KOSRAE STATE COURT TRIAL DIVISION
Cite case as Phillip v. Kosrae, 14 FSM Intrm. 109 (Kos. S. Ct. Tr. 2006)

RICKY W. PHILLIP,
Plaintiff,

vs.

KOSRAE STATE and DIVISION OF
PUBLIC SAFETY,
Defendants.

CIVIL ACTION NO. 84-04

MEMORANDUM OF DECISION; JUDGMENT

Yosiwo P. George
Chief Justice

Trial: January 18, February 15, 2006
Decided: February 27, 2006

[14 FSM Intrm. 112]

APPEARANCES:

For the Plaintiff:
Snyder H. Simon
P.O. Box 1017
Tofol, Kosrae FM 96944

For the Defendants:
Paliknoa Welly, State Prosecutor
Office of the Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944

* * * *

HEADNOTES

Civil Procedure - Pleadings
When two causes of action were not pled in the complaint and the plaintiff did not seek any amendment of the complaint to add these causes of action prior to trial and no motion made after trial to amend the pleadings to conform to these causes of action, the court may not base its decision on a theory of recovery that was not raised by the pleading nor tried by consent with subsequent amendment to the pleading and since the parties’ trial stipulations agreed that this case presented a cause of action for negligence, the other causes of action will not be considered. Phillip v. Kosrae, 14 FSM Intrm. 109, 113 (Kos. S. Ct. Tr. 2006).

Torts - Negligence
Liability for the tort of negligence requires that there be a duty of care owed by the defendants to the plaintiff, a breach of this duty, damages caused by the breach, and a determination of the value of the damages. Generally, negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Phillip v. Kosrae, 14 FSM Intrm. 109, 113 (Kos. S. Ct. Tr. 2006).

Torts - Duty of Care
Duties of care differ according to the circumstances. The test is whether the injury, under all the circumstances, might reasonably been foreseen by a person of ordinary intelligence and prudence. Phillip v. Kosrae, 14 FSM Intrm. 109, 113 (Kos. S. Ct. Tr. 2006).

Torts - Governmental Liability
Prison officials have a duty to protect the inmates’ constitutional rights and the well-being. The protection of the inmates’ well-being requires that civilized treatment be provided to inmates, including reasonably sanitary conditions and medical care. Phillip v. Kosrae, 14 FSM Intrm. 109, 113 (Kos. S. Ct. Tr. 2006).

Torts - Governmental Liability
Confining a prisoner in dangerously unsanitary conditions, which represent a broader government-wide policy of deliberate indifference to the prisoners’ dignity and well-being, is a failure to provide civilized treatment, and renders the state liable to the injured inmate. Likewise, there is state liability by the arbitrary and purposeless denial of medical care to inmates, where such denial is based upon deliberate indifference to an inmate’s medical needs. The standard of "deliberate indifference" is adopted to determine whether there is liability for the plaintiff’s injuries which resulted from his fellow inmate’s actions and the defendants’ alleged failure to assure the plaintiff’s well-being through civilized treatment. Phillip v. Kosrae, 14 FSM Intrm. 109, 113 (Kos. S. Ct. Tr. 2006).

[14 FSM Intrm. 113]

Torts - Governmental Liability
Liability for failure to protect a prisoner against harm from other inmates is measured against the standard of deliberate indifference. Deliberate indifference occurs when a prison official causes an inmate unnecessary and wanton infliction of pain by deliberately disregarding a serious threat to the prisoner’s safety after actually becoming aware of that threat. Mere negligence or inadvertence is not sufficient to hold prison officials liable. Government liability for failure to protect an inmate from harm caused by other inmates may be established by showing that the prison officials knew that there was an imminent danger and consciously refused to do anything about the danger. Phillip v. Kosrae, 14 FSM Intrm. 109, 114 (Kos. S. Ct. Tr. 2006).

Torts - Governmental Liability
When there was no evidence that the government defendants knew of the risk or threat, or had reason to know of the risk or threat that a certain inmate would throw hot water at the plaintiff, the defendants were not aware and could not have been reasonably aware of a threat of hot water being thrown at the plaintiff and thus did not deliberately disregard a threat towards the plaintiff and did not consciously refuse to do anything about the danger that they did not know about. Accordingly, the defendants’ conduct did not meet the standard of deliberate indifference towards the plaintiff, and therefore did not breach the duty of care towards the plaintiff. Consequently the defendants are not liable to the plaintiff for his injuries and damages sustained from the hot water thrown at him by another inmate. Phillip v. Kosrae, 14 FSM Intrm. 109, 114 (Kos. S. Ct. Tr. 2006).

