New York State Court of Claims

New York State Court of Claims

KRALL v. THE STATE OF NEW YORK, #2000-007-531, Claim No. 93507


Claimant was assaulted by an inmate while incarcerated at Clinton Correctional Facility. Claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

John L. Bell
Claimant's attorney:
O'Connor, O'Connor, Mayberger & First, P.C.(Justin O'C. Corcoran, Esq., of Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Belinda A. Wagner, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
October 26, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

On January 3, 1996, inmate Sean Grey entered claimant's cell at Clinton Correctional Facility (hereinafter Clinton) and stabbed him several times. Claimant contends, among other things, that prior to the assault he notified a correction officer that Grey had threatened him and, furthermore, that Grey should have been segregated from general population because of his disciplinary and psychiatric record. The trial was bifurcated and thus evidence was limited to the issue of liability.

Claimant, who is no longer incarcerated, testified that in January 1996 he was housed on B block at Clinton. He related that because of his good behavior he had received an assignment as a clerk, which was an "honor job."[1]
His prison job purportedly afforded him additional freedom on the cell block as well as access to information as to which inmates were on keeplock status. Claimant recalled that approximately one to two months before the subject assault inmate Grey moved into the cell next to him on B block. According to claimant, Grey was "always keeplocked." He asserted that Grey would "get out for a few days, get a ‘ticket' and be back in keeplock." Claimant stated that he observed scars on Grey's wrists and that he had gleaned from conversations with Grey that he had prior mental health problems.
Claimant testified that Grey stated to him that he wanted mental health services. According to claimant, he relayed Grey's request to correction officers and a sergeant about "a half dozen times" during the three days prior to the assault. Claimant related that on the morning of the assault he told an officer that Grey needed to see a psychologist. Claimant was unable, however, to recall the names of any of the prison personnel to whom he purportedly relayed the information about Grey.

Claimant further testified that one or two days before the assault, Grey had threatened claimant. According to claimant, Grey threatened to "kick his ass." Claimant stated that he reported the conversation to a correction officer. The officer purportedly responded that he could not do anything because Grey had not yet harmed claimant. Claimant was again unable to identify the officer with whom he allegedly spoke.

At about 11:30 a.m. on January 3, 1996, claimant, who had just taken a shower, was standing in his cell drying his hair when he heard inmates approaching his cell as they returned from lunch. Claimant stated that he did not know Grey was with the group of inmates because he thought that Grey was still confined to his cell under keeplock status. Grey was, however, with the inmates and as he proceeded down the block he walked into claimant's cell. Claimant recalled that he was facing away from the cell door and he was suddenly stabbed twice in the back. He turned around and saw Grey, who then stabbed him in the chest, neck and forehead. Claimant was transported to the facility's infirmary and then transferred to the Champlain Valley Physicians Hospital Medical Center in the City of Plattsburgh.

On cross-examination, claimant acknowledged that he could have closed his cell door following his shower, but he chose to leave it open. He stated that he had not requested protective custody prior to the incident. He agreed that on the morning of the attack he was not afraid of Grey, but clarified his answer by adding that he thought Grey was on keeplock.

Lieutenant Donald Uhler testified that in January 1996 he was a sergeant at Clinton. He recalled that he was one of the first supervisors to arrive at the scene of the stabbing. He stated that when he arrived at the scene, claimant was being placed on a stretcher and he observed that claimant was bleeding from "several locations." Lieutenant Uhler explained that if a correction officer is told by one inmate that another inmate has threatened him, the officer is "duty bound" to notify a supervising officer. He related that, at a minimum, a sergeant would interview the inmate to ascertain whether there was any validity to the threat. Lieutenant Uhler further stated that if an inmate related to an officer that another inmate was seeking mental health assistance, the officer should report the request to a supervising officer. Moreover, if an inmate directly asks an officer for permission to see mental health personnel, the officer would be duty bound to report the request to a supervisor. He stated that in his experience any time an inmate requested mental health services, the inmate was always taken to the Office of Mental Health (hereinafter OMH) satellite unit at Clinton. Lieutenant Uhler testified that he was not aware of any complaints being made by claimant to prison personnel about Grey prior to the assault.

Sergeant Earl Bell is a 19-year veteran of the Department of Correctional Services (hereinafter DOCS) and, on January 3, 1996, he was the supervising sergeant on Clinton's east side, which included B block. He responded to the incident and recalled that claimant was being removed on a stretcher when he arrived at the scene. He conducted an investigation which confirmed that the assault was perpetrated by inmate Grey and that following the assault, the weapon was passed to inmate Pierce. Sergeant Bell acknowledged that inmates frequently manage to obtain weapons on the cell block. He related that cells are routinely frisked in an effort to discover contraband such as weapons. He stated that he was not familiar with Grey's mental health record before the assault. He reported that he was unable to ascertain during his investigation the reason Grey assaulted claimant.

Sergeant Bell reviewed Grey's disciplinary record (Defendant's Exhibit B) and testified that such record reflected that, contrary to claimant's testimony, Grey had been on keeplock for only one week (December 22 to 29, 1995) while housed on B block. Furthermore, the disciplinary record reflected that although Grey had many Tier II violations, he had only two prior Tier III violations. Tier III disciplinary hearings involve more serious matters than Tier II. The Tier III violations were from incidents occurring in July 1991 and September 1995.

Sergeant Bell stated that claimant had not expressed any concern to him about his safety prior to the incident. He testified that none of the officers had indicated to him that claimant had expressed a safety concern to them. Moreover, he received no reports, directly or indirectly, about claimant indicating that Grey needed or had requested mental health services.

