New York State Court of Claims

New York State Court of Claims

DOE v. THE STATE OF NEW YORK, #2000-007-527, Claim No. 93735


Synopsis


On September 8, 1995, claimant, an inmate, was assaulted by another inmate while in a recreation cage provided for inmates on keeplock at a State Correctional Facility (hereinafter SCF). Claimant, a former State trooper, contends, inter alia, that the nature of his prior employment was known by inmates on his block, that he had notified defendant that he was concerned about his safety and that defendant failed to provide him with reasonable protection. Claim dismissed.

Case Information

UID:
2000-007-527
Claimant(s):
JOHN DOE Pursuant to the stipulation of the parties at the close of trial, the court will refer to claimant in the decision as John Doe and the correctional facility where the incident occurred will not be specifically identified. Such stipulation was made to protect against widespread dissemination within the prisons of the fact that claimant is a former State trooper. Similarly, the court will refer to fictitious names for a correction sergeant, two correction officers and a psychologist who testified at the trial.
Claimant short name:
DOE
Footnote (claimant name) :
Pursuant to the stipulation of the parties at the close of trial, the court will refer to claimant in the decision as John Doe and the correctional facility where the incident occurred will not be specifically identified. Such stipulation was made to protect against widespread dissemination within the prisons of the fact that claimant is a former State trooper. Similarly, the court will refer to fictitious names for a correction sergeant, two correction officers and a psychologist who testified at the trial.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93735
Motion number(s):

Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
Noel Tepper, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
(Michael W. Friedman, Esq., Assistant Attorney General,of Counsel)
Third-party defendant's attorney:

Signature date:
July 14, 2000
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
On September 8, 1995, claimant, an inmate, was assaulted by another inmate while in a recreation cage provided for inmates on keeplock at a State Correctional Facility (hereinafter SCF). Claimant, a former State trooper, contends that the nature of his prior employment was known by inmates on his block, that he had notified defendant that he was concerned about his safety and that defendant failed to provide him with reasonable protection. Claimant further alleges in his claim that after the attack commenced correction officers in the vicinity failed to intercede in a timely fashion. During the trial the court granted claimant's application to bifurcate the claim and therefore only the issue of liability is currently before the court.

Claimant testified that he is serving sentences for a robbery conviction in 1992 and a conspiracy conviction in 1993. Prior to such convictions he worked for eleven years as a State trooper. Claimant related that he was initially incarcerated at Auburn Correctional Facility (hereinafter Auburn), where he was held on keeplock in general population for one to two weeks. He informed a sergeant at the facility that he was a former trooper and was moved to protective custody. Thereafter, he was charged with criminal conspiracy ostensibly occurring while he was incarcerated and he was placed in Auburn's special housing unit (hereinafter SHU). In 1994, claimant was transferred from Auburn to SCF, where he continued serving his disciplinary penalty in the SHU at such facility.

According to claimant, he made numerous requests to personnel at SCF prior to September 1995 seeking to be transferred to the State's Assessment Program and Preparation Unit (hereinafter APPU). The APPU houses inmates who may have difficulty functioning in general population for a variety of reasons including, among other things, nature of prior employment (
e.g., former troopers, former correction officers), sexual orientation, notoriety of crime committed and existence of enemies (see, Soto v State of New York, Ct Cl, Dec. 23, 1993 [Claim No. 86284], Bell, J.). Claimant stated that he notified administrators at SCF that he was a former trooper and that he feared for his safety. Claimant related that, beginning in early 1995, he was visited approximately twice a week by Mary Smith,[1] a psychologist. He purportedly asked Ms. Smith to notify the facility's superintendent that he was a former trooper. Claimant reiterated that he repeatedly requested placement in either APPU or protective custody.
In early September 1995, because of his good behavior, claimant was moved from SHU to general population keeplock at SCF. He estimated that approximately 500 inmates were on the same status. He stated that general population keeplock inmates were kept in their cells 23 hours per day. Their one hour of recreation per day was provided in "a bunch of cages"[2]
in the yard. Claimant said that five keeplock inmates at a time would be placed in a recreation cage. He contrasted such arrangement with inmates on protective custody, who allegedly received recreation with a maximum of two inmates per cage.
On September 8, 1995, claimant and four other inmates were placed in a recreation cage. Claimant recalled that he was conversing with one inmate when another inmate suddenly attacked him from behind. The assailant punched claimant on the left side of his head. Claimant testified that the assailant "kept punching" him. Claimant related that he was unable to defend himself because the assault caused him to suffer a sudden asthma attack. Claimant testified that correction officers watched from outside the cage while the assault continued. He stated that "after a while" a sergeant arrived and the assailant stopped punching him. Claimant was unable to estimate the length of time of the assault.

