On March 17, 1987, claimant was incarcerated for criminally negligent homicide.
He had prior convictions for forgery and larceny. When he was taken to Fishkill
Correctional Facility for reception into the correctional system, he told
officials that he impersonated the opposite sex. In April of 1997 he was
brought to Clinton Correctional Facility where he was classified and sent to
Bare Hill Correctional Facility ("Bare Hill"). Within a few days of being at
Bare Hill, he was interviewed by Mr. Irving Skinner, a counselor, who noted on
his intake sheet that claimant was a
While at Bare Hill, he lived in several dormitories ("dorms"). He was first
assigned to M-1 dorm and then moved to J dorm, F dorm, and M-2 dorm. While at
M-2 dorm, claimant suffered anxiety attacks that were triggered by his cell
mate's threats to him. Claimant was transferred to Clinton Correctional
Facility's satellite unit for treatment of the anxiety attacks. He spent three
days in the satellite unit for observation and then was transferred back to M-2
dorm at Bare Hill. Upon his return, he found that all his belongings had been
stolen from his locker. According to claimant, "[w]hen you get robbed, that
means they don't want you in the dorm" (Exhibit C-1 [transcript of claimant's
examination before trial], p. 28).
Claimant was immediately moved to G-2 dorm
(Exhibit 7 [log book of G-2 dorm for the month of June 1997]; Exhibit C-1, p.
37). Upon entering G-2 dorm, an inmate yelled, "Do not move that motherfucker
in here" (Exh. C-1, p. 43). Claimant alleges that he immediately complained to
the officer working in the dorm and the officer escorting him about this remark,
but the Correction Officers did not respond to claimant's complaint (id
There were 60 inmates in G-2 dorm. Claimant was assigned to cubicle ("cube")
49. The cubes did not have doors. They contained a bed, a large locker and two
small lockers. The dorm had a recreation room, a televison room and a shower
area that was separated from the dorm area by a door. There was also a laundry
room, a bathroom, two phone booths and a kitchen which was in the recreation
Claimant testified that he received threats everyday. When he walked by the
other inmates they would call him a "queer" and a
Inmates would not allow him to look at them or within their cubes as he walked
by. "Everyday someone was saying to me: you should move out of the dorm, watch
your back, nigger, fag, I want to kill you, get out of the dorm" (id
47). He would verbally notify Correction Officers Garrant, Van Dusen and
McDonald who were assigned to G-2 dorm. He also claims that he mailed 3 to 4
per week to the sergeant
complaining about his environment (id
., p. 46). Claimant never kept
copies of the drop slips (id
., p. 53). Although he saw a nurse every day
for medications, he never informed the nurse about his concerns for his personal
safety. He alleges that he spoke to Sergeant Miller, the day housing sergeant,
about the harassment more than once while he was in G-2 dorm. Sergeant Miller
allegedly told him that "he wasn't going to move me, if I couldn't give up
people with drugs or weapons, names . . ." (id
., p. 52). He did not
remember the names of the non-evening correction officers to whom he spoke about
his complaints (id
., p. 54). He claims that no one offered him
A few days before the June 25, 1997 incident, two months after claimant arrived
at Bare Hill, an inmate by the name of Deandrade said to him, "[C]ome to the
bathroom to get it on" (meaning to engage in a
., p. 48). Claimant alleges that he told Correction Officer Van Dusen
about this occurrence.
that Inmate Deandrade always harassed him as he walked by Deandrade's cube by
calling him all sorts of names (id
., p. 49).
Claimant was always approached by other inmates in the shower, so he took his
shower very late at night before the shower closed at approximately 11:30 P.M.
for the evening. He testified that in G-2 dorm inmates could do as they pleased
at night. Correction Officer Eugene Garrant was the 11:00 P.M. to 7:00 A.M.
officer on duty in G-2 dorm. According to claimant, as soon as Correction
Officer Garrant came on duty, the people who were confined to their cubes would
jump up and do as they pleased. It was an "ask no questions, do as you please
On Tuesday, June 25, 1997, claimant showered at approximately 11:30 P.M. when
everyone was finished using the shower facilities. Correction Officer Garrant
was on duty that night. No one was in the shower when claimant entered it.
While he was there, inmate Deandrade came into the shower, because he allegedly
left something in there. Claimant quickly finished his shower, got dressed and
returned to his cube. After claimant left the shower and returned to his cube,
Inmate Deandrade started to complain that claimant had been in the shower.
Deandrade and an inmate whose jail name was Diamond and who was later identified
as Feliciano came to claimant's cube and said they "don't get down like
, which claimant interpreted as saying they didn't want to be in the shower with
a "queer" (Trial Transcript [Tr], p. 63). They also said to him, "You better
not come into the shower while I am there".
