RAMOS v. THE STATE OF NEW YORK, #2007-015-571, Claim No. 111636
Claim for injuries sustained in inmate-on-inmate assault was dismissed
following a trial. Claimant failed to establish that the defendant knew or
should have know of the risk of injury to the claimant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Ronemus & VilenskyBy: Michael B. Ronemus, Esquire
Honorable Andrew M. Cuomo, Attorney General
Glenn C. King,
EsquireAssistant Attorney General
December 31, 2007
See also (multicaptioned
Claimant, Juan Ramos, brings this claim for damages arising out of injuries
allegedly sustained in an inmate-on-inmate assault on September 19, 2003 while
he was incarcerated at Upstate Correctional Facility (Upstate CF). The claim
was tried on October 22, 2007.
Claimant testified that he had been convicted of raping an underage female and
had served fourteen years in prison. Now, at the age of 41, he was released
from prison approximately three months prior to the date of trial. Claimant had
been confined at Upstate CF for approximately one year prior to the date of the
alleged assault. During that time, Correction Officers Mitchell, Bouyea and
Heredia had made derogatory comments to him regarding the nature of the crime
for which he had been convicted. Some of the correction officers had called him
a "child molester" and he recalled specifically that Correction Officer Mitchell
had called him a "baby rapist" on seven or eight occasions. Other inmates as
well had indicated to him their awareness of the nature of the crime for which
he had been committed.
The claimant testified that he was housed in B-33 cell when his former cellmate
was moved and replaced with inmate Espada two weeks prior to the date of the
alleged assault. There were no problems for the first three days he and inmate
Espada bunked together. Inmate Espada then informed the claimant that if he
finds out what the correction officers are saying about him is true, he will
break his hand and poke his eye out with a pen. The claimant testified that he
and Espada gambled for stamps and then for a chain. Espada lost. Claimant,
fearing for his safety, allegedly informed correction officers of the threats
Espada had made. According to the claimant, the correction officers told him
they would talk to the Sergeant, but nothing was ever done.
Claimant testified that he sent three letters to prison officials regarding the
alleged threats. The first, dated September 11, 2003, was directed to the Block
Sergeant (claimant's Exhibit 1). The letter stated the following:
Sir, the reasons I am asking to be remove [sic] is because inmate Espada
keep making threath [sic] towards my well being. Such as I am going to
break your hand or take your eye out if I find out what the C.O.'s are saying
about you is truth [sic].
I ask him which C.O.'s? He say officers Bouyea and Officer L. Heredia.
Please Sir remove me before things gets out of hand or [I'll] be attack
[sic] be [sic] inmate Espada.
The second letter, dated September 17, 2003, was directed to the Deputy of
Security (claimant's Exhibit 2). This letter, like the first, allegedly relayed
threats that Espada had made:
"Such as him wanting to break my hands or break my eye. Because C.O.'s are
going around telling inmates the nature of my crime. As well as Officer Bouyea,
and Officer L. Heredia, Officer Boushie [sic], and Officer J. Hebert,
and Officer Spinner, Officer Odie and Officer Mitchell, and Officer Radideau
Sir please be kind to remove me toward another cell before I am harm
The third letter, dated September 18, 2003, again asks that the claimant be
separated from Espada due to the threats which he had allegedly made (claimant's
Exhibit 3). The claimant also indicated in the letter that he had previously
discussed the matter with Officers Herbert, Spinner, Bouchey, Bouyea, Rabideau
and Heredia and that he had written letters dated September 11, 2003, September
, September 17, 2003 but that
"[n]othing has been don't [sic
] about it."
The claimant testified that he had placed these letters on his cell door for
pick-up by the correction officers but received no response. Copies of the
letters were made using carbon paper.
Claimant testified that in the early morning on September 19, 2003, just one
day after the date of his last letter, he was assaulted by inmate Espada while
he was trying to sleep. The claimant was in the lower bunk when Espada punched
him in the temple near his left eye. The claimant pushed him off and Espada
struck him again. Correction Officer Bouyea and a nurse were at a nearby cell
and Espada stopped the alleged attack when Correction Officer Bouyea arrived.
Claimant testified that although he tried block Espada's punches, he never
struck him. Correction Officer Bouyea instructed another officer to open the
back door to the cell and the claimant was checked for drugs and weapons and
taken to an outside hospital for treatment.
The claimant related that earlier in the evening before the incident occurred
Espada faked a seizure as the claimant was sleeping. The claimant called a
nurse who determined that Espada was "faking".
