Ivan Valentine, the Claimant herein, alleges in Claim Number 105321 that
Defendant's agents failed to protect him from an assault by a fellow inmate
while both were incarcerated at Fishkill Correctional Facility (hereafter
Fishkill). Trial on the issue of liability alone was held on October 19,
Claimant testified that on August 30, 2000 at approximately 6:44 p.m. he was
watching television by the "Spanish tv
in the South yard at Fishkill when he was approached by Elliott Agosto, a fellow
inmate, who began a discussion concerning property stolen from Mr. Agosto.
Claimant was asking if Mr. Agosto had reported the theft to anyone, and similar
questions. Mr. Agosto then announced "I'll be back", took a few steps away from
Claimant, and Claimant "gave [his] back" to Mr. Agosto for a moment, and then
"felt a slap." Claimant turned around, saw Correction Officer Jeffrey-Williams
walking toward him from "about 20 to 25 feet away," and saw "Agosto run across
the yard." In the meantime, Claimant realized he had been cut because his "face
was burning," and Officer Jeffrey-Williams went back to the officers' station.
Claimant grabbed "a cane from another inmate who was next to . . . [him] to
protect . . . [himself] and that was it. Officers came, handcuffed . . . [him]
and took . . . [him] to the clinic."
On cross-examination Claimant indicated that he had known Mr. Agosto for 9 to
10 months and would characterize him as a friend. He indicated that they were
speaking in both Spanish and English for approximately 3 to 5 minutes, and that
the discussion was not an argument, although his filed claim states that there
was an argument during which Mr. Agosto accused Claimant of having stolen his
In the South yard that evening, approximately 215 to 230 inmates were
congregating. Entry onto the yard commences at the officers' station, with the
"Spanish television area" on the right-hand side "a good 40 to 50 feet away from
the officers' station before the inmates' bathroom." Other activities were
ongoing in the yard. To the left-hand side of the officers' station, there were
handball courts - he was not sure if people were playing handball - straight
ahead from the officers' station toward the left is "the weight court" where
inmates lift weights, and to the right are the "bocci courts, the ‘English
tv', then the ‘Spanish tv', and then the ‘rap tv' and then the
bathroom." Additionally, inmates generally play cards and dominos, and can sit
at picnic tables. On August 30, 2000, Claimant recalled dominos being played,
because "the cane . . . [he] took was from one of the dominos players."
Claimant conceded that he did not feel threatened at any time during the
conversation with Mr. Agosto, because he was a friend. He did observe Mr.
Agosto reach into his pocket, and also remove his hand from his pocket, but it
did not strike him as suspicious at the time because he had nothing to fear, nor
did he see any object in Mr. Agosto's hand. It was after Mr. Agosto removed his
hand from his pocket that he then appeared to be saying goodbye, and "took a
spin like going toward the weight area, and then he came back within 5 to 10
seconds"- after Claimant had "given him . . . [his] back" - and Claimant felt
the "slap." Claimant saw Mr. Agosto immediately after he felt the slap, and
heard Mr. Agosto declare "I know you know who took my . . . [property]."
Claimant conceded he was brought up on disciplinary charges with respect to
this incident, pleading guilty with an explanation. He was charged in the
misbehavior report with attempting bodily harm upon another inmate, violating a
direct order, violent conduct and possession of a weapon. Claimant noted he
pled guilty to all charges except violating a direct order, and stated he was
not found guilty on that charge. A disciplinary hearing was held on September
13, 2000 by Hearing Officer Jacobsen. When asked to give a statement concerning
the events of August 30, 2000 at the disciplinary hearing, he indicated that
after the "slap" he was in "shock, confused, and couldn't see", that there were
no officers anywhere around, that he didn't know who was around and grabbed the
cane. He said Agosto "took off," probably because one of the officers had
called Agosto through the loudspeaker, since one of the officers had seen Mr.
Agosto "cut him." Claimant recalled giving that statement concerning not seeing
officers in the area, but indicated it was not inconsistent with his testimony
at trial that he saw officer Jeffrey-Williams, because between where he was
standing and the officers' station there was activity and it was a curved sight
No other witnesses testified on Claimant's direct case. The only documentary
evidence entered on Claimant's direct case is a photocopy of Section 21 of the
New York State Department of Corrections (hereafter DOCS) employee manual,
pertaining to the titles and ranks of uniformed security personnel. [Exhibit 7].
