New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2008-040-057, Claim No. 105074


Prisoner – Liability only. Assaulted by cellmate. Court finds State liable.

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:
Michael Gonzalez, 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, 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.”) Theodore Zerniak.
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.” [1]

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 complaint.

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 that.”

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” (id., p. 4).[2]

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 Ex. 2B)[3]. For 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 cellmates (see 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 [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 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 Claimant’s narrative.
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 to it.
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., p. 12).[4]
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 instant assault.
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.
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]. On September 21, 2001, a Review of Superintendent’s Hearing modified and reduced the disciplinary penalties originally imposed (Ex. 3C, pp. 1-2).
[3].Assailant’s disciplinary record notes three citations for violent conduct, but otherwise confirms Claimant’s testimony.
[4]. 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.