In this claim, claimant alleges that the Department of Correctional Services
(hereinafter “DOCS”) failed in its duty to provide him with
reasonable protection from assault by another inmate at a time when he was
incarcerated at Auburn Correctional Facility. Specifically, claimant seeks
damages for injuries suffered in an attack which occurred on July 31, 2003 at
the facility. The trial of this claim was bifurcated, and this decision is
therefore limited to the issue of liability.
Claimant testified that he arrived at Auburn Correctional Facility on June 30,
2003, and at that time he had no known enemies within the system. On July 17,
2003 claimant was attacked by an inmate Castro. Claimant testified that at the
time of his assault he did not know inmate Castro, nor did he know the reason
for the attack upon him. Claimant was subsequently found guilty in an
administrative hearing of violating prison rules, and was sentenced to 30 days
of keeplock, beginning on July 17, 2003. Claimant started to serve this
keeplock sentence in his cell, which was located on the “B Block”,
in cell B-08-08.
While he was restricted to keeplock status, one Sergeant Sigona (who did not
testify at trial) interviewed claimant and made a recommendation that he be
placed in involuntary protective custody (“IPC”) (Exhibit 6).
Sergeant Sigona had apparently received confidential information that the
assault which occurred on July 17th was the result of a contract made by another
inmate on claimant’s life, and that claimant was still in danger of
assault (Exhibit 4).
On this same date, July 22, 2003, claimant waived protective custody
(“PC”). Claimant testified that he refused PC because other inmates
view a PC inmate as an informer or “snitch”. Nevertheless, the
recommendation by Sergeant Sigona satisfied a precondition that had to exist
before an inmate could be placed in IPC. Based upon Sergeant Sigona’s
recommendation, an IPC hearing was commenced on July 27, 2003, which was
presided by Lieutenant Quinn.
Claimant testified that at this hearing, Lieutenant Quinn reviewed the warning
note (Exhibit 4), as well as a confidential tape. Claimant further
testified that Lieutenant Quinn advised him of the contents of both the note and
tape, and claimant learned at this hearing for the first time that one inmate
Hortas had put out the contract for the prior assault on July 17th, and was the
person who had issued the threats against him. According to claimant,
Lieutenant Quinn told claimant that he (Lieutenant Quinn) was aware that
claimant was seeing the wife of inmate Hortas, and that is why inmate Hortas had
put out the contract on claimant’s life.
Lieutenant Quinn also testified at trial, but he had no personal recollection
of these proceedings, other than receiving the recommendation from Sergeant
On this date (July 27, 2003), claimant was ordered confined pending conclusion
of the IPC hearing. Claimant was transferred to a cell in C-15 (the IPC/PC
gallery), and was confined to his IPC cell, C-15-37.
Claimant acknowledged at trial that during this time, and even prior to the
assault which occurred on July 17, 2003, he had been corresponding with one
Marilyn Wandersee. Claimant testified that he received a visit from Ms.
Wandersee on July 29, 2003, while he was still housed in the IPC/PC gallery.
Claimant further testified that it was only at this point in time, during her
visit of July 29, 2003, that Ms. Wandersee informed him that inmate Hortas, also
known as “Chino”, was her husband, and that inmate Hortas was aware
of her relationship with claimant. Claimant admitted that once he became aware
of this information, he did not advise any facility officials or officers of
Claimant then testified that two days later, on July 31, 2003, he was
transferred to C-block, and specifically to cell C-12-25. At approximately 3:45
p.m. that day, claimant was released from his cell to go to the Main Yard for
recreation. Shortly after entering the yard, claimant was attacked by inmate
Hortas, sustaining personal injuries.
Craig C. Gummerson, a captain at Auburn Correctional Facility, also testified.
Captain Gummerson confirmed the fact that claimant was transferred from the
IPC/PC gallery to his cell (C-12-25) on July 31, 2003, pursuant to his order.
Captain Gummerson confirmed that the transfer to this particular cell would not
and should not have affected either claimant’s existing keeplock sentence,
or his pending IPC status. In other words, even though claimant was being
transferred to a general population cell, he was still restricted to cell
confinement due to both his keeplock status and his confinement pending a final
determination on IPC.
Captain Gummerson further testified that the documentation regarding
claimant’s pending IPC status and his keeplock restrictions should have
the inmate, and that
his cell should have been “tagged” with appropriate symbols.
Additionally, this information should have been entered into the log maintained
on that cellblock. Captain Gummerson could provide no explanation as to why
claimant was transferred to the general population cell, and more importantly,
why the documentation pertaining to his restrictions did not
“follow” claimant to his new cell.
