Claimant seeks damages as a result of an assault upon him by an unknown person,
while he was housed at Auburn Correctional Facility (hereinafter "Auburn"), on
June 6, 1995. He alleges that the State was negligent in supervising him as he
worked with a box of tools in a cell block, which was not his own, and that the
State violated its own policy by leaving Claimant unattended under these
circumstances. The trial was bifurcated; this decision involves liability
Claimant was an inmate plumber at Auburn and had been at the facility
approximately thirteen months before the incident which gives rise to this
claim. After breakfast on the day of the incident, Claimant reported to the
maintenance building where the plumbers were assigned their work. One of the
civilian plumbers had work orders for B Block and took Claimant to measure for
shower curtain rods. While there, they noticed that the shower valves in 9
Company's shower cell were leaking and spraying water. Claimant was directed to
return to B Block that afternoon to repair the valve.
As a plumber, Claimant was allowed to have a toolbox in his possession which
was closely regulated. Claimant was responsible for any missing tools. He
returned to B Block to fix the shower in the afternoon of June 6, 1995.
Claimant had to wait at the desk area until the Second Officer was available to
escort him upstairs to the shower. The Second Officer that day was Richard
McConnell. There were a number of inmates returning from lunch, and the Second
Officer was not free to escort Claimant until the other inmates either passed
through or were let into B Block. Claimant testified it was his understanding
that he was always to be accompanied by a civilian plumber or a correction
officer while working in one of the blocks.
At about 1:10 p.m., the Correction Officer and Claimant went into the utility
corridor to turn off the water, and then they entered the designated area for 9
Company. The shower was in the second cell beyond the gate through which
inmates entered that area of B Block. Shortly after letting him into the shower
area, Claimant noticed that the Correction Officer stopped talking to him. At
trial, Claimant testified he thought the officer had "wandered
Claimant removed the valve from the shower and was working on it, kneeling on
the floor, bending over it, and the next thing he remembers is waking up laying
on his toolbox bleeding, with his right eye swollen shut and blurred vision in
his left eye. The shower door, which he remembered being opened, was closed.
The end gate was open. Claimant called to the officer to let him out. Claimant
reported the incident, and was taken to the infirmary from where he was
transported to an outside hospital.
From the time of his intake interview, Claimant had never notified the
Defendant of any enemies he might have within the system; he had never been
threatened, never had a fight or an argument with another inmate. While working
on the valve, Claimant did not hear anything unusual, but there were
approximately 350 inmates living in B Block and the floors were grates so there
was constant noise. Claimant did not file any grievances nor did he make any
complaints to anyone regarding the officer leaving him alone in the shower
Called as witnesses on behalf of Claimant, were two correction officers,
Sergeant James Hutchings and Officer Carl Townsend. The Sergeant had no
independent recollection of the incident and even after reviewing his report
(Exhibit 1) could not add anything of significance to the case. This report did
come into evidence and in the document the Sergeant noted, "The B-block officers
have been informed that nobody is to go on any company unescorted if they do not
A diagram of the tier containing both 9 Company and 2 Company of B Block was
admitted into evidence as Exhibit 5. On each tier there are two rows of 20
cells that back up to a utility corridor. A separate walkway for each row of
cells is toward the outside of the building. Inmates from each row of cells are
called a company. At the end of each walkway there is a landing which is
separated from the corridor of inmate cells by a gate. On this landing are the
lock boxes for both rows of cells and the end gate. The utility corridor has
both a locked steel door and a locked gate preventing inmates from gaining
access to the water, electricity or air ducts connected to the cells.
Correction Officer Townsend testified that Sergeant Hutchings had told him,
before Claimant sustained his injuries, that all inmates who did not live in B
Block were to be escorted when in there, especially those with Class "A" tools.
The officer who left Claimant unattended in this shower had violated what
Officer Townsend considered to be an order by Sergeant Hutchings. He further
testified that the end gates should not be left open during the day for security
reasons and it was common practice to keep the end gates locked. If the Second
Officer, in this instance, Officer McConnell, was needed elsewhere while
Claimant was fixing the shower head, the shower door could have been secured
simply by closing it. Of concern to Correction Officer Townsend was the fact
that Claimant had tools with him and he believed that they were Class "A" tools.
Officer McConnell, on the other hand, testified that Class "A" tools are those
that could be used for escape (i.e., a hacksaw) not the tools carried by
Claimant. Sergeant Hutchings opined in his report that the motive for the
assault on Claimant was an attempt to obtain the tools; however, no tools were
missing after the assault.
The State called Correction Officer Robert Shaw. Officer Shaw testified that
he had never been instructed to escort and supervise inmates who where working
on B Block and that he would leave an inmate working unsupervised for short
periods of time if needed elsewhere. This practice would not be a breach or
violation of any policy or rule. He did agree that if the supervising
correction officer left the end gate open, it would create a potential security
Also called on the State's behalf was Correction Officer Richard McConnell. As
Second Officer, he was responsible for the inmates on the top four floors of the
block; letting the inmates out for recreation and meals, call-outs, as well as
releasing the prisoners who were confined to their cells for disciplinary
reasons for recreation.
