GONZALEZ v. THE STATE OF NEW YORK, #2008-040-057, Claim No. 105074
Prisoner – Liability only. Assaulted by cellmate. Court finds State
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CHRISTOPHER J. MCCARTHY
Michael Gonzalez, 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, Michael Gonzalez, has established 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 three witnesses: Claimant, Correction
Officer (“C.O.”) Jonathan Price; and Lieutenant (“Lt.”)
Claimant was transferred to Upstate in July, 2001. Upstate is a facility for
inmates with disciplinary problems. Shortly after his arrival, he was assigned
to share a double-bunk cell with inmate Carlos Gonzalez (the
“Assailant”). The two inmates are unrelated. Claimant testified
that there were problems from the beginning. He said that Assailant “came
in aggressive. He had a set way of how things were going to be as far as shower
schedules, cleaning schedules. And if there was any disagreement between us he
got upset, argumentative and aggressive. He would berate me verbally–a
lot of verbal belittlement–we argued a lot.”
Claimant wrote to Upstate’s superintendent in mid-July, 2001. His letter
was received in the facility’s executive office on July 19, 2001
(see Ex. 1A, p. 22). In the letter, Claimant asserted that Assailant
tried to start fights with him. He asked if he could be assigned to bunk with
another cellmate (id.). His letter was referred to Captain Racette
(see Ex. 1A, p. 21). Claimant wrote to Captain Racette on July 22, 2001
to explain that the problem was continuing (see Ex. 1A, p. 19).
Claimant testified “there was constant arguing and that [he] had a worry
that it would soon become physical.” When he did not hear back from
Captain Racette, Claimant stated that he filed a grievance explaining that the
problem was escalating. He wrote two letters to his counselor, but did not
receive a response. He then spoke to at least three correction officers on the
gallery “in detail about the problems [he] was having” with
Assailant (see Ex. A1, pp. 11, 13). Claimant also testified that he
spoke to Sergeant Banker, who said he would get back to Claimant after checking
to see if any other beds were available. Claimant said that he never heard from
Sergeant Banker again.
Lt. Zerniak was a sergeant in the summer of 2001. He confirmed that all inmate
complaints directed to the superintendent or a captain that allege threats of
physical violence were investigated by a supervisor. He testified that, in
2001, he was one of those supervisors and investigated Claimant’s
Claimant and Lt. Zerniak both testified that the then sergeant came to the cell
to speak to both inmates. Claimant testified that he again explained that they
were having “constant problems,” though Assailant disagreed.
Claimant said that Sergeant Zerniak said he would investigate, but Claimant
never heard from the officer again. Sergeant Zerniak stated, however, in a
memorandum, dated July 30, 2001, that when he interviewed the inmates Claimant
told him that they were “presently getting along” and that Assailant
agreed. Sergeant Zerniak concluded, “[t]herefore, I find no reason for a
cell change at this time” (Ex. 1A, p. 20).
On cross-examination, Claimant suggested that, when Sergeant Zerniak came to
interview the inmates, he said “you don’t seem to be arguing at
[this] time.” Lt. Zerniak did not recall making that observation. He did
agree though that, if Claimant had answered him, “no, we are not arguing
at the moment,” then he would not have made a cell move. He further
testified that he did not take Assailant’s past disciplinary history into
consideration when he investigated Claimant’s complaint. On
cross-examination, Lt. Zerniak also said that inmates would be separated if an
allegation of a serious nature, such as rape, or a weapons-related cut or
injury, occurred. He also said that inmates sometimes allege threats or
incitements to fight in an attempt to manipulate the staff. Inmates may want to
be moved to another cell to be with a friend and “we can’t do
Claimant said that he continued to speak to the correction officers on the
gallery about his cellmate up until the time of the incident.
Claimant testified that on August 2, 2001, the day before the attack, Assailant
went to a tier hearing to address threats he had made against the Superintendent
and indirect threats against Claimant. Assailant’s July 18, 2001
correspondence stated, “I wrote to you[, Superintendent,] alre[a]dy about
needing a [s]ingle cell because [I’ve] got too many [enemies. Also,] I
can’t be double bunked with other people[. M]y temper and personality
won’t allow it . . . If you don’t move me to a single cell[,] then
you will be responsible when something happens. I’m letting you know now
so any problems can be avoided. So[,] if I’m not moved to a single cell
then I’m going to do what I have to do” (Ex. 3C, p. 11). The Inmate
Misbehavior Report stated that Assailant’s letter “clearly
threatens the Superintendent” (Ex. 3C, p. 6). The hearing disposition
noted that the “disruptive[,] threatening behavior displayed by
[Assailant] in this incident cannot be tolerated. This disposition is given to
protect staff and inmates alike from the consequences of this behavior”
., p. 4).
When he returned from the hearing, Claimant testified that Assailant was
“anxious and irate and carrying on and I felt the problem was reaching a
head.” On cross-examination, Claimant readily admitted that it was his
handwriting on Assailant’s objection to the disciplinary charges for
having made threats (see Ex. 3C, pp. 9-10). “I did what I could to
appease him. It was a simple thing [to do] . . . I just wrote down what he
said.” On redirect, Claimant explained that Assailant “had his own
set way of doing things and, if you disagreed with it, there were problems.
