Wright v. United States of America
Filing
89
MEMORANDUM AND OPINION: For the reasons set forth herein, the Court concludes that plaintiff has failed to prove by a preponderance of the evidence that defendant was negligent. The Court therefore determines that defendant is not liable to plaintiff, and that plaintiff is not entitled to any damages. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/24/2017. (Zbrozek, Alex)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-1379 (JFB) (SIL)
_____________________
ALEXIS L. WRIGHT, AS THE ADMINISTRATOR OF THE ESTATE OF JAMES A. WRIGHT,
Plaintiff,
VERSUS
UNITED STATES OF AMERICA,
Defendant.
___________________
MEMORANDUM AND ORDER
July 24, 2017
___________________
JOSEPH F. BIANCO, District Judge:
debridement surgeries to remove tissue,
ligaments, and bone; and an eventual belowthe-knee amputation.
On March 15, 2013, decedent plaintiff
James A. Wright 1 (“Wright”) filed this
negligence action against the United States of
America (the “government” or “defendant”)
pursuant to the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671-80 (the “FTCA”).
Plaintiff alleges that the government is liable
under the FTCA for injuries arising from an
ankle bracelet that was placed and
maintained on Wright’s right leg and/or ankle
by federal Probation Officer John Danielo
(“Danielo”) from April to October 2010.
Plaintiff asserts that the negligent placement
and maintenance of the bracelet—
notwithstanding Wright’s extensive medical
history (including diabetes, peripheral
neuropathy, and a prior partial amputation of
his left foot) and alleged complaints about
irritation caused by the bracelet—resulted in,
inter alia, months of hospitalization;
The Court held a four-day bench trial
from December 19, 2016 through December
22, 2016 and heard summations on February
24, 2017. After carefully considering the
evidence introduced at trial, the arguments of
counsel, and the controlling law on the issues
presented, the Court issues the following
findings of fact and conclusions of law
pursuant to Federal Rule of Civil Procedure
52(a). As discussed in detail infra, the Court
determines that plaintiff has failed to prove
by a preponderance of the evidence that the
government was negligent in placing or
maintaining the ankle bracelet on Wright’s
right ankle.
First, even though Wright had a partial
left-foot amputation from diabetes, Danielo
1
After Wright’s death, the Court permitted the
substitution of Alexis L. Wright, the administrator of
Wright’s estate, as the plaintiff in this action
(“plaintiff”).
1
fourth of an inch away from the client’s
ankle” is to ensure that the bracelet is in close
enough proximity to the ankle for the signal
to work, rather than to prevent an unspecified
injury from a more loosely-fitted bracelet.
There is no suggestion whatsoever in the
manual that a loosely-fitted bracelet could
cause injury, nor is there any suggestion that
the device should not be used by diabetics. In
short, there is absolutely nothing in the
manufacturer’s manual that would have put
Danielo on notice that any injury could result
from his method of fitting the bracelet on any
person, including a diabetic person. In
addition, Danielo had used this sizing method
for over a decade without incident.
Moreover, neither Wright nor anyone else
told Danielo, when he fitted the bracelet in
this manner on April 13, 2010, that the
bracelet was too loose and/or would irritate
Wright’s skin. In fact, as noted above,
Wright’s scheduled visit to his podiatrist took
place within six days of the fitting of the
device, and there is no evidence that the
podiatrist or Wright advised Danielo after
that visit that there were any medical issues
with the bracelet, including its sizing.
was not negligent in his decision to place an
ankle bracelet on Wright’s right leg on April
13, 2010, pursuant to the electronic
monitoring ordered by the court as part of his
sentence of home confinement.
It is
uncontroverted that: (1) even though
Wright’s medical situation was fully known
at the time of his sentencing on March 3,
2010, neither Wright nor his attorney raised
any objection to the electronic monitoring at
the sentencing when it was imposed by the
court; (2) neither Wright nor his fiancée
raised any objection to Danielo when he
actually installed the bracelet on Wright’s leg
at his home on April 13, 2010; and (3) Wright
visited his podiatrist on April 19, 2010 (six
days after the installation of the device), and
neither Wright nor anyone else told Danielo
that his doctor had any concerns about the use
of that device on his leg. Although plaintiff’s
expert suggested that it is “common
knowledge” that this device would cause a
problem to the skin of a diabetic, the Court
finds that conclusory opinion to be entirely
unpersuasive in light of the lack evidence to
support it (and the contrary evidence in this
case—namely, the lack of any expressed
concern by plaintiff, his lawyer, his doctor, or
anyone else to Danielo when the device was
put on his leg). Instead, the Court concludes,
under the circumstances of this case, that
Danielo had no reason to believe that Wright
was medically unsuitable for an ankle
bracelet and was not negligent in deciding to
install the device on April 13, 2010 on the
right ankle/leg pursuant to the court order for
electronic monitoring.
Third, to the extent that Wright and his
fiancée testified that Wright first complained
to Danielo in August or September 2010
about discomfort to his leg caused by the
bracelet, the Court finds that testimony not to
be credible in light of all the evidence in the
record and the Court’s evaluation of the
credibility of the witnesses, including their
demeanor. As a threshold matter, Wright
never sought any medical treatment for any
alleged irritation to his skin prior to October
2010. In any event, even assuming arguendo
that the discomfort to the right leg/ankle
began in August/September 2010, the Court
finds that such irritation to the skin was never
mentioned to Danielo prior to October 12,
2010. Moreover, the Court concludes that
Danielo had no duty to conduct a medical
exam of Wright during his home visits to
Second, Danielo was not negligent in
sizing the ankle bracelet by using the width
of his finger to measure the distance between
the bracelet and Wright’s skin, which was
presumably greater than the quarter-inch size
discussed in the manufacturer’s user manual.
As is abundantly clear from the
manufacturer’s manual, the instruction that
the transmitter should be “no more than one2
reasonable for Danielo to expect that Wright
would certainly contact him after the doctor
visit if the doctor believed that the device was
causing the cut and needed to be removed for
medical reasons. In fact, Wright contacted
the Probation Department on October 15,
2010 (three days after his visit to the doctor)
to request permission to leave his home to
meet with his attorney and, even though he
was on the telephone with the Probation
Department, there is no evidence that he
mentioned any ongoing medical issues with
the bracelet. Given these facts on October 12,
2010, including that Wright was about to see
a doctor regarding the cut in a few hours and
Danielo reasonably expected to hear back
from Wright if the bracelet was causing the
irritation and needed to be removed,
Danielo’s actions that day, and any
subsequent failure to affirmatively follow-up
with Wright or his doctor, were not negligent.
inspect for such irritation or to take any other
affirmative actions in the absence of such a
complaint from Wright, or someone on
Wright’s behalf, during the period from April
13, 2010 until October 12, 2010.
Finally, Danielo was not negligent in his
response to the events of October 12, 2010 at
Wright’s residence. Specifically, although
Danielo saw the cut on Wright’s ankle on that
date during the home visit, Wright told
Danielo that he was going to have the cut
examined by his doctor later that day. Under
those particular factual circumstances (which
are uncontroverted), it was not negligent for
Danielo to fail to remove the bracelet
immediately (or to immediately inform the
court or his supervisor of the problem), nor
was it negligent for Danielo to move the
bracelet up and tighten it slightly to keep it
away from the cut for a few hours until the
doctor could determine whether the bracelet
was causing the cut and, if so, whether the
bracelet needed to be removed. In fact,
Danielo instructed Wright to report the
doctor’s assessment to him, and Danielo said
that he would do whatever was in Wright’s
best interest medically going forward. There
is no evidence that, when Wright’s doctor
examined Wright later on that date and
prescribed oral antibiotics for the cut, that he
suggested that the bracelet needed to be
removed to prevent further injury. In fact,
plaintiff’s medical expert at trial testified
that, if the bracelet had been removed after
the doctor visit, the later injuries (which are
the subject of this lawsuit) would not have
occurred. In any event, it is undisputed that
neither Wright nor his doctor ever contacted
Danielo following the office visit to advise
Danielo that the device needed to be removed
for medical reasons. Moreover, the Court
concludes that Danielo had no affirmative
duty to follow up with Wright or his doctor to
confirm that the bracelet did not need to be
removed. In light of the prior conversation
and the circumstances, it was entirely
Accordingly, for these reasons and those
that follow, the government is not liable to
plaintiff under the FTCA, and plaintiff is not
entitled to any damages.
I. BACKGROUND
Plaintiff commenced this action on
March 15, 2013. (ECF No. 1.) On December
4, 2014, plaintiff moved for summary
judgment (ECF No. 33), and the following
day, the government cross-moved to dismiss
for lack of subject matter jurisdiction and for
summary judgment (ECF No. 35). Wright
died in February 2015, and his daughter
Alexis Wright was thereafter appointed as
administrator of his estate and substituted as
plaintiff. (See ECF No. 54.) On May 29,
2015, plaintiff filed an amended complaint
together with a renewed motion for summary
judgment. (ECF Nos. 55-56.) On June 1,
2015, the government renewed its crossmotion to dismiss and for summary
judgment. (ECF No. 57.)
