Claimant, an inmate proceeding
, seeks damages for the alleged injuries he sustained when he was
assaulted by another inmate on May 21,1996 at Fishkill Correctional Facility
(hereinafter "FCF"). Claimant contends that, as a result of defendant's
negligent supervision, he was attacked and sustained injuries in FCF's Industry
1 Woodshop on May 21, 1996. Claimant called inmate Juan Gomez, Corrections
Officer Timothy J. Horgan and claimant testified on his own behalf. Defendants
called Department of Correctional Services (DOCS) Industrial Training Supervisor
Michael J. McDonough. This claim was tried at a unified
At the outset of trial, this court denied claimant's motions to strike
defendant's affirmative defenses on claim numbers 98309 (M-61602) and 98256
(M-61601). It is also noted that claimant's trial on claim number 98309 was
Claimant testified that from April 1995 to May 21, 1996 he was employed by the
Corcraft Industry Program at FCF under Industrial Training Supervisor Michael
McDonough. His employment duties required a constant movement to and from his
workstation. At the beginning of May 1996, claimant was having trouble with an
inmate Bristow due to the "bullying of the
of which they worked. Claimant had to go through Bristow's workstation in order
to get to and from his own workstation. According to claimant, Bristow, while
working with 2 foot by 4 inch pieces of wood would block the area of which
claimant had to go through to get to his station, making it difficult for
claimant to pass through the area. A diagram drawn by claimant depicting the
layout of the work area was admitted into evidence as Exhibit 1.
On one occasion in the beginning of May, claimant, in attempting to move the
wood, was threatened by Bristow. Claimant testified that he informed his
supervisor, Mr. McDonough, that Bristow had threatened him. According to
claimant, on May 7
, 1996, he again complained of Bristow's threats to Mr. McDonough, and asked
that either he or Bristow be moved. That request was denied. Claimant testified
that, on that same day, he spoke with inmate Silvestri, in Mr. McDonough's
presence, about the problems he was having with Bristow. Claimant testified
that he was assured by Mr. McDonough that Bristow would be reassigned in about a
week. Neither claimant nor Bristow was immediately
Claimant testified that on May 13, 1996, he informed Mr. McDonough that the
situation between claimant and Bristow was getting worse, and reiterated that
either he or Bristow would have to be moved. Claimant testified that on May 16,
1996, claimant went to Mr. McDonough again and informed him that the situation
was getting much worse, and that claimant was terrified to work next to
According to claimant, on May 21, 1996, at about 10:15 a.m., he was working at
his station when Bristow moved a fan and caused a lack of ventilation to
claimant's work area. Upon asking Bristow why he moved the fan, Bristow
threatened claimant with bodily harm and proceeded to punch him and throw him to
the ground, continuing to punch him while down. Other inmates heard the
commotion and intervened. Claimant testified that the officers usually patrolled
the industry area and he started to walk towards an area where officers usually
stood. At this point, at about 25 feet away from where the correction officers
usually stood, Bristow grabbed claimant again and threw him down to the floor
proceeding to bang his head against the floor, cursing at him the whole time.
This incident was also broken up by fellow inmates. According to claimant,
Bristow attempted to grab claimant a third time, but claimant got away. Claimant
proceeded to run towards the area where the correction officers usually stood
when inmate Bristow grabbed claimant again, and during a struggle, they fell
over some metal frames and an incline ramp located in the shop. According to
claimant, Mr. McDonough came out of his office at this point and instructed the
inmates to stop fighting. Claimant and Bristow were separated.
Claimant testified that he subsequently returned to his work station and a
correction officer escorted claimant to the medical department where he received
immediate medical attention. Thereafter, claimant was taken straight to solitary
confinement. There were no other confrontations with inmate Bristow that day nor
did claimant meet with Mr. McDonough again. Photographs depicting the injuries
claimant sustained on that date were admitted into evidence as Exhibits 2
through 11. Claimant testified that he received three stitches above his left
brow and four stitches to his lower eye as a result of the first assault, and
had head trauma as a result of the second assault. He also testified that he
has a two-inch scar on the middle finger of his right hand. Portions of
claimant's medical records maintained by DOCS were admitted into evidence as
Exhibits 12 and 13. Claimant's medical records from St. Agnes Hospital were
admitted into evidence as Exhibit 14.
