EDWARD FAIRCLOTH v. THE STATE OF ILLINOIS (2002)

OPINION

Claimant, an inmate with the Illinois Department of Corrections (IDOC) seeks damages from Respondent for injuries which occurred when he was stabbed while he was a resident of Stateville Correctional Center (Stateville). Claimant alleges Respondent was negligent by failing to protect him from being attacked by other inmates.

A hearing was held at Dixon Correctional Center (Dixon) on September 7, 2001. The record includes the transcripts of the proceedings and Claimant's Exhibits 1 through 6. Briefs were filed by both parties.

In 1990, Claimant received a sentence totaling 60 years of incarceration. At the time Claimant was incarcerated in the Will County Jail in Joliet, Illinois. He was then transferred to the Joliet Correctional Center (Joliet) where new prisoners received indoctrination. A few weeks later he was transferred to Stateville.

Claimant testified as follows. When he arrived at Stateville, he was assigned to B West Cell House (B West) where he was placed in the bull pen which is a holding area outside of the Sergeant's office where a newly transferred prisoner would remain until a cell became available. At the time there were only five white prisoners in B West. While Claimant was in the bullpen, he was approached by a black prisoner nicknamed Blue Steel who was a member of the Vice Lords, a black gang. Blue Steel asked Claimant if he was a member of the Bikers or the North Siders which are white gangs. Claimant replied he was a neutron which is a neutral prisoner who is not associated with any gang. Blue Steel then told Claimant to pay protection or he could not stay in B West. Claimant responded that he did not have any money or a prison job by which he could earn money. Blue Steel then said he would have Claimant placed in a Vice Lord cell and that Claimant could get a job and then pay for protection later.

Following Blue Steel's first conversation with Claimant, a Sergeant Greenfield informed Claimant that he could not find any place for Claimant to live. After about four or five hours in the bull pen, Blue Steel arranged for Claimant to move into a Vice Lord cell with a black inmate, but Claimant was informed he would not be able to stay there very long and would have to find someplace else to live on his own. After a night in the Vice Lord cell, Claimant met a white inmate named Fisher who was nicknamed Fish. Fish had a one-man cell and told Claimant that if Claimant could get a mattress he could sleep on the floor of the cell. Claimant found a mattress and moved into Fish's cell. He was thereafter approached by Blue Steel who again informed Claimant that the gallery was a Vice Lord gallery and that Claimant would have to pay rent to stay in a cell in the gallery.

Although Claimant was able to find a mattress to use, he had difficulty obtaining any bedding. He wrote two letters to Assistant Warden Roth, copies of which are Claimant's Exhibits 2 and 3. In Claimant's Exhibit 2 dated July 15, 1990, Claimant discussed his difficulty in obtaining bedding and then states, Because I'm not a gang member it seems I don't have anything coming [sic] when the rule book clearly states I have rights to such articles of bedding.

In Claimant's Exhibit 3 dated July 20, 1990, Claimant again describes his difficulty in obtaining bedding and then states:

I see new inmates coming [sic] in every week. These inmates get proper bedding. Why? They are gang members, and I'm not. Who runs this prison, the gangs. As far as I've seen, they do.

Shortly after Claimant's July 20, 1990 letter, Fish procured bedding for Claimant, but Claimant was not sure how Fish had obtained the bedding. After Claimant received the bedding, Blue Steel began to apply more pressure about paying a carton of real cigarettes a month to live in the cell. Claimant responded that he could not get a job and he did not have any money. Claimant felt threatened that he would be killed due to his inability to pay. To protect himself he told Blue Steel he would pay as soon as he could get a job.

After Claimant continued to receive pressure from Blue Steel, he told either a sergeant or Superintendent Bowles that he needed to be transferred to Protective Custody (PC) because he was in fear and wanted to live. On July 27, 1990, Claimant's transfer request was referred to a female Stateville employee who interviewed him. When Claimant was asked why he wanted to be transferred to PC, he first told her he preferred not to tell her why he wanted to be transferred and that he was just in fear of his life. When the interviewer told Claimant he would not go to PC if he did not tell her why he wanted the transfer, he told about the continued pressure to pay rent and threats. When specifically asked to name who was responsible, Claimant told her it was Blue Steel. Claimant's Exhibit 4 is a copy of an IDOC document entitled Protective Custody Review-Unit H dated July 27, 1990. It states in part:

Inmate claims that BW 304 was his assigned cell. He states he was told he had to pay to be in his cell or leave. Inmate has a cane and claims one of the VL members took it and threw it at him. Inmate is small in physical stature.

