New York State Court of Claims

New York State Court of Claims

RAYMOND v. THE STATE OF NEW YORK, #2008-040-056, Claim No. 107671


Prisoner – assault by fellow prisoner. Claim dismissed as Court found Claimant failed to establish by a preponderance of the credible evidence that Defendant was negligent.

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:
David Raymond, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 2, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, David Raymond, has failed to establish by a preponderance of the credible evidence that the State of New York was negligent in connection with injuries he sustained in an inmate-on-inmate assault while he was incarcerated in the Special Housing Unit (“SHU”) at Upstate Correctional Facility in Malone, New York (“Upstate”). The trial of the Claim was held by video conference on May 8, 2008, with the parties at Clinton Correctional Facility in Dannemora, New York, and the judge at the Court of Claims in Saratoga Springs, New York. There were four witnesses: the Claimant, Correction Officer (“C.O.”) Michael Riley; Corrections Counselor Terry Hutchins; and Lieutenant (“Lt.”) Theodore Zerniak.

Claimant testified that he arrived at Upstate on April 3, 2002 and was placed in a cell with inmate Mario Zanghi. Upstate is a SHU facility for inmates with disciplinary problems. Mr. Raymond testified that Mr. Zanghi was “always highly stressed” and “agitated.”[1] C.O. Riley described Mr. Zanghi as “a little bit – let’s say – high-strung . . . I don’t know, maybe he is a little off the wall.” State psychologist David Munn met with Mr. Zanghi in his cell on April 4, 2002, the day after Claimant was placed in the cell. Mr. Munn reported Mr. Zanghi said that “he could not be in a cell with another man. He told me he had assaulted his two previous bunkies and that should get him a single cell designation” (Ex. A, p. 4). Claimant wrote that he overheard this and told Mr. Munn “I didn’t want to be in a situation that could lead to further trouble. I expressed to him that I had a very short SHU time here, and I was not trying to extend my stay” (Ex. 1, exhibits, p. 6; see Ex. 1, Claim, ¶ 5[B]).[2]

In any event, Claimant testified that he was able to placate Mr. Zanghi during most of the month they shared a cell. Mr. Raymond agreed that there were no physical altercations between them during the period from April 3, 2002 until April 30, 2002. He also agreed that he never made any written complaints about a problem with Mr. Zanghi prior to the day of the attack.

Claimant testified that the situation deteriorated, however, on April 29, 2002. Mr. Zanghi “started pacing in the cell, threatening me verbally, and telling me that I better get out of the cell or he was going to do something drastic.” In the early afternoon, Claimant tried to attract the attention of Sergeant William Trombly as he made his rounds, but the Sergeant was unavailable to speak to him (see Ex. 1, Claim, ¶ 5[C]; Ex. 1, exhibits, p. 6; Ex. A, p. 8). Claimant said he stayed by the cell door in hopes of speaking with another officer, but was unsuccessful. Eventually, Mr. Zanghi told Claimant to get into bed and be quiet. Mr. Raymond complied.

Mr. Zanghi became agitated again at about 9:30 p.m. and ordered Mr. Raymond to attract an officer’s attention (see Ex. 1, Claim, ¶ 5[D]; Ex. 1, exhibits, p. 6). Claimant testified that he banged on the cell door and that C.O. Barney responded. Claimant told the officer that Mr. Zanghi had threatened him and he asked to be moved. Claimant testified that Mr. Zanghi also asked to be moved, saying that he could not be in the cell with another inmate.

C.O. Barney left. Later, he and C.O. Trombley (a different officer than Sergeant Trombly) returned and said that Claimant could not be moved because his complaint would have to be investigated and resolved during the next day’s 7 a.m. to 3 p.m. shift. Mr. Raymond said he asked the officers to report his concerns to the area supervisor, Sergeant Dominie, but the Sergeant did not come to the cell to speak with him (see Ex. 1, Claim, ¶ 5[D]; Ex. A, pp. 9-10).

