Split Appeals Court rules DPS should have done more to protect inmate from attack

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  • The North Carolina Court of Appeals has ruled, 2-1, that the state Department of Public Safety was negligent when it failed to protect a prison inmate from a physical assault in 2015.
  • The state Industrial Commission awarded $15,000 in damages to inmate Kelvin Jones last year in connection with the incident at Maury Correctional Institution.
  • Dissenting Judge John Tyson said Jones contributed to the dispute that led to the attack from a fellow inmate. Jones' participation disqualifies him from collecting any damages from the state, according to the dissent.

A split panel of the North Carolina Court of Appeals has upheld an order favoring a state prison inmate in his negligence complaint against the Department of Public Safety. The inmate argued that prison officials failed to take proper steps to protect him from a physical assault.

The North Carolina Industrial Commission awarded inmate Kelvin Jones $15,000 in damages in April 2023.

The case stems from a May 2015 incident at the Maury Correctional Institution in Greene County. Correctional officer Chiara Booker heard Jones and fellow inmate Paul Thorton arguing, according to the Appeals Court opinion. Booker reported the “verbal altercation” to a supervisor and requested additional officers in her section of the prison “due to the tension between Plaintiff and Thorton.”

The supervisor “did not further investigate Booker’s report, did not separate Plaintiff and Thorton, and did not assign additional officers to the area,” according to the court opinion. Nor would a fellow officer switch places with Booker when she said she “didn’t want to be the lone female in the middle of two men in a[n] altercation.”

Thorton later attacked Jones with a “homemade shank.” Booker spotted the attack but fell to the ground while attempting to call for backup and reaching for her pepper spray. Another officer stopped the assault with pepper spray, but only after Jones had been struck “three or four times in the head with the shank.” “Plaintiff was taken to the hospital and treated for stab wounds to his forehead and left cheek, and positional vertigo.”

Jones sued the Department of Public Safety under North Carolina’s Tort Claims Act. A deputy industrial commissioner ruled against Jones, but the full commission ruled that DPS had been negligent in handling his case.

“The Commission found as fact that Defendant was put on notice that a violent altercation was likely to occur; Defendant failed to heed that warning; and Defendant took no steps to further investigate the situation or to prevent such altercation,” wrote Judge Allegra Collins for the Appeals Court’s 2-1 majority. “’Thus, while we recognize that the [Department of Public Safety] is not an insurer of the safety of every inmate and will not be found liable for negligence every time one inmate assaults another, the evidence below supported the Commission’s findings and conclusions of negligence in this particular case.’  Accordingly, the Commission did not err by awarding Plaintiff damages for the injuries he sustained from the assault.”

Judge Jeff Carpenter joined Collins’ opinion. Judge John Tyson dissented.

“The State, through the Department of Public Safety, ‘is not an insurer of the safety of every inmate and will not be found liable for negligence every time one inmate assaults another,’” Tyson wrote, citing the 1988 precedent case Taylor v. N.C. Dept of Correction. “Plaintiff must prove duty, breach thereof, proximate causation, and damages.”

“Competent evidence supports the Commission’s findings and correct conclusions that both: (1) Officer Booker had acted reasonably in response to the arguments and threats and also during the assault; and, (2) Plaintiff had failed to establish Defendant had assigned insufficient personnel for the conditions and to the area in which the assault occurred,” Tyson added.

The dissent noted Jones’ role in the assault. “The State may be liable for negligence, through a prison employee, when he or she has notice an unprovoked assault is likely to occur and fails to take proper precautions to safeguard the non-contributory prisoner. Plaintiff is also responsible for his actions in provoking and bringing the assault about and to show he ‘is not guilty of contributory negligence,’” Tyson wrote. “Plaintiff’s undisputed participation and prolonged actions in arguing with and provoking Thornton, participating in and bringing about the assault and resulting injuries, is a contributory absolute bar and precludes any award in his favor.”