Defendant's first witness was Lieutenant Steven Salls, a nineteen-year veteran
of the Department of Correctional Services who at the time of the alleged
assault was a Relief Sergeant for the Block Sergeant. Letters written to the
Deputy of Security would be directed to him to be stamped "received" and
processed for further action. Lieutenant Salls testified that he does not
remember the claimant; he does not recall the claimant relating any threats and
he never knew the nature of the crime for which the claimant was imprisoned.
The witness testified that all paper given to inmates is lined. He was shown
the letters received in evidence as claimant's Exhibits "1" through "3" and
concluded that they were not written by an inmate because the paper was unlined.
On cross-examination Lieutenant Salls again denied any recollection of the
claimant. He was shown a fight investigation report, which he admittedly wrote
regarding the subject incident, but denied any independent recollection of the
events contained therein. Lieutenant Salls testified that although he does not
recall reports being directed to him as the result of the subject incident,
incident reports would normally be directed to him by other correction officers.
On redirect examination the witness reiterated that inmates like the claimant
in the special housing unit (SHU) have no paper other than lined paper. Unlined
paper is not permitted. Carbon paper is available in the law library as is
lined paper and legal paper.
He testified that if letters received as claimant's Exhibits "1" through "3"
were received by prison officials, they would be in the claimant's security
file. Lieutenant Salls testified that although an investigator reviewed the
claimant's security file, he did not. There was no testimony regarding the
contents of the claimant's security file.
Bruce Truax was the defendant's next witness. He has been employed by the
Department of Correctional Services as a Correction Officer for eighteen years
and worked at Upstate CF in September of 2003. He testified that he is
familiar with the claimant and the claimant never told him that he felt
threatened for his own safety. He testified that he first learned of the
incident on the date it occurred because he and a nurse were on the cell block.
As he walked past the claimant's cell he saw the claimant and Espada on the
floor punching. Correction Officer Truax gave them both a direct order to stop
fighting. Officer Truax testified that one of the inmates was released to an
outside "rec pen" but that he recalls nothing further.
On cross-examination Officer Truax testified that he knew the claimant from
working on the cell block for approximately one year prior to the incident. He
could recall no conversations with the claimant and he never heard Espada
threaten the claimant before the date of the incident. He did not know the
crime for which the claimant had been convicted nor had he heard other
correction officers or inmates mention the crime for which the claimant had been
convicted. On the date of the incident the witness related that he worked the
6:00 a.m. to 2:00 p.m. shift and reiterated that he witnessed the claimant and
Espada on the ground punching, although he could not state who was punching
whom. The inmates were given several direct orders to stop fighting and Officer
Truax prepared a report regarding the incident which he had not recently
Correction Officer Truax testified that all paper given to inmates is lined
with the exception of the paper behind the carbon paper, which is not lined.
Jason Bouyea was next called to the stand. He has been employed by the
Department of Correctional Services as a Correction Officer since 1996 and was
working at Upstate CF on September 19, 2003. He knew the claimant as an inmate
and testified that he first learned of the incident after it occurred. He never
knew the crime for which the claimant had been convicted and the claimant had
never indicated to him that he felt threatened.
On cross-examination Correction Officer Bouyea testified that he learned of the
claimant's injury from talk within the facility. He could recall no personal
confrontation with the claimant nor could he recall writing a misbehavior report
regarding the claimant subsequent to the alleged incident. Correction Officer
Bouyea then reviewed a document from February 2004 in order to refresh his
recollection. He testified that although he had written the report, he had no
recollection with regard to its content. On the date of the incident, he had
been working the 7:00 a.m. to 3:00 p.m. shift performing his duties of B-Gallery
Officer. He testified that the "A" and "C" gallery officers collected the
inmate mail. He testified that he is not generally aware of the crimes for
which inmates are imprisoned.
Betsy Mitchell-Odeir was next called to testify. She has been employed by the
Department of Correctional Services for fourteen years and has worked at Upstate
CF since June of 1999. She testified that in September of 2003 she"might" have
known the claimant and related that she does not recall the claimant ever
telling her that he felt threatened prior to the date of the incident. She
testified that she never knew the crime for which the claimant had been
imprisoned and never referred to the claimant as a "baby rapist".
On cross-examination the witness testified that the claimant did look familiar
to her, probably from working at Upstate CF. Her duties entailed supervising
inmates in the performance of janitorial duties, which included cleaning cells
and replacing inmates' clothing after a fight. She testified that she does not
know what crime the claimant was convicted of and that she never called the
claimant a "baby rapist" or "child molester". She did not investigate the
incident involving the claimant and became aware of it only after reviewing the
misbehavior report which was issued after it occurred. In this regard the
witness testified that in order to determine her duties for the day, she is
required to review certain misbehavior reports.
