RAMOS v. THE STATE OF NEW YORK, #2004-016-051, Claim No. 98349

Synopsis

State had sufficient notice of threatening letters to find it liable in the amount of $25,000 for claimant's sexual assault at correctional facility.

Case Information
UID:

2004-016-051
Claimant(s):

DONALD RAMOS
Claimant short name:

RAMOS
Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

98349
Motion number(s):

Cross-motion number(s):

Judge:

Alan C. Marin
Claimant's attorney:

Donald Ramos, Pro Se
Defendant's attorney:

Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant's attorney:

Signature date:

August 17, 2004
City:

New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the decision following the trial of the claim of Donald Ramos, who alleges that he was sexually assaulted by another inmate, John Young, at Sullivan Correctional Facility on March 12, 1998 when he went to take a shower.
Both inmates were lodged in cellblock D-North, claimant in cell 258, Young in 246 (def exh B, att H[1]). Cellblock D-North houses 67 inmates in two tiers.
Ramos described the layout of the showers available for his use in this fashion:
You have the, the upstairs gallery which is . . . a very wide V shape . . . and in the center of that you have the bubble. You have two showers on one side and two showers on the other side, and they have doors that you have to open [to go in with a ] . . . little glass door. And on the inside of the shower itself is maybe 5 feet by 4 feet with the glass with . . . the light on the top."


There are also another four showers downstairs for a total of eight; each shower, which is for one inmate, has a door with a small window (def exh B, att H). The showers are 8 to 10 feet away from the bubble, or control station, where the correction officers' desks are located. The officers cannot see the inmates when they are in the shower; they can survey the general area, watching not only Cellblock D-North, but D-South as well.
Ramos testified that he went to take his shower at about 10 p.m., which was his usual time.
Young came into the area, but went up the staircase to a shower on the opposite side. Even though he knew Young had seen him, claimant said he was not afraid because there was an officer "sitting in a little area right downstairs directly in front." Then, when he was taking a shower, Ramos said that "inmate Young came up behind me with a knife, put it to my neck and sexually assaulted me" - - anally raping claimant. Ramos left the shower area, informed Officer Michael Weller what had happened and was taken to an outside hospital for treatment. Defendant State of New York, for its part, denies that the claimant was assaulted.
Leading up to the attack was a series of letters that claimant received from Young a few weeks before, which given Young's reputation as a predator, caused Ramos to
write Deputy Superintendent for Security Cohen on February 10, 1998 (cl exh 3). Attached were the seven or so letters from Young, at least one of which was a letter from Young to another inmate he had taken sexual advantage of (inmate P.).
Neatly typed, the letter, with claimant's DIN number and cell location, was captioned, "Sexual Assault, Abuse and Harassment." In it, Ramos wrote,
in relevant part:
I am writing to make you aware of an ongoing problem which was brought to the attention of [Sergeant] Mead, [Sergeant] Dunn, Correctional Officers Woodard, Yoest, Cole and Marble, in which nothing has been done at least in my case concerning an inmate who has a history of harassing and abusing effeminate prisoners.
Attached to this letter are notes which were found in my cell when I get back from work, and also notes from another individual who was experiencing the same problem... [and] was moved to another housing block.
I have repeatedly warned this inmate to stop . . . I am requesting that I be moved to [block B/South] or in the alternative that inmate has to be moved to another unit.

The letter to Deputy Superintendent Cohen does not mention John Young by name or by his nickname, Shicobra. None of the attached letters are signed "John Young" or some variant thereof; they are signed "Shicobra" and in one case, "Bear." But Young was not trying to disguise his identity, and defendant did not contend that it did not know who the author was.

Claimant never spoke to Deputy Superintendent Cohen, who had died by the time this trial began. Ramos testified that besides writing to Cohen, he had shown the letters to Sergeant Meade in Meade's office, who advised claimant to send them directly to the Deputy Superintendent.