3
By Memorandum and Order dated
February 11, 2016, the Court denied both
parties’ motions. See Wright v. United
States, 162 F. Supp. 3d 118 (E.D.N.Y. 2016).
As a threshold matter, the Court rejected the
government’s argument that it was entitled to
absolute immunity from liability on
plaintiff’s negligence claim on the ground
that Danielo placed the ankle bracelet on
Wright pursuant to an order by United States
District Judge Feuerstein.
Id. at 121.
Because “Judge Feuerstein simply ordered
home detention with electronic monitoring
[and] gave no direction regarding the manner
of such monitoring,” the Court determined
that “any negligence in the application or
maintenance of the ankle bracelet by the
Probation Department [was] not protected by
absolute immunity.” Id. With respect to the
ultimate issue of negligence, the Court found
that neither party was entitled to summary
judgment because of disputed issues of
material fact pertaining to, among other
things, Wright’s claims that (1) he
complained to Danielo in August 2010 about
a rash and irritation on his right ankle prior to
his hospitalization in October 2010 for an
infection to that ankle; and (2) after Wright
showed Danielo a cut on his ankle on October
12, 2010, Danielo moved the bracelet away
from the cut and tightened it so that it would
not slide down, rather than removing the
bracelet or seeking some modification of the
monitoring conditions from the court. Id. at
121-22. Finally, the Court determined that,
even if plaintiff had adduced sufficient
evidence of the government’s negligence,
there were also disputed issues of
comparative negligence that could not be
resolved at the summary judgment stage. Id.
at 122.
Thereafter, in advance of trial, plaintiff
submitted proposed findings of fact and
conclusions of law on December 9, 2016
(ECF No. 68); the government did the same
on December 12, 2016 (ECF No. 69); and
plaintiff filed supplemental proposed
findings on December 13, 2016 (ECF No.
74). The Court held a bench trial from
December 19, 2016 through December 22,
2016. (ECF Nos. 76-79.) Plaintiff presented
the testimony of two expert witnesses—Dr.
Elizabeth Harrington (“Dr. Harrington”), a
vascular surgeon; and Robert Thornton
(“Thornton”), a former federal probation
officer—and the testimony of Dorothy
Sprague (“Sprague”), who was engaged to
Wright prior to his death. In addition,
plaintiff played a video recording of Wright’s
deposition. The government called Danielo
to testify as its sole witness.
After the bench trial concluded, the Court
granted the parties the opportunity to submit
revised proposed findings of fact in light of
the evidence introduced at trial. Plaintiff
submitted proposed findings of fact on
February 10, 2017 (ECF No. 82), and the
government filed its proposed findings on
February 13, 2017 (ECF 85). The Court
subsequently heard summations from
counsel on February 24, 2017. (ECF No. 87.)
The Court has fully considered all of the
evidence presented by the parties, as well as
their written submissions. Below are the
Court’s findings of fact and conclusions of
law.
II. FINDINGS OF FACT
The following section constitutes the
Court’s findings of fact pursuant to Federal
Rule of Civil Procedure 52(a)(1). 2 They are
2
To the extent that any finding of fact reflects a legal
conclusion, it shall be deemed a conclusion of law, and
vice-versa.
4
drawn from witness testimony and the
parties’ trial exhibits. In general, having
considered all of the evidence (including the
credibility of the witnesses), the Court found
Danielo’s testimony to be entirely credible,
but found, as discussed infra, that certain
portions of Wright’s deposition testimony
were not credible. Moreover, as discussed
infra, the Court did not find Thornton’s
expert opinions to be persuasive after
carefully considering them in light of all the
evidence. Because the Court concludes that
the government is not liable to plaintiff, the
Court will only briefly summarize those
findings of fact that pertain to the issue of
damages.
experience
includes
presentence
investigation, supervision, pretrial services,
and pretrial service investigations. (Id. at
177-79.) He held the titles of Probation
Officer, Senior Probation Officer, and
Supervising Probation Officer before
retiring. (Id. at 179-180.) Thornton has
experience with location monitoring,
electronic monitoring, and voice verification
supervision as part of conditions of
probation. (Id. at 181-86.) However, he has
never personally placed an electronic bracelet
on an offender. (Id. at 184, 298.)
3. Sprague
Dorothy Sprague met James Wright
approximately 26 or 27 years ago and was
engaged to him prior to his death. (Id. at 34,
335.) She and Wright had one son named
Connor, and she currently works as a
receptionist for Lexus luxury cars. (Id. at
335-36.)
A. Witness Background
1. Dr. Harrington
Dr. Elizabeth Harrington is a vascular
surgeon licensed to practice medicine in New
York State, as well as a Clinical Associate
Professor of Surgery at Mt. Sinai Hospital.
(Tr. at 36, 38.) 3 She graduated from New
York Medical College in 1975 and has been
a practicing surgeon since finishing a fiveyear residency and a one-year fellowship in
1981. (Id. at 37.) Dr. Harrington has
experience treating patients with diabetes, an
illness that can exacerbate vascular and
cardiovascular diseases. (Id. at 41.)
4. Wright
James Wright was born in 1948 and
resided with his fiancée Sprague and their son
Connor before his death. (Wright Dep. Tr. at
5-6.) 4 He also had a daughter named Alexis
from a prior marriage. (Tr. at 335.) Wright
obtained a master’s degree in education from
New York University and worked for the
William Floyd School District prior to his
retirement in 2005. (Wright Dep. Tr. at 1112.) He died on February 2, 2015. (Tr. at
353.)
2. Thornton
Robert Thornton is a retired United States
Probation Officer who was employed by the
Probation Department for over 27 years. (Tr.
at 176.) During his time as a Probation
Officer, he worked in the Northern District of
Georgia and the Western District of
Washington. (Id. at 177-78.) Thornton’s
5. Danielo
John Danielo began his employment with
the United States Probation Department for
the Eastern District of New York in 1991.
(Id. at 402.) He worked at the Probation
3
4
“Tr.” refers to the transcript of the bench trial held
from December 19 through December 22, 2016.
“Wright Dep. Tr.” refers to the transcript of the May
19, 2014 deposition of James A. Wright.
5
Department’s office in the Brooklyn federal
district court from May 1991 to May 1992.
(Id. at 403-04.) Initially, his duties consisted
of writing presentence reports. (Id. at 40405.) After the latter part of 1992, he had no
further involvement in writing presentence
reports, (Id. at 413.)
GPS, which uses satellite tracking of an
offender’s movements outside of the home.
(Id. at 411-12.)
B. The Criminal Case
On April 11, 2008, the government filed
a criminal information in United States v.
Wright, 08-CR-231 (SJF), charging Wright
with filing a false federal tax return for the
year 2002, which understated his income as
$127,525, when it exceeded $407,023; and
the tax due as $31,898, when it exceeded
$154,688. (Def.’s Exh. (“DX”) A.) 5 On June
20, 2008, Wright signed a plea agreement in
the criminal case whereby he waived
indictment and agreed to plead guilty to tax
evasion, in violation of 28 U.S.C. § 7201.
(DX B.) 6 That same day, he pled guilty, and
Judge Feuerstein accepted his plea to the tax
evasion charge. (DX C.)
In May 1992, Danielo transferred to the
Probation Department’s Long Island office.
(Id. at 404-05.) From the end of 1992 until
May 1995, he supervised a caseload of
offenders. (Id. at 405.) For the next 19 years,
from May 1995 until his retirement from the
Probation Department in June 2013, Danielo
was the sole location monitoring specialist
for all of Nassau and Suffolk Counties and,
for a time, part of eastern Queens County.
(Id. at 406, 415.) He enforced and supervised
compliance with court orders for probation
and home confinement, including restitution.
(Id. at 408-09.) During that period, Danielo
had on average 100 cases a year—30 or 40 at
any particular time—for an approximate total
of 2,000 cases over the course of his career.
(Id. at 407.)
United States Probation Officer Steven
Guttman prepared, and supervising Probation
Officer Carmen Leichtle approved, a
presentence investigation report (“PSR”),
dated November 13, 2008 that noted
Wright’s medical history, including his
diabetes illness, hospitalizations, and
medications. (Pl.’s Exh. (“PX”) 2 at 18-21.)
That same day, the Probation Department
issued a Sentence Recommendation that
recommended, inter alia, a sentence of three
years’ probation with 12 months of electronic
home confinement. (DX E.) 7 The Sentence
Recommendation noted Wright’s medical
ailments, including diabetes, and stated that
the deterioration in his physical condition
over the preceding two to three years
supported a non-custodial sentence. (Id. at
2.) On October 22, 2009, the Probation
In most of the cases that Danielo
supervised, the court had ordered home
confinement with electronic monitoring for
the offender. (Id.)
