New York State Court of Claims

New York State Court of Claims

BROOKS v. THE STATE OF NEW YORK, #2008-015-502, Claim No. 111803


After trial, claim for inmate-on-inmate assault was dismissed.

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:
Arnold S. Kronick, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kevan Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 31, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


This claim for injuries sustained in an inmate-on-inmate assault proceeded to trial on November 28, 2007.

Phillip Sawyer was the first witness called by the claimant. Mr. Sawyer testified that in June 2004 he was a correctional sergeant at Upstate Correctional Facility. Between April and June 2004 his duties included supervision of the facility's "ten block," a 300-bed special housing unit (SHU) containing both single and double bunked cells. The witness reviewed claimant's Exhibit 4 which contains a series of letters in which the claimant, who at the time was housed in a double bunk cell, expressed his desire to have an individual of his choice designated as his new cellmate. The witness did not recall receiving any of the letters contained within Exhibit 4, stating that he receives hundreds of letters from inmates.

Mr. Sawyer testified that he was familiar with the requirements of Directive 4003 (Exhibit 1) in June, 2004. He contended that the Directive was only applicable to single cell housing units which had been converted to double-cell housing and that it was therefore inapplicable to inmates housed at Upstate Correctional Facility Building 10, which was constructed as a double bunk facility and not converted from single cell to double bunk cells. Although he contended that Directive 4003 was inapplicable, the witness nonetheless testified that he complied with the provisions of the Directive in determining whom to place in the claimant's cell upon the pending release of his then current cellmate. At the time he assigned inmate Blair as claimant's new cellmate the witness completed a SHU Double-Cell Information Sheet. Although he was aware at the time he completed the sheet that there had been a previous incident involving the claimant, he was not aware that Mr. Brooks had been the subject of a previous assault in March, 2003. Mr. Sawyer further testified that inmate Blair's institutional history as well as his criminal history would have been examined prior to assigning him to a double bunk cell. A decision to double bunk particular inmates would also be affected by the inmates' respective gang affiliations, if any. Finally, the witness testified that when a double bunked inmate is released from SHU it is common to permit the remaining inmate to request a specific inmate as his new cellmate.

The claimant Darryl Brooks was the next witness to testify. According to the claimant he was assigned to the Upstate Correctional Facility SHU in May, 2004 as a result of an incident in which an inmate attempted to assault him with a razor. The claimant testified that he disarmed the inmate and was found in possession of the razor as a result of which he was given 18 months in SHU. Mr. Brooks related that in June, 2004 he was double bunked with an inmate named Davis at the Upstate Correctional Facility SHU. When Mr. Brooks learned that inmate Davis would be released from SHU in the near future he wrote to Sergeant Sawyer on May 29, 2004, May 30, 2004 and June 11, 2004 in an effort to secure a new cellmate of his choice. No response was received from Sergeant Sawyer so the claimant wrote an additional letter dated June 22, 2004 addressed to an individual in the Mental Health Unit at Upstate Correctional Facility in which he requested that he be moved to a single occupancy cell. In addition to the correspondence addressed to Sergeant Sawyer claimant testified that he spoke with the Sergeant and requested a specific inmate as his new bunkmate but that Sergeant Sawyer did not act upon his request.

Claimant testified that inmate Davis' last day as his bunkmate was June 23, 2004. That morning the claimant was directed by correction officers to leave his cell and enter a "rec pen" area directly behind the cell. Inmate Davis was removed from the cell and inmate Blair entered. The correction officers removed inmate Blair's shackles and the "rec pen" door was opened allowing claimant to re-enter the cell. Claimant informed inmate Blair that he did not want any trouble and began to walk away when he was attacked by Blair, suffering injuries to his eye, face and jaw. He denied that he ever struck Blair. Rather, he argued that he attempted to protect himself as Blair assaulted him soon after he was let back into the cell from the "rec pen".

According to the claimant, correction officers were in the hallway at the time he was assaulted. He testified that the officers approached the cell door and then simply stood and watched the assault occur. Ultimately both inmates were removed from the cell and the claimant was taken to the Upstate Correctional Facility infirmary and, later, to an outside hospital where he received stitches in his eyebrow. He was returned to Upstate Correctional Facility the same day. Claimant was seen by two eye specialists on June 24, 2004. Surgery to repair the claimant's retina was performed at Albany Medical Center approximately five days later. Claimant underwent additional surgery at Albany Medical Center to repair his cheekbone. Claimant testified that he has undergone ten surgeries since June, 2004 as a result of injuries sustained in the incident of June 23, 2004. Claimant was issued a disciplinary ticket following the incident with inmate Blair which was later dismissed. He denied that he did anything to prompt the attack upon him by inmate Blair and estimated that he and Blair were together in the cell for less than one minute preceding the assault.

