "essence." Not "'[e]very element in a notice of intention [must] be set forth with formalistic rigidity . . . "' (Sega v State of New York, 246 AD2d 753, 755 [1998]), lv denied 92 NY2d 805 [1998] quoting Cannon v State of New York, 163 Misc 2d 623, 626 [Ct Cl 1994]). The "general nature of the claim" is what is required (Sega v State of New York, 246 AD2d at 755); the manner by which Claimant was injured and how the State was negligent must be stated or able to be reasonably inferred (see Heisler v State of New York, 78 AD2d at 768). "Absolute exactness" is not necessary, however it must be sufficiently definite to allow defendant to investigate promptly (Id. at 767; Mosley v State of New York, 117 AD3d 1417, 1417 [4th Dept 2014]; Deep v State of New York, 56 AD3d 1260, 1260-1261 [4th Dept 2008]). But the "substantive information in a claim or notice of intention does not have to provide all of the information the State may need in order to assess its potential liability." (Gonzalez v State of New York, 25 Misc 3d 1216 (A) [Ct Cl 2006]).
Merriam Webster's Collegiate Dictionary, p. 774, [10th ed. 1997].
Here, Claimant's notice of intention, has set forth how he was injured (stabbed in the eye by his cell mate) and provided an indication of how the State may be liable (by improperly housing Damon in a double-bunk cell with Claimant, possibly with notice he suffered from mental illness). The essence or general nature of the claim has been adequately set forth. Claimant's lay opinion or speculation that it was Damon's mental instability that made him inappropriate for double-bunking should not preclude the assertion of other theories in the claim derived from the same set of facts, and the same legal basis - here, the breach of the State's duty to protect inmates from the unreasonable risk of foreseeable attack in the prison setting (see for example Mosley v State of New York, 117 AD3d 1417 [4th Dept 2014] [notice of intention that referenced the wrong law, wrong municipality and wrong court found sufficient against State, where facility was clearly owned by State and Attorney General was properly served]; Klos v State of New York, UID No. 2004-013-015 [Ct Cl, Patti, J., Feb. 27, 2004] affd 19 AD3d 1173 [4th Dept 2005] [notice of intention that provided '"refusal of proper medical treatment by staff. Did not take x-rays until a week later"' and described a "'broken ankle [ , ] ligement [sic] damage sustained from broken weights falling on my ankle braken [sic] it (235 pounds)'" was sufficient notice of causes of action for medical malpractice and the State's negligence in maintaining its weight equipment; Fernigia v State of New York, 237 AD2d 858 [3d Dept 1997] [notice of intention that indicated fewer porters than usual were available to carry heavy load causing Claimant to hurt back when another porter slipped on stairs sufficient to allow State to infer how it was allegedly negligent]; but compare Czynski v State of New York, 53 AD3d 881, 882-883 [3d Dept 2008], lv denied 11 NY3d 715 [2009] [notice of intention asserting allegations of personal and sexual harassment by professor on a SUNY campus was insufficient to provide notice of a federally created cause of action under Title IX (20 USC § 1681) which prohibits sexual discrimination by federally-funded educational institutions]; Markowitz v State of New York, 37 AD3d 1106 [4th Dept 2007] [notice of intention which failed to allege any deliberate or intentional acts by its agents insufficient to put Defendant on notice of a constitutional claim alleging cruel and inhuman punishment]).
Claimant's pro se effort to serve Defendant with prompt notice of his claim was adequate pursuant to Court of Claims Act section 11 (b) for the causes of action stated in the claim. It is also noteworthy that the claim arose within the prison setting where all relevant witnesses were either State employees or in the custody of the State, and Damon was in State custody for the first time for only slightly more than three months before this incident.
This analysis does not support Claimant's inclusion of a medical malpractice cause of action in the claim, as no notice of this was provided in the notice of intention. This issue was rendered moot by Claimant's withdrawal of this cause of action.