During Danielo’s
employment with the Probation Department,
all electronic home monitoring in the Eastern
District of New York was done with
electronic ankle bracelets; the Probation
Department did not use electronic wrist
bracelets. (Id.) In addition to electronic
monitoring, other methods of location
monitoring include voice verification, which
employs computer-generated telephone calls
to the offender’s home made at random; and
5
6
DX B was introduced into evidence as Defense
Exhibit 1 to the Wright Deposition. (Tr. at 388.)
To the extent that the government failed to explicitly
offer into evidence court records pertaining to
Wright’s criminal case during the bench trial, the
Court will take judicial notice of them pursuant to
Federal Rule of Evidence 201(b). See Rothman v.
Gregor, 220 F.3d 81, 92 (2d Cir. 2000).
7
DX E was introduced into evidence as Defense
Exhibit 3 to the Wright Deposition. (Tr. at 388.)
6
The transmitter has built-in sensors
that detect whether or not it is
properly placed against the client’s
ankle.
Department issued a second addendum to the
PSR, which noted that Wright underwent a
partial amputation of his left foot due to
complications from diabetes during the
summer of 2009. (PX 2 at 39-42.)
(Tr. at 217, 299-300; PX 3 at 78.) At no point
in the BI User Guide is there any warning that
the electronic bracelet is medically unsuitable
for certain individuals, such as individuals
with severe diabetic conditions, or that a
loosely-fitted bracelet could cause any injury.
On March 3, 2010, Judge Feuerstein
sentenced Wright to three years’ probation,
with the first 12 months to be served under
home detention with electronic monitoring
(DX I), and the court entered a judgment of
criminal conviction that reflected that
sentence on March 18, 2010 (DX J).
The Eastern District of New York
Location Monitoring Manual (the “EDNY
Manual”) also addresses sizing of BI
electronic ankle bracelets. (PX 1 at 44-45.)
It states that (1) the distance between the
bracelet strap and the offender’s skin must
not exceed three-eighths of an inch, and a
finger must fit snugly in between;
(2) the transmitter can rotate from one side of
the ankle to the other but not easily; and
(3) when walking, the bracelet should not
pinch the offender’s ankle. (Id. at 45.) The
EDNY Manual further states that the
probation officer must install the transmitter
“following
the
contractor’s
[BI’s]
instructions . . . Upon installation, [BI] is
required to notify the assigned officer, via
pager of a ‘successful installation.’” (Id. at
44.)
With respect to physical health
problems, the EDNY Manual states:
C. Practices and Polices for Electronic
Monitoring
The electronic ankle bracelets used in the
Eastern District of New York from April to
October 2010 were made by a company
named BI, which also prepared a BI
HomeGuard Series User Guide (the “BI User
Guide”). (Tr. at 213; PX 3.) The BI User
Guide instructs that after the bracelet strap is
fastened, the transmitter portion of the
electronic bracelet should be no more than
one-quarter inch from the ankle; the
transmitter can rotate around the ankle with
resistance in the front and back; and the
transmitter should feel comfortable to the
offender while walking so that the offender’s
ankle does not feel pinched. (Tr. at 215-16;
PX 3 at 26.) The BI User Guide explains that
improper installation or a poor fit may result
in false alerts. (PX 3 at 30.) In addition, in
the “Frequently Asked Questions” Appendix,
the BI User Guide further explains how a
loose-fitting bracelet can result in a false
alert:
Offenders with persistent or chronic
health problems should not be
automatically denied participation in
Location Monitoring. The officer
must assess the offender’s ability to
meet the requirements of Location
Monitoring
and
whether
the
frequency and type of medical
treatment they require is inconsistent
with participation in Location
Monitoring.
However, it is
specifically noted that the equipment
provider has recommended that
individuals with pacemakers should
Can the transmitter be installed a little
loose to allow room for leg swelling?
No.
If the transmitter is not
appropriately sized to the client’s
ankle it sends a false tamper message
to the central monitoring computer.
7
the top of the ankle to the bottom of the calf
and rotate around the ankle with some
resistance. (Id. at 437-38, 520-21.) It was
also Danielo’s practice that after fitting, but
before sealing, the bracelet, he would always
ask the offender if the bracelet was
comfortable, and, depending on the response,
he would adjust it if necessary. (Id. at 43839.) If the offender complained about the
bracelet, Danielo’s practice was to re-adjust
it to make it tighter or looser. (Id. at 439.)
Over the course of his 19-year career as a
location monitoring specialist, Danielo never
received a complaint, other than in the instant
case, that an electronic ankle bracelet had
caused an injury; instead, he only had
complaints of a minor irritation caused by a
bracelet on one or two occasions. (Id. at 440,
473.)
not be fitted with the ankle radio
transmitter. In addition, consultation
with the equipment provider is
required in cases of pregnant
offenders who may be undergoing
ultrasound examination, and any
individuals requiring an MRI or
CAT scan examination.
(PX 1 at 31 (emphasis in original).) The
EDNY Manual makes no reference to any
concerns about utilizing the ankle bracelet on
offenders with a severe diabetic condition.
D. Placement of Ankle Bracelet on Wright
Danielo was not involved in drafting the
Probation Department’s PSR. (Tr. at 412413.) He was assigned to supervise Wright’s
home detention with electronic monitoring
after Judge Feuerstein sentenced Wright to
home
confinement
with
electronic
monitoring on March 3, 2010. (Id. at 420;
DX K at 38-39.)
On March 22, 2010, Probation Officer
Danielo first met Wright in the Probation
Department’s offices in the Central Islip
federal courthouse. (Id. at 422; DX K at 3738.) He reviewed the conditions of the
electronic home monitoring program with
Wright, told him that an electronic bracelet
would be put on his ankle, and explained how
the bracelet would work. (Tr. at 427-28.)
Danielo testified that Wright did not object to
wearing the bracelet, nor did he indicate that
there would be any problem with wearing an
electronic bracelet on his ankle. (Id. at 42728.)
An electronic ankle bracelet consists of a
rubber strap and a transmitter. (Tr. at 435.)
The strap has a rail that slides and is screwed
into both sides of the transmitter. (Id.; see
also PX 3 at 21.) To properly function, the
electronic bracelet must be fitted so that the
transmitter is close enough to the skin to send
a signal, but not too loose, or it will send a
false tamper alert. (Tr. at 435-38, 467-468.)
Danielo was trained by his predecessor,
through on-site observation and hands-on
experience, to apply an electronic bracelet on
an offender’s ankle using the “one-finger
rule.” (Id. at 436-37.) That is, after fitting
the bracelet on the ankle, but before sealing
it, Danielo’s practice was to insert the bottom
tip of his index finger into the bracelet to
ensure that the transmitter was close enough
to the skin to avoid a false tamper alert. (Id.
at 436, 513.) The bracelet was supposed to
have some “play” so that it could slide from
After Danielo reviewed the conditions of
the electronic home monitoring program with
Wright, they both signed a Home
Confinement
Program
Participant
Agreement. (Tr. at 429-31; DX K at 38; DX
L.) The agreement provided that “[w]hile in
the home confinement program [Wright]
agree[d] to wear a non-removable ankle
bracelet that w[ould] be attached by [his]
officer.” (DX L at ¶ 8.) Wright testified that
he did not recall objecting to this provision at
the time he signed the agreement. (Wright
8
Thornton testified that, in his opinion,
Danielo was negligent and should have
realized that Wright was not a suitable
candidate for an electronic bracelet when he
saw Wright’s partial left foot amputation
because
Dep. Tr. at 49-50.) In addition, Wright
agreed “not to remove or tamper with the
ankle bracelet (transmitter) except in a life
threatening situation or with the prior
permission of [his] officer,” and “to allow
authorized personnel to inspect and maintain
the ankle transmitter and receiver/dialer.”
(DX L at ¶¶ 13-14.) Wright testified that he
understood that the electronic ankle bracelet
“was part of the sentence,” and that Danielo
was following a court order when he placed
the electronic bracelet on Wright’s ankle.
(Wright Dep. Tr. at 40-41.)
it is common knowledge that with
somebody that ha[d] diabetes as bad
as Mr. Wright had, that the
neuropathy that goes along with that,
1, can damage the nerves so that the
person really can’t feel pain and then,
2, what may be normal or not cause
any type of rash or rub or damage on
a person without diabetes could
certainly cause an ulcer, rubbing,
sore, and subsequently infection with
somebody that has Type 2 diabetes as
bad as Mr. Wright had.
On April 13, 2010, Danielo went to
Wright and Sprague’s residence to install the
electronic monitoring equipment and to place
the electronic bracelet on Wright’s ankle.
(Tr. at 433-41; DX K at 36.) Danielo first
intended to place the bracelet on Wright’s left
ankle but, due to Wright’s partial left foot
amputation, he instead placed the bracelet on
the right ankle, which was a “normal” ankle.