* * * *

COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

This matter was called for trial on January 18, 2006. Trial was continued on February 15, 2006. Snyder Simon represented the Plaintiff. Defendants were represented by Paliknoa Welly, Attorney General’s Office. The following witnesses testified at the trial: Ricky A. George, Lynix M. Langu, Tani Thomson, Police Officer McGill Tolenoa, Hosea J. Alokoa, Doctor Paul Aaron, Dr. Vita Skilling, Dr. Winston Likiaksa, Sepe W. Phillip and Kiobu Luey.

After completing the trial, I took the matter under advisement. This Memorandum of Decision sets forth my ruling and reasoning.

I. Findings of Facts.

Based upon the evidence presented at trial, I find the following facts. On the evening of June 27, 2002, Plaintiff was intoxicated and causing a disturbance at his family home in Inpea, Malem Municipality. Plaintiff’s mother called the Central Police Station and made a complaint against the Plaintiff. A police patrol responded to the complaint, traveled to Inpea, and arrested the Plaintiff at about 6 p.m. for disturbing the peace. Plaintiff was taken into custody by the Kosrae State Police, transported to the Central Police Station, and booked into the Kosrae State Jail. On the night of June 27, 2002, while Plaintiff was in custody, several other inmates were also in custody at the Kosrae State Jail, including one Hosea Alokoa. Inmate Hosea Alokoa was assigned to serve as the cook for the inmates for that week. As the cook, Hosea Alokoa had access to food and water, and the kitchen equipment at the jail.

On the night of June 27, 2002, when Plaintiff was first taken into the jail cell area, he was yelling profanities and making noise. Inmate Hosea tried to calm down the Plaintiff, and was going to fix him some coffee. Plaintiff continued yelling and cursing at inmate Hosea, using very offensive words. Inmate Hosea 

[14 FSM Intrm. 114] 

then went to the area where hot water and coffee were kept, got a cup of hot water and threw it in the Plaintiff’s face. The hot water splashed the Plaintiff’s right eye, right eyelid, lips, face, neck and chest. The Plaintiff did not inform anyone of the incident or his injuries that night. Inmate Hosea Alokoa had not committed this type of action against any other inmate while he was incarcerated at the Kosrae State Jail.

Police Officer Kiobu Luey was the jailer on duty during the night of June 27, 2002. Officer Luey checked on the Plaintiff’s condition three times that night. During the first two checks, the Plaintiff was not injured. On the third check on the Plaintiff, he was injured and in pain. Officer Luey reported on the Plaintiff’s injured condition to his supervisor, who instructed Officer Luey to take the Plaintiff to the hospital.

The Plaintiff was transported to the Kosrae State Hospital by Police Officers. Dr. Paul Aaron first examined the Plaintiff. Plaintiff was still intoxicated and had suffered second degree burns on his body. Plaintiff’s right eye was swollen shut, his lips swollen shut, and he suffered blisters over the burned parts of his face, neck and chest. Dr. Aaron prescribed medication for the Plaintiff and referred him to Dr. Austria. Plaintiff was then admitted to the hospital for approximately seven days, where he was treated and then released. Following his release from the hospital, Plaintiff also obtained local medicine for his injuries. Plaintiff was never charged with any offense related to his arrest on June 27, 2002.

On January 17, 2006, Plaintiff was examined by Dr. Winston Likiaksa. Dr. Likiaksa found the Plaintiff to have normal vision. Dr. Likiaksa also found that the Plaintiff did not suffer any permanent damage to his eye, except that there was a tissue growth on one eyeball. Dr. Likiaksa testified that the tissue growth may have been caused by many things, including the injury on June 27, 2002.

Plaintiff testified that he could not dive and spear fish after the injury, due to pain he experiences after salt water enters his eye. Plaintiff also complained about blurry vision in his injured eye. Plaintiff suffers from abnormal sweating and loss of body fluids. Prior to the injury on June 27, 2002, Plaintiff was employed as a farmer and fisherman, and testified that he earned approximately $2,000 per year. Plaintiff cannot longer earn that much income, as he continues to be affected by continuing pain and damage from the injury. Prior to the injury, Plaintiff performed many activities at home to support his family, but after the injury he is no longer participates in these activities.