On cross-examination the claimant related a long list of arrests and parole violations dating from 1987. According to the claimant he was assigned to the Upstate Correctional Facility SHU as a result of disciplinary charges brought against him at Bare Hill Correctional Facility when he was found in possession of a razor which he contends he took from an inmate attempting to assault him. Claimant described Building 10 at Upstate Correctional Facility as containing all double cells although some cells have only one occupant. Claimant acknowledged that he had many fights at Upstate Correctional Facility prior to June 23, 2004, including three fights with cellmates. He related that he had been hospitalized for six days following a fight with a cellmate in March, 2003. Claimant had not spoken to inmate Blair prior to June 23, 2004 nor was Blair on his enemies/separatees list. Claimant acknowledged that there is no requirement that an inmate be provided a bunkmate of his choosing.

Claimant rested at the conclusion of Mr. Brooks' testimony and the defendant called Correction Officer Paul Burgess to the stand. Correction Officer Burgess testified that he has been employed by the Department of Correctional Services at Upstate Correctional Facility since 1999. He stated that most of the cells at the Upstate Correctional Facility SHU are double bunk cells occupied by individuals who have been assessed more than 30 days in a special housing unit at other DOCS facilities. On June 23, 2004 Correction Officer Burgess was working at Building10 at Upstate Correctional Facility. He was familiar with the claimant who, according to the officer, had had no fights with other inmates while at Upstate.

The witness testified that he worked at Building 10 quite often and that there are many inmates moving in and out of the SHU on any given day. Bunkmates are determined by matching the inmates by age, race, weight, and PIMS level. He described PIMS (progressive inmate movement system) as a system for assigning values entitling certain inmates to exercise and other benefits for good behavior while housed at the Upstate Correctional Facility SHU. The overall goal in matching inmates for housing in the same cell is to determine compatibility. Exhibit A, an Upstate Correctional Facility SHU Double-Cell Information Sheet containing information concerning the double celling of inmate Blair and the claimant was received in evidence. According to the witness, the claimant was not "victim prone" nor had he experienced problems with his then current bunkmate, inmate Davis.

Correction Officer Burgess testified that he assisted in moving inmate Blair into the claimant's cell on June 23, 2004. He then went to move another inmate when he heard a banging noise from the cell occupied by claimant and Blair. He went to the cell and observed inmate Blair holding the claimant down. The officer reported a fight on his radio and gave a direct order to inmate Blair to release the claimant so that he could be placed in the "rec pen" outside the rear of the cell. Inmate Blair released the claimant as instructed. However, once the claimant was released Correction Officer Burgess observed him take one step back and then lunge at Blair. The two inmates began fighting and correction officers entered the cell and separated them. The witness testified that he had contact with inmate Blair prior to June 23, 2004 but had experienced no problems with him and had no reason to believe that Blair would not be compatible with the claimant. He was not aware of any prior fights in which inmate Blair had been involved.

On cross-examination the witness testified that he was not familiar with Directive 4003. Nor was he aware that the claimant had been assaulted previously by another inmate and hospitalized in March, 2003. With regard to Exhibit A, the witness stated that Brooks was not victim prone and confirmed that the SHU Double-Cell Information Sheet does not contain a place for information concerning an inmate's assaultive behavior or criminal past. He estimated that approximately five minutes transpired between the time the claimant was allowed to re-enter the cell from the "rec pen" and the time he heard a banging sound emanating from the cell.

The defendant called Phillip Sawyer who had previously testified on behalf of the claimant. Mr. Sawyer testified that he completed and signed Exhibit A, the Upstate Correctional Facility SHU Double-Cell Information Sheet, on June 23, 2004. The form includes the name, DIN number, height, weight and age of both the claimant and inmate Blair. In addition to this information the form provides boxes which can be checked to indicate the race and religion of both inmates as well as to indicate whether the inmate is victim prone, has a history of escape and whether a particular inmate is a smoker or non-smoker. Additional categories include boxes which can be checked to indicate "bottom bunk" and "enemy". Mr. Sawyer testified that he completed the Double-Cell Information Sheet from information contained in facility computers. The information available on each inmate would be reviewed and applicable boxes would be checked as appropriate. He testified that a failure to check a particular box is an indication that the category is inapplicable to the subject inmate.

