New York State Court of Claims

New York State Court of Claims

DOUGLAS v. THE STATE OF NEW YORK, #2007-028-012, Claim No. 108585


Defendant is liable for the injuries suffered by an inmate claimant for the third of three “slashings” that occurred within eleven months, where he had a credible history of involvement with a prison gang, had served as an informant or been perceived to be an informant by the gang, and repeatedly and urgently requested placement in protective custody. Award of $25,000 is made for 5-inch disfiguring scar on his right cheek and minor impairment of vision.

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:
Defendant’s attorney:
BY: Geoffrey Rossi, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 17, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from a series of attacks on Claimant that occurred, he alleges, because the Department of Correctional Services (hereinafter “DOCS”) failed in its duty to provide him with reasonable protection from assault by members of a prison gang. Claimant seeks compensation for the injuries he suffered in an attack that occurred on November 28, 2002 at Elmira Correctional Facility.

At trial, Claimant testified that he entered the State prison system on December 31, 2001, arriving at Downstate Correctional Facility (hereinafter “Downstate”) with 33 stitches on the right side of his face. He suffered those injuries while he was temporarily housed at Rikers Island Correctional Facility, which is owned and operated by the City of New York. During his intake interview at Downstate, Claimant told correction officers that he had been “slashed” at Rikers Island by a member of The Bloods, one of the bigger and most established of prison gangs with members in many different facilities (see e. g. 83 NY Jur 2d Penal & Correctional Institutions §103 [Placement of inmates in administrative segregation or in involuntary protective custody]; Matter of Thomas v Ricks, 290 AD2d 747 [3d Dept 2002][recognizing that correction officers receive training in “unauthorized inmate activities such as prison gangs”).

At trial, Claimant testified that he explained the background of his connection with the Bloods to the Downstate intake officer. From 1998 to 2000, he had been a member of the Bloods gang, but in 2000, when he was facing a lot of prison time on robbery charges, he began going to church and was “saved.” At that point he decided to leave the Bloods, because he “couldn’t serve two masters.”[1] Following his departure from the Bloods, the Inspector General (hereinafter “I.G.”) approached him and asked him to become an agent. Claimant declined, explaining that he had previously known a Blood member who was hired by the I.G., with bad results. On cross-examination, however, Claimant confirmed that he had supplied information to the I.G. before this incident and, in fact, while he was still with the Bloods. Although Claimant had declined to act as an agent for the I.G. on this occasion, he speculated that the Bloods must have assumed he agreed to cooperate, because a few months later he was cut from mouth to ear. A cut at this location is a mark that within the gang world means “snitch.”

Upon arrival at Downstate, Claimant testified, he asked for protective custody because he believed that he, along with his stepson, was a T.O.S. (“Terminate on Sight”) target for the Bloods. He informed the intake officer that the man who cut him on Rikers Island had said, “Wherever you go, there is a T.O.S. on you.” He was informed, however, that unless the sentencing court had ordered it or he had the names of specific individuals listed on his “enemies list,” he could not have protective custody.

Several months later, on April 2, 2002, while Claimant was still at Downstate, he was slashed again while working out in the prison recreation area. This cut was in the same location (i.e., from mouth to ear on the right side of his face) and about four to five inches long. The man who cut him told him “This is for L.E.S”, which referred to “Lower East Side,” the man who had attacked Claimant at Rikers Island. Claimant informed prison officials that the assailant, while unknown to him, was a member of the Bloods gang. He also informed them, again, that he was a former member of the gang and that he believed there was a Statewide “hit list” that included his name. A few days after the attack, on April 5, 2002, Claimant was recommended for protective custody (Exhibits 2 and 3), and, without any objection from him, was placed in that status on April 10 (Exhibit 3).

Claimant was transferred from Downstate to Elmira Correctional Facility (hereinafter “Elmira”) on April 19, 2002. He anticipated that he would continue to be placed in protective custody at the new facility, but instead he was put in keeplock in a general population unit to serve out a sentence from an earlier violation. His cell was located on I-Block, and he stated that in his opinion the population of that block was comprised predominantly of gang members. The following day, April 20, Claimant wrote to Superintendent or Deputy Superintendent for Security, West, (Exhibit 4),[2] describing his situation (as a former member of the Bloods and as someone on the T.O.S. list) and stating that he had been cut both at Rikers Island and at Downstate. He further stated that since arriving at Elmira, he had seen some individuals he recognized as Blood members from Downstate, people who would know that he was a target.
[T]o avoid any [problems], I am asking that I be placed in protective custody. I was interviewed by one of your [Sgts.] upon my arrival here & was informed, after I explained my situation, that the [individuals] would have to be on my enemy list. But I didn’t know any [birthnames], so I could not be placed there in P.C. I’m begging you to place me in protective custody, because my life’s in [a lot] of danger, statewide.
While still in keeplock, he was interviewed by a Sgt. Kramer in connection with this request, but when his keeplock sentence was completed in May 2002, he was assigned to a cell on I-block.