With a timely and adequate notice of intention, Claimant had two years from October 13, 2008, to file and serve his claim (Court of Claims Act § 10 [3-a]). Since his claim was filed and served on July 21, 2009, it is timely.
Moreover the claim, which is more specific than the notice of intention and sets forth a valid cause of action, also meets the requirements of Court of Claims section 11 (b). Defendant's motion to dismiss the claim for lack of subject matter jurisdiction must be DENIED.
Turning to Defendant's more substantive arguments for summary judgment, the Court is guided by the legal standard for the motion. Since summary judgment "deprives the litigants of their day in Court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues." (Matter of Skelly v Carma Realty, 78 AD2d 1005 [4th Dept 1980]). To be successful on a motion for summary judgment, Defendant must present a prima facie showing that it is entitled to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957].
B. Absence of Foreseeability
Defendant does not dispute that the State owes a duty to the inmates in its prisons to protect them from the "risks reasonably to be perceived." (Flaherty v State of New York, 296 NY 342 [1947]). As an inmate at Five Points, the State clearly owed a duty to Claimant to protect him from a foreseeable risk of attack by another inmate (Sanchez v State of New York, 99 NY2d 247, 252-253). Defendant argues that here, as a matter of law, the injury to Claimant was not reasonably foreseeable based upon what it knew about Damon or should have known about the risk he posed.
Defendant points to the information it had about Damon. Damon's criminal history consisted of only his crimes of commitment, when at 46-years-old he stabbed his girlfriend to death and stabbed their roommate causing injuries. Damon was only in the custody of the State for a brief time before this incident and had no prior disciplinary history. Damon's mental health level was a "7" which did not preclude a double-bunk assignment.
Claimant, in opposition to Defendant's motion and in support of his own, also points to Damon's criminal history but argues that the extremely violent circumstances of Damon's criminal actions, along with Claimant's expressed concerns about continuing to share a cell with Damon to his counselor, the regular housing unit officer, and in three letters to Sgt. Shields placed the State on notice of the risk of this assault. Defendant disputes the information Claimant provided, but argues that even if Claimant provided the information and letters he alleges, none of his complaints were notice of Damon's impending assault. In his deposition, Claimant acknowledged Damon never threatened him or attempted an assault, and he admitted he made general complaints to his counselor and housing officer, without identifying specific incidents. Even the specific allegations Claimant noted during his deposition, Defendant argues, do not provide notice of a risk of assault. Damon's criminal history, although violent, also did not put the State on notice of the risk of assault within a prison setting.
There does remain a factual dispute as to whether Claimant sent Sgt. Shields the three letters which he alleges he did. Although none of the letters specifically raise a concern of Damon's potential assault, the letters do assert a cell change is necessary to "avoid adverse circumstances" from taking place. The third letter indicates a concern about sleeping in close quarters with Damon and the risk of violence. Sgt. Shields denies receiving any letter with that information; he recalls only receiving a letter requesting a cell transfer because of a religious issue. Sgt. Shields testified that when he interviewed Claimant, as he recalls he did, Claimant only mentioned an issue involving religious differences about praying. Sgt. Shields did not retain Claimant's letter or his written reply. Claimant also did not retain Sgt. Shields' reply letter, but did acknowledge that it was like the form reply letter Claimant has attached to his motion documents. Sgt. Shields testified that if he had received the letters Claimant asserts he sent, his response would have been different; he would have interviewed Claimant and inquired into Damon's behavior. Sgt. Shields also testified that he would have followed the policy and procedure in place to have an immediate or call-out (regular) mental health evaluation of Damon; he would consult with the housing unit officers to evaluate how Damon was behaving, and also interview Damon, emphasizing to both inmates that they would be held responsible for any actions they took regarding the situation.
Shields' deposition transcript, Defendant's Exhibit 12, p. 26.
See Claimant's affidavit ¶ 10 and Claimant's Exhibit 7.