Mr. Sawyer testified that when he responded to claimant's cell he observed inmate Blair holding the claimant down. He directed both inmates to stop fighting and instructed the claimant to enter the recreation pen adjoining the cell as the claimant was the inmate nearest the pen entrance. He testified that inmate Blair released the claimant as instructed and that it was his recollection that the claimant then attacked inmate Blair. The witness described the contents of Exhibit 5, which includes various unusual incident reports, use of force reports and medical use of force reports. The use of force reports prepared by Mr. Sawyer and contained within Exhibit 5 indicate that both the claimant and inmate Blair refused to cease fighting when instructed by correction officers requiring the use of force to separate the inmates.

On cross-examination the witness testified that he relied upon information contained within the Upstate Correctional Facility computer system as well as input from correction officers in completing Exhibit A, the SHU Double-Cell Information Sheet. While he contended that he, in fact, followed the provisions of Directive 4003 in completing Exhibit A, he acknowledged that the form does not provide a space for noting either an inmate's prior assaultive behavior or criminal history (Directive 4003 [4] [ii], [iii]). With regard to the use of force report relative to the claimant contained in Exhibit 5, Mr. Sawyer testified that he prepared and signed the report and that as indicated therein Inmate Brooks refused to "break away from his cellmate during a cell fight." He testified that in his opinion it was possible for the claimant to break from inmate Blair but he failed to do so. He acknowledged that the Use of Force Report relative to inmate Blair's participation in the fight also indicates that inmate Blair refused to break and continued to attempt to assault the claimant despite direct orders to cease his activities.

On re-direct examination the witness testified that whether inmates are to be double bunked depends upon their institutional behavior and is not directly affected by the nature of the crime for which they were convicted. He further testified that he did not observe inmate Blair resisting correction officers. He did, however, observe inmate Blair release the claimant when instructed to do so and then defend himself when the claimant attacked him.

The defendant called John Carvill to the stand. Mr. Carvill testified that he is a classification analyst employed by the Department of Correctional Services. As a classification analyst it is his responsibility to review the suitability of inmates serving more than 45 days keeplock or SHU for double celling.

His review of each inmate includes consideration of the inmate's entire criminal history to determine whether they had participated in particularly heinous or vicious crimes. In addition to criminal history the witness considers an inmate's mental history, whether the individual is homosexual and any institutional history of random violence. Mr. Carvill testified that he reviewed information with regard to claimant's eligibility for double celling prior to the incident and found no reason that he should not be double celled. In fact, the claimant had completed prior periods of SHU confinement in double bunk cells. There was no indication in claimant's record that he was involved in gang activity and none of the issues considered by the witness disqualified the claimant from being assigned a double bunk cell.

Mr. Carvill also reviewed the eligibility of inmate Blair to be double celled prior to the incident. He stated that inmate Blair qualified under all criteria as appropriate for double celling. In fact, Blair had been double celled at Upstate Correctional Facility for three years preceding the incident. Neither a prior fight at another correctional facility nor his murder conviction prevented Blair from being eligible for double-cell housing.

On cross-examination the witness testified that he has been involved in reviewing inmates for double-cell eligibility for approximately nine years and reviews approximately 140 inmate records per week. Once an inmate is determined to be eligible for double celling the witness does not again review the inmate unless he is released from SHU and recommitted there at a later date. Once an inmate is approved for double bunking the determination of whom they shall be housed with is left to the discretion of facility staff. Although he considers disciplinary reports received by his office in determining double bunk eligibility he does not review all misbehavior reports applicable to particular inmates.

Finally, the witness testified that Directive 4003 does not apply to the double bunking of inmates at Upstate Correctional Facility SHU. Matters considered with regard to the eligibility of inmates to be double bunked at Upstate Correctional Facility SHU include prior assaultive behavior, whether an inmate is victim prone, a homosexual, or has a history of extreme violence. These issues are the same matters addressed in Directive 4003 (4) (i-iv).

On re-direct-examination Mr. Carvill testified that he reviewed the suitability of inmate Blair and the claimant for double celling and did not find either individual to be assaultive or victim prone.

