New York State Court of Claims

New York State Court of Claims

FOLKS v. STATE OF NEW YORK, #2004-018-334, Claim No. 101121


There was no evidence that Claimant was an inmate targeted for assault; Claimant testified he did not know who his attacker was, or that he was at risk of being attacked, and there was no proof that this area was the site of other assaults. The claim is DISMISSED.

Case Information

BRIAN FOLKS The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 9, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages from the State for injuries he sustained on February 3, 1998, when his face was cut by another inmate while he was incarcerated at Ogdensburg Correctional Facility (hereinafter OCF). Claimant testified that as he was leaving the mess hall and walking into what is called the 115 Corridor, another inmate, hiding behind the door, called his name and when Claimant turned, his face was cut. He did not know who cut him, but he grabbed the inmate closest to him and swung at him a couple of times. The disturbance drew the attention of the correction officers who came and broke up the fight. Claimant was taken to the infirmary for stitches.

The State had a diagram of the area (Exhibit A) which Claimant also used to describe the incident. On Exhibit A, a long hallway is depicted. At each end of the hallway, there is a correction officers' station, one near the mess hall in the "quiet rec" area at the top of the exhibit, and the other at the far end of the 115 Corridor, near the entrance to A and B Housing Blocks, at the bottom of the exhibit. Claimant testified that there was no correction officer at the "quiet rec" station. There was an officer talking to a nurse, Nurse Green, in the 115 Corridor. Immediately after the incident, when Claimant arrived at the infirmary, Nurse Green already had everything set up to suture him.[1] He suffered a cut to his cheek, which left a scar, and minor cuts on his hand.

On cross-examination, Claimant said he did not tell anyone that he was at risk of being assaulted, because he did not know he was at risk. Although a couple of inmates were charged with the incident, Claimant testified at various institutional disciplinary hearings and before a grand jury that he did not see who cut him.

The State called Lt. Scott Roberts (he was a sergeant at the time of the incident) who explained the markings on Exhibit A, the diagram of the 115 Corridor. Lt. Roberts circled the correction officers' station near A and B Housing Blocks in yellow, circled the correction officers' station in the quiet rec area in black, and placed a red "x" where Claimant was attacked. The witness responded to the incident from the sergeant's office and interviewed Claimant at the infirmary.

Lt. Roberts described the correction officers' duties as follows: The correction officer positioned at the black station near the mess hall, was in a "moving station." This officer was responsible for monitoring the serving line in the mess hall, monitoring the 115 Corridor, summoning additional inmates lined up in the corridor to the mess hall, and making phone calls from a telephone located by the quiet rec area to the officer at the station closer to the A and B Housing Blocks, so that more inmates could be lined up in the115 Corridor for meals. The correction officer at the yellow station by A and B Housing Blocks has a stationary position. This correction officer watches the 115 Corridor and contacts the correction officers in the respective housing blocks to send more inmates to the corridor to line up for the mess hall.

Lt. Roberts investigated the incident. According to Lt. Roberts' report,[2] Claimant indicated he had been cut before by Inmate McPeck in 1996, when they were in Greene Correctional Facility. In the report, Lt. Roberts indicates Claimant told him that McPeck is who cut him in OCF. Claimant, according to Lt. Roberts, said that McPeck had a razor blade in each hand, and that Inmate Gibbs punched McPeck to stop the assault. Claimant, in contrast, testified he was unaware of McPeck being housed at OCF and that the 1996 incident at Greene was never reported. No records of such an incident were found. When objecting to the receipt of Exhibit B, Claimant denied making any statements to Lt. Roberts. Claimant also insistently denied having any knowledge of who cut him at OCF.

Lt. Roberts also testified that both doors at the mess hall end of the 115 Corridor are kept open during meals for the ingress and egress of the inmates. The Correction Officer at the black station would be able to see the mess hall area and its entrance from the quiet rec correction officers' telephone. The officer positioned at the yellow station is responsible for the corridor itself, and would have a clear view of the doors and doorway into the mess hall. On cross-examination, he acknowledged that from the quiet rec phone, an officer could not see outside the mess hall doors into the hallway.

The two officers on duty February 4, 1998, were Officers Halpin and Sherwin. Halpin was at the yellow station and Sherwin at the black. Their reports[3] were received into evidence and Correction Officer Halpin testified.

Officer Halpin testified that during meals, there was a constant flow of inmates and only the movement of inmates would block his view of the mess hall doorway from his station in the 115 Corridor. After the assault, Correction Officer Halpin found two razor blades on the floor. He did not see who cut Claimant and he had no reason to believe before the attack that Claimant was in danger.

A prison, by its very nature can be a dangerous place; "[w]hen persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate" (Sanchez v State of New York, 99 NY2d 247, 256). Nonetheless, the State owes inmates a duty to safeguard them from attacks by fellow inmates to the extent that the risk of inmate-on-inmate attack is foreseeable, that is the State knew or had reason to know of such a risk of harm to Claimant (Sanchez v State of New York, 99 NY2d 247 supra; Flaherty v State of New York, 296 NY 342). This duty does not require "unremitting surveillance in all circumstances"; rather it requires the State to reasonably anticipate foreseeable risks and provide appropriate supervision (Sanchez v State of New York, 99 NY2d at 256). Thus, there must be proof that the State knew or should have known that Claimant was: (1) vulnerable to an assault (see Sebastiano v State of New York, 112 AD2d 562); or (2) that his assailant was dangerous (see Littlejohn v State of New York, 218 AD2d 833); or (3) that the assault was about to take place and had an opportunity to intervene but failed to act (see Huertas v State of New York, 84 AD2d 650). (Sanchez v State of New York, 99 NY2d 247 supra).

Here there was no evidence that Claimant was an inmate targeted for assault; in fact, Claimant testified he did not know who his attacker was, or that he was at risk of being attacked, and there was no proof that this area was the site of other assaults. The 115 Corridor is constantly monitored with two correction officers in the vicinity. One officer is stationed in the hallway, the site of Claimant's injuries, and, other than the obstruction caused by the normal movement of inmates, he has a clear view to the mess hall doors.

Claimant indicated that this correction officer, Correction Officer Halpin, was distracted and talking with a nurse. Although contradicted by the testimony of Correction Officer Halpin, even if accepted as true, without more, this does not establish a breach of the State's duty. "Unremitting surveillance" is not required and under the circumstances with no evidence that Claimant or this area were foreseeably susceptible to inmate-on-inmate assaults, no duty was breached by the correction officer taking his eyes off of the inmates to speak with a nurse. A correction officer was present in the corridor and another was present a short distance away,[4] there is no indication that even diligent relentless observance could have prevented this attack. The claim must be DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

February 9, 2005
Syracuse, New York

Judge of the Court of Claims

[1] Claimant testified that he learned that an inmate had told Nurse Green to get back to the infirmary because she was going to have some business. This testimony seemed to imply that someone knew what was about to happen. This hearsay is not competent evidence of notice, however. Although other inmates may have been aware of the impending assault, even if the Court could use this testimony, it does not support the inference that the nurse or other State employee knew of the upcoming attack.
[2]Exhibit B.
[3]Exhibits C and D, respectively.
[4]Claimant testified that at the black station as identified on Exhibit A, the correction officer was not at the mess hall doorway, but instead was by the quiet rec area. This, however, was an appropriate location for the correction officer to be, as this station is a moving station, which requires the correction officer to move between three different locations.