Claimant Beatrice Morris moves for summary judgment on liability arising from her claim of harassment and sexual assault while she was an inmate at Bayview Correctional Facility in Manhattan.

The motion papers are fairly extensive and include: the March 2011 deposition transcripts of claimant; Kenneth Werbacher, the deputy superintendent of Bayview; and Faith Watson, the investigator who handled the case for the Department's Inspector General (exhibits A through C to defendant's affirmation in opposition). They also include portions of claimant's 2004 trial testimony from her federal court case against Officer Gilbert Eversley (exhibits A and B to claimant's affirmation in support); Ms. Watson's June 11, 1999 interview with claimant (aff sup, exh S); the Inspector General's file on this matter and a prior one involving Officer Eversley (aff sup, exhs N and M); the Inspector General's sex crimes unit log involving Bayview cases received beginning with October 16, 1996 (aff sup, exh R); Eversley's annual performance [*2]evaluations (aff sup, exh O); and the DOCS ^[FN1] Employees' Manual (aff sup, exh P).

In addition, oral argument was held on January 19, 2012, during which the parties agreed to submit a copy of the April 1, 1999 to March 31, 2003 collective bargaining agreement and subsequently agreed to deem submitted the labor contract covering the preceding four years.

Ms. Morris' 1999 interview by the Inspector General's office,^[FN2] her federal testimony in 2004 and her recent deposition are not seamless; what follows is, by and large, the uncontradicted narrative of claimant's four months at Bayview as it pertains here.

Morris arrived at Bayview from another correctional facility on March 4, 1999, was assigned to the eighth floor and within three weeks, moved to the fifth floor. She did not become "aware" of Eversley until early April or perhaps the second week of April when she recognized him as a friend of a former boyfriend, Junior, with whom she had met Eversley at a club in the mid-1980s.

Morris recalls "small talk" between her and the officer on "roughly three occasions," and that Eversley had said he was still in contact with Junior and offered to relay a "message" to him. Claimant then asked Eversley to give Junior a form for certain mail order goods that she thought Junior might buy for her. Claimant remarked on the strong scent of Eversley's cologne, and he poured some in a bottle and gave it to her, warning her not to tell anyone.

Eversley's behavior soon became sexually aggressive: tugging at Morris' nightgown and "[p]eriodically, when he took the count [saying,] . . . take it off . . . take your underwear off or something, I'll be back . . ."

Claimant recounted an unsettling incident which occurred on April 16 or 17, 1999. She had fallen asleep with her door locked and a night light on and awoke with the door ajar and the light off: "I knew I wasn't touched, but I knew someone had been in there." According to Morris, Eversley conceded it was him: "The next day, when he came back to work, I saw him and I asked him why did he leave my door open. And he said he didn't want to wake up my neighbor next door."

In the early hours of April 19, 1999, Morris was awoken by a touch at the hip; she saw a silhouette and recognized Eversley, who she said had used his key to enter. He tried to penetrate her, Morris resisted and Eversley ejaculated on her leg and the sheet. Claimant clipped out part of the sheet, and when it and Eversley were eventually DNA tested, they matched.

Three or four days after the assault, Eversley came over to Morris' room during the inmate count and said, "I wanted to come back and get some more but I was scared for what I had done." Morris recalled that it was probably the end of May when Eversley leaned up against her body as she was passing in the hallway, "And I looked at him and I asked him, I said, what's wrong with you, I said, you don't like your job?" In response, "He looked at me. He said, What, [*3]you threatening me? And laughed. And walked off."

On June 2, claimant, who had left Tylenol in a drawer at the officer's station when cleaning the area, went back for the medicine and encountered Eversley, and they had what Morris termed a dispute over her prior comment about the officer and his job. Morris then asked him if he had given the order form to Junior, and Eversley replied that "someone told him to cancel the order." Then the officer took out a notebook, saying that he was documenting all this so he would know what to write on a disciplinary ticket.