"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" (Sanchez v State of New York , 99 NY2d 247, 252 [2002]; see also Di Donato v State of New York, 25 AD3d 944 [2006]). 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 , 99 NY2d at 256; see also Auger v State of New York, 263 AD2d 929 [1999]). 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 (Sanchez, 99 NY2d at 253, 255-256; see also, Smith v County of Albany, 12 AD3d 912 [2004]; Elnandes v State of New York, 11 AD3d 828 [2004]). In Sanchez the Court acknowledged that assaults can and will occur even where supervision is otherwise appropriate, stating:
“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” (Id. at 256)

Here, the evidence adduced at trial fails to establish that the assault upon the claimant was foreseeable. The letters written by the claimant prior to the date of the assault indicated only his apprehension concerning the selection of a cellmate in light of the fact that he was previously assaulted by a cellmate in March of 2003 (Exhibit 4). The first letter, dated May 29, 2004, stated in part: “Please could you put a bunkie in of my choice cause I don’t want no gang member in the cell with me.” In the second and third letters, dated May 30, 2004 and June 11, 2004, the claimant requested that he be permitted to bunk with a particular inmate with whom he was compatible, and the fourth letter, dated June 22, 2004, requested that he be provided a single cell. These letters did not advise prison officials of the likelihood of an assault by Blair and the claimant admittedly never even spoke to Blair prior to the incident. There is no evidence that Blair ever threatened the claimant or that any such threat was communicated to the defendant. Absent such evidence liability may not be imposed on the theory that the defendant failed to protect the claimant from foreseeable harm.

Nor may liability be premised upon the defendant’s purported failure to adhere to DOCS guidelines governing the selection of inmates for double-cell housing embodied in Directive 4003 (Exhibit 1; see also 7 NYCRR § 1701.5). Claimant contends in this regard that the defendant failed to consider the history and behavior of the inmates as specified in the Directive as well as the relative disparity in physical size between the claimant and inmate Blair. The Directive (Exhibit 1) entitled “Double-Cell Housing In Converted Single Cells”[1] provides in pertinent part the following:
"(4) History and Behavior. The following inmates shall not be approved for double-cell housing, except in accordance with paragraph (5) of this subdivision:

(i) Victim prone. . . . [A]ny inmate with a pattern of being victimized by other inmates resulting in serious physical injury or sexual abuse;

(ii) Assaultive inmates. Inmates with a pattern of predatory assaults on other inmates by the use of contraband weapons or where the assaults resulted in serious physical injury to the victims;

(iii) Criminal histories of extreme violence. Inmates whose criminal histories involve a pattern of acts of violence resulting in serious physical injury to victims, or inmates whose crime(s) of commitment involve acts of violence resulting in serious physical injuries to multiple victims or intentional and depraved infliction of extreme physical pain resulting in serious physical injury to any one victim; or

(iv) Homosexual behavior. Inmates found guilty at facility disciplinary hearings of engaging in homosexual acts while incarcerated."
Preliminarily it should be noted that although the testimony of Messrs. Sawyer and Carvill indicated that Directive 4003 is inapplicable to Building 10 at Upstate Correctional Facility because the cells there were not converted single cells to which the Directive applies (Exhibit 1), i.e., they were designed for double-cell housing, both witnesses admitted that the criteria set forth therein was, in fact, utilized in the selection of inmates for double-cell housing at Upstate. Both witnesses indicated that nothing in the records prevented either the claimant or inmate Blair from being eligible for double-cell housing.

First, there was no evidence that the claimant was victim prone so as to disqualify him for double bunking under the regulation. Although the evidence indicated that the claimant was involved in three fights with cellmates, including the subject fight, he claims he was the victim of an assault on only one occasion in March 2003. This evidence failed to establish a “pattern of being victimized” (7 NYCRR § 1701.5 [c] [4] [i]) so as to disqualify him from double-cell housing within the meaning of the regulation .

Nor does the evidence establish that Blair had a “pattern of predatory assaults on other inmates by the use of contraband weapons” as claimant contends (7 NYCRR § 1701.5 [c] [4] [ii]). Review of the disciplinary records of inmate Blair reveals only one incident of an assault, which involved the use of a “mop wringer” in May of 2002 (see Exhibit 3). This one incident fails to establish a pattern of predatory assaults so as to disqualify him for double-cell housing.

Lastly, claimant failed to establish that either claimant or Blair had a criminal history of extreme violence so as to disqualify either one of them for double-cell housing (7 NYCRR § 1701.5 [c] [4] [iii]). According to Mr. Carvill, only the most heinous crimes such as a propensity for torture disqualify an inmate from double-cell housing and nothing in the criminal history of Blair or the claimant fell within that category. This testimony is consistent with the regulation which disqualifies an inmate for double bunking if the criminal history includes “a pattern of acts of violence resulting in serious physical injury to victims . . . or . . . intentional and depraved infliction of extreme physical pain resulting in physical injury to any one victim” (7 NYCRR § 1701.5 [c] [4] [iii]).

