SANCHEZ v. THE STATE OF NEW YORK, #2005-019-011, Claim No. 93576
Claimant alleges the State was negligent in failing to prevent his
assault by one or more unidentified fellow inmates. After trial, the court
found claimant did not prove by a preponderance of the evidence that the State
could have reasonably foreseen this attack; claim dismissed.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
JOHN D. B. LEWIS, ESQ.
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General and Joseph F. Romani, Assistant Attorney General, of counsel
June 28, 2005
AFFIRMED 36 AD3D 1065 3D DEPT 2006
See also (multicaptioned
Claimant, Francisco Sanchez, an inmate, brings this claim against the
State of New York (hereinafter "State"), alleging that he was assaulted by one
or more unidentified fellow inmates due to the negligent supervision by the
State Department of Correctional Services (hereinafter "DOCS") at the Elmira
Correctional Facility on December 14, 1995. The unified trial of this claim was
held in the Binghamton District on February 3, 2004.
At trial, claimant testified that on the day of this incident he was
attending a meeting on the second floor in a school building within the Elmira
Correctional Facility (hereinafter "Elmira"). After the meeting, claimant
stated that he was talking to a fellow inmate when he was punched in the face,
pushed down, and slashed from behind with a sharp object across his face, nose,
and around the back of his head by one or more unknown assailants.
Claimant described the location of his attack in the school building as
a classroom area with an "L"-shaped corridor comprised of a longer hallway and a
shorter hallway. The longer of the two hallways was approximately 65 feet long
and had a storage room at the far end. The shorter hallway (which is where the
assault took place) was approximately 10 feet long and contained two other
classrooms and a stairwell. A desk for a correction officer was located at the
point at which the two hallways met. The officer's desk was located facing the
longer hallway with a wall-mounted mirror positioned facing the shorter hallway
so the officer, while stationed at the desk, could see down the shorter hallway.
Claimant stated that all inmates entering the classroom wing before
classes had to pass through a metal detector. On this particular evening
claimant testified there were approximately 116 honor inmates present for
various classes. At approximately 9:20 p.m., after classes had ended, claimant
and other volunteer employee inmates were in the process of closing down and
cleaning the classroom wing as usual. Claimant testified that he had finished
cleaning his room off the shorter hallway and proceeded toward the stairwell,
also in the shorter hallway, when he was attacked.
that although there was a correction officer, identified as Correction Officer
Mark Bartsch, on duty at the time of the assault, said officer was closing up
the storage room which was located at the far end of the longer hallway and
around the corner from the location of claimant's attack in the shorter hallway,
approximately 75 feet away in total. Claimant also testified that the officer
could not use the wall-mounted mirror from his vantage point at the opposite end
of the longer hallway since the one-sided mirror was positioned at the bend in
the hallway for use by an officer at the desk.
After the assault
claimant was transported to the infirmary hospital where he stayed for six or
seven days. Claimant received approximately 40 stitches to the back of his
head, as well as stitches across the top and right-hand side of his face.
Claimant's stitches were removed from his head on December 22, 1995, and his
face on December 29, 1995. Furthermore, claimant's right eye was bandaged for
approximately six or seven days during which time claimant testified he feared
losing the sight in that eye. Claimant also testified that he suffered
substantial pain not only from the initial sharp cut to his face, but from
receiving stitches, the flattening of his eye lid for several months, and pain
in the back of his head for approximately three months. Claimant testified that
he continues to suffer facial twitches and has permanent and visible scarring
across the nose and the right-hand side of his face and the back of his head.
Claimant also testified that after he was released from the hospital he
was placed in involuntary protective custody for approximately five months which
is substantially different from the honor block where he was housed prior
thereto resulting in the loss of privileges and other freedom of movement.
Furthermore, claimant testified that since this incident he is perceived as a
snitch by other inmates, although he is not one. Claimant also states he feels
rejection as people look away from the scarring on his face or stare at him.
During cross-examination, claimant conceded that he never saw his
attacker(s) or a weapon, although he did recall seeing something shiny.
