New York State Court of Claims

New York State Court of Claims

MACK v. THE STATE OF NEW YORK, #2003-031-507, Claim No. 97668


Synopsis


Defendant did not negligently fail to protect Claimant from assault by other inmates. Claim dismissed.

Case Information

UID:
2003-031-507
Claimant(s):
ANTHONY MACK
Claimant short name:
MACK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97668
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
CELLINO & BARNES, P.C.BY: MARK R. MULTERER, ESQ., of Counsel
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 11, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, Anthony Mack, filed claim number 97668 on January 15, 1998, alleging that the State, through its agents, negligently failed to protect him from an assault by several other inmates. The assault occurred in October 1995 at Collins Correctional Facility ("Collins"). I held the trial on this matter on January 30 and 31, 2002 and June 26, 2002.

Claimant's testimony, in general, was credible. His recollection of the events was "spotty." However, Claimant recalled not only facts that supported his case, but facts that hurt his case as well.

Claimant was transferred to Collins on October 17, 1995 (Tr. 5-6). The next day, while at lunch in the mess hall, he recognized another inmate (later identified as inmate Holden) as one with whom he had fought while incarcerated at Rikers Island Correctional Facility in 1989 (Tr. 6, 28, 29). Claimant and this inmate held eye contact and then both left the mess hall without eating. Claimant stated that, upon leaving the mess hall, he "felt there still was going to be a problem" (Tr. 8).

Claimant returned to his unit in the B-side dormitory and asked another inmate for a weapon. This inmate advised Claimant to "cool out" because Claimant was "too short," that is, Claimant was going to be released soon (Tr. 8).

Claimant stated on direct examination that he was approached by Correction Sergeant Whitmore. Sergeant Whitmore offered to assist Claimant with his problem but needed Claimant to identify the inmate he saw before the Sergeant could take action. Claimant did not know the individual's name and could only tell the Sergeant that the inmate was a tall black male (Tr. 10, 44, 53). Claimant testified that the Sergeant suggested that Claimant point this inmate out to an officer the next time Claimant saw him at chow or recreation (Tr. 10). Claimant stated that he then made a telephone call to his family (Tr. 10), signed out for recreation, and left the dormitory (Tr. 12). Claimant did not tell a correction officer that he was leaving (Tr. 55). According to Claimant, he and Sergeant Whitmore did not discuss the possibility of placing Claimant in protective custody although Claimant was aware of this option, having had experience with protective custody several years earlier (Tr. 52).

Claimant then described the assault: Claimant left his dormitory and descended a flight of stairs. When he arrived at the second stair landing (the infirmary floor), "Inmate Holden stepped out from behind the wall and he asked me was I all right" (Tr. 14). While engaged in conversation with inmate Holden, someone from behind hit Claimant in the eye, causing him to fall into the corner. At that point, inmate Holden stabbed him in the back. Claimant and Holden then proceeded to fight (Tr. 14-15).

Claimant managed to break away and ran down the stairs. At the bottom of those stairs, he encountered a third person. This individual let Claimant run past then grabbed Claimant from behind. Claimant kicked this man in the leg, pulled away and ran out of the building through the door that led to the yard (Tr. 16).

Once outside, two correction officers noticed Claimant running toward them. One officer instructed Claimant to remove his sweatshirt, lie on the ground and cover his eye. He then walked back to the building and came back with a stretcher. The officers then carried Claimant to the infirmary. Shortly thereafter, he was sent to Erie County Medical Center ("ECMC") for treatment (Tr. 16-17, Exh. 10).