On June 7, 1999, Eversley wrote up claimant in an Inmate Misbehavior Report for threatening him about his job and for asking him to smuggle items into the facility for her. The misbehavior report or ticket was "served" June 9 on the inmate, who when she saw Werbacher later that day complained about it. The deputy superintendent testified in his deposition that, normally, disciplinary tickets are written within eight hours. At the time, Werbacher was not aware of the April 19 attack, but became so on June 11 when Morris gave him either one or two pieces of the sheet she had clipped off for evidence.

Bayview's superintendent and the Department's Office of Inspector General were notified, and the Inspector General's Faith Watson conducted an interview of Morris that same day, June 11. The next month, claimant was transferred to the Taconic Correctional Facility in Westchester County; she was released from state custody in November of 2000.

Eversley had a history of allegations of sexually aggressive behavior against inmates, all at Bayview. In 1988, the officer was accused of having sexual intercourse with an inmate and of impregnating an inmate.^[FN3] In 1994, he was accused of sexual misconduct by an inmate. In 1996, there was an allegation that Eversley had groped and harassed a Bayview inmate, for whom he wrote out a disciplinary ticket for stealing scissors. The month before Morris arrived at Bayview, the IG's office received an allegation from an inmate that she had witnessed Eversley having sexual intercourse with an inmate (a case that Watson said was finally closed in November of 2000).

Ms. Watson stated in her deposition that inmates are not always the most truthful of complaining witnesses, but that having multiple allegations as Eversley had was unusual. Watson distinguished between the same inmate making more than one allegation against the same officer and the situation where the allegations against the officer come from different inmates, with the latter having more credibility.

Watson answered "Yes" when asked whether "Sexual misconduct by staff was a problem at Bayview from 1996 through 1999?" Some time after, Deputy Werbacher was about to leave Bayview with a promised promotion to a male-inmate facility, explaining:

Q. What do you mean by "change of scenery?"

A. I wanted to go to a male jail.

Q. Was the ongoing sexual abuse of inmates a factor in your decision to leave Bayview? [*4]

A. Yes it was a factor.

As for what the Department could do, consider this exchange with Ms. Watson, who earlier in her career had been a correction officer at Bedford Hills Correctional Facility, a women's prison:

Q. Let's start with allegation. Before an allegation is substantiated, can any actions be taken against an officer?

A. No . . . Because the — well, first of all, you have to — you can't just discipline the officer based on an allegation. Second of all, the officer has collective bargaining rights, so there is always the union to contend with . . . You can't take any corrective action until the . . . person has been found guilty of employee misconduct [which would include] anything that he's violated in the sections of the employee manual, sexual misconduct being one of them.

Then this exchange occurred:

Q. Are there less severe types of discipline that can be imposed on an officer? Like can an officer's general duties be changed?

A. In regard to?

Q. In regard to as a response to an allegation of sexual misconduct?

A. No.

Q. And why is that?

A. His collective bargaining rights come into play if you're changing his assignment, his tour of duty.

Eversley remained a correction officer at Bayview until the belated DNA testing on July 16, 2002 conclusively linked him to the events of April 19, 1999, and he was terminated from state employment that month. The Manhattan district attorney's investigation of the matter did not result in the officer's prosecution.

Should Gilbert Eversley have been at Bayview, or for that matter, at any DOCS facility for women? As a general proposition, the same legal principles apply inside the prison gates as outside: "Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger." Sanchez v State of New York, 99 NY2d 247 (2002); PJI 2:12.

By the time claimant was moved to Bayview, Eversley had had five prior allegations against him of sexual misconduct, the most recent reported just the previous month. As for the argument that these were only allegations that were unsubstantiated, Watson testified that no allegations were logged against the average officer at Bayview and only two or three officers (besides Eversley) at Bayview had multiple allegations of sexual misconduct. Deputy Superintendent Werbacher had indicated that such kinds of cases were difficult to prove. More telling was Werbacher's testimony that when he first came to Bayview, he was given a briefing [*5]by the outgoing Superintendent Dixon, which included being told to "keep an interest" in Eversley because of the sexual misconduct allegations against him: "He was one of them and there might have been a couple, but I know for sure he was one of them."

