New York State Court of Claims

New York State Court of Claims

DOUGHERTY v. THE STATE OF NEW YORK, #2002-030-011, Claim No. 102715


Pro se inmate claim of failure to protect sustained, $1,000.00 damages. Claimant a likely victim as a "snitch" and despite likelihood of specific threat based upon his having informed on an inmate, no heightened level of supervision. Claims for wrongful confinement and negligent medical treatment dismissed for failure to state a prima facie case

Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK Caption amended to reflect only proper defendant.
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:
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Signature date:
February 28, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2002.

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 block C"[1] 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.'..."[2] Claimant 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 "1"].

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 informant...."

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[keeplock] status but still...[protective custody]." [Claimant's Exhibits "12 and 13"].

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 testified..

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 this Claimant.

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 Claims 1986).

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 circumstances.

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 dismissed.

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 suffering.

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.

February 28, 2002
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.
[2] The Court notes that the inmate misbehavior report written concerning the incident indicates that no correction officers witnessed the assault, and that the writer, who was Sgt. Vaughn, attempted " interview every inmate on...[gallery 3] but nothing conclusive was established other than inmate Dougherty had spat at inmate Borrelli and charged him with clenched fist." [Exhibit "9"]. This hearsay was not considered by the court.