New York State Court of Claims

New York State Court of Claims

LAMM v. THE STATE OF NEW YORK, #2005-032-500, Claim No. 99321


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:
Barton, Barton & Plotkin, LLPBy: Sherri L. Plotkin, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 28, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, a former inmate at Adirondack Correctional Facility ["ACF"] in Essex County, commenced this action to recover damages for personal injuries sustained in an inmate-on-inmate assault which occurred in April 1998 at ACF. At the time of the assault, claimant was in his room and was attacked by another inmate transferred to claimant's room earlier that day. The circumstances surrounding the claim are as follows. Since at least 1997, claimant had been incarcerated at ACF, a former tuberculosis hospital and now a medium security facility where prisoners share bedrooms without doors. At the time of the assault, claimant's room was located in housing unit C-2, approximately two rooms down and across the hall from the correction officer station [Exhibit 38]. At trial, claimant stated that he was sitting on his bed peeling a grapefruit when he saw a flash of movement and felt his roommate, Nelson Rainey, hit him hard in the face. Claimant testified that he did not fight back and that Rainey hit him repeatedly while the correction officer on duty for the housing unit, Correction Officer Dwayne Stevens, failed to immediately intercede or call for help. Although claimant received a misbehavior report for fighting, the charges were later found unsubstantiated.