Defendant called four officers to the stand at trial: Lt. Adam Ramirez and officers Michael Weller, Jerry Marble and Michael Woodard. All four testified that prior to March 12, 1998, they were not shown any letters from Young to Ramos, nor did claimant tell them he was being harassed or felt threatened.
Claimant testified that he had received about four or five more letters from Young in the period between his letter to Cohen and the assault, but did not then go to an officer and say something to the effect that, "nothing has come out of my letter to Deputy Cohen, and I am still getting more letters from Young."
The evidence in this case does not lead easily to unmistakable factual conclusions; the burden of proof that obtains is, of course, the fair preponderance of the credible evidence (
PJI 1:23 and 1:60).

Notice and Nature of Alleged Threat
Did DOCS have notice of Young's intentions
vis-à-vis Ramos? Defendant never contested the authenticity of the letter or its attachments. Defendant offered no evidence that the letters were not sent to Deputy Cohen, only the four officers' testimony that they were not shown the letters or told about them. Officer Woodard testified that if told of a threat by one inmate to another, he would immediately notify the sergeant and enter it into the log book.
Defendant contends that in any event the letters from Young to claimant were unthreatening; in fact they were characterized as "love letters" by defendant's two witnesses from the Inspector General's Office of DOCS
: Robert Adams, Assistant Deputy Inspector with its Sex Crimes Unit and Elizabeth Ceballos[2], both of whom investigated this allegation of sexual assault. The argument that the letters were not actionable is a weak one, since it is unaccompanied by even a cursory investigation and a response to the effect that, "we have read the letters and in view of the following, do not find that there is sufficient danger to separate Ramos and Young." This is especially so in view of the fact that it was undisputed that inmate John Young was a known sexual predator. Inspector Adams admitted as much, and see Young's disciplinary record that is part of defendant's exhibit A.
Furthermore, with regard to sexual activity, a set of DOCS rules applies, which are compiled in 7 NYCRR §270.2 as "Standards of inmate behavior." All sexual acts are prohibited, even those not effected by force or threats: "Inmates shall not engage in, encourage, solicit or attempt to force others to engage in sexual acts" (Rule 101.10). In fact, any physical contact between inmates is prohibited, including kissing, embracing or hand-holding (§270.2). The Investigative Report prepared by the IG's Office described the letters as "sexual in nature" (def exh B, att I).

In any event, the text of the letters themselves is coercive, if not menacing. For example, in one letter, Young writes about what will happen to inmate P., "Don't worry, somebody will hurt him for me. They don't want me to break his ass -- it [sic] will do it for me." (Cl exh 4, Bates stamp page 000037).
In sum, the letter to Deputy Superintendent Cohen a month before the assault was sufficient to put defendant on notice, irrespective of whether the officers on the cellblock were told; even if Young's missives were love letters, they violate the published rules governing inmate behavior.


Did the Sexual Assault Occur?
Defendant contends that no assault occurred on Ramos, and that claimant fabricated it so as to be placed into protective custody and thereby avoid paying debts he owed to other inmates. Defendant argues that Young was not seen in the shower area at the time claimant says he was attacked, that no weapon was found[3]
, and that the medical evidence disproves that any sexual assault occurred.
This case was assigned to the Inspector General's Office on March 17, 1998 and an Investigatory Report was issued with the next day's date, March 18, 1998 (def exh B, att I).
The only supporting material supplied at trial from this investigation - - other than the testimony of Adams and Ceballos - - were notes made of two interviews, one with an inmate S. and the other with an Officer Terk (atts A and H to def's exh B).[4]
Young never denied sending the letters or defended their contents as harmless. The Investigatory Report concluded that claimant's allegations were unsubstantiated, quoting Young's denial, the statements of officers Weller and Peter Head, who said they did not see inmate Young in the shower area, but in the recreation area at the time of the attack, and the officers' statements that Ramos was "heavily in debt." While noting that DOCS Nurse Burlingame had observed a red mark on Ramos' neck, the Report continued that the "[m]edical records supplied . . . by RN Burlingame indicate that there were no abnormalities discovered in the genitalia area of inmate Ramos" (def exh B, att I).

