New York State Court of Claims

New York State Court of Claims

ROSARIO v. THE STATE OF NEW YORK, #2006-013-517, Claim No. 97663, Motion Nos. (M-69732, M-70349)


The State failed to use reasonable care to protect Claimant from the foreseeable risk of harm when it failed to place him in protective custody after Claimant notified the authorities of specific threats. Accordingly, the State is liable for injuries sustained by Claimant when he was assaulted by another inmate.

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):
(M-69732, M-70349)
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 12, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from an inmate-on-inmate assault at the Attica Correctional Facility (Attica) on June 14, 1996 at approximately 9:40 p.m. The trial of this claim was bifurcated and this decision addresses issues related solely to liability.
Claimant was standing in the “go back” line waiting to return to his cell in D Block when a fellow inmate named Lopez slashed him on his right cheek, inflicting an 8-inch gaping wound which needed 39 sutures to close. Another inmate named Williams was observed stooping down, picking up an object and throwing it into the grass in the recreation yard. A subsequent search of the yard failed to recover any weapon (Exhibit 10).
Generally speaking, an inmate claimant’s criminal history is not relevant to the determination of claims in this Court, unless it implicates the veracity of testimony or the authen-ticity of documents. Here, however, the issue has been raised and is accordingly recited and addressed below. Claimant had been arrested, tried and convicted on charges of Robbery in the 2nd and 3rd degrees. While free pending sentencing, he opted not to appear on the date set for him to be sentenced.
When he failed to appear, he was sentenced in absentia to a term of 7½ to 15 years.
Some time later he was arrested on an unrelated charge and provided a false name, Louis Rosario, to the arresting officers. He used the same false name in criminal court when he pled guilty to the subsequent crime and was sentenced under the name of Louis Rosario. At some point in time, unclear in this record, the authorities discovered this deception and the record was corrected. Nonetheless, this claim was filed under the alias Louis Rosario, with the “a/k/a” reflecting Claimant’s real name.
When Claimant arrived at Attica in December 1995, he was assigned to A Block, having stated during this processing that he had no known enemies. He has maintained throughout the pendency of this claim that he was never a member of any gang, more particularly the Latin Kings, and the Defendant never established that he was, or ever had been, a gang member. In fact, the Defendant’s fact witness agreed that the State’s investigation of this incident had failed to find any evidence of gang involvement by Claimant.
While housed in A Block, he apparently was counseling another inmate who had been marked by the Latin Kings, or another gang known as the Rat Hunters, as someone who needed to be disciplined, and Claimant allegedly advised this other inmate to seek protective custody. This information got back to the Latin Kings and, according to Claimant, in April of 1996 he overheard two inmates, known to him as “Panama” and “Negro,” discussing what he interpreted as a threat toward him. The discussion involved the Latin Kings and the fact that they had put out a “hit” on an inmate (inferentially Claimant) who had been advising another inmate to seek protective custody. Claimant immediately concluded that he was the target of this “hit” and wrote to the A Block sergeant about his concern for his personal safety. The next day he was taken to see Sgt. Reiner, to whom he related his concerns and gave him the names of Panama and Negro as the inmates who were discussing the threat against him. Sgt. Reiner found Claimant and the threats to be credible and had him moved out of A Block that day and assigned to B Block, 19 Company, which was safer and was in fact the block to which those inmates seeking voluntary protective custody, as well as those placed in involuntary protective custody, were housed in designated cells set aside for that purpose.
Claimant remained in what was essentially keeplock confinement for a few days, which ended after he penned a letter to Deputy Superintendent of Security Donnelly requesting to be released into B Block general population, stating that he did not feel he was in danger there. Apparently his request was granted and he functioned without incident in that block until he was administratively transferred to D Block on June 5, 1996. He stated that he had not been advised that he was being transferred but he did not want, nor had he requested, the transfer. While at chow that evening, he claimed to have seen, and been seen by, some inmates whom he believed were gang members.

