This claim arises from an attack upon claimant on September 13, 1995, while he
was an inmate at Cayuga Correctional Facility (hereinafter "Cayuga"). Claimant
until trial at which time counsel was present to assist
The trial addressed both liability and
Claimant began serving his three-to-six-year sentence on January 12, 1995.
While an inmate at Cayuga, he entered the alcohol and substance abuse treatment
program (hereinafter "ASAT") in an effort to address his addictions and to
obtain work release status. Two buildings at Cayuga housed the ASAT
participants; F1 and F2 dormitories, which each held 90 men. Claimant was
assigned to F2. There are no doors or cells in these buildings, only one large
room divided into sections, called cubes. The inmates were divided into three
groups for their ASAT meetings; two groups met in the morning and one in the
afternoon. According to claimant, many of the inmates disapproved of those that
took the program seriously. Claimant was sincere in his efforts to continue his
recovery, as he testified he had been sober since May 8, 1994.
On August 9, 1995, claimant and his ASAT group were in the yard while the
morning meetings were held. Claimant then went to lunch and did not return to
the dorm until it was time for his afternoon group meeting. Upon arrival at his
cube, he found feces spread on his pillow, sheets and wall. He was afraid and
thought this incident meant that someone in his dorm didn't like him, but he
didn't know who it was. Despite his fear, claimant called out to the inmates in
the dorm, inquiring into who had committed the offensive act.
Claimant told Officer Hemly, the correction officer on the floor, about the
incident. The officer told claimant to strip the bedding and wipe off the
walls. He was given new bedding. Later that day Officer Hemly told claimant to
report to the back of the infirmary where an unnamed sergeant handed him a
protective custody waiver and requested that he sign it. Claimant told the
sergeant that he was unsure what the waiver meant and refused to sign it. He
also told the sergeant that he was scared. The typed portion of Exhibit 1
On the exhibit, claimant's name and other identifying
information were handwritten in the blank. Later that night, Officer Hemly
called claimant to the desk and in a "secretive" manner told him to report to
the library. Claimant felt that the manner in which Officer Hemly spoke to him,
and the fact that he was being called out at a time of little movement in the
prison made it appear to the other inmates that he was a "snitch," and he felt
this put him in danger.
Despite his concern, claimant met with Sergeant Wasilenko in the library.
This sergeant also asked claimant to sign the protective custody waiver.
Claimant recalled saying he wanted to be transferred to the other ASAT dorm
because he was afraid. It was claimant's experience that any disagreements
between inmates would result in a physical separation, usually a transfer.
Sergeant Wasilenko said claimant would not be transferred and told him to sign
the waiver. Claimant again refused and testified that Sergeant Wasilenko told
him they had ways of making him sign it. Claimant then signed the waiver
because he was afraid of the sergeant. After claimant signed the waiver,
Sergeant Wasilenko added something to the bottom of the page,
(Exhibit 1) which said: "Aregano's claiming someone deficated [sic] on his
bed. Doesn't feel his life is in danger. Wants to stay on F-2 and ASAT."
Claimant testified the last two statements written by the sergeant were not
Sergeant Edward C. Wasilenko, a correction officer for 19 years, was called by
claimant to testify. Sergeant Wasilenko was asked what incidents occurring in
the facility would indicate that an inmate was being targeted by other
prisoners. The sergeant agreed that both the feces incident and the vandalizing
of claimant's locker could indicate that claimant was targeted by other inmates.
Sergeant Wasilenko testified that after such an incident the inmate would be
interviewed. The interview would be initiated by either inmate request or the
sergeant notifying the dorm to send the inmate to be interviewed. The sergeant
did not recall how his interview with claimant was initiated. From the inmate's
interview, the sergeant, in his judgment, would decide whether or not the inmate
needed to be moved to another dormitory. Sergeant Wasilenko testified that when
he met with claimant on August 9, 1995, he explained what protective custody
was. Although he could not independently recall the conversation, the sergeant
testified that it was his custom and practice to explain protective custody to
any inmate who signs a protective custody waiver. Based upon his notes added to
the bottom of the protective custody waiver, Sergeant Wasilenko believed he
explained claimant's options to him; which included moving claimant if he was
willing to leave the ASAT program. Claimant would lose the opportunity for work
release if he did so. According to Sergeant Wasilenko, claimant signed the
waiver voluntarily. He did not move claimant because claimant wanted to stay in
After signing the waiver and before September 13, 1995, claimant had a
quarterly interview with his counselor, Mr. Coleman. Claimant told Mr. Coleman
in private that he was scared and about the meeting he had with Sergeant
Wasilenko. Claimant testified that he trusted Mr. Coleman but could not
remember if he told him he wanted to change dorms. He also told the ASAT
counselors that he was scared. Claimant testified that although Officer Hemly
asked him how things were going on a few occasions, claimant said he was too
afraid to answer. On cross-examination, claimant said he relied upon the guards
for his protection. Claimant had never advised the Department of Correctional
Services that he had any enemies in the system, and after the August 9, 1995,
incident he could not name the person(s) responsible for putting feces on his
bed. Claimant also testified that if he had been threatened by a specific
individual, he would have sought help. In fact, there was a slip box where an
inmate could leave a message under such circumstances.
On September 13, 1995, claimant had a medical call out in the morning for a
trip to a Syracuse hospital. After breakfast claimant returned to the dorm to
find his locker ransacked.
