New York State Court of Claims

New York State Court of Claims

OSUNA v. THE STATE OF NEW YORK, #2003-032-521, Claim No. 100555


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:
Goldstein & Goldstein, PCBy: Mark I. Goldstein, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Eileen E. Bryant, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
November 20, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

On April 27, 1999, claimant Victor Osuna ("claimant") was incarcerated at the Clinton Correctional Facility Annex in Dormitory 6-2 ("Dorm 6-2") which denotes the sixth building, second floor, at such location. Dorm 6-2 is a maximum "B" facility, which requires a lower security level than a maximum "A" facility. Inmates with good behavior records are placed in this facility when they are soon to be released or transferred to a facility with an even lower security level. At the time in question, Dorm 6-2 housed inmates who worked in the mess hall. Its dimensions were approximately 100 feet by 30 feet
. The common areas in this dormitory included the shower room, the bathroom, the sink room, a kitchen area, and a recreation area. A correction officer's desk was elevated and located to the right of the entranceway. The cubicle area, where the inmates slept, was approximately five feet in front of the correction officer's desk. Between the cubicle area and the correction officer's desk was a card table, approximately 20 feet from the correction officer's desk.
On this particular day, while claimant was working in the mess hall, he was told that he would be transferred to another correctional facility at 7:30 the next morning. He was instructed to return to his dorm, pack his property, and be ready for the transfer. By approximately 3:00 PM that day, claimant was playing cards with three other inmates at the card table in the dorm. Correction Officer Favro was on duty. There came a time while playing cards that claimant was slashed across his face by a then unknown assailant. When this occurred, Correction Officer Favro was not at his desk, nor was he or any other correction officer on the floor of Dorm 6-2 at that time.

After he was slashed, claimant jumped up, picked up a chair, and turned around but saw no one there. He did not know who slashed him. About five days later, claimant was told that inmate Anthony Vega ("Vega") was responsible for cutting him. There had been no prior altercations between Vega and claimant; claimant never asked for protective custody prior to the incident (Tr, 27); and he never listed Vega on an "enemies list" (Tr, 48). In fact, claimant testified that he considered Vega to be a friend (Tr, 48), stating that they sometimes ate, cooked and played sports together (Tr, 49).

After he was slashed, claimant walked back to his cube, took off his T-shirt and placed it on his face to stop the bleeding. He then returned to the front of the dorm, at which point he saw Correction Officer Favro. Claimant was secured in the kitchen area until other officers appeared to escort him to the facility's medical clinic. Eventually he was taken to an outside hospital where he received thirty-eight stitches for a six inch laceration of the right side of his face.

At the time of this incident, Correction Officer Lanny Favro had worked on Dorm 6-2 for eight years. On the day of the incident, at a pre-shift briefing, he had been informed that the facility was quiet (Tr, 127). Correction Officer Favro testified at trial that he was not present at the time of the incident because he had taken the "count" (a document that indicates how many inmates are present at a particular time and is generally done a minimum of six times per day) downstairs one floor to Dorm 6-1 and, while there used the restroom on that floor (Tr, 154, 173). There was a restroom on the Dorm 6-2 floor for the correction officers as well, approximately 50-60 feet away from the correction officer's desk (Tr, 135-136). While returning from Dorm 6-1 (Tr, 116), Correction Officer Favro stated that he heard chairs being knocked around on Dorm 6-2, so he quickly ascended the sixteen steps to reach that floor. He stated that he had been down on Dorm 6-1 for a total of three to four minutes (Tr, 114). When he returned to Dorm 6-2, he immediately saw that the claimant was bleeding, so he brought him to the kitchen area and locked him in it. He then called for a headcount of the inmates and phoned his supervisor. Extra correction officers were sent to Dorm 6-2 to escort claimant to the medical clinic.