Plaintiff claims damages for the mental anguish he has suffered from the injury. Plaintiff also claims lost wages, and damages for permanent damage, continuing pain and suffering resulting from his injuries. Plaintiff claims that the Defendants were negligent in allowing inmates at the Kosrae State Jail to have access to boiling water, and that Defendants were negligent in their supervision of the inmates of Kosrae State Jail, to ensure that they did not injure other inmates.

The parties filed Trial Stipulations, in which they stipulated to the authenticity and admissibility of several documents and photographs, including Plaintiff’s medical records, photographs of the injuries, Case Preparation Forms completed by Police Officer Tulensa Palik, an Incident Report prepared by Police Officer Kiobu Luey and the Kosrae State Police Blotter for relevant time periods on June 27–28, 2002.

II. Analysis.

The facts regarding the incident on the evening of June 27, 2002, the actions of Hosea Alokoa, the Plaintiff’s injury and the extent of injury are generally undisputed. Plaintiff’s claimed damages are disputed by the Defendants. Plaintiff presents two causes of action in the Complaint:

1. Negligence of the Defendants in permitting inmates at the Kosrae State Jail to have access to hot water.

[14 FSM Intrm. 115]

2. Negligence of the Defendants in failing to protect Plaintiff from harm caused by other inmates.

Plaintiff further adds third and fourth causes of action in his pre-trial brief: strict liability and a civil rights violation. These two causes of action were not pled in the Complaint and Plaintiff did not seek any amendment of the Complaint to add these causes of action prior to trial. Furthermore, there was no motion made after trial to amend the pleadings to conform to these issues and causes of action. See Apweteko v. Paneria, 6 FSM Intrm. 554 (Chk. S. Ct. App. 1994). Therefore, this Court may not base its decision on a theory of recovery that was not raised by the pleading nor tried by consent with subsequent amendment to the pleading. Id. Furthermore, the parties have filed Trial Stipulations in which they have agreed that this case presents "a cause of action for negligence against the Division of Public Safety, State of Kosrae for the injuries suffered by Plaintiff as a result of being scalded by hot water." Trial Stipulations (Jan. 18, 2006). Accordingly, Plaintiff’s causes of action based upon strict liability and civil rights violations are not considered. This Court’s analysis considers Plaintiff’s sole cause of action based upon negligence of the Defendants.

Plaintiff argues that Defendants were negligent in allowing inmates at the Kosrae State Jail to have access to hot water. Plaintiff further argues the Defendants were negligent in failing to protect Plaintiff from harm caused by other inmates. This Court has previously held that liability for the tort of negligence requires that there be a duty of care owed by the Defendants to the Plaintiff, a breach of this duty, damages caused by the breach, and a determination of the value of the damages. Talley v. Lelu Town Council, 10 FSM Intrm. 226 (Kos. S. Ct. Tr. 2001). Generally, negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Duties of care differ according to the circumstances. Jonah v. Kosrae, 9 FSM Intrm. 335 (Kos. S. Ct. Tr. 2000). Furthermore, the test is whether the injury, under all the circumstances, might reasonably been foreseen by a person of ordinary intelligence and prudence. Asher v. Kosrae, 8 FSM Intrm. 443 (Kos. S. Ct. Tr. 1998). None of these cases, Talley, Jonah nor Asher involved injuries suffered by an inmate due to actions of another inmate. The term "inmate" is also used herein to describe persons who are incarcerated at Kosrae State Jail, as well as those persons who are detained following arrest at the Kosrae State Jail, such as the Plaintiff.

The standard of conduct applicable in a case based upon claimed negligence for failure to protect an inmate from harm from another inmate has not yet been addressed by this Court. The sole reported case involving injuries to an inmate in Kosrae State Jail is Tolenoa v. Alokoa, 2 FSM Intrm 247 (Kos. 1986). This case involved battery of an inmate by a police officer, relied upon civil rights law and is therefore not applicable here. Plaintiff argues that the standard of care to be applied to the Defendants in this case is "reasonable care." Defendants argue that the standard of care to be applied to the Defendants is "deliberate indifference."

