Ben v. United States

• Citation: 160 F.Supp.3d 460
• Decision Date: 03 February 2016
• Docket Number: 5:14-CV-0370 (CJS),5:14-CV-0509 (CJS)
• Parties: Sheila K. Ben, Esq., as Court Appointed Guardian of the Property of Jane Doe, (an infant proceeding under an assumed name), an Infant under the age of 14, Plaintiff, v. United States of America, Defendant. Susan Doe (as Guardian and Executrix proceeding under an assumed name) as the Court Appointed Guardian of the Person and Property of Jane Doe, Plaintiff, v. United States of America, Defendant.
• Court: U.S. District Court — Northern District of New York

160 F.Supp.3d 460

Sheila K. Ben, Esq., as Court Appointed Guardian of the Property of Jane Doe, (an infant proceeding under an assumed name), an Infant under the age of 14, Plaintiff,

v.United States of America, Defendant.

Susan Doe (as Guardian and Executrix proceeding under an assumed name) as the Court Appointed Guardian of the Person and Property of Jane Doe, Plaintiff,

v.United States of America, Defendant.

5:14-CV-0370 (CJS)

5:14-CV-0509 (CJS)

United States District Court, N.D. New York.

Signed February 3, 2016

Filed February 4, 2016

John C. Cherundolo, Cherundolo Law Firm, PLLC, Syracuse, NY, for Plaintiff.

Michael S. Cerrone, Office of United States Attorney, Buffalo, NY, for Defendant.

DECISION AND ORDER

CHARLES J. SIRAGUSA

, United States District Judge

INTRODUCTION

This is an action against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1)

(“FTCA”), seeking damages, for personal injuries and wrongful death, caused by a federal pre-trial releasee, David Renz (“Renz”), who, after being charged with receiving and possessing child pornography, was released from custody under the supervision of U.S. Probation and Pretrial Services Office for the Northern District of New York (“Probation”), in Syracuse, New York. While on supervised release, Renz committed crimes including kidnapping, rape and murder. Plaintiffs maintain that Renz was able to commit those crimes because Probation was negligent in supervising him. Now before the Court is Defendant's motion to dismiss, or in the alternative, for summary judgment. The application is granted as to the negligent training and supervision claims but is otherwise denied.

BACKGROUND¹

In the course of committing the criminal acts which led to this action, Renz randomly kidnapped Lori Bresnahan (“Bresnahan”) and an eleven-year-old child (“the child”) from a shopping mall in Syracuse. Renz proceeded to sexually assault the child in Bresnahan's presence, and then murdered Bresnahan in the child's presence. Circumstances suggest that Renz also intended to murder the child, but before Bresnahan succumbed to Renz's attack she enabled the child to escape from Renz. These events took place on March 14, 2013, beginning at approximately 7:45 p.m.² However, the pertinent facts of this case begin many years earlier.

In or about 1998, when Renz was fifteen years old, he had sexual contact³ with a nine-year-old female child on multiple occasions. Renz was subsequently charged in Family Court with committing acts which if committed by an adult would constitute Sexual Abuse in the First Degree, Penal Law § 130.65

, and Endangering the Welfare of a Child, Penal Law § 260.10.⁴ Renz was placed on probation, apparently after having been adjudicated a juvenile delinquent. Significantly, it appears that Renz's Family Court file was sealed pursuant to New York's Family Court Act (“FCA”) § 375.2.⁵ With regard to such sealing, the Court takes judicial notice that the FCA allows other courts to have access to such sealed records in only one circumstance: when the former juvenile delinquent is later sentenced as an adult following a conviction for a different crime. See , FCA § 381.2 (“[A]nother court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court[.]”).⁶ Renz's probation ended on March 17, 2001.

On June 3, 2012, the Federal Bureau of Investigation (“FBI”) notified Renz that it was investigating him for child pornography. Approximately six months later, on January 9, 2013, the Government arrested Renz and charged him with receipt and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A)

and 18 U.S.C. § 2252A(a)(5)(B). The Court takes judicial notice of the fact that those crimes were felonies under Chapter 110, and were therefore classified as “crimes of violence” under the Bail Reform Act. See , 18 U.S.C. § 3156(a)(4)(c). Attached to the criminal complaint was a supporting affidavit of an FBI agent indicating that at the time of Renz's arrest, Renz admitted that he had been downloading and viewing child pornography for six years. The FBI agent's affidavit further indicated that Renz possessed over 500 video files and 3,000 image files of child pornography.

