New York State Court of Claims

New York State Court of Claims

MURRELD v. THE STATE OF NEW YORK, #2002-010-025, Claim No. 99435


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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 29, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained on August 9, 1998 when, during his incarceration in the Involuntary Protective Custody Unit ("IPC") at Sing Sing Correctional Facility ("Sing Sing"), he was cut on the face with a small piece of the top of a metal can used by inmate Daniel DaCosta, in the course of an altercation.
Claimant contends that defendant is liable for the attack because claimant had been assaulted by another inmate on April 28, 1998, before being placed in IPC, and defendant denied claimant's repeated requests to be transferred from Sing Sing. Claimant argues that defendant was negligent in its failure to transfer claimant from Sing Sing and its failure to enforce a policy where cans are considered contraband and are prohibited to IPC inmates.
Defendant contends that, prior to August 9, 1998,
claimant maintained that the injuries he had sustained on April 28, 1998 were not the result of an assault and that, when he later admitted that he had been assaulted, he would not identify his attacker. Thus, defendant did not have notice of the identity of claimant's April assailant prior to August 9, 1998 and Department of Correctional Services' ("DOCS") policy is to deny transfer requests of inmates where the assailant is unknown. With regard to contraband in prisons, defendant maintains that it acted reasonably to prevent IPC inmates from possessing cans. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
The April Incident
Claimant testified that on April 28, 1998, he was in the recreation yard when another inmate assaulted him and he hit the frame on the basketball court. Thereafter, claimant was transferred to IPC. According to claimant, he did not know the name of his assailant until late June or early July and that when he learned his attacker's identity, claimant wrote a letter to Deputy Superintendent Connolly prior to August 9, 1998 naming inmate Gaines. Claimant did not keep a copy of this letter. Claimant did retain copies of several letters requesting a transfer from Sing Sing; these letters did not specify a fear of any named or otherwise identified inmate (Exs. EE, JJ). Claimant also kept copies of letters from Sing Sing personnel explaining that, pursuant to DOCS' policy, inmates with unknown or unidentified enemies/assailants will not be transferred (Exs, DD, GG, II).
On May 11, 1998, an administrative hearing was held at Sing Sing to determine whether claimant should remain in IPC. At that hearing, claimant denied that he was attacked on April 28, 1998 (Ex. W). At trial, claimant denied that he knew Correction Officer McCaffrey and had spoken to him. Claimant also maintained that he had not reported that he was injured on the back board of the basketball court to Sergeant Algiere. Additionally, claimant denied telling Nurse Conklin that he hit the hoop frame. Claimant further denied that Deputy Superintendent Connolly and Counselor Richard Gerber had explained the non-transfer policy for inmates with unidentified attackers.
Correction Officer Nicholas Drews testified that, on April 28, 1998, he escorted
claimant from the yard to Sing Sing's emergency room. Claimant was able to walk by himself and had no difficulty speaking. Drews questioned claimant as to the cause of his injury. Claimant replied that he cut himself on the backboard jumping up for a basketball. Correction Officer Jose Rios testified that he was present when Nurse Conklin prepared a Report of Inmate Injury (Ex. Q). Rios signed the report because claimant had refused to do so.[1]
Patricia Conklin, a registered nurse working in the emergency room at Sing Sing on April 28, 1998
, testified that she observed a laceration on claimant's left ear. In response to her inquiry as to the cause of the injury, claimant responded, "hit my ear on frame of the b'ball hoop" (Ex. Q). When she asked what he was doing the time of the injury, claimant answered, "playing basketball" (Ex. Q). He refused to make any further statement, Conklin further testified that, if claimant had been incoherent or unable to make a statement, a correction officer and a sergeant would have to cosign the report.
