New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2002-029-169, Claim No. 94229


Prisoner - assault by inmate unknown to claimant at time. Spontaneous and happened quickly. No notice or opportunity to prevent. Court does not accept claimant's argument that information contained in assailant's OMH file is imputable to DOCS. Info contained in OMH file is statutorily unavailable to DOCS. No liability; dismissed.

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:
Andrew F. Plasse, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 2, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for personal injury arises from an assault upon claimant by a fellow inmate at Downstate Correctional Facility (hereinafter Downstate) on August 24, 1995 allegedly as a result of the State's negligence in failing to provide adequate supervision to prevent the attack. The trial was bifurcated and this decision deals only with the issue of liability.

Claimant testified at trial with the aid of an interpreter that (1) he arrived at Downstate from Rikers Island on August 24, 1995 at approximately 8:30 or 9:00 a.m.; (2) he was placed in a holding cell with approximately 50 - 60 inmates who came to Downstate on the same bus; (3) he was handcuffed and wearing leg restraints at that time; (4) correction officers (COs) performed pat-frisks of the inmates in the cell, as well as used a metal detector to scan the inmates; (5) the inmates were taken to a private room and strip searched and a body cavity search was performed; (6) the inmates were then issued State clothing and received their Department of Correctional Services Identification Numbers; (7) the group of inmates was then taken upstairs to a large room with many chairs (see Exhibits B - F); (8) the inmates were told by a CO to sit in the chairs and not stand unless they requested, and received, permission to do so from an officer; (9) claimant was sitting in one of the chairs when he felt a punch, fell to the floor and realized he was bleeding; (10) he did not know his assailant at the time of the incident, but had seen him on the bus trip from Rikers Island and had seen him sitting a few chairs away prior to the assault. He later learned the assailant's name.[1]

On cross-examination, claimant confirmed that he did not know his assailant nor had he ever had a problem with him prior to the assault.

Claimant called CO Theodore Miller as a witness. The witness has been employed by the Department of Correctional Services (DOCS) for 19 years and has been assigned to Downstate for approximately 8½ years. He stated that on August 24, 1995 he escorted inmates to the Inmate Waiting Area, also referred to as "the square" (the area where claimant was assaulted) and that inmates go to "the square" for medical screening and a determination of their educational level. His testimony that inmates could not move around "the square" without permission from a CO was consistent with claimant's testimony.

On cross-examination, CO Miller stated that he was located approximately three yards in front of the first row of chairs in "the square" at the time claimant was assaulted (see Exhibits B and E). There was also another CO in the area. He stated that, following the attack, he took claimant to the infirmary for medical attention.

Claimant also called Sergeant (Sgt.) Kenneth Baldwin as a witness. Sgt. Baldwin testified that he has been employed by DOCS for approximately 19½ years, has been a Sergeant since July, 1989 and has been assigned to Downstate intermittently since 1989, including August 1995. Sgt. Baldwin testified as to the procedures inmates undergo when they first arrive at Downstate, including the strip search.

On cross-examination, the witness stated that he was notified of an incident in "the square" on August 24, 1995 and responded to the scene where he spoke to both the assailant and to claimant. The witness stated that claimant told him he didn't know why John Doe assaulted him. Sgt. Baldwin further testified that he placed claimant in Involuntary Protective Custody for his own safety.

The State called Robert Morton, who has been employed by DOCS for 26 years as a correction officer. He is currently a Captain assigned to Downstate. He testified that on August 24, 1995, he held the rank of Lieutenant and was the Watch Commander on the 7:00 a.m. to

3:00 p.m. shift. The witness testified regarding the procedures for processing new inmates at Downstate. He stated that the inmates are pat-frisked and pass through a metal detector, their clothing is confiscated and they are issued prison clothing. Captain Morton also testified that the inmates are then subjected to a strip search by COs. However, a body cavity search is not normally done on new inmates unless authorized by Albany at the request of the facility superintendent. The Captain also stated that if the facility sending an inmate has a mental health record on that inmate, it is sent directly to the Mental Health Unit (MHU) at Downstate. Such records do not travel with the inmate and are not routinely available to the COs during initial processing.
On cross-examination, Captain Morton stated that mental health records are separate from DOCS records and he does not know where the Office of Mental Health (hereinafter OMH) records are stored. He further testified that when an inmate is a disciplinary problem or is acting in a bizarre manner, OMH is contacted and that office deals with the inmate's mental health issues.[2]

While the State must provide inmates reasonable protection against foreseeable risks of attack by other inmates (
Blake v State of New York, 259 AD2d 878; Sebastiano v State of New York, 112 AD2d 562), the State is not an insurer of the safety of inmates and the fact that an assault occurs does not give rise to the inference of negligence (Sebastiano v State of New York, supra).
In order to establish liability against the State, an inmate claimant must allege and prove 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, supra); (2) the State had notice that the assailant was dangerous and refused to take the proper precautions (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 the latitude to mediate and failed to act (see, Smith v State of new York, 284 AD2d 741; Huertas v State of New York, 84 AD2d 650).
The evidence adduced at trial established that claimant did not know the assailant prior to the attack nor was he aware that the assailant was going to attack him. Thus, there is no liability to defendant under the
Sebastiano, supra branch of the case law. Likewise, there was no evidence that the defendant had the opportunity to intervene in the attack and failed to intervene or prevent it. Thus, no liability attached under the Huertas, supra rationale.
Claimant asserts that Doe's confidential psychological records (Exhibit 5)[3]
in the possession of OMH are sufficient to place DOCS on notice that Doe was dangerous to claimant and others thereby seeking to establish liability under Littlejohn, supra. While Doe's OMH record demonstrates some history of violent behavior and an "anti-social" personality, almost all of these records describe post-attack matters or the incident itself.[4] Further, the Court is unsure as to how generalized notes of an anti-social personality would distinguish Doe from many other inmates who have similar histories and diagnoses.
Nevertheless, claimant asserts that since OMH had some knowledge of Doe's mental health history and history of antisocial behavior, this knowledge should be imputed to DOCS, thus putting DOCS on notice that Doe was dangerous. While creative, this position is not tenable.