Claimant also admitted that he had no prior disciplinary problems or known
enemies and has never learned the identity of his assailant(s). In fact,
claimant testified that to this day he has no idea of the reasons motivating
In support of his claim, claimant called Robert DeRosa, a
licensed New York State Private Investigator who has acted as a consultant in
correctional facility cases since 1995. Mr. DeRosa is a retired correction
officer from DOCS and a member of the American Correctional Association and
Warden's Association. Mr. DeRosa testified that the actions of the correction
officer on duty this particular evening were inconsistent with the State's duty
to protect inmates from foreseeable harm. Mr. DeRosa agreed with the physical
description by claimant of the classroom wing as an "L"-shaped corridor. Mr.
DeRosa opined that the physical layout of the classroom corridor provided the
unidentified attacker(s) an opportunity to assault claimant in an area that was
out of the line of sight of the correction officer. Mr. DeRosa further opined
that the time of significant inmate movement such as "go-back" is precisely the
time when the correction officer should have been positioned so he could see
both avenues of the corridor. Additionally, Mr. DeRosa criticized Officer
Bartsch's focus on a low priority task of collecting and storing items in the
storage area, rather than observing inmate movement at such a crucial
Mr. DeRosa further testified that a simple architectural
improvement of installing a mirror to allow an officer at either end of the
corridor to see around the corner would have improved the correction officer's
level of sight and therefore his level of supervision. The witness testified
that as a result of the correction officer's distraction and the architectural
insufficiency of the mirror as it was installed, the correction officer could
not respond to this assault until he heard a commotion. Mr. DeRosa testified
that this delay in response gave the attacker(s) time to assault the claimant
and to remain undetected. Mr. DeRosa concluded that this assault was
preventable and that the same was reasonably foreseeable considering this is a
maximum security facility with inmates of high risk and with the number of
assaults that occur in this facility every day.
Mr. DeRosa acknowledged that there is not a standard of unremitting supervision
in correctional facilities. In fact, Mr. DeRosa acknowledged that unescorted
inmate movement is not, in and of itself, inappropriate or negligent and that a
correction officer can leave a post and be distracted performing other duties or
even going to the restroom. Furthermore, he acknowledged that this particular
victim had no prior disciplinary history and no known enemies. Additionally,
Mr. DeRosa conceded that since the assailant(s) here remain unidentified that
there is no way to determine the motive for this attack or whether the
assailant(s) planned this assault based on the activity of the correction
officer on duty. In short, with no known enemies, no prior disciplinary record
and no known assailant, when pressed on cross-examination, this witness had
difficulty explaining how this particular assault was foreseeable. Moreover,
the witness acknowledged that increased staffing and improvements of the
physical plant would not necessarily eliminate all assaults.
next called Correction Officer Mark Bartsch, who was the correction officer on
duty in the classroom wing at the time of this attack. Officer Bartsch
testified that there were also three civilians present on that date and that
each classroom contained a window which was 18 inches by 24 inches. Officer
Bartsch testified that during the evening while classes are in session, he makes
the rounds, checking in all of the classrooms to make sure that order is
maintained. On the date of this assault, Officer Bartsch testified that he
alerted the inmates to prepare to return to the housing unit and that the normal
procedure was for the inmates to exit into the hallway and prepare to discharge.
Officer Bartsch testified that at the time of this assault he was supervising
the return of equipment to the storage room and that while so doing, inmates, as
usual, began to congregate in the hallways and wait at the gate in preparation
for returning to the housing unit. Officer Bartsch testified that while he was
at the storage room, he heard claimant yell out and immediately responded to the
location which was down the "L"-shaped hallway and around the corner,
approximately 75 feet, and radioed for help. He testified that there had been
no prior assaults or problems in this area for five to seven years.
its case the State called Michael McGinnis, the Superintendent at Southport
Correctional Facility since 1996. Mr. McGinnis testified that he had visited
Elmira and the area where this incident took place and had reviewed the
depositions, photographs, and reports pertaining to this assault. It was Mr.
McGinnis's opinion that the inmates in Elmira, a maximum security facility, can
be considered to be "the worst of the worst."
Mr. McGinnis opined that on these facts with unidentified assailant(s) and a
victim with no known enemies the assault was not foreseeable.
A discussion of the applicable law starts with a review of the prior
history of this case which was the subject of a Court of Appeals opinion. By
way of background, the State previously moved for summary judgment dismissing
this claim which was granted by the Hon. Jerome F. Hanifin. (Sanchez v State
of New York, Ct Cl, July 29, 2000, Hanifin, J., Claim No. 93576, Motion Nos.