Although Defendant argues that even with the three letters, the State was not placed on notice of the risk of Damon's assault, in viewing the evidence in the light most favorable to Claimant, Sgt. Shields' uncontradicted testimony reflects those letters would have alerted the State of the need to take further action. If Claimant's position is to be believed, with Sgt. Shields' deposition testimony, after trial, the Court could find that the letters made violence in this cell a foreseeable risk, requiring the State to do more to address this risk of harm then send a form denial letter. If Claimant's version of the facts is accepted after trial, then the State's response may be found to be unreasonable. "[I]t is improper for the court to weigh the parties' credibility on a motion for summary judgment." (Furlong v Storch, 132 AD2d 866, 868 [3d Dept 1987]; Knepka v Tallman, 278 AD2d 811 [4th Dept 2000]); "To [grant] summary judgment, . . . there must be only one conclusion that can be drawn from the undisputed facts - that as a matter of law injury to [claimant] was not reasonably foreseeable." (Sanchez v State of New York, 99 NY2d 247, 254 [2002]). The issue of whether Damon's assault was foreseeable, based upon the information the State had before October 13, 2008, cannot be decided on motion because of the questions of fact.
C. Discretionary Actions
The State's third and fourth grounds for summary judgment assert that DOCCS's decision to place Damon in a double-cell and a refusal of Claimant's request to be moved are discretionary acts entitled to absolute or qualified immunity, which cannot be a basis for liability. Defendant has raised immunity in its Verified Answer as its Fourth Affirmative Defense. Claimant, in response, argues that the State is not entitled to immunity because the decision to double-cell Damon with his criminal history should have been ministerial; or alternatively, there was no evidence that the State employees exercised their discretion if the decisions were, in fact, discretionary. Claimant also argues that he is entitled to summary judgment because the State violated its own rules and regulations.
Defendant has established, through the deposition testimony of Douglas Botsford, Director of Classification and Movement for DOCCS, that before an inmate can be assigned to a double-cell, the State conducts a full screening and risk assessment. Five Points is a maximum security facility with only double-cell housing. New inmates are considered first for double-cell housing and initially undergo a five-day classification screening. In evaluating inmates for placement at Five Points, section 7621.7 (9 NYCRR § 7621.7 [f] [g] and [h]) of the rules and regulations is used which specifies the factors for consideration. That section also indicates written policies and procedures setting forth the standards for suitability and compatibility. Mr. Botsford testified that no specific policies were developed for facilities such as Five Points that were built as double-cell housing. Directive 4003 is used as guidance, although it technically applies only to facilities built as single-cell facilities later converted to double-cells. Defendant's objection to the application of Directive 4003 to the facts of this case is rejected, since Mr. Botsford and the other witnesses all acknowledged the directive was used as guidance in the placement of Damon.
Defendant's Exhibit 16.
The five-day classification screening of new inmates includes a medical and dental evaluation, and a battery of tests are performed for reading level, IQ, and substance abuse. Interviews are conducted with the inmate by a classification counselor. If the inmate exhibits any signs of mental illness, he is then referred for a mental health screening. The pre-sentence report will be reviewed, sentencing minutes, if available, and any other documentation from the county of conviction. Mr. Botsford and other witnesses indicated the information would be applied to the Directive 4003 criteria as the guidance for the placement.
Directive 4003 is identical to 7 NYCRR § 1701.
After the various screening tools are completed, the inmate is then given three coding levels, one for security classification, mental health level, and medical level. In this case, Damon arrived from Riker's Island and was screened at the Downstate Reception Center. Damon was given the highest security classification, Maximum A, and a mental health level of seven. The medical classification would look to whether he has communicable diseases or any physical limitations that would prevent double-bunking, here no such medical conditions are indicated or argued. It would also be determined whether he had any known enemies at Five Points or other facilities. Available cell space would also be a consideration. Also, generally, new downstate inmates are initially placed upstate.