Claimant further alleges that not only did Correction Officer Stevens fail to timely respond, but due to claimant's contentious history with Correction Officer Stevens, he retaliated against claimant by making a quid-pro-quo deal with Rainey.[1]
Namely, Rainey was to assault claimant and, in exchange, Rainey would receive a requested transfer. As a result of this assault, claimant received a fractured eye socket and other minor injuries. Thereafter, claimant commenced this action against the State alleging, inter alia, conspiracy to commit assault and battery and negligent supervision of housing unit C-2.[2] After a two-day bench trial, the Court dismisses the claim.
It is axiomatic that claimant bears the burden of establishing his claims by a preponderance of the credible evidence (
see e.g. Zi Guang v State, 263 AD2d 745, 746 [3d Dept 1999]). In the event that the trial evidence weighs so evenly as not to preponderate on either side, the Court must decide against the party with the burden (see 318 East 93, LLC v Ward, 276 AD2d 277, 278 [1st Dept 2000]). In making its determination, the Court weighs the probative force of conflicting evidence, and the relative strength of conflicting inferences that may be drawn therefrom, by assessing the credibility of the witnesses (see McDonald v State, 307 AD2d 687, 688 [2003]; Danka Off. Imaging Co. v General Bus. Supply, 303 AD2d 883, 884 [2003]). It is with these precepts in mind, that the Court addresses the claims against defendant for conspiracy and negligent supervision.
It is well settled that New York does not recognize a claim for civil conspiracy because "a mere conspiracy to commit a [tort] is never of itself a cause of action" (
Alexander & Alexander of N.Y. v Fritzen, 68 NY2d 968 [1986], quoting Brackett v Griswold, 112 NY 454, 467 [1888]). Rather, "allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort" (id.). Thus, "where the conspiracy results in the commission of that which would be an actionable tort, whether committed by one or by many, then the cause of action is the tort, not the conspiracy" (Green v Davies, 182 NY 499, 505 [1905]). Here, even if claimant's version of events were credited, that Correction Officer Stevens told Rainey that he would give him a room reassignment if Rainey assaulted claimant, such allegations would speak only to the underlying tort of assault. [3] Accordingly, claimant's cause of action for conspiracy is dismissed.
Generally, the State owes a duty to protect inmates from attacks by fellow inmates (
see Sanchez v State of New York, 99 NY2d 247, 252 [2002]; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). This duty does not require "unremitting surveillance in all circumstances," nor does it cast defendant in the role of insurer of inmate safety (Sanchez v State of New York, supra at 256). Rather, the State must protect inmates from risks of harm that are reasonably foreseeable, i.e., what defendant knew or should have known (id. at 253, 255). Here, claimant attempted to prove that defendant breached its duty to him in that: Correction Officer Stevens was negligent in the performance of his duties toward claimant; the State employed Correction Officer Stevens when he had had behavioral problems with his supervisors at other facilities; the correction officers on C-2 failed to follow departmental guidelines that required certain officers to sign logbooks; and the State did not follow the local jail regulatory requirement of "active supervision" which is likewise applicable at State correctional facilities such as ACF.
With respect to whether Correction Officer Stevens negligently performed his duties, claimant offers the testimony of Rainey, William Candelario, another inmate from the housing unit, and himself. Claimant states that on the date of his assault his prior roommate, Bruce Shumway, was moved and Rainey was transferred to claimant's room. The prison logbook contradicts claimant's testimony in that Shumway was not moved on the date of claimant's assault. In any event, after Rainey was transferred to claimant's room in the morning, claimant states that he did not see him again until the evening. Claimant testified that Rainey then came back to the room about 9 p.m. and began hitting claimant in their room and the beating continued into the hall. Claimant states that during this time, he saw Correction Officer Stevens "sauntering" down the hall and it took him between 10-15 seconds to walk the 30-40 feet to reach claimant [T:I:46].[4]
Claimant further testified that as Rainey continued to hit claimant, Correction Officer Stevens neither interceded nor pulled his radio pin to summon other officers for help. When Rainey testified, he contradicted part of claimant's version by stating that after his transfer into claimant's room, he stayed in the room part of the day. He also stated that prior to the assault, he asked Correction Officer Stevens for another room and Correction Officer Stevens told him that he would not be able to get a room reassignment unless Rainey took care of claimant. Rainey's testimony, however, was unclear at best and plagued by inconsistencies. For example, although Rainey stated in an inmate accident report that claimant hit him first [Exhibit 13; Exhibit C], Rainey testified at trial that on the evening of the assault, Correction Officer Stevens gave Rainey a direct order to return to his room and that is when he assaulted claimant. During his testimony, Rainey attempted to explain that he made the contrary prior statements because he was afraid [T:II:214-215]. Further, Rainey's testimony was confusing as to how long it took Correction Officer Stevens to respond to the fight. Rainey estimated that it took approximately 7-10 minutes, far in excess of claimant's 10-15 second estimation. For these reasons, and after observing his demeanor, the Court does not credit Rainey's testimony.
Finally, Candelario, an inmate housed on C-2 on the evening of the assault, stated that Rainey had once been his roommate,[5]
and that Candelario had spoken with Rainey regarding his request for a room reassignment.[6] He also stated that claimant had previously come to him for grievance forms as a result of some incidents between claimant and Correction Officer Stevens. Candelario testified that the night of the assault, Correction Officer Stevens told Rainey "this is your problem. Do it" [T:I:141]. Candelario further testified that when the fight broke out, Correction Officer Stevens went back to the correction officer station and did not respond for at least 5-15 minutes [T:I:138]. Again, this estimation far exceeds claimant's estimate of 10-15 seconds.
In contradiction of this testimony, defendant offered the testimony of Correction Officer Stevens. Correction Officer Stevens acknowledged that during his career, he received a notice of discipline for insubordination and failure to receive counseling. He has not been disciplined for any conduct regarding inmates. Correction Officer Stevens denied telling Rainey to assault claimant and making a deal with Rainey for his transfer to another room. Correction Officer Stevens testified that on the evening of the assault, he was sitting at the correction officers station when he heard "something being thrown or shoved around" [T:II:285]. He stated that it took him approximately 15-30 seconds to reach claimant's room, where he immediately ordered the fighting to stop and called for assistance. He stated that upon hearing his order, Rainey initially stopped fighting, but claimant did not. Once Rainey began to punch claimant again, Correction Officer Stevens, called for help a second time [T:III:32]. Before help arrived, the fight carried into the hall and Correction Officer Stevens yelled for other inmates to stand back. When Correction Officer Stevens turned back around, claimant was on the floor [T:III:33]. Correction Officer Stevens explained that he did not step between the inmates because he was trained to wait for assistance.