Inmate Deandrade told claimant to come to the bathroom to get it
(Tr, p. 57). According to claimant, a
heated debate ensued for a few minutes. Correction Officer Garrant was watching
claimant's cubicle as this verbal exchange occurred. Claimant then walked over
to Correction Officer Garrant's desk in the cube area and asked him whether he
heard the exchange. Correction Officer Garrant told him to go back to his cube.
Claimant went back to his cube and laid on his bed where, at first, he could
still see Correction Officer Garrant at his desk (Exhibit C-1, p. 109). A short
while later, Inmate Deandrade and Inmates Rodriguez and Feliciano came into
claimant's cube, started calling him names, and hit him on the left side of his
face and in his left eye socket.
When they left his cube, claimant got up from his bunk and went looking for
Correction Officer Garrant who was not at his desk but in the recreation room
with another inmate. Claimant, who allegedly was bleeding from his eye and
mouth at this time, found Correction Officer Garrant and told him what happened.
According to claimant, it would only take one second to walk from Correction
Officer Garrant's desk in the cube area to the TV room (Exhibit C-1, p. 110).
Claimant was told to go back to his cube.
Correction Officer Garrant then turned on the lights in the cube area and
called for a head count. Sergeant Iritz arrived and claimant was taken to the
infirmary. At the infirmary, claimant identified Deandrade as one of the
assailants. That evening claimant signed a refusal of protective custody
Claimant had surgery and was in the infirmary for three weeks afterwards. He
was released from the infirmary to Franklin Correctional Facility because by
then he had asked for protective custody, which was not available at Bare Hill.
In June of 1997, Sergeant Martin Iritz was the relief sergeant on the midnight
shift. As relief sergeant, he supervised correction officers, did rounds of the
housing units, reported to the watch commander, and responded to emergencies.
He testified that an inmate is assigned to cube confinement when his misbehavior
causes a correction officer to be uncomfortable about that inmate moving about
freely in the dorm, or when the inmate's actions are detrimental to the order
and security of the facility. Inmate Deandrade had been received into G-2 dorm
on cube confinement on June 6, 1997, and he was to remain on cube confinement as
a feed-in (no mess hall privileges) until August 13, 1997 (Exhibit 7). Cube
confinement is essentially a "gentlemen's agreement." If an inmate does leave
his cube without permission, he could be placed in the Special Housing Unit, but
a Correction Officer has the discretion not to send an inmate to the Special
Housing Unit if cube confinement is broken. Since there is no protective
custody at Bare Hill, if an inmate was threatened and requested or was placed
into protective custody, he had to be transferred to a Special Housing Unit at
Bare Hill and then to another facility.
Sergeant Iritz testified that "lights out" was the same throughout the
facility, and visitation with inmates in another cubicle was not allowed after
Midnight was the time for lights out during the regular work week, and on
weekends inmates were allowed to watch television after lights out. This
privilege is termed "late nights." "Late nights" also occur at special times
during the year, e.g., for one week when an academic year is initially over. At
the time of the incident, Correction Officer Garrant was in the day room because
it was a late night. Sergeant Iritz testified that it was proper for Correction
Officer Garrant to be in the day room since it was a late night. Sergeant Iritz
noted Officer Garrant
acted promptly on the
matter since on page 284 of Exhibit 7 (the log book of G-2 dorm for June of
1997), it was logged in at 12:05 A.M. that an inmate had been assaulted and by
12:10 A.M. that Sergeant Iritz was present.
Sergeant Iritz identified Exhibit 5 as the claimant's refusal for protective
custody signed on June 25, 1997 after the fight with Inmate Deandrade. Sergeant
Iritz also identified Exhibit 4 as a memorandum that he wrote on July 15, 1997
about the June 25, 1997 incident. In this latter document, Sergeant Iritz wrote
that claimant identified Inmate Deandrade as the assailant, that he could not
name the other two accomplices, and that claimant was offered and refused
protective custody on June 25, 1997. Claimant testified at trial that he
refused protective custody at that time because he was in the infirmary and did
not need it. When he was released from the infirmary, he requested protective
custody and received it.
Sergeant Iritz identified Exhibit 1 as the orientation handbook given to new
prisoners. It provides them with the procedures to follow for reporting threats
and concerns, and it informs them that they will be meeting with a counselor
upon their arrival. Sergeant Iritz testified that if an inmate wants to
complain about any matter, he can go to a correction officer, talk to a nurse,
talk to any supervisor who tours the facility, or speak with any of the
counselors. It was his testimony that the absence of any documentation of
claimant's complaints implies that no complaints were made.
Irving Skinner, a Corrections Counselor for the New York State Department of
Corrections, testified that it is his role to assess the needs of the inmates as
they come into the system, e.g., monitoring any problematic issues that they may
have, assessing the needs for substance abuse training, vocational training. He
testified that claimant was received at Bare Hill Correctional Facility on April
15, 1997. His initial interview with claimant occurred on April 17, 1997.