In the following time period, Claimant states, he was called down to the disciplinary office on several occasions to speak with a Captain Wendelich. At first he stated that this gave the false impression that he was cooperating with authorities, but later he acknowledged that he told the Captain of some plans being made to seriously injure a specific correction officer. On November 1, 2002, Claimant was involved in a fight near the facility laundry room while waiting to go to a meal. He did not know the other inmate involved but knew that he was housed in a nearby cell and believed him to be a member of the Bloods. When he was approached by this inmate, who started hitting him, he defended himself, and both inmates were placed in keeplock (Exhibit 5), serving that time three cells away from each other. From the words uttered by the other inmate as the fight began, he understood this to be further retaliation connected to the Bloods.

The following day, November 2, 2002, Claimant again wrote to Deputy Superintendent West (Exhibit 6), again asking to be placed in protective custody, stating that he had been approached and threatened with death “because other inmates, found out that I informed Captain Wendelich . . . of a hit on a Sgt. Kramer.” He was able to identify three inmates who, he stated, had put “hits” on him and stated that the fight on November 1 had resulted from these “hits.” He concluded the letter by asserting that his previous letter had received no response, and asking “that action be taken and that I be placed in either I.P.C.[,] P.C.[,] or admin[istrative] seg[regation].”

Several weeks later, on November 28, 2002, which was Thanksgiving Day, Claimant was watching television when he was grabbed from behind and his left eye and left cheek were cut, the third slashing he had received in less than eleven months. He tried to fight his assailant, another inmate that he knew only as a resident of I Block but believed him to be a “5-star general” in the Bloods. Claimant was rushed to an outside hospital where he received 15 stitches on the slash of his cheek and was informed that his cornea had been cut. Portions of Claimant’s account of events were confirmed by the Unusual Incident Report relating to this event (Exhibits 8, 9, 10), Claimant’s medical records (Exhibits 14, 15), and photographs taken on the day he was injured (Exhibits 13, 23). Immediately following this incident, Claimant was placed in protective custody. His request for such status was given as follows:
Inmate Douglas feels that future harm may be caused to him by other unknown inmates in this facility. Population possibly found out inmate Douglas has provided information to security staff concerning contraband located within the facility.
(Exhibit 16; see also Exhibits 17, 18, 19).

Immediately after this assault, he felt extreme pain for about four or five days and a “soreness” in the area for two to three weeks. Claimant continues to have decreased and blurred vision in his left eye, which he has been told will be permanent, and his glasses had to be upgraded. The left eye waters, burns and is sensitive to bright light. The area of his face that was cut has persistent numbness. The scar on his left cheek is noticeable at conversational distance; it is approximately five inches long, running from the lower eyelid down to the region of his mouth. At its thickest, in the middle of the scar, it is approximately 1/4 inch in width and lighter than his surrounding skin tone.

Defendant called two sergeants employed at Elmira Correctional Facility as its witnesses. Sgt. Jack Smith testified that Elmira is a maximum security facility. On November 28, 2002, he interviewed Claimant after the assault and it was Smith who recommended that he be placed in protective custody. Sgt. Smith related that as a general practice, if an inmate complains of gang-related activity at Elmira, the potential or actual assailant must be identified so that there can be an investigation.

Sgt. Mike Backer, who testified that he also supervises other correction officers, testified that he investigated the November 28 incident, beginning as soon as Claimant came back from the hospital. He presented a photo array to Claimant, who was able to identify his assailant. He completed a Sergeant’s Work Sheet/Cover Letter, used in preparation of an Unusual Incident Report, on which he also referenced Claimant’s fear that other inmates had found out he was giving security staff information about contraband (Exhibit “B”). He also indicated that Claimant wanted to press charges and requested protective custody.
It is well settled that the State, which has “assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can,” owes a duty of care to safeguard the inmates in its penal institutions, even from attacks by fellow inmates. That duty does not, however, render the State an insurer of inmate safety. Rather, “the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable" (Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]).

