Anthony Young (“Claimant”) filed claim number 111802 on January 6,
2006. He alleges that Defendant ignored Claimant’s warning that a prison
gang in Orleans Correctional Facility (“Orleans”) intended to cause
him bodily harm, that Defendant and its agents failed to protect him and that
Claimant sustained serious injury when he was assaulted on October 18, 2005. I
held a trial on the issue of liability only on March 12 through March 13, 2008
and March 27, 2008 in Rochester, New York. Counsel submitted post-trial
memoranda, which I considered when making this decision.
Claimant was originally incarcerated in 1993. After serving his time, Claimant
was released, but was again arrested in 2004 for possessing a weapon. He was
then convicted of criminal possession of a weapon in the third degree, resulting
in his second incarceration. Claimant testified that the circumstances
resulting in the second conviction created the issue with a gang called the
Bloods and was the reason he was assaulted on October 18, 2005 while
incarcerated at Orleans.
Claimant testified that his problems with the Bloods started in 1992 with a
particular person named Edward Buckner, also known as
Claimant states Mr.
Buckner was a high-ranking member of the Bloods. Claimant admitted to selling
drugs and robbing people during that time, but he refused to join the Bloods and
this became an issue because he was invading their territory.
In 2000, a year after Claimant was released from his first period of
incarceration, he was robbed at gunpoint by Edward Buckner. Although Claimant
filed a police report concerning this incident, he testified that the police did
nothing about it. Then, in 2004, Claimant was again robbed at gunpoint by Mr.
Buckner and “his associates.” Claimant noted that he had received
threats through a third party from Mr. Buckner that “he’s going to
get me” in the time between the two robberies.
After he was robbed a second time, Claimant purchased an illegal firearm for
his own protection and the protection of his family. He carried the firearm
when he was not working and had errands to do in the neighborhood. Police
arrested Claimant for possession of an illegal firearm and the complainant was
Edward Buckner. The authorities processed Claimant and transferred him to
Rikers Island (“Rikers”) to await trial. Claimant testified that he
was assaulted by the Bloods at Rikers. After he was convicted and sentenced,
Claimant was transferred from Rikers to Downstate Correctional Facility
(“Downstate”). He stayed in Downstate without incident until he was
transferred to Orleans in early 2005.
Claimant described how he was processed at Orleans. He arrived by bus along
with several other inmates. All inmates and their bags of property were taken
to a reception building. Here they were given a security interview. The
interview was conducted in a small room with only the inmate and a correction
sergeant present. Claimant stated that this interview was not very long, about
5 to 10 minutes. Claimant testified that during his interview, he informed the
sergeant that he had enemies and that he had problems with the Bloods at Rikers
and he explained the background of his problems from 1992 forward. Claimant
testified that he also told the sergeant that on the bus ride from New York City
to Orleans, Claimant had heard that Orleans had a lot of gang activity.
Claimant stated he was told by the sergeant, “If you don’t have a
name, there’s nothing I can do to help you.” Claimant admits he did
not ask for any assistance at that time. Claimant signed a form and was then
escorted to his housing unit.
Soon after his security interview, Claimant met his counselor, Jose Reyes. Mr.
Reyes’ first interview with Claimant was a “needs assessment,”
that is, determining what type of programming Claimant needed. Claimant
testified that he also took that time to explain to Mr. Reyes his problem with
the Bloods and asked Mr. Reyes to work on transferring him out of Orleans.
Claimant stated that because he did not have names of specific individuals, Mr.
Reyes told him there was nothing they could do to help Claimant and that he
would just “have to ride it out.” Claimant testified that he signed
a form at the conclusion of this meeting which indicated affirmatively that
Claimant had known enemies. Claimant was unable, however, to testify as to the
details of the form’s contents. He was adamant at trial that Orleans had
“a lot of gang activity” and that gang members could be identified
by their clothing.
Claimant testified regarding his observations of gang activity at Orleans. He
stated all inmates wore State-issued pants, but their shirts could be any color
except gray and orange because correction officers wore those colors. Members
of the Bloods wore red sweatshirts or shirts and had a folded white handkerchief
in their back pocket that hung over the top of the pocket so it was visible.