Absolutely, when he came back from the tier hearing, as I said, he was irate.
He was aggressive. And, when he asked if I would write down his appeal for him,
as he dictated it, I complied. I wasn’t about to argue, especially when
he was in that state.”
Claimant testified that he spoke to C.O. Jonathan Price on August 3, 2001, the
day of the incident. C.O. Price testified that he was the company officer on
that day, in charge of the gallery where the attack occurred. Claimant
explained to the officer that he was having “serious problems” with
his cellmate and asked if he could speak to a sergeant about being moved. C.O.
Price said he would ask a sergeant to come see Claimant.
Claimant testified that he stopped C.O. Price again later that night, to renew
his request, but the officer said that no sergeant was available at that time.
C.O. Price testified that, at 10:15 p.m., while Claimant was speaking with him
about the problems the inmates were having, Assailant “went up and punched
[Claimant] in the back of the head. [Claimant] went to the ground. And
[Assailant] punched him with closed fists and kicked him” (see Ex.
3C, p. 27). On cross-examination, he agreed that Claimant did not fight back.
Claimant was taken to the infirmary. The Inmate Injury Report stated that
Claimant was treated for a “flap laceration approx[imately] [half an inch]
under chin gaping” (see Ex. 2B). On cross-examination, Claimant
agreed that no weapon was used in the attack and he did not receive any stitches
for his injury.
Claimant testified that physically he felt “fine” at trial and was
not in pain. He has a scar from the assault on the left side of his chin, at
the jaw line. It is visible even though Claimant wears a goatee-style beard.
No facial hair grows where the scar is located, but it otherwise is smooth in
appearance and without any discoloration in comparison to the surrounding skin
tissue. It is about the size of a fingertip in the shape of an inverse letter
“L,” the base of which is about half an inch long, and the upright
portion is slightly shorter, about one-quarter inch long. The parties agreed
with that description.
Claimant testified that it was only after the incident that he learned of
Assailant’s disciplinary history. Claimant noted that, at the time of
the incident, Assailant already had been cited for four violations of violent
conduct, two assaults on other inmates, one weapons charge, one for threats, and
four for fighting (see
example, Assailant pleaded guilty and received one year’s SHU confinement
and other penalties for fighting with his cellmate on July 4, 2001, less than
one month before Assailant assaulted Claimant (see
Ex. 3C, pp. 12-22).
Assailant told Sergeant Banker that fight occurred because “he feels he
can’t be double bunked” (id
., p. 20). Sergeant Banker and
Lieutenant DuBray also reported that Assailant had been involved in five cell
fights and had been moved on six other occasions because of problems with his
Ex. 1A, pp. 12, 17).
“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 a
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 provided generally forthright testimony. The Court
particularly credits Claimant’s sincere, credible and unembellished
testimony. The Court finds that Claimant has met his burden of proof and
established by a preponderance of the credible evidence that Defendant was
negligent in connection with the assault perpetrated upon him.
Claimant established that Defendant knew, or should have known, that Claimant
was at risk of assault and failed to provide reasonable protection.
The Inmate Grievance Review Committee examined Claimant’s post-assault
complaint about the way his requests to be moved were handled. It determined
that he “did not bring the situation to [the staff’s] attention
until the day of the altercation” (Ex. 1A, pp. 9, 14-15). That conclusion
clearly is mistaken. The record establishes that Claimant made several written
requests to be moved because he feared that Assailant’s aggressive
behavior would escalate, ending in violence.
The Court also credits Claimant’s testimony that he made numerous oral
complaints. C.O. Price testified that Claimant did not express any safety
concerns to him earlier on the day of the assault. On cross-examination,
however, he also conceded that he is stopped “frequently” when he
works on a cell gallery and would not recall it now if Claimant had asked to see
a supervisor at the beginning of his shift to discuss a possible cell move. The
officer’s testimony, though sincerely offered, ultimately did not refute
Moreover, the record clearly demonstrates that Defendant was aware of
Claimant’s concerns because the matter was under investigation at the time
of the assault, although the documents also evidence internal confusion
regarding the progress of those investigations and the actions taken in response
For example, the Inmate Grievance Review Committee stated that the block
sergeant “was in the process of making [a] cell move when [the]
altercation took place” (Ex. 1A, pp. 14-15). Yet, Sergeant Zerniak
concluded, on July 30, 2001, that no cell change was required (Ex. 1A, p. 20).
Sergeant Banker reported that, on August 4, 2001, he received Claimant’s
letter asserting that the two cellmates were not getting along. He stated that
he interviewed both inmates and indicated that he was “investigating this
situation further” (Ex. 1A, p. 17; see id
Lieutenant DuBray also stated that the investigation was ongoing at the time of
the attack (see Ex. 1A, p. 12).