According to the record, Claimant immediately wrote to the Block sergeant and on June 6 was interviewed by Sergeant (now Captain) Greis, to whom he reiterated his concerns for his safety if he remained on D Block. In the course of the interview, Claimant indicated that he felt threatened by two particular inmates in A Block and gave him the cell location of another inmate on D Block who he felt was a threat to him. Sgt. Greis then referred to his roster of inmates housed in D Block and went to the gallery in the vicinity of the cell location Claimant had provided to him. He then “surmised” the actual cell and then concluded that the inmate housed there did not fit the profile of someone who would be affiliated with the Latin Kings, to wit, he did not appear to be Hispanic. Sgt. Greis did not attempt to do any investigation regarding the two nicknamed inmates (Panama and Negro) in A Block. He felt that since he had only been given their nicknames, which he characterized as being rather common, he concluded that without more specific information, further investigation was unwarranted.
Claimant was housed in D Block, possibly awaiting entry into an academic program
and, according to him, did not leave his cell for mess or any other purpose except to use the yard. He went to the yard solely to use the telephone to call his mother and express to her his concerns for his safety and to request that she contact the facility on his behalf to get him transferred to a safer location. While Sgt. Greis had no present recollection of having done so, he stated that it was his general practice to offer inmates who were in fear of their safety Voluntary Protective Custody (VPC). He felt that Claimant must have refused it since there was nothing further done by him to effectuate the transfer. While generally there is a protective custody waiver that should be signed by an inmate who refuses VPC, there is no record of that having been done by Claimant, and Sgt. Greis, having no specific present recollection, suggested that was because he did not have sufficient information of a tangible, direct threat.
The process for obtaining Voluntary Protective Custody involves multiple administrative levels before it is granted. The inmate must first fill out a request, which is passed to the block sergeant. After his review, it then goes to a correction counselor who supervises the Protective Custody Unit (PCU) and who interviews the inmate. His recommendation is then passed on to a committee headed by the Deputy Superintendent for Security, which makes a recommendation that is reviewed by the Superintendent for final approval. There is nothing in this record which informed me as to the length of time this process takes. I surmise that it was not an immediate process, but conclude that during the time it took for these four levels of review, the inmate would be confined to his cell for safety. In any case, it is clear that even though an inmate requests VPC and goes through the process, his application can be rejected and, even if approved, he may not immediately be relocated to the company or block where inmates in protective custody are housed.
Claimant stated that when he spoke to Sgt. Greis and expressed his fears, Greis allegedly told him that there were ways to alert the correction officers if he felt he was in danger, including looking up, which would somehow catch the attention of the correction officers, and they would respond immediately. Sgt. Greis denied ever communicating or relating such a “plan” to Claimant, nor to any other inmate, since such a maneuver would expose that inmate to the possibility of having his throat slashed and, considering that these types of assaults are over in an instant, such advice is, at the least, incredible. It is improbable that such a plan would be given or recommended as a means of alerting correction officers that an inmate was in danger.
Claimant then wrote a letter to Deputy Superintendent for Security Donnelly, which went unanswered. He also wrote to Attica Superintendent Kelley and to Dennis Waggoner, a counselor at the facility. According to Claimant, all letters went unanswered. On June 12, two days before this incident, he was interviewed by Sgt. Kenneally, who had been directed to speak with Claimant regarding his concerns and perhaps in relation to a telephone call from Claimant’s mother. Sgt. Kenneally memorialized that interview and forwarded it to Capt. Khahaifa (Exhibit 13). During the course of this interview, Claimant stated that he had been seen in D Block mess hall by some inmates from A Block who he knew were members of the Latin Kings, and claimed that they put out the word that he was in D Block and that in order to avoid any problems he was not going to mess hall, but ate in his cell. Claimant also indicated that he did not want protective custody, but just wanted a program that was B Block based. Sgt. Kenneally also did not request that Claimant sign a protective custody waiver, nor did he feel that Involuntary Protective Custody was warranted. He did not undertake any further investigation of Claimant’s assertions and indicated that he did not have the discretion to have him transferred out of D Block.
It is not insignificant to me that the testimony at trial of both Sgt. Greis and Sgt. Reiner established that inmates in A Block, the source of the initial credible threats leading to the transfer to B Block, and inmates housed in D Block, interacted at least for academic programs. The logical inference to be drawn here is that those A Block inmates who were the source of threats to Claimant were able to locate Claimant as being housed in D Block, information that allowed access to perpetrate the assault in question.
