Vincent Dougherty, the Claimant herein, alleges in Claim Number 102715, that
Defendant's agents failed to protect him from assault by fellow inmates, gave
him negligent medical treatment, wrongfully confined him, and lost his personal
property, while he was incarcerated at Sing Sing Correctional Facility
(hereafter Sing Sing). Trial of the matter was held at Sing Sing on January 8,
Claimant testified that on April 4, 2000 at about 7:00 PM, inmates Morales,
DeJesus and Montalbano attempted to physically attack him on "3 gallery, cell
where he was housed in protective
custody. Correction Officer Hewitt and Sergeant Vaughn entered the unit and
intervened. Claimant asserted he had been called a "snitch" by the men who
attacked him. "[I]nmate Morales", Claimant states in his claim, "...yelled
aloud that this claimant was a confidential informant working for Sergeant Hasse
and that it was Sergeant Hasse that give him this information." [Par. 5, Claim
No. 102715]. The inmates were not separated on April 4, 2000. Indeed, in his
claim he states that the correction officers "...told...[his assailants]
and...claimant to go to the back of the gallery upon which time Officer Hewitt
stated to these inmates that "If you want to fight, then go ahead. Just don't
let us hear it...' " [Par. 4, Claim No 102715].
Several days later, Claimant reported Morales' prohibited sexual contact with
another inmate to correction officers. Claimant reported that Morales failed to
wash his hands after the sexual contact, before going to his job assignment in
food services. [See, Claimant's Exhibit "1"]. On or about April 10, 2000
Inmate Morales was fired from his inmate porter position in food services. On
that same date, Claimant asked to speak to a Sergeant - specifically Sergeant
Hasse - because inmate Morales was telling the prison populace that Sergeant
Hasse had been the source for the general perception that Claimant was a
"confidential informant" or "snitch." Claimant avers he told Sergeant Hasse and
Correction Officer Carabello that he feared for his safety, and recounted to
them the April 4, 2000 incident and the fact that the inmates were not separated
at that time.
On April 11, 2000, Claimant testified as a witness in a disciplinary hearing
concerning inmate Mingues. In the course of the hearing he spoke to the Hearing
Officer about his fears, specifically with respect to inmate Morales. During the
hearing Claimant was also asked by the Hearing Officer "...if he was a
confidential informant and claimant stated on the record ‘No.' ....[The
Hearing Officer] then asked claimant if he thought he would have problems on the
gallery with inmate Morales. Claimant thereafter stated he could not be sure."
[Par. 9, Claim No.102715].
At approximately 8:10 PM on April 11, 2000, while Claimant was standing in
front of Mingues' cell, he "...noticed movement on the left side of...[his]
body, and as...[he] turned...saw Inmate Anthony Borrelli in act of
striking...[Claimant] on the left side of...[his] face, saying ‘That's for
telling on my friend Morales.'..."
was taken to the emergency room at the facility, treated [Claimant's Exhibit
"5", Report of Inmate Injury], and returned to "4 gallery" -rather than 3
gallery - where he asked to speak to Sergeant Vaughn, which was "denied." That
night, Claimant indicated, he wrote a long letter to Deputy Superintendent
Connolly - which he described as a "complaint" - saying he was threatened that
night as well, and would not be safe on 4 gallery either. [Claimant's Exhibit
Also admitted in evidence were an "Involuntary Protective Custody
Recommendation" dated August 14, 1996 from Eastern Correctional Facility,[
Claimant's Exhibit "16"], and a "Voluntary Protective Custody Status
Consideration Form" from Auburn Correctional Facility dated August 28,2000.
[Ibid.]. The Eastern form indicates that a "W. Foley, Lt." was making
the recommendation that Claimant be placed in protective custody because "a
letter was received indicating Dougherty....may be in danger due to a previous
incident at another facility." The form from Auburn mentions that while at
Green Haven Correctional Facility Claimant had provided information concerning
an "escape plan." It also indicates that Green Haven "...inadvertently gave a
copy of a confidential tape to...(illegible) then wrote to the inmate who
planned the escape informing him that Dougherty was a confidential
On April 12, 2000 he was taken to St. Agnes Hospital where he was treated for a
broken left mandible or jaw bone. [Claimant's Exhibits "3" and "4"].