The parties disagree about how the matter was left on the evening of April 29, 2002. According to the officers, Mr. Raymond agreed that the problem could wait until the following day to be resolved. C.O. Barney’s report noted that Claimant said “O.K., but I’m not promising anything” (Ex. A, p. 10; see id., p. 9; Ex. 1, exhibits, p. 63). Claimant questioned whether those were his exact words. In any event, he testified that his point was that “if you [the officers] are not going to move me, I can’t walk through the door. I have to stay in here. But, . . . this inmate is threatening me . . . I’m not going to cause any problems, but I couldn’t tell them what he [Mr. Zanghi] was going to do.” He insisted, however, that he never agreed to remain in the cell. To the contrary, he said that he knew there would be trouble, he had packed his belongings, and he pleaded to be moved (see Ex. 1, exhibits, pp. 7, 64-65). No physical altercation occurred that evening.

Claimant explained that the next morning, April 30, 2002, was a shower day for the inmates. Mr. Raymond testified that he again expressed concerns about his safety when C.O. Riley came to distribute shower bags. C.O. Riley testified that is when he first learned about Claimant’s problem with Mr. Zanghi, although he had made other rounds earlier that morning. C.O. Riley relayed Mr. Raymond’s concerns to Sergeant Trombly within 10 to 15 minutes. Claimant stated that he thought C.O. Riley had done his job correctly.

Meanwhile, back in the cell, Mr. Zanghi showered first and got out of the shower at about 8:50 a.m. Claimant testified that he turned his back and faced the rear window of the cell in order to provide Mr. Zanghi with some privacy while the latter dressed. On cross-examination, Mr. Raymond explained that he turned away, even though he feared for his safety, because he thought Mr. Zanghi might become upset if he thought Claimant was looking at him when he was naked. Claimant testified that, while he was facing the rear of the cell, Mr. Zanghi came up behind him and slashed him twice on the face with a blade that he had removed from the razor from his shower bag.

While C.O. Riley was conferring with Sergeant Trombly, they heard banging coming from the cell gallery. Several officers responded and found Claimant at the cell door, bleeding from the face (Ex. 1, exhibits, pp. 10, 13, 16-17). C.O. Riley described Mr. Zanghi as being “very agitated” (Ex.1, exhibits, pp. 19[a], 29; Ex. A, p. 6). Officers Riley and Ramsdell each reported that they heard Mr. Zanghi repeatedly say to Claimant, “I told you I was going to get you” (Ex.1, exhibits, pp. 17, 19, 19[a], 29; Ex. A, p. 6). Mr. Raymond insisted, however, that Mr. Zanghi was addressing the officers and said “see, I told you and I told you, and you wouldn’t listen. I told you I would hurt him” (see Ex. 1, Claim, ¶ 5[F]). Sergeant Trombly reported that Mr. Zanghi told him after the incident that “he [Mr. Zanghi] had nothing personal against [Mr.] Raymond but that he could not live in the same cell with anyone and that is why he cut him” and promised to do the same thing again to any other cellmate (Ex. 1, exhibits, p. 23; see Ex. 1, exhibits, p. 20).

Claimant testified that he was taken from the cell to receive medical attention, including 31 internal sutures and 31 external sutures to close wounds to the left side of his face (see Ex. 1, exhibits, pp. 22[g], 22[h]). He reported that he felt “fine” at trial and gave “credit to the surgeon who stitched my face,” whom he said “did a very good job.” He stated that he will have scars for the rest of his life, though “they’re not really bad.” He said that he went through a lot of pain, but the scars “healed very well.”
“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 Flaherty v State of New York, 296 NY 342, 346 [1947]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). As in any other negligence action, “the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived” (Sanchez v State of New York, 99 NY2d 247, supra at 252; see Basso v Miller, 40 NY2d 233, 241 [1976]; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). Even though the “precise manner in which the harm occurred” may not have been foreseeable, liability attaches if it was “within the class of reasonably foreseeable hazards” to which the duty applies (Sanchez v State of New York, 99 NY2d 247, supra at 252; Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]). Moreover, it applies to those risks that were foreseeable, “not simply by actual notice but by actual or constructive notice – by what the ‘State knew or had reason to know’ ” (Sanchez v State of New York, 99 NY2d 247, supra at 255, quoting dissenting op at 260 [emphasis in original]). In the instant Claim, it encompasses those risks that Defendant reasonably should have foreseen in the context of its operation of “a maximum security prison and having custody of inmates forcibly surrounded by felons – many of them with a proven capacity for violence” (Sanchez v State of New York, 99 NY2d 247, supra at 256).

