New York State Court of Claims

New York State Court of Claims

DANIELS v. THE STATE OF NEW YORK, #2002-015-551, Claim No. 100618


Inmate claimant failed to satisfy burden of proof at trial regarding claimant's allegedly improper program status change and transfer following disciplinary hearing and regarding assault and battery by fellow inmate.

Case Information

ROBERT DANIELS The caption of this claim has been amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Robert Daniels, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown III, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Robert Daniels, appearing pro se, alleges that on October 5, 1998 defendant's agents negligently failed to protect him from an attack by fellow inmates which occurred at Clinton Correctional Facility (Clinton), Dannemora, New York. The claimant further alleges that on May 9, 1998 after having been wrongly found guilty of disciplinary charges and while his appeal therefrom was still pending he was improperly deprived of his positive programming status, reclassified from minimum security status to maximum security status and transferred to Clinton from Sullivan Correctional Facility at Fallsburg, New York. He alleges further that although the finding of guilt on the disciplinary charge was reversed on appeal and the record expunged on June 17, 1998 he remained improperly incarcerated at Clinton for four months through the date of his attack and beyond. Claimant asserts that the State was grossly negligent in maliciously prosecuting him, intentionally violated his due process rights at his Superintendent's hearing and caused him to be falsely imprisoned. He argues that such negligence on the part of the State was a proximate cause of the injuries he sustained in the October 5, 1998 attack by fellow inmates. He further asserts that defendant's acts subjected him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and that he, accordingly, suffered damages in the sum of $200,000.00 on the first cause of action and $500,000.00 on the second cause of action arising from the battery itself.

Claimant was the sole witness called to testify in support of the claim and, in addition to offering numerous exhibits in evidence, testified as follows:

Claimant testified regarding the disciplinary charges (marijuana use) brought against him while at Sullivan, the Superintendent's hearing conducted with regard to the charge, his conviction of the charge and successful appeal to the Commissioner of Correctional Services pursuant to 7 NYCRR § 254.8 (Exhibit 3). He further testified that following his conviction on the disciplinary charge on March 23, 1998 he was denied a certificate of earned eligibility which he alleges affected the Division of Parole's decision dated March 31, 1998 denying him parole. The Court notes, however, that the parole determination (Exhibit 6) contains no specific reference to the March 1998 disciplinary charge and instead is centered upon the nature of claimant's criminal convictions, multiple parole revocations and an unsuccessful period of probation as factors leading to the denial of parole. Claimant also submitted a hand printed note from an individual identified thereon as Mr. Porcelli/counselor dated June 25, 1998 which suggests without citation to any law, rule or regulation that claimant was eligible to apply for a transfer back to Sullivan HUB in August (claimant's quarterly month) as a result of the reversal of his conviction (see Exhibit 7). The memo further directs claimant to maintain a positive custodial adjustment.

With regard to the Tier III hearing, claimant's testimony was directed to the facts surrounding the charges brought against him and the actions of the Superintendent's designee who conducted the hearing including the hearing officer's alleged failure to provide written notice pursuant to 7 NYCRR § 254.5 [
sic], withholding of evidence in violation of 7 NYCRR § 253-3.1 [sic] and partiality on the part of the hearing officer in violation of 7 NYCRR § 254.1 and § 253.1. Claimant also alleged in relation to the disciplinary charge and hearing that defendant violated 7 NYCRR § 1010.5, § 1020.4 and DOCS Directive # 4937 (e) (1).
As an initial matter, the Court finds that the proof presented is wholly inadequate to support the claimant's contention that DOCS personnel violated the cited rules and regulations as part of the investigation and prosecution of the disciplinary charges. In fact, no proof establishing such violations was offered at trial other than the claimant's own bare allegations. Having failed to establish the violation of rules and regulations governing the hearing process or that the officers involved exceeded their lawful authority, the actions taken in bringing the charges and conducting the disciplinary hearing are entitled to absolute immunity (
Arteaga v State of New York, 72 NY2d 212).
Nor is claimant's attempt to assert a cause of action for malicious prosecution in connection with his disciplinary hearing cognizable on the facts of this case. The first element of a cause of action for malicious prosecution requires the commencement of a criminal proceeding by the State against the claimant. That element is lacking here since it has been determined that "neither a disciplinary nor a superintendent's hearing is the type of full scale adversarial hearing which might otherwise be considered sufficiently akin to judicial proceedings to permit an action for malicious prosecution" (
Gittens v State of New York, 132 Misc 2d 399, 405; see also, Broughton v State of New York, 37 NY2d 451).
Additionally, claimant may not recover money damages arising from his transfer to Clinton Correctional Facility following his conviction on the disciplinary charge even though later reversed nor may he recover damages for the State's failure to return him to a less secure facility following his successful appeal. It is well established pursuant to Correction Law § 23 that the "Commissioner of Correctional Services has virtually 'unbridled authority to transfer inmates from one facility to another within the system' (
Matter of Johnson v Ward, 64 AD2d 186, 188)" and that a prisoner "has no statutory, constitutional or precedential right to his prior housing or programming" (Fridella, Matter of, v Coughlin, 177 AD2d 872, 873-874). It is further established that "[I]nmates have no right to remain at a particular facility or 6any expectation that transfer will not occur without misconduct (Montanye v Haymes, 427 US 236, 243) and [the Department of Correctional Services] is not required to give reasons for such a transfer" (Henry, Matter of, v Coughlin, 189 AD2d 1054).
Thus, absent a legally cognizable right to remain at Sullivan pending his appeal from the disciplinary conviction or a right to be returned to Sullivan after successful completion of the appeal claimant may not recover money damages resulting from his transfer or from the State's failure to transfer him back to Sullivan Correctional Facility .