In Sanchez, the Court of Appeals rejected the proposition that there be a “strict requirement of specific knowledge for foreseeability” for the injured party to succeed in proving the State liable for inmate-on-inmate assault and reaffirmed the “traditional standard” of requiring that there be "reasonable care under the circumstances" (id. at 254). Thus, foreseeability in this context encompasses both actual and constructive notice. To establish liability in an inmate assault case, a claimant must prove one of the following: (1) that the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) that the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) that the State had ample notice and opportunity to intervene but did not act (id. at 252).

It may be foreseeable for a particular inmate to become the victim of gang-related violence in the prisons so as to impose a greater-than-normal duty to provide protection to him or her. There must be a specific factual basis for such a conclusion, however.

In Di Donato v State of New York (25 AD3d 944 [3d Dept 2006]), accusations of negligence were made by an inmate who was assaulted by an unknown assailant at Elmira Correctional Facility. Over a year earlier, that inmate had been involved in an altercation at another facility, an assault that he claimed was part of a prison gang initiation ritual. Subsequent investigation indicated, however, that the altercation had resulted from a debt owed by the claimant. When this inmate was transferred to Elmira Correctional Facility, his request to be placed in protective custody was denied, with prison officials finding no basis for a conclusion that he was at special risk for a gang-related attack. The inmate made no further request for protection. When he was assaulted after he had been at Elmira for a year, it was held that the State was not liable for his injuries as they were not “the foreseeable result of any breach of duty on defendant's part” (id. at 945). Similarly, in Gonzalez v State of New York (7 Misc 3d 1012[A], 2005 WL 901324 [Ct Cl 2005]), the State was determined not liable for injuries suffered by an inmate who, when transferred to Sing Sing Correctional Facility, had failed to advise prison officials that he was a member of the Latin Kings gang and provided no names on his enemies, or “separatee,” list.

Unfortunately, the detrimental and dangerous role played by prison gangs has become a recognized fact of life in recent years. The particular difficulties of protecting inmates who may be targeted for harm not by another individual but by the unidentified members of a prison gang was discussed in depth by the experts who testified in Savoca v the State of New York (UID #2003-010-037, Claim No. 98982 [Ct Cl Dec. 3, 2003], Ruderman, J.). As Judge Ruderman stated in that case, “Merely because claimant feared the Latin Kings and had been the victim of a previous attack by that gang does not establish foreseeability or a duty to provide protective custody to every inmate that either fears or has been assaulted by a gang member.” (Samper v The State of New York, UID #2007-028-003, Claim No. 102210 [Ct Cl Jan. 26, 2007] Sise, P.J. [where the only prior assault on an inmate was determined to be unrelated to gang activity, the claimant never requested protective custody but, rather, asked to be moved to general population, and he received no threats, communicated no concern for his safety and did not ask for protection or to be moved]).

On the other hand, a specific set of circumstances and a history of repeated assaults may give rise to a higher than usual duty to protect a certain inmate who is the target of gang attention, making the State liable for an assault if that duty is not fulfilled. Faust v State of New York (UID #2001-007-086, Claim No. 101112, Motion No. M-62775 [Ct Cl Feb. 13, 2001], Bell, J.) provides an example of such a situation. On two occasions while at Franklin Correctional Facility, the claimant in that action had cooperated with prison officials by conveying information that was detrimental to a specific gang, the Latin Kings. When his cooperation with authorities became known to the gang members, he was placed in protective custody and then transferred out, to Wyoming Correctional Facility. After being attacked at that prison, he was transferred to Orleans Correctional Facility, where once more he provided inside information to prison officials and once more he was attacked by unknown assailants. This led to more time in protective custody and another transfer, to Collins Correctional Facility. When prison officials learned of a specific threat against the inmate at Collins, however, he was moved to Gouverneur Correctional Facility. After a period of time at Gouverneur, in which he was able to remain in general population and participate in programs, he was recognized by someone in the Latin Kings gang and threatened with serious harm. He wrote twice to his counselor, reporting the threat, identifying the person who threatened him, explaining the reasons for his fears, and asking to be moved. At their depositions, the counselor stated that she had conveyed the first letter to a member of the prison’s security staff, but the staff member was unable to recall what, if any, steps had been taken to investigate the situation or to protect the inmate. The inmate had not been placed in protective custody, nor was he transferred to another facility. Roughly one month after first receiving the first threat, he was assaulted. In the decision referenced above, former Judge John L. Bell denied the State’s motion for summary judgment dismissing the claim, concluding that there were unresolved factual issues and that “Claimant has set forth a series of events which, if proven at trial, could implicate culpable conduct by defendant.” According to the Court’s records, Faust v State of New York, supra, was eventually settled, with the injured inmate receiving $15,000.00.