At the same time, Defendant’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” (Sanchez v State of New York, 99 NY2d 247, supra at 256; Elnandes v State of New York, 11AD3d 828 [3d Dept 2004]).
The State has been found negligent in inmate-on-inmate assault claims where Claimant was able to establish that the attack was foreseeable because: (1) Defendant knew, or should have known, that the claimant was at risk of assault, yet failed to provide reasonable protection; (2) Defendant knew, or should have known, that the assailant was prone to perpetrate an attack, yet failed to take proper precautionary measures; or (3) Defendant failed to intervene or act when it knew, or should have known, that surrounding conditions were likely to engender or facilitate an attack (Smart v State of New York, Ct Cl, Claim No. 98024, December 21, 2007, Mignano, J. [UID No. 2007-029-053]; Douglas v State of New York, Ct Cl, Claim No. 108585, May 17, 2007, Sise, P.J. [UID No. 2007-028-012]; Shearin v State of New York, Ct Cl, Claim No. 108798, May 8, 2007, Sise, P.J. [UID No. 2007-028-011]).
The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so. The witnesses, particularly Claimant, provided generally sincere and forthright testimony. Nevertheless, the Court finds that Claimant did not meet his burden of proof and failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with the attack perpetrated upon him.
Claimant did not establish that Defendant knew, or should have known, that he was at risk of assault and failed to provide reasonable protection. Mr. Raymond shared a cell with Mr. Zanghi for nearly a month without incident. He acknowledged that he did not make any written complaint to prison authorities about fears for his safety, or threats by his cellmate. The day before the attack, Mr. Raymond did try to alert correction officers, orally, about his deteriorating relationship with Mr. Zanghi and concerns about his safety. Those efforts appear to have failed, however, to convey a sufficient sense of urgency.
Lt. Zerniak testified that he was familiar with DOCS’ policies and procedures, explained that cell transfers typically occurred during the day shift (7 a.m. to 3 p.m.) because appropriate staff (counselors, mental health staff, clergy, etc.) were available then to conduct any necessary interviews and assessments. He testified that immediate separation of cellmates was required only in an emergency, such as where a rape, fight, or significant injury was alleged to have occurred.
Lt. Zerniak did not believe it would constitute an emergency if an inmate, who was told that his concern would be addressed in the morning, replied “O.K., but I’m not promising anything won’t happen.” To the contrary, he said that was a common occurrence. If the inmate instead indicated that his problem or concern could not wait, then the threat would have to be assessed and a determination made as to whether or not the inmate needed to be moved immediately. The witness further stated that area supervisors were not required to come to the cell if the reporting officers did not believe an emergency existed. He also noted that there was only one supervisor for the entire facility during the night shift. On the day and afternoon shifts, there were area supervisors for each cellblock.
Claimant’s statements to the officers did not express an emergency situation, or the threat of imminent physical harm, of the type cited by Lieutenant Zerniak as bases for an immediate separation of cellmates. The Court concludes that an unfortunate, but honest, miscommunication occurred such that the officers on the evening of April 29, 2002 believed that the matter could wait to be resolved in the morning. The next morning, C.O. Riley did report Claimant’s concerns promptly upon hearing them and was in the process of conferring with Sergeant Trombly when the attack occurred. Indeed, Mr. Raymond testified approvingly about the way the officer responded. “Implicit in the requirement that defendant be put on notice of a dangerous condition or situation, it is necessary to prove that the threat was communicated to the defendant” (Johnson v State of New York, Ct Cl, Claim No. 103166, December 3, 2003, Hard, J. [UID No. 2003-032-523]). Under the circumstances of this Claim, the Court concludes that Claimant failed to establish by a preponderance of the credible evidence that Defendant knew, or should have known, that Mr. Raymond was at a greater risk of assault than any other inmate in the inherently volatile environment of a correctional facility.
Moreover, the Court determines that the record is insufficient to establish that Defendant knew, or should have been expected to know, that Mr. Zanghi was prone to perpetrate his attack upon Mr. Raymond, or that there was an increased likelihood that an assault could occur. Thus, the State was not under a heightened duty to take special precautions.