Sergeant Whitmore[1]
testified that his conversation with Claimant took place in the B-side dormitory prior to the assault. His account of the conversation generally coincided with Claimant's version, but for two critical omissions. First, Sergeant Whitmore testified that he ordered Claimant to remain on the unit until Holden was identified (Tr. 157-8, 161, 162). Sergeant Whitmore gave this order based upon his understanding that the "tall black male" was not housed in the B-side dormitory, (Tr. 170), and most likely housed on the other side of the facility (Tr. 181).[2] The fact that the order was indeed given was noted in the unit log book (Exh. 5) and in a "to/from" memorandum prepared on November 24, 1995 (Tr. 166-167, Exh. 6). Claimant violated that order when he left the unit (Tr. 187). The fact that the order was not enforced by the correction officers on the unit was not explained at trial.
The second difference was Sergeant Whitmore's testimony that Claimant became agitated after the Sergeant explained that Claimant needed to identify the other inmate before the Sergeant could take any action. Sergeant Whitmore mentioned to Claimant that Claimant could stay in a locked cell for his own protection until the problem inmate could be identified (Tr. 188).

According to Sergeant Whitmore, at this point, Claimant abruptly ended the conversation, stating "I'll handle it myself," and left the office where the conversation took place (Tr. 162, Exh. 6). Correction Officer John Hackemer[3] was on duty the date of the incident. He had worked at Collins for more than ten years. He described the layout of the facility as akin to an airplane. The body of the plane housed the administrative offices at one end and the two mess halls at the other end. Each "wing" contained a housing unit, denominated A or B. People moved between the housing units, mess halls, and administrative offices by way of a main hallway, the "crossover," in the body of the "airplane" (Tr. 121-122, 77). The infirmary is located on the first floor of the B-side of the building. Dormitories were on the second and third floors (Tr. 74). A stairway connects each floor on the B-side (Tr. 75). Each floor has a doorway that leads out into the stairwell. At the bottom of the stairwell, a short staircase, the "B-side walkway," leads to a door that exits into the facility recreation yard (Tr. 75).
On the date of the incident, Officer Hackemer was the "medical escort officer" on the 7:00 a.m. to 3:00 p.m. shift (Tr. 73). He was stationed at the infirmary doorway that leads to the B-side walkway (Tr. 78). His duties included "watching inmates come in, checking them in to see the doctor, medical call outs, sick call, dental call outs and psych call outs" (Tr. 73). The only time he would leave his post unattended would be when he was also assigned mess hall duty. At that time, he locked the infirmary door (Tr. 78). No officer is posted on the stairwell (Tr. 80, 83). There are normally officers assigned to a post at the crossover (Tr. 83) and at the yard gate (Tr. 87). Inmates are permitted to move unescorted through the facility, except at mealtime (Tr. 82).

On the date of the incident, at 1:30 p.m., Officer Hackemer observed four inmates standing in the landing area outside of the infirmary door. Other inmates were nearby, walking up and down the stairs. He learned later that three of these four men were inmates Holden, Brooks, and Blamsey (Tr. 83-84). He saw Holden, Brooks and Blamsey again at 2:30 p.m. at the same location, told them to leave and watched them exit the door to the B-side yard (Tr. 101-102).

Officer Hackemer's shift was ending and on his way to punch out, he noticed approximately 10 to 12 inmates standing around the "State Shop," which is below the B-side mess hall. He raised his voice to instruct them to disperse. Inmates Holden, Blamsey and Brooks were among this group (Tr. 103-105).

At 2:45 p.m., he received a medical emergency call directing him to report to the A walkway in the A yard (Tr. 106-107). When he arrived, he observed an inmate lying on the ground with several officers around him. He also observed a trail of blood on the walkway, which he followed up to the B-side stairwell door, where he also noticed blood on the step and wall inside the doorway (Tr. 107-109, Exhs. 7, 8). Officer Hackemer stayed past the end of his shift to help with the investigation of the assault. He told his area Sergeant about seeing "three or four inmates in that area a couple of times" (Tr. 117).

Officer Hackemer identified inmate Blamsey first; Blamsey still had blood on his clothing and sneakers (Tr. 117). The other two inmates were identified with the help of an informant and they too appeared to have blood stains on their clothing (Tr. 118).