Wayne Crosier, the forensic unit chief at Clinton's OMH satellite unit, testified that in 1995 all maximum security facilities in the State had an OMH satellite unit. He related that generally a DOCS' employee would initiate the referral of an inmate to the satellite unit and OMH personnel would determine whether the inmate needed to be admitted to the unit for treatment. If a referred inmate was not accepted in the unit, the reasons for the refusal would be communicated by OMH to DOCS. Mr. Crosier stated that if he believed an inmate was a danger to himself or others in the facility, he notified the Superintendent.

Mr. Crosier explained that inmates received a numerical ranking between one and seven by OMH based upon the severity of their mental health problems. The number one reflected an inmate with severe mental health problems whereas the highest number, seven, was assigned to an inmate who had no contact with OMH. Mr. Crosier characterized the ranking system as "flexible," noting that an inmate could go from one to six in as little time as one year. He further stated that it would not be unusual for a total of over 150 inmates with rankings of one or two to be in the general population at Clinton.

Although Grey had been ranked by OMH at level one several years before the incident, he was classified at two when he entered Clinton from Bare Hill Correctional Facility in late 1995. Mr. Crosier acknowledged that Grey had been involved in an incident of self-harm while at Bare Hill. He explained that reasons for attempts at self-harm can range from gestures to serious suicide efforts. Mr. Crosier stated that correction officers were obligated to report all requests by inmates for mental health assistance. Although he was able to recall a few incidents in his 17 years at Clinton where an officer failed to report such a request by an inmate, he stated that such failures happened "rarely."

Deposition testimony of Captain Steven Brown was read at trial. Captain Brown stated that if an officer observed an inmate acting in a "bizarre" fashion, the officer had discretion whether to refer the inmate to OMH. He further testified, however, that if an inmate requested mental health assistance, the inmate would be sent to OMH.

The State has a duty to provide inmates with reasonable protection against the foreseeable risk of attack by other inmates (
Flaherty v State of New York, 296 NY 342; Zi Guang v State of New York, 263 AD2d 745). 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 (Auger v State of New York, 263 AD2d 929; Schittino v State of New York, 262 AD2d 824, lv denied 94 NY2d 752). Indeed, the unfortunate realities are well recognized that, by their very nature of being filled with often violent criminals, correctional facilities continually face the potential of violence within their walls (see, e.g., Bell v Wolfish, 441 US 520, 559 [correctional facilities are "fraught with serious security dangers"]; Jones v North Carolina Prisoners' Labor Union, 433 US 119, 132 [there exists in correctional facilities an "ever-present potential for violent confrontation and conflagration"]). To establish liability for an inmate-on-inmate assault, a claimant generally must show that the victim was a known risk and the State failed to provide reasonable protection (Sebastiano v State of New York, 112 AD2d 562), that the State had notice that the assailant was particularly prone to perpetrating such an assault and failed to take proper precautionary measures (Littlejohn v State of New York, 218 AD2d 833), or that the State had notice and ample opportunity to intervene but failed to act (see, Huertas v State of New York, 84 AD2d 650).
Claimant's contention that he reported to correction officers that he had been threatened by Grey is insufficient to establish liability. The testimony of DOCS' personnel, which the court credits, reflected that no such report had been made to a correction officer. Even assuming, however, that such a report was made by claimant, liability would not follow under the prevailing facts. Grey purportedly told claimant that he was going to "kick his ass." There was no immediate threat of physical violence. Nor was there any evidence of animosity between claimant and Grey, or any reason to believe a violent assault would occur. The statement allegedly made by Grey to claimant could be considered to fall within the realm of common banter employed between inmates and, without additional evidence of animosity, does not constitute adequate notice to DOCS that a serious assault may follow. Indeed, claimant ostensibly did not have fear for his safety. He made no effort to enter protective custody. He also acknowledged that he did not fear Grey but attempted to explain the lack of fear by contending that he thought Grey was on keeplock.

The convincing evidence, however, established that Grey had been in general population for nearly a week prior to the assault. Moreover, claimant's credibility was seriously eroded by his testimony that Grey was "always keeplocked" when, in fact, the institutional records reflected that Grey was on keeplock for only one week during the approximately two months before the incident that he was on B block.

A review of Grey's institutional record failed to reveal an inmate who had demonstrated that he was particularly prone to perpetrating assaults. Grey's one week of keeplock in December 1995 resulted from a Tier II disciplinary deposition for failing to obey a direct order. His most recent Tier III disposition, occurring more than three months before the assault, was for failing to obey a direct order and self harm. Grey's record clearly does not reflect a series of recent and escalating assaults such as were found to be a sufficient basis for liability in
Littlejohn v State of New York (supra).
Although Grey did have mental health problems, there was no convincing evidence that such problems were going to be manifested by a vicious assault on another inmate. Indeed, as previously stated, Grey did not have a history of violence toward other inmates. Furthermore, the presence of an inmate with Grey's OMH ranking within general population was not uncommon. The court is not persuaded by claimant's assertions that he made several requests on behalf of Grey for mental health help in the days immediately before the assault. The persuasive evidence established that any such request would have routinely resulted in the inmate being interviewed and sent to OMH for a consultation.

The court understands claimant's outrage at the brutal assault perpetrated upon him. Establishing liability of the State, however, for such senseless acts of inmates is arduous under the controlling and well settled law. Although the case was skillfully presented by counsel, the credible evidence does not establish liability.

The claim is therefore dismissed and the Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

October 26, 2000
Plattsburgh, New York

Judge of the Court of Claims

All quotes are from the court's trial notes unless otherwise indicated.