Mental Hygiene Law § 33.13 (c) requires that the clinical records maintained by the OMH remain confidential. They may not be disclosed to DOCS, or any other agency, without a Court Order or the patient's consent except in very specific circumstances.[5]
Thus, the information contained in Doe's OMH records was statutorily unavailable to DOCS and cannot be imputed to that agency under the circumstances at bar.
Even assuming,
arguendo, the information contained in the OMH records is imputable to DOCS, claimant failed to present any evidence that the statements and observations made by physicians and other mental health professionals regarding the assailant's mental health status was of such a compelling nature as to put DOCS or OMH on notice that he was an imminent danger to himself, other inmates or DOCS staff. Contrary to claimant's assertions, the Court finds that this is not a matter of common knowledge which a fact finder could decide in the absence of expert testimony (Duffen v State of New York, 245 AD2d 653, lv denied 91 NY2d 810, Armstrong v State of New York, 214 AD2d 812, lv denied 86 NY2d 702). Presumably, the phrase "anti-social personality disorder" would describe both a hermit and a homicidal sociopath. The placement of Doe within this continuum requires more than a lay person's common knowledge and experience. Since no expert testimony was proffered on the issue, the Court finds that claimant has failed to establish that his assailant was imminently dangerous, that DOCS was on notice of such condition, or that Doe's condition was so different from other inmates as to require that OMH notify DOCS.[6]
Claimant further asserts that the COs on duty in "the square" were negligent in the performance of their duties in supervising the inmates. Both CO Miller and claimant testified that an inmate in "the square" had to be seated in a chair and needed permission from a CO to get up. Claimant asserts that Doe stood up, without permission, and attacked him. Claimant thus asserts the officers were negligent in supervising the inmates in "the square". The testimony of CO Miller, adduced at trial, established that the COs were stationed approximately 9 feet (3 yards) in front of the first row of chairs where the inmates were sitting. There was no evidence proffered that the attack upon claimant was other than an unprovoked, fast, spontaneous act by Doe. Further, there was no evidence presented that the COs failed to pay attention as asserted by claimant. The only regulatory violation before this Court is the conduct of inmate Doe and this distinction certainly cannot be lost upon claimant or his counsel, nor can it be the basis of liability against defendant in the absence of a violation
by an employee of defendant.
Claimant asserts that the officers failed to comply with 9 NYCRR § 7003.2 (d) regarding constant supervision of inmates. This provision is contained in the State Commission of Correction Minimum Standards and Regulations for Management of
County Jails and Penitentiaries (emphasis supplied). This regulation is facially not applicable to State facilities. Even if it were, the section merely defines constant supervision and no proof was presented at trial that this regulation was violated. Further, judicial authority in this State has established that unremitting supervision of inmates is not required (Colon v State of New York, 209 AD2d 842). Here, the proof presented established that when the assault occurred, the CO present immediately responded in an appropriate fashion and took appropriate remedial actions.
Based upon the record, the Court finds that claimant has failed to establish that the State did not provide him with reasonable protection against a foreseeable risk of harm. Accordingly, the claim is dismissed. The Chief Clerk is directed to enter judgement accordingly.

May 2, 2002
White Plains, New York

Judge of the Court of Claims

[1] As the Court will be referring to assailant's confidential records maintained by the Office of Mental Health, we will refer to him as John Doe or Doe rather than by name.
[2] The testimony of all witnesses, including claimant, established that John Doe exhibited no such behavior at any time prior to the attack. Thus, there appears to have been no basis for the COs to have requested OMH intervention at any time prior to the attack.
[3] These documents were made available to claimant following an in camera inspection of the documents by former Judge Andrew P. O'Rourke.
[4] Page 16 of Exhibit 5, the Admission Screening Form, related that Doe was interviewed on August 24, 1995 at 9:35 a.m. and the admitting diagnosis is recorded as "adjustment disorders with anxiety & depressed mood". Under the heading "Developmental Disorders and Personality Disorders" is recorded "Antisocial Personality Disorder". Page 41 of Exhibit 5 indicates Doe was admitted to a psychiatric facility on two occasions prior to the assault on claimant. Page 50 of Exhibit 5, the "Screening/Admission and Evaluation/Assessment Note for Outpatient Services" records a "history of suicide attempts (2) assaults and several hospitalizations for depression and acting out..." because under the heading "Psychiatric/Medical" is the following entry: "Assaulted other inmate with razor in RI". Page 75 of Exhibit 5 relates that Doe was admitted to South Beach Psychiatric Center in 1990 as a 13 year old for threatening his mother with a knife.
[5] The exceptions to this confidentiality requirement are fully set forth in the statue and the record contains no evidence that any of them were applicable in this case.
[6] See, for example, Mental Hygiene Law § 33.13 (c) (9) (v) which expressly negates any such affirmative requirement of disclosure even where it may be otherwise permissible.