New York State Court of Claims

New York State Court of Claims

GANGLER v. STATE OF NEW YORK, #2001-018-059, Claim No. 96352


Inmate assault claim dismissed after trial. Claimant failed to prove that the attack was foreseeable or the State had ample time to intervene and failed to act

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:
Defendant's attorney:
Attorney General of the State of New York
By: LOUIS J. TRIPOLI, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 5, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

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 only.

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 off."[1]
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 cell.

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 belong there."

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 risk.

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 York, 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 question.
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, 36 AD2d 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.

February 5, 2001
Syracuse, New York

Judge of the Court of Claims

[1]All quotes are from the Judge's trial notes or the trial transcript unless otherwise noted.