Thereafter, he was transferred to Westchester Medical Center, where he remained
until his return to the Sing Sing hospital on April 20, 2000. He stayed in the
Sing Sing hospital until June 14, 2000, without a "change of clothing, or proper
hygienic supplies." Claimant testified that he suffers from asthma - a fact
noted in the log book entries [Claimant's Exhibit "6"] - and his treating
dentist Dr. Stokes had authorized that his personal fan be brought in to the
room because of Claimant's complaints. [Claimant's Exhibit "7"]. Claimant stated
his "jaw was wired shut... [he was] in a room sealed with no ventilation and it
was the middle of summer." He claimed he was not given the fan for the two
months he was at the facility hospital. He asserted he was not given food
because the food processor was broken. The selected medical progress notes
indicate, however, that the inmate - who is noted as being on a liquid diet -
was offered Ensure, but "...refused" it on more than one occasion during the
periods noted, and was regularly presented with different combinations of food.
[Claimant's Exhibit "7"]. A log book entry for May 9, 2000 indicates attempts
were made to secure the fan, but that the request could not be processed at the
time. [Claimant's Exhibit "6"].
Claimant also testified concerning his claim of wrongful confinement. He
asserted he had been on keeplock status from April 11, 2000, and was served with
a "different misbehavior report on April 29, 2000" [See, Claimant's
Exhibit "8"], than the one "written up on April 11, 2000." [See,
Claimant's Exhibit "9"]. The "original misbehavior report" cites violation of
the "no fighting" rule. [Id.] The misbehavior report served on him on
April 29, 2000, concerning the same April 11th incident, alleges violations of
the rules against fighting, spitting, and assault or attempted assault.
[Claimant's Exhibit "8"].
On April 30, 2000 Claimant had a Superintendent's hearing referencing only the
misbehavior report containing just the fighting charge. [Claimant's Exhibit
"12"]. The disposition printout indicates that this misbehavior report was
served on him on April 26, 2000, the hearing began on April 30, 2000, and was
concluded on May 2, 2000. Claimant was found "not guilty based on the oral
testimony of...[Claimant] and that of...[his] witness, inmate Mingues. There
does not appear to be enough credible evidence to substantiate any of the
charges as stated in the Misbehavior Report. Although you may well have
aggravated this situation there is presently no credible testimony to confirm
this." [Id.] In the disposition portion of the print out there is a
notation: "release from K.L. - remain P.C." There are notations in log book
entries submitted for April 25, 26 and May 2, 2000 indicating, respectively,
"...keeplock status is not allowed....","...keeplock status adjourned until
further notice..."; and "per disciplinary inmate Dougherty...off...[keeplock]
status but still...[protective custody]." [Claimant's Exhibits "12 and
No testimony was offered concerning the disposition of the other misbehavior
report, however, Claimant urged that the fact that there was an additional
report containing more charges showed there was "something up."
A recommendation for involuntary protective custody, in "HBC 4 gallery until
the threat to...[claimant's] safety is removed," was made by Correction Officer
Wilk on May 12, 2000, while Claimant was still on the hospital unit floor. After
a hearing on that recommendation Lt. Lucas indicated on the determination form
dated June 2, 2000: "although the separation of inmates Borrelli and Dougherty
is recommended, to place inmate Dougherty on the Involuntary Protective Custody
Gallery where inmates are allowed to congregate for meals and recreation could
subject him to further harm. Therefore, I disagree with this recommendation to
place Dougherty in invol. Prot. Custody." [Claimant's Exhibit "14"].
There was no cross-examination of Claimant and no other witnesses
While the State must provide inmates with reasonable protection against
foreseeable risks of attack by other inmates, [Blake v State of New York,
259 AD2d 878 (3d Dept. 1999); Sebastiano v State of New York, 112 AD2d
562 (3d Dept. 1985)], the State is not the 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 on the State's part, 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 (3d
Dept. 1995); Wilson v State of New York, 36 AD2d 559 (3d Dept. 1971)]; or
(3) the State had notice and the opportunity to intervene to protect the inmate
victim and failed to act. Smith v State of New York, 284 AD2d 741 (3d
Dept. 2001). The mere fact that a correction officer is not present at the
precise time and place of an assault does not give rise to an inference of
negligence absent a showing that officials had notice of a foreseeable dangerous
situation. Colon v State of New York, 209 AD2d 842 (3d Dept. 1994);
Padgett v State of New York, 163 AD2d 914 (4th Dept. 1990), lv
denied, 76 NY2d 711 (1990).