Well before Beatrice Morris arrived at Bayview, it became clear that any sexual conduct between officers and inmates was not only grossly inappropriate, but criminal. Chapter 266 of the Laws of 1996 amended the Penal Law on Sex Offenses, adding to those persons incapable of consent, inmates in a DOCS or local correctional facility. (See Penal Law §130.05). As the memorandum of introduction states, "the bill has the effect of creating two new class E felonies

. . . and two new class A misdemeanors . . . in cases where certain correction facility employees

. . . engage in sexual activity with an inmate" (1996 McKinney's Session Laws, p. 2228).

Arrayed against this criminal risk is DOCS' willingness to keep Eversley at Bayview, including significant time assigned as a roundsman, where he was under diminished supervision. The Bayview administration and the entity charged with oversight, which had a separate unit focusing on sexual misconduct, took the position that the collective bargaining agreement blocked their removal of Eversley from proximity to female inmates. But their arguments were general; they offered no specifics. Nor has defendant advanced an argument that moving one officer, while granted this is a smaller facility, would affect operations and therefore affect the security of the prison and the safety of officers and inmates. No effort was made to develop some form of workable resolution; there was no "what to do about Eversley" meeting - - despite the warning to Werbacher from Superintendent Dixon.

Collective bargaining agreements ran from April 1, 1995 to March 31, 1999 and then from April 1, 1999 to March 31, 2003. The relevant provisions are identical in the two contracts, and it is useful to set them out in some detail. Article 6 affirms DOCS' operational authority for the management of their facilities: "Except as expressly limited by other provisions of this Agreement, all of the authority, rights and responsibilities possessed by the Employer are retained by it."

Article 8 of the Agreement is entitled Discipline. Section 2 of the article describes that what triggers the disciplinary procedure would be the seeking of the "imposition of a loss of leave credits or other privilege, written reprimand, fine, suspension without pay, reduction in grade or dismissal from service." Section 7 of the same article provides that "Shift, pass day, job transfer or other reassignment or assignments to another institution or work station shall not be made for the purpose of imposing discipline . . ."

Consider that §4(a)(1) of Article 8 gives DOCS the authority to suspend an employee when it determines "that there is probable cause that such employee's continued presence on the job represents a potential danger to persons or property or would severely interfere with its operations."

Finally, Eversley was appointed a correction officer in 1980 and by 1999 undoubtedly had accumulated a significant amount of seniority.^[FN4] Sections 2 and 3 of Article 24 provide that, [*6]"Seniority shall be the basis by which employees shall select pass days . . .The Employer shall have the right to make any job or shift assignment necessary to maintain the services of the department or agency involved. However, job assignments and shift selections shall be made in accordance with seniority provided the employee has the ability to properly perform the work involved."

Obviously, this Court is not sitting as an arbitrator deciding whether some act or omission violated the collective bargaining agreement. Eversley - - surely no later than February of 1999 when the last pre-Morris allegation was interposed - - should have been removed from proximity to female inmates. If that meant transferring him to a facility housing men, that should have been done. More to the point, defendant makes no argument that Eversley could not have been so assigned. Other than the general views noted above, there has been no showing that such transfer was even attempted, that any determination as to the transfer's compliance with the labor agreement was made, and if it was determined not to be compliant, what the operational and/or financial exposure might have been.

The risks on the other side of the equation were significant. Moreover, it not only subjected the female inmates to danger, but it is difficult to see how the Department's administration could not believe that its inaction regarding Eversley did not affect overall security as well.

This Court cannot find any material fact that is genuinely in dispute. Winegrad v New York University Med. Ctr., 64 NY2d 851 (1985). Defendant's affirmation in opposition focuses on a number of issues, including that summary judgment is inappropriate because there were no prior allegations against Eversley which were substantiated and that the risk of sexual misconduct by Eversley to claimant in particular was not demonstrated (rather than the risk to the female inmate population at large). Such focus does not comport with Sanchez v State of New York, 99 NY2d 247 (2002). See also Anna O. v State of New York, 34 Misc 3d 1206(A) (Ct Cl 2011).

In view of the foregoing, having reviewed the submissions ^[FN5], IT IS ORDERED that claimant's motion for summary judgment on liability (no. M-80583) be granted.

New York, New YorkALAN C. MARIN [*7]

March 6, 2012Judge of the Court of Claims