Sergeant Michael Algiere, the A block housing sergeant
on April 28, 1998, testified that he observed the slash on claimant's ear. Claimant stated at that time that his injury was a result of his fall on the basketball court. Algiere did not believe claimant because it appeared to Algiere that claimant had been slashed and refused to identify his perpetrator. Algiere completed a form recommending that claimant be placed in IPC indicating, "[i]nmate was slashed in the HBC yard. He denies he was slashed. He refuses to name a perpetrator" (Ex. T) According to Algiere, when perpetrators are unknown, victims cannot be protected.
Deputy Superintendent
Connolly testified that, if an inmate is assaulted and does not know his attacker, it is considered safer to keep the inmate in protective custody rather than transfer him to general population in another prison. When enemies are identified, DOCS can prevent them from being incarcerated in the same facility. In investigating assaults, even if the name of an assailant is unknown, any identifying information can be helpful.
He further explained that when an inmate is in IPC because of an identified attack, the facility makes a pro forma request for a transfer to the DOCS Central Movement and Classification Office in Albany. This alerts the central office to the incident but, as was done here, the transfer request is routinely denied (Exs. RR, WW). Within Sing Sing, the IPC committee, which included Connolly, reviewed claimant's status. Despite claimant's multiple requests for a transfer, he was not moved. Connolly did not believe
claimant and found him uncooperative. Connolly testified that, in his experience, inmates are sometimes evasive so that they can be transferred to where their assailants are incarcerated.
Connolly stated that between April 28 and August 9, 1998 he spoke with claimant on many occasions. Initially,
claimant was adamant that he was not attacked. Later he maintained that he was attacked but could not identify his attacker. Claimant would not cooperate in any fashion.
Richard Gerber, a counselor at Sing Sing from 1996 to 1999 in Housing Block
C ("HBC"), testified that part of his responsibilities was to investigate assaults. In regard to the April 28, 1998 incident, he found claimant's injuries inconsistent with what claimant had reported. Gerber spoke with claimant on April 28, 1998. Initially, claimant insisted that he was injured playing basketball, he was angry and cursed at Gerber. Gerber met with claimant almost daily and recorded the substance of their conversations in monthly intervals (Ex. FF). Gerber repeatedly explained to claimant the policy regarding transfers and claimant reacted abusively. Claimant refused to provide any information. Gerber's notes reflect that as late as August 12, 1998, after the second attack, claimant still had not identified his April 28, 1998 assailant. If an assailant is identified, the information is placed into the computer system to ensure that enemies are separated and not in the same facility.
Correction Officer Patrick McCaffrey, the officer stationed in the booth located in the middle of Housing Block A yard on April 28, 1998, testified that he did not witness
claimant sustain injury. McCaffrey inquired of claimant how his injury occurred. Claimant answered that he just cut himself playing basketball.
Claimant testified that while he was in IPC, the cells were routinely subject to random searches and that possession of canned goods was prohibited. Claimant was also strip searched after returning from visits with his wife.
Sergeant Algiere testified that based on his experience, it was not possible to prevent all contraband in Sing Sing. Some of the efforts undertaken to limit contraband included random searches of one cell on each gallery each day, strip frisks of inmates who are out of the unit without a correction officer, and pat frisks of inmates returning from medical units.