This document also indicates that Claimant did provide sufficient specific information to warrant retention in Protective Custody.

After the interview, Claimant was immediately transferred to H House which was the building that was the PC Unit. On July 28, 1990, one day after Claimant's transfer to PC, it was announced at about 5:00 to 5:30 p.m. that night gym would be made available to PC prisoners and Claimant chose to go. This was the first time Claimant had left the PC Unit. The unit's control center officer electronically opened the cell doors and Claimant along with 30 to 40 other prisoners formed a single file line to leave the PC Unit and walk to the gym. Claimant's Exhibit 1 is a rough diagram prepared by Claimant demonstrating the relative positions of H House, where PC prisoners were housed, and the entrance to the gym. After leaving H House, the prisoners walked through a tunnel toward the gym. This tunnel was a covered walkway approximately four to five feet wide which was enclosed on each side by a brick wall about three feet high. On the outside of the walls were open areas where inmates could congregate. As the inmates proceeded through the tunnel toward the gym, they were walked two by two in a tight line. A correctional officer was located at the front of the line and the rear of the line and possibly in the middle. No inmates from the general population were in or adjacent to the tunnel as Claimant went to the gym.

After working out in the gym for about an hour, Claimant and the other PC inmates were told by the officers to line up and were then directed into an enclosed foyer of the gym between the gym and the tunnel. In the foyer three to four officers searched the prisoners. As an officer finished patting down an inmate, he directed the inmate to exit the foyer, enter the tunnel and line up with the inmates who preceded him at the tunnel's intersection with another tunnel by the gym until all of the other inmates had been searched. Near the intersection was an unmanned guard tower with its windows covered with yellow paper. After Claimant was searched, he left the gym foyer and entered the tunnel as ordered. About 20 of the other PC inmates preceded him and only a few were behind him. Claimant did not see any correctional officers in the area where he entered the tunnel. Claimant did see about six or seven black inmates on both sides of the walls of the tunnel.

As Claimant took a few steps in the tunnel, the black inmates on both sides of the tunnel suddenly attacked the PC inmates without provocation. Claimant backed up toward the wall of the tunnel just in front of the unmanned guard tower near the intersection. He raised his hands in the air as one of the black inmates was coming toward him. By making this motion he wanted to show this inmate that he was not an aggressor. However, the black inmate continued toward Claimant. Claimant was then hit from behind by an unknown assailant and fell to the ground. He did not know what had hit him. Claimant then got up because the black prisoner in front of him was still coming toward him. Claimant again put his hands up to show he was not an aggressor. He was then hit from behind again and fell to the ground. He looked behind him but he did not see anyone. He initially thought that the second assault was from a punch but later learned he had been stabbed. He did not know the names or identity of the person who assaulted him.

As the assault on the PC inmates continued, officers from other areas of the prison came to the scene to break up the fight. To Claimant's knowledge, these were the first officers in the tunnel by the gym entrance after Claimant and the other PC inmates were ordered to exit the gym. The first officer Claimant saw was Lt. Bagley who came running down the tunnel intersecting the tunnel Claimant was in. As she broke up the fight, other officers arrived on the scene.

When the fight had been stopped, Claimant attempted to get up to the front at the PC line to return to H House, but was called back by Lt. Bagley who told him he had blood on the back of his shirt and would have to go to the infirmary. Claimant felt pain in the upper shoulder area on both sides of his back where his shoulder blades are located. It was determined he had suffered two puncture wounds in his back. He was sent to an outside hospital for evaluation and treatment and then returned to Stateville where he stayed in the infirmary about three to five days.