Renz's case was assigned to the Honorable Andrew T. Baxter, United States Magistrate Judge. The Government moved to detain Renz, and Judge Baxter scheduled a detention hearing for January 14, 2013. On January 10, 2013, prior to such hearing, Senior U.S. Probation Officer Ellen Phillips (“Phillips”), prepared a Pretrial Services Report (“PSR”). The PSR asserted that Renz “pose [d] a risk of danger,” in part because he had a “History/Charge Involving a Child.” In that regard, the PSR stated:

The defendant's rap sheet indicates he was on probation which ended on March 17, 2001. His mother explains when he was about 15 years old, he was ‘implicated’ in a sex offense. She states a friend of the defendant's engaged in sexual intercourse with a female child. She does not believe Renz had any contact with the minor, but he was implicated and was placed on probation supervision.

Apart from referencing the conversation with Renz's mother, the PSR does not detail any efforts that Phillips made to investigate the reason why Renz had been on probation.⁷ The Court observes, though, that Probation Officers have an ongoing duty to investigate, verify and supplement information about a defendant's criminal history.⁸

In any event, despite indicating Renz posed a risk of danger, the PSR indicated that there were conditions of release which the Court could impose that would help to mitigate any risk of danger to the community, including “a curfew monitored by electronic monitoring.”

Based upon the PSR, the U.S. Attorney's Office withdrew its request to have Renz detained, and agreed that he could be released on conditions.⁹ Judge Baxter similarly agreed that he would follow the PSR's recommendation and release Renz on various conditions, including a prohibition on using any computer or other device with online capability, and a curfew with electronic monitoring.¹⁰ The electronic monitoring condition required Renz to wear an electronic ankle bracelet that sent out at least two types of alerts: tamper alerts and no-motion alerts. The bracelet issued a tamper alert when it was jarred with sufficient force¹¹ or when the clasp was tampered with, and issued no-motion alerts when the bracelet remained motion-less for a specified period of time. With regard to the curfew and electronic monitoring, Judge Baxter told Renz:

[Y]ou're going to have a curfew that will require you to be home between 9 p.m. and 7 a.m. ... Your curfew is going to be monitored by electronic monitoring and you need to make sure that you don't do anything to try to tamper or interfere with that pretrial monitoring[.]¹²

Judge Baxter further cautioned Renz, by stating: “Trust me, I am deadly serious that any deviations of any of these conditions, you're going to find yourself back here and likely be back in jail.”¹³

It thereupon became Probation's responsibility to supervise Renz and to monitor his compliance with the conditions of release in accordance with written policies established by the Judicial Conference of the United States, as set forth in the Guide to Judicial Policies and Procedures . Renz's case was assigned to Probation Officer Steven Acquilano (“Acquilano”), who was supervised by Supervisory Probation Officer Lori Albright (“Albright”) and Chief Probation Officer Matthew Brown (“Brown”).

In pertinent part, the Guide to Judicial Policies and Procedures required Probation to do the following: develop a written supervision case plan for each defendant;¹⁴ inspect electronic monitoring equipment at least once per month;¹⁵ conduct daily review of electronic monitoring activity reports for each defendant;¹⁶ receive immediate notification of electronic monitoring tamper alerts;¹⁷ conduct immediate investigation of tamper alerts;¹⁸ and provide a report to the court concerning any violation of the court-imposed conditions.¹⁹ Overall, probation officers conducting pretrial supervision were required to “respond immediately to any conduct or condition of the defendant that relates to nonappearance or danger, regardless of when it occurs.”²⁰

However, Probation did not follow those procedures in Renz's case. More specifically, Probation did not develop a supervision plan for Renz, did not inspect Renz's electronic monitoring equipment (except perhaps on one occasion), and did not monitor Renz's tamper alerts as required²¹ even though tampering with “location monitoring” equipment is considered a “higher-risk violation.”²²

At all relevant times, tamper alerts were transmitted by a defendant's bracelet to the vendor of the electronic monitoring equipment, which then provided notification to Probation in two ways: by direct notification and by notification on a website. More than two years prior to Renz's arrest, Probation had waived direct notification of tamper alerts lasting less than five minutes, at the suggestion of the vendor of the electronic monitoring equipment, ostensibly to cut down on the number of false alarms.²³ Consequently, Probation and the vendor agreed that Probation would not receive direct notification of tamper alerts lasting less than five minutes, though notice of such alerts was still available to Probation on the vendor's website. In Renz's case, though, Probation never checked the website, and consequently it was unaware of tamper alerts lasting less than five minutes.

As a result, Probation, and more importantly, Judge Baxter, was unaware that, beginning on January 15, 2013, Renz's ankle bracelet sent out a series of approximately forty (40) tamper alerts lasting less than five minutes.²⁴ Renz's ankle bracelet also sent out several tamper alerts lasting more than five minutes, about which Probation received notification. Specifically,...