Dennis Waggoner, a senior counselor at Attica at the time of this incident, had no recollection of receiving any correspondence from Claimant, and his only contact with him was at the IPC hearing he conducted after the assault. Since Claimant had been assaulted, Waggoner recommended that Claimant be placed in Involuntary Protective Custody.
On the evening of the assault, Claimant went to the yard with the other companies in D Block. While there was nothing before me to indicate how many inmates chose to go to the yard on the evening of June 14, it was estimated that there would generally be 175 to 200 inmates in the yard during any given evening. Some would return during early “go back” so the exact number remaining would be speculative at best. The inmates would file down to the yard and the correction officers, at the direction of the block sergeant, would have three or four inmates per company removed from the line to be pat-frisked and a metal detector wand would then be moved over the selected inmates as an extra precaution. The company would have been allowed into the yard while this transpired.
According to Sgt. Anthony Sebastian, the block sergeant on the night of the assault, the yard was always staffed by at least five correction officers: one was on the platform in an enclosed area with a view of the yard; one was stationed in the shower area; two officers walked the yard; and the fifth one was in the tower. Sgt. Sebastian also indicated that in addition to the four recreation yard officers and the tower officer, there were two additional officers located in an area referred to as Upper Times Square. These two officers were required to observe all the yards when they were in use and to alert staff of potential and actual problems in a specific yard. They had a video camera with which to record a disturbance should one occur. Because of the spontaneity of assaults such as the one at bar, and the brevity of the action, according to both this witness and the State’s expert, it is almost impossible to record these events. He was unable to recall who was on duty that particular night but he recalled that it was properly staffed.
Sgt. Sebastian recalled that he had been informed by the platform officer that there had been a slashing and he immediately went to the yard entrance where he saw Claimant. Claimant identified the inmate who attacked him as one Peter Lopez and stated that he had observed a second inmate reach on the ground and toss something into the grass. He stated that Claimant refused Voluntary Protective Custody and that he was the one who recommended that he be placed in Involuntary Protective Custody. Claimant was then escorted to the infirmary at the prison hospital for treatment. Sgt. Sebastian recalled that when he observed inmate Lopez, he had a slight cut on his thumb which could have resulted from a sharp instrument, albeit not necessarily a razor.
Danial Victor was the correction officer who occupied the platform on the night of the assault and was unaware that an assault had occurred until Claimant appeared at the front of the door and reported it to him. At the time the incident occurred the inmates were in line to go back to their companies since the yard was closing for the night. He observed the wound and directed Correction Officers Courtwright and Carreiaro to escort Claimant into the block (Exhibit 11). At trial Correction Officer Victor was unable to recall the names of any of the other correction officers who were on duty that evening but was certain that there had been a full complement of staff.
He was unaware that Claimant had reported that he had been threatened, or for that matter anything else with respect to Claimant’s concerns.
Claimant’s expert, Robert DeRosa, testified on several aspects of what he believed to be violations of accepted penological practices and procedures implemented, or which should have been implemented, by the Defendant. Mr. DeRosa had served in the New York City Department of Correction for 26 years and held the position of, among other things, warden of the Anna M. Koss Detention Center for Men at Rikers Island, as well as chief of compliance for the New York City Department of Correction. It was his opinion that the security measures in practice at the time of the assault deviated from generally accepted practices and procedures. He reiterated the various ways that Claimant put the facility on notice of the danger he faced.
According to Mr. DeRosa, the Defendant failed to properly investigate the situation, either to substantiate what Claimant reported or to determine that the facts he provided were unsupported. In addition, he opined that the Defendant’s Department of Correctional Services’ (DOCS) own directives were not followed on their face, since Claimant qualified for either Voluntary or Involuntary Protective Custody because his physical well being was in danger (Exhibits 6 & 17). He specifically called attention to the fact that the DOCS directive (Exhibit 6) and the Attica institutional order (Exhibit 17) both provide that an inmate who is a potential victim should be considered for protective custody, and the facility had a duty to properly investigate his concerns. More particularly, Claimant had provided specific names and locations to various individuals and at best the investigation was cursory.
