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New York: Liability Established in Claim Over Assault by Prison Guard

by Matt Clarke 

On November 28, 2018, a New York Court of Claims found the state liable in a claim filed by a prisoner over an assault by a prison guard.

Roy Harriger, 71, who walked with a cane, was serving a sentence at the Attica Correctional Facility for forced contact with a minor in the first degree. Guards indicated they knew the nature of his crime, and wanted him to commit suicide. To facilitate that outcome they gave him a razor to cut his wrists and a sheet to hang himself. When he did not try to commit suicide, they discussed his crime in front of other prisoners; consequently, Harriger was fearful that he would be attacked.

Harriger was in an orientation class on May 13, 2015 when a guard announced a lockdown. Another guard called Harriger out of the classroom. Thinking he might be receiving an expected visit, he went with the guard. Instead of being taken to visitation or back to his cell, he was escorted to an office where Sgt. Robert Dunbar asked if he wanted to be placed in protective custody. When Harriger said yes and filled out a protective custody form, the sergeant appeared angry. Unbeknownst to Harriger, someone had set fire to his cell while he was in orientation. 

An escort guard took him away from the office. While they were in the hallway, the guard struck Harriger twice on the back of his head with a baton, rendering him unconscious. When he woke up, the guard was standing on his hand. Another prisoner appeared and told him he would die if he didn’t get up, then helped Harriger to his feet. The guard ordered the other prisoner to take Harriger to the shower. 

Harriger was on a bench in the shower room drifting in and out of consciousness until he was taken to the infirmary and then to a hospital. He told hospital staff and his daughter, who visited him the day he was admitted, that guards had assaulted him. He suffered permanent nerve damage that included right side paralysis, facial drooping and speech impairment. 

With the assistance of attorney Edward Sivin with the law firm of Sivin & Miller, LLP, Harriger filed a claim against the state and the Court of Claims held a trial on liability. 

Judge Renée Forgensi Minarik found Harriger’s testimony credible despite his inability to identify the guard who assaulted him. What she found “absolutely incredible was the fact that there was no investigation into the circumstances surrounding an inmate who could ambulate, albeit with a cane, while he was on his way to a protective custody location and, instead, ended up unresponsive in a wheelchair in the facility infirmary.” 

Judge Minarik noted that, from her prior experience with prison cases, she knew the guards had to fill out an Unusual Incident Report for Harriger’s injury and another for his cell being set on fire, yet neither was done. Further, guards and supervisors were unable to provide the name of the escorting guard even though such information is tracked at Attica. 

The court observed that in another recently decided case, the prison’s chart officer was able to tell her exactly where each prison employee was throughout the day, yet none of that information was available in this case. She gave the guards credit for not testifying that Harriger had slipped in the shower, as was insinuated in his medical records, but called their failure to document events “appalling” and noted their refusal to cooperate in external investigations into the incident, which had substantiated Harriger’s version of events. 

Judge Minarik found the state solely responsible for Harriger’s injuries with damages to be determined at a later trial, which remains pending. See: Harriger v. New York, Court of Claims at Albany (NY), Claim No. 126681.

Harriger also filed suit in federal court against Sgt. Dunbar; the district court stayed that action pending resolution of the case before the Court of Claims. 

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Related legal case

Harriger v. New York