His recollection of the events differed only slightly from Claimant's
testimony. Upon Claimant's arrival on the second floor landing outside of 9
Company, Correction Officer McConnell opened the door and gate to the utility
corridor and Claimant stepped in to shut off the water. The gate and door were
closed, but not locked, and Correction Officer McConnell
then unlocked the end gate to 9 Company allowing Claimant access to the
shower area in the second cell. At this time of the day, the porters who are
responsible for cleaning the cell block were out performing their chores.
Approximately eight cells on 9 Company were unlocked.
Officer McConnell estimated the distance from the shower entrance to the end
gate was approximately three steps. After Claimant went into the shower,
Officer McConnell went to lock the utility corridor door which is about 12 feet
from the end gate. He then walked to the lock box for 2 Company to let an
inmate into that tier and returned 25 feet to the 9 Company end gate. He heard
Claimant yell for a Correction Officer as he walked back to 9 Company. The
shower gate was closed and locked, and Claimant was standing there with his
right eye swollen. Officer McConnell then obtained assistance for the claimant.
Claimant told him he was assaulted but stated he did not know who did it. An
investigation ensued but no one was ever identified as Claimant's assailant.
According to Officer McConnell, Claimant was out of his sight for one-to-two
minutes; and on cross-examination, he admitted that given this time frame, the
assault would have had to occur in less than one minute. He agreed that the
person who assaulted Claimant had to have been one of the inmates whose cell was
open on 9 Company at the time. Although Officer McConnell seemed to be "gilding
the lily" with his timing, the other officers who testified estimated the time
for the various functions Officer McConnell performed after leaving Claimant, as
requiring only seconds to complete. Based upon those officers' testimony, the
Court finds the time that Officer McConnell left Claimant alone to be
approximately three minutes.
Correction Officer McConnell testified that it was not necessary to constantly
supervise an inmate plumber in B Block. His understanding of the policy was
that continuous supervision of an inmate worker in B Block was required only
when work was being done in the utility corridor or in an occupied cell. These
circumstances present obvious security risks; the utility corridor provided
access to the vents and electricity breakers to each cell on the floor.
During the trial, the State objected to any proof being offered on the issue of
any rule or regulation Claimant alleges to have been violated for failure to
respond to such an inquiry in the Defendant's demand for a bill of particulars.
Claimant's position is that the demand asked for book and page number of the
rule or regulation and that the policy or directive was a verbal command from
Sergeant Hutchings; and therefore, cannot be specifically identified in the
manner requested. Additionally, there were no depositions taken so the
information regarding Sergeant Hutchings' written directive (Exhibit 1) was not
known to the claimant until trial. On this record, the testimony regarding
Sergeant Hutchings' order will be considered.
It is the claimant's burden to prove a violation of a rule, regulation, policy
or directive. Officer Townsend testified that Sergeant Hutchings told him not
to leave inmates unsupervised on a cell block if the inmate did not reside
there. He recalls this being an order in place at the time of Claimant's
injury. There was no testimony regarding how this order was disseminated.
Officer McConnell, on the other hand, testified that the directive came down by
the interdepartmental communication prepared by Sergeant Hutchings after the
incident in question. The Court finds that only Officer Townsend was given a
directive by Sergeant Hutchings regarding unescorted inmates. Therefore,
Officer McConnell was not in violation of an order or policy when he left
Claimant unsupervised for a short period of time.
It is well established law that the State is not an insurer of inmate safety
but only must provide reasonable protection against foreseeable risks of attacks
by other inmates. (
Flaherty v State of New York,
296 NY 342; Colon v State of New
209 AD2d 842) Here, Claimant asserts that the attack was foreseeable
because he was in possession of tools. The tools could provide a motive for the
attack, as Sergeant Hutchings speculated; however, none were missing after
Claimant was hit, which draws this speculation into
Unfortunately, inmate assaults are a common occurrence in correctional
facilities. "Generally, liability in a claim asserting negligence on the part
of the State when one inmate assaults another inmate must be predicated upon one
of the following grounds: (1) the victim was a known risk and the State failed
to provide reasonable protection, (
See, Sebastiano v State of New York,
112 AD2d 562); (2) the State had
noticed that the assailant was particularly prone to perpetrating such an
assault and failed to take proper precautionary measures (See, Littlejohn v
State of New York,
218 AD2d 833; Wilson v State of New York,
559); or (3) the State had ample notice and opportunity to intervene and failed
to act (See, Huertas v State of New York,
84 AD2d 650)." (Donaldson v
State of New York,
Ct. Cl. Bell, J.,
Claim No. 93943, Decision filed
January 30, 1998)
Claimant has failed to meet his burden of proving one of the above grounds.
The Court finds that it was not foreseeable that Claimant would be attacked
merely because of the plumbing tools he had in his possession. The Court also
finds that leaving Claimant unattended for three minutes was not unreasonable
given the duties of the Second Officer. Although distressing that Claimant had
to undergo such an ordeal, sympathy cannot dictate the outcome of the case. The
claim is hereby DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.