Prior to addressing the issues of liability, the Claimant seeks to have me strike the Defendant’s answer and enter a judgment in his favor for the Defendant’s alleged willful failure to disclose certain information that was the subject of discovery demands and prior motion practice (CPLR 3126[3]). Alternatively, Claimant would have me draw a negative inference that the purportedly undisclosed and now allegedly purged documents would have contained probative information in Claimant’s favor on the issue of liability. There is no probative testimony before me that this information was destroyed. I was not persuaded that a formal listing of gang members existed, but rather that information relating to gang affiliation would be contained in the individual folder of an inmate upon his transfer to Attica. I note similar testimony affirming this practice by Sing Sing Correctional Facility Superintendent Greiner in Savoca v State of New York (Ct Cl, UID #2003-010-037, Claim No. 98982, Dec. 3, 2003, Ruderman, J.).
Claimant argues that had such a listing been maintained, it might “be possible” to determine the residences of those inmates suspected of gang activity and find their cell locations, and maybe it would show that inmates involved with gangs could be shown to be more predominant in certain blocks.
Claimant also requested a negative inference for the Defendant’s failure to have called Captain Khahaifa or Captain James to testify. Selected portions of the deposition of Captain Khahaifa were stipulated into evidence as Claimant’s Exhibit 36 and, as Defendant cogently observes, such witness(es) could have been subpoenaed by Claimant himself.
Claimant’s applications to strike the answer are denied, and I decline the invitation to draw the negative inferences requested. Accordingly, Motion Nos. M-69732 and M-70349 are both now denied.
Attica Superintendent Conway, appearing as an expert witness for the Defendant, testified that he believed Claimant to be an experienced manipulator and someone who knew how to use the system, specifically providing just enough information to be moved within Attica. Thus Superintendent Conway suggested that whatever notifications of threats that Claimant made were in essence untrustworthy. These inferences are drawn primarily from Claimant’s use of an alias as described above with respect to the second conviction (see supra note 1), and his failure to appear at the time of sentencing for his first conviction.
He also opines, not surprisingly, that the information provided by Claimant was insufficient to allow him to be placed in Involuntary Protective Custody and reiterates that Claimant had refused Voluntary Protective Custody (VPC). Superintendent Conway testified that not every inmate who requests VPC has that request granted, and that merely reciting a general threat of fear from the Latin Kings or the Bloods, or any gang, is not enough to obtain protective custody. Rather, he said, it is necessary to be more specific as to the source of the threats, implying, if not denigrating, the naming of Panama and Negro and the putative cell location as being insufficiently specific.
While that testimony was troublesome and certainly not persuasive, even more troubling was Superintendent Conway’s inferences regarding Claimant’s behavior, suggesting that his report of this threat was untrustworthy and unreliable. Significantly, he acknowledged that here there was nothing in Claimant’s file that suggested or showed a record of manipulation, and, on cross-examination, Superintendent Conway testified that he had not concluded that Claimant was manipulative. This testimony was equivocal, and I am unable to give it much credence.
I do not ignore one plausible explanation that the Defendant provided when explaining its multiple four-level administrative approval system for placement in VPC on the theory that on occasion predatory inmates sometimes attempt to get into protective custody to access their prey. But here Claimant’s initial transfer to B Block, based upon his report of threats, was not viewed by the authorities as being of questionable validity, and there is nothing in this record that allows a scintilla of support that the naming of Panama and Negro and reporting the threat was devious or concocted.
Judge Nicholas V. Midey, Jr., in Gangler v State of New York (Ct Cl, UID #2006-009-159, Claim No. 96352, March 29, 2006), has succinctly summarized the applicable law:
It is well settled that the State is required to use reasonable care to protect inmates of its correctional facilities from the foreseeable risk of harm (see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risk of harm includes the risk of attack by other prisoners (see Littlejohn v State of New York, 218 AD2d 833). The duty to protect inmates from the risk of attack by other prisoners, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The scope of the defendant's duty of care is to exercise reasonable care to prevent attacks which are reasonably foreseeable (Sanchez v State of New York, supra). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State knew, but also "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" (Sanchez v State of New York, supra at 254 [emphasis in original]). Accordingly, "[t]he mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, supra at 256).