Typed on the Report were a list of individuals, apparently those who were interviewed: Ramos and Young; officers Terk and Head; officers Ramirez and Weller; David Gaggin, a senior investigator; and K.C. Garn, a Sullivan County assistant district attorney. Handwritten at the bottom of this list was the name of inmate S., whose July 20, 1998 interview was conducted some four months after the Report was first issued (def exh B, att A).

Generally, the preparers or investigators of an investigative report have no firsthand knowledge of what happened and base their conclusions on statements of other individuals. However, such can be trustworthy, although a trial court has broad discretion in determining issues of trustworthiness and relevance and must exercise its discretion in deciding whether the report, or portions, thereof should be admitted.
Bogdan v Peekskill Community Hospital, 168 Misc 2d 856, 642 NYS2d 478 (Sup Ct Westchester Co., 1996); Martin, New York Evidence Handbook (2d ed 2003, §8.3.3 at p 781).
Here, there is a selective attachment of interview statements. We do not have Young's statement, let alone his live testimony, and the IG's Investigatory Report relied fairly heavily on Young's denials. He is still in DOCS custody, serving a very lengthy sentence.

As to claimant, in addition to his direct and cross-examination testimony,
I had the opportunity to observe him as he questioned and reacted to defendant's six witnesses, as well as during extended colloquy. Ramos' testimony - - by his demeanor, steadfastness and consistency - - was sufficiently convincing to make out a case, by itself, that he was in fact a victim of rape. As an example of his credibility, consider the following exchange on cross-examination, in which claimant makes sure his answer is precise, even though less favorable to his case:
Q. Did you tell Officer [Yoest] that this man's writing letters to me and he wants to have sex with me, and I don't want to have sex with him?
A. Yes . . . I didn't say it in exactly [those] words, that this man is trying to have sex with me and, and I don't want to have sex with him, but I told him that it's bothering me and that, you know, I don't, I don't do those things.

Another example which supports the credibility of claimant's testimony is Ramos' concession that Young "never threatened me verbally or . . . physically . . . only in the letters."
What then was submitted by defendant to undercut this showing on Ramos' part? Defendant presented
six witnesses, but none of them had direct knowledge of the matter.[5] The four officers who testified at the first day of trial said that they were not personally told of what Young was doing or shown his letters to claimant, but no officer testified that he had firsthand knowledge that the rape did not take place, other than some testimony that Young was not seen in the shower area at the relevant time.
Defendant speculated that Ramos' motive was to avoid repaying debts by getting placed in protective custody, but in his letter to Deputy Superintendent Cohen a month before the assault, one of the options Ramos proposed was that he and Young be separated at Sullivan, which did not necessarily mean that claimant would be removed from his creditors.

Defendant grounds its determination that Ramos made up the whole thing on two sources - - inmate Young and inmate S. (as well as the medical records). S. told investigator Ceballos that he had lived on cellblock D-North since Dec 20, 1997 and became good friends with claimant, who told S. that he owed cigarettes to a lot of people, and to keep safe, wished to be placed in protective custody. According to S., claimant's plan was to go to the shower and use a shampoo bottle or his finger to make his rectum bleed to look as if it were caused by a sexual assault. Ramos would then call Young to his cell, and when he left, yell for the officers that he had just been raped. (Def exh B, att A).
S. was not put on the stand; his story that claimant would invite Young to his cell, especially after the letters he received, seems unlikely. Moreover, testimony from defendant's own witnesses suggests it is easier to get into protective custody than by angering a prisoner of Young's known violent tendencies. Officer Ramirez testified that an inmate could go into involuntary or voluntary protective custody, and that sometimes, the alleged aggressor would be locked up pending an investigation. Officer Woodard also
testified as to the readiness of DOCS to "immediately" separate an inmate that is making "these accusations," implying a fairly low threshold to do so. As to how seriously allegations like those of inmate Ramos' were taken, Inspector Adams testified memorably that to ignore a letter like Ramos sent to Cohen is "basically career ending."
Ramos was taken to Community General Hospital of Sullivan County, and a sexual assault kit was made. Apparently, there was no evidence of semen; claimant maintained that he heard some kind of sound indicating Young was using a glove or other plastic as a condom. This seems odd, yet contending he heard it, rather than saw it, does not come across as invented after the fact. Note that the Report of the Inspector General's Office indicates that when Ceballos spoke with the assistant district attorney, Garn stated that the rape kit would be scrapped because the case was not going to be pursued criminally. Ramos told the nurse at Community General Hospital that he finished showering and cleaned his external rectal area after the assault (cl exh 5, page 019) .