The responsibility of correction officers "for the custody and general welfare
of inmates committed to New York State correctional facilities" is described
generally therein, and includes the responsibility to ". . . supervise inmates
in cells, dormitories, wards, mess halls, [and] recreation areas . . .", among
other things. [
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 (Sebastiano v State of New York
). In order to establish liability on the State's part, an inmate
claimant must allege and prove one of the following grounds: (1) the victim was
a known risk and the State failed to provide reasonable protection (see
Sebastiano v State of New York
); (2) the State had notice
that the assailant was dangerous and refused to take the proper precautions
[see Littlejohn v State of New York
, 218 AD2d 833 (3d Dept 1995);
Wilson v State of New York
, 36 AD2d 559 (3d Dept 1971)]; or (3) the State
had notice and the opportunity to intervene to protect the inmate victim and
failed to act. Smith v State of New York
, 284 AD2d 741, 728 NYS2d 530 (3d
Dept 2001). More broadly, 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
NY2d 247, 253 (2002); see also Flaherty v State of New York
NY 342, 347 (1947). The mere fact that a correction officer is not present at
the precise time and place of an assault does not give rise to an inference of
negligence absent a showing that officials had notice of a foreseeable dangerous
situation. Colon v State of New York
, 209 AD2d 842 (3d Dept 1994);
Padgett v State of New York
, 163 AD2d 914 (4th Dept 1990), lv denied
76 NY2d 711 (1990). ". . . [U]nremitting supervision . . ." is not
required. Colon v State of New York
Additionally, the court must consider 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.
See e.g. Huertas v State of New York
, 84 AD2d 650 (3d Dept
After Claimant rested, the Defendant made a motion to dismiss based upon
Claimant's failure to establish a
case. Defendant argued Claimant had not shown that the State
failed to intervene in a timely fashion when the incident occurred, or that the
State somehow knew or should have known of the risk of harm to Claimant that was
reasonably foreseeable and inadequately addressed.
Claimant's arguments concerning why the motion to dismiss for failure to
case should be denied centered on matters not in evidence,
including that having an officer on the yard without equipment that would enable
her to immediately obtain assistance with a situation developing, was negligent.
In accordance with the employee manual, he argued, Officer Jeffrey-Williams -
having observed an argument - had a duty to intervene before it escalated.
Rather than intervene, he said, she went back to the officers' station to get
The Court agrees that Claimant did not establish a
case, and hereby dismisses the claim on this ground alone.
Considering the balance of the trial, too, Claimant did not establish that the
State should be held liable under the theory advanced.
Officer Dana Jeffrey-Williams, a five year DOCS employee, testified on
Defendant's case. On August 30, 2000 she had been a DOCS employee for a little
over one (1) month. Her assignment that day was as an "extra" stationed inside
the South yard, with a tour of duty starting at 2:30 p.m. As an extra, her
duties were to "rove the yard." She did not recall offhand how many other
officers were assigned to the yard that day, but knew there were other officers
in there and that she was not working alone. She confirmed that it was a
recreational area, in which many activities were ongoing. She does not
understand the Spanish language, and was wearing prescription sunglasses on
August 30, 2000. The unusual incident she recalled from that date - she was
uncertain of the time of day - was her observation of an inmate making a hand
motion of some kind to Mr. Valentine, and then walking quickly to the other side
of the yard. Her attention had been drawn to them because of some inmates
"around them" having "gotten up quickly," the hand motion she observed, as well
as the quick departure to the other side of the yard. She was a few feet away
from the officers' station when she made these observations. The Spanish
television - where the inmates were when she saw the hand gestures - was a
distance away, but she was unsure of how far. She was far enough that she could
not hear any conversation between them. Between where she was standing, and the
Spanish television area, were steps descending into the oval-shaped yard,
inmates, picnic tables, chess players, and another television. In a photograph
depicting the officers' station and part of the South yard, the witness marked
with an "x" the area she was standing in at the time she first observed the hand
gesture. [Exhibit G]. The Spanish television area was marked in other
photographs by the witness, but she did not mark the photographs to show where
she was standing relative to the area. [
Exhibits C and D]. What could be gleaned from her testimony,
however, was that the Spanish television area was to her right, along a curved
sight line, more than a courtroom length away. The officers' station, however,
was within feet.