Correction Officer Favro, who acknowledges that his assigned post was Dorm 6-2, was shown Exhibit 5, a copy of § 6.17 of the Department of Correctional Services Employees' Manual ("Employees' Manual"). This states: "An employee shall report to his assigned post in a timely manner and shall not leave his assigned post or duties unless properly relieved or unless authorization to leave the post is received from the employee's supervisor." Correction Officer Favro testified that he was permitted to leave Dorm 6-2 to go downstairs to Dorm 6-1 in three circumstances: to give assistance to Dorm 6-1 when needed, to deliver the count from Dorm 6-2 to Dorm 6-1 so it could be picked up by the count officer, and to go to the bathroom on Dorm 6-1 even though a bathroom existed for the correction officers on Dorm 6-2 (Tr, 86-93).

He also testified that the main facility at Clinton Correctional Facility is a maximum "A" security facility, which houses the most violent inmates and provides the highest level of security. The annex, which includes 6-2, is a "B" facility. This is also a maximum security facility but it houses those inmates that have been screened for their good behavior while at another facility with a higher level of security (Tr, 105-106). Many of the prisoners in the "B" facility are awaiting placement in a medium security facility (Tr, 109).

Jeffrey Tedford, Deputy for Security at Clinton Correctional Facility, testified that there are various levels of security in the correctional system. A maximum security facility, an "A" facility, provides the most strict security, for those requiring a high level of supervision. A "B" facility slightly reduces the level of security. At a medium facility officers are assigned posts and inmates travel on their own. The least strict levels of security occur in the camps or the minimum security facilities (Tr, 141-142).

In April of 1999, Deputy Tedford was the Annex Captain at Clinton Correctional Facility and thus a supervisor of Correction Officer Favro (Tr, 140-142). He testified that the correction officers assigned to Dorm 6-2 had permission to use the restroom on Dorm 6-1 and they were expected to drop the count off at a central area so that it could be picked up (Tr, 143-144). The correction officers knew that they had the authority to leave their desks to drop off the count or to use the restroom (Tr, 148-149). The count officer would make rounds throughout the facility to pick up the counts at various locations at certain times during a shift. When a count is taken all movement within the prison is stopped so there is no double counting of inmates (Tr, 174). The count officer does not stop at all locations to pick up the count, because a central pickup saves time and thereby allows programs, mess hall and recreation periods to restart more quickly (Tr, 151). When a correction officer delivers the count to the central pickup on another floor, he is not expected to obtain coverage for his post even if he intends to use the restroom on the other floor (Tr, 151-152).

On cross-examination, Deputy Tedford testified that a correction officer could not phone in the count because the Watch Commander needed a written document to do his official count. A phone call with the oral count, followed up with a written count, would also not be feasible, he stated, because of concerns about the identity of the caller (Tr, 154-157).

Deputy Tedford testified that inmates in the Clinton Main Facility who are designated for transfer are not placed in protective custody status (Tr, 166) but on a somewhat lower than normal that are status where they are not allowed to go to recreational activities (Tr, 159). When asked if there was a concern about a heightened risk of attack on inmates that are scheduled to be transferred, he testified that there were "probably some incidents that suggest that that may occur" (Tr, 160-161). There was only a slight concern, however, that another inmate may harm an inmate on transfer status because the possibility of retribution is lessened (Tr, 162-163).

Deputy Tedford also testified that a correction officer would have permission to leave his assigned post and floor to go to the restroom on another floor even though there was a restroom on his own floor, so long as the correction officer had an acceptable reason for being in the other location. In this case, he indicated it was acceptable for the correction officer to go to the restroom which was 15 feet away from where he was delivering the count on Dorm 6-1 (Tr, 170). He stated that going to a restroom is not the type of "leaving an assigned post" that is prohibited in § 6.17 of the Employees' Manual. In fact, according to Deputy Tedford, the only level of supervision that requires a correction officer to get a relief or an authorization for such a departure would be where a one-on-one watch has been ordered, e.g. for an inmate with a mental health issue (Tr, 172).

