Kenneth Powell v. State of Illinois

OPINION

BURNS, J.

This claim is before the Court by way of evidentiary hearing conducted March 30, 2015 in Springfield, Illinois, before Commissioner Murphy utilizing video teleconferencing.

The Claimant, Kenneth Powell, an inmate in the custody and care of the Illinois Department of Corrections (IDOC), was residing at Big Muddy Correctional Center (Big Muddy) and Lawrence Correctional Center (Lawrence) when the incidents at issue occurred. Claimant alleges Respondent’s agents failed to provide a safe living environment and failed to protect him from foreseeable attacks by other inmates. He filed grievances which were subsequently denied. Claimant appealed to the Administrative Review Board (ARB) and was denied. On February 04, 2013, Claimant filed a complaint in this Court seeking $100,000 in damages.

CLAIMANT’S TESTIMONY

At hearing, Claimant testified that on February 20, 2012, he was residing at Big Muddy and was assaulted by members of the Vice Lords gang. Claimant stated that he broke his hand defending himself. Claimant stated that he had previously placed these Vice Lord members on his enemies list and he was supposed to be kept separate from them. Claimant said he was then taken to segregation unit for two weeks where his hand healed improperly. Next, on August 19, 2012, Claimant testified, he was residing at Lawrence when he was again attacked by a member of the Vice Lords. Claimant stated that his left hand was broken again.

On cross-examination, Claimant testified that he had declared certain members of the Four Corner Hustlers, a branch of the Vice Lords, as enemies on his IDOC enemies list. Of the inmates Claimant fought in these instances, Claimant admitted that none were specifically named on his enemy list. Claimant stated that he was not housed near these inmates; rather, the altercation occurred in the dietary unit. In the first instance, Claimant stated, he was immediately taken to the health care unit after the fight. Claimant stated that he was subsequently charged and convicted of fighting, as opposed to being assaulted. In the second instance at Lawrence, Claimant stated, he was charged with and convicted of assault, to which he pled guilty. When [*174] asked if he was a member of the Four Corner Hustlers, Claimant replied, “No, I’m not. I was a high ranking member…when I came to prison in ’95. I was convinced by [Internal Affairs] to put down my flag…and that’s what I did. That’s what prompted…me to put the Four Corner Hustlers on my enemy list.” Claimant stated that he has no evidence that he renounced his membership of the gang. With regard to damages, Claimant testified he broke one bone in his left hand and it is now physically deformed.

TESTIMONY OF RESPONDENT’S WITNESS

Respondent called Betsy Spiller, a Clinical Services Supervisor at Menard Correctional Center (Menard) as a witness. Spiller testified she is familiar with how inmates can declare enemies. The procedure is the same throughout IDOC. “An inmate can let any staff member know there is an individual who needs to be kept separate from,” she said. “We call enemies KSF, keep separate from. We, as counseling staff, will go through the file. If there is anything we can find in the master file or any information we can find to determine they need to be enemies, we will go ahead and make them enemies such as they testified against each other or had issues in county jail.” When inmates are declared enemies, she said, “[e]very effort is made to keep them separate.” They will not be housed on the same gallery, she said, but they could actually cross each other in dietary or in the yard. Spiller added that an inmate cannot declare an entire gang his enemy because there is no way to identify every member of a gang. There must be a name, identification number and rationale to declare inmates enemies, she stated. Spiller further testified as to the difference between an assault conviction and a fight conviction within IDOC. “The assault is when we can investigate and very seriously determine that one inmate attacked the other,” she said. “A fight is when they are both striking heavy blows toward each other.”

EVIDENCE

Respondent’s Combined Rule 55 Discovery Disclosure/Departmental Report and Supplemental Report were admitted into evidence with the Complaint and all exhibits submitted by Claimant.

ARGUMENTS

Respondent argued Claimant has not established that the Respondent failed to protect him from the Four Corner Hustlers. The inmate involved in the first instance was a Vice Lord, not a Four Corner Hustler. The evidence establishes Claimant himself was and continues to be a Four Corner Hustler. Several Documents in the Discovery Report substantiate this assertion. The incident report in the first instance does not suggest this fight was gang-related. The second instance occurred because Claimant accused the other inmate of wearing one of his shirts. Claimant punched the other inmate and was convicted of assault, which establishes Claimant as the aggressor. Respondent provided Claimant medical care for his injuries and there is no evidence that the injury was permanent.

Claimant argued he was defending himself in both instances. He should not have been allowed in the same area as the Vice Lords or Four Corner Hustlers. Due to this negligence, his hand is now permanently deformed [*175]

LEGAL ANALYSIS

Although the State is not an insurer of the safety of an inmate in its custody, the State has a duty to exercise reasonable care under the circumstances to prevent inmates from suffering harm at the hands of other inmates, but it must be shown by the preponderance of the evidence that the harm was foreseeable. Williams v. State, 53 Ill.Ct.Cl. 199 (2000); Phipps v. State, 44 Ill.Ct.Cl. 105 (1991). In cases where inmates have been assaulted by other inmates, this Court has determined that, in order to prove foreseeability of harm, it must be shown that Respondent’s agents anticipated, or should have anticipated, that third parties would commit criminal acts against the inmate who was attacked. Williams v. State, 53 Ill. Ct. Cl. 199 (2000); Childs v. State, 38 Ill. Ct. Cl. 196 (1985).

In Williams, the claimant was awarded $4,000 for an attack that was leveled upon him while he was asleep in his cell. The claimant had placed two individuals on his “keep separate from” list and requested protective custody. The two individuals were members of the Vice Lords and were under the impression claimant had informed against them. Protective custody was full so claimant was placed in a single cell by himself; however, Vice Lord members were housed on either side of claimant’s cell. Early one morning, claimant awoke to punches to his face and a cover over his head. The claimant wrestled with at least two people and was eventually stabbed in the shoulder. The claimant suffered various other injuries such as swollen face, double vision and broken teeth. After hearing testimony regarding the logistics of gaining unauthorized entry into claimant’s cell, the Court concluded at least one correctional officer must have allowed the Vice Lords into claimant’s cell while he was asleep. The Court awarded claimant $4,000 for his injuries due to the state’s failure to protect claimant from a known threat.

Here, we have a “keep separate from” list and alleged duty on the part of the Respondent to protect the Claimant from a foreseeable attack. However, the Claimant admitted in his testimony that he placed specific members of the Vice Lords on his “keep separate list” but that the inmates involved in these incidents were not on that list. The Claimant contends that he informed IDOC officials he was under threat by all Vice Lords. There is nothing in the record to substantiate this claim. Moreover, Claimant provides no authority to support the proposition that such a broad duty could be imposed on the Respondent even if Claimant had done so. We also note that page 112 of the discovery suggests that Claimant himself is an active member of the Vice Lords and has been since September 1999.

Unlike Williams, Claimant Powell had not requested protective custody, and there is no evidence beyond his own testimony of the State’s constructive notice of a foreseeable attack against Claimant Powell. With regard to the second incident, it was determined Claimant initiated the attack, as he was subsequently convicted of assault. Claimant cannot recover damages based on a theory of the State’s failure to protect when it was he who initiated the attack. Further, Respondent’s witness testified it is not possible to keep enemies entirely separate. Activities such as dietary and yard time inevitably provide the potential for their paths to cross. The Claimant in Williams prevailed due to the Court finding Respondent’s agents were complicit in the attack. There is no evidence in this case that suggests such complicity. Without evidence of negligence on behalf of the State, the Claimant cannot recover damages for the State’s alleged failure to protect him.

[*176] CONCLUSION

For the above reasons, the claim is denied.