(Tr. at 503-04, 507-08.) It was Danielo’s
ordinary practice to read a PSR and any
addenda thereto before meeting with an
offender under his supervision; however, he
could not recall at trial whether he had read
the second addendum to Wright’s PSR noting
the amputation prior to April 13, 2010. (Id.
at 502-07.) Despite observing the partial
amputation of Wright’s left foot, Danielo did
not have any concerns about placing the
electronic monitoring bracelet on Wright’s
right ankle, and he did not ask Wright about
the amputation or notify the court or his
supervisors in the Probation Department of
the amputation. (Id. at 507-08.) Wright
testified that he did not object to placement of
the bracelet on his right ankle or complain
that it was either too tight or too loose.
(Wright Dep. Tr. at 58-60.) After Danielo
installed the electronic bracelet, BI sent a
notice of a successful installation. (PX 2 at
256.)
(Tr. at 228-29.) The Court questioned
Thornton as to whether it is “common
knowledge that a loosely fitted bracelet on a
person with diabetes can exacerbate the
diabetes [and] is a medical problem . . . that
it is common knowledge that a diabetic skin
is more vulnerable to irritation than a healthy
person’s skin[?]” (Id. at 329-30.) Thornton
responded that is common knowledge that
diabetes “affect[s] the lower limbs” and that
the weight of the bracelet could accordingly
irritate a diabetic’s skin. (Id. at 330-31.) As
discussed infra, the Court does not find this
conclusory opinion to be persuasive.
In addition, Thornton testified that, in his
opinion, Danielo was negligent in using the
“one-finger rule” to determine the proper
distance between Wright’s skin and the ankle
bracelet, and that Danielo should have
followed BI’s instructions and used a quarterinch sizing. (Id. at 229-30.) He also said that
the three-eighths of an inch sizing
recommended by the EDNY Manual would
result in a looser ankle bracelet that could
9
electronic monitoring due to his medical
condition, the Court does not find Danielo to
be negligent (1) in failing to recognize that
issue on his own at the time he installed the
device, or (2) in how he installed the bracelet
on Wright’s leg. In reaching this conclusion,
the Court has carefully analyzed, inter alia,
Thornton’s opinions and finds them
unpersuasive in this particular case in light of
all the evidence.
result in false signals and abrasions to the
offender’s ankle. (Id. at 219-20.) Thornton
said that a probation officer could use a ruler
to gauge the proper distance between the
offender’s skin and the ankle bracelet, but he
acknowledged that “generally, it is not a
common practice [to use a ruler] after the
person has done it for a period of time.” (Id.
at 301.) Danielo testified that he helped to
draft the EDNY Manual and acknowledged
that it allowed for looser sizing than the BI
User Guide. (Id. at 511-12.) The Probation
Department did not consult with any doctors
or BI when drafting the EDNY Manual. (Id.
at 517-18.) Danielo also allowed his finger
to be measured at trial and admitted that its
width exceed a quarter-inch, though that
measurement was not precise. (Id. at 51215.)
E. Supervision of Wright from April to
October 2010
Federal probation officers are required to
keep
a
computerized
chronology
documenting their supervision of an
offender, and that chronology must include a
record of each contact with the offender. (Tr.
at 417-20.) Danielo kept such a chronology
of his supervision of Wright that recorded all
of his interactions with Wright, and either he
or his administrative assistant Lolita Brown
made the appropriate entries. (Id. at 418-19;
DX K.)
Dr. Harrington testified that, in her
opinion, Wright was a poor candidate for
electronic monitoring on his leg. (Id. at 4951.) This was because he had peripheral
neuropathy, which means that he did not have
feeling in his foot, and thus could not sense
the bracelet riding up and down his leg and
know whether it was irritating his skin or
causing a problem. (Id. at 50.)
Dr.
Harrington further testified that Wright had
problems with his memory and could not
visually inspect himself and take care of the
bracelet. (Id. at 50-51.) She also testified
that, in her opinion, the manner in which the
ankle bracelet was placed on Wright’s leg
caused his injury because “[h]e had
peripheral neuropathy. His skin was not the
same as another individual. He already had an
amputation of his forefoot on the other
side . . . [T]he fact that this bracelet rode up
and down and was loose caused him the
irritation, subsequent ulcer, and all the
subsequent problems that ensued.” (Id. at 5859.)
After placing the bracelet on Wright’s
ankle on April 13, 2010, Danielo personally
visited Wright at his residence on five
occasions selected at random and
unannounced in advance: April 30, June 16,
July 8, September 9, and October 12, 2010.
(Id. at 530.) Danielo made entries to his
chronology describing those visits. (DX K at
23, 30, 31, 33.) In the interim, he also had
telephone contacts with Wright. (E.g., Tr. at
540.)
Danielo’s practice during visits to
Wright’s residence was to inspect the
premises, discuss issues relating to probation,
and check the monitoring unit and electronic
bracelet to ensure that they were functioning
properly and were not tampered with. (Id. at
448.) He would also ask Wright to lift his
pant leg so that he could see the ankle
bracelet. (Id.) During Wright’s home
As discussed in detail infra, even if
Wright may have been a poor candidate for
10
confinement, from April to October 2010,
there was no indication that Wright or anyone
else had tampered with the monitoring
equipment or the electronic bracelet. (Id. at
467-68.) Moreover, Danielo never received
an alert indicating that the bracelet was too
loose on Wright’s ankle. (Id. at 468.)
(Tr. at 339-40.) The Court does not find
either Wright’s or Sprague’s testimony to be
credible and, instead, finds that Danielo was
unaware of any issues regarding the use of the
ankle bracelet until October 12, 2010.
The chronology also does not reflect, and
Sprague did not assert, that Danielo ever
denied Wright a request to leave his residence
to seek medical treatment or for daily needs
and activities, known as “one-timers.” (Id. at
306-307, 366, 446.) In supervising an
offender, a probation officer can program the
monitoring equipment to permit one-time, or
temporary, schedules allowing the offender
to leave his residence for a particular purpose
at a particular time, such as religious
observation, shopping, or a medical
appointment. (Id. at 413-15.) For instance,
from April 15 to July 31, 2010, Wright
requested and received leave from home
confinement on 33 days to, among other
things, attend his son’s baseball games, visit
his future sister-in-law, pick up prescriptions,
grocery shop, run errands, and tend to another
property of his in anticipation of a sale. (Id.
at 441-62; DX K at 29-36.)
Danielo credibly testified that, prior to
October 12, 2010, neither Wright nor anyone
on his behalf ever complained to Danielo,
during any of those home visits or telephone
calls, about the ankle bracelet. (Id. at 446448; 465-67.) He further testified, in a
credible manner, that his chronology would
have reflected any such complaints, and there
are no chronology entries that indicate that
Wright complained about the ankle bracelet
prior to October 12, 2010. 8 (Tr. at 465; DX
K at 23-40.)
Wright testified, however, that he first
felt discomfort in his ankle around August
2010 when his ankle became “irritated”
because the bracelet rubbed and chafed
against it. (Wright Dep. Tr. at 68-69.) He
testified that, at that time, there was no cut or
infection on his ankle. (Id. at 71.) He also
said that he complained to Danielo “a couple
of times” but not to anyone else because
Danielo “was God.”
(Id. at 69-70.)
Similarly, Sprague testified that Wright’s leg
became irritated in August or September
2010 and that Wright complained to Danielo,
but Danielo did not do anything in response. 9
On April 19, 2010, after the electronic
ankle bracelet had been attached, Wright
received leave to visit his podiatrist, Dr.
Furst. (Tr. at 442; DX K at 35-36.) Dr.
Harrington testified that Dr. Furst was aware
from the course of his treatment that Wright
was diabetic. (Tr. at 147-48, 150-52.) Dr.
8
To the extent there was any suggestion that the
entries were altered in any way after the fact to support
Danielo’s testimony, the Court finds no credible
evidence to support that suggestion.
12, 2010]? A. Well, there was a problem basically the
whole time – well, yes, yes. Q. So the first time you
know there was a problem with the ankle was about
four days before you saw Dr. Lucks, correct? A. Yes.
Q. Which would be October 8th? A. Yes. Q. And
you first realized the severity of the problem on
October 12th, right, correct? A. On or around that
time. Q. And again you first noticed irritation about
four days before seeing Dr. Lucks? A. Around – right,
around that time – I can’t commit to dates, I can’t,
around that time.” (Tr. at 368-69.)
9
The Court notes that Sprague’s testimony on this
issue was far from consistent. For example, although
testifying that the irritation began in August or
September 2010, on cross-examination, she testified
as follows: “Q. And isn’t it [] true that the first time
you knew there was a problem with the ankle was a
few days before you went to see Dr. Lucks [on October
11
diabetes. (See PX 6 at 114-53.) Danielo
credibly testified that he was unaware of any
discomfort on Wright’s ankle from the
electronic bracelet prior to that visit, when
Wright showed Danielo a cut on his ankle
that had become infected, according to
Wright, due to irritation from the rubbing of
the ankle bracelet. (Tr. at 471-72, 477, 481;
DX K at 23.) This was the first time that
Danielo had ever been told by an offender
that an electronic bracelet caused a cut or an
infection. (Tr. at 473.)