Quarterly reviews are then scheduled, to go over an inmate's goals and needs and
to see if there are any problems. Quarterly reviews are not mandatory.
Claimant's quarterly review was scheduled for May 5, 1997, but he did not appear
for the session. Claimant's next review would have occurred in August of 1997,
but by that time claimant had been transferred to another facility. Claimant
could have sent a drop slip to Counselor Skinner at any time if he wanted to see
Mr. Skinner identified Exhibit A as the chronological sheet that documents
every transaction with an inmate. It is Mr. Skinner's job to document
complaints on this sheet if a complaint was made. The chronological sheet
indicates that Mr. Skinner did not meet with claimant in June of 1997 for any
purpose. If there had been any communication, Mr. Skinner would have recorded
the event on that document. He testified that if an inmate sent him a "drop
slip," he would then copy the Captain immediately. Before trial, he checked his
files and found that there were no records of any complaints received from
claimant that he would have sent to the Captain's office. Mr. Skinner testified
that he would also know of problems with an inmate by looking at the "separatees
list", which is an "enemies list", that is generated when an inmate is received
in the system and is asked whether he has any known enemies. There was no such
list for claimant until July of 1997. Mr. Skinner recommended protective
custody status for claimant after the June 25, 1997 incident (Exhibits 2 and 3).
Correction Officer Robert Van Dusen was the relief Correction Officer in G-2
dorm in June of 1997. As relief officer, he covered the days off for the
regular officer who worked in a particular dorm. On June 25, 1997 he worked the
7:00 A.M. to 3:00 P.M. shift. He testified that when he is approached by an
inmate regarding that inmate's security, he passes the threat along to his
superior, giving his supervisor his opinion about the situation. The supervisor
will then interview the inmate. The complaints that he relays to the sergeant
are not in writing. Correction Officer Van Dusen did not recollect any
complaints from claimant during June of 1997.
In June of 1997, Lieutenant James Bell was a sergeant on a full-time basis at
Bare Hill. Part of his responsibilities included making rounds in G-2 dorm. He
made himself available to inmates so they could speak to him. He would
circulate around the dorms, the law library, the church, and the yards in order
to talk to inmates. Lieutenant Bell was responsible for investigating
information regarding complaints involving personal safety of inmates. If there
was a threat to the personal safety of an inmate, he would interview the inmate.
He could offer protective custody to the inmate, and there would be a paper
trail whether or not the inmate accepted or refused the offer. If an inmate was
not getting along with his cell mate, he would do everything he could to move
that inmate to another dorm but there would not be a paper trail. There is no
directive requiring reports of threats to be put into writing. He did not
recall claimant complaining about his safety in June of 1997.
Lieutenant Bell testified that inmates could make complaints in various ways:
using a drop slip, talking directly to a correction officer or a sergeant, and
writing letters. If an inmate approached him in a common area of the prison, he
would make arrangements for the inmate to be brought to his office or to the
infirmary where the inmate could be interviewed privately. He would interview
the inmate as quickly as he could depending upon what was occurring in the
facility on a given day.
commenced his career with the Department of Correctional Services in 1981. By
1997 he had been promoted to Captain and at the time of trial was a Correctional
Captain at Bare Hill Correctional Facility (Exhibit M). Captain Gonyea oversees
procedures to protect inmates from other inmates, the discipline system, and the
adherence to rules and regulations, and he reviews all complaints generated by
inmates. He testified that inmates may communicate their concerns through
various measures, such as the inmates' grievance system or drop slips into a
locked mailbox, and stated that inmates are free to correspond or telephone
anyone with their concerns. According to Captain Gonyea, there were was no
written documentation of complaints of any kind from claimant prior to June 25,
1997. There were no complaints to the Guidance Department, to the
Superintendent, or in the Captain's investigations log book. He did not check
claimant's medical records as he would have needed a waiver to do
There was no separatees list for
claimant prior to June 25, 1997. The fact that all of this came back negative
indicated to the Captain that claimant did not make any complaints. He said
there were many checks and balances in the system, but nothing was logged in
anywhere regarding claimant's alleged complaints.