Liability is predicated in part upon allegations that the Defendant failed to exercise reasonable care in assessing, and responding to, the threat to Claimant’s safety. Here, mindful of the foreseeability discussion by the Court of Appeals in Sanchez v State of New York (99 NY2d 247, supra), the State may be cast in liability because it had notice, whether defined as actual or constructive, of an unreasonable risk of an attack. Claimant had been placed in a more protected environment by the Defendant and then was moved out of the more secure block, seemingly for reasons that disregarded, or at least failed to consider, the threats of which the Defendant had been placed on notice. The evidence before me demonstrated that at the relevant period in question, there was room (available cell[s]) in B Block, and the putative reason(s) for Claimant’s transfer, i.e., for a program, was unrelated to the capacity of B Block (see Exhibits 1 and 3, and deposition testimony of Captain Khahaifa - Exhibit 36, pp 34-39 - contradicting Sgt. Greis [see supra note 3]). Moreover, Superintendent Conway did state that it was his opinion that the investigation by Sgt. Greis was “ineffective.” In addition, the acknowledged interaction of inmates housed in A and D Blocks placed Claimant in the foreseeably dangerous risk of encountering a population including gang members who had previously made credible threats against him.
And thus, after Claimant notified the authorities of the threats he perceived and provided the nicknames of the purported plotters, irrespective of the supposed commonality of such nicknames, the Defendant may be held liable for injuries sustained in an assault by another inmate for a breach of a duty of care it owed to the Claimant. The instant claim is clearly distinguishable from the finding in Savoca v State of New York (Ct Cl, UID #2003-010-037, Claim No. 98982, Dec. 3, 2003, Ruderman, J., supra) because here there was a specific threat from two named (albeit nicknamed) individuals, not general allegations of problems with a particular gang or gangs. This was a specific threat. I find that such duty existed, the risk of harm to Claimant was reasonably foreseeable and the Defendant had the ability and duty to prevent the assault, which I find they could have accomplished by placing Claimant in protective custody. Given the specificity of the threats, and the provision of the nicknames of the putative protagonists, I find that the State breached its duty to this Claimant under these circumstances, and the harm and injury he sustained was a reasonably foreseeable hazard.
Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates. This does not open the floodgates of putative liability to the State for every assault upon an inmate by another, and does not render the State an insurer of inmate safety, but rather is limited to the specific risk of harm here, a risk that was reasonably foreseeable.
Unlike my holding in Shields v State of New York (Ct Cl, UID #2005-013-504, Claim No. 98208, Sept. 30, 2005), I find that evidence was presented that distinguishes this unfortunate assault from those present every day at any correctional facility. I do not predicate liability on a finding that there was an absence of supervision in the Attica Yard which allowed the incident to happen undetected. I also decline to find that the mere presence of a sharp instrument that was used in this incident is evidence that the yard and the inmates were not adequately searched. To the extent that Claimant’s expert posited a theory that random searches were obviously ineffective or that staffing was inadequate, such a proposition is rejected. I find no duty to utilize magnetometers for every ingress and egress from recreation yards or to impose some greater degree of supervision with some number of additional officers. In that regard, Defendant proffered decisions in two claims where Mr. DeRosa’s opinion was rejected, inter alia, because his expertise and opinions were based upon standards for prisons such as New York City’s Rikers Island, and not for State correctional facilities (Jones v State of New York, Ct Cl, UID #2005-010-040, Claim No. 100171, Aug. 24, 2005, Ruderman, J.; Evans v State of New York, Ct Cl, UID # 2005-010-069; Claim No. 100170, Jan. 31, 2006, Ruderman, J.). My findings here do not rely upon these opinions of Mr. DeRosa, and thus these decisions are inapposite.
Claimant asserts that the Defendant deviated from standard principles of penology and its own policies, specifically including the involuntary placement in protective custody of an inmate who is a potential victim (see Section III of Classification 3.402, Protective Custody and Involuntary Protective Custody, Exhibit 46; and Directive 4948, Exhibit 6). He contends, and I so find, that DOCS was on notice, and reasonably should have known that Claimant was a potential victim. The unilateral transfer of Claimant from the relatively safe haven of B Block, when space was not quantifiably a factor, and with the ostensible reasoning of access to a program being so equivocal, followed by the failure to have investigated the potentially verifiable threat, failing to have checked the nickname list and the gossamer review of the inmate housed in the cell location provided by Claimant, followed by the failure to place him in Involuntary Protective Custody, collectively preponderate to implicate the State’s culpability here.
The State’s failure to have adequately responded to the specific threats of foreseeable harm of which it was on notice casts it in liability for Claimant’s injuries. To the extent that Defendant suggests the Claimant’s culpable conduct in failing to seek Voluntary Protective Custody, it is rejected. Indeed, that argument is somewhat ironic in that the mere advice that Claimant gave to another inmate to seek Voluntary Protective Custody is what led to the threats, initial block transfer and ultimately the slashing in question. Claimant engaged in no culpable conduct of his own, and I find no offset for the conduct of the perpetrator, an inmate who was under the complete care and control of the Defendant.
Accordingly, the Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. Any motions not heretofore ruled upon are hereby denied. This matter will be set down for trial on the issue of damages as soon as practicable.

December 12, 2006
Rochester, New York

Judge of the Court of Claims

  1. [1]Claimant’s real name is Salvador Garcia, and it was under that name that he had been tried and convicted for the robbery charges.
  2. [2]It is noted that gang members will wear the colors of their gangs and that yellow is the color for the Latin Kings. This is not a foolproof method of identification, since gangs utilize common colors such as yellow, red and blue, all of which are colors also worn by many non-gang members.
  3. [3]Sgt. Greis stated that the reason Claimant had been transferred to D Block was for enrollment in an academic program and to make room for another inmate on B Block who was placed in protective custody.
  4. [4]The Defendant’s objections relating to the admissibility of certain portions of Victor’s deposition testimony are denied, and Exhibit 30 is now admitted into evidence.
  5. [5]Decisions and selected orders of the New York State Court of Claims are available on the Internet at