Claimant estimated that there were 50 to 80 Bloods in Orleans at the time of the
Claimant observed that groups of
Bloods congregated in certain places at certain times of the day. For example,
they watched television together in the housing units, they stood together in
the yard and, at night, they would go to the gym together. If a non-member,
what Claimant referred to as a “civilian,” approached the group or
the group’s area, the civilian could be assaulted. Claimant stated he
observed “over 50 assaults” while he was at Orleans. These assaults
occurred “in blind spots,” that is, out of the view of officers.
Examples of such places include showers, bathrooms, laundry areas and even some
spots on walkways. Claimant testified that gang members would stage fights to
distract officers so they could attack another inmate.
Claimant also testified that gangs manufactured weapons as a group. He
personally observed the process a few weeks after arriving at Orleans. One
member would keep watch for officers and another member would sharpen a piece of
metal on the cement floor in the laundry room. Handles for the metal objects
were manufactured using materials found in the facility such as bed linens,
toothbrushes and tape. Completed weapons were hidden in the common areas around
the facility such as hollow chair legs, under washing machines and in shower
heads. The inmates also manufactured “sock weapons” that are,
essentially, canned goods in tube socks that, when tied tightly at the open end,
become “baseball bats.”
Claimant testified that, from the moment he arrived at Orleans, he felt
threatened just because he knew members of the Bloods were at the facility. He
does admit that nothing overt happened in the beginning. Then, a couple of
weeks later, Claimant began to get messages from an inmate with whom Claimant
had a passing acquaintance. This inmate told Claimant that another inmate
(apparently a member of the Bloods) wanted to meet him in the yard. Claimant
did not know this intermediary’s name and did not report him to Counselor
Reyes. Claimant refused to go to the yard when summoned and began to find ways
to avoid the red-shirted inmates when he could. Claimant stated he even avoided
the mess hall so he could stay off the walkways and avoid contact.
The messages relayed to Claimant through the inmate intermediary became more
threatening over time. Claimant stated he told Counselor Reyes every few weeks
that he really needed to transfer, but Claimant stated Counselor Reyes told him
that he needed more specifics about who was threatening him. After he was in
Orleans for four months, Claimant wrote a letter to J.
, sealed it in a correction envelope
and placed it in the Correctional Officer’s post. According to Claimant,
he never received a reply. Claimant could not produce a copy of this letter,
claiming he was not permitted to use the copy machine. Claimant testified that
he wrote a second letter to Deputy Superintendent Skinner a week or two later.
Again, he received no reply. Claimant also failed to retain or acquire a copy
of the second letter.
Claimant was assaulted on October 18, 2005. Although he normally ate lunch in
his dormitory, which was in F Block, he went to the mess hall for lunch that day
because he was out of personal food. F Block is next to G Block in the back of
Orleans - they are the last two housing units on the facility’s compound.
Claimant arrived in the mess hall and ate his lunch without incident.
After he ate lunch, Claimant exited the mess hall and began to walk the route
back to his dormitory. He was required to stay on the walkways. Generally, he
observed two guard posts on the walkway, one in front of the mess hall and one
just before his dormitory. In Claimant’s opinion, an officer standing at
each post gives the walkway one hundred percent coverage. Most of the time he
was at Orleans, however, the guard posts did not have an officer in them.
According to Claimant, on October 18, 2005, the guard post outside the mess
hall was empty and inmates were “everywhere.” Claimant walked
straight away from the entrance, 100 to 200 feet, turned left onto a second
walkway, walked another 300 feet where he intended to turn to go into his
dormitory. During his walk up to this point, he observed no guards and he
observed groups of inmates congregating on the walkways.
Claimant stated that, at this juncture, the walkway resembled an intersection
and he could observe the second guard post, which was also empty. He noticed a
crowd of 5 to 10 inmates gathered on the walkway ahead of him. They were
wearing red sweatshirts and had white handkerchiefs in their pockets. The crowd
was coming toward Claimant and he noticed an inmate to his far left reaching
into the pocket of his sweatshirt. Claimant kept walking toward the group. As
he walked, he heard his name called and, as he turned to see who had called to
him, he was struck so hard on the left side of his face that he was knocked to
the ground. When he was on the ground, he noticed he had been hit with a can
inside a sock. As he lay on the ground, the inmate he had seen with his hand in
his pocket seconds before displayed a “shank” - a 6 inch to 8 inch
piece of metal, like an ice pick, with tape wrapped around it like a handle.
