William Steele, the Claimant herein, alleges in Claim Number 102897 that
Defendant's agents negligently failed to protect him from an assault by a fellow
inmate while he was incarcerated at Green Haven Correctional Facility (hereafter
Green Haven). A unified trial of the matter was held at Green Haven on November
Claimant testified that on September 3, 1998, he resided on "five company on
at Green Haven. At approximately 1:00 p.m. on that day he was released from his
cell to go to the law library by Correction Officers Kennedy and Urciuoli. As he
stepped out of his cell turning to his left, he was stabbed by a fellow inmate
named Timothy Dixon, who "did not lock on his tier." Claimant explained that
inmates are assigned to a particular tier, at the end of which there is a door
that may be passed only with the "acknowledgment" of a correction officer. It
was his recollection that Correction Officer Urciuoli was the one "standing in
the lock box," as inmates, including Mr. Dixon, were "headed toward the front"
to go to their programs. "If you do not lock on that tier, you do not belong
there . . . what they did is allow . . . [Claimant's assailant] to walk through
that security endgate walk all the way down to . . . [Claimant's] cell, and stab
. . . [Claimant] twice in the chest, walk right back off the gallery and proceed
to go to his program." When Claimant fell to the floor, he heard another inmate
named Barnes "yell for the officers' attention but no one responded." Barnes
picked the Claimant up and brought Claimant "to the front of the company where
Officer Urciuoli was standing." Barnes continued to carry Claimant downstairs
where he was "thrown on a garbage cart." Thereafter, Sergeant Ward directed
Claimant's removal to the facility hospital.
At the facility hospital, Claimant was evaluated, and then transported by
ambulance to St. Francis Hospital. He was then flown to Westchester County
Medical Center. He stated he ". . . woke up three days later with tubes in
every part of . . . [his] body, . . . remain[ing] on the critical list for
thirty days." The assailant was apprehended in the gym, Claimant testified,
while Claimant was being taken to Westchester County Medical Center. [
An Unusual Incident Report completed at the time confirms that there was an
incident involving Claimant and Mr. Dixon on September 3, 1998, and that
Claimant suffered puncture wounds to the chest and was transported to St.
Francis Hospital. [Exhibit 2]. The Claimant's Ambulatory Health Record
(hereafter AHR) for the day confirms the injury [Exhibit 5], and the Report of
Inmate Injury form completed by the medical department confirms that there was
. Inmate Dixon had superficial injuries [See
Exhibit 2], and
received a misbehavior report accusing him of assaulting a fellow inmate in
violation of facility rules. [Exhibit 1]. An inter-department memorandum from a
"Lt. G. Schneider" to Deputy Superintendent Schneider confirms the assault as
well, and recites the activities that occurred after the assault. [Exhibit
the area supervisor on September 3, 1998, also testified as Claimant's witness.
He described, generally, the procedures in place for the movement of inmates
from H-Block residence to their various programs. There are three (3) different
decks or tiers to H-Block, with one staircase common to the three tiers. On each
tier, two companies reside, of forty-four (44) inmates each. Between the two
companies is "the cage or lock box", where at least one correction officer is
stationed opening individual cells, as well as the security endgate allowing the
release to programs.
When it is time for a call-out for programs, a correction officer on the first
floor calls up through the "squawk box" that it is time for the correction
officers on the upper two decks above to call out the inmates for given
programs. He explained that when there is a call-out for programs, and only one
correction officer is placed in "the cage," he performs several functions, and
how many inmates will be allowed out at a time depends on whether just one
officer is supervising or additional officers are available. When there is one
officer, he would generally starts opening cells on the left-hand side for one
company, opening the endgate, opening the lock box - which is approximately 3 to
3½ feet away from the endgate - and "cracking the levers" for the
individual cells. Once all the cells on one side are opened, he usually proceeds
to the other side or company. While pulling the levers, the officer looks "down
the company" to observe the inmates' progress. Once four or five inmates are
released, however, the vision of the officer in the cage is obscured. The view
"down the company" is 255 feet long, and the corridor itself is very narrow,
perhaps 3 to 4 feet wide, "like a catwalk." If two or more officers are
assigned, then release of the inmates from the two sides is simultaneous. The
number of inmates released for a call-out varies from day to day. Lieutenant
Ward estimated that between 20 and 30 inmates from each
are released for a call-out.