It became clear during the investigation that the three inmates, Holden, Blamsey and Brooks, resided in A dorm and that they had no legitimate reason for being in the B-side stairwell on the date of the attack. Officer Hackemer filed inmate misbehavior reports for each of these three inmates, each report citing the following violations: "Assault on Inmate," "Fighting," and "Out of Place" (Exhs. 11, 12, 13).[4]
Officer Hackemer testified that, although he had the authority to stop, question, and frisk inmates Holden, Brooks and Blamsey on each of the three occasions that he had observed them, he determined that it was not necessary as their behavior did not raise any security or safety concerns (Tr. 135-139).
Claimant offered the testimony of Thomas A. Rosazza, Criminal Justice Consultant and president of Rosazza Associates Incorporated, to prove that the State and/or its agents were negligent in that: 1) they improperly assigned inmates Holden and Brooks to Collins, a medium security facility,[5]
and; 2) they failed to appropriately respond to inmates Holden, Brooks, and Blamsey's repeated appearances in the Collins B-side stairwell on the date of the assault.
According to Mr. Rosazza, the "Objective Classification" system utilized by the State, decreases the arbitrary nature of classifying an inmate for placement in a facility. It is value based; that is, past behavior and current behavior are assigned a value. In New York State, numerical values are placed on two factors, "Public Risk" and "Institutional Risk." "Public Risk" is based on the individual's criminal record, the type of crime committed and the length of the sentence. "Institutional Risk" is assigned to individuals already in the system based on their behavior within the preceding two 6 month periods. Mr. Rosazza testified that the sum of these two numbers is used to determine the security level of the correctional facility to which the individual will be assigned, for example, maximum or minimum. Override procedures are in place that can cause a placement change based on an "overriding concern." This procedure is reviewed at more than one level of the administration (Tr. 243-245).

Mr. Rosazza testified that there is a difference between the initial classification, which takes place when an individual first enters the prison system, and a reclassification. Reclassification of an inmate involves a combination of his Public Risk score and his Institutional Risk score (Tr. 246-247).

Claimant asserts that Defendant had negligently placed inmates Holden and Brooks in Collins Correctional Facility, a medium security facility, when they should have been in a maximum security facility. In support of this theory, Mr. Rosazza proceeded to "reclassify" inmates Brooks and Holden as of the date of the incident.[6]
I note that during Mr. Rosazza's testimony, he used a larger version of page II-72 of Exhibit 15, the August 1989 Security Reclassification Guideline for Males.
With regard to inmate Holden,[7]
Mr. Rosazza stated that there had been no disciplinary dispositions within the year prior to October 15, 1995, so he scored a 0 for Institutional Risk (Tr. 292). Mr. Rosazza relied upon a Public Risk score of 13 (Tr. 292) that the State computed on an updated initial reclassification (Tr. 396, 399). Mr. Rosazza then took the total of both scores (0 + 13) and, according to his reading of the Guideline Decision grid on page II-72 of the Guideline, inmate Holden should have been in a maximum B facility (Tr. 297).
Inmate Brooks would also have been classified as maximum B, according to Mr. Rosazza (Tr. 286). Mr. Rosazza scored inmate Brooks as a 6 with regard to Institutional Risk. Brooks had received 90 days in the Special Housing Unit ("SHU") for a July 1995 incident (Tr. 250) which is valued at 14 in the Guideline. Brooks had no other dispositions within the six months prior to the date of the incident, so the raw score was a total of 14. Mr. Rosazza interpreted the Guideline to require that the raw score be divided by three and rounded to the next whole number (Tr. 252) giving Brooks a 5. Mr. Rosazza then moved to the second part of Institutional Risk scoring -- dispositions within the seventh through twelfth month prior to the date of the incident. Inmate Brooks had one disposition of 14 days in keeplock (Tr. 254). The Guideline scores that disposition as an 8. This number is then divided by 6 and rounded off for a score of 1. Mr. Rosazza added 5 plus 1 for a final Institutional Risk score of 6 (Tr. 255).

Mr. Rosazza adopted the Public Risk score given to inmate Brooks by the State in February, 1995. That score was an 8 (Tr. 280). Mr. Rosazza then added the Institutional Risk and the Public Risk for a total of 14 (Tr. 281). When applied to the Guideline Decision grid, the score of 14 placed inmate Brooks in a maximum B facility (Tr. 285).