During the trial, the Court reserved on numerous defense objections regarding witness testimony as to what Correction Officer Stevens told Rainey or what Candelario overheard. The Court admits these statements not for the truth of the content, but as evidence of the fact that the statements were made (
see People v Davis, 58 NY2d 1102,1103 [1983]). After considering the testimony of all the witnesses, including the observation of their appearance and demeanor, and after considering the numerous inconsistencies in the testimony of claimant and Rainey and claimant and Candelario, the Court determines that the evidence does not preponderate on claimant's side. Therefore, claimant has not met his burden. Even if the Court credited claimant's allegations, the result would not change.
Claimant contends that defendant is liable for Correction Officer Stevens' negligence, i.e., arranging for the assault and then failing to timely respond. Such actions would not support a claim for negligent supervision because claimant has failed to bring forth any evidence that demonstrates Correction Officer Stevens' actions were foreseeable (
see Sanchez v State of New York, supra). While claimant elicited testimony that Correction Officer Stevens had had behavioral problems with his supervisors at another facility, the Court does not determine that Correction Officer Stevens' prior record with his superiors provided adequate notice to defendant that would make Correction Officer Stevens' actions against claimant foreseeable (id.).
Next, with respect to claimant's contention that departmental guidelines requiring certain officers to sign logbooks was not followed on the date of his assault, the Court notes only that claimant did not carry his burden and establish a causal relationship between the failure to complete the log and his assault. Finally, the Court considers claimant's argument regarding the failure to follow the local jail regulatory requirement of "active supervision", and finds it likewise unavailing.

Regulations for management of county jails and penitentiaries require that "active supervision shall be maintained in all facility housing areas * * * when any prisoners are confined in such areas but not secured in their individual housing units" (9 NYCRR 7003.3[a]).[7]
At trial, both parties offered experts on the issue of "active supervision". Initially, the Court notes that qualification of a witness to testify as an expert rests within its discretion and the determination will not be disturbed in the absence of a serious mistake, an error of law or abuse of discretion (see Werner v Sun Oil Co., 65 NY2d 839 [l985]). Further, in a nonjury case, the Court must decide what weight, if any, to accord an expert (see Felt v Olson, 51 NY2d 977 [l980]).
Ernest C. Weber testified on behalf of claimant and based on his experience and background the Court recognizes him as an expert in local correctional facilities.[8]
He opined that one correction officer supervising sixty-one inmates with individual rooms and separate wings was not appropriate for the design of the housing unit [Exhibit 38] and, thus, was not sufficient security for a medium security correctional facility. He also believed that the lack of notation for patrols, roving or otherwise, and the location of the officers station [Exhibit 38], which did not allow the officer to have the uninterrupted ability to orally communicate with each prisoner, did not comport with 9 NYCRR 7003.2 requiring "active supervision". Further, the post description for the officers station for two shifts were deficient in that they did not provide that log entries be made by patrolling officers [Exhibits 26A-26B]. Finally, Weber opined that the officers station needed to be occupied by three officers to satisfy the supervision requirement, and the lack of more correction officers at the station occupied by Correction Officer Stevens was a substantial factor in bringing about claimant's injury.[9]
In contrast, defendant offered the testimony of Barton Tarbox, a watch commander for ACF. Tarbox testified as to the security procedures for ACF, including frequent irregular rounds, roving patrols searching for indicators of unrest, and procedures for reporting any potential problems. After observing his demeanor, the Court finds Tarbox to be the most credible fact witness.

The Superintendent of ACF at the time of trial, Alan Roberts, also testified for defendant. Based on her experience and background, the Court credits this witness as an expert in State correctional facilities.[10]
Roberts opined that regulations promulgated by the Commission of Correction for local or county jails, such as 9 NYCRR 7003, are not applicable to State facilities. Roberts testified, however, that even if they were, ACF provided "active supervision" within the meaning of 9 NYCRR 7003.2 (c).
Roberts testified that this regulation was met because, based on her knowledge from making rounds on C-2, a procedure that took five minutes, the correction officer on duty had the "uninterrupted ability to communicate orally with and respond to each prisoner". Next, during the course of a day, supervisory rounds are made every 30 minutes by housing sergeants, program sergeants, the watch commander and executive members. Further, ACF regularly tests to insure the staff can immediately respond to emergency situations and meet the four minute response requirement from the American Correctional Association. Finally, inasmuch as correction officers are on the floor twenty-four hours a day, the security post is continuously occupied.

Because both the central location of the officers station and the requirement that the correction officer on duty make frequent rounds at irregular intervals afforded proper supervision, Roberts disagreed with Weber's opinion that three correction officers were required on the housing floor due to its configuration. Roberts explained that the security staffing unit within the Department of Correctional Services determines the proper amount of staffing for each facility structure. The determination by that unit is then forwarded to the Commissioner for approval. Here, given Superintendent Roberts' expertise with State correctional facilities, as opposed to Weber's expertise with local jails, the Court determines that Roberts' testimony is more probative on the issue of standards for State correctional facilities such as ACF.