The IG's Report quoted DOCS Nurse Burlingame as having noticed a "?red mark" on Ramos' neck during her examination; the Community General Hospital records described it as a 3½-inch "superficial" abrasion (
id.). When Ramos returned from the Hospital, another DOCS nurse wrote in the Ambulatory Health Record for March 13, 1998 the same description of the neck as the Hospital had used (id. at page 026).
Denying prior experience with anal sex, Ramos never complained of pain or bleeding or any subsequent physical pain in the days afterwards.
Ceballos took the position that no rectal tears meant that claimant was not raped.
* * *
I conclude that by the applicable standard of proof - - preponderance of the evidence - - it is more likely than not that claimant was raped. The State is under an obligation to use reasonable care to protect inmates in its correctional facilities from foreseeable risks of injury, including assaults from other inmates.
Sanchez v State of New York, 99 NY2d 247, 754 NYS2d 621 (2002); Schittino v State of New York, 262 AD2d 824, 692 NYS2d 760 (3d Dept 1999). In this case, the defendant State of New York did not exercise reasonable care, and it is fully liable for any damages that result from the March 12, 1998 sexual assault on Ramos: Young was a known sexual predator (Auger v State of New York, 263 AD2d 929, 693 NYS2d 343 (3d Dept 1999)), who had identified his prey in the aforementioned letters of which defendant had notice (Sebastiano v State of New York, 112 AD2d 562, 491 NYS2d 499 (3d Dept 1985)).
Claimant
had no physical injuries except for the abrasion on his neck, and he did not complain of pain or physical distress. Ramos expressed his loss in these terms:
I suffered . . .emotional stress . . . I was humiliated . . . I do have fear now, you know. I have a lot of fear . . . people know about what has happened to me, and it brings other sexual predators . . . [Knowledge of] the incident is widespread.


Claimant's fears of subsequent assaults have not been borne out, but it went unchallenged that wherever he goes in the DOCS system, he is placed in protective custody. Claimant offered no testimony that despite being in protective custody, there were still grounds for fear or that such limited his activities in job training, education or sports. Any future damages would be too speculative; the Court was without the benefit of an expert. In view of the foregoing, I find that for past pain and suffering, claimant is due $25,000. Therefore, Donald Ramos is awarded $25,000 in damages arising from the sexual assault of March 12, 1998.
LET JUDGMENT BE ENTERED ACCORDINGLY.


August 17, 2004
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



[1] The nine tabs to defendant's exhibit B are labeled "exhibits"; to avoid confusion, the tabs will be referenced here as attachments ("att.").
[2] Ms. Ceballos' title was not elicited; she did indicate that she had been with the Inspector General's Office for nine years and with its Sex Crimes Unit since its inception.
[3] Although the only search was of Young's cell (def exh B, att D).

[4] Note that attachment F to defendant's exhibit B is the index to the case file, and it lists 20 items, some multi-part.


[5] Defendant on a number of occasions made arguments about Ramos' sexual orientation and experience of the kind that would not be permitted against a complaining victim-witness in a rape case in a criminal prosecution under CPL 60.42.