Some psychiatric assessments in early 2001 did describe Mr. Zanghi as a “potential threat to others” (Ex. 1, exhibits, p. 30) with a “history of assaultive behavior,” a “history of danger to others” (id., p. 33), and as “[a]ntisocial” (id., p. 37). Yet, a November 13, 2001 psychiatric entry, while still noting that he was “violent,” concluded that Mr. Zanghi had “adjusted to SHU. [He] no longer needs or requests services” (id., p. 46). A March 28, 2002 notation in Mr. Zanghi’s Ambulatory Health Record (“AHR”) regarding his request to see the Office of Mental Health about decreases to his medications stated that he denied being a threat, either to himself or others (id., p. 50), and an April 22, 2002 AHR entry again indicated that Mr. Zanghi denied being a threat to himself (id.).
Mr. Raymond testified that Mr. Zanghi had assaulted two previous cellmates. In at least one instance, Mr. Zanghi received an inmate misbehavior report in which his cellmate said that Mr. Zanghi twice pulled him out of his top bunk and threw him to the floor (Ex. 1, exhibits, p. 28).
Mr. Munn, however, reported that Mr. Zanghi’s claimed assaults were unsubstantiated. In a memorandum, dated May 14, 2002, Mr. Munn noted that Mr. Zanghi had been at Upstate for six months in a double bunk with “what looks like a good disciplinary history in the SHU. There was no evidence of him assaulting two other bunkies. Apparently he was given tickets for assault but they were thrown out” (Ex. A, p. 4). Mr. Munn “did not see any reason why we should recommend single cell status based on his good adjustment and lack of disciplinary problem here at Upstate” (id.). Mr. Munn also stated that he met with both Mr. Zanghi and Claimant on April 10, 2002 and “they appeared to be getting along well. Once again I came to the conclusion that single cell status was not warranted for psychological reasons” (id.). Mr. Raymond expressed to Mr. Munn a very practical concern. He did not want to be assessed additional disciplinary confinement in SHU if Mr. Zanghi acted out. He did not, however, express concern about his safety.
Corrections Counselor Terry Hutchins testified that, in April 2002, he made daily rounds on Claimant’s cellblock to speak with inmates about their concerns and to forward any problems to the area supervisor. He recalled Mr. Raymond and said that Claimant never expressed any concerns to him, or fear for his safety, prior to the incident on April 30, 2002. Mr. Hutchins made an entry in his record of those encounters on April 26, 2002, four days before the attack, that Claimant was joking with Mr. Zanghi and Mr. Hutchins at the cell door (see Ex. A, pp. 11-12).
The Court is mindful that Mr. Hutchins testimony and recollections may have been colored by a subsequent, acrimonious verbal confrontation he had with Claimant,[3] but his contemporaneous record entry does corroborate Mr. Munn’s observation and conclusion that the two cellmates were getting along.
Psychiatric assessments several days after the attack on Mr. Raymond noted that Mr. Zanghi claimed “a long history of violent acts against others in prison, particularly cellmates . . . After physically assaulting two cellmates with his hands, he took it to ‘the next level’ by slashing the most recent one as an escalation of his attempt to stay to himself” and that Mr. Zanghi “should not be double-celled due to explosive violence toward any potential cellmate” (Ex. 1, exhibits, pp. 54-55). In hindsight, those assessments appear to be correct. The record before the Court does not support the conclusion, however, that Defendant knew, or should have known, prospectively, that Mr. Zanghi’s aggressive behavior would escalate to “the next level” and manifest itself in the violent slashing attack he perpetrated against Mr. Raymond.
Claimant has failed to establish his Claim by a preponderance of the credible evidence.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter judgment dismissing the Claim.
October 2, 2008
Albany, New York
Judge of the Court of Claims

[1].All quotations not otherwise attributed are taken from the audiotape recording of the trial.
[2].Exhibit 1 includes the Claim, as well as numbered pages in an attachment thereto.
[3].Mr. Hutchins believed that Claimant had been “inappropriate” in a dispute concerning telephone discussions Mr. Hutchins had with Mr. Raymond’s girlfriend about the incident (Ex. A, pp. 11-12). Mr. Hutchins denied Claimant’s allegation that the counselor used a racial slur, opining that it “reflects [Mr. Raymond’s] continued contempt for this corrections counselor and others in authority” (id., p. 3; see Ex. 1, exhibits, pp. 59-62).