Claimant recalled that, immediately before the initial punch, the assailant stated "scum bag" and either "pop" or "cop." Claimant indicated that he had not had any prior contact with the assailant. He stated that he did "not know him at all." Following the incident, claimant was offered protective custody, but he refused such protection (
see, Defendant's Exhibit A).
Mary Smith was called by claimant as a witness. Ms. Smith testified that she is not an employee of the Department of Correctional Services. She is a psychologist for the State Office of Mental Health. Her duties included visiting inmates on SHU at SCF. She recalled that, prior to the incident, claimant informed her that he was a former trooper. She did not recall claimant's telling her that he believed he was in danger. Nor did she recall claimant's asking her to speak to the superintendent about his status as a former trooper. Ms. Smith acknowledged writing a memorandum to a lieutenant at the facility informing him that another inmate on the block had told her that he knew that claimant was a former trooper. She recalled that the conversation with such inmate occurred before the assault and that her memorandum was prepared after the assault. The inmate who related such information to Ms. Smith was not the assailant.

Correction Officer Robert Jones[3]
was assigned to keeplock recreation on the date of the incident. He stated that keeplock recreation was comprised of four cages measuring about 16 feet by 40 feet. The cages were also about 14 to 16 feet high. They were covered on all sides and the top by wire mesh. Inmates in general population keeplock were placed in groups of five per cage for their one hour of recreation. The groups of five inmates were selected in random order depending on when they exited the housing unit. Officer Jones stated that he did not know claimant was a former trooper. He saw claimant being struck several times by the assailant. Officer Jones recalled that claimant made no attempt to defend himself. The officer stated that he immediately called an alarm over the radio indicating that a fight was in progress. He stated that he ordered the inmates to stop fighting, but he did not immediately enter the cage because the established procedures provided that, unless a life-threatening situation existed, correction officers were not supposed to enter a cage until a supervisor arrived. Officer Jones estimated that a sergeant arrived within 10 to 15 seconds and that the assailant then heeded the orders to stop fighting. He estimated the total time of the assault as approximately 30 seconds.
Correction Officer James Green[4]
was assigned to keeplock recreation on September 8, 1995. His testimony was consistent with that of officer Jones. Officer Green added that he did not hear any correction officers yelling or provoking the fight in any fashion.
Claimant offered into evidence interrogatories from the facility's Superintendent and Deputy Superintendent for Security. Both individuals acknowledged that they were aware prior to the assault that claimant was a former trooper. Neither individual was aware of any special danger to claimant prior to the assault. The Deputy Superintendent indicated that claimant was moved to long term keeplock from SHU at the request of claimant and based upon positive evaluations from the SHU staff.