Finally, claimant failed to allege sufficient facts in the claim or to present evidence at trial to support a cause of action for a constitutional tort under the New York State Constitution (
see, Brown v State of New York, 89 NY2d 172) and this Court lacks subject matter jurisdiction to entertain the stated cause of action alleging violations of claimant's rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution (Brown v State of New York, supra).
Accordingly, the relief requested in claimant's first cause of action is denied in all respects.

With regard to his second cause of action claimant testified that he arrived at Clinton Correctional Facility on May 19 or May 20, 1998 and was released from solitary confinement on May 22. His period at Clinton was uneventful until the evening of October 5, 1998. At approximately 8:00 p.m. on that date claimant was attacked from behind by three inmates while he was climbing a set of stairs near "21 post" in the facility's north yard. Claimant never observed two of his assailants and their identity is unknown to this day. He did, however, see the face of the third attacker and later identified the individual. Claimant did not report the incident but informed his mother in a telephone conversation who then reported the attack to prison personnel.

An investigation, including a physical examination, was conducted on October 9, 1998 which resulted in the filing of an unusual incident report dated October 26, 1998 (Exhibit 10). The report indicates, inter alia, that medical staff detected four older puncture wounds to claimant's shoulder area and one minor laceration of the fifth digit of the left hand. It further indicated that claimant was frisked without finding contraband and that his request for protective custody was granted. It further recited that claimant was issued a misbehavior report for not reporting the incident and was placed in keeplock status. During a subsequent interview claimant was shown a photo array and positively identified one of his assailants, inmate Garfield Allen. Inmate Allen was also issued a misbehavior report and was offered but reportedly refused protection.

Claimant testified at trial that he did not know inmate Allen prior to the date of the attack and that he still does not know the identify of either of the two men who attacked him from behind. According to his trial testimony claimant remained in voluntary protective custody at Clinton until his transfer to Adirondack Correctional Facility on November 9, 1998.

Claimant also testified regarding the number of correction officers usually assigned to patrol and guard the north yard during inmate recreation periods and alleged that at the time of the attack post #21 at the top of the stairway he was using was unmanned. He testified further on direct and later on redirect that it was not unusual during inmate recreation for correction officers to leave their assigned posts and to gather at the north yard gate.

On cross-examination claimant reiterated his earlier testimony that none of his attackers were known by him prior to October 5, 1998. He alleged that he told investigating officers that he heard other inmates who watched the attack yell out the name "Garfield" but stated that he knew no one by that name. The witness admitted that on his initial interview with DOCS in 1993 he reported no known enemies and confirmed that he reported no known enemies to the Clinton authorities upon his arrival there in May 1998. He further admitted that he was never able to identify two of the men who attacked him from behind on October 5, 1998. The witness testified that although it was common practice for correction officers assigned to the north yard to leave their posts and walk through and around the yard, in his experience post #21 at the top of the stairs was always manned. Prior to concluding his direct case, claimant stated that as a result of his failure to report the attack he was found guilty of misbehavior and was sentenced to five days keeplock (suspended) and that following his admission into voluntary protective custody he was housed in a special housing block until his transfer to Adirondack.

Following defendant's motion to dismiss the claim for failure to make out a prima facie case on which the Court reserved decision, the State called a single witness, Thomas La Valley. Mr. La Valley identified himself as a twenty-three year employee of DOCS with the current title of Correction Facility Operations Specialist. He testified that the majority of his twenty three years with the Department were spent at Clinton and that he was familiar with security at that facility. He offered testimony estimating inmate population vis-a-vis the number of assigned correction officers per shift in 1998 and described the general layout of the north yard. The witness alleged that during summer/fall evening recreation, which occurred between 3:00 p.m. and 9:30 p.m., ten correction officers would be assigned to the north yard. He described the twenty three guard posts in Clinton's north yard area but testified that officers were not required to be at particular posts at any particular time except that at least one officer was to be present at post #1 (main gate) at all times when inmates were in the yard.