There is also an initial screening done at Riker's Island to determine which reception center is appropriate for the inmate to be sent (see Exhibit 15, p. 65).
Mr. Botsford testified that at the reception center inmates are initially screened for possible placement at Five Points, because Five Points is solely a double-cell facility; any other facility has both - some single and double-cells. If the inmate can be double-celled, his case is "flag[ged]" for Five Points. No inmates are flagged to go to Five Points unless they have been assessed as eligible for a double-cell placement. All inmates at Five Points have security classifications of Maximum A. Once the reception center determines an inmate is appropriate for Five Points, a classification analyst in Mr. Botsford's office performs a computerized data review to confirm if the inmate is suitable for double-cell housing. Sometimes at this review, confidential information is received from the Inspector General or a confidential informant, that precludes placement at a specific facility. This is another layer of review of each inmate's eligibility for double-cell housing.
Upstate Correctional Facility is also a double-cell facility but it is a disciplinary facility and inmates are not usually placed there from the reception center.
Botsford Transcript, Exhibit 15, p. 37.
The final review of the inmate for a double-cell occurs at the facility. Once placed at Five Points, a counselor would review all of the information again and interview the inmate. Five Points Policy & Procedure 9.9 directs the procedure for single and double-cell assessment for incoming inmates and provides that the Double-Cell Information Sheet will be prepared and utilized to assess an inmate's placement. The Information Sheet is reviewed by the Deputy Superintendent of Security, the highest ranking security officer at the facility.
See Exhibit 16.
On the Five Points Double-Cell Information Sheet, there are four "Suitability"
Confidential Exhibit 17.
categories which correlate to the four subsections of Directive 4003, section 1701.5 (c) (4). The Double-Cell Information Sheet lists those four categories: highly assaultive, predatory homosexual behavior, extremely violent nature of the instant offense or criminal history, and victim prone, with a box beside each for "no" or "yes." A "yes" requires an override by the Deputy Superintendent of Security, in order for double-cell placement to occur.
Section 1701.5 (c) (5) provides that the assessment of inmate's ineligibility for double-cell housing is based upon the history of demonstrated behavior and because it is possible for an inmate to positively change such behavior, the Deputy Superintendent of Security may exercise a limited amount of flexibility when determining cell assignments and override a determination of ineligibility (see Directive 4003 § 1701.5 [c] [5]).
Lori J. Hinson, an Offender Rehabilitation Coordinator (ORC) at Five Points, initially assessed Damon's eligibility for a double-cell at Five Points. Ms. Hinson testified at her deposition that she completed that portion of the Double-Cell Information Sheet and checked "no" for all of the categories. If any of these characteristics had been answered "yes," then the inmate is not suited for double-bunking.
Jamie Michael Lamanna's testimony was also provided. Mr. Lamanna was a Captain at Five Points at the time of this incident. He also served as the Acting Deputy Superintendent of Security when the Deputy Superintendent was away or unavailable. He testified that he would review the information available about a new inmate to Five Points to make sure they were compatible with the other inmate with whom they would be housed. He would also double-check to make sure the inmate was appropriate for double-bunking. He had never found an inmate already approved for double-bunking unsuitable. After the Double-Cell Information Sheet had been completed by the counselor, reviewed by mental health and the nurse, it would go to Mr. Lamanna. Factors he would review for compatibility included the inmate's history, disciplinary history, size, sentence, religious background, unusual incidents, and nature of crime of commitment. If he found the inmate suitably compatible for the selected double-cell placement, he would sign the Double-Cell Information Sheet. Inmates are double-celled upon arrival at Five Points and then, after being screened again, they are placed with an inmate in a housing unit based upon their programming. Mr. Lamanna reviewed Damon's information and approved Ms. Hinson's decision that he could be in a double-cell by signing Damon's Double-Cell Information Sheet.
Defendant's Exhibit 19.
Mr. Lamanna is currently the Deputy Superintendent for Security Services at Southport Correctional Facility.