The State produced John Glasheen, Assistant Director of Inmate Classification and Movement. Mr. Glasheen has worked in Inmate Classification and Movement since 1978 and was promoted to Assistant Director in 1996 (Tr. 343). Mr. Glasheen provided more detail on the classification system. He testified that the term "classification" is used to describe an inmate's current status, regardless of when the determination was made. "Initial Classification" occurs when an inmate first enters the system. "Reclassification" occurs any time there is a change in a classification (Tr. 346-347).

The
Security Reclassification Guideline for Males, August 1989 ("Guideline"), is in evidence (Exh. 15). Although the Security Classification Guidelines Manual, October 1992, was marked for identification, it was never moved into evidence and its contents have not been relied upon in this decision.[8] However, based on the testimony before me, I determined that an initial classification is made upon the following factors:
A. Type of criminal behavior that caused his incarceration;
B. Likelihood of escape, abscondence, bail jumping, and AWOL;
C. Time to his earliest release; and
D. Percent of minimum sentence served. (Exh. 15, pp. II-59 - II-60).


The Public Risk score assigned when the inmate enters the system changes over time under the following circumstances:
A. The inmate has been retried on his prior crime or new crimes or new charges have been made; and
B. The inmate is given credit for time served, or additional sentences or warrants, detainers or unclear charges arise.


The initial classification is loaded into a computer and the computer reviews the various factors, makes the time computations, and generates a report regarding a potential change in classification every three months (Tr. 355).

Claimant has not persuaded me that the State and/or its agents have inappropriately applied the Guideline related to inmates Holden and Brooks' Public Risk scores.

There appears to be no Institutional Risk score on an initial classification, only on a reclassification. The factors considered in an Institutional Risk score are:
A. Disciplinary dispositions in the immediately preceding six months; and
B. Disciplinary dispositions in the six months before that initial period. (Exh. 15, pp. II-58 - II-59).


Only the three most serious violations are considered in each time period; only the disposition receives a numerical score, e.g., keeplock 1- 3 days, scores a 5 (Exh. 15, p. II-59). How the Institutional Risk score is calculated was a major difference of opinion between Mr. Rosazza and Mr. Glasheen. Mr. Rosazza opined that the disposition received, not actually served, was to be scored (Tr. 251). His calculations were based accordingly. Mr. Glasheen, however, opined that it is the disposition actually served, not the disposition received, that is to be used for calculating an inmate's Institutional Risk score (Tr. 361). The Guideline is silent on the issue and refers only to "dispositions" (Exh. 15, p. II-58). I credit Mr. Glasheen's testimony on this point, given his background and current position. His testimony, in general, reflected a familiarity with how the Guideline is actually applied.
Mr. Glasheen also reclassified inmates Holden and Brooks, but as of the day before the incident (Tr. 362, 381-382). Regarding inmate Holden's Public Risk score, Mr. Glasheen assigned him a total of 9 (Tr. 366) based on the seriousness of his initial offense and time to earliest release, among other factors listed in the Guidelines. Holden's Institutional Risk score was scored at 1 because of a disposition of 12 days in SHU (Tr. 363). Mr. Glasheen then applied the two scores to the Guideline Decision grid,
he did not sum the scores. This was the second major difference in the way that the two experts calculated an inmate's proper classification. According to Mr. Glasheen, the Public Risk score falls into a box along the top while the Institutional Risk score falls into one of the numbered boxes along the left-hand side (Tr. 366-367). The box where the two intersect is the recommended classification. For inmate Holden this classification was medium B (Tr. 367).
According to Mr. Glasheen, inmate Brooks scored a 10 on Public Risk because his minimum release date was October 17, 1995, the day before the incident, and the parole board refused to release him, placing him a full two years from his earliest release date. He scored a 4 on the Institutional Risk. As stated earlier, this score represents a material difference between Messrs. Rosazza and Glasheen. While Mr. Rosazza used a 90-day stay in SHU, the sentence given, as a "Disposition" under the Guideline, Mr. Glasheen used
time actually served (Tr. 380). According to Mr. Glasheen, Brooks earned a 12 for the 12 days in SHU, divided by 3, for a score of 4 for the six months immediately prior to the incident. During the six months preceding that period, Brooks received two minor sanctions, for which he was assigned a 2, which when divided by 6, gave him a 0. The sum of the 4 and the 0 is the Institutional Risk score (Tr. 382). The Guideline Decision grid indicated that Brooks' proper classification was medium A as of the day before the incident (Tr. 383). Based on Mr. Glasheen's experience, current position and explanation as to why the two scores are not added together and why a disposition actually served as opposed to what was given, is used, I credit Mr. Glasheen's testimony regarding the application of the Guideline and the appropriateness of inmates Holden and Brooks' classifications on the date of the incident. Having found no negligence on the State's part regarding the classification of the assailants, I now move to the issue of whether or not Officer Hackemer's actions were reasonable.
Mr. Rosazza opined that, although Officer Hackemer's reaction to inmates Holden, Brooks and Blamsey's initial appearance on the stairway landing outside the infirmary door at 1:30 p.m. was appropriate (Tr. 233), the fact that he saw the three of them again in the same general area about an hour later should have caused him, at a minimum, to take the inmates' names and identification (Tr. 240). Mr. Rosazza considered their second appearance on the landing a violation of Officer Hackemer's initial order to move along (Tr. 235). Mr. Rosazza recognized that Officer Hackemer knew that two or more inmates loitering on stairwells could mean that contraband was being passed (Tr. 236) and since this was an area with "high inmate movement," it needed to be supervised to avoid such situations (Tr. 230). Further, when Officer Hackemer observed these inmates together again the third time, though not in the same location, he absolutely should have taken their identification (Tr. 236). Mr. Rosazza testified that taking an inmate's identification acts as a deterrent to inappropriate behavior (Tr. 236-237) insinuating that these inmates might have thought twice about assaulting Claimant had this step been taken.