When this inmate raised his arm to attack Claimant, Claimant covered his face
and chest and the shank went through his arm. As Claimant attempted to protect
himself from the shank, the other inmates were kicking and hitting him in the
head and back.
Claimant testified that he yelled for help during the assault. Two inmates
came to his aid after the physical attack to help him up. No officer responded
at this point. Claimant saw his attackers run away into various housing units.
The two inmates who responded helped Claimant to his dormitory. Claimant stated
that he saw no officer at his dormitory entrance and so he proceeded to the
bathroom where he washed the blood off his face and body. At this point,
Claimant began to feel dizzy, so he went to his cubicle where he sat and waited
for an officer to return. Claimant stated that, while waiting, he passed out
for an indeterminate amount of time. Upon waking, he went to the infirmary to
seek medical care. From the time Claimant left the mess hall until he arrived
at the infirmary, he stated he did not see a single officer.
The first officer Claimant saw after his assault was an officer at the
infirmary. That officer took a report and called an Area Sergeant. When the
sergeant arrived, Claimant was already in a hospital bed being treated by a
doctor. Claimant testified that he told the sergeant, as well as other officers
who questioned him, that he had been assaulted by the Bloods. Claimant stated
that he was told “[T]hese f ing guys is [sic] out of
control here. I know. I know, but there’s nothing we can do to f
ing control these guys. They’re taking over the jail.”
Claimant was taken to an outside hospital by ambulance for further
Claimant testified that he wrote Deputy Superintendent Skinner a third letter
while in the infirmary. Again, he received no response. Claimant then wrote a
fourth letter, this time to Superintendent Unger, stating he had not received a
response to his previous letters and that he needed to be transferred out of
Orleans (Exhibits 12 and 13). By this time, Claimant had been placed in
Sergeant Walter Conley (retired) was the “202 Housing Sergeant” on
the day Claimant was attacked. Sergeant Conley worked the 7 a.m. to 3 p.m.
shift, supervising the officers in Housing Units A through G. Approximately 840
inmates were housed in Orleans in 2005 (60 inmates in each of 14 dormitories).
Sergeant Conley had been with the New York State Department of Correctional
Services (“DOCS”) for just over 25 years when he retired; he served
11 years at Orleans as a sergeant. He credibly testified as to the typical
staffing in the mess hall and the yard.
According to Sergeant Conley, the mess hall has two sides. Four officers are
stationed on each side. One officer monitors the inmates entering and checks
their identification. Another officer monitors the silverware drop. The third
officer watches the serving line and the fourth is “in charge of calling
the inmates to the mess hall.” There are also other officers stationed in
With regard to staffing outside, Sergeant Conley indicated that a “Yard
Officer” is posted between the hexagons marked 31 and 33 on Exhibit J, the
Key Plot Plan for Orleans, during the mess hall run. This location is outside
the gym, Building 8, on Exhibit J. A second officer, the “School
Rover,” is posted near one of the shacks, marked 31 and 33 on Exhibit J.
This officer has the option of sitting in the shack or standing on the walkway.
It was not clear from Sergeant Conley’s testimony to which shack the
School Rover was assigned. Pictures of the shacks were provided by Claimant as
Two additional officers had responsibility for the yard during the mess run.
One officer, the “Roundsman 105,” was stationed in “the
point,” an area between housing blocks B, C and D. This appears to be
marked as a blue ink dot on Exhibit J. The second officer, “Roundsman
106,” is responsible for picking up “slips” and delivering
them to the administrative office, but once he has completed that task, he comes
back to the compound to help monitor inmate movement. Roundsmen are also
responsible for responding to emergencies, like fights, and for making Special
Housing Unit (“SHU”) escorts, if required.