On cross-examination, claimant testified that he was issued a misbehavior
report for that incident and pled guilty to fighting. Claimant acknowledged that
prior to May 1996 he had not voiced his concerns about Bristow to anyone else in
DOCS besides Mr. McDonough and inmate Silvestri. Exhibit A, an affidavit of an
attorney employed by DOCS, was admitted into evidence for the purpose of
establishing that claimant did not request to be separated from Mr. Bristow,
although he had made the request with respect to another inmate. Claimant
testified that he has held various other work duties since the incident but
conceded that he was removed from his employment in the law library and from his
vocational job for disciplinary reasons.
Claimant called inmate Juan Gomez who testified that he was also employed in
the workshop of the Corcraft Industry for a year and a half and that Mr.
McDonough was his supervisor. Mr. Gomez testified that on the date of the
incident, upon hearing a scream for help, he went to investigate and discovered
the fight between claimant and Bristow. He testified that he and several other
inmates, broke up the fight. Mr. Gomez testified that there were no officers
present from the beginning of the assault through the end, and estimated that it
took about four to five minutes for correction officers to respond.
On cross-examination, Mr. Gomez testified that the Corcraft Industry area was
bigger than a basketball court, and the fight occurred in the back of the room.
He stated that the shop was filled with furniture that was being assembled,
tables, walls, cabinets and heavy equipment to cut materials and conceded that
these items impeded the ability to see others in the shop. Mr. Gomez agreed
that the correction officers would patrol the area and had no set post.
Correction Officer Horgan testified that he was on duty in the Corcraft
workshop area on the day of the incident. He estimated that there were about
fifteen inmates and three correction officers working in the workshop and
explained that there were two correction officers on the main floor and one
correction officer supervising the bottom floor. Correction Officer Horgan
testified that on the morning of the incident he was the officer in charge of
patrolling the Corcraft area. He explained that he had no specific post and
that his duties were to patrol the whole area, check for contraband and ensure
that the inmates were engaged in their employment. He stated that it was
necessary for him to move around because obstacles in the room hindered his
supervision of the inmates.
Correction Officer Horgan testified that at the time of the incident, while on
patrol, he did not see or hear anything. He recalled that he had walked around
the corner during his patrol and saw that Mr. McDonough had already separated
the inmates and that the incident was over. Subsequently, claimant and Bristow
were escorted out.
On cross-examination, Officer Horgan testified that even if he was standing
directly in front of Mr. McDonough's office his vision of the entire area would
have been hindered by obstacles in the shop. Officer Horgan testified that he
was familiar with claimant but was never previously informed of any problems
between claimant and Bristow and had never overheard claimant complain about
Bristow. Claimant rested his case.
Defendant called Michael J. McDonough, who testified that he was the civilian
Industrial Training Supervisor of the Corcraft Program at FCF. He stated that
he was responsible for training and supervision of the inmates in the
manufacturing of wood products. Mr. McDonough was shown claimant's diagram of
the Corcraft area (Exh. 1) and testified that it fairly and accurately depicted
the layout of the area on May 21, 1996. Mr. McDonough stated that he had hired
claimant in early 1995, and that claimant had been under his direct supervision
since that time. He recalled that claimant worked five days a week for
approximately 7 ½ hours per day. According to Mr. McDonough, inmates
would be removed from the area for disciplinary problems by the security staff,
but he could move inmates for work-related reasons. Mr. McDonough testified
that prior to May 21, 1996, he moved claimant on two different occasions, once
due to a problem with another inmate, not Bristow and once because claimant was
bored. Mr. McDonough recalled that Bristow had worked in the Corcraft area for
a brief time prior to May 1996 and during that time he did not personally have
any problems with Bristow. However, he recalled that he had learned that
another supervisor in the paint shop had informed Mr. McDonough about a problem
he had with Bristow prior to May of 1996.
