Legal Memorandum



Legal Memorandum

LEWIS v. THE STATE OF NEW YORK, # 2011-032-009, Claim No. 111590

FACTS

Claimant initiated this action for injuries sustained on March 28, 2005, from another inmate while incarcerated in the F-3 section (protective custody, involuntary protective custody and keeplock) at Coxsackie Correctional Facility (Coxsackie)(1) . Specifically, claimant alleges that prison officials are liable for the assault upon him by inmate Powell because the prison officials were negligent by allowing two keeplock inmates out of their cells at the same time when the procedure was to secure one inmate before letting the other one out (Claim ¶14 [A]). Claimant alleges that such officials showed a "deliberate indifference" to claimant's safety and welfare because they had knowledge of an impending assault (Claim ¶ 14 [B]). Claimant further alleges that he received inadequate and delayed medical treatment for the injuries he sustained from the assault by inmate Powell. During trial, claimant also maintained that he received unjust Special Housing Unit (SHU) time because of a fighting infraction (Exhibit B within Exhibit 1), which was ultimately reversed by Donald Selsky, the Director of Special Housing/Inmate Disciplinary Program (Exhibit 4).

Defendant did not raise sovereign or governmental function immunity as an affirmative defense in its Answer or Amended Answer. At the end of the trial, defendant raised the defense of immunity pursuant to Arteaga v State of New York, 72 NY2d 212 (1988), arguing that the actions of administrative hearing officers and other employees of the Department of Corrections and Community Supervision (DOCCS) regarding quasi-judicial determinations are immune from liability. Defendant never asserted governmental function immunity with regard to the discretionary actions of correction officers in managing and controlling inmates.

At the trial, claimant testified that he notified prison authorities on March 23, 2005, that he was informed that two inmates planned to come into his cell on March 28, 2005 to take his personal belongings and to do bodily harm to him (Exhibit A within Exhibit 1).(2) Claimant was interviewed by Sergeant Burgess about the potential of an attack, but claimant refused protective custody (Exhibit D).(3) Claimant testified that he refused protective custody because the inmate who allegedly was to harm him was in protective custody and claimant did not want to be near him. Claimant requested that he instead be moved (Exhibit A within Exhibit 1). His request to be moved was denied (Exhibit E). Claimant testified that on the date of the subject incident, he had been let out of his cell and was on his way to the showers, when inmate Powell, who had showered earlier, came out of his cell and attacked claimant. According to the testimonies of claimant, Correction Officer Christopher Hale and Correction Officer Paul Wagner, the shower procedure was to let one inmate out at a time. No two inmates should have been out of their cells at the same time.

However, he did not have the x-rays because he was transferred to Southport Correctional Facility (Southport). After spending three weeks at Southport without obtaining x-rays, he filed another grievance (Exhibit ...