Deputy Superintendent of Sing Sing William J. Connolly testified that he has been employed by DOCS for 23 years. He attained his current position in December 1997. As
Deputy Superintendent of Sing Sing, he is responsible for the overall security of the inmates and staff. Several months after becoming Deputy Superintendent, Connolly learned that cans were being permitted in IPC and PC in violation of Sing Sing policy (Ex. 2, p. 5). He ordered all staff to search cells and retrieve lids and cans on all units. The enforcement of this policy is evidenced by the filing of grievances by several inmates, including claimant, in May and June 1998 (Exs. TT, UU, VV).
Connolly testified that it was not possible to keep all contraband out of HBC. Inmates swallow weapons, hide items in mattresses and refashion any metal object, such as eyeglasses, into a dangerous item.

Sergeant Edward Vaughn also testified extensively to the difficulties of maintaining a contraband free prison.

Correction Officer Christopher Stoll testified that after inmates returned from visits, they were strip searched. They were also subject to random searches in the yard and of their cells.
The August Incident
Claimant recounted that on the evening of August 8, 1998, he and inmate DaCosta exchanged words that escalated into a physical confrontation. On the morning of August 9, 1998, DaCosta, who was then a porter on the unit, threw water into claimant's cell. DaCosta momentarily left and when he returned, he had a sharp object in his hand. Claimant exited his cell and a physical altercation ensued.[2] DaCosta cut the left side of claimant's face with the top of a can. Claimant chased DaCosta back to his cell, which was also in IPC. Claimant then picked up a bucket of dirty water and threw it into DaCosta's cell.
Claimant testified that during the encounter, he observed Correction Officer Rios stationed in the bubble, looking down the gallery, but claimant did not alert Rios. Claimant also testified that he saw Sergeant Long and Correction Officer Stoll outside the gate in the front of the gallery.
Correction Officer Christopher Stoll testified that HBC includes four galleries. Upstairs, there was one gallery of 15 cells each for protective custody (gallery four) and another for involuntary protective custody (gallery three). Downstairs, there were two galleries for inmates subject to disciplinary segregation.
On the upper tier in front of the galleries, there was a bubble, approximately 22 feet long and eight feet wide. A correction officer stationed in the bubble could operate the cell doors with mechanical levers that were in the middle of the bubble. This apparatus obstructed the officer's view of the galleries. In order to see down the galleries from the bubble, an officer would have to walk to the end of the bubble.
On August 9, 1998, Stoll recalled that he was walking with Long past the IPC gallery and saw claimant dumping liquid into DaCosta's cell. Stoll was not aware of any prior incident between
claimant and DaCosta. Stoll observed that claimant's left ear was bleeding and escorted him to the emergency room at Sing Sing.
Correction Officer Jose Rios testified that on August 9, 1998, he was assigned to the bubble on the second floor of HBC. From the window at the end of the bubble he could look down in the galleries. In the middle of the bubble, there was a large metal box with a key which contained levers to open individual cells. Rios testified that at approximately 7:05 a.m., he pulled the lever to permit DaCosta , who was a porter on gallery three, to exit his cell. During the unlocking process, as was his usual practice, Rios was looking at the box and not at the gallery. He then walked to the other side to let the gallery four inmates out. During that time, he heard footsteps. Rios did not observe the altercation between claimant and DaCosta.

It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from 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). Foreseeable risk of harm includes the risk of attack by other prisoners (see, Littlejohn v State of New York, 218 AD2d 833). However, "[t]he State is not an insurer of inmate safety; its duty is to exercise reasonable care to prevent foreseeable attacks by other inmates" (Padgett v State of New York, 163 AD2d 914). The mere occurrence of an unprovoked, unexplained attack by a fellow inmate, with whom claimant had no prior contact, does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see, Stanley v State of New York, 239 AD2d 700; Roudette v State of New York, 224 AD2d 808; Leibach v State of New York, 215 AD2d 978; Padgett v State of New York, supra). Nor does the mere fact that a correction officer may not have been present when an assault occurred give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see, Leibach v State of New York, supra; Padgett v State of New York, supra).
To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection (
see Sebastiano v State of New York, supra); (2) the assailant was particularly known to the State to be prone to perpetrating such an assault and the State did not take proper precautionary measures (see, Wilson vState of New York, 36 AD2d 559); or (3) the State had ample notice and opportunity to intervene but did not act (see, Huertas v State of New York, 84 AD2d 650).
Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
the credible evidence established that defendant did not have notice of a foreseeably dangerous situation and defendant acted reasonably in enforcing its policy of prohibiting cans in IPC (see, Schittino v State of New York, 262 AD2d 824 [inmate fight escalated quickly and was not reasonably foreseeable; Court rejected claim that after claimant threw liquid at assailant; correction officer's failure to intervene was negligent]). Notably, there was no link between the April incident and the August incident and DaCosta was not listed on claimant's enemies list. Additionally, defendant was not irrational or negligent in its denial of claimant's requests for a transfer from Sing Sing. Defendant's policy of denying such requests is based upon safety concerns where the assailant is not identified and claimant had repeatedly refused to identify his attacker in the April incident and had frustrated the investigation by initially maintaining that it was a sports injury and not an assault.
Accordingly, defendant's motion
to dismiss, upon which decision was reserved, is now GRANTED.

May 29, 2002
White Plains, New York

Judge of the Court of Claims

[1] Claimant had refused to sign the Report of Inmate Injury Form which indicated that he was injured playing basketball and the cause of injury was a "frame of basketball hoop" (Ex. Q).
[2] Claimant conceded that he could have closed his cell door when he saw DaCosta standing there with a sharp object.