Furst did not contact Danielo or anyone at the
Probation Department to complain or
otherwise advise that it was improper or
unsafe for Wright to wear an ankle bracelet.
(Id. at 152, 442.) From April to October
2010, there was no medical record indicating
that Wright sought any treatment for injury
caused by the ankle bracelet or that a doctor
spoke to the Probation Department on
Wright’s behalf. (Id. at 152.) Wright also
testified that he never sought medical
treatment for irritation or injury caused by the
ankle bracelet during this period, even after
the bracelet allegedly began to chafe his skin
in August 2010. (Wright Dep. Tr. at 63-70.)
Moreover, in light of the Court’s evaluation
of all of the evidence (including the
credibility of the witnesses), the Court does
not find credible Wright’s testimony that
Danielo told him that he could not leave his
home to attend medical appointments. (Id. at
74-75.)
Danielo also credibly testified that he told
Wright and Sprague, who was present during
the October 12, 2010 visit, that Wright
“should go to the doctor and report back to
[Danielo] and whatever the doctor said and
that [Danielo] would do whatever is
necessary in [Wright’s] best interest
medically to go forward.” (Id. at 472, 474;
DX K at 23.) Danielo also moved the
bracelet away from the cut up Wright’s leg;
tightened it one notch (allowing it to still
move up and down and rotate around the
ankle) so that the bracelet would not slide
down to the cut; and told Wright to put a band
or a sock around the bracelet to hold it in
place off of the cut until Wright visited Dr.
Lucks. (Tr. at 472, 474-75; DX K at 23.)
F. October 12, 2010 Visit
Sprague testified that she first noticed a
problem with Wright’s right ankle on
October 8, 2010. (Tr. at 368-69.) Sprague
told Wright to see a doctor for his ankle, but
Wright refused because he had no medical
coverage. (Id. at 376.) After Sprague had
seen redness on Wright’s ankle, she observed
that it “seemed to have gotten worse, almost
like in a matter of 24 to 48 hours.” (Id. at
374.) She and Wright first realized the
severity of the condition of the right ankle on
October 12, 2010, when they saw an open
wound. (Id. at 369, 371, 374.)
At trial, Danielo further testified that he
did not consider cutting off the ankle bracelet
at that time and provided the following
rationale:
It’s not my job, there’s a court order
to be on home confinement. The only
reason that we would ever cut a
bracelet off would be if they were in
the hospital or arrested in jail,
something like that, where tests
needed to be done. So there would be
no reason, he was going to the doctor
to see what the problem was and we
Before Danielo made a random home
visit that day, Wright had already made an
appointment with his long-time treating
physician Dr. Alan Lucks for later in the
afternoon. (Id. at 374, 471-72.) At the time,
Dr. Lucks had treated Wright continuously
for 21 years, since 1989, including for his
12
that Wright asked for and received
permission to meet with his attorney on
October 18 and with Dr. Lucks on October
19, 2010. (DX K at 23.) The entry contained
no indication (nor did Wright even assert)
that he mentioned any ongoing issues with
the bracelet during these subsequent
interactions with the Probation Department.
were going to plan to address it. I had
left it with him to give me a call.
(Id. at 478.) Danielo acknowledged that,
even after tightening the bracelet, it still
could have slid down Wright’s leg and
further irritated the cut. (Id. at 525.)
Dr. Lucks examined Wright later that day
and diagnosed an “ulceration” on the ankle
which was “stable.” (Id. at 73.) His notes
indicate that the irritation began in August
2010 (without providing the basis for that
statement). (Id. at 64; PX 6 at 77.) Dr. Lucks
prescribed oral antibiotics, and sent Wright
home, and Dr. Harrington testified that, in her
opinion, Dr. Lucks’ treatment was
appropriate because there was not, at that
time, any evidence of osteomyelitis, which is
an infection of the bone. (Tr. at 74-75, 16970.) Dr. Lucks’s examination notes indicate
that he was not concerned that Wright’s leg
was tender or swollen, that there was an
infection going up the leg, or that there was a
systemic problem. (Id. at 74.)
Dr.
Harrington further testified that had she
treated Wright on October 12, 2010, she
would have recommended removal of the
ankle bracelet, but said that there was no
evidence that Dr. Lucks provided such a
recommendation to Danielo. (Id. at 169.)
She also said that, in her opinion, had the
bracelet been removed on that day, Wright’s
subsequent hospitalizations would not have
occurred. (Id. at 170.) Dr. Herrington further
testified that, in her opinion, Danielo’s
actions on October 12, 2010 were
“substantial factors” in aggravating the injury
to Wright’s ankle. (Id. at 81-83.)
Thornton testified that, in his opinion,
Danielo was negligent in not removing the
ankle bracelet on October 12, 2010 and
exacerbated the cut on Wright’s ankle by
tightening the bracelet and telling Wright to
use a band to hold it in place. (Tr. at 267-71.)
In addition, Thornton said that, in his
opinion, Danielo was negligent in not
informing his supervisors or the court about
Wright’s injury, and that had he done so, the
court would have modified Wright’s
monitoring conditions to voice verification.
(Id. at 273.) As discussed in detail infra, the
Court disagrees with Thornton’s opinions
that Danielo’s actions on October 12, 2010
were negligent. Instead, the Court concludes
that the actions were reasonable in light of
the particular circumstances that he
confronted, including the fact that Wright
was seeing a doctor later that day, and
Danielo was prepared to implement whatever
modifications to the ankle bracelet that the
doctor deemed medically necessary.
G. Wright’s Hospitalization and Medical
Treatment
On October 16, 2010, Wright called
Danielo to advise that he had checked into
John Mather Memorial Hospital, and Danielo
gave permission to the emergency room
doctor who treated Wright to cut off the
electronic bracelet. (Id. at 480-81; DX K at
22.) Sprague testified that the doctor stressed
that there was a very serious infection to
Wright’s leg caused by the ankle bracelet,
and that he was going to cut off the bracelet
with or without permission. (Tr. at 343.)
Danielo credibly testified that he never
received a call from Wright, Dr. Lucks, or
anyone else providing medical information
until October 16, 2010. (Id. at 478.) Neither
Wright nor anyone else contradicted that
credible testimony. Instead, the chronology
includes an October 15, 2010 entry indicating
13
underwent two surgeries resulting in a belowthe-knee amputation of his right leg, causing
Wright to experience extreme pain and
discomfort. (Id. at 123-140.) Moreover,
Wright’s quality of life and his relationships
with Sprague and his children declined. (Tr.
at 351-53; Wright Dep. Tr. at 120-24.)
Dr. Harrington testified that the
emergency room records reflect that Wright’s
medical condition had worsened since
October 12, 2016 because there was infection
streaking and swollen warm central
ulceration on his leg indicative of full-body
sepsis. (Id. at 77-78.) A bone scan was
performed on October 18, 2010 that yielded
findings consistent with the clinical suspicion
of osteomyelitis. (Id. at 81.) Dr. Harrington
further testified that, in her opinion,
Danielo’s decision to tighten the bracelet on
October 12, 2010, rather than to remove it,
was a substantial factor in aggravating the
injury to Wright’s right ankle and causing the
resulting osteomyelitis because the bracelet
continued to rub against his skin, irritate the
wound, and cut off circulation to his lower
leg. (Id. at 81-82.) While hospitalized,
Wright was on antibiotics for 62 days and
underwent six debridement surgeries to
remove necrotic tissue. (Id. at 85-95, 106.)
Wright reported severe pain during this
period. (Id. at 95-102.)
H. Termination of Electronic Monitoring
On January 4, 2011, after Wright had
been discharged from the hospital, Wright
signed an agreement under which he waived
his right to a hearing and to counsel and
agreed to a modification of the terms of his
home confinement from electronic to nonelectronic home confinement. (Tr. at 484485; DX M.) On February 9, 2011, Wright
signed a Voice Verification Participant
Agreement. (Tr. at 485-86; DX N.) Finally,
by memorandum dated April 27, 2011, which
was approved by his supervisor, Danielo
petitioned the court to end Wright’s home
confinement. (Tr. at 487-488; DX P.) The
court approved the request on May 5, 2011,
and Wright’s home confinement ended. (Id.)
On October 25 and November 1, 2010,
Sprague told Danielo that he had been aware
of Wright’s infection before October 12,
2010. (Id. at 481-84; DX K at 20-21.)
Danielo denied this and reiterated that he first
learned of the infection on October 12, and
that he had said that he would do whatever
was in Wright’s best interests medically
regarding the bracelet. (Id. at 481-84; DX K
at 20-21.)