Mr. McDonough testified that claimant had never informed him, nor had he ever
overheard claimant speaking with anyone in his presence, of any problems between
claimant and Bristow. In recalling the date of the incident, he testified that
he was in his office when he heard a steel folding table fall. Mr. McDonough
stated that he came out of his office and noticed claimant running and a
congregation of prisoners. He placed his initials on the diagram admitted as
Exhibit 1 to indicate where he was standing when he first saw claimant after
exiting his office and placed claimant's initials to indicate claimant's
position at that time. He testified that upon walking to that area, he noticed
that claimant was bleeding on his head and hand. He recalled that claimant
informed him that he had been involved in a fight and Mr. McDonough called the
security staff. Mr. McDonough testified that thereafter, two correction
officers, including Officer Horgan, came around the corner and took charge of
the situation, escorting claimant and Bristow up the stairs.
Mr. McDonough testified that he filed an inmate misbehavior report concerning
the incident. He testified that neither claimant nor Bristow returned to the
Corcraft Program because program policy precludes inmates from returning to the
program after certain incidents, including a fight.
On cross-examination, Mr. McDonough denied that claimant ever informed him of a
problem with Bristow prior to the date of this incident. After being shown the
misbehavior report which was admitted into evidence as Exhibit 15, Mr. McDonough
stated that his recollection was refreshed and that he remembered seeing
claimant and Bristow rolling on the floor when he first exited his office. Mr.
McDonough was unaware of any investigation of the incident and stated that the
misbehavior report was the only report he had filed of that incident.
Based on the foregoing proof, claimant seeks to hold defendant liable for the
injuries he sustained in the assaults by Bristow on the ground that he had
advised defendant that Bristow had threatened him, but defendant failed to
intervene prior to the assault.
It is well settled that the State is required to use reasonable care to protect
the inmates in its correctional facilities from the 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), including the risk of a foreseeable attack by other prisoners (see
Littlejohn v State of New York,
218 AD2d 833; Padgett v State of New
163 AD2d 914). The mere fact that a correction officer may not have
been present when the assault of claimant occurred does not give rise to an
inference of negligence, absent a showing that prison officials had notice of a
foreseeably dangerous situation.(see
, Leiback v State of New York
215 AD2d 978; Padgett v State of New York,
163 AD2d 914).
Upon listening to the testimony at trial and observing the witness's demeanor,
the Court finds that although the attack was unfortunate and claimant suffered
painful injuries, the facts of this case do not establish a viable theory of
liability against defendant. The Court finds that claimant failed to establish
by a preponderance of credible evidence that defendant was on notice of any
foreseeable danger to claimant. Although claimant testified that he advised Mr.
McDonough that he perceived a risk of attack by Bristow, the Court finds the
testimony of Mr. McDonough that he had never been so informed by claimant
credible. Indeed, the uncontroverted testimony at trial establishes that Mr.
McDonough had previously moved claimant when claimant had a problem with another
inmate, leading the Court to find that McDonough would have followed a similar
course had he been informed of a problem with Bristow.
Additionally, although claimant testified that he perceived a risk of attack
from Bristow in early May of 1996, he never formally requested any type of
protective custody from defendant. In fact, although documentation maintained
in the inmate separation system revealed that claimant was to be separated from
another inmate, Bristow was not included on claimant's enemy list (
, Exh. A). Accordingly, the Court resolves issues of credibility in
favor of defendant and finds that the risk of attack on claimant by Bristow was
unforeseeable. Thus, defendant cannot be held liable for failing to prevent the
attack or intervene.
Furthermore, claimant's allegation in his claim that correction officers
negligently left their post is unsupported by the testimony and documentary
evidence presented at trial. The unrefuted testimony elicited at trial
establishes that the correction officers had no fixed post and that their
responsibility was to move around within the shop, around existing obstacles, in
order to properly view and supervise the inmates activities. The fact that a
correction officer was not at a place where he stood most of the time does not
establish negligence on the part of the defendant. In this regard, the Court
finds that defendant did not deviate from standard procedures governing the
supervision of the inmates within the workshop.
Accordingly, Claim No. 98256 is DISMISSED.
BE ENTERED ACCORDINGLY.