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Mr. Botsford, Ms. Hinson, and Mr. Lamanna all explained the procedures and criteria for double-bunking similarly. Mr. Botsford stated that he could not assess an inmate for double-bunking solely on the crime committed. He said double-bunking is determined on a case-by-case basis and professional judgment is used in deciding if the instant offense is "extremely violent." Even if an inmate is found to be ineligible for a double-cell, the Deputy Superintendent of Security can override that determination to double-bunk an inmate. No override was used for Damon.
Claimant points to the description of "extremely violent" in Directive 4003, section 1701.5 (c) (4) (iii), and contends that because Damon's crime could fit the description, the "yes" box was required to be checked on the Double-Cell Information Sheet, and was, therefore, a purely ministerial act. All three witnesses, Mr. Botsford, Ms. Hinson, and Mr. Lamanna indicated that "extremely violent" was an extraordinary situation such as a serial killer, or depraved crime; murder alone, in a maximum security facility does not warrant a single-cell placement. All three emphasized that the determination required professional judgment relative to the population involved and the other factors considered. The determination could not be made based upon what would be considered extremely violent outside of the penal system.
When the actions of State officials involve discretionary acts, the State is immune from liability (Donald v State of New York, 17 NY3d 389 [2011]). This is true even if "the injurious consequences of that action . . . [result] from negligence or malice (Tango v Tulevech, 61 NY2d 34, 40 [1983]). Factors for consideration as to what is a discretionary act "must be decided on the circumstances involved, the nature of the duty, the degree of responsibility resting on the officer, and his position in the municipality's table of organization." (Id., at 40, quoting Rottkamp v Young, 21 AD2d 373, 376 [2d Dept 1964], affd 15 NY2d 831 [1965]). "[D]iscretion is indicated if the powers are 'to be executed or withheld according to [the State officer's] own view of what is necessary and proper"' (Id., citing to Mills v City of Brooklyn, 32 NY 489, 497, [1865]). Although noting that almost any action involves some discretion, for purposes of governmental immunity, "discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results, whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result." (Tango v Tulevech, 61 NY2d at 41).
Although Claimant's argument is persuasive regarding Mr. Botsford's testimony that Damon's crimes of commitment met the description in Directive 4003, section 1701.5 (c) (4) (iii) making Ms. Hinson's review a ministerial act of checking the "yes" box on the Double-Cell Information Sheet, his position ignores the full evaluation process. At each point, at the reception center, at the computer review in Albany, and again at Five Points, Damon's information and criminal history was reviewed and a determination made that his crimes did not preclude double-cell placement. Even if, based upon Mr. Botsford's testimony that he felt Damon's crimes of commitment met the description in Directive 4003, section 1701.5 (c) (4) (iii), and even accepting that Ms. Hinson checked the "no" box by rote on the Double-Cell Information Sheet, this does not make the action ministerial. The five-day review at the reception center and Mr. Lamanna's final review, after Ms. Hinson's review, still reflect decisions that Damon's criminal history did not preclude placement in a double-cell. The fact that different DOCCS personnel had differing views of whether Damon's criminal history comported with the preclusive description in the directive and regulations underscores the meaning of a discretionary decision; different actors can reasonably view the facts differently (see Arteaga v State of New York, 72 NY2d 212, 219 [1988]).
At each stage of review, there is a new analysis of the available information, which could change an earlier determination that an inmate is eligible for a double-cell assignment. The last review at the facility is by the Deputy Superintendent of Security, the highest ranking security officer at the facility. The regulations and directives do not define "serious injury" or "multiple victims" or "acts of violence;" whether an inmate's history was extremely violent precluding a double-cell assignment depends upon the evaluators' view within the context of the prison setting, a quintessential matter of discretion (see Tango v Tulevech, 61 NY2d at 40 [county probation officer making a judgment concerning custody of a child, discretionary]; Tarter v State of New York, 68 NY2d 511 [1986] [parole release decisions, discretionary]; Arteaga v State of New York, 72 NY2d 212 [1988] [actions of correction employees in taking authorized disciplinary measures, discretionary]; Donald v State of New York, 17 NY3d 389 [2011] [DOCCS's judgments involving the scope of its authority to add post-release supervision terms to the direction it receives from the Court system, discretionary]).