Immediately after she saw the hand gesture, she turned back to the officers'
station in order to secure assistance. She had interpreted the hand movement as
an "unnecessary one" that was out of synch with normal movements you would see
in relation to sporting activity for example. Thus, she concluded at the time
that "somebody was being harmed," but did not see that Claimant was injured.
She discovered that "someone" was injured later because she saw blood on her
sergeant's shirt. She told officers at the station that she observed the inmate
who had walked quickly away putting something in the drain, in order that the
area could be secured for a search. After she spoke to the officers at the
station she observed some of them going to the drain, and others going to other
areas. She was in the South yard for "a few minutes," but was removed from the
South yard by her supervisors because she had "pointed out who did it."
Officer Jeffrey-Williams indicated she was familiar with the DOCS employee
manual, and had received the manual during her training at the academy. At
trial, the witness was shown Section 7 concerning the supervision of inmates.
[Exhibit J]. Section 7.19 of the manual provides that "[w]hen two or more
inmates engage in a fight, witnessing employees with necessary help shall
separate the inmates at once and the ranking security officer shall supervise
the immediate confinement of the inmates involved . . . "
She agreed that based upon her training and experience, and given
her suspicions concerning what she observed, she went to get help as the manual
On cross-examination, the witness could not say what the "necessary equipment"
was for the assignment as rover. She conceded she was not carrying a radio, a
baton, or handcuffs, but could not say that this was material and necessary
equipment for a rover. She also said that what was "necessary" depended on
circumstances. For example, a "baton during a yard riot would do nothing." She
repeated that physical intervention under the circumstances she observed was not
appropriate but rather "getting necessary backup" was the better course. She
didn't have a radio to communicate the information, but indicated that in the
situation presented she was "not walking" when she returned to the officers'
station for necessary backup. She described the assistance from other officers
as arriving within "seconds." She also repeated that although she could not
recall how many officers were in the yard, she knew she had not been alone prior
to the incident.
Officer Robert Melville, a 16-year DOCS employee, also testified. He indicated
that on August 30, 2000 he was assigned to the South yard - his "regular"
assignment - as he had been assigned there since September 1989. He recalled
working with his "regular partner" Officer Gierman, and from 6:00 p.m. on he
remembered his brother Tom working there as well as an extra. He also
remembered that Officer Jeffrey-Williams was assigned as an extra on that day.
The duties and responsibilities for an extra, versus someone regularly assigned
to the yard, are "not exactly the same" he explained. "The basic running of the
yard is left to those who are assigned there on a daily basis", entailing
controlling entries in and out of the yard occurring every 15 minutes, passes,
and head counts within the yard also approximately every 15 minutes. The head
count is based on the passes, that are handed to the officer as they enter the
yard. He said there were 215 inmates on the South yard on that date.
Officer Melville said that in terms of equipment on August 30, 2000, he had "a
set of yard keys and a ‘PAS' radio." The PAS radio, he explained, is a
personal alarm-system device, that has only one-way communication from the
bearer to "the arsenal" - "you cannot communicate with anybody else . . . . If
at any time during the day you feel you need assistance it has a pin on the
top," which may be pulled to activate an alarm - a Code 10 - that is heard in
the arsenal. Each radio is assigned a number. When the pin is pulled, the
number "blinks" at the arsenal "so they know where to send help." At Fishkill,
he said, if an officer is at a fixed post - i.e.: if the officer is in a fixed
area for the whole day he will be assigned a PAS radio. "One PAS per area." He
said that "radio 1335 is assigned to the South yard every day." On August 30,
2000 Officer Melville said that in addition to the PAS radio regularly assigned
to the South yard, his brother was carrying a two-way radio when he had finished
his regular assignment in the mess hall, and came to the South yard as an extra
at about 6:00 p.m. The two-way radio allowed the bearer to talk to other
people, but the alarm pin it contained would not notify the arsenal where any
emergency was occurring. Two-way radios were used, Officer Melville explained,
by supervisors generally, or officers moving throughout the facility on a
regular basis. No other radios were assigned to the South yard. Officer
Melville said that throughout his entire job assignment at the South yard -
i.e.: since September 1989 - there has only been one PAS radio assigned to the
On the day of the incident, Officer Jeffrey-Williams approached Officer
Melville with a "calm demeanor" and told him - as best Officer Melville could
recall - that two inmates appeared to be involved in "some kind of
confrontation, she pointed out the one inmate who was now out and walking around
the yard, and the other was still in the same area." Officer Melville said that
he - or one of the other officers he could not recall - got on the loudspeaker
and called for the inmate to come to the officers' station. Sergeant Padilla,
one of the supervising officers, was in the yard "toward the end of the
incident, restraining inmate Valentine by grabbing him in a bear hug type
fashion bringing him to the ground."