As a general proposition, in cases not related to gang activity, the State can be liable for denying an inmate protective custody status when correction officers fail to take action when told of specific threats against an inmate by other inmates, even if they can be identified only by their nicknames (Rosario v State of New York, UID #2006-013-517, Claim No. 97663, Motion Nos. M-69732, M-70349 [Ct Cl Dec. 12, 2006], Patti, J.), when the State is aware that a known sexual predator has identified the claimant as his next victim (Ramos v State of New York, UID #2004-016-051, Claim No. 98349 [Ct Cl Aug. 17, 2004], Marin, J.), when an inmate has established a habit of serving as informant to authorities and being granted protective custody status as a result (Dougherty v State of New York, UID #2002-030-011, Claim No. 102715 [Ct Cl Jan. 28, 2002] Scuccimarra, J.) But it is not negligence to deny protective custody status where the inmate claimed that an earlier incident (a fire in his cell) was an accident and that he had no known enemies (Priester v State of New York, 2002 WL 1396036 [Ct Cl 2002]), or where the inmate is injured in an “unprovoked, unexplained attack by a fellow inmate who did not have a history of violence and with whom claimant had no prior contact or difficulties” (Roudette v State of New York, 224 AD2d 808 [3d Dept 1996]).

In the situation presented here, the State had ample evidence that Claimant had been, on a number of occasions, the target of serious physical attacks; Claimant had reported some specific threats and was able to identify those who threatened him at least by membership in a well-recognized gang; the existence of hit lists that could be acted upon by persons who were strangers to the victim was known to prison officials; and Claimant had on several occasions specifically requested to be placed in protective custody. In fact, he had been granted that status in the past in connection with the attacks against him. This, then, is not a situation in which “Claimant’s fears relating to unknown enemies was far too generalized and lacked the specificity necessary to permit Defendant to take reasonable steps to prevent the assault” (Colon v State of New York, UID #2006-031-523, Claim No. 109125 [Ct Cl Nov. 9, 2006], Minarik, J.). In fact, Claimant himself had identified and requested the reasonable, effective step that should reasonably have been taken to prevent further injury to him.

Claimant testified that he suffered significant pain for four or five days following the assault, along with soreness for two to three weeks as the laceration to his face healed; that he has permanent, if rather minor, impairment of his vision, numbness on the part of his face over which the Court observed an unsightly permanent scar; and that he also has suffered and continues to suffer the negative emotional reaction of one who has sustained such disfigurement. The Court concludes that he is entitled to the sum of $25,000.00 in compensation for these injuries, with appropriate interest (see Long v State of New York , UID#2006-010-028, Claim No. 107435 [Ct Cl Nov. 14, 2006] Ruderman, J; Lozada v State of New York, UID #2005-030-041, Claim No. 108730 [Ct Cl Dec. 13, 2005] Scuccimarra, J.; Ramos v State of New York, UID #2004-016-051, supra; Coniglio v the State of New York, UID #2001-015-512, Claim No. 99238 [Ct Cl Oct. 26, 2001] Patti, J.; Donaldson v State of New York, UID #2000-016-001, Claim No. 93941 [Ct Cl Mar. 7, 2000] Marin, J.).

To the extent that Claimant has paid a filing fee, it may be recovered according to the Court of Claims Act §11-a(2).


May 17, 2007
Albany, New York

Judge of the Court of Claims

[1]. Unless otherwise indicated, all quotations are from the digital sound recording of the trial.
[2]. After extended questioning, the Court admitted a copy of this letter into evidence, although Claimant had no responding letter or other proof that it had been received by Deputy Superintendent West. Nevertheless, his copy serves as corroboration of his testimony that he wrote a letter on this occasion. Defendant had the ability, if it chose, to challenge receipt of the letter, for the relevant proof would be found in its own files.