New York State Court of Claims

New York State Court of Claims

CODRINGTON v. THE STATE OF NEW YORK, #2004-010-014, Claim No. 99166


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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 19, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for the personal injuries he sustained during his incarceration at Sing Sing Correctional Facility (Sing Sing) when, on April 17, 1998, he was attacked by another inmate. Claimant alleges that he remained in his cell and that Correction Officer Bobo failed to lock it according to proper procedure. Thus, another inmate was able to gain access to claimant's cell and attack him. Defendant maintains that claimant was returning to his cell from another location and that the cell was appropriately unlocked. The parties stipulated that there are no documents reflecting claimant's whereabouts on April 17, 1998 and none were available when, on August 27, 2002, they were first requested by claimant. Nor were there any witnesses who could testify to claimant's whereabouts. Accordingly, the credibility of claimant and Correction Officer Bobo is critical to the determination of this case. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that on April 17, 1998, he went to breakfast and then, at approximately 8:30 a.m., returned to his cell on A gallery in Five Building. At his examination before trial, however, claimant testified that he could not remember whether or not he had gone to breakfast. Claimant testified that he was enrolled in classes, but he did not have any classes that day. He also stated that he was a porter, but he did not have any work assignments that day. He recalled feeling tired, so he returned to his cell and went to sleep. According to claimant, at 2:30 p.m. he was awakened by the facility's loud speakers announcing a program change. He arose and walked toward the sink inside his cell. Within one minute, as he was washing his face, he felt a razor-like instrument slash his face. His attacker was inmate Serrano. Correction Officer George Bobo responded to assist claimant.
Claimant testified that, prior to April 17, 1998, he had never been physically assaulted. At his examination before trial, however, claimant testified that in 1992, while serving a previous sentence, he had been assaulted and had signed himself into protective custody.[1] Claimant also testified that prior to April 17, 1998, his cell had been set on fire twice, as recently as July 1997. Claimant did not know who had set the fires. After the July 1997 fire, claimant signed a document refusing protective custody and agreeing not to hold defendant liable. When asked at trial if he had spoken to a sergeant after the second fire, claimant responded, yes. At his examination before trial, however, claimant testified that he was not interviewed by a sergeant, but rather he was interviewed by Captain McElroy.
On September 2, 1997, in a letter to Captain McElroy, claimant requested that he be removed from protective custody but remain in Five Building (Ex. D). Claimant's request was granted and he was housed in A block in Five Building. He remained there for three months without incident before he was assaulted on April 17, 1998.
Claimant conceded that, prior to the April 17, 1998 attack, he did not fear that he was in any danger, nor had he had any encounters with Serrano. Thus, claimant acknowledged that no one in the New York State Department of Correctional Services (DOCS) should have had any reason to believe there were any issues between the two inmates. After the April 17, 1998 incident, claimant was placed in Involuntary Protective Custody (Ex. 3).
Deputy Superintendent Terrence McElroy testified that he has been employed by DOCS for 33 years. On April 17, 1998, he held the rank of Captain and was Acting Deputy of Security at Sing Sing. He testified that as a Deputy Superintendent, he did not conduct interviews regarding cell fires. Such interviews would have been handled by a housing sergeant or block lieutenant.
Referring to inmate records, McElroy testified that on February 17, 1998 after a disciplinary proceeding, claimant was transferred from B block to Five Building.
Correction Officer George R. Bobo testified that on April 17, 1998, he worked the 7:00 a.m. to 3:00 p.m. shift on A gallery Five Building. Bobo explained that during the "go back,"[2]
when inmates were returning from their programs and proceeding to their cells, Serrano necessarily passed claimant's cell. Five to ten minutes before claimant was attacked, Bobo observed claimant on the gallery headed toward his cell. Thereafter, Bobo observed claimant leaning on his partly opened cell door. He was standing between the door frames of his cell (Ex. 6, p. 17). Bobo witnessed Serrano open claimant's cell door and slash him.
Bobo explained that the cells were locked individually and then secured by a brake, or bar, that extended across all the cells. If an inmate did not leave his cell during a program period, he remained inside a locked cell.
Bobo maintained that, according to his custom and practice, if claimant had not left his cell for programs, the cell would have been deadlocked. During the go back, the brake was open and was not closed until after all the inmates were locked inside their cells (Ex. 6, pp. 13-14). Bobo had no recollection of claimant remaining in his cell on April 17, 1998.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm (
see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risk of harm includes the risk of attack by other prisoners (see Littlejohn v State of New York, 218 AD2d 833). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The State's duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see Padgett v State of New York, 163 AD2d 914). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually knew, but also "what the State reasonably should have known – for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez v State of New York, supra at 254 [emphasis in original]). 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 (see Colon v State of New York, 209 AD2d 842, 843-44). "[T]he State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and 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" (Sanchez v State of New York, supra at 256).
To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that
the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (id.). "The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Wilson v State of New York, 303 AD2d 678, 679).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
claimant's testimony is not worthy of belief and there is a lack of evidence sufficient to meet claimant's burden of proof. The Court finds that the testimony of Correction Officer Bobo was credible and forthright. Thus, there was insufficient evidence to establish that claimant had remained in his cell and that defendant was negligent in its failure to lock claimant's cell door.
Additionally, cl
aimant testified that, prior to the assault by Serrano, claimant had no fear of attack nor had he had any prior encounters with Serrano. Three months prior to the attack, claimant requested removal from protective custody and asked to remain in Five Building. Claimant conceded that there was no reason for anyone in DOCS' employ to believe there was any issue between claimant and Serrano. Thus, there is no basis for finding that defendant should have reasonably believed that claimant was at risk of attack.
The Court finds that the actions taken by
defendant to secure claimant's safety were reasonable under the circumstances; therefore defendant is entitled to deference in managing the safety and order of its facility (see Arteaga v State of New York, 72 NY2d 212, 216).
defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

May 19, 2004
White Plains, New York

Judge of the Court of Claims

[1] Thus, from that experience in 1992, claimant knew that he could request protective custody.
[2] All quotations are to the trial notes or audiotapes unless otherwise indicated.