The State offered the testimony of Correction Captain Floyd J. Wise. Captain Wise has been a Department of Correctional Services ("DOCS") employee for more than 31 years; the last eight years as a captain at Collins (Tr. 454 - 455). His duties as captain include policy making and the supervision of correction lieutenants and sergeants. He is familiar with disciplinary proceedings' process and procedures (Tr. 455). He is also familiar with DOCS policies and procedures regarding the deployment of officers in general, and at Collins, specifically.

Captain Wise explained the concept of "officer discretion" as it relates to the filing of disciplinary charges against an inmate. The DOCS "Manual"[9]
"states that we will handle minor infractions without reports whenever possible" (Tr. 458). Discretion is exercised based on an officer's familiarity with and/or experience in interpreting inmates' body language and verbal expressions; understanding the day-to-day operations of the facility; and awareness of activity in the facility the few days prior to the event(s) observed. Discretion allows an officer to weigh all of these factors and determine, on the spot, whether an inmate's behavior constitutes a threat of sufficient significance to warrant a written disciplinary charge - an inmate misbehavior report (Tr. 458).
Captain Wise also testified regarding an officer's discretion in an instance, such as here, where that officer observes three separate incidents within hours of each other, involving essentially the same inmates. He stated that, though these inmates had congregated, they had moved along immediately when asked to do so. For this reason, it was well within the officer's discretion not to write them up. The fact that the officer determined not to stop the inmates and charge them for being "out of place"[10]
was reasonable based on the factors discussed above (Tr. 459).
Captain Wise further opined that, even if Officer Hackemer had written the inmates a misbehavior report, the charge "out of place" would likely have been considered minor and the inmates would, therefore, have stayed in the population, rather than being segregated (placed in SHU) as in the case of a more serious violation (Tr. 460).