Captain Gummerson also confirmed that at this time, inmate Hortas was also
housed on C-block, in cell C-13-10.
Robert DeRosa, an expert on prison supervision and penology, testified on
behalf of claimant. He testified that in his opinion, DOCS failed to apply
generally accepted principles of penology in its supervision of claimant on July
31, 2003, when claimant was assaulted by inmate Hortas. Based on the
confidential information documented by Sergeant Sigona, Mr. DeRosa
testified that the State had information indicating that an assault against
claimant was reasonably foreseeable. Furthermore, since claimant was supposed
to be confined pending a determination on his IPC status, claimant should not
have been permitted to co-mingle with inmates in the general population. In his
opinion, if claimant had been so restricted, the confrontation with inmate
Hortas would not and could not have occurred.
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
(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
(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 (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).
In this particular matter, it is clear, and defendant even acknowledges, that
on July 31, 2003, the date when claimant was assaulted by inmate Hortas,
claimant should have been confined to his cell as a result of the administrative
penalty of 30 days keeplock which had been imposed on him following the initial
assault on July 17, 2003. Had claimant remained confined to his cell as a
result of the keeplock sentence, he would not have been permitted to enter the
Main Yard with general inmate population, and this assault on July 31, 2003
could not have occurred.
Similarly, it has been established that Sergeant Sigona had received
confidential information that a contract had been placed on claimant’s
life prior to July 31, 2003, and the State was aware that claimant was
particularly vulnerable to a risk of assault if he was placed in general
population. As a result of Sergeant Sigona’s determination that claimant
was at serious risk if he was placed in the general population, the necessary
preconditions had been established to justify claimant’s placement into
IPC as a potential victim. In fact, as a result of the July 27, 2003 hearing
held before Lieutenant Quinn, it was determined that claimant should be lodged
in IPC pending a final IPC determination. Following this recommendation, made
on July 27, 2003, claimant was received into the IPC/PC gallery on July 28,
2003, and should have remained confined to his cell pending a final IPC
In other words, on the date of the assault by inmate Hortas on July 31, 2003,
claimant should have been confined to his cell on C-block, pursuant to both his
current keeplock sentence and his IPC status.
Defendant has provided the Court with no explanation whatsoever as to why the
appropriate tags were not affixed to his cell door or why such restrictions were
not entered into the log. The Court must therefore find that proper policies
and procedures, which would have insured that claimant’s status as both a
keeplock prisoner, and pending IPC prisoner were not followed in this instance.
As a result of this failure, claimant was allowed to co-mingle with other
C-block inmates in general population, including inmate Hortas.
Furthermore, the Court finds that the failure to continue the restrictions on
claimant’s status was not the result of any exercise of discretion, but
was purely a ministerial failure, thereby subjecting the defendant to liability
(Hunt v State of New York, 36 AD3d 511).
Additionally, testimony established that the State was aware, at least by July
27, 2003, that claimant was specifically at risk of assault by inmate Hortas,
yet it failed to segregate these two inmates, thereby providing the opportunity
for the two inmates to come into contact with each other.
The Court therefore concludes that the assault against claimant by inmate
Hortas on July 31, 2003 was reasonably foreseeable, and a direct and proximate
result of the State’s failure to take appropriate steps to prevent this
foreseeable assault. The State must therefore respond in damages. Defendant
contends, however, that claimant must share a significant portion of the
responsibility for this assault, due to his acknowledged failure to inform
prison officials of his relationship with Ms. Wandersee, his
assailant’s wife. It is undisputed that as of July 29, 2003 (at the
latest), claimant was aware that Ms. Wandersee was the wife of inmate Hortas,
that inmate Hortas was behind the assault which occurred on July 17, 2003, and
that inmate Hortas continued to be a threat to him.
There is no documentation or other evidence to establish, with certainty, what
was said at the IPC hearing conducted by Lieutenant Quinn on July 27, 2003.
However, there is no question that as of this date, the State did have knowledge
that claimant was at serious risk of assault if he was returned to general
population. The recommendation from Sergeant Sigona establishes this fact.
Therefore, even though claimant was not forthcoming, the State already had
direct knowledge that claimant was at risk of assault and had taken steps to
protect claimant from this risk. Simply stated, the State then failed to follow
through with the appropriate and recommended safeguards for the protection of
claimant. Despite claimant’s silence, the State, therefore, must be held
fully liable for the injuries sustained by him in the July 31, 2003 assault.
Any motions not heretofore ruled upon are hereby denied.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on
the issue of liability in accordance with this decision. This claim will be
scheduled for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.