On cross-examination, Claimant testified that he was not the first person who was attacked and did not know how many people were attacked before he was. He further testified that as he was backing away from the inmate coming toward him he saw the prisoner on his right on the ground being kicked and punched. Claimant also indicated on cross-examination that he did not know how long it took correctional officers to respond to the altercation, but that it was probably less than a minute and possibly 15 to 20 seconds.

Carlos Vega, an inmate at Stateville when Claimant was attacked, was presented as a witness for Claimant. Since his release from IDOC in 1993, Mr. Vega has worked as Assistant Executive Director of the Prison Action Committee which is a non-profit organization dedicated to the reduction of recidivism by released prisoners. While at Stateville for ten (10) years, Mr. Vega was a leader of the Latin Kings gang. Through his work as a law clerk and PC inmates and personal observations, he was familiar with the nature of the PC Unit at Stateville. He testified that at the time of Claimant's attack Stateville administrators placed an inmate in PC if he had a conflict with a gang at the prison. If a prisoner was unable to pay his debts, refused to give sexual favors, or refused to pay rent for his cell, the prisoner feared physical retaliation.

Mr. Vega testified that inmates assigned to PC were the only inmates allowed in H House where they lived and that inmates in PC had certain privileges which would be exercised only if inmates from the general population did not have access to them, such as using the gym. If PC inmates used the gym, general population inmates were not permitted in the gym or the areas where PC inmates walked to get to the gym. According to Mr. Vega, when prison staff was getting ready to move a group of PC inmates from H House to the gym, officers would radio to other officers in the area to clear general population prisoners from the tunnel and adjacent areas. One officer was then stationed at front of the line of PC inmates, one at the side of the line, and one at the rear of the line. The same procedure was used when the PC inmates left the gym to return to H House. In Mr. Vega's opinion, this type of protection of PC inmates was necessary to protect them from attacks by hostile inmates in the general population. He states that at the time of the attack on Claimant, the prison staff had found it difficult to control general population movement. Prisoners were able to sneak out of their cell houses, the law library, the gym or wherever they were assigned and hide in various areas that surrounded the tunnel that extended from H House to the entrance of the gym. Mr. Vega called these areas death traps and stated that the area outside of the gym near the guard tower, which had been unmanned for six or seven months prior to the attack on Claimant, was a very dangerous area. Mr. Vega testified that in his ten (10) years at Stateville at least three murders and twenty stabbings occurred in this area, and most of these incidents occurred before Claimant was attacked.

Respondent did not present any witnesses or documentary evidence.

In Petrusak v. State, 39 Ill.Ct.Cl. 113 (1987), this Court stated at 39 Ill.Ct.Cl. 113-114:

The State is not an insurer as to the safety of an inmatein its custody. It does however have a duty to exercise reasonablecare under the circumstance to prevent its inmates from suffering harm at the hands of other inmates. What is reasonable under the circumstances will necessarily vary from case to case. Reasonableness must be judged in view of the prison environment. In this type of case we must recognize and take care so as not to unduly interfere with the large amount of discretion which must be accorded prison officials in handling the day-to-day affairs of operating an institution for persons convicted of crimes.

Foreseeability of potential for harm is a necessary element which must be proven by a preponderance of the evidence in this type of case. What is foreseeable necessarily must be judged by the facts in each case and by taking judicial notice of the prison environment.

In Phipps v State, 44 Ill.Ct.Cl. 104 (1991), this Court stated at 44 Ill.Ct.Cl. 110:

In cases where inmates have been assaulted by other inmates this Court has determined that to prove foreseeability of potential for harm it must be shown that Respondent's agents anticipated, or should have anticipated, that third persons would commit criminal acts against the particular inmate who was attacked. See Carev v. State, 35 Ill.Ct.Cl. 96 (1981); Childs v. State, 38 Ill.Ct.Cl. 196 (1985).