Sergeant Paul Brown[5]
testified that he was the supervisor of numerous areas including the keeplock recreation yard on September 8, 1995. He stated that at the time he received the radio call about a fight in progress he was monitoring a movement of inmates between "chow" and "industry." He estimated that he was positioned about 100 to 150 feet from the cages when he received the call and that he was able to get to the area in less than 10 seconds. The fight was still in progress when he arrived. Consistent with the controlling written procedures, no officer had entered the cage prior to Brown's arrival. Several direct orders to stop the fight were issued and the fight ceased without officers having to physically intercede. Sergeant Brown interviewed both inmates following the fight. Claimant stated to him that he did not know why he was assaulted. The assailant told the sergeant he attacked claimant because he had been "running his mouth on his cell gate."
Well-established precedent provides that the State has a duty to provide inmates with reasonable protection against the foreseeable risk of attack by other inmates (
see, e.g., Flaherty v State of New York, 296 NY 342; Blake v State of New York, 259 AD2d 878). The State is not, however, an insurer of the safety of inmates and the fact that an assault occurs does not give rise to an inference of negligence (Schittino v State of New York, 262 AD2d 824; Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711). Indeed, by their very nature of being filled with often violent criminals, correctional facilities continually face the potential of violence within their walls and it has been observed that, absent locking inmates in their cells 24 hours a day, some brutality among inmates unfortunately seems inevitable (Farmer v Brennan, 511 US 825, 858-859 [concurring opn]; see, Jones v North Carolina Prisoners' Labor Union, 433 US 119, 132). Liability for an inmate-on-inmate assault generally must be predicated upon persuasive evidence that the victim was a known risk, the State failed to intervene despite ample notice and opportunity to prevent the assault, or the assailant was known to be particularly prone to assaultive conduct and proper precautionary measures were not employed (Stanley v State of New York, 239 AD2d 700, 701; see, Littlejohn v State of New York, 218 AD2d 833; Sebastiano v State of New York, 112 AD2d 562).
Claimant contends that as a former State trooper he was a known risk for assault and defendant failed to provide proper protection. Since certain inmates, such as former law enforcement officials, may be more susceptible to attack by other inmates, claimant's status as a former trooper is a relevant factual factor in determining whether he was afforded reasonable protection. The evidence reflected, however, that claimant was not cast unwillingly into the general population of the prison. He was on keeplock status, which is one of the many forms of restrictive confinement within the prisons. On such status, he was housed in his cell 23 hours per day. His recreation took place with only four other inmates and was closely monitored by correction officers. While claimant's placement on keeplock status was the result of a disciplinary violation, such status also served to diminish significantly his exposure to other inmates. Moreover, the interrogatory of the Deputy Superintendent for Security reflected that claimant had requested a transfer to keeplock from the even more restrictive SHU.

Claimant acknowledged that he did not have any prior problems with his assailant. The assailant's purported statement that claimant was a "scum bag" and either "pop" or "cop" is not convincing evidence that the assault was perpetrated because of claimant's former employment. Significantly, claimant declined protective custody following the assault. Such action is inconsistent with claimant's contention that prior to the assault he had requested to be moved to protective custody. Moreover, going to recreation was optional and if claimant believed his security was at significant risk, he could have remained in his cell. The court is not convinced that a preponderance of the credible evidence establishes that defendant failed to provide reasonable protection under the prevailing circumstances.

Similarly unavailing is claimant's argument that the correction officers failed to intercede in a timely fashion. When the fight started, an officer immediately called for a supervisor. The officers also ordered the assailant to stop. The officers did not enter the cage because established procedures required the presence of a supervisor before an officer entered a cage unless a life-threatening situation existed. The officers' decision to follow the established procedures was proper (
see, Pierrelouis v State of New York, 255 AD2d 824, 826). The evidence established that a sergeant arrived and the fight ceased within approximately 30 seconds from the time it had started. The actions of the employees of defendant were not unreasonable under the circumstances.
Claimant's indignation at having sustained injuries in an apparently unprovoked attack cowardly perpetrated from behind is understandable. Nevertheless, in the absence of culpable conduct, defendant is not obligated to compensate an inmate for the villainous conduct of another inmate. Defendant's motion to dismiss, upon which the court reserved at trial, is now granted and the claim is dismissed.

The Chief Clerk of the Court of Claims is directed to enter judgment accordingly.


July 14, 2000
6 abPlattsburgh, New York
6 ab
6 abHON. JOHN L. BELL
6 abJudge of the Court of Claims
6 ab



[1]
Fictitious name, see, footnote 1.
[2]
Unless otherwise noted, all quotes are from the court's trial notes.
[3]
Fictitious name, see, footnote 1.
[4]
Fictitious name, see, footnote 1.
[5]
Fictitious name, see, footnote 1.