Todd Rabideau was defendant's next witness. He is a Correction Officer and has
been employed by the Department of Correctional Services for eighteen years. In
September of 2003 the witness worked in Upstate CF and was familiar with the
claimant as an inmate there. Prior to September 19, 2003 the claimant never
told the witness that he felt threatened and never knew the crime for which the
claimant had been convicted.
On cross-examination Correction Officer Rabideau testified that he could not
recall whether he was working on the date of the incident and did not recall the
incident. He testified that he has only a vague memory of the claimant and does
not recall having any conversations with other correction officers regarding the
incident or with the claimant regarding threats allegedly made by Espada.
Correction Officer Rabideau testified that he assisted with the morning mail
pickup from inmates and never saw letters from the claimant complaining of
Andrew Bouchey was next called to the stand. He has been employed by the
Department of Correctional Services as a Correction Officer for eleven years and
worked at Upstate CF in September of 2003. The witness recalled the claimant
but did not recall the claimant advising him that he felt threatened and was not
aware of the crime for which the claimant had been imprisoned. On
cross-examination Correction Officer Bouchey testified that he is a Resource
Officer assigned to various jobs in various buildings. He worked periodically
in Building 8 where the claimant was housed and testified that the claimant
never told him that he felt threatened. If an inmate had relayed such a threat,
the witness would have advised his superior. He testified that he does not know
inmate Espada and he took no part in the investigation of the subject incident.
Lorenzo Heredia was defendant's next witness. He has been employed by the
Department of Correctional Services for nine years and has worked at Upstate CF
for seven years. He testified that he does not recall claimant complaining of
threats against him and never knew the crime for which the claimant had been
On cross-examination Correction Officer Heredia testified that although he is
an A-Gallery officer, he sometimes "swaps" jobs and works in the B-Gallery where
the claimant was housed. He recalled no letters from the claimant complaining
of threats nor did he recall claimant reporting any fear of assault from another
inmate. The witness testified that he never heard other correction officers
discussing the nature of the claimant's crime.
Jerry Hebert was next called to the stand. He has been employed by the
Department of Correctional Services for eighteen years and has the current rank
of Sergeant. In September of 2003 he was a Correction Officer at Upstate CF.
He testified that the claimant never told him that he felt threatened nor was he
aware of the crime for which the claimant had been imprisoned.
On cross-examination the witness testified that he knew the claimant from
working in the building and he was working on the date the incident occurred.
Upon his arrival on the scene, the claimant was being treated by medical
personnel and he moved Espada to a different cell. He was present when the
Sergeant interviewed the claimant and Espada with regard to the incident but
could not recall what was said during the interview. Correction Officer
Heredia testified that he never received any complaints from the claimant that
he felt threatened by his cellmate. He testified that he was not involved in
collecting inmate mail and never saw any letters from the claimant regarding the
alleged threats from his cellmate. He testified that Officer Truax would have
been the officer to have witnessed the incident because he was the officer
making rounds with the nurse on the morning it allegedly occurred.
In rebuttal the claimant testified that when the law library runs out of lined
paper, they give the inmates unlined paper. He testified that Correction
Officer Bouyea, not Correction Officer Truax, was the officer present with a
nurse in the gallery when the assault occurred. In addition, claimant testified
that he had numerous conversations with Correction Officer Bouyea, one of which
resulted in the issuance of a misbehavior report in February 2004 after the
claimant had complained about the food for the second time in the same day.
The claimant testified that every time Correction Officer Mitchell passed his
cell with porters she called him a "child molester".
Claimant reiterated his testimony that he did complain to Correction Officer
Bouchey about the threats Espada had made before the subject incident occurred.
Lastly, the claimant testified that Correction Officer Heredia had "written-up"
both Espada and the claimant regarding Espada's fake seizure the night before
It is settled that the State has a duty to safeguard inmates even from attacks
by fellow inmates (Sanchez v State of New York, 99 NY2d 247 ; Di
Donato v State of New York, 25 AD3d 944 ). As stated by the Court of
Appeals in Sanchez v State of New York, supra:
"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" (id. at
This duty does not require "unremitting surveillance in all circumstances," nor
does it cast the State in the role of an insurer of inmate safety (Sanchez v
State of New York, 99 NY2d at 256). Rather, the scope of the duty is
limited to risks of harm that are reasonably foreseeable, which includes not
only what the defendant knew but what it should have known (id. at 253,
255; see also Smith v County of Albany, 12 AD3d 912 ;
Elnandes v State of New York, 11 AD3d 828 ).
