MACK v. THE STATE OF NEW YORK, #2003-031-507, Claim No. 97668
Defendant did not negligently fail to protect Claimant from assault by other
inmates. Claim dismissed.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
RENÉE FORGENSI MINARIK
CELLINO & BARNES, P.C.BY: MARK R. MULTERER, ESQ., of Counsel
HON. ELIOT SPITZER
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
March 11, 2003
See also (multicaptioned
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.
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).
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
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
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
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.
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
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.
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).
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.
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
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
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.
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
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
With regard to inmate Holden,
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.
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).
Security Reclassification Guideline for Males
, August 1989 ("Guideline"),
is in evidence (Exh. 15). Although the Security Classification Guidelines
, October 1992, was marked for identification, it was never moved into
evidence and its contents have not been relied upon in this
However, based on the testimony
before me, I determined that an initial classification is made upon the
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.
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
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
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
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
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,
Captain Wise explained the concept of "officer discretion" as it relates to the
filing of disciplinary charges against an inmate. The DOCS
"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"
was reasonable based on the factors discussed above (Tr.
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,
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
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
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
, (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
, 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
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
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
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
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
HON. RENÉE FORGENSI MINARIK
Judge of the Court of
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.
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).
At the time of trial, Officer Hackemer
testified as a Sergeant, having been promoted in 2000.
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).
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.
Inmate Brooks was initially classified as a
maximum B on June 10, 1994. He was reclassified to a medium B in February
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).
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.
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.
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.
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).