New York State Court of Claims

New York State Court of Claims

STEELE v. THE STATE OF NEW YORK, #2004-030-004, Claim No. 102897


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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 23, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 21, 2003.

Claimant testified that on September 3, 1998, he resided on "five company on H-Block"[1]
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. [
See Exhibit 8].
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 an assault.
[Id]. 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 3].
Lieutenant Ward,[2]
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.[3]
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 gallery[4]
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 between companies.
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 inmates.

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. [
See Exhibit 2].
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." [Id].
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, supra. 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 York, 99 NY2d 247, 253 (2002); see also Flaherty v State of New York, 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, supra; Huertas v State of New York, 84 AD2d 650 (3d Dept 1981).[5] ". . . [U]nremitting supervision . . ." is not required. Colon v State of New York, supra, at 844.
Sanchez v State of New York, supra, 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 at 254; citations omitted; emphasis in original)."[6]
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, supra 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 New York, 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);[7] Osuna v State of New York, 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.

January 23, 2004
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.
[2]Lieutenant Ward was a Sergeant at the time of the incident.
[3] The Court cannot help but note that from the testimony elicited it was not clear where the cage and the end-gate were located. All witnesses used differing terminology to refer to what may have been the same locations, however, it was never clear, for example, whether one cage supervises all three tiers, whether the endgate is at the bottom of the three tiers, or if there are individual end-gates at each company. On balance, it appears that there is an endgate at the end of each company ("one officer per deck" as indicated by Lieutenant Ward). It was not established however, whether there is a cage on each tier, or whether an officer or officers in one cage controls all three tiers and the gates associated with each tier.
[4] Again, the term "gallery" appears to refer to one side of a tier, or one "company," although the testimony did not make this clear.
[5] Another example might be whether there was information which would trigger any heightened awareness of a risk to this inmate - any "suspicious" behavior such as an individual leaving an assigned work post, or stuffing magazines in his shirt to avoid injury - to alert correction personnel of a specific danger brewing.
[6] It is noted that the majority opinion - addressing the concerns of the dissent - declares that ". . . we underscore that the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When 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 (id., at 256)." The majority confirms that in the case before it there was simply a triable issue, given ". . . uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack during congregate ‘go-back' time; and uncontested evidence of both the regularity of the correction officer's inattentiveness at precisely that time and the officer's inability to see claimant at the location where he was required to stand (id.,at 255)."
[7] Interestingly, in the Deleon case the Claimant had urged the Court to consider the applicability of certain regulations promulgated under the authority of Correction Law §45(6) that appear applicable to local correctional facilities concerning the supervision of prisoners [9 NYCRR §7003.3] that the Claimant here also argued were relevant. As noted by Judge Patti, the terminology used in the regulation is inherently subjective: the supervision of inmates in a facility housing area is described as "active supervision," begging the question as to what constitutes an acceptable level of supervision. In any event, Judge Patti suggests, and this Court cannot help but agree, that an expert in penology might be helpful to articulate the concept. All that was presented here was the Claimant's opinion that not enough correction officers were present, or that the ones who were present were not paying attention. See also Osuna v State of New York, supra, with respect to the regulations' lack of direct applicability.