Further, in this Court's view, the Legislature has made a clear distinction between local jails and State correctional facilities (
see Correction Law §§ 2, 500 et seq.) and the Department of Correctional Services has promulgated regulations, approved by the Commission of Correction, that incorporate that distinction (see 7 NYCRR 1.5). While the local jail regulations may be probative of what could be of assistance to State correctional facilities, they are not a requirement for State correctional facilities. Thus, after considering the testimony on this issue, the Court determines that the "active supervision" requirement is inapplicable to State correctional facilities. Even if it is applicable, based on Roberts' testimony that the ACF met the "active supervision" requirements and the security standards of the American Correctional Association, the Court determines that the security was sufficient for a medium B facility where the inmates are heading towards their potential release time. In making this determination, the Court notes that it is unpersuaded by Weber's testimony that the design of ACF, preventing correction officers from seeing into inmates' rooms at all times, requires a different result. In Sanchez, the Court of Appeals observed that "liability cannot be predicated on the mere fact that the officer could not see claimant at the time of the attack" and unremitting surveillance is not required, even in a maximum security facility (id).
As a final matter, this Court does not credit claimant's testimony that he informed the day shift correction officer of his concern regarding Rainey's prior altercation. As such, defendant was not on notice of a potential problem and Rainey's actions were not reasonably foreseeable as required (
Sanchez v State of New York, supra).
Based on the foregoing, the Court determines that claimant failed to establish by a preponderance of the credible evidence that his injuries resulted from defendant's negligent supervision. All motions not heretofore decided are denied.[11]

Accordingly, the claim is dismissed.

Let judgment be entered accordingly.

February 28, 2005
Albany, New York

Judge of the Court of Claims

[1]Claimant indicates that in 1997, as a result of a misbehavior report written by Correction Officer Stevens, he was reprimanded for stealing, and that as a result of a room search in March 1998, claimant filed a grievance against Correction Officer Stevens.
[2]Claimant also brought a claim for medical malpractice as a result of an alleged failure to timely treat his injuries. Inasmuch as claimant failed to present any evidence at trial on this cause of action, the Court deems this cause of action withdrawn and confines its analysis to the remaining causes of action.
[3]Even if claimant's allegations are construed to allege a claim for assault and Stevens participated in the assault by inciting Rainey to act, defendant would not be liable for Stevens' conduct under a theory of respondeat superior (see Steinborn v Himmel, 9 AD3d 531 [3d 2004]). Such actions would be wholly contrary to institutional goals of safety and, therefore, outside the scope of employment and not actionable against defendant (see Spitz v Coughlin, 161 AD2d 1088 [1990]; see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]; Steinborn v Himmel, 9 AD3d 531 [3d 2004] supra).
[4]All references to the trial transcript are referred to as "T" followed by the appropriate volume and page number.
[5]Rainey denies this statement.
[6]Candelario also referred to Rainey as "Randy" and "Lance".

[7]Active supervision shall mean the 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; and

(2) the conducting of supervisory visits at 30-minute intervals;

(3) the ability of staff to immediately respond to emergency situations; and

(4) in any facility housing area in which more than 20 inmates are housed, the continuous occupation of a security post within such housing area. (9 NYCRR 7003.2 [c]).

[8]Mr. Weber previously worked for 27 years at the Nassau County Sheriff's Department. He held various titles including Deputy Undersheriff (Chief of Investigations and Commander and Correctional Administrator); Captain/Commanding Officer (Human Resource Management); and Lieutenant and Sergeant (Assistant to the Sheriff and Commissioner). He was previously a certified jail manager and a certified police instructor. He holds a bachelor of science degree in Criminal Justice/Behavioral Science from the New York Institute of Technology.
[9]Although Weber also opined that Rainey was the aggressor and the lack of a quick response and failure to immediately call for assistance contributed to claimant's injuries, the Court determines however that Stevens' response was reasonable.
[10]She previously served as a Deputy Superintendent and became an auditor with the American Correctional Association. She visited the State correctional facilities in New York to assess whether a facility was operated according to nationwide standards, including security standards. These standards were promulgated by professionals in the field. Every facility in New York is accredited and ACF was accredited in 1998. She also assessed the security standards of state and local facilities in Ohio, Arkansas, Kentucky, Tennessee and Illinois.
[11]The Court admits, however, Exhibits 2 and 15 without redaction as defendant did not further object [T:I:66, 79].