La Valley described his duties as Security Sergeant, a title he held in October 1998, as including overall supervision of correction officers and inmates. He stated that there were 10 correction officers on duty the evening of October 5, 1998 but that they were not assigned to specific posts. Defendant's Exhibit A reflects the correction officers on duty at the time of the incident.

The witness related that he first learned of claimant's attack on October 9, 1998 and that he found claimant in his cell, observed his wounds and ordered claimant to the infirmary. He noted that claimant advised him that he did not know his attackers and that he placed claimant in voluntary protective custody for his own safety. La Valley alleged that he reviewed information regarding inmate enemies reported to DOCS and found that claimant had reported no known enemies. The witness described Exhibit C as including a separation order directing that claimant be separated from inmate Allen as a result of the October 5, 1998 incident.

On cross-examination by the claimant La Valley testified that he had no independent recollection of his conversation or interview with claimant on October 9, 1998. He could not recall if inmate Allen, identified as one of the perpetrators of the attack on claimant, had any prior history of assaults while in DOCS custody. The witness admitted that with over 400 inmates present in the north yard for recreation not all inmate courts would be visible from the main gate. He also admitted that with only ten correction officers on duty post # 21 would frequently not be manned, especially when assigned officers are sent on "go back" duty to the dorms and that despite the presence of metal detectors in the north yard area occasionally inmates conceal and smuggle weapons into the yard. At the conclusion of La Valley's testimony the defendant rested and renewed its prior motion to dismiss the claim.

In the recent case of
Smith v State of New York, 284 AD2d 741 at 742 the Appellate Division, Third Department, succinctly stated the following requirements for determining liability on a cause of action for personal injury arising from an inmate assault:
The State is required to exercise 'reasonable care to protect its inmates from foreseeable risks of harm, including risks of attack by other prisoners' (Colon v State of New York, 209 AD2d 842, 843; see, Dizak v State of New York, 124 AD2d 329, 300). The State is not, however, an insurer of inmate safety (see, Auger v State of New York, 263 AD2d 929, 930; Littlejohn v State of New York, 218 AD2d 833, 834). To establish liability against the State, one of the following must be shown: (1) the victim was known to be at risk and the State nonetheless failed to take reasonable steps to protect him or her (see Stanley v State of New York, 239 AD2d 700, 701; Sebastiano v State of New York, 112 AD2d 562, 564), (2) the assailant was known to be dangerous but the State failed to protect other inmates from him or her (see, Auger v State of New York, supra, at 931; Casella v State of New York, 121 AD2d 495, 496), or (3) the State had both notice and the opportunity to intervene for the purpose of protecting the inmate victim but failed to do so (see, Schittino v State of New York, 262 AD2d 824, 825, lv denied 94 NY2d 752).
As in
Smith, the instant claimant failed to make the requisite showing. First, claimant failed to establish that he was at risk of attack by other inmates and that the State failed to take reasonable steps to protect him. He admitted that he had no known enemies prior to the October 5, 1998 incident and even after identifying one of the assailants he was unable to explain why inmate Allen would have attacked him.
Second, claimant failed to demonstrate that prior to the attack the State knew or should have known that any of his three assailants were known to be dangerous. The identity of two of the three assailants is still unknown and claimant offered no testimony or documentary evidence at trial to support a finding that inmate Allen was known or should have been recognized as dangerous by DOCS prior to the attack.

Finally, claimant offered no proof whatsoever that the State had advance notice of a pending attack upon him and an opportunity to intervene on his behalf.

Despite claimant's unchallenged testimony that guard post # 21 at the top of the stairway was unmanned at the time of his attack he made "no showing that closer supervision might have prevented claimant's injuries" (
Sanchez v State of New York, 288 AD2d 647, 648-649). In fact, it has been held that absent specific notice to the State "unremitting supervision was unnecessary" (Colon v State of New York, 209 AD2d 842) and "even the total absence of any guard within the area at the time of the incident would be insufficient to impose liability, absent a showing that prison officials had notice of an 'especially dangerous situation' (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711)" (Sanchez v State of New York, supra at 648). No such showing was made here.
Claimant failed at trial to establish the State's liability on his second cause of action by a preponderance of the evidence and the relief requested therein is likewise denied.

All motions previously reserved upon are denied.

Let judgment enter accordingly.

April 3, 2002
Saratoga Springs, New York

Judge of the Court of Claims