Captain Wise concedes that stairwells, in general, provide a place where inmates can pass contraband and congregate out of the sight of officers (Tr. 484). However, over the last 11 years during which Captain Wise has been reviewing incident reports in Collins, the B stairway has not been a designated problem area within the facility (Tr. 461). In fact, the Collins "plot plan" did not require the posting of an officer in the B-side stairwell (Tr. 462, 464).[11]

On cross-examination, Claimant's attorney asked Captain Wise if there was a point at which it becomes an unreasonable exercise of discretion to keep telling the same inmates to move along, rather than writing them inmate misbehavior reports for being "out of place." Captain Wise's response illuminated an additional variable - whether or not there was "movement" in the facility at the time (Tr. 492). This factor, too, could properly be considered by an officer in determining whether or not to charge the congregating inmates. The record indicates no such inmate movement at the time of the assault upon Claimant.

On the issue of whether or not Officer Hackemer's actions regarding his decision not to stop inmates Holden, Brooks and Blamsey the second time he saw them on the stairwell, check their identification and charge them with being out of place, I credit Captain Wise's testimony and find that Officer Hackemer was not negligent when he exercised his discretion and declined to issue inmate misbehavior reports. I make the same finding regarding Officer Hackemer's third observation of these three inmates near the "State Shop." However, the final issue is whether or not the assault was foreseeable.

Clearly, I must find the State liable for allowing the attack on Claimant to occur if: 1) Claimant was known to be at risk and Defendant failed to provide reasonable protection; 2) Defendant had notice that the assailant or assailants were particularly prone to committing such an assault and Defendant failed to provide reasonable protection; or 3) Defendant had ample notice and opportunity to intervene in order to protect Claimant and failed to do so (
Sanchez v State of New York, 99 NY2d 247, [what the State actually knew plainly falls within the ambit of foreseeability]).
Defendant was aware that Claimant felt threatened by a tall black male he observed in the A-side mess hall because of the conversation that took place between Sergeant Whitmore and Claimant in the B-side dormitory (Tr. 180). I find that the Sergeant offered reasonable protection, based on the information provided, that is, the fact that the potential assailant was observed in the A-side mess hall and was not physically present in the B-side dormitory where Claimant was then located. This inmate was likely to have resided in the A-side dormitory due to the fact he was at lunch in the A-side mess hall. Claimant was ordered to stay in the B-side dorm.

The State could not have known that the assailant was prone to such assaults since it was not aware of the assailant's identity prior to the attack. Inmate Holden had no major disciplinary problems within the year prior to the assault. Inmate Brooks had several, but I find they were not of the magnitude or frequency to give the State notice that he possessed violent propensities (
cf. Littlejohn v State of New York, 218 AD2d 833). As noted earlier in this decision, both inmates were properly classified and placed in Collins, a medium security facility.
Further, based upon the evidence in the case, I find that the Defendant did not have notice of and an opportunity to intervene in the assault and thus protect Claimant (
cf. Huertas v State of New York, 84 AD2d 650 [Where assailant concealing a 2½ foot iron bar under an apron, creating a noticeable bulge, traversed 120 to 150 feet past five officers and several civilian employees without being questioned, assaulting and killing another inmate, State failed to provide adequate supervision of inmates]).
The New York Court of Appeals in
Sanchez, (99 NY2d 247), altered the standard for liability in inmate-on-inmate assault cases. Formerly, we confined ourselves to the three-pronged actual notice test described above (see Smith v State of New York, 284 AD2d 741). Now, we must consider what the Defendant knew, or reasonably should have known. The State's duty to prisoners still will not require "unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety" (Sanchez, 99 NY2d 247). The State cannot possibly be expected to eradicate violence in a prison setting where persons with criminal propensities are closely quartered, thus evidence of an inmate assault, without more, will not establish negligence (Sanchez, 99 NY2d 247).
Here, there is no dispute that Claimant was the victim of a vicious assault, but should Defendant have known that the assault was likely to occur and taken steps to prevent it? I find that the State could not reasonably have foreseen this assault.

Sergeant Whitmore provided evidence that Defendant had notice that Claimant felt threatened by an unidentified inmate he saw in the A-side mess hall. Sergeant Whitmore responded by ordering Claimant to remain in his dormitory and could not possibly have foreseen that Claimant would leave the dormitory in contravention of that order. Without more information regarding the potential assailant, Sergeant Whitmore could not reasonably have been expected to alert other officers of a potential problem between Claimant and the "tall black male."