For immunity to apply, however, the discretion must actually be exercised (Valdez v City of New York, 18 NY3d 69, 76 [2001]; Haddock v City of New York, 75 NY2d 478 [1990]; Halloran v Virginia Chems., 41 NY2d 386 [1997]). To this point, Claimant argues that the State failed to show that Ms. Hinson exercised her discretion in completing the Double-Cell Information Sheet for Damon. Ms. Hinson had no recollection of screening Damon, as Claimant emphasizes; however, she did testify to her custom and practice in performing her job duties as they relate to classifying an inmate as extremely violent. She testified she would review all the available information in the inmate's folder, which was consistent with the training she received for screening inmates for eligibility for double-bunking. However, even if we presume, for purposes of these motions, that Ms. Hinson checked the "no" box by rote, without any judgment being exercised, this would still not support a finding of liability because discretion was still exercised at other points in the review process. Damon's eligibility for double-cell housing did not rest upon Ms. Hinson's determination, but upon the collective decisions made at the Reception Center, the Department of Classification and Movement, and Mr. Lamanna's review. Additionally, after Ms. Hinson completed her portion of the screening, mental health status and medical factors were considered by the facility nurse. It is Mr. Lamanna's approval on the Double-Cell Information Sheet that authorizes the pairing of the inmates in the cell.
Defendant has established, as a matter of law, that the decisions made to double-cell Damon were discretionary, and discretionary judgments were exercised in placing Damon in a double-cell with Claimant. These decisions are subject to immunity and cannot be the basis for Defendant's liability in this case.
Similarly, a decision denying an inmate's request to move to a different cell would also involve the exercise of reasoned judgment. Sgt. Shields testified that cell changes need to be closely scrutinized for security and safety to prevent, for instance, having members of the same gang in the same housing block. The Court of Appeals in Arteaga v State of New York, noted that maintaining order and security in correctional facilities protecting the safety of inmates and employees are "formidable tasks." (Arteaga v State of New York, 72 NY2d at 217) (internal citation and quotation marks omitted). Comprehensive discretion is given to DOCCS to "exercise [its] judgment under widely varying conditions." (Id., at 219). Section 1701.5 (f) of Directive 4003 provides the Deputy Superintendent for Security with the discretion to deny an inmate's request to be housed with a certain inmate or to be placed in a double-cell. It is incongruous to think the same discretion would not be authorized for an inmate's request to be moved to another cell, even if a cell-mate is not specified. No regulation or directive proscribes discretion in making such a decision.
Here, however, it cannot be determined on these submissions whether Defendant exercised any discretion in denying Claimant's request, since there are factual disputes about what letters were sent, what letters were received, and what the substance of Claimant's concerns about his current cell placement involved. If Claimant's version of events and the substance of his letters are found credible at trial, Sgt. Shield's issuance of the form denial letter may be found to not have involved any exercise of discretion. This determination must await factual findings after trial.
Accordingly, Defendant's motion is GRANTED in part and DENIED in part, and Claimant's motion is DENIED.
September 30, 2014
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these motions:
M-85136
1) Notice of Motion.
2) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in
support, with exhibits attached thereto.
3) Defendant's Memorandum of Law.
CM-85417
4) Notice of Cross Motion.
5) Affirmation of Edward Sivin, Esquire, in opposition to Defendant's motion and in support of Claimant's cross motion, with exhibits attached thereto.
6) Claimant's Reply Memorandum of Law.
7) Affirmation/Memorandum of Law of Bonnie Gail Levy, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto.