New York State Court of Claims

New York State Court of Claims

SMART v. THE STATE OF NEW YORK, #2007-029-053, Claim No. 98024


Claim by correctional facility inmate alleging that assault by other inmates was the result of State negligence is dismissed. There was no proof the attack was reasonably foreseeable or that security procedures in place were insufficient.

Appellate Result:
Affirmed 2d Dept 65 AD3d 1218

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:
By: ADAMSKI & CONTIBy: Samantha R. Engel, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Wanda Perez-Maldonado, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2007
White Plains

Official citation:

Appellate results:
Affirmed 2d Dept 65 AD3d 1218
See also (multicaptioned case)


This claim arises from an October 8, 1996 incident at Bedford Hills Correctional Facility in which claimant was assaulted by two other inmates, an event claimant attributes to negligence on the part of the State of New York. Claimant has been an inmate at Bedford Hills Correctional Facility since 1993. At the time of the subject incident, she was assigned as a teacher’s aide in the Pre-GED class, and she arrived at her classroom at about 8:30 in the morning. She testified that when she arrived at the classroom in the facility’s School One building, someone told her that another inmate, Ghania Miller, was looking for her. Sometime later in the morning, Ghania Miller came into claimant’s classroom to use the bathroom. On her way to the bathroom, Miller said to her “Mona is . . . moving, are you happy now”? [1] Claimant stated she did not know what Miller was talking about and didn’t say anything in response.

At about 9:50 a.m., claimant went outside to the school building’s yard for what was described as “smoke break,” [2] although she does not smoke. Claimant testified that there could be up to 200 inmates attending classes in the school building on a given morning and that there were typically 40 to 50 inmates, smokers and nonsmokers alike, outside during the smoke break On her way out she saw another inmate, Mona Graves, knocking on a door to the building. Correction Officer Moultrie answered the door and asked Graves if she had a pass. Claimant heard Graves say “no” and Officer Moultrie tell Graves she was out of place. Claimant proceeded outside and heard the door being locked behind her, as she was the last inmate to leave the building.

Shortly thereafter, claimant was standing near the bottom of the steps in the yard talking to another inmate when Graves grabbed her by the hair and started punching her. After being punched a number of times, claimant tried to extricate herself and the two women fell to the ground, where claimant was punched an additional ten to fifteen times. At some point, inmate Miller approached and began kicking claimant. After a few minutes, she heard keys and saw Officer Holmes attempting to separate Graves from claimant. Miller had run back into the crowd. Then Miller came back, pushed Officer Holmes away and punched claimant in the face. Another officer, Sergeant Richmond, arrived and the incident ended.

On cross-examination, claimant indicated she had known Graves for years and they were friendly, never having had any problems or disagreements. She knew Miller less well but had no prior problems with her either. Although she acknowledged that she did not feel threatened when Miller initially spoke to her prior to the smoke break, she took off some jewelry and put it in her pocket. She did not report Miller’s remarks to any of the security or educational personnel working in the building that morning, although she had the opportunity to do so. She also testified that although she had been threatened four to five times a year and reported these threats to officers, she regularly refused to be placed in protective custody (PC) because inmates in PC were perceived as weak and easily victimized. She did allow that if she had ever felt in imminent danger of harm she would have accepted placement in PC. Removing her jewelry in response to a potentially threatening situation was something claimant had done ten to twenty times before.

Asked if she had ever felt in danger between her arrival at Bedford Hills in 1993 and the subject incident in 1996, claimant responded:
“Yes. It’s a maximum security prison. So the potential for danger always exists. There’s fights every day, there’s arguments all the time, people fight, argue over everything, and so you’re constantly in danger there.” [3]

