A New York State Department of Corrections and Community Supervision vehicle
A New York State Department of Corrections and Community Supervision vehicle (policecarwebsite.net)

ALBANY – A lawsuit filed on behalf of a prisoner who was killed after falling out of a jail transport van can proceed because the complaint alleges failure to provide adequate seat belts as well as reckless driving by a corrections officer, a Northern District judge has held.

The motion decided last week by Judge Mae D’Agostino (See Profile) picks up where the U.S. Court of Appeals for the Second Circuit left off in a 2012 case where it joined several other circuits. It held that the mere failure to provide a passenger in a corrections van with a seat belt does not alone establish a violation of the Eighth Amendment ban on cruel and unusual punishment.

However, in Jabbar v. Fischer, 683 F.3d 54, the Second Circuit said failure to provide a seat belt, plus other factors, can amount to an Eighth Amendment violation.

The Second Circuit said a seat belt is not a “life necessity” and the deprivation of one is not cruel and unusual punishment. It also said that a seat belt could be used as a weapon and that a correctional facility’s use of vehicles without seat belts “when based on legitimate penological concerns rather than an intent to punish, is reasonable.”

However, the appeals court also said there could be circumstances when the failure to provide a seat belt, combined with other lapses, could sustain a civil rights claim. But it did not define what those circumstances could be, leaving it to D’Agostino and other trial judges to sort it out.

In Torres v. Amato, 6:11-cv-01229, D’Agostino looked to an Eighth Circuit decision and found that the allegations in the Albany case sufficed, at least to withstand a summary judgment motion.

The Eighth Circuit, in Brown v. Fortner, 518 F.3d 552 (2008), found that evidence of the defendant’s refusal to secure a prisoner’s seat belt combined with evidence of reckless driving was sufficient for a jury “to conclude that there was a substantial risk of harm to [the plaintiff] and that [the defendant] knew of and disregarded the substantial risk [of] harm.”

Torres arose out of an incident in October 2010 when Luis Torres Jr. was being transported back to the Montgomery County jail after an appearance in Amsterdam City Court.

According to the complaint, Torres had not been placed in a seat belt, even though there were belts in the van and even though a written policy of the sheriff required seat belting of inmates being transported. Correction officers said in a deposition that they did not place a seat belt on Torres, who was in handcuffs, because they could not safely do so.

Records show that when the driver of the van executed a left turn, the prisoner fell out of the vehicle and suffered a fatal head injury.

At issue before D’Agostino was whether the civil rights suit lodged against Montgomery County and various officials could go forward.

Here, the claim alleges that the operator of the van was driving at an unsafe speed and that officials failed to properly secure the door in a way that would have prevented it from opening during transit.

“Although defendants are correct that there were no published decisions from the Second Circuit addressing this factual situation and, therefore, the law was not clearly established, the absence of case law directly on point is not dispositive,” D’Agostino wrote.

Elmer Keach III of the Law Offices of Elmer Robert Keach III and his associate, Maria Dyson, represent the plaintiffs.

Keach said the county denies Torres fell out of the van and contends that he pushed the door open and jumped. But Keach said the door was never tested for fingerprints or DNA to determine whether the prisoner touched it and the door was not preserved.

“If they found his skin alleles on that door, we wouldn’t be here,” Keach said. “If they found his fingerprints on that door, we wouldn’t be here. They didn’t even bother to look because they knew it wasn’t there. That will be the heart of the trial. You’ve got 10 guys with l00 years of law enforcement experience standing around and not one of them thinks to fingerprint or take DNA off the door. And they didn’t bother to preserve the door so I could test it myself.”

Murry Brower of the Law Offices of Theresa J. Puleo in Albany is defending the county and its officials. He declined comment.

Keach also said the decision is precedent-setting in that it expands on Jabbar.

“It details to corrections officials throughout the state that if you want to drive in an unsafe manner and you don’t bother to look out for the people you are transporting, you can pay a price,” he said.