Here, the question of whether or not the defendant knew or should have known of
the risk of harm to the claimant turns on the Court's assessment of the
credibility of the witnesses. Claimant testified that he verbally notified
various correction officers of the threats made against him by Espada, his
cellmate, prior to the date of the alleged assault but that they failed to
respond or otherwise take action to alleviate the danger. In addition, claimant
alleges that he provided prison authorities written notification of the threats
on September 11, 2003, September 17, 2003 and September 18, 2003 (see
claimant's Exhibits "1" through "3"). Claimant testified that he sent the
letters by leaving them on his cell door for pick up by the correction officers,
which was the customary procedure.
Defendant's witnesses did not directly refute receipt of the written
notifications from the claimant. Lieutenant Salls testified that letters
written to the Deputy Superintendent for Security (see claimant's Exhibit
2) would be directed to him to be stamped "received" and processed for further
action. Lieutenant Salls did not recall the claimant and did not remember being
made aware of any threats against him. He also testified that had Exhibits "1"
through "3" been received by prison officials, they would have been stored in
the claimant's security file. Lieutenant Salls, however, did not review
claimant's security file. Although Lieutenant Salls testified that an
investigator did review the claimant's security file, that individual was not
called to testify. Correction Officer Rabideau testified that he assisted with
the morning mail pickup from inmates and never saw letters from the claimant
complaining of threats.
Although the proof established that the normal method for transmitting written
correspondence involved handing the communication to correction officers who
would visit each cell for that purpose, the officers performing mail collection
duties on September 11, September 17 and September 18, 2003 were not called to
testify. Nor was there testimony from any person familiar with the contents of
the claimant's security file. Thus, the only proof on the issue of mailing is
the claimant's testimony that he handed Exhibits 1 - 3 to a correction officer
consistent with facility procedures.
Lieutenant Salls' testimony that Exhibits 1 - 3 were not written by an inmate
because inmates are not allowed to have unlined paper in SHU is unpersuasive.
Correction Officer Truax testified that inmates are allowed to have carbon paper
which contains unlined paper behind the carbon and the claimant testified that
he used carbon paper to make the copies of the letters in this case. In
addition, the claimant testified in rebuttal that when the supply of lined paper
in the law library is depleted, they provide unlined paper to the inmates.
The defendant did, however, persuasively refute the claimant's proof that he
verbally notified Officers Hebert, Bouchey, Bouyea, Rabideau and Heredia of the
alleged threats made by Espada. Each one of these officers was called to
testify at trial and none could recall any such complaints from the claimant.
In addition, contrary to the claimant's trial testimony, each and every one of
the defendant's witnesses at trial testified that they were unaware of the crime
for which the claimant had been convicted.
Claimant's account of the incident was also undermined by the testimony of
Correction Officers Bouyea and Truax. Although the claimant testified that
Officer Bouyea was first on the scene, Officer Bouyea testified that he first
learned of the incident from talk within the facility. Correction Officer
Truax, on the other hand, testified that it was he, not Officer Bouyea, who was
first on the scene during the course of his rounds with a nurse in the
B-Gallery. The Court finds credible the testimony of the defense witnesses, all
of whom testified that they received no verbal complaints from the claimant
regarding the alleged threats made by Espada. The Court also finds credible the
testimony of Officer Truax that it was he and not Officer Bouyea who was first
on the scene.
The Court is thus presented with a circumstance where claimant's direct
testimony concerning his written notice to prison officials is unrefuted but his
allegation that he verbally communicated the threats allegedly made against him
to various correction officers was denied by each defense witness, as was the
allegation that the officers knew the nature of the claimant's crime. As a
result, resolution of this matter turns on issues of credibility.
There is no proof that Exhibits 1 - 3 were actually delivered into the hands of
prison personnel other than claimant's testimony. The informal process of
handing correspondence to correction officers does not result in any empirical
proof of "mailing," Thus for the claimant to recover the Court must accept as
true his testimony that Exhibits 1 - 3 were written and delivered, by handing
the correspondence to a correction officer, prior to the assault upon him.
However, the defendant's proof convincingly refuted claimant's allegations that
he verbally communicated the threats made against him to correction officers
prior to the assault. The correction officers also uniformly denied claimant's
allegation that they were aware of the nature of his crime. To the extent the
truth and accuracy of claimant's testimony is called into question with respect
to the issue of verbal notice, his credibility is likewise at issue as to the
alleged delivery of written notice to prison officials prior to the assault. As
the only proof of written notice is the claimant's own testimony, this question
of credibility is decisive.
Based upon its observation of the witnesses at trial and the fact that the
defendant's proof disproved significant aspects of claimant's testimony, the
Court finds that claimant's proof is inadequate to establish that prison
officials received notice of the threats made against him prior to the
September 19, 2003 assault by inmate Espada.
Accordingly, the claim is dismissed. Let judgment be entered accordingly.
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
Judge of the
Court of Claims
. Claimant testified that he did not retain a
copy of the letter dated September 15, 2003.