M-60669 & M-60853, Cross-Motion No. CM-60977). On appeal, the Third
Department affirmed the trial court's dismissal. (Sanchez v State of New
York, 288 AD2d 647). Thereafter, however, the Court of Appeals modified the
order by denying the State's motion for summary judgment and remitting the case
for trial. (Sanchez v State of New York, 99 NY2d 247). More
particularly and as relevant to the determination herein, the Court of Appeals
addressed the issue of foreseeability regarding inmate assaults by stating as
[t]he State owes a duty of care to inmates for foreseeable risks of harm; and
that foreseeability is defined not simply by actual notice but by actual or
constructive notice - by what the "State knew or had reason to know"...,
what the State "is or should be aware" of.... The requisite foreseeability is
as to a "risk of harm"...or "injury- producing occurrence"...or "risk of an
Finally, 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. The mere occurrence of an
inmate assault, without credible evidence that the assault was reasonably
foreseeable, cannot establish the negligence of the
, 99 NY2d at 255, 256 [emphasis in
original; citations omitted]).
Consequently, this court views claimant's
burden of proof to establish liability in this inmate-on-inmate assault case as
requiring the demonstration of the following: (1) the State knew or had reason
to know that this victim was at risk of being assaulted and yet failed to
provide reasonable protection; (2) the State knew or had reason to know that the
assailant(s) were prone to perpetrating such an assault and the State did not
take proper precautionary measures; or (3) the State had ample notice and
opportunity to intervene but did not act.
The first issue is whether
the State knew or had reason to know that the victim was at risk of being
assaulted and yet failed to provide reasonable protection. It was undisputed at
trial that claimant had no known enemies or prior disciplinary history from
which this court could conclude that the State had actual notice that claimant
was at risk of being assaulted. Rather, claimant argues that the State had
reason to know - in other words had constructive notice - of the risk of harm to
claimant by way of its own rules and regulations, knowledge that there is an
increased risk of attacks during times of increased inmate movement such as
"go-backs", and the physical layout of this "L"-shaped hallway, the improper
positioning of this officer to see the entire hallway at all times, as well as
his attention to insignificant matters such as storing items.
at trial established that claimant had been an instructor in these classrooms
and attending this classroom wing for more than two years without incident.
Moreover, Officer Bartsch testified that there had been no prior assaults or
problems in this area for five to seven years. Additionally, the testimony
established that the participants in these evening programs were honor inmates
and, as such, would not be in the evening education program were they not
maintaining relatively discipline free records. Furthermore, there were three
civilians present in the classroom wing at this time providing additional
support. Moreover, according to claimant's own testimony, one of these
civilians was at the officer's desk after this assault. Also, claimant
indicated that he had no known enemies, did not know his assailant(s), and had
no reason to believe he would be attacked. Taken as a whole, although claimant
may have established that there was a general risk present to all inmates due to
the inmate movement and the physical layout of the corridor, the court finds
that under these circumstances the State did not know or have reason to know of
a heightened risk of assault to this victim. To find otherwise would improperly
render the State an insurer of inmate safety as any assault in any "L"-shaped
corridor or hidden corner of this classroom wing or at a time of inmate movement
could be deemed foreseeable. As such, taken as a whole, the court finds that
claimant has failed to establish that the State knew or had reason to know that
claimant was at risk of harm.
The court further finds that claimant has
also failed in establishing the second issue presented, namely whether the State
knew or had reason to know that the assailant(s) were prone to perpetrating such
an assault and failed to take proper precautionary measures. In large part
claimant's theory of liability is contingent on his expert's speculation that
this attack occurred because the assailant(s) knew the officer was at the far
end of the longer hallway distracted by a low priority task. Here, however, the
undisputed proof was that the assailant(s) have never been identified. As such,
there is no proof in this record that the attacker(s) knew the exact location or
actions of the officer or that his usual routine included being at the storage
area or, assuming such knowledge, that such was the basis for the attack.
Consequently, the motivation behind the assailant(s) timing of this assault of
claimant at that location without more remains at best pure speculation.
Additionally, the inmate participants in attendance that evening were honor
inmates possessing relatively discipline-free records. Although one or more of
these honor inmates were, in hindsight, obviously the assailant(s), the State
had no reason to know that any of them were prone to perpetrating this assault
other than the normal general risk associated with any inmate. To the contrary,
by virtue of their eligibility for these evening programs, it is reasonable to
assume that this group of inmates was less likely to perpetrate such violent
acts. The court finds that the State did not know or have reason to know that
the unidentified assailant(s) were prone to perpetrating such an assault.
