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
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'
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
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
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,
there is no indication
that even diligent relentless observance could have prevented this attack. The
claim must be DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.