As this Court discussed in
Clark v State of New York, (UID #2003-032-515, Claim
No. 100600, July 3, 2003, Hard, J.), in order to establish liability against the State in an inmate-on-inmate assault case, a 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 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 Court of Appeal's decision in Sanchez, 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 known to be at 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 of an impending assault and the opportunity to prevent it (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., revd on other grounds 291 AD2d 851).
Sanchez (supra) the standard of liability was changed to encompass both what the State knew and what it reasonably should have known. The Court of Appeals went on to indicate, however, that "the State's duty to prisoners . . . does not render the State an insurer of inmate safety. . . . [and t]he mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (99 NY2d 247, 256). Thus, a claimant is required to competently demonstrate that the State failed to adequately supervise and guard against that which was reasonably foreseeable (Colon v State of New York, 209 AD2d 842 [3d Dept 1994], citing Flaherty v State of New York, 296 NY 342). For example, a prisoner known to be dangerous may place the State on notice of an increased likelihood of an assault and thereby impose a heightened duty to take special precautions (Colon v State of New York, supra).
Supervision within a prison setting does not have to be constant. "The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation" (
Rodriguez v State of New York, UID #2002-010-060, Claim No. 96598, Jan. 13, 2003, Ruderman, J., citing Colon v State of New York, 209 AD2d 842, supra; see also Padgett v State of New York, 163 AD2d 914 [4th Dept 1990]).
One of the issues critical to this case, therefore, is whether claimant established at trial that the defendant had actual or constructive notice of a potential attack. Using the three-part test of Sanchez (supra), with the more lenient standard of constructive notice, the Court finds that claimant failed to sustain this burden.
In this case, there was no suggestion that claimant was at risk or that his attacker had known violent propensities (
Heyliger v State of New York, UID # 2003-028-004, Claim No. 91867, June 12, 2003, Sise, J.). Nor was there any prior notice that claimant and Vega were adversaries or that a potential altercation between them could occur. In fact, claimant testified that he considered Vega to be a friend and there had been no prior altercations between them. In addition, claimant never asked for protective custody prior to the incident. The record fails to establish any motive for the assault or any indication that either claimant or Vega had ever engaged in violent acts or other disruptive acts while incarcerated (Colon, 209 AD2d 842, supra). In similar circumstances, the Third Department held in Colon that unremitting supervision was unnecessary and the fact that a guard was not present at the time of the incident was insufficient to support a finding that the State failed to exercise reasonable care (id., citing Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711).
This record is also devoid of any evidence from an expert penologist to the effect that the State's supervision of claimant at the time of the assault violated generally accepted penological standards of care. There was such evidence in the record in
Sanchez (supra), and the Court of Appeals relied on that in denying summary judgment dismissing that case.
Claimant also argues that the State should be liable for his injuries because the correction

officer on duty at the time of the incident was away from his post in violation of § 6.17 of the Employees' Manual (Exhibit 5). As noted above, the relevant portion of the Employees' Manual prohibits employees from leaving their assigned posts unless they receive proper relief or an authorization to leave the post from their supervisor. However, the Deputy for Security at Clinton Correctional Facility Annex, Correction Officer Favro's supervisor, testified that correction officers are, in fact, authorized to go to another floor to deliver the count to a central location and to utilize a restroom on another floor when they are at such location for a legitimate purpose. The Court credits the trial testimony of Correction Officer Favro that he was indeed on Dorm 6-1 at the time of the incident even though some documentary evidence is unclear (See, Exhibits 1-3). The Court holds that there was no violation of § 6.17 of the Employees' Manual in the circumstances presented here.
Counsel for claimant also cites to 9 NYCRR §§ 7003.2 and 7003.3 as setting the standards for supervision in housing areas. At the outset, the Court observes that these regulations are not directly applicable to this situation, as they were developed by the State Commission of Correction for governance of county jails and penitentiaries, not by the Department of Correctional Services for governance of the State's prisons (
Sanchez v State of New York, 99 NY2d 247, 251, supra; Rivera v State of New York, UID #2002-029-169, Claim No. 94229, May 2, 2002, Mignano, J.). Nevertheless, it was argued by one of the experts in Sanchez (99 NY2d at 251 n 2), that they "are relevant in establishing a reasonable standard of supervision, and they are thus also relevant to [the] foreseeability analysis."
If these regulations were directly applicable, there would have been a literal violation of § 7003.3(a) which states: "Active supervision shall be maintained in all facility housing areas, including multiple occupancy housing units, when any prisoners are confined in such areas but not secured in their individual housing units." The term "active supervision" is defined in

§ 7003.2 as "the immediate availability to prisoners of facility staff responsible for the care and custody of such prisoners" which includes, among other things, "uninterrupted ability to communicate orally with and respond to each prisoner unaided by any electronic or other artificial amplifying device." This definition should be contrasted with that of "constant supervision," which is contained in 9 NYCRR §7003.2(d):
The uninterrupted personal visual observation of prisoners

by facility staff responsible for the care and custody of such

prisoners without the aid of any electrical or mechanical

surveillance devices. Facility staff shall provide continuous

and direct supervision by permanently occupying an established

post in close proximity to the prisoners under supervision

which shall provide staff with: (1) a continuous clear view

of all prisoners under supervision . . . .