In order to establish liability against the State in an inmate-on-inmate
assault case, claimant must allege and prove that the State knew, or should have
known, that there was a risk of harm to claimant that was reasonably foreseeable
and was inadequately addressed (
Steele v State of New York
, UID #2003-030-535, Claim No. 102897, Motion
No. M-66165, April 29, 2003, Scuccimarra, J., citing Sanchez v State of New
, 99 NY2d 247, 253 ; see also
, Flaherty v State of New
, 296 NY 342, 347 ). Prior to the Sanchez
actual notice test was utilized (Smith v State of New York
, 284 AD2d 741
[3d Dept 2001], abrogated by Sanchez v State of New York
Under this test, a claimant had to demonstrate that: (1) claimant was a known
risk and the State failed to provide proper protection (Sebastiano v State of
, 112 AD2d 562 [3d Dept 1985]); or (2) the assailant had a history
of assaults and the State failed to take precautionary measures (Casella v
State of New York
, 121 AD2d 495, 496 [2d Dept 1986] ; Littlejohn v State
of New York
, 218 AD2d 833 [3d Dept 1995]); or (3) the State failed to act
despite notice and the opportunity to prevent the assault (Huertas v State of
, 84 AD2d 650 [3d Dept 1981]; Schittino v State of New York
262 AD2d 824, 825 [3d Dept 1999], lv denied
94 NY2d 752)" (Santos v
State of New York
, UID #2000-005-576, Claim No. 99576, Motion No. M-61571,
December 13, 2000, Corbett, J., rev'd on other grounds 291 AD2d 851).
The New York Court of Appeals in
Sanchez v State of New York
(99 NY2d 247, supra
) changed the
standard of liability to encompass both what the State knew and what it
reasonably should have known. The Court of Appeals went on, however, to
indicate that "the State's duty to prisoners . . . does not render the State an
insurer of inmate safety. . . . The mere occurrence of an inmate assault,
without credible evidence that the assault was reasonably foreseeable, cannot
establish the negligence of the State" (id
., at 256). Using this three
part test with the more lenient standard of constructive knowledge or notice,
the Court finds that the claimant failed to prove that the State knew or should
have known that there was a risk of harm to the claimant that was reasonably
foreseeable and inadequately
Using the three-part test as a guideline, claimant failed to prove that the
State should have known he was at risk and failed to provide the proper
protection. There was no proof offered at trial, for example through an expert,
that by virtue of his homosexuality, claimant was a known risk. There was no
proof offered about the Department of Correctional Services' policy towards
housing homosexuals. Most significantly, there was no support anywhere in the
record of the numerous complaints or reports of threats that claimant claims to
have made in the months prior to the assault. Five witnesses (Correction
Officer Van Dusen, Sergeant Iritz, Counselor Skinner, Lieutenant Bell and
Captain Gonyea) testified that they either did not recall any complaints made by
claimant or that they found no documentation within their record-keeping system
of any complaints made by claimant.
Although claimant testified that he received threats everyday and that he made
it known to all the officers, there was simply no proof that this occurred. It
appears to the Court that if claimant made as many complaints as he alleges,
there would be a record of at least one or two of them somewhere. For example,
claimant testified that he sent a drop slip to Counselor Skinner. Counselor
Skinner testified that no record of receipt of any such slip was on the inmate's
chronological sheet, on which he documents every transaction with an inmate. In
addition, claimant met with his Counselor only once, a few days after he was
received at Bare Hill. Claimant did not list any known enemies on the intake
sheet filled out by Counselor Skinner, and, although claimant testified at trial
that Counselor Skinner did not ask him about his sexual orientation, the intake
sheet does reflect that claimant was a homosexual. Claimant did not appear for
his May appointment with the Counselor, although it would have been logical for
him to do so if he felt threatened.
All of the facility witnesses testified that there are many ways for an inmate
to convey that he is being threatened. They could write a letter or note to any
of a number of facility staff; they could approach any of these individuals in a
common area of a facility. If they reported a threat, arrangements would be
made so that they could talk privately with the sergeant or other officer.
There was likewise no proof offered at trial that the State knew or should have
known that Inmate Deandrade, the assailant, was known to be violent. Sergeant
Iritz offered the only testimony regarding Inmate Deandrade's history, stating
only that he had been received at G-2 dorm on cube confinement. Neither side
offered information as to why Inmate Deandrade was on cube confinement or
anything about his background.
Nor was there proof offered at trial that the State had or should have had
notice that the incident would occur and taken steps to prevent the assault.
With no record of any complaints, no request for protective custody, and no
inmates named as enemies, there was simply no reason to view him as a
foreseeable victim. Should the State have had notice by virtue of the
claimant's homosexuality? There was no proof offered that homosexuals are more
prone to be victims of violent attacks than any other member of the prison
population. When, in an earlier housing unit, claimant's belongings had been
stolen from his locker, which might have been an indication of some enmity,
claimant was immediately moved to another dorm.
While this incident is certainly regrettable, claimant has not sustained by a
preponderance of the credible evidence that the State breached its duty of care
towards claimant. Claimant's testimony standing alone is not sufficient to find
against the State.
The Chief Clerk is directed to enter judgment for defendant dismissing the
claim. All motions not ruled upon in this decision are deemed denied.
Let judgment be entered accordingly.