Claimant seeks damages for injuries she allegedly sustained on July 17, 1991
when she was incarcerated at Bedford Hills Correctional Facility ("Bedford").
The trial of this claim was bifurcated and this Decision pertains solely to the
issue of liability.
Claimant alleges that on July 17, 1991, she was assaulted in her Housing Unit
114 A&B by inmates Beatrice Gonzalez and Suzanne Marel who also resided in
that unit. Claimant contends that, prior to the attack, defendant was on notice
that Gonzalez and Marel had demonstrated hostility toward claimant.
Claimant also contends that the correction officer on duty failed to
appropriately respond to the altercation.
Claimant testified that she was acquainted with Marel and Gonzalez and had
argued with them prior to the assault
. Claimant described the two as lovers and part of a clique that created
disturbances in the housing unit. Claimant maintains that on June 27, 1991, she
wrote a letter which was typed by her friend and co-inmate, Karen Ely,
documenting an "ongoing problem" (Ex. 1). Claimant stated therein that she had
been targeted by a group of women who had made "snide comments" that could
result in "disastrous consequences if it is left unchecked." She warned, "It is
imperative that the facility administration break up this clique before somebody
gets seriously hurt" (Ex. 1). Claimant testified that a day or two later she
gave the letter to Sergeant Allsopp for his investigation. Allsopp was on
vacation for most of July and claimant did not follow up on the letter until
after the incident.
Claimant testified that on prior occasions, the women called
claimant a "rat" (T:101-02)
and that Marel
pushed claimant. Claimant insisted that she had advised Correction Officer
Robinson and Sergeant Palmer about these comments and had requested a transfer
from the housing unit. Claimant, however, was never moved. Specifically,
claimant recalled that on July 16, 1991, Marel and Gonzalez yelled cruel remarks
at claimant in the presence of Robinson. In response, Robinson directed the
inmates to stop arguing. According to claimant, Robinson asked claimant not to
transfer her housing and assured claimant that Marel would be
Claimant conceded that prior to July 17, 1991, she never told the officers
that she was afraid of being assaulted, nor did she request being placed in
protective custody. Claimant explained, "when you're doing 25 to life, it's
very hard to do it one small room away from all civilization in protective
custody. So it's not something -- it's not a place anybody would want to spend
that much time in" (T:129). Despite being incarcerated for 22 years, she stated
that she was unfamiliar with an enemies list.
Claimant testified that on July 17, 1991 between 2:00 p.m. and 2:45 p.m., she
was in the recreation area performing her inmate work assignment as a porter.
Only those inmates who have work assignments or are waiting to use the irons,
washers and dryers were permitted to be out of their cells at this time.
Correction Officer Ray Bridges was stationed in a raised area known as the
bubble from where he could observe the recreation area and housing corridors.
Claimant recalled that at 2:30 p.m., she became engaged in a heated conversation
with Marel and Gonzalez. Marel called claimant an old rat and spit in
claimant's face. Claimant spit back. Marel approached claimant taunting, "kill
her, I want her dead" (T:141). Claimant then threw her iced tea at Marel.
Gonzalez punched claimant, causing her to fall to the floor, and kept hitting
Claimant also felt someone kicking her. Bridges, who was at a distance of five
feet, did not intervene and remained in the bubble.
Karen Ely, another resident of Housing Unit 114 A&B in 1991, testified on
behalf of claimant. Ely and claimant had been friendly since 1984. According
to Ely, tension existed on the unit with physical brawls erupting one to two
times a week. Ely had observed Marel menace claimant and Ely testified that she
typed the June 27, 1991 letter for claimant and was present when claimant gave
the letter to Allsopp.
Ely did not witness the July 17, 1991 assault.
Ely maintained that she had observed a prior shoving incident involving Marel
and that the correction officer on duty did not take any action. Ely testified
that Marel had menaced Ely and claimant in late spring of 1991 and Ely had
reported it in writing to Captain Palmer. Ely refused protective custody
because she believed it punished the victim.
Deborah Irving, who had been incarcerated in Bedford, also testified on behalf
of claimant. Irving knew claimant, but did not consider her a friend. Irving
stated that Marel had been harassing claimant for a few months prior to the July
incident. Marel's behavior, however, was not within view of the correction
Irving further testified that raised voices were commonplace in prison and the
unit was known for being noisy (Ex. 17). She stated that, after a while, you
"tune out" arguments (T:88).
On July 17, 1991, Irving was in the back of the rec area waiting to use the
iron, as a
series of events unfolded quickly. She observed claimant, Marel and Gonzalez
arguing near the bubble. Irving approached Bridges and asked him to do
something. He did not respond. Irving further observed spitting. Claimant
threw the liquid from her cup and Gonzalez knocked claimant down and slammed her
head on the floor. Irving related that she screamed at Bridges to do something
and he just froze. When he did not react, approximately three minutes after the
physical altercation began, Irving pushed her body between claimant, Marel and
Gonzalez. Irving yelled and other inmates came to her assistance in ending the
brawl. Irving took claimant to her cell and then to the facility
The EBT testimony of Correction Officer Janet Robinson was received into
evidence (Ex. E). Robinson testified that she was not aware of any tension
between claimant and Marel or Gonzalez prior to the July 17
th incident. Further, Robinson was not aware of any complaints from other
inmates about Marel or Gonzalez. Robinson denied ever telling claimant that she
would try to move Marel out of the unit.
