New York State Court of Claims

New York State Court of Claims

VALENTINE v. THE STATE OF NEW YORK, #2004-030-039, Claim No. 105321


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:
November 15, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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, 2004.

Claimant testified that on August 30, 2000 at approximately 6:44 p.m. he was watching television by the "Spanish tv area"[1]
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 property.

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 line.

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. [
See Id].
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, supra). 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, supra); (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, 99 NY2d 247, 253 (2002); see also Flaherty v State of New York, 296 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, supra, at 844.
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 1981).
After Claimant rested, the Defendant made a motion to dismiss based upon Claimant's failure to establish a
prima facie 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 establish a
prima facie 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 backup.
The Court agrees that Claimant did not establish a
prima facie 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. [
See 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 . . . "
[Id]. 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 suggested.
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 South yard.

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 anybody else."

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. [
See 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 establishing a
prima facie 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.

November 15, 2004
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.