Prison officials have a duty to protect the constitutional rights and the well-being of inmates. The protection of the well-being of inmates requires the Defendants to provide civilized treatment to inmates, including reasonably sanitary conditions and medical care. FSM Supreme Court decisions provide guidance on the requirement to provide civilized treatment. In the case of Plais v. Panuelo, 5 FSM Intrm 179 (Pon. 1991), the FSM Supreme Court determined that there is liability for civil rights violations when they are in substantial part due to a governmental policy of deliberate indifference to the constitutional rights of prisoners and failure to attempt to assure civilized treatment. Specifically, the Plais Court determined that confining a prisoner in dangerously unsanitary conditions, which represent a broader government-wide policy of deliberate indifference to the dignity and well-being of prisoners, is a failure to provide civilized treatment, renders the state liable to the injured inmate. Likewise, there is State liability by the arbitrary and purposeless denial of medical care to inmates, where such denial is based upon deliberate indifference to an inmate’s medical needs. Estate of Mori v. Chuuk, 10 FSM Intrm 6 (Chk. 2001). The standard of "deliberate indifference" was applied in the Plais and Mori cases to determine the liability of the state in cases involving failure to assure the well-being of inmates through civilized treatment. As stated in the Plais 

[14 FSM Intrm. 116]

 and Mori cases, the standard of "deliberate indifference" is adopted to determine whether the Defendants in this case are liable for the Plaintiff’s injuries which resulted from the actions of his fellow inmate, Hosea Alokoa and the alleged failure of the Defendants to assure the well-being of Plaintiff through civilized treatment.

The standard of "deliberate indifference" has long been applied in United States federal court decisions in cases involving prison officials’ or a government’s failure to protect an inmate from harm from other inmates. Liability for failure to protect a prisoner against harm from other inmates is measured against the standard of deliberate indifference. See 1 Civil Actions Against State and Local Government, Failure to Protect Prisoners from Harm § 7.69, at 616-19 (Jon L. Craig ed., 2d ed. 1992). Deliberate indifference occurs when a prison official "causes an inmate unnecessary and wanton infliction of pain by deliberately disregarding a serious threat to the prisoner’s safety after actually becoming aware of that threat." Id. at 617. Mere negligence or inadvertence is not sufficient to hold prison officials liable. Walker v. Norris, 917 F.2d 876 (6th Cir. 1988). Government liability for failure to protect an inmate from harm caused by other inmates may be established by showing that the prison officials know that there was an imminent danger and consciously refused to do anything about the danger. 1 Civil Actions, supra, at 618.

The evidence presented at trial of this matter have been carefully reviewed to determine whether the Defendants were aware of a serious threat to the Plaintiff’s safety, whether the Defendants knew that there was an imminent danger to the Plaintiff and whether the Defendants deliberately disregarded the threat or consciously refused to do anything about the danger. The evidence presented at trial showed that inmate Hosea Alokoa acted alone and upon his own volition when he threw the cup of hot water at the Plaintiff. There was no evidence presented that the Defendants saw inmate Alokoa get the hot water, carry the hot water towards the Plaintiff or throw the hot water at Plaintiff’s face. There was no evidence presented of any history or past occurrence where inmate Alokoa, or any other inmate had throw hot water at another inmate at the Kosrae State Jail. There was no evidence presented as to how access to hot water created a serious risk or substantial threat or imminent danger to the Plaintiff or other inmates. The evidence showed that this was first incident at Kosrae State Jail where one inmate threw a cup of hot water at another inmate, There was no evidence presented that the Defendants knew of the risk or threat, or had reason to know of the risk or threat that inmate Alokoa would throw hot water at the Plaintiff.

Based upon this evidence, I conclude that the Defendants were not aware and could not have been reasonably aware of a threat of hot water being thrown by inmate Hosea Alokoa at the Plaintiff. Therefore, I conclude that the Defendants did not deliberately disregard a threat towards the Plaintiff. The Defendants did not consciously refuse to do anything about the danger that they did not know about. Based upon the evidence received at trial in this matter, the Defendants did not show deliberate indifference to the well-being of the Plaintiff and did not show deliberate indifference to providing civilized treatment to the Plaintiff while he was detained at the Kosrae State Jail on June 27 and 28, 2002. Accordingly, the Defendants’ conduct did not meet the standard of deliberate indifference towards the Plaintiff, and therefore did not breach the duty of care towards the Plaintiff. Consequently the Defendants are not negligent and therefore not liable to the Plaintiff for his injuries and damages sustained from the hot water thrown at him by inmate Hosea Alokoa on the night of June 27, 2002.

III. Judgment.

Judgment shall be entered in favor of the Defendants.

[14 FSM Intrm. 117]