New York State Court of Claims

New York State Court of Claims

DONALDSON v. New York, #2000-016-001, Claim No. 93941


The State was held liable for an assault upon one inmate by another inmate, at Sullivan Correctional Facility. Damages of $4,500.00 were awarded.

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):

Alan C. Marin
Claimant's attorney:
Ronald Donaldson
Defendant's attorney:
Eliot Spitzer
Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
March 7, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Ronald Donaldson brings this action for injuries arising from an assault by another inmate while incarcerated at Sullivan Correctional Facility. The claim was tried at the Sullivan facility on December 7, 1999. Claimant and a fellow inmate, Roy Brown, testified. On its case, defendant called to the stand Officer Christopher Karson and Sergeant William Mead.

The basic facts are, by and large, undisputed:

-Claimant was assaulted on the morning of March 2, 1996 while playing chess with inmate Brown in the day-room area
of Cellblock A, South (see cl exh 4).

-Juan Salcedo
had been taken from his cell for the one hour of the day that a keeplock prisoner is allowed out of a cell. Instead of going to the keeplock recreation yard, Salcedo advanced toward claimant, who was about 25 feet away, and slashed him with a can top. There was no provocation of any kind by Donaldson.

-Claimant was taken to Community General Hospital of Sullivan County with three lacerations to his upper left arm, one of 4 - 5 inches (described in Community General's records as a slice); and a ¼ - ½ inch cut in the fourth finger of the left hand (cl exh 5, third page).

-The first officer on the scene was CO Kowalik, who has since retired and did not testify. Mead, Karson, and a third officer, Dahlman, then arrived having responded to a "Code One". The Sullivan staff did not become aware of the weapon until it was too late: "Kowalik attempted to physically separate the inmates with no success. He then saw the can lid..." (Mead's report: cl exh 6, fifth page).

-Donaldson in nearly twenty years in the prison system had never been attacked. He had been in Sullivan CF continuously from 1991 until the date of the attack and stated he did not know Salcedo and, until the day of the incident, had never spoken with his attacker. According to Donaldson, just before the assault, Salcedo asked claimant if he had a problem with him, and he responded to the effect, "I don't even know you, how could I have a problem with you."

-Salcedo had something of a history of prior assaults.[1]
On February 8, 1995, Salcedo threw urine at a correction officer, striking him in the eyes, nose and mouth, as well as the upper body. Previously in January of 1993, Salcedo and another inmate assaulted an inmate in an SHU yard. The two were observed throwing what were believed to be weapons out of the yard, which were never recovered. The object of their attentions ended up with four lacerations on his face and arm.

At trial, a very recent attack came to light. Just the day before, on the morning of March 1st, Salcedo was involved in an altercation with another inmate:
"Inmate Salcedo ...while being released from his cell for keep lock recreations moves quickly to cell 221, at which point he engages in a physical confrontation with Inmate [B] the threshold of cell 221..." When ordered to stop, "Salcedo continues to resist... Inmate [B] seems to be more in compliance with the orders given." (Cl exh 2).
While this exhibit (cl exh 2) is a misbehavior report for inmate B and the officer noted that at first he could not tell who was the aggressor, Salcedo certainly looks to be the more culpable of the two from the above-quoted excerpts. Moreover, this was Salcedo's modus operandi in that first week of March in 1996 – on the way to SHU recreation, he goes off and attacks another inmate, not stopping when ordered to and resists physical restraint until overpowered.
Roy Brown
recalled that Salcedo was involved in at least one attack just before his assault on claimant. Brown testified that he thought that Salcedo had used a can top on inmate B, but there is no other evidence therefor. We have no follow-up documentation from Salcedo's encounter with B. Brown testified that Donaldson was cut before any officer arrived on the scene.
* * *
Few facts in this matter are in dispute. Claimant fixed the time of the assault in minutes, rather than the seconds that Brown, among others, estimated.
Karson, part of the response team, testified they were on the scene in "probably less than two minutes," with most of that time taken waiting for the security doors to slide open and shut. But with that said, this is not a case of a too-slow response time to an otherwise unanticipated occurrence at issue. See, e.g., Schittino v State of New York, 262 AD2d 824, 692 NYS2d 760 (3d Dept 1999) lv denied 94 NY2d 752 (1999).
"Prison life, and relations between the inmates themselves...contain the ever-present potential for violent confrontation..."
Jones v North Carolina Prisoners' Union, 433 US 119, 132 (1977). While the fact that an assault occurs does not by itself give rise to an inference of negligence, the State does have "a duty to provide inmates with reasonable protection against the foreseeable risk of attacks by other prisoners..." Blake v State of New York, 259 AD 2d 878, 879, 686 NYS2d 219, 220 (3d Dept 1999).
The day before the attack in question, Salcedo, with at best a spotty behavioral history, took exactly the same opportunity to move toward another inmate's cell or area where he had no business being, and initiated an assault. The State has violated its duty of protecting against foreseeable risks, especially in view of DOCS' written procedures governing out-of-cell supervision of Special Housing Unit detainees.