There was shampoo poured onto his clothing; he described his locker as
"being trashed." He reported the incident to the desk officer in the dorm, but
he does not believe it was ever documented. In claimant's opinion, this is the
type of incident that should be documented and that should result in a transfer.
Between 3:00 and 4:00 that afternoon, when claimant was returning to the
facility from the Syracuse hospital, he told the officer driving the van about
the feces and locker incidents and that he was afraid. She told him to "cool
out." He was hoping she would report his concerns.
When claimant arrived at the dorm, Officer Hemly was on the desk, and he
authorized claimant to wash the clothes that had been covered with shampoo.
Claimant then went to the laundry room and asked Mr. Cole and Mr. Hemming, the
inmates whose job it was to do laundry, if he could wash his clothes. They
agreed conditioned upon the desk officer's approval.
After claimant's clothes had washed, claimant returned to move the clothes to
the dryer. Inmate Wilfredo Labron was there with the two laundry porters, Cole
and Hemming. Claimant knew Mr. Labron from the group meetings. Although never
threatened by Mr. Labron, he often challenged claimant in those meetings. As
claimant entered the laundry room, Mr. Labron blocked his way and a pillowcase
was put over claimant's head. Mr. Labron grabbed claimant and punched him while
another unknown inmate cut him in several places on his back. Inmate Labron was
holding claimant by his shirt and trying to pull him further into the laundry
room while the other perpetrator cut his back. It was undoubtedly a terrifying
few minutes for Mr. Aregano; an experience that he recalled with fear. Claimant
fought his way to the door and ran screaming to the officer's desk. Sergeant
Wasilenko was notified and an investigation into the incident was commenced.
Mr. Labron, Mr. Cole and Mr. Hemming were questioned. All three denied any
knowledge of or involvement in the incident; however, Inmate Labron was sent to
the Special Housing Unit.
Claimant was taken to the infirmary where steri-strips were used to close the
cuts. He was kept segregated for approximately two weeks then transferred to
the Oneida Correctional Facility, then to Mohawk Correctional Facility and from
there to Midstate Correctional Facility.
In his report of the incident,
Sergeant Wasilenko opined that claimant was attacked because he went to
breakfast that morning when most of the population was observing the Attica
uprising anniversary by boycotting meals.
Nurse Kowalczuk from Mohawk Correctional Facility testified for the defense.
On September 29, 1995, she examined claimant's back and noted that it was
healing well. She described claimant's injuries as similar to paper cuts.
Nurse Kowalczuk also explained an error she made in claimant's ambulatory health
record received into evidence as Exhibit 2. In that record she had diagramed
two of the larger cuts and labeled them as 20" and 17'', when in fact, they were
20 cm., and 17 cm., respectively.
Although the claimant remains fearful and believes he narrowly escaped death at
the hands of his fellow inmates, his testimony that he was "scared to death" to
return to his dorm after the incident on August 9, 1995, lacks credibility. Why
would claimant sign a protective custody waiver because he was afraid of
Sergeant Wasilenko if he was too scared to return to the general population?
What could a correction officer do to claimant that would be worse than what
other inmates could do? To his credit, claimant had set a goal of completing
ASAT and obtaining work release. He appeared sincere in his efforts to remain
sober and to gain control over his life. It was this goal, unattainable if he
was moved from the ASAT dorm, which kept him from seeking protective custody,
not any fear of Sergeant Wasilenko.
Further, claimant testified he did not know that protective custody meant he
would be removed from the general population. This too is illogical given the
language in the waiver claimant signed and the number of people (three
counselors, one correction officer, and a sergeant) claimant spoke with about
his fears, none of whom, according to claimant, suggested that he request
protective custody or explained to him what protective custody was. Claimant
admitted on cross-examination he never requested protective custody from any of
the personnel he spoke with and further admitted that he failed to request
protective custody at any time after August 9, 1995.
The Court finds that claimant has not proven that the State knew or should have
known that claimant would be attacked by Inmate Labron and the others. "The
State's duty to an incarcerated person encompasses protection from the
foreseeable risk of harm at the hands of other prisoners. Because the State is
not an insurer of an inmate's safety, it will be liable in negligence for an
assault by another inmate only upon a showing that it failed to exercise
adequate care to prevent that which was reasonably foreseeable. (
See, Blake v State of New York,
259 AD2d 878; Pierrelouis v State of
, 255 AD2d 824; Stanley v State of New York
, 239 AD2d 700;
Colon v State of New York
, 209 AD2d 842.)" (Shittino v State of New
, 262 AD2d 824, 825 lv to app denied
94 NY2d 752.) The fact that
claimant was the victim of vandalism on August 9, 1995 and again on the morning
of September 13, 1995, did not put the State on notice that claimant would be
assaulted. There was no connection shown between these incidents. Claimant had
no known enemies, and although Inmate Labron challenged claimant during group
sessions, no one, not even claimant suspected he would perpetrate an assault.
No evidence indicated Inmate Labron was a dangerous prisoner or likely to assail
a fellow inmate. (Littlejohn v State of New York,
218 AD2d 833; Wilson
v State of New York,
36 AD2d 559; Huertas v State of New York,
AD2d 650.) Under these circumstances, the State did not have notice that
claimant was at risk.
The claim is hereby DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.