It is the opinion of this Court that facts set forth in this claim, as presented by the unrebutted testimony of Claimant and Carlos Vega, show Respondent breached its duty to exercise reasonable care under these particular circumstances to prevent Claimant from suffering harm from other inmates and that breach was a proximate cause of Claimant's injuries. By virtue of Claimant being assigned to PC, Respondent's agents should have anticipated that third persons in the general population would commit criminal acts against Claimant as well as the other PC inmates that were attacked by general population inmates after the PC inmates left the gym. Respondent's awareness that it was foreseeable that PC inmates could be harmed by general population inmates were not permitted in areas during use by and movement of PC prisoners. Mr. Vega's testimony also revealed that Respondent should have been aware that the area where Claimant was attacked was dangerous due to numerous attacks which occurred prior to Claimant's incident. In this claim, Respondent failed to take precautions to adequately protect Claimant and the other PC inmates after they left the gym as ordered.

Respondent contends that the claim of Castleman v. State, 45 Ill.Ct.Cl. 250 (1993), is almost identical to the one presented in this claim. In Castleman, supra, an inmate in PC was attacked by another inmate in PC whom he did not know. Both inmates had been released to use the showers in the PC unit. This Court denied the claim after determining that Respondent did not have notice that the PC inmate who was attacked needed protection from the PC inmate who attacked him. The situation in this claim is not similar to the one in Castleman because in this claim Claimant was attacked outside of the PC Unit in an area frequented by general population inmates from whom Claimant was protected. Respondent in this claim should have anticipated that Claimant and the other PC inmates who were attacked could be harmed by general population inmates. That is why the PC inmates were placed in PC.

Claimant is seeking $75,000.00 as compensation for injuries he suffered as the result of Respondent's failure to protect him. Claimant maintains he is due this amount based on the physical and emotional injuries suffered and pecuniary damage incurred due to Claimant's reluctance to move from the Special Treatment Unit (STU) at Dixon to the general population where he could obtain a higher paying job.

Claimant's medical records contained in Claimant's Exhibit 6 indicate he suffered two stab wounds on his back from an ice pick type of weapon. One was a 1.25 cm wound on the mid right scapula and the other was a .625 cm wound on the left lower scapula. The wounds were cleaned, sutured and dressed. He was treated with antibiotics and Motrin. He testified that he was in a lot of pain in the evening of the incident, but the pain subsided after a few days as the wounds healed. He further testified there is little scarring.

In support of his claim for emotional distress in the past, present and future, Claimant testified he had difficulty sleeping for a long time after the incident and fears being attacked again in retaliation if he returns to the general population. At the time of the hearing Claimant was assigned to the STU at Dixon which houses inmates with psychological problems. After the incident at Stateville he was placed in a one-man cell in segregation. In February of 1991 he was moved to the Psychiatric Unit at Menard Correctional Center (Menard Psych) where he stayed until 1997 when he was transferred to the STU at Dixon. He feels secure in the STU because he knows most of the people from his time at Menard Psych and the inmates are escorted when they move to other units.

Claimant's claim for pecuniary loss is based on his reluctance to return to the general population where he asserts he could obtain a higher paying job. When Claimant was transferred to the Menard Psych in 1991 he received training in the unit's kitchen and eventually became a head cook. After he was transferred to Dixon in 1997, Claimant continued to work as a cook in the STU and at the time of the hearing was one of two production cooks on the midnight shift with a rate of pay of $150.00 per month which is one of the highest wage rates in the STU. As a result of an excellent disciplinary record, he has been assigned to the Honor Dormitory in the STU which is a special privilege for inmates.

Claimant testified that positions in the general population pay more than those in the STU. For example, in the eye glass factory in general population, Claimant could earn $300.00 to $500.00 per month. Claimant admitted there is a waiting list of possibly a few years for these jobs and job placement is subject to staff discretion, but maintains that due to his excellent record and work history he could obtain one of the better paying jobs in general population. He testified, however, that he does not request a move to the general population because he would not be comfortable because he would still fear retaliation.

Based on the nature and extent of physical and emotional injuries suffered by Claimant, it is the opinion of this Court that Claimant should receive $10,000.00. It is further the opinion of this Court that the claim for pecuniary damages should be denied for being too speculative since there would be no guarantee Claimant would acquire a desired job in the general population if he requested to be transferred.

For the foregoing reasons, it is hereby ordered that Claimant be granted an award of $10,000.00 in full and final satisfaction of this claim

MITCHELL, J.