Directive 2041 provides that keeplocked inmates are to be escorted "directly" to and from the yard [or shower etc]: "There will be no hanging out on the gallery...No inmates in keeplock status will be permitted to go to another inmate's cell."[2]

Directive 2207 (cl exh 3), entitled, "Keep Lock Escorts" reads, in relevant part.
D. Have the inmate come out of the cell, face the wall, place his hands on the wall and submit to a pat frisk. [With regard to the pat frisk, see 7 NYCRR §305.1(b) and Officer Karson's testimony confirming that the COs were required to do so].
F. Inmates will be escorted with hands placed fully inside their front pockets [unless permission is otherwise given].
H. Keeplocked inmates, who ... fail to comply with procedures mentioned in A through G above, will be escorted in handcuffs with approval of the Watch Commander ...
I.. Keeplocked inmates while being escorted will walk in front of the escorting officer to the right of the corridor.
J. Keeplocked inmates while being escorted will refrain from any form of physical contact with other inmates...

Clearly, the regulations were not complied with. See
Schittino, supra, 692 NYS2d at 763, 262 AD2d at 825. Moreover, following the incident of March 1, under ¶H, Salcedo should have been in handcuffs on March 2. What happened to Donaldson is at least as persuasive a case as that made out by the attacked inmate in Blake, supra[3], and I find the defendant fully responsible for any injuries to claimant resulting from the March 2, 1996 attack.
* * *

When asked about any extant problems as of December 1999, Donaldson, who is right-handed, complained that he could not fully extend his left arm or left finger. No medical records were offered to support any current condition and prognosis; consequently, I make no award for any future pain and suffering.

With respect to pain and suffering from March 2, 1996 to the date of trial: in view of the testimony together with the aforementioned medical records substantiating the four lacerations on his arm and fourth finger (cl exh 5,
supra) but no demonstrably significant impact on his daily activities, I find that claimant sustained past pain and suffering in the amount of $4,500 in connection with this claim.
Accordingly, Ronald Donaldson is awarded the sum of Four Thousand, Five Hundred Dollars ($4,500) .


March 7, 2000
New York, New York

Judge of the Court of Claims

[1] I read into the trial record portions of what was, per my November 10, 1999 Order, submitted as the "Unusual Incident Reports for assaults involving inmate Juan Salcedo...between January 1, 1993 through March 2, 1996."
[2] Page 17, which is cl exh 1, "Keeplock Regulations", ¶¶ 3 & 6.
[3]A prior similar assault had occurred a few months, not one day, previous and liability was upheld by the Appellate Division even though the attacker was in handcuffs (some two years before the assault on Blake, there had also been an assault by a restrained inmate). Further, Blake involved an SHU prisoner attacking another SHU prisoner, whereas Donaldson was a general population inmate attacked by an inmate removed from prison population at large. No showing was made that Salcedo was confined to SHU for a reason such as protective custody or arising from a facility transfer. (7 NYCRR §§301.5 & 301.3[b]).