III. CONCLUSIONS OF LAW
A. Legal Standards
Plaintiff bears the burden to prove all
elements of his negligence claim by a
preponderance of the evidence. See, e.g.,
Craig Test Boring Co. v. Saudi Arabian
Airlines Corp., 138 F. Supp. 2d 553, 557
(S.D.N.Y. 2001). “Under the FTCA, courts
are bound to apply the law of the state
. . . where the accident occurred.” Makarova
v. United States, 201 F.3d 110, 114 (2d Cir.
2000) (citing Richards v. United States, 369
U.S. 1, 10-15 (1962)). Accordingly, the
Court applies New York law to assess
liability in this case.
Wright was again admitted into John
Mather Memorial Hospital from April 25
through May 27, 2011 and from August 10
through September 1, 2011, during which
time he underwent four additional surgeries.
(Tr. at 103-110, 112-13.) Wright was also
admitted to Stonybrook University Hospital
from January 29, 2013 through March 4,
2013 and was diagnosed with bacteremia due
to the chronic ankle infection and
osteomyelitis. (Id. at 117-21.) As a result, he
The elements of a negligence claim
brought under New York law are well-
14
settled. They are as follows: “(i) a duty owed
to the plaintiff by the defendant; (ii) breach of
that duty; and (iii) injury substantially caused
by that breach.” Lombard v. Booz-Allen &
Hamilton, Inc., 280 F.3d 209, 215 (2d Cir.
2002); see, e.g., Aegis Ins. Servs., Inc. v. 7
World Trade Co., L.P., 737 F.3d 166, 177 (2d
Cir. 2013); Alfaro v. Wal-Mart Stores, Inc.,
210 F.3d 111, 114 (2d Cir. 2000). Thus, a
plaintiff who sues the government for
negligence under the FTCA must prove, by a
preponderance of the evidence, that “(1) the
Government owed a duty to her; (2) the
Government beached that duty by its
negligent conduct; and (3) as a result of that
beach, plaintiff suffered an injury.” Holland
v. United States, 918 F. Supp. 87, 89-90
(S.D.N.Y. 1996) (citing Paulison v. Suffolk
County, 775 F. Supp. 50, 53 (E.D.N.Y.
1991); Akins v. Glens Falls City School Dist.,
53 N.Y.2d 325, 333 (1981)).
Pulka v. Edelman, 40 N.Y.2d 781, 785-86
(1976). Further, “the risk of injury as a result
of defendant’s conduct must not be merely
possible, it must be natural or probable.”
Pinero v. Rite Aid of N.Y., Inc., 743 N.Y.S.2d
21, 22 (App. Div. 1st Dep’t), aff’d, 99 N.Y.2d
541 (2002). In other words,
Even where a duty is owed to the
plaintiff, “[t]he scope of the duty ‘is limited
to risks of harm that are reasonably
foreseeable.’ Foreseeability is defined by
actual or constructive notice [of the particular
risk of harm].” Qin Chen v. United States,
494 F. App’x 108, 109 (2d Cir. 2012)
(quoting Sanchez v. State of N.Y., 99 N.Y.2d
247, 253 (2002)). However, as the New York
Court of Appeals has cautioned,
“A person breaches a duty of care owed
to another if the person fails to exercise
reasonable care under the circumstances in
the discharge of that duty.” Dilworth v.
Goldberg, 914 F. Supp. 2d 433, 458
(S.D.N.Y. 2012); see also Rambert v. United
States, No. 94-CV-1275 (JES) (RLE), 1996
WL 583392, at *3 (S.D.N.Y. Oct. 10, 1996)
(“In New York, negligence is defined as
conduct which falls below that of a
reasonably prudent person under similar
circumstances judged at the time of the
conduct at issue.”).
although virtually every untoward
consequence can theoretically be
foreseen with the wisdom born of the
event, the law draws a line between
remote possibilities and those that are
reasonably foreseeable because [n]o
person can be expected to guard
against harm from events which are
. . . so unlikely to occur that the risk
. . . would commonly be disregarded.
Di Ponzio v. Riordan, 89 N.Y.2d 578, 583
(1997) (alterations in original).
[f]oreseeability should not be
confused with duty. The principle
expressed in Palsgraf v. Long Is. R.R.
Co., 248 N.Y. 339 (1928) . . . is
applicable to determine the scope of
duty—only after it has been
determined that there is a duty. . . .
When a duty exists, nonliability in a
particular case may be justified on the
basis that an injury is not foreseeable.
In such a case, it can thus be said that
foreseeability is a limitation on duty.
Finally, “[c]ausation incorporates at least
two separate but related concepts: cause-infact and proximate cause.” Monahan v.
Weichert, 82 A.D.2d 102, 106 (N.Y. App.
Div. 4th Dep’t 1981). “Cause-in-fact refers
to those antecedent events, acts or omissions
which have so far contributed to the result
that without them it would not have
occurred.” Id. “Proximate cause serves to
limit, for legal or policy reason, the
responsibility of an actor for the
15
October 2010 complaints regarding irritation
caused by the ankle bracelet; (4) did not
remove the ankle bracelet on October 12,
2010 and did not inform the court or his
supervisors of Wright’s injury; and (5) failed
to inquire about the status of Wright’s health
prior to October 16, 2010. However, for the
reasons that follow, the Court disagrees with
plaintiff and finds that Danielo was not
negligent based upon the facts established at
trial.
consequences of his conduct.” Id. More
specifically, proximate or legal causation is
defined as that “which in a natural sequence,
unbroken by any new cause, produces that
event and without which that event would not
have occurred.” Rider v. Syracuse Rapid
Transit Ry. Co., 171 N.Y. 139, 147 (1902).
The Second Circuit has held that
[a]n injury or damage is proximately
caused by an act, or a failure to act,
whenever it appears from the evidence
in the case that the act or omission
played a substantial part in bringing
about or actually causing the injury or
damage, and that the injury or damage
was either a direct result or a
reasonably probable consequence of
the act or omission.
1. Placement of the Ankle Bracelet on
Wright
With respect to plaintiff’s first
contention—that Danielo was negligent for
failing to read the second addendum to the
PSR and for not notifying the court that
Wright was an unsuitable candidate for
electronic monitoring—the Court finds that
plaintiff did not carry her burden of proof.
Jund v. Town of Hempstead, 941 F.2d 1271,
1286 (2d Cir. 1991).
First, Danielo testified at trial that he
could not recall whether he had read, prior to
April 13, 2010, the PSR addendum noting
Wright’s amputation; contrary to plaintiff’s
position, he did not affirmatively admit to
never having reviewed that document. (Tr. at
502-07.) In any event, any purported failure
to read the PSR addendum was not negligent
given Wright’s ability, during the home visit
when the bracelet was installed, to advise
Danielo of any medical issues or other
circumstances that impacted the suitability of
the ankle bracelet. In fact, even assuming
that Danielo had a duty to read the PSR
addendum and did not do so, the Court does
not find that such an omission was the cause
of Wright’s injuries because Danielo saw and
was aware of Wright’s left-foot amputation
before deciding to place the ankle bracelet on
Wright’s right leg. (Id. at 503-04, 507-08.)
Thus, Danielo’s purported failure to read the
PSR addendum was not the “cause-in-fact”
of any injuries that Wright sustained from the
ankle bracelet.
B. Analysis
As a threshold matter, the parties do not
dispute that Danielo owed a duty of care to
Wright, and the Court agrees because an
individual
on
supervised
release—
particularly one who is under electronic
home confinement—“although not in the
state’s physical custody, is nonetheless in its
legal custody, and his or her freedom of
movement, while not as restricted as that of
an incarcerated prisoner, is nonetheless
somewhat curtailed.” Jacobs v. Ramirez, 400
F.3d 105, 106 (2d Cir. 2005).
At trial, plaintiff argued that Danielo was
negligent and breached the duty of care he
owed Wright because Danielo (1) failed to
review the second addendum to the PSR and
notify the court that Wright was not a suitable
candidate for electronic monitoring; (2) sized
the ankle bracelet too loosely in
contravention of the BI User Guide; (3) did
not heed Wright’s and Sprague’s alleged pre-
16
conclusory opinion to be persuasive. 10
Plaintiff did not adduce any evidence to
support this assertion, and Danielo credibly
testified at trial that, over the course of his 19year career, he had never received a
complaint that an electronic ankle bracelet
had caused an injury. (Id. at 440, 473.)