Defendant’s next witness was Officer Steven Sikorski. Officer Sikorski
was the 7 a.m. to 3 p.m. housing officer on F-2 Dormitory, Claimant’s
dormitory, the day of the assault. He was the dormitory’s supervisor and
was responsible for answering the phones, waking up the inmates and directing
them in cleaning their cubicles and common areas. He also executed the count in
the dormitory. Exhibit H, which is comprised of selected pages from the F-2
Dormitory logbook, confirms Officer Sikorski’s bid that day and reflects
that he counted 59 inmates on the dormitory at 11:15 a.m. Inmates with program
assignments were called to lunch at 11:33 a.m. while the remaining inmates in
F-2 went at 11:54 a.m. He was relieved of his post at 2:55 p.m. and gave the
incoming officer a verbal census of 60 inmates in the dormitory. No specific
mention of Claimant is made in the logbook until 3:30 p.m. when it was noted
that he was at the hospital (Exhibit H, p. 178).
Correction Officer Philip J. Castricone also testified for Defendant. On the
day of the accident, Officer Castricone, who had worked 15 years at Orleans, was
one of the “roundsman” discussed above. (It appears from Sergeant
Conley’s testimony that Officer Castricone was Roundsman 106.) He
described his duties as walking the compound, checking all the buildings and
doors and delivering items needed by officers, such as batteries and paperwork.
These duties stop temporarily at approximately 11:15 a.m. when he walks to the
dormitories, the infirmary, the hospital and the mess hall to collect count
slips. He delivers these to the Administration Building (Building 1 on Exhibit
J) and then he goes back to making the rounds of the compound.
On direct examination, Officer Castricone was asked if he “kept an eye on
the mess run.” He responded that he did and added “[y]ou keep your
eye on everything when you’re out there as much as you can.”
According to Officer Castricone, he was probably in the Administration Building
delivering count slips at the time Claimant was assaulted. He typically arrived
at the Administration Building between noon and 12:15 p.m. Officer Castricone
did not see the assault upon Claimant and only heard about it the next day at
line up. However, the yard was completely covered by two other officers: a
school officer was posted at a location identified by the red circle directly to
the left of Building 5 on Exhibit J; and a yard gate officer was posted at the
green “X” on Exhibit J.
Claimant’s Counselor, Jose Reyes, also testified. He indicated that he
has been a Correctional Counselor at Orleans since 1991 and has been with DOCS
in that capacity since 1989. Mr Reyes counseled Claimant from the time he was
admitted to Orleans until he was transferred. Mr. Reyes met with Claimant every
three months, usually in his housing unit and “99 percent of the
time” in a closed office there. Mr. Reyes kept Claimant’s Guidance
Unit File (Exhibit A) and reviewed with Claimant various documents regarding
Claimant’s status once DOCS transferred Claimant to Orleans.
Mr. Reyes testified that he was unaware that Claimant was in any danger prior
to the assault. Had Claimant indicated to him that he felt threatened by the
Bloods, he would have called in an area sergeant to investigate. Further,
according to Mr. Reyes, prior to the incident, nothing in DOCS files regarding
Claimant indicated a problem with the Bloods. Finally, Mr. Reyes stated that,
despite Claimant’s testimony, there was no indication in DOCS records that
Claimant had been involved in an altercation at Rikers.
On cross-examination, Counselor Reyes admitted that he observed inmates with
red sweatshirts and bandanas but that the “policy that I’ve trained
myself with and that the Department of Corrections is we do not acknowledge an
unauthorized organization.” Counselor Reyes believes that to acknowledge
the existence of such a group gives them power. He dealt with gang-related
threats by asking the complaining inmate for names or identification numbers of
inmates the complaining inmate feared. If he identified an inmate, an
investigation was started. If the complaining inmate was getting threats
through a third party and the complaining inmate identified him, an
investigation was started. In any event, it would be the Deputy of Security who
decided whether or not an investigation was warranted. It is undisputed that no
such investigation involving Claimant was conducted prior to the assault.
Lieutenant Paul Makowski testified next for Defendant. Lieutenant Makowski
interviewed Claimant after the assault on October 18, 2005. The facts of the
assault are essentially as Claimant testified to at trial except the Lieutenant
stated that, after he was assaulted, Claimant intended to return to the yard
“to get one of them” before he was overcome by the pain. The
Lieutenant also reported that Claimant stated he had a problem with the Bloods
because “he shot a leader in New York City.” This testimony is
consistent with Lieutenant Makowski’s written report, dated October 18,
2005 (Exhibit L). As a result of the incident, Claimant received an Inmate
Misbehavior Report for failing to promptly report his injuries to a facility
employee, as well as a recommendation and assignment to protective custody
status (Exhibit L).