Correction Officer Pamela Graves was known as Pamela Holmes at the time of the subject incident. The court will refer to her as “Holmes” to avoid confusion with inmate Graves. Holmes testified she was working as an escort officer on the 7:00 a.m. to 3:00 p.m. shift on October 8, 1996. Her duties included bringing inmates from their housing block to the school building, a task she completed shortly after 8:00 that morning. At about 9:56 a.m., she entered the school building in order to get a group of inmates from the library and escort them back to their housing block. The school building contains classrooms and offices, including a Sergeant’s office, the Principal’s office and the Program Committee office, and both security and civilian personnel. She stated:
“I came into the school building and I looked around, and I didn’t see the officer at the desk, and I just – it just – I don’t know, just my own instinct, I just went – I didn’t see anybody, it was kind of quiet. I opened the area at the door where I know the inmates are for smoke, and there were a bunch of inmates outside.” [4]

The officer asked what was going on and the inmates separated and Holmes saw that Graves had claimant on the ground and was hitting her. She entered an alarm and told Graves to stop, which she did, and the officer separated the two inmates. After a “couple of minutes,”[5] Sgt. Richmond arrived, followed by the desk officer. After Holmes pulled Graves off claimant, Sgt. Richmond told Graves to sit against a wall and Holmes picked claimant up and was assisting her back into the building. Inmate Miller approached from behind and pushed the officer out of the way and punched claimant. The officer recorded the incident, the day it happened, as follows:
“At approx 9:56 a.m. I CO P. Holmes upon entering School One I heard loud voices coming from the back court yard of School One. Upon going outside I CO P. Holmes witness Inmate M. Graves on top of P. Smart with her right hand pulling Smart’s hair and with her left hand closed fist punching P. Smart in the head and face area. I C.O. Holmes with both hands pulled M. Graves off of P. Smart. At this time Inmate G. Miller 9590491 came up behind me on my right side pushing me to get at P. Smart. G. Miller with her right hand in a closed fist hit P. Smart in the left temple area.” [6]

Holmes’s also issued Graves an Inmate Misbehavior Report in which she noted that the inmate “was not assigned to School One, nor was she authorized to be in School One area.” [7] She testified that when an inmate was out of place, including being at the school building when she was not supposed to be there, the inmate would be escorted back to her housing unit by an escort officer, not simply told to go back or given a pass to go back.

Officer Holmes noted that inmates were generally moved to the school building via a line that operated from 8:00 to 8:15 in the morning and that an inmate who arrived at the school after the school line was closed would be considered out of place. She also testified that inmates were not required to go outside during smoke break – they could stay in their classrooms or use a bathroom near the building lobby where the desk officer is posted. She noted that the desk officer post is not a stationary one. The desk officer is also responsible to make rounds covering the entire first floor of the building consisting of about 13 classrooms and offices. When the desk officer is making rounds, there is no officer monitoring the smoking area, which is just outside from the lobby. [8] When the officer is at her desk, she can see through the door out to the smoking area.

Sergeant Clifford Richmond was the Area Sergeant at Bedford Hills on the date in question, a post that covered the part of the campus that includes the school building. His duties included making rounds of the area.

Richmond advised that he would first check with the officer in charge, who would usually be at a desk at the first floor entrance to the building. In addition to the desk officer, there would normally be officers in the basement, on the second floor and in the library, as well as the civilian employees who were also responsible for security. During smoke breaks, the desk officer would unlock the door to the break area, let out those inmates who chose to go outside, and then lock the door behind them. The break area was about 30 feet by 30 feet.

At about 9:56 a.m., Richmond received notification from the Command Center that there was a “red alert” [9] that had been called in by Officer Holmes and he proceeded to the area, which he stated took him 15 to 20 seconds. He saw Holmes on the ground with claimant and Graves walking away from the area. He directed Graves to sit on the grass with her back to a wall and went to assist Officer Holmes. Seconds later, Officer McKay, the desk officer, arrived at the scene. Although he initially stated that he did not see any blows thrown, after having his recollection refreshed by looking at the Unusual Incident Report, Richmond testified that at some point, inmate Miller became involved and began throwing punches at claimant. Miller was then removed from the scene to a teachers’ lounge.

Richmond noted that, although both Graves and Miller were enrolled in classes that met in the school building, an inmate who arrived late for class (i.e., after 8:15 a.m.) without a pass would be considered out of place. He denied, on inquiry from claimant’s counsel, that he had seen Graves outside the school building prior to receiving the emergency call at 9:56 a.m.