The claimant’s contention that the disparity in the size and weight of the claimant and inmate Blair precluded them from double-cell housing finds no support in Directive 4003 (Exhibit 1). Additionally, although Correction Officer Burgess testified that the height and weight of prospective cellmates is one consideration in the selection of cellmates, the record evidence does not reflect that the physical characteristics of the claimant and inmate Blair were such that they should not be housed together (see Exhibits A and 9A).

Moreover, it is significant that the regulation which governs the selection of inmates for double-cell housing permits the exercise of discretion (Matter of Chaney v Van Guilder, 14 AD3d 739 [2005][discretionary denial of the petitioners’ request for double-cell housing had a rational basis]). The regulation expressly acknowledges that it is possible for inmates to positively change their behavior and therefore permits a “limited amount of flexibility when determining double-cell assignments” (7 NYCRR 1701.5 [c] [5]). For this reason an “override factor” is included as part of the screening process when mitigating factors exist which favor double-cell housing. While it does not appear that an override factor was utilized in determining the eligibility of either the claimant or inmate Blair for double-cell housing in this case, the fact that such determinations are discretionary supports the defense that the defendant is immune from liability for the discretionary conduct complained of in this case.[2]

The law is well-settled that the State is not answerable in damages for the injurious consequences of official action involving the exercise of discretion (Mon v City of New York, 78 NY2d 309 [1991]; Haddock v City of New York, 75 NY2d 478 [1990]; Arteaga v State of New York, 72 NY2d 212 [1988]; Tango v Tulevech, 61 NY2d 34 [1983]). While the distinction between discretionary conduct and ministerial conduct is not always clear, the rule which has developed “is that discretionary. . . acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” (Tango, 61 NY2d at 41). The allegations here essentially arise from the discretionary determination to place the claimant in double-cell housing with inmate Blair. Thus, application of the immunity doctrine is appropriate and shields the defendant from liability.

To be distinguished from the facts in the case at bar is the situation where liability is predicated on the failure of the municipal defendant to exercise any discretion at all. Such was the case in Haddock, supra, where the Court of Appeals held that the City of New York was not immune from liability for negligent hiring of a parks department employee who raped a child. In that case, however, the Court of Appeals found that the municipal defendant was not entitled to immunity because, as stated by the Court at p. 485:
“there [was] no evidence that, prior to the rape, the City in fact made any such decision or exercised any such discretion. . . There [was] no indication that, before the attack on plaintiff, the City made any effort to comply with its own personnel procedures for employees with criminal records, and no indication that it made a judgment of any sort when it learned that Johnson both had a criminal record and lied egregiously about it.”
Here, in contrast, consideration was given to whether or not the claimant was a candidate for double- cell housing and the rules for the selection of appropriate cellmates. Accordingly, the defendant is immune from liability for its discretionary judgment to house the claimant in a cell with Blair.

Lastly, although no argument is made that the defendant failed to properly respond to the altercation, to the extent the claimant testified that correction officers stood outside his cell door and did nothing, the Court credits the testimony of Correction Officer Burgess that he immediately proceeded to the claimant’s cell upon hearing a banging sound emanating from the cell and gave Blair direct orders to release the claimant. When Blair finally did release the claimant, the claimant lunged at Blair. Sergeant Sawyer arrived at the cell shortly after Burgess and he together with other officers entered the cell and broke up the fight using a shield to prevent injury to the officers (see also Use Of Force Reports, Exhibit 5). The claimant was then taken to the infirmary. The Court finds the defendant’s response to the altercation adequate under the circumstances (cf. Smith v County of Albany, 12 AD3d 912 [2004], supra [material question of fact existed as to whether or not defendant’s response to attack on inmate was adequate precluding summary judgment]).

Based on the foregoing, the Court finds that the claimant failed to prove by a preponderance of the credible evidence that the defendant was negligent in the supervision of inmates in its control. Accordingly, the claim is dismissed.

Let judgment be entered accordingly.

March 31, 2008
Saratoga Springs, New York

Judge of the Court of Claims

[1]. Notably, the title of this section has been changed and is now entitled “Double-Cell Housing In Existing Correctional Facilities.” (see 7 NYCRR part 1701)
[2]. Defendant raised as its “Fourth Defense” that “[t]he assignment of inmates to a cell at Upstate Correctional Facility involves the exercise of discretion . . . for which the defendant is entitled to immunity from liability.”