Further, neither Wright nor anyone on his
behalf argued on or before April 13, 2010 that
his medical condition precluded electronic
home monitoring. (Tr. at 427-28.) For
example, neither Wright nor his attorney
objected to the electronic monitoring at the
time of his sentencing. On the contrary,
Wright signed, without objection, a Home
Confinement
Program
Participant
Agreement, which provided that “[w]hile in
the home confinement program [Wright]
agree[d] to wear a non-removal ankle
bracelet that w[ould] be attached by [his]
officer.” (Tr. at 429-31; Wright Dep. Tr. at
49-50; DX K at 38; DX L at ¶ 8.) Likewise,
Wright admitted that on April 13, 2010, he
did not object to placement of the bracelet on
his right ankle or complain that it was too
tight or too loose. 11 (Wright Dep. Tr. at 5860.) Accordingly, the Court cannot conclude
that, as a matter of law, Danielo subjected
Wright “to an unreasonable risk of harm
arising from one or more particular
foreseeable hazards” by fastening the ankle
bracelet to Wright’s right leg or by failing to
request that the court modify its monitoring
order. Di Ponzio v. Riordan, 89 N.Y.2d 578,
Second, plaintiff has not proven that
Danielo breached his duty to Wright by
proceeding with the installation of the ankle
bracelet or by failing to recommend a
modification of the electronic monitoring
sentence
after
observing
Wright’s
amputation. As noted, the duty Danielo owed
Wright under New York law extended only
so far as to encompass “reasonably
foreseeable harms.” See Qin Chen, 494 F.
App’x at 109; Pulka, 40 N.Y.2d at 785-86.
Although plaintiff “‘need not demonstrate
. . . that the precise manner in which the
accident happened, or the extent of injuries,
was foreseeable,’” plaintiff “must show that
the defendant reasonably could have foreseen
the danger against which the defendant
allegedly failed to guard . . . .” Mays v. City
of Middletown, 895 N.Y.S.2d 179, 183 (App.
Div. 2d Dep’t 2010) (quoting Derdiarian v.
Felix Contracting Corp., 51 N.Y.2d 308, 315
(1980)).
Here, the evidence at trial did not
establish that a skin ulceration was among the
ankle bracelet-related dangers that Danielo
could have reasonably foreseen. Although
Thornton testified that it is “common
knowledge” that (1) diabetics experience
neuropathy and therefore “really can’t feel
pain,” and (2) “what may be normal or not
cause any type of rash or rub or damage on a
person without diabetes could certainly cause
an ulcer, rubbing, sore, and subsequently
infection” to someone with diabetes (Tr. at
228-29), the Court does not find this
10
To the extent that plaintiff relies on Thornton’s
testimony that the federal “Bureau of Prisons
recognizes [diabetes as a common illness] and has
created a 50-page manual just addressing the issues of
dealing with offenders that have the issue of diabetes
and how they’re to be treated” (id. at 269) to impute
knowledge of diabetes-related complications to
Danielo, there is no evidence in the record that (1) this
manual discusses neuropathy or skin ulcerations to
diabetics caused by wearing bracelets or similar items;
or (2) Danielo, a former probation officer, ever read
that document.
11
In fact, as discussed infra, even after Wright saw
his podiatrist on April 19, 2010, no request was made
to remove the bracelet. Thus, there is no credible
evidence in the record to support the opinion that it
was “common knowledge” that a diabetic should not
wear an ankle bracelet for the reasons indicated by
Thornton or Dr. Harrington.
17
584 (1997) (citing Restatement (Second), of
Torts § 281, at 6).
256), and, as Thornton acknowledged, there
is no evidence that the bracelet ever sent a
false tamper alert indicating that was there
was too much space between Wright’s skin
and the device (Tr. at 299-300; see also id. at
468). Further, as noted, Wright did not
complain to Danielo on April 13, 2010 about
the sizing of the bracelet (Wright Dep. Tr. at
58-60), and, as discussed infra, Danielo did
not received any indication prior to October
12, 2010 that the bracelet irritated Wright.
In sum, the Court finds that plaintiff has
not proven negligence based on Danielo’s
conduct on or before April 13, 2010. 12
2. Sizing of the Ankle Bracelet
Plaintiff’s next theory of negligence at
trial was that Danielo violated his legal duty
to Wright by sizing the ankle bracelet too
loosely and using the “one-finger rule” to
measure the distance between the bracelet
and Wright’s skin in lieu of the quarter-inch
sizing prescribed by the BI User Guide.
However, the Court concludes that plaintiff
failed to prove by a preponderance of the
evidence that Danielo “fail[ed] to exercise
reasonable care under the circumstances.”
Dilworth, 914 F. Supp. 2d at 458.
Second, the Court finds that it was not
unreasonable for Danielo to use the width of
his finger to estimate the distance between
the device and Wright’s skin. As Thornton
also acknowledged, experienced probation
officers generally do not use rulers to
determine appropriate sizing, and Danielo
was trained to use the “one-finger rule,”
which he did without notable incident for
more than a decade prior to Wright’s injury.
(Id. at 436-37.) 13
First, there is insufficient evidence that
the ankle bracelet was too loose on Wright’s
leg. As the BI User Guide makes clear,
fastening the bracelet strap “a little loose” is
impermissible because doing so “sends a
false tamper message to the central
monitoring computer. The transmitter has
built-in sensors that detect whether or not it is
properly placed against the client’s ankle.”
(PX 3 at 78.) After placing the bracelet on
Wright, Danielo received a “successful
installation” confirmation from BI (PX 2 at
Finally, even assuming that Wright was
under a duty to strictly adhere to the quarterinch sizing prescribed by the BI User Guide,
the Court concludes that the skin ulceration
that Wright sustained was not a “reasonably
foreseeable” consequence of a loose ankle
bracelet. Qin Chen, 494 F. App’x at 109.
The BI User Guide indicates that proper
sizing of the bracelet is intended to prevent
false tamper signals, and makes no reference
12
13
Although Danielo allowed his finger to be measured
at trial and admitted that its width exceed a quarterinch, that measurement was not precise, and the Court
does not find that fact to be dispositive evidence that
Danielo negligently installed the bracelet too loosely.
(Tr. 512-15.) As noted above, even assuming that
Danielo’s “one-finger rule” resulted in a width that
exceed a quarter-inch (or even the three-eighths of an
inch recommendation in the EDNY Manual), it was
not negligent for him to size the bracelet in this
manner, especially given his utilization of that method
for over a decade without incident.
Insofar as plaintiff challenges the Probation
Department’s
Sentence
Recommendation
of
electronic home confinement, quasi-judicial immunity
precludes FTCA liability for negligence. See SaintGuillen v. United States, 657 F. Supp. 2d 376, 380-81
(E.D.N.Y. 2009) (noting that “the Second Circuit has
granted quasi-judicial immunity to probation officers
for preparing pre-sentence reports because, in
preparing such reports, ‘a federal probation officer
acts as an arm of the court and that task is an integral
part of one of the most critical phases of the judicial
process.’” (quoting Dorman v. Higgins, 821 F.2d 133,
137 (1987))).
18
evidence, the Court finds Danielo’s account
to be credible. Conversely, the Court does
not believe Wright’s and Sprague’s
testimony that they told Danielo in August or
September 2010 that the ankle bracelet was
irritating Wright’s skin and that Danielo
refused to act. (Wright Dep. Tr. at 68-71; Tr.
at 339-40.) That account is also at odds with
Danielo’s promise on October 12, 2010 to
“do whatever [was] necessary in [Wright’s]
best interest medically . . . .” (Tr. at 472, 474;
DX K at 23.)
to any medical issues that can result from a
loosely fitting bracelet. That manual did not
put Danielo on “actual or constructive
notice” that improper sizing—namely, a
looser bracelet—could result in the type of
injury that Wright suffered. Id.
In sum, the Court does not agree with
plaintiff that a reasonable standard of care
required Danielo to precisely determine that
the bracelet was a quarter-inch from Wright’s
skin before he fastened the device. Given all
the evidence, including the evidence that
Danielo successfully installed the bracelet
(without prompting an alert) and that Wright
did not register any objections, the Court
finds that plaintiff has failed to carry her
burden of proof on this issue.
Second, the record shows that on April
19, 2010, after the electronic ankle bracelet
had been attached, Wright received leave to
visit his podiatrist Dr. Furst, who did not
contact Danielo to advise that it was improper
or unsafe for Wright to wear an ankle
bracelet. (Tr. at 152, 442; DX K at 35-36.)
Similarly, from April to October 2010, there
is no medical record indicating that Wright
sought any treatment for injury caused by the
ankle bracelet or that a doctor spoke to the
Probation Department on Wright’s behalf.
(Id. at 152.) Wright also testified that he
never sought medical treatment for irritation
or injury caused by the ankle bracelet during
this period, even after the bracelet allegedly
began to chafe his skin in August 2010.
(Wright Dep. Tr. at 63-70.) On the contrary,
prior to October 12, 2010, Wright requested
and received leave to, inter alia, attend his
son’s baseball games, visit his future sisterin-law, pick up prescriptions, grocery shop,
run errands, and tend to another property of
his in anticipation of a sale. (Id. at 441-62;
DX K at 29-36.)