Richmond testified that when an inmate is found to be out of place, she would generally be escorted back to her housing unit by an escort officer, as opposed to just being told to leave the area. However, he stated it was not a violation of policy to do the latter and it was a judgment call by the officer how to proceed. He did agree with claimant’s counsel that the only way to ensure the inmate gets back to her housing unit would be to provide an escort.

Mona Graves, who along with Ghania Miller, was convicted in criminal court of the assault on claimant, testified she was late for school the morning in question, but had no explanation for why she arrived at the school building just prior to 10:00 a.m., over 1½ hours after the 8:15 a.m. arrival of the school line at the school building. She stated she did not have a pass because “when you leave on a school line, you’re not issued a pass. I was just getting late to my destination.” 1[0] Although she initially denied having been cited for being out of place – stating she was not out of place because she was enrolled in a parenting class at the school building – she later allowed that such a charge might have been included on the same ticket with the (disciplinary) assault charge, which it was.

Graves testified that when she arrived at the school building, Officer Moultrie opened the door, asked her for a pass, and refused to allow her to enter the school building without a pass because she was late. Asked what she did after Moultrie refused her entry, Graves stated “I was standing in front of the school. That’s when Sergeant Richmond made me sit in front of – straight in front of the building.” 1[1] She claimed she just sat there, waiting for her friends to come outside on smoke break, and then went over to the smoke break area and she “had a fight.”1[2] She never stated how the “fight” started, other than to say “I didn’t take it as an assault. I thought it was a fight,” 1[3] although she acknowledged that she was convicted by a jury of second degree assault.

On cross-examination by defense counsel, Graves reiterated that she was scheduled to be attending her parenting class in the school building and had she arrived with the rest of the inmates on the 8:00 - 8:15 school line she would have been freely admitted without a pass. She denied that she went to the smoke break with the intention of assaulting claimant, and denied that she had ever had an argument with claimant prior to the subject incident. Although she admitted having served time in keeplock on prior occasions since her admission to Bedford Hills in May 1988, she noted that inmates could be sentenced to keeplock for many different sorts of infractions and denied that she had ever assaulted an inmate prior to the subject incident.

Graves’s testimony was not particularly enlightening as to the genesis of the incident that she described, without elaboration, as a “fight” but which formed the basis of her conviction for intentional assault. Miller’s and Graves’s reasons for acting as they did are not before the court.

“The law [governing potential State liability for inmate-on-inmate assaults] is clear; it is only in its application that difficulty is encountered.” That characterization was first made by the Court of Appeals in Flaherty v State of New York (296 NY 342, 346 [1947]) and more recently reiterated in Sanchez v State of New York (99 NY2d 247, 252 [2002]), where the Court again recognized that the State owes a duty of care to protect inmates, but reminded that such duty “does not, however, render the State an insurer of inmate safety” but rather is “limited to risks of harm that are reasonably foreseeable”(Sanchez, id. at 253). The Sanchez court reversed a grant of summary judgment to the State in an inmate assault case, finding that the Appellate Division had defined foreseeability solely in terms of actual knowledge, a standard that “precludes additional consideration of the State’s constructive notice – 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, id. at 254 [emphasis in original]).

Cases finding State negligence as a cause of an inmate-on-inmate assault generally find that the claimant has established the requisite element of reasonable foreseeability based on proof of one of three things: (1) that defendant knew or should have known that the claimant was at risk of being attacked,1[4] (2) that defendant knew or should have known that the assailant was likely to attack,1[5] or (3) that defendant knew or should have known that the surrounding circumstances were likely to have engendered or facilitated an attack. 1[6] As in any negligence case, claimant must also establish that the precautionary measures taken by defendant did not rise to the level of due care and that such was a proximate cause of the assault. 1[7]

There was no proof here of any facts that should have placed the Bedford Hills staff on notice that claimant was a likely assault victim, and claimant does not allege otherwise. Indeed, claimant herself indicated that she did not feel she was at risk of violence, given the normally prevailing atmosphere at this maximum security facility where threats, arguments and fights were part of the day-to-day life. There were no facts or circumstances proven from which defendant’s employees should have been aware that claimant was at any more risk of violence than any other inmate at the facility.