Therefore, again assuming that this regulation was directly applicable to supervision in State prison facilities, it is apparent the "active supervision" is not "the uninterrupted personal visual observation of prisoners" as claimant's arguments imply. On the other hand, it is undisputed that Correction Officer Favro was, for at least a critical three to four minutes, unable "to communicate orally with and respond to each prisoner" housed in Dorm 6-2. If this had been a county or city jail, or penitentiary, therefore, his actions would have violated § 7003.3(a).
Sanchez, it was not necessary for the Court of Appeals to decide whether the same standard is applicable to both jails and prisons, because in the circumstances presented there, where the attack occurred outside a housing area, the active supervision requirement would not have been violated (99 NY2d at 263 n 6). Determining whether supervision was adequate, was something that "cannot be assessed in a vacuum--it must be correlated with an existing unreasonable risk of harm which the supervision is intended to ameliorate" (id., at 263). In addition, the Court continued in its refusal to hold that supervision of inmates in State prisons had to be "constant and unremitting" (id.).
Neither those portions of the New York State Correction Law governing State prisons nor the Rules and Regulations for the Department of Correctional Services (7 NYCRR) contain requirements or definitions of "supervision" levels that are as concrete as those set forth in the Commission of Corrections' regulations for local facilities. Nor have courts applied such rigid tests to determine whether, in a given instance, the level of supervision within a State prison was adequate or inadequate. The much more flexible and traditional test, that has been consistently applied, is that of reasonableness and foreseeability. A determination of whether the supervision provided in a specific situation within the State prisons is adequate has rested on a careful review of the specific facts and, frequently, on the testimony of experts in the field of penology (
see, e.g., Sanchez v State of New York, 99 NY2d 247, supra; Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Colon v State of New York, 209 AD2d 842, 843, supra).
In a number of instances, the requirements imposed on officials of local correctional facilities differ from those imposed on officials of the State prisons (
see, e.g., Fisher v Garvey, 214 AD2d 564 [2d Dept 1995] [procedure that violated disciplinary hearing requirements in State prisons, 7 NYCRR, part 254, did not violate similar requirements in local facilities, 9 NYCRR §7006.1 et seq]; Matter of Rodriguez v Barreiro, 165 AD2d 969 [3d Dept 1990] [different requirements relating to access of a notary]). In fact, the operation of local facilities logically will differ in many ways from that of State institutions because, for the most part, inmates in local correctional facilities are incarcerated only for a year or less (Penal Law §70.20[2]).[1] Consequently, the fact that Correction Officer Favro's actions might have violated the regulations applicable to a local correctional facility may be worth considering, but is not and should not be determinative of the issues of reasonableness or foreseeability.
Claimant also questions the defendant's policy regarding the nonplacement of inmates in protective custody while awaiting a transfer to another facility. The Court agrees with the defendant that "[t]he operation of a State institution is clearly governmental and subject to governmental and administrative decisions and the State has not waived its immunity from liability resulting from said decisions" (
Crawford v State of New York, 60 AD2d 729 [3d Dept 1977]).
Defendant's motion to dismiss, on which the Court reserved decision, is granted at this time, and the Chief Clerk is directed to enter judgment dismissing the claim. All other motions made at trial and not heretofore ruled upon are denied.

Let judgment be entered accordingly.

November 20, 2003
Albany, New York
Judge of the Court of Claims

[1] This provision requires persons on whom a definite sentence of imprisonment has been imposed be committed to a local correctional facility. The longest authorized definite sentence is one year (Penal Law §§70.00[4] 70.15).