Claimant also noted that Captain Racette wrote to him on August 10, 2001(one
week after the attack) to apprise him that the area supervisor had
“determined that you and your current cellmate are getting along and there
is no reason for a cell change at this time. Based upon [that] information, no
further action will be taken at this time” (Ex. 1A, p. 18). In other
words, not only did Captain Racette believe the matter was closed, without a
cell change being contemplated, but he also appears to have been unaware that an
assault already had taken place.
The Court further concludes that Defendant knew, or should have known, that
Assailant was prone to perpetrate an attack, yet failed to take proper
precautionary measures. Assailant was disciplined at a tier hearing, conducted
the day before the assault, because he made threats against Upstate’s
Superintendent and indirect threats against Claimant. Defendant deemed those
threats serious enough and credible enough to warrant disciplinary action even
as it discounted Claimant’s written and oral complaints about similar
threats by Assailant.
Finally, the Court rejects Defendant’s suggestion that the assault was
staged by Claimant acting in concert with Assailant. Lt. Zerniak and C.O. Price
each testified that attacks often are choreographed by inmates so that they can
be witnessed by correction officers. Inmates may stage such fights, for
example, in order to avoid double bunking, or to get moved to another cell.
Neither witness asserted or opined, however, that was true in the case of the
Claimant agreed that the assault occurred while he was speaking with C.O.
Price, so it was clear the officer would witness the incident. When asked
directly if he and Assailant devised a scheme to stage an assault, bring a
lawsuit, and split the proceeds, Claimant replied, “not at all.” On
redirect, he explained, “[a]ll I wanted to do was get out of the cell . .
. That the fight took place, the attack took place, while Officer Price was
there, that was his [Assailant’s] choice . . . I never even saw it
coming. And I certainly didn’t conspire to have a scar imprinted into my
chin for the rest of my life.” The Court concludes that the testimony of
the officers about the general frequency of staged fights in prison did not
undermine the credible and straightforward testimony provided by Claimant about
the particulars of the assault upon him.
The documentary evidence also indicates that Assailant had known violent
propensities of which Defendant was, or should have been, aware. Defendant
attempted to deflect that by pointing to Assailant’s SHU Double-Cell
Information Sheet, which stated that he did not have a “highly
assaultive” behavioral history and could be placed in a double cell
(see Ex. D). Yet, Lt. Zerniak also said that assessment was not
inconsistent with Assailant having received a number of tickets for violent
conduct and fighting. He agreed that the form indicated that Assailant had been
disciplined for assault on an inmate, weapons possession and a suicide attempt
on July 19, 2000 (see Ex. D).
Lt. Zerniak explained that the “highly assaultive” designation was
reserved for inmates who had used a weapon to cut other inmates on a number of
occasions, and also would be applied depending on the degree of injury
inflicted. The witness agreed, however, that the SHU Double-Cell Information
Sheet would not apprise the reader if an inmate had a past history of assaultive
or violent conduct that was not deemed to warrant the designation of
“highly assaultive.” Moreover, he agreed that the form was not
updated after the inmate arrived at Upstate to reflect subsequent infractions,
fights, disciplinary actions, etc. (see Ex. 2B). He further agreed that
an inmate who was not deemed “highly assaultive” when assessed could
develop into one over time.
Upstate’s superintendent advised Claimant, on September 11, 2001, that
“[i]n the event problems develop between an inmate and his assigned
cellmate, the inmate may address specific complaints to the gallery officer,
area sergeant or may submit written complaints to the Superintendent” (Ex.
1A, p. 9). That is precisely what Claimant did. He apprised the proper
authorities on numerous occasions, both orally and in writing, about his
problems with Assailant and the threats that were made. Indeed, Assailant
threatened the Superintendent directly and was disciplined accordingly.
Assailant’s disciplinary record evidenced a number of infractions for
fighting, making threats, and assaults. Under the circumstances, the Court
concludes that Defendant knew, or should have known, both that Claimant was at
risk of assault and that Assailant was prone to perpetrate an attack, and that
Defendant failed to take proper precautionary measures and failed to provide
Claimant with reasonable protection.
Claimant has established his Claim by a preponderance of the credible evidence.
The Court awards Claimant $5,000.00, finding that sum constitutes fair and
reasonable compensation for his injury, together with the actual amount of any
fee paid to file the Claim, as a taxable disbursement, pursuant Court of Claims
Act § 11-a(2).
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 accordingly.
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.
. On September 21, 2001, a Review of
Superintendent’s Hearing modified and reduced the disciplinary penalties
originally imposed (Ex. 3C, pp. 1-2).
.Assailant’s disciplinary record notes
three citations for violent conduct, but otherwise confirms Claimant’s
. The Court credits Claimant’s assertion
that the interview never took place. Claimant stated that he did send a letter
to Sergeant Banker on August 3, 2001, the day of the incident. He noted,
however, that Sergeant Banker could not have interviewed the inmates after
having received the letter on August 4, as he reported, because the assault
already had occurred. As described above, Claimant testified that he, himself,
sought out Sergeant Banker some days before the attack to press his case to be
moved. The Court concludes that Sergeant Banker was mistaken about the
interview, perhaps recalling the earlier conversation.