Lieutenant Norval Allsopp
testified that in July 1991, he was an area sergeant at Bedford in Housing unit
114 A&B. In this capacity, Allsopp was responsible for the safety of
inmates and in charge of correction officers. Allsopp testified that threats
among inmates are commonplace and "get" and "kill" are normal everyday terms
used in prison (T:248-49, 253-54). Allsopp explained that if a correction
officer witnesses inmate violence, facility procedure required the officer to
pull the pin on his/her personal alarm system. Officers were cautioned not to
intervene because the fight might be a setup to divert attention. Moreover, an
officer might be outnumbered and attacked. Rather, the officer should order the
inmates to stop, make mental notes for reports to be filed, and wait for a
response from additional officers. The personal alarm system relayed a signal
to the central base area and an alarm was sounded, alerting designated emergency
response personnel to respond to the problem area.
Allsopp denied ever receiving a letter from claimant and Ely. He further
stated that, if he had received such letter, he would have merely forwarded it
to the watch commander because it did not require immediate attention. He
explained that the letter did not detail specific threats to claimant nor did it
request a transfer; rather it referred to breaking up a clique led by an inmate
who had recently been removed from the unit. Allsopp further testified that he
was never advised by any other Department of Correctional Services ("DOCS")
personnel that there were problems in Housing Unit 114 A&B or with Marel and
Correction Officer Ray Bridges testified that he was stationed at the bubble
in Housing Unit 114 A&B on July 17, 1991 and recalled the fight that
developed. He related that a verbal argument between claimant, Marel and
Gonzalez escalated after Marel spit on claimant and she spit back. Claimant
then threw a drink on Gonzalez and Marel. Gonzalez struck claimant, causing her
to fall to the floor. Claimant kicked Marel. Other inmates attempted to
Bridges testified that, prior to the spitting, he directed the inmates to stop
arguing. When claimant was struck, Bridges pulled the pin of his personal alarm
system. Several correction officers responded to the alarm in less than two
minutes. He further testified that the entire incident, from the beginning of
the argument until the inmates were separated, happened very quickly, in less
than three minutes.
Bridges testified that the Employee Manual mandated that correction officers
not intercede in a fight, but wait for additional assistance. He had no
knowledge of any previous threats or arguments involving claimant. When asked
about his recollections of claimant, Bridges replied, "She [claimant] felt that
she was the real Elizabeth Taylor *** and was kind of uppity, *** she just felt
that she was a high-profile person, and that she shouldn't be there" (T:317).
Bridges testified that claimant had initiated the argument; this was also
reflected in the Inmate Misbehavior Report Bridges filed against claimant and
Marel (Exs. 11, D).
Marie Noonan, Senior Correction Counselor at Bedford, testified that she
searched claimant's file and did not find an enemies list; requests for transfer
to another unit or facility; nor a copy of claimant's letter dated June 27, 1991
(Ex. 1). Noonan stated that, if such documents existed, they would normally be
in claimant's file.
It is well settled that the State is required to use reasonable care to protect
the inmates of its correctional facilities from foreseeable risk of harm
, Flaherty v State of New York
, 296 NY 342; Dizak v State
of New York
, 124 AD2d 329; Sebastiano v State of New York
, 112 AD2d
562). Foreseeable risk of harm includes the risk of attack by other prisoners
, Littlejohn v State of New York
, 218 AD2d 833). However,
"[t]he State is not an insurer of inmate safety; its duty is to exercise
reasonable care to prevent foreseeable attacks by other inmates" (Padgett v
State of New York
, 163 AD2d 914). The mere occurrence of an unprovoked,
unexplained attack by a fellow inmate, with whom claimant had no prior contact,
does not give rise to an inference of negligence, absent a showing that prison
officials had notice of a foreseeable dangerous situation (see
Stanley v State of New York
, 239 AD2d 700; Roudette v State of New
, 224 AD2d 808; Leibach v State of New York
, 215 AD2d 978;
Padgett v State of New York
). The mere fact that a
correction officer may not have been present when an assault occurred does not
give rise to an inference of negligence, absent a showing that prison officials
had notice of a foreseeable dangerous situation (see
, Leibach v State
of New York
; Padgett v State of New York
Upon listening to the witnesses testify and observing their demeanor as they
did so, the Court finds that
defendant did not have notice of a foreseeable dangerous situation, that the
verbal discourse rapidly accelerated into physical violence, and that Bridges'
response was appropriate and in accordance with proper procedure (see
Schittino v State of New York
, 262 AD2d 824 [inmate fight escalated
quickly after claimant threw liquid at assailant; correction officer's response
was appropriate and failure to intervene was not negligent]). Notably,
claimant's file did not contain an enemies list, a transfer request, nor a copy
of claimant's June 27, 1991 letter. Claimant's testimony, that she was
unfamiliar with an enemies list, was not worthy of belief and detracted from her
overall credibility given that she has been incarcerated for 22 years. Allsopp
denied knowledge and receipt of claimant's letter and further testified that he
was never advised by any DOCS personnel that there were problems in the housing
unit or specifically with Marel or Gonzalez. As testified to by Irving, prison
is noisy and raised voices in arguments are commonplace. Bridges directed the
inmates to stop arguing and, when claimant was struck, he activated his personal
alarm system. Several officers responded to the scene in less than two minutes.
Contrary to claimant's argument, Bridges was not required to intervene before
the other officers responded to the scene (see
, Pierrelouis v State of
, 255 AD2d 824 [correction officer alerted response team of inmate
fight and was not negligent for failing to intervene before the team's
Accordingly, defendant's motion to dismiss, upon which decision was reserved,
is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 87532.