Lieutenant Makowski testified that Defendant acknowledges that there are
inmates in the correctional system that were Bloods “out on the
street.” However, the Bloods are not acknowledged as a group or
organization in the correctional system. Defendant attempts to control
“unauthorized organization” activities like recruitment and
possession of “code sheets” or paraphernalia by making such activity
a violation of inmates’ standards of behavior. Lieutenant Makowski stated
that, while he recognizes some tattoos as signifying a gang affiliation, he
cannot tell gang affiliation by the clothing an inmate wears.
When asked on cross-examination how information about an inmate perceived to be
a potential victim of an assault by the Bloods would be treated, Lieutenant
Makowski opined that he would conduct a private interview to gather more
information and ascertain if a request for protective custody was warranted. He
would not necessarily consider the inability to identify a specific inmate as
the end of the inquiry. He sometimes can use information from informants, but
that can be difficult because informants may then themselves become targets of
violence. He might also gather useful information from other sources such as
inmate correspondence or the Guidance Department.
Claimant’s position is that Defendant is liable for his injuries because
the attack on him by other inmates was foreseeable and Defendant failed to
protect him. In addition, Claimant argues that Defendant should be held liable
because it failed to provide sufficient supervision of inmate movement at the
time of the assault.
The State, “which has ‘assumed physical custody of inmates, who
cannot protect and defend themselves in the same way as those at liberty
can,’ (Sanchez v State of New York, 99 NY2d 247, 252 ) 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
(id. at 253)’ . . . It requires a special set of circumstances or
a clear pattern of events for the risk of harm to a particular inmate from
gang-related violence to be considered foreseeable” (Samper v State of
New York, Ct Cl, January 26, 2007 [Claim No. 102210], Sise, P. J., UID No.
An articulated general fear of unknown enemies would lack the specificity
needed to allow Defendant to take reasonable precautions to prevent an assault
(Colon v State of New York, Ct Cl, November 9, 2006 [Claim No. 109125],
Minarik, J., UID No. 2006-031-523). A claim that a prior assault was
gang-related, or the injured inmate’s failure to disclose he had been a
gang member and his failure to disclose known enemies would not create the
foreseeability necessary to find the State liable (Gonzalez v State of New
York, 7 Misc 3d 1012[A]). Even where an inmate has been the victim of a
previous gang attack, foreseeability is not established (Savoca v State of
New York, Ct Cl, December 3, 2003 [Claim No. 98982], Ruderman, J., UID No.
2003-010-037; see also Samper v State of New York, supra). However,
there are instances where foreseeability may be established.
In Faust v State of New York (Ct Cl, February 13, 2001 [Claim No.
101112, Motion No. M-62775], Bell, J., UID No. 2001-007-086), an inmate provided
gang-related information to prison officials several times, received specific
threats in two different facilities and was finally assaulted at the third
facility. The Court denied the State’s summary judgment motion, holding
that the State could be potentially liable because prison officials knew of a
specific threat and signed a report requesting protective custody or transfer.
In Douglas v State of New York (Ct Cl, May 17, 2007 [Claim No. 108585],
Sise, P. J., UID No. 2007-028-012), the State was held liable for injuries to an
inmate relating to the third of three attacks that occurred within 11 months
where the inmate had a credible listing of prison gang involvement, served as an
informant (or was at least perceived to be an informant) and constantly
requested protective custody.
Here, Claimant alleges that he first alerted Defendant that he had problems
with the Bloods at his Security interview at Orleans. Lieutenant Makowski
explained his typical interview process. Incoming SHU inmates were interviewed
in S Block while inmates like Claimant were interviewed in a private room in the
draft process trailer. Exhibit C, the security interview sheet, is the form he
would fill out and ask the inmate to sign. Lieutenant Makowski usually would
not have access to a separatee list or computer files and relied upon what the
inmate would tell him. The length of the interview varied depending on how much
the incoming inmate wanted to tell him. Here, Sergeant Gary F. Herman actually
conducted Claimant’s security interview.