Next, the court must consider whether the State had ample notice and
the opportunity to intervene for the purpose of protecting the claimant but
failed to do so. Here, the proof established that the attack lasted
approximately 20 seconds. Correction Officer Bartsch was located approximately
75 feet from where the incident took place, albeit around a corner. However, by
all accounts, Officer Bartsch was able to respond to the scene in less than a
minute. Considering this assault only lasted approximately 20 seconds, the
court finds that the officer's location or actions at the other end of the hall
at the time of the assault did not constitute negligence.
the court finds claimant's allegations that the State should have provided
additional officers in the classroom wing and/or hallways to be without merit.
There were plenty of locations where this assault could have occurred within
this classroom wing that would be out of sight of even more than one officer,
such as the stairwell or in one of the classrooms. Quite simply, there is no
proof in this record that a second or even a third officer would have prevented
this assault since, given the physical layout nature of this classroom wing, it
is hardly possible for even more than one correction officer to have been
viewing all inmates, in all areas, at all times, short of requiring an officer
in every classroom, stairwell, closet, and hallway. To require the State to
provide such additional manpower and supervision in this location in light of
the lack of any prior assaults in this area and given the relatively
discipline-free records of the inmates attending these programs would improperly
render the State an insurer of inmate safety and require unremitting supervision
of inmates at all times.
Finally, claimant's arguments regarding the
applicability of 9 NYCRR 7003.2 and 7003.4 warrant discussion. As noted by my
colleague, the Hon. Judith A. Hard, there is a clear distinction between local
jails and State correctional facilities, and DOCS has promulgated regulations
that incorporate that distinction. (Lamm v State of New York
, Ct Cl,
February 28, 2005, Hard, J., Claim No. 99321 [UID No. 2005-032-500]; Correction
Law §§ 2, 500 et seq.; 7 NYCRR 1.5).
As such, although local jail regulations may be of some guidance to State
correctional facilities, they are not a requirement for State correctional
facilities. Thus, in this court's view, the "active supervision" requirement is
inapplicable to State correctional facilities. Nevertheless, the court will
presume for purposes of discussion the applicability or, at a minimum, the
relevancy, of these provisions directed to local correctional facilities.
9 NYCRR 7003.2 (c) defines "active supervision" as meaning "[t]he
immediate availability to prisoners of facility staff responsible for the care
and custody of such prisoners which shall include: (1) uninterrupted ability to
communicate orally with and respond to each prisoner unaided by any electronic
or other artificial amplifying device;...(3) the ability of staff to immediately
respond to emergency situations...." Here, the officer responded to claimant's
call for help and was able to immediately respond to the emergency situation
presented. The court finds that the State satisfied the duty of "active
supervision" as defined by 9 NYCRR 7003.2.
With respect to 9 NYCRR
7003.4 (b), this provision relates to supervision of prisoners outside facility
housing areas and states that "[t]he chief administrative officer may determine
that supervision, other than active supervision
, is required for
prisoners participating in activities outside facility housing areas."
(Emphasis added). However, under the circumstances presented here, namely the
presence in a classroom wing of honor inmates who have had no record of assaults
for at least five years and no known history applicable to claimant himself, the
court finds that the State
was not obligated to provide any supervision
"other than active supervision" as set forth in 9 NYCRR 7003.4 (b).
sum, based upon the foregoing, the court finds that the claimant has not proven
by a preponderance of the evidence that this attack was reasonably foreseeable.
In other words, there is nothing in this record to show that the assault on
claimant was anything other than a random event of inmate violence by another
inmate(s). The court does not believe that the State had notice, actual or
constructive, that this claimant was at risk of harm and consequently did not
breach any specific duty of safety or protection owed to him. Consequently, the
court is satisfied that Elmira officials acted reasonably and appropriately in
providing claimant with a relatively safe prison environment.
motions on which the court previously reserved or which not previously
determined at trial, are hereby denied.
Consequently, Claim No. 93576 is
ENTER JUDGMENT ACCORDINGLY.
June 28, 2005
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
Unless otherwise indicated, all
quotations are from the court's trial notes.
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