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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CHRISTOPHER J. MCCARTHY
David Raymond, Pro Se
ANDREW M. CUOMO
Attorney General of the State of
New YorkBy: Michael C. Rizzo, Esq., AAG
October 2, 2008
See also (multicaptioned
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
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
1, Claim, ¶ 5[B]).
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 ; see Flaherty v
State of New York, 296 NY 342, 346 ; 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 ; 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 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.
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
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
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
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
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
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.
Albany, New York
HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims
.All quotations not otherwise attributed are
taken from the audiotape recording of the trial.
.Exhibit 1 includes the Claim, as well as
numbered pages in an attachment thereto.
.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”
., p. 3; see
Ex. 1, exhibits, pp. 59-62).