Lieutenant Ward noted that while it is expected that an inmate who has been let
out of his cell go directly to the front of the company and proceed to his
program, it is not unusual for inmates to turn back, claiming something was left
in a cell, for example, rather than continuing in the same direction.
On September 3, 1998, Lieutenant Ward first observed Claimant as he was being
pushed on a cart in a corridor or hallway outside the H-Block area. Observing
that Claimant appeared to be injured, he instructed the staff to keep the gates
open to allow Claimant to be pushed through to the facility clinic "ASAP."
Dennis Urciuoli, the correction officer assigned to H-Block releasing inmates
to their programs on September 3, 1998, also testified as Claimant's witness.
He said that he was initially supervising call-outs for five company, and was
stationed on the second tier to perform that job. He had been stationed with
two and five company for approximately three (3) years at that time. He
indicated, however, that he was not generally familiar with the inmates who
locked on the companies, since "every day there's a turnover of inmates coming
in and out of galleries because of changes in the cells."
At approximately 12:45 p.m. on September 3, 1998 he was in the cage starting
the release of inmates from two company. Another officer, named Kennedy, came
to assist him and took over releasing the inmates from two company while Officer
Urciuoli started releasing inmates from five company. Officer Urciuoli said
that generally, an inmate is not allowed to go back to his cell once he's
released for his program, but is supposed go down to the first floor for a pass,
and then leave the block for his program. He indicated that if
only one inmate were re-entering the gallery he might be able to stop
the person and inquire as to his intentions; however for the most part he would
be unlikely to specifically notice an individual coming back on the gallery
given the narrowness of the hallway and the "mass confusion" with people coming
and going. Officer Urcuioli stated he did not know inmate Dixon, and did not
generally recognize individual inmates because of their constant relocations
On September 3, 1998, during the call-out, Officer Urcuioli indicated he and
Correction Officer Sealey were in the cage initially supervising the release of
two company when Officer Kennedy came up and knocked on the cage. Officer
Urcuioli let Officer Kennedy into the cage and he "went over to five company to
observe inmates on the gallery." It was at that point, or shortly thereafter,
that Officer Urcuioli observed inmate Barnes bend down and "pick something up in
his arms," namely the claimant. Barnes "ran down the gallery," and told Officer
Urcuioli that the claimant had stopped breathing. Officer Urcuioli had the
impression the claimant had suffered a heart attack or a seizure of some kind.
He directed Barnes to take claimant for medical attention, and notified
Lieutenant Ward and the medical clinic that claimant was on his way.
In later testimony Officer Urcuioli said he was "all by . . . [him]self when .
. . [he] was releasing inmates from two company. He said that he was familiar
with the "Inmate Rules" [See Exhibit 11] including those regarding inmate
movement. He generally understood his own duties to be the supervision of the
Finally, Lieutenant B. Schneider testified briefly as Claimant's witness. She
indicated that on September 3, 1998 she was stationed at the medical facility,
and was asked by Lieutenant Ward to ascertain what had happened to Claimant.
Although Claimant could not speak when he came into the clinic, and she could
observe that he was injured, Claimant was ultimately able to communicate who he
believed his assailant was by cell number. Because she does not have a medical
background, she indicated that she could not evaluate the severity of his
injuries. She did not observe anyone taking photographs nor did she herself
take photographs. It was Lieutenant Schneider who filed the Unusual Incident
Report admitted in evidence. [
After the assault, Claimant was placed in involuntary protective custody.
[Exhibit 10]. The form recommending the protective custody for Claimant
indicates that the reason for the recommendation is that Dixon had ". . . [come]
down from the 3
rd deck during the program run and stabbed Steele twice."
No other witnesses testified, and no other real evidence was admitted.