Additionally, the court must consider whether there was information which would
trigger any heightened awareness of a risk to this inmate - any "suspicious"
behavior such as an individual leaving an assigned work post, or stuffing
magazines in his shirt to avoid injury - to alert correction personnel of a
specific danger brewing. See, e.g., Huertas v State of
New York, 84 AD2d 650 (3d Dept. 1981).
Even an inmate's request for protective custody may not necessarily trigger a
specific duty to protect, if the inmate does "...not alert the
interviewing...[correction officers] of his past problems, a specific hazard or
a particular urgency to his situation." Roudette v State of New York, 224
AD2d 808, 809 (3d Dept. 1996).
Additionally, the fact that officers may not have been present at the precise
time and place of the assault, does not give rise to liability. Colon v
State of New York, supra; Padgett v State of New York,
supra. "...[U]nremitting supervision..." is not required. Colon v
State of New York, supra, at 844.
In the absence of any rebuttal evidence, the Court is persuaded by the mostly
credible testimony of Claimant that Defendant had notice that Claimant was a
known risk, at least with respect to inmate Morales. Assuming Claimant's
testimony is credited, the April 4th assault should have triggered a heightened
awareness that Claimant was at risk, just as Claimant's role in accusing Morales
of rule violations resulting in Morales' dismissal would create notice of a
foreseeable dangerous situation. While the Claimant was already in protective
custody at the time, the defendant does not appear to have reacted to those
incidents specifically, to increase the level of supervision.
It was not Morales, however, who attacked Claimant on April 11, 2000. An
inmate Borrelli - never described as an enemy by Claimant - was the attacker.
Whether a general reputation as a "snitch", requires the State to provide
reasonable protection against more than just a specific known enemy is another
issue entirely. Arguably, just as there may be heightened risk to an inmate
when he is due to be transferred to another facility, [See, Sebastiano
v State of New York, supra], or a former correction officer who is
incarcerated [See, Smith v State of New York, supra ], an inmate
with a reputation as an informant might be one requiring additional protection
as well. A general reputation alone would not appear sufficient and would place
an inappropriate burden upon the State.
Here, however, the victim appears to have made it a habit to provide
information to the authorities. The likelihood that he would be victimized is
reinforced by that history of informing, and then seeking or being directed into
protective custody. No additional measures were put in place despite the
Claimant's once again stepping forward and informing on an inmate. Under the
unique circumstances here, and based upon this uncontroverted record, the Court
finds Claimant has established that the State failed to provide him with
reasonable protection against a foreseeable risk of harm. Given the
information available to the Defendant at the time of the assault of April 11,
2000, the occurrence of an assault, even by one other than those already
perceived as enemies, was a foreseeable risk requiring reasonable steps to
protect this Claimant. The State is, therefore, liable for failing to protect
With respect to his claimed property loss, Claimant withdrew his claim for loss
of personal property on the record at the close of the evidence.
His remaining claims for wrongful confinement, and negligent medical treatment
are dismissed for failure to prove a prima facie case. As to wrongful
confinement, the quasi-judicial acts of correction employees taken in
furtherance of authorized disciplinary measures are entitled to absolute
immunity. Arteaga v State of New York, 72 NY 2d 212, 219-220 (1988). If
officers act inconsistently with their own rules and regulations, or otherwise
act outside the sphere of privileged actions, liability may attach. The fact
that charges are ultimately dismissed does not give rise to a cognizable cause
of action when there is no evidence defendant acted inconsistently with its own
rules and regulations. Arteaga v State of New York, supra;
Holloway v State of New York, 285 AD2d 765 (3d Dept. 2001);
c.f.: Gittens v State of New York, 132 Misc 2d 399 (NY Ct
To establish a prima facie case of wrongful confinement, a "species" of
the tort of false imprisonment, [Gittens, supra., at 407],
a claimant must show "...(1) the defendant intended to confine him, (2)
the...[claimant] was conscious of the confinement, (3) the...[claimant] did not
consent to the confinement and (4) the confinement was not otherwise
privileged...." Broughton v State of New York, 37 NY2d 451,456 (1975).