When called to testify, Sergeant Herman acknowledged he had no independent
recollection of his interview with Claimant. He explained his typical process
which corresponded with Lieutenant Makowski’s description, but gave more
detail about the space on the form for “Sergeant’s Comments.”
He testified that had he been told by the interviewing inmate that he had a
problem with the Bloods or any other unauthorized group, he would have made a
written record on the Security Interview form, asked further questions and
offered protective custody. If the inmate agreed, the inmate would have signed
the Voluntary Protective Custody form, the sergeant would have outlined the
reasons and then submitted it for action. He testified he would then contact
the Watch Commander and escort the inmate to a secure area. I found Sergeant
Herman to be a credible witness. I believe if Claimant had stated his case and
fears to Sergeant Herman at his interview as adamantly as he has at trial, there
would have been, at the very least, a notation in the “Sergeant’s
Comments” on Exhibit C.
I have reviewed Exhibit A
and note the
following: On April 5, 2005 at Downstate, Claimant refused to acknowledge the
existence of any Order of Protection forbidding Claimant from contacting Edward
Buckner and James Wilson. A “separatee list” (also Exhibit B) lists
three individuals with no comments. The individuals do not appear to be related
to Claimant’s underlying charge. Crime and Sentence Information (also
Exhibit G) dated “received 3/29/2005”
indicates Claimant had no accomplices or co-defendants, but does show that an
Order of Protection exists. The notes from the intake interview discuss the
details of the Order of Protection and state Claimant claimed to have no known
enemies in DOCS custody. I note that the form contains several sections for
notes regarding “other security characteristics” and only the Order
of Protection is listed.
Claimant was referred to the mental Health Unit twice before the assault (also
Exhibit D), indicating that he was not sleeping nor eating regularly. The
Security Interview Form (also Exhibit C) indicates no co-defendants, no known
enemies and no sergeant’s comments. The New York City Department of
Probation Pre-Sentence Investigation (also Exhibit F), described
Claimant’s underlying offense as “profit-motivated” and
Claimant’s state of mind as unremorseful. The City of New York Department
of Corrections’ “Inmate Transfer Information Sheet” (also
Exhibit E) indicates Claimant is a “deaf mute.” The Sentence and
Order of Commitment from Richmond County indicates the Court gave an order of
protection and “asks State Corrections to keep inmate close to New York
City.” I concluded after my review of Exhibit A that it contained no
reference to Claimant having problems with the Bloods. Counselor Reyes had
Exhibit A at his disposal and testified that he reviewed it.
I do not doubt that Claimant discussed his predicament with Counselor Reyes.
Counselor Reyes testified he would have requested an investigation if Claimant
had provided either the name of an inmate that threatened him or the identity of
the intermediary. If Counselor Reyes had reviewed Claimant’s Guidance
File as he testified he did, like me, he would have found nothing that
corroborated Claimant’s belief - the file is devoid of any mention of
gang-related activity by or on behalf of Mr. Buckner, the person named in the
Order of Protection.
It is undisputed that Claimant was assaulted and seriously injured by inmates
wearing red shirts. Also, Claimant’s description of gang-related activity
in Orleans is credible. Neither fact alone, or even taken together, however,
constitutes actual or constructive notice to Defendant that Claimant would be
assaulted. Nor was the attack foreseeable; I believe the State correctional
system has a problem with gangs, or, as DOCS calls it, “unauthorized
organizations,” as evidenced by the string of citations of Article 78
proceedings provided by Claimant. However, I have no evidence in this record
that Defendant’s current process for handling this issue is somehow
negligent or inappropriate.
Further, regarding Claimant’s assertion that the yard was insufficiently
supervised for the lunch movement, I find that the record is insufficiently
developed to support that theory. Claimant failed to demonstrate that the State
had notice that a dangerous situation existed prior to the assault. Absent
notice that a dangerous situation existed, unremitting supervision is
unnecessary (see Hirsh v State of New York, 8 NY2d 125; Padgett v
State of New York, 163 AD2d 914; Carlino v State of New York, 30 AD2d
987, 988). As state by Judge Bell in Tucker v State of New York (Claim
No. 85578, filed September 10, 1996):