3. Pre-October 12, 2010 Monitoring of
Wright
Plaintiff has also failed to prove that
Danielo was negligent in supervising Wright
prior to October 12, 2010. Plaintiff argued at
trial that Wright and Sprague complained to
Danielo about discomfort caused by the
bracelet in August or September 2010;
however, as already noted, the Court did not
find Wright’s and Sprague’s testimony on
this matter to be credible.
First, Danielo credibly testified that, prior
to October 12, 2010, neither Wright nor
anyone on his behalf ever complained to
Danielo about the ankle bracelet (Tr. at 446448; 465-67), and there are no entries in
Danielo’s meticulous chronology reflecting
any complaints (id. at 465; DX K at 23-40).
In addition, although Sprague told Danielo on
October 25 and November 1, 2010 that he
had been aware of Wright’s infection before
October 12, 2010, Danielo denied that
accusation. (Tr. at 481-84; DX K at 20-21.)
Based on Danielo’s detailed record-keeping
practices and the Court’s evaluation of the
witnesses’ testimony in light of all of the
Finally, although Dr. Lucks’s October 12,
2010 notes indicate that the irritation to
Wright’s skin began in August 2010, there is
no evidence that Dr. Lucks reached that
conclusion based upon his own independent
medical evaluation; rather, it appears that this
note may be based solely on what Wright
reported to Dr. Lucks on that date. In any
19
event, the notes do not indicate that Danielo
was aware of this purported fact. (Tr. at 64;
PX 6 at 77.) As stated supra, even assuming
that Wright did experience pain caused by the
ankle bracelet before Danielo’s October 12,
2010 visit, there is no credible evidence in the
record showing that Danielo was on notice of
Wright’s discomfort. In short, the Court
concludes that plaintiff has not shown that
Danielo was negligent in his supervision of
Wright from April 13, 2010 to October 12,
2010. 14
Court finds that Danielo acted reasonably
under the circumstances by permitting
Wright to leave home confinement to seek
treatment from a medical professional,
instructing Wright to relay Dr. Lucks’s
course of treatment to Danielo, and telling
Wright that he would act in his best medical
interests. (Id. at 472-74; DX K at 23.)
Second, the Court finds that Danielo did
not act unreasonably in adjusting the ankle
bracelet and that, in any event, there is
insufficient evidence that his intervention
was the cause-in-fact of Wright’s subsequent
osteomyelitis and associated injuries.
Danielo moved and tightened the ankle
bracelet so that it would not further irritate
Wright’s wound pending the outcome of
Wright’s appointment with Dr. Lucks later
that day; there is no evidence that Danielo
intended for this alteration to be a permanent
solution as opposed to a short-term,
prophylactic measure. In addition, although
Dr. Harrington opined that Danielo’s
decision to tighten the bracelet exacerbated
Wright’s injury (Tr. at 81-83), the Court finds
that testimony to be hypothetical and that
plaintiff has not “establish[ed], beyond the
point of speculation and conjecture, a factual,
causal connection between [her] losses and
. . . defendant’s actions.” Aegis, 737 F.3d at
179. Under New York law, a “defendant’s
conduct is not a cause-in-fact of an injury or
loss if the injury or loss would have occurred
regardless of the conduct,” id., and there is no
liability for negligence “where there are
several possible causes of injury, for one or
more of which defendant is not responsible,”
4. October 12, 2010 Visit
Plaintiff next contends that Danielo was
negligent on October 12, 2010 because, after
observing the cut on Wright’s ankle, he
(1) did not remove the ankle bracelet;
(2) moved the bracelet up Wright’s leg,
tightened it, and told Wright to hold it in
place using a band or sock; and (3) did not
inform the court or his supervisors of
Wright’s injury. The Court disagrees.
First, the evidence shows that, on October
12, 2010, Wright’s injury was not severe.
Upon examining Wright, Dr. Lucks
diagnosed an “ulceration” that was “stable,”
prescribed oral antibiotics, and sent Wright
home. (Tr. at 73-75.)
Plaintiff’s own
medical expert Dr. Harrington approved of
that course of treatment based on Dr. Lucks’s
notes, testifying that there was no evidence of
osteomyelitis, that Wright’s leg was tender or
swollen, that there was an infection going up
his leg, or that there was a systemic problem.
(Id. at 74-75, 169-70.) Accordingly, the
14
Insofar as plaintiff argues that Danielo was
negligent in failing to closely inspect Wright’s leg
during his September 9, 2010 home visit (Tr. at 24145), there is no evidence that Danielo breached his
duty of care. Danielo testified that his usual practice
during such visits was to check the monitoring unit and
electronic bracelet to ensure that they were functioning
properly and were not tampered with, and to that end,
Danielo would ask Wright to lift his pant leg so that he
could see the ankle bracelet. (Id. at 448.) Even
assuming arguendo that the skin on Wright’s leg was
visibly irritated on September 9, 2010 and that Danielo
would have observed such irritation upon a close
inspection of the ankle bracelet, the Court does not
find that Danielo “fail[ed] to exercise reasonable care
under the circumstances” by observing the bracelet at
a distance. Dilworth, 914 F. Supp. at 458.
20
worsened, and the fact that only a few days
had passed following Wright’s initial
appointment on October 12, 2010, the Court
does not find that reasonable care under the
circumstances required Danielo to ascertain
Wright’s condition before October 16, 2010.
Bernstein v. City of N.Y., 69 N.Y.2d 1020,
1022 (1987). Here, the Court finds that there
is insufficient proof that Danielo’s
adjustment to the bracelet, as opposed to an
independent deterioration of the pre-existing
infection, aggravated Wright’s medical
condition.
That Dr. Lucks, a medical
professional, did not recommend removal of
the ankle bracelet or an alteration to the
adjustment that Danielo made is further
evidence that Danielo’s intervention was not
negligent.
***
As set forth above, the Court concludes
that plaintiff has failed to prove all of the
elements of his negligence claim by a
preponderance of the evidence, and the Court
therefore grants judgment to the government.
“While one could argue, with the benefit of
hindsight, that [Danielo] should have done
things differently,” Qin Chen, 494 F. App’x
at 110, the Court cannot conclude that a
reasonable probation officer should have
(1) foreseen that the ankle bracelet would
injure Wright at the time it was placed on him
when neither the BI User Guide nor the
EDNY Manual described potential injury to
diabetics; (2) used a precise quarter-inch
sizing for the bracelet when Wright did not
complain of discomfort and the manufacturer
confirmed successful installation of the
device, meaning that it was not inordinately
loose on Wright’s leg; (3) removed the ankle
bracelet on October 12, 2010 based on a nonsevere wound and before Wright was
scheduled to seek medical treatment later that
same day; or (4) contacted Wright prior to
October 16, 2010 to check on his medical
condition where Wright had seen his doctor
only a few days prior, and had scheduled
another appointment with his doctor and a
meeting with his attorney without conveying
any ongoing issues to the Probation
Department. In addition, the Court finds that
there is no credible evidence that Wright or
anyone else ever complained to Danielo
about the bracelet prior to October 12, 2010.
Finally, Danielo’s testimony also
demonstrates that he was prepared to
recommend modification of Wright’s
monitoring conditions to voice verification
because he testified, and his chronology
notes, that he reviewed the benefits and
disadvantages of that monitoring method
with Wright on October 12, 2010. (Tr. at
471; DX K at 23.) For the reasons stated
above, the Court finds that Danielo acted
reasonably in taking the actions that he did
and in not immediately seeking such
modification or notifying the court or his
supervisors of Wright’s injury on that day.
5. Post-October 12, 2010 Conduct
Plaintiff’s final argument at trial was that
Danielo was negligent in not contacting
Wright prior to October 16, 2010 to inquire
about his medical status. The Court again
finds that plaintiff did not demonstrate by a
preponderance of the evidence that Danielo
acted unreasonably.
As previously
discussed, Danielo was awaiting further
information from Wright, and neither Wright
nor Dr. Lucks called Danielo before October
16, 2010 regarding Wright’s injury. (Tr. at
478.) Instead, on October 15, 2010, Wright
asked for and received permission to meet
with his attorney on October 18 and with Dr.
Lucks on October 19, 2010. (Id. at 479; DX
K at 23.) In light of that request, which does
not indicate that Wright’s condition had
IV. CONCLUSION
For the foregoing reasons, the Court
concludes that plaintiff has failed to prove by
21
a preponderance of the evidence that
defendant was negligent.
The Court
therefore determines that defendant is not
liable to plaintiff, and that plaintiff is not
entitled to any damages. The Clerk of the
Court shall enter judgment accordingly and
close this case.
SO ORDERED.
_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: July 24, 2017
Central Islip, NY
***
Plaintiff is represented by Joseph Miklos,
Robert A. Miklos, and Daniel Patrick Miklos
of Silberstein, Awad & Miklos, P.C., 600 Old
Country Road, Suite 412, Garden City, New
York 11530. Defendant is represented by
Vincent Lipari of the United States
Attorney’s Office for the Eastern District of
New York, 610 Federal Plaza, Central Islip,
New York 11722.
22
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