Prison inmate gets $2M award in lawsuit

A state appeals court has affirmed a $2 million judgment awarded to a prison inmate who was brutally assaulted by a guard.

Plaintiff Roy Harriger filed the lawsuit in the New York State Court of Claims seeking damages for injuries suffered in May 13, 2015, at the hands of an unknown prison guard at Attica Correctional Facility.

In November 2018 Judge Renee Forgensi Minarik found the state 100% liable. The damages portion of the case was held in September 2020, and in December 2020 she awarded Harriger $2 million.

The state appealed the award and, in a decision released Friday by the Appellate Division of state Supreme Court, Fourth Department, the award was upheld.

Attorneys for the state argued that the state cannot be held liable under the doctrine of respondeat superior for the acts of the unidentified correction officer because the officer acted outside the scope of his employment, according to the Fourth Department’s decision.

But the issue was not preserved for appellate review because lawyers for the state did not raise it in the Court of Claims, the Fourth Department noted.

The lawyers representing the state argued that, because the plaintiff testified that he was the victim of an unprovoked assault, the issue of whether the correction officer acted outside the scope of his employment falls within an exception to the preservation rule because it involves a question of law in the record that could not have been avoided.

“Even assuming … that defendant did not waive that contention by expressly declining to argue that any correction officer was acting outside the scope of his or her employment, we reject it,” the Fourth Department wrote.

An issue may not be raised for the first time on appeal when it could have been avoided “by factual showings or legal countersteps in the trial court,” the panel wrote.

“Although the court credited claimant’s testimony that an assault took place, it explicitly refrained from making a determination as to the reason behind the assault of claimant,” the court wrote.

Correction officers at times use excessive force but it does not fall outside the scope of employment merely because it violates department rules or policies or crosses the line of sanctioned conduct, Minarik wrote.

Harriger has lived in the Regional Medical Unit (RMU) at Wende Correctional Facility since he was discharged from the hospital after the assault.

He was almost 72 years old at the time of the assault and he will be eligible for parole in 2027.

When Harriger was first incarcerated, and until the day of the assault, he was an inmate at Attica.

Harriger was walking with a cane on the day of the assault because he had recently had surgery on his left hip and his right hip also was bothering him.

Harriger “believed that there were people at Attica who wished him ill,” Minarik wrote.

“He had received items such as razors and cords and thought he was meant to use them to kill himself,” Minarik wrote.

Harriger was assaulted after being placed into protective custody.

“The first blow caused him to fall forward hitting the right side of his face against the bars and he passed out. He was hit on the back of the head a second time when he became conscious. Claimant testified he felt a foot on his neck when he became conscious a third time and tried to get up. This time the unknown officer stomped on his lower back,” Minarik wrote.

The guard and an inmate walked Harriger to a bench in the shower area where he blacked out and later woke up in the prison infirmary.

He was later treated at Buffalo General Hospital before being moved to the RMU at Wende.

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