Claimant does characterize Graves and Miller as “known dangerous inmates”. She contends it was negligence to allow them “to participate in unsupervised group gatherings,” 1[8] and she submitted portions of their disciplinary histories in support of that contention.

The records submitted with respect to Mona Graves reflected only one incident other than the assault on claimant. She was convicted in 1994 of creating a disturbance after taking issue with a correction officer who terminated a visit, prematurely in her eyes, and making threatening remarks to the officer. There was nothing in that incident from which it could have been reasonably concluded or foreseen that Graves was any more dangerous or any more likely to assault another inmate than any of the other convicted felons who make up the Bedford Hills population. Although Graves acknowledged that she had been sentenced to terms in keeplock, she noted that such was the result of all sorts of disciplinary charges involving breaking facility rules, and the mere fact that an inmate served a term in keeplock did not indicate that any violence or threat of violence was involved.

Ghania Miller’s disciplinary records, referencing five incidents including the subject assault on claimant, 1[9] are somewhat more problematic. In October 1995, she was convicted, upon her plea of guilty, of punching another inmate in the head during an argument on the dining room line. She was sentenced to 28 days keeplock and 30 days loss of privileges. On February 15, 1996, she was convicted of Assault on an Inmate, Refusing a Direct Order and Threats, but found not guilty of Violent Conduct arising out of an incident in which she threw a cup of water at another inmate, who was in her locked cell, and threatened the inmate. Again, she was sentenced to keeplock and loss of privileges. Six days later, she was convicted of interfering with an employee, an incident that did not involve any other inmates. The other incident in the submitted records occurred about one hour after the subject incident and is obviously not relevant to the question of notice.

Although the records refer to two prior assaults on other inmates by Miller, in the disposition of the charges arising out of the assault on claimant, the hearing officer wrote “this was your fourth assault on an inmate in 375 days.” 2[0] Regardless of whether the officer was mistaken as to the correct number, or perhaps there was another incident not part of the records submitted to the court, claimant’s essential contentions are that Miller’s record is such that defendant should have been on notice of a propensity to assault other inmates and that it was negligence to allow her to be in a position to inflict assault, specifically in the school setting where there is not always constant visual supervision of the inmates.

In Arteaga v State of New York (72 NY2d 212 [1988]), the Court noted the “ ‘formidable tasks’ of maintaining order and security in the correctional facilities and protecting the safety of inmates and employees” and observed that the Commissioner of Correctional Services has “broad discretion in the formulation and implementation of policies relating to security and to the disciplining of inmates.” 2[1] Additionally, defendant is “obligated to provide a program of education for inmates geared to meet the objectives set out in Correction Law § 136,” 2[2] which provides that “each inmate shall be given a program of education which, on the basis of available data, seems most likely to further the process of socialization and rehabilitation.”

Leaving aside the fact that Miller was a secondary participant in the assault on claimant, who was already the victim of a vicious attack by Graves before Miller added her contribution, this court simply cannot hold that Miller’s disciplinary record was such that it was negligence for her to be in the educational setting where she was not subject to constant supervision. Although she had perpetrated either two or three assaults on inmates prior to the subject attack, she was disciplined for those incidents, discipline that did not entail her removal from her educational program. While the court may surmise that there are circumstances where an inmate’s history of violent behavior is such that the inmate is deemed unfit to interact with other inmates in situations with less than constant supervision, i.e. the Bedford Hills school building, the court was not provided with any evidence as to the standards applied in such cases. Given the statutory obligation to provide an education – an objective that may sometimes come into conflict with the need for safety and security of inmates and staff – the record presented at this trial was insufficient for the court to substitute its judgment for that exercised by the officials at Bedford Hills as to when the need to separate a particular inmate from the general population outweighs the statutory obligation to provide educational services to all inmates.

