New York State Court of Claims

New York State Court of Claims

TURULL v. STATE OF NEW YORK, #2000-017-034, Claim No. 98256


The Court dismissed claimant's claim for damages arising from an assault by a fellow inmate.

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):

Claimant's attorney:
Nemesio Turull, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Carol C. Poles, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 10, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate proceeding
pro se, 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 trial.
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 adjourned.

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 area"[1]
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 moved.
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 him.

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 (see, 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 York, 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 (
see, 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.

August 10, 2000
White Plains, New York

Judge of the Court of Claims

All quotations to testimony are from the court's review of the trial notes or audiotape of the trial unless otherwise indicated.