New York State Court of Claims

New York State Court of Claims

CLARK v. THE STATE OF NEW YORK, #2003-032-515, Claim No. 100600


The State is not liable to a prison inmate who was assaulted, in the absence of any credible proof that correction officials knew or should have known that he was at risk of harm.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Conboy, McKay, Bachman & Kendall, LLPBy: David B. Geurtsen, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Saul Aronson, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
July 3, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

On June 25, 1997 Nathaniel Clark ("Claimant") was assaulted by two to three other inmates in the housing unit of Bare Hill Correctional Facility. Although he testified that he had received many threats from other inmates because of his sexual orientation and had made numerous complaints to prison officials, there was absolutely no documentation to corroborate these allegations. Because claimant failed to establish that there was reasonably foreseeable risk of harm to claimant that was inadequately addressed by the State, the claim is dismissed.
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 transexual/homosexual.[1]

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[2] (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., pp. 43-44).
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 room.

Claimant testified that he received threats everyday. When he walked by the other inmates they would call him a "queer" and a "homo".[3]
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., p. 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 drop slips[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 protective custody.
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 fight)[5]
(id., p. 48). Claimant alleges that he told Correction Officer Van Dusen about this occurrence.[6] Claimant maintained 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 policy."

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 that"[7]
, 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".[8] Inmate Deandrade told claimant to come to the bathroom to get it on[9] (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.[10]
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 document.[11]
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 lights out.[12]
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[13] 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 him.

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.

Captain Paul Gonyea[14]
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 so.[15] 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 York, 99 NY2d 247, 253 [2002]; see also, Flaherty v State of New York, 296 NY 342, 347 [1947]). Prior to the Sanchez decision, an 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, supra). 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 New York, 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 New York, 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 addressed.
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.

July 3, 2003
Albany, New York

Judge of the Court of Claims

[1]Exhibit A, entry sheet, question 12.
[2]Claimant referred to the dorm where the incident occurred as G-1 dorm. Exhibit 4, a memorandum from Sergeant Iritz, indicates that the incident occurred on G-2 dorm. Exhibit J, a memorandum from Sergeant Brand, also indicates that the incident occurred on G-2 dorm. The Court will refer to the dorm where the incident occurred as G-2.
[3]The Court finds that the remarks are not hearsay in that they are not being offered for the truth of the matter asserted but to show that claimant was being harassed by other inmates.
[4]A "drop slip" is a note, which can be addressed to anyone in the prison, that inmates may place in a locked mailbox so that the communication remains private.
[5]See footnote 3.
[6]At trial, claimant said that he informed Correction Officer Van Dusen about this remark. At claimant's examination before trial, he testified that he told Correction Officer Garrant about this remark and that Correction Officer Garrant told him to go back to his cube and not to pay attention to the remark (Exhibit C-1, p. 50).
[7]See footnote 3.
[8]See footnote 3.
[9]Claimant testified at trial that this statement was said a week before the June 25, 1997 incident but at claimant's examination before trial he testified that this statement was made the night of the incident.( Exhibit C-1, p. 77)
[10]The history portion of the emergency room medical records (Exhibit L) from Champlain Valley Physicians Hospital Medical Center indicates that claimant stated that, "He was hit only once and does not know who the assailant was." At trial, claimant's counsel argued that this was hearsay and should not be considered by the Court. An entry in a hospital record comes within the business records exception to the hearsay rule if the entry is relevant to diagnosis or treatment of the patient's ailment. Before the history portion of the hospital record may be admitted into evidence, the proponent must establish that the patient was the source of the information recorded (Prince, Richardson on Evidence, §8-130, 11th ed.). At trial, claimant admitted that he was "halfway unconscious" and that he "probably did tell them that." The Court finds that this admission by claimant allows the Court to admit the portion of the emergency room statement pertaining to how many times he was hit, since that portion could be relevant to his treatment. His statement about not knowing who his assailant was is not relevant to his treatment and will not be considered by the Court.
[11]Exhibit 5. Although Claimant signed the document, he testified that he did so because he had been admitted to the infirmary and thus did not need the extra protection (Tr, 83).
[12]Claimant testified at his examination before trial that inmates went to visit other inmates in other cubes after "lights out". Exhibit C-1, p. 80.

[13]Defense counsel offered limited testimony from Correction Officer Garrant's examination before trial. Claimant's counsel argued that the entire examination before trial testimony should be admitted since portions of such testimony explain an incident that occurred nearly three weeks later wherein Correction Officer Garrant was caught in a compromising position with another inmate and this later incident exemplifies Correction Officer Garrant's moral character. Claimant's counsel then offered a newspaper article that reported the occurrence of this later incident and a certificate of conviction wherein Correction Officer Garrant pled to a charge of official misconduct. Defense counsel also wanted the Court to admit a sworn statement of Correction Officer Garrant (Exhibit K) that states that he did not remember claimant and what he would have done if he had received a complaint from claimant. Counsel laid the foundation for this statement through testimony of Correction Officer Garrant's examination before trial. The Court reserved on the admission of all this potential evidence and hereby determines as follows: Correction Officer Garrant's examination before trial testimony is admitted in its entirety pursuant to CPLR § 3117. His post incident conviction is admitted pursuant to CPLR § 4513 (see, Guarisco v E.J. Milk Farms, 90 Misc 2d 81 [1977]). It does not matter that the crime occurred after claimant's incident (Vernon v New York City Health & Hosps. Corp., 167 AD2d 252 [1st Dept. 1990]). Pursuant to CPLR§ 4513, any conviction of a crime may be introduced to impeach the credibility of a witness at a civil trial. Inquiry may be made into the nature of the crime and not just the fact of the conviction itself (Able Cycle Engines v Allstate Ins. Co., 84 AD2d 140 [2d Dept 1981]). The newspaper arti
cle is not admitted as it is pure hearsay (
Peckman v Mutual Life Ins. Co. of N.Y.
, 125 AD2d 244 [1st Dept 1984]); Pedro v Burns, 210 AD2d 782 [3rd Dept 1994]); Young v Fleary, 226 AD2d 454 [2d Dept 1996]). Correction Officer Garrant's statement to the investigator from the Attorney General's Office is admitted pursuant to CPLR §3117, however, given the nature of the subsequent acts of Correction Officer Garrant, the Court does not credit his testimony through either the examination before trial or the sworn statement.
[14]Defense counsel attempted to get Captain Gonyea qualified as an expert in the field of correctional institutional facility security. Claimant's counsel objected to Captain Gonyea testifying as an expert witness, based upon his limited educational background, his affiliation with the correctional system, and his presence as a fact witness testifying on behalf of the defendant. The Court declines to recognize Captain Gonyea as an expert, not based on claimant's counsel's arguments but on the fact that his testimony as a fact witness with knowledge of the day-to-day operation of Bare Hills Correctional Facility was sufficient.
[15]Defense counsel attempted to use this witness to set a foundation for the introduction into evidence of medical records from the correctional facility. Claimant's counsel objected on the ground that these records were hearsay, since there was no official authentication or certification. The Court concurs with claimant's counsel and will not consider the medical records as part of the record.