Given the absence of any evidence as to standards or practices governing removal of inmates from educational programs based on a propensity for violent activity, the court is unable to evaluate where Miller’s record would stand in relation to such standards. It is quite possible that Miller’s record was not atypical for inmates at Bedford Hills, and a judicial finding that her continuation in her educational program constituted negligence, based on this trial record, would not only substitute the court’s relatively uninformed judgment for that of correction personnel but would substantially impair the ability to provide educational services in accordance with the statutory mandate.

Thus, the court concludes that claimant has failed to establish that the presence of Graves and/or Miller in the school building on the date in question was the result of any negligence on the part of defendant’s employees.

Claimant has two remaining contentions. The first is that Graves should have been escorted back to her housing block when she arrived at the school building late, without a pass, and that had such occurred, she would not have been present in the smoking area with the opportunity to attack claimant. The facts surrounding this aspect of the events were murky. Specifically, it is unclear why Graves did not arrive at school on the school line as she was supposed to, exactly what she was told when she arrived or why she was not escorted back to her housing block. However, claimant’s contention that the failure to escort Graves back to her cell was negligence that proximately caused the subject assault fails for three reasons.

First, although the testimony indicated that it was the usual practice for an out-of-place inmate to be escorted back to her housing block by an officer, Sgt. Richmond stated that there was no rule or policy to that effect, and it was up to the officer’s discretion whether to utilize an escort. Claimant did not elicit any testimony or other evidence contradicting that assertion. Thus, while claimant is able to establish a “usual practice” which is discretionary, she did not establish any rule, directive or statute mandating an escort and thereby creating a duty which was breached by the defendant.

Second, there was no proof that the Bedford Hills staff should have been aware of any threat to claimant, or of any threat posed by Graves, and absolutely no indication that Graves’s late arrival at the school without a pass should have provided any notice that an altercation with another inmate, much less an assault on claimant, was impending. Thus, the attack was not in any sense a foreseeable consequence of the desk officer’s decision to send Graves away without an escort.2[3]

Finally, the court notes that Graves and Miller were enrolled in classes that met daily in the school building where claimant was a teacher’s aide. Thus, their opportunity to assault claimant was not created by the officer’s decision not to have Graves escorted back to her housing block on the date in question, but rather existed on a daily basis due to the proximity of claimant to her assailants regardless of what happened that morning.

Claimant’s final contention is that the level of security at the school building, and specifically with respect to the outdoor smoking area, was insufficient and that such was shown by the length of time it took the officers to respond and break up the assault. However, it has long been held that the fact that a correction officer is not present and able to prevent an assault does not give rise to an inference of negligence, and “unremitting supervision” of inmates is not required. 2[4] Indeed, although the decision in Sanchez v State of New York (99 NY2d 247, 254 [2002]) is widely viewed as expanding the possible bases of State liability for inmate assaults by clarifying that the foreseeability element may be satisfied by proof concerning “the institution’s expertise or prior experience, or from its own policies and practices designed to address such risks”, the Court took pains to
“underscore that the State’s duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State.”2[5]

When the Sanchez claim was tried, subsequent to the reversal of the grant of summary judgment to defendant, it was dismissed on the merits, notwithstanding expert testimony that the level of supervision provided in the school building at Elmira Correctional Facility (one officer for over 100 inmates in the maximum security facility) was inadequate and notwithstanding proof of the frequency of inmate assaults at the facility. The dismissal was affirmed by the Third Department, with the court noting the principle that absent a showing of dangerousness, unremitting supervision is unnecessary, and observing that the claimant’s statistics as to the frequency of inmate assaults “prove only that such facilities are dangerous places where the possibility of inmate-on-inmate assaults exists. Such general proof is insufficient to establish that a reasonable probability existed that this claimant would be attacked at this time and place. In the absence of either actual or constructive notice, defendant is not liable.” 2[6]

Unlike in Sanchez, claimant here offered no expert proof as to what penological standards would allegedly suggest as the proper level of supervision or an adequate officer/inmate ratio. The court is simply asked to infer that the level of supervision was inadequate from the fact that the assault was unobserved and from claimant’s subjective estimation of the amount of time it took for officers to respond. There is no basis in the record for the court to conclude that one officer responsible for the first floor of the building as well as the outside areas constituted an inadequate level of security merely because it was not possible to view the entire area from one vantage point. No principle or standard was submitted in support of this contention, which, if sustained, would be the equivalent of requiring the unremitting supervision that the jurisprudence of this State has long rejected.