Claimant argued that Officer Hackemer should have known that observing the same three inmates congregating three times within a two hour period, foreshadowed an assault. Certainly, Officer Hackemer could not have known that it was Claimant in particular who was likely to be the victim - there was no evidence that Sergeant Whitmore and Officer Hackemer exchanged information prior to the assault. There was no evidence that the three inmates, Holden, Brooks, and Blamsey, at the three different times they were seen together, were doing anything suspicious or illegal that could have raised a reasonable man's concern that something was amiss or that an assault was likely to occur.

No customary procedure was violated by either Officer Hackemer or Sergeant Whitmore (
Sebastiano v State of New York, 112 AD2d 562). Nor was any evidence submitted that the Collins plot plan, as provided by Albany, was deficient in any way, or that a reasonable person should have known that the supervision in this medium security facility, either in general or in the subject stairwell specifically, was inadequate in any way.
Claimant has suffered a vicious attack, but the Defendant cannot be held liable. Claim dismissed. LET JUDGMENT BE ENTERED ACCORDINGLY.


March 11, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims




[1]At the time Sergeant Whitmore testified in this trial, he was a Correction Lieutenant. He was a Correction Sergeant on the date of the incident.
[2]Sergeant Whitmore and Claimant were not the only individuals present during the conversation on the unit. Correction Officer Dispenza was assigned to the unit and was present when Sergeant Whitmore ordered Claimant to stay in the unit (Tr. 163). It also appears that Correction Officer MacVie was present (Exh. 6).
[3] At the time of trial, Officer Hackemer testified as a Sergeant, having been promoted in 2000.
[4] At the conclusion of a Tier III hearing, inmate Blamsey was found not guilty for each charge and placed in Administrative Segregation for his own protection (Exh. 11). Inmates Brooks and Holden were each found guilty of all three charges (Exhs. 12 and 13).
[5]This assignment relates to how the State "classifies" and "reclassifies" an inmate for security and placement purposes. A great deal of time was taken at trial discussing the scope of expert disclosure as it related to this issue. The State moved to preclude any testimony related to events after reclassification of inmates Brooks and Holden - "classification" and reclassification" being determinable events within a defined process. Claimant's intent was to not only attack the process that led to the inmates being initially assigned to a medium security facility, but to also offer testimony that these inmates' conduct prior to the assault should have caused the State to again reclassify them. I reserved on the motion and took the testimony. I now deny the State's motion to preclude.
[6]Inmate Brooks was initially classified as a maximum B on June 10, 1994. He was reclassified to a medium B in February 1995.
[7]Inmate Holden's initial classification, on January 18, 1989, was maximum security. He was reclassified to medium security on November 18, 1991. The reason his score changed was that his Public Risk score dropped from a 14 to an 8, inasmuch as he was getting closer to his release date (Tr. 345). I note, for the record, that the State was unable to find his original initial classification papers, so the witness produced an "updated initial classification," that is, initial classifications done manually that are recomputed, manually, "as they [the scores] would have been at the time of the initial classification and then loaded in the computer so the computer can reclassify (Tr. 396, 399).
[8]I note that the actual computer generated classification forms for inmates Blamsey, Brooks, and Holden were marked for identification and never moved into evidence, as was the January 25, 2002 Security Reclassification Guideline form for inmate Holden. None of these documents could be considered in this decision.
[9]No further description and/or title of the manual was provided at trial. I concluded after hearing the whole of Captain Wise's testimony that he was referring to a correction officer's manual, provided by DOCS to assist employees in doing their job.
[10]It appears that, had Officer Hackemer stopped the inmates and asked for only their identification, he still would not have known that they were out of place, as the DOCS-issued identification only has an inmate's name, Department Identification Number, height, weight, and birth date. Their housing assignment is not on the identification (Tr. 470).
[11]A "plot plan" is the list of fixed posts for a facility. Plot plans are prepared in Albany and provide the job title and description for each fixed post (Tr. 462).