He did not pull on the PAS pin because the effect of it - getting more officers
to the area - was unnecessary, because they had the situation under control. He
said, "we knew who was involved, we got the aggressor, and we were escorting him
out of the yard, and the supervisor was already on-site; there was no need for
In terms of his awareness that anyone was injured, Officer Melville said that
he became aware that someone was injured when he saw Valentine running across
the yard with a cane toward Agosto; "that's when we could see the blood."
Agosto was already being escorted out of the yard by Officer Melville's brother.
Officer Melville indicated that prior to August 30, 2000 he was familiar with
inmate Valentine since Claimant was on the South yard every day, but had never
had "any problems" with him.
On cross-examination, Officer Melville agreed that Officer Jeffrey-Williams did
not have a radio, and was assigned as an extra. He recalled that she was "just
off" training at the time.
Officer Douglas Gierman, a DOCS employee since 1990 stationed at Fishkill for
the entire period, also testified. On August 30, 2000 he was assigned to the
South yard on the 2:30 to 10:30 shift, his regular assignment, "responsible for
security and maintaining control." He recalled that Officer R. Melville - also
regularly assigned - Officer Jeffrey-Williams, and Officer T. Melville, and
perhaps "two or three extra officers" were working with him on that date. He
said that "normally he carries a set of keys, and Officer R. Melville carries
the PAS." Indeed, during the "9 or 10 years" Officer Gierman had worked with
Officer Melville, Officer Melville had carried the PAS radio assigned. He
remembered that both Officer T. Melville and Sergeant Padilla had two-way
radios, neither of which contained the personal alarm system.
Officer Gierman said that there were 215 inmates on the yard on that date, as
noted in the logbook entry he made. [
Exhibit A]. Officer Gierman briefly described the pass system at
Fishkill. He said that when an inmate leaves his housing unit, he signs out at
a sign-out board, indicating his destination, and the officer issues a pass
indicating the destination and the housing unit he is from. When the inmate
arrives at the yard, Officer Gierman or another officer collects the pass. Once
the "movement ends, which in this case would've been at 6:15, we sign all the
passes, count them, and place them in the ‘pass box.' For every inmate
that comes out, we have a pass."
Officer Gierman did not recall speaking specifically to Officer
Jeffrey-Williams on August 30, 2000. At approximately 6:40 p.m. however, he
recalled that Officer Jeffrey-Williams came over to "notify them that something
was wrong." She pointed out inmate Agosto as he walked away, as well as
Claimant, and Agosto was "seen dropping something into a . . . storm drain." He
saw Officer T. Melville get Agosto, and then inmate Valentine came across the
yard with a cane, and Sergeant Padilla subdued him. Officer Gierman was not
involved in subduing the inmates, or in the retrieval of any contraband.
No other witnesses testified and no other relevant evidence was submitted. 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. Claimant testified that the attack was a surprise,
that his assailant was a friend, and that from the few feet away that Mr. Agosto
stood Claimant did not see the instrument used to cut him. If Claimant had not
observed the instrument, how was a correction officer to see such an instrument
from 20 to 25 feet away. There was no record made to establish that the use of
one or two correction officers to supervise inmates in the South yard is
against penological standards of care, or that the use of one PAS radio for the
South yard area was insufficient. If Correction Officer Jeffrey-Williams
observed an argument, and went back to the station to obtain assistance, whether
that was against penological standards of care was simply not established. When
the assault occurred, it was dealt with in a comprehensive and appropriate
fashion, and immediate medical care was given. 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
case that the State had actual or constructive notice of the
harm that befell him.
Claim Number 105321 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.