While the State must provide inmates with reasonable protection against
foreseeable risks of attack by other inmates, [
Blake v State of New York
, 259 AD2d 878 (3d Dept 1999); Sebastiano v
State of New York
, 112 AD2d 562 (3d Dept 1985)], the State is not the
insurer of the safety of inmates, and the fact that an assault occurs does not
give rise to the inference of negligence. Padgett v State of New York
163 AD2d 914 (4th Dept 1990) lv denied
76 NY2d 711 (1990); Sebastiano
v State of New York
. In order to establish liability on the
State's part, an inmate claimant must allege and 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. Sanchez v State of New
, 99 NY2d 247, 253 (2002); see also Flaherty v State of New
, 296 NY 342, 347 (1947). The Court must look to see if the actions
taken by the State were reasonable under the circumstances. The mere fact that
a correction officer is not present at the precise time and place of an assault,
for example, does not give rise to an inference of negligence absent a showing
that officials had notice - actual or constructive - of a foreseeable dangerous
situation. Colon v State of New York
, 209 AD2d 842 (3d Dept 1994);
Padgett v State of New York
; Huertas v State of New
, 84 AD2d 650 (3d Dept 1981).
". . .
[U]nremitting supervision . . ." is not required. Colon v State of New
, at 844.
Sanchez v State of New York
, the Court of Appeals reversed
the Appellate Division - which had affirmed a Court of Claims dismissal on
summary judgment of the Claimant's negligent supervision claim - finding that
there was a triable issue of fact as to the foreseeability of an attack upon
Claimant that was as much a surprise to him as it allegedly was to the State.
Claimant had been assaulted by unidentified inmates in the school area of Elmira
Correctional Facility. One officer was stationed at a desk at one end of a 60
foot long corridor, and was responsible for supervising approximately 100
inmates as they moved through the corridor. The officer was known to leave his
desk and stand at a storage room area at the opposite end of the corridor where
portions of the area he was responsible for - including the front of the
classroom where Claimant was attacked - were not visible. Saying that ". . . a
strict requirement of specific knowledge for foreseeability is one that has
evolved recently in the Appellate Division . . . (citations omitted)
the Court of Appeals explained that while actual knowledge with respect to the
foreseeability of a given assault ". . . offers a bright-line test, that line
redefines the traditional standard of reasonableness that has long been the
touchstone of the law of negligence, and it cuts off consideration of other
factors that have previously been found relevant to foreseeability. What the
State actually knew plainly falls within the ambit of foreseeability. But the
Appellate Division actual notice test precludes additional consideration of the
State's constructive notice - 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 . . . (Id
citations omitted; emphasis in original)."
It bears repeating that the Court of Appeals was reviewing a summary
determination. The Court ruled that a genuine issue of material fact as to the
foreseeability of the attack on claimant required resolution at trial.
Sanchez v State of New York
was decided, Courts have
interpreted it as a clarification of "traditional" foreseeability concepts.
See e.g. Heyliger v State of New York
, Claim No. 91867, UID
#2003-028-004 (Sise, J., June 12, 2003); See also Fontenot v State of
, Claim No. 98022, UID #2002-013-524 (Patti, J., December 31, 2002);
Deleon v State of New York
, Claim No. 100061, UID #2003-013-504 (Patti,
J., August 4, 2003); Osuna v State of New
, Claim No. 100555, UID #2003-032-521 (Hard, J., November 20, 2003).
In this case, there has been no showing that the Claimant was known to be at
risk either generally or that his attacker was known for violent propensities.
There was no prior notice of any antagonism between Claimant and his assailant,
or any other evidence of motive. There was no record made to establish that the
use of one or two correction officers to supervise the movement of inmates is
against penological standards of care. The attentiveness of the correction
officers was reasonable under the circumstances, and there was no evidence that
these officers were slacking off. Notably, the lack of clarity as to the actual
physical locations of the correction officers vis-à-vis the Claimants,
both generally and on this specific date, does not satisfy the Claimant's burden
of establishing his case by a preponderance of the credible evidence. More
generally, the inherent risk of violent activity in a correctional facility
housing dangerous individuals does not mandate imposition of liability for
inmate-on-inmate assaults that are not reasonably foreseeable. Claimant has not
sustained his burden of establishing that the State had actual or constructive
notice of the harm that befell him.
Defendant's motion to dismiss, upon which the Court reserved decision at trial
is hereby granted in all respects, and Claim Number 102897 is hereby dismissed
in its entirety.
Let Judgment be entered accordingly.