Nor can a conclusion that the level of supervision was inadequate be based on proof of prior incidents at the school building providing notice of a potential security problem, since there was no such proof, despite the testimony indicating that approximately 50 inmates congregated in the smoking area on a daily basis, supervised only by an officer who was also responsible for the entire first floor of the school building. To the contrary, the only conclusion to be reached from the evidence at this trial was that the assault on claimant was not the result of an inadequate level of supervision, or inattention to a threat posed by Graves or Miller, but rather by the decision of those two inmates, not foreseeable by defendant’s employees, to perpetrate a criminal act. While the State owes all inmates the duty of reasonable care for their safety, it is not the insurer of such safety and liability may only be predicated on the failure to act with reasonable care to prevent reasonably foreseeable consequences. Such a conclusion is not justified from this trial record.

Accordingly, the court finds that claimant has failed to establish negligence on the part of defendant contributing to the assault upon her, and the Clerk of the Court is directed to enter judgment of dismissal in accordance herewith.

December 21, 2007
White Plains, New York

Judge of the Court of Claims

[1].Trial Transcript (TT), p 172.
[2].Id., p 176.
[3].Id., p 245.
[4].Id., p 88.
[5].Id., p 104.
[6].Exhibit 22.
[7].Exhibit 3, p 15.
[8].See Exhibit H, diagram of first floor of Building #110.
[9].TT, p 288.
1[0].Id., pp 46-47.
[1]1.Id., p 53.
1[2].Id., p 54.
1[3].Id., p 56.
1[4].See e.g. Sebastiano v State of New York (112 AD2d 562 [3d Dept 1985]; Douglas v State of New York (Ct Cl, Sise, P.J., Claim No. 108585, UID No. 2007-028-012, May 17, 2007; Collins v State of New York (Ct Cl, Mignano, J., Claim No. 100508-A, UID No. 2007-029-040, October 5, 2007). Decisions of the Court of Claims not officially reported are available at the court’s web site –
1[5].See e.g. Blake v State of New York (259 AD2d 878 [3d Dept 1999]; Littlejohn v State of New York (218 AD2d 833[3d Dept 1995].
1[6].See e.g. Sanchez v State of New York (99 NY2d 247, 254-255 [2002]; Blake v State of New York (259 AD2d 878 [3d Dept 1999]); Huertas v State of New York (84 AD2d 650 [3d Dept 1981]); Gangler v State of New York (Ct Cl, Midey, J., Claim No. 96352, UID No. 2006-009-159, March 29, 2006).
1[7].Kalem v State of New York (213 AD2d 515 [2d Dept 1995]).
1[8].Claimant’s Memorandum of Law, p 13.
1[9].Exhibit 4.
2[0].Id., p 39. The officer had originally written “third” and later crossed out that word and wrote “fourth.”
2[1].72 NY2d 212, 217, quoting Matter of Rivera v Smith (63 NY2d 501, 513 [1984]).
[2]2.Matter of Allah v Coughlin (190 AD2d 233, 237 [3d Dept 1993]).
2[3].See generally Derdiarian v Felix Contr. Corp. (51 NY2d 308 [1980]).
2[4].Colon v State of New York (209 AD2d 842 [3d Dept 1994]); Padgett v State of New York (163 AD2d 914 [4th Dept 1990]).
2[5].Sanchez, id. at 256.
2[6].Sanchez v State of New York (36 AD3d 1065, 1067 [3d Dept 2007] [emphasis in original]).