From the limited facts presented it would appear that correction officers acted
narrowly within the bounds of New York State Department of Correctional
Services rules and regulations. The April 30, 2000 disciplinary hearing was
commenced within the appropriate time frame, given the Claimant's
hospitalization after the misbehavior report was written. Indeed, there is some
confusion in the record as to whether the hospital unit - where he resided from
April 20, 200 to June 14, 2000 - even has a keeplock area. The Claimant did not
establish the existence of same.
The misbehavior report served upon Claimant, alleging violation of "Rule 100.13
Inmates shall not engage in fighting", [7 NYCRR §270.2-B-1], triggered the
requirements of a Tier III disciplinary hearing, in accordance with 7 NYCRR
§ 254.1 et seq; as well as the "timeliness" provisions of 7
NYCRR §251-5.1. Regulations require that any hearing must be commenced
within seven (7) days of the confinement, unless delay in its commencement is
"authorized" by "the commissioner or his designee." [7 NYCRR § 251-5.1(a)].
Similarly, the "...hearing must be completed within 14 days following the
writing of the misbehavior report unless otherwise authorized by the
commissioner or his designee.......[T]he record of the hearing should reflect
the reasons for any delay or adjournment, and an inmate should ordinarily be
made aware of these reasons unless to do so would jeopardize institutional
safety or correctional goal." [7 NYCRR § 251-5.1(b)].
In this case, given the lack of clarity as to any "confinement" - although
presumably the allegation is that the confinement began on April 11, 2000
because of his alleged keeplock status - it is difficult to say whether the
hearing was commenced within the proper time frame. Certainly, any delay of the
hearing was authorized because of the claimant's time at an outside hospital,
and then in the facility hospital. He was "released" as a result of the hearing
process per the Superintendent's Hearing disposition on May 2, 2000. [Claimant's
Exhibit "12"]. No claim of wrongful confinement will lie under these
Claimant's allegations concerning negligent medical treatment are unsupported
by the record as well. If a claim is read as alleging simple negligence, or
medical negligence, then the alleged negligent omissions or acts by the State's
employees can be readily determined by a fact finder using common knowledge
without the necessity of expert testimony. Coursen v New York
Hospital-Cornell Medical Center, 114 AD2d 254, 256 (1st Dept. 1986).
Similarly, the State may be found liable for ministerial neglect if its
employees fail to comply with an institution's own administrative procedures and
protocols for dispensing medical care to inmates. Kagan v State of New
York, 221 AD2d 7,10 (2d Dept 1996).
From this record, there is no indication that the actions of medical care
givers amounted to simple negligence or ministerial neglect. Coursen v New
York Hospital, supra; Kagan v State of New York,
supra. The progress notes indicate that the Claimant was being
seen by medical personnel regularly, who attempted to minister to his needs.
The Claimant did not establish that he was denied food, or the use of a fan to
his detriment. To the extent the claim can be read to assert such theories,
therefore, any cause of action for negligence or ministerial neglect is also
As to damages, other than his allegations in his claim of continued pain and
suffering unsupported by any medical evidence, Claimant did not indicate what
his injuries are today. In any event, his testimony alone would not support a
causal connection between the event of April 11, 2000 and any injury complained
of today. Without an expert, it is difficult for this court to ascertain the
amount of damages.
Although the court cannot conclude on this record the extent of any permanent
damage, it is still this court's function and duty to determine a fair award in
consideration of the Defendant's liability, and the past suffering of claimant.
Gill v State of New York, Claim No. 96248, O'Rourke, J., August 29, 2000.
Accordingly, the Court finds that the Claimant will be justly compensated by an
award of nominal damages in the amount of $1,000 for his past pain and
It is ordered that to the extent claimant has paid a filing fee, it may be
recovered pursuant to Court of Claims Act § 11- a (2).
Defendant's motion to dismiss, reserved on at the time of trial, is hereby
denied in part and granted in part. With respect to the claim of failure to
protect, the motion is denied. With respect to the claims of wrongful
confinement and ministerial neglect, the motion is granted, and those portions
of the claim are hereby dismissed.
Let Judgment be entered accordingly.