New York State Court of Claims

New York State Court of Claims

MONAGAS v. THE STATE OF NEW YORK, #2009-010-032, Claim No. 113447


Inmate assault by OMH inmate not foreseeable by DOCS.

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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy:
Jeane Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries he sustained during his incarceration at Green Haven Correctional Facility (Green Haven) when he was assaulted by another inmate, Shawn Davis. Davis admitted to cutting claimant with the top of a metal can. Claimant argues that the attack upon him was foreseeable because Davis was known to be assaultive. Claimant also argues that defendant was negligent in its supervision of Davis and failed to provide a sufficient number of correction officers to the area. Additionally, claimant argues that defendant failed to employ proper procedures to detect the can top used to assault claimant. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

In 1995, claimant was convicted of Rape in the First Degree and was sentenced to 20 to 40 years. Since 1995, claimant has been incarcerated in several maximum security prisons and, in March 2005, he was transferred to Green Haven. Approximately six months after his transfer, claimant requested to be placed in protective custody. He explained that, by that time, other inmates had learned about his crime and he had received threats from them. None of these threats were from Davis. After four months, claimant voluntarily removed himself from protective custody. He had been housed next to Davis without incident for one and a half months prior to the assault.

Claimant testified that on December 21, 2006, at approximately 4:20 p.m., in accordance with the facility’s procedures, the cell doors were opened for those inmates proceeding to the mess hall. Claimant and Davis, who were both housed on two company in E block, a general population block comprised of approximately 42 cells, exited their adjoining cells (T:76).[1] Claimant testified that they were neighbors and that they never had any problems prior to the day of the assault; therefore claimant did not identify Davis on claimant’s enemies list. Almost immediately upon their release from their cells, Davis slashed claimant with a folded metal can top. Claimant did not see Davis until the attack and they were the only inmates on the corridor at that time. Claimant did not observe any correction officers in the area or in the bubble at the end of the corridor. According to claimant, the attack lasted 45 to 60 seconds (T:63) and, within a minute or two, Correction Officer Pryce appeared and escorted claimant downstairs and to the clinic (T:35).

Sergeant John Carter, who was on duty at the time of claimant’s assault, explained the procedures for inmates proceeding to the mess hall for meals. One correction officer inquires which inmates are interested in going to the mess hall. Another correction officer, stationed in the bubble, opens the individual cells via a control panel in a locked box. He possesses a master key to the corridor gates, the bubble, and the control box. Because of security reasons, that officer is required to remain in the bubble regardless of any disturbances.

On the date in issue, an officer was assigned to the bubble where he remained at all times (T:101-02). Another officer was assigned to E block (T:101). A third officer was assigned to other duties, which also encompassed E block (T:101). When Carter arrived on the scene, the assault upon claimant had already occurred and the situation was “completely under control” as the two inmates were secured by four officers (T:104-05). Carter interviewed five or six officers on duty in E block regarding the incident (T:103). None of them witnessed that attack.

Carter testified that the Office of Mental Health (OMH) provided mental health services to inmates at Green Haven and OMH nurses administered medications to the inmates. However, it was not OMH’s practice to advise the New York State Department of Correctional Services (DOCS) of an inmate’s mental health needs. Thus, Carter had no specific knowledge of Davis’ particular needs. Carter testified that there were approximately 1000 inmates housed in the eastside housing unit (T:68), with approximately 250 inmates housed in E block where the incident occurred (T:73). In his efforts to maintain order and security, he attempted, “when possible,” to assess which inmates were assaultive or might cause harm to themselves (T:68). Carter, however, was not informed by his superiors of the crimes for which the inmates had been convicted; nor was Carter told by OMH the mental health needs of the inmates (T:69). Carter also testified that inmates are permitted to keep canned goods and openers in their cells and are supposed to throw empty cans in the garbage. Thus, possession of a metal can top, in and of itself, is not a violation of prison rules; however its use as a weapon is a violation.

The transcript of Davis’ disciplinary hearing regarding his assault on claimant was received into evidence (Ex. 9). Dr. Tom Ryan, OMH Unit Chief, testified at the hearing that Davis has been on the Residential Crisis Unit, commonly called the Satellite Unit and was “doing reasonably well in general population until this incident” (id. at 97). Ryan noted that Davis “can get very intense very quickly” (id.). “[H]e has a long history of assault, assault of others and assaults of himself. I’m not that terribly surprised that he did this, this is sort of a behavior that he would do” (id. at 98). The Hearing Officer concluded that, based upon Ryan’s testimony, Davis’ mental state was not a contributing or mitigating factor in the assault on claimant (id. at 101).

Davis’ redacted medical record was received into evidence as exhibit 6. Claimant’s attorney pointed out several notations in Davis’ record and questioned Rebecca Briney, the Director of Outpatient Operations for the OMH Central Psychiatric Center, and Doris Ramirez-Romeo, the Director of the Mental Health Bureau of DOCS,[2] as to whether it was OMH’s duty to report this information to DOCS. Specifically, it was noted that Davis’ record of May 25, 2006 stated that he “[c]urrently receives individual psychotherapy and AVP services” (Ex. 6, p 79). “Pt. has an assaultive history towards others including family members, the victims of his instant offense and previous offense, and other inmates” (id. at 81). The entry of November 22, 2006 stated that Davis was suspended from AVP “for engaging in threatening behavior toward a peer” (id. at 82). The record of November 3, 2006 stated, “Pt. has not engaged in any further impulsive acts since his assault on another inmate which occurred about a month ago” (id. at 83). The last page of Davis’ record of 2006 indicated that, “Mr. Davis has a past history of assaultiveness” (id. at 85).

Rebecca Briney, the Director of Outpatient Operations for the OMH Central New York Psychiatric Center, testified that she oversees all the mental health services provided statewide in DOCS’ facilities (Ex. A, p 10). She has been employed by OMH since 1995. OMH provides outpatient mental health services at Green Haven (id. at 15).

A Memorandum of Understanding (MOU) between OMH and DOCS outlines the expectations of each agency (id. at 15-19). Pursuant to the MOU, the OMH Unit Chief will notify the DOCS’ Superintendent about patients “who are dangerous or who are determined by OMH staff to be a security risk” (Ex. 4, p 53). Briney testified that, despite the use of the conjunctive “or,” in practice, “dangerous” referred only to those inmates who were dangerous because they posed a security risk, such as a planned escape. In those situations, OMH would not be bound by normal confidentiality and would be expected to alert DOCS (Ex. A, at 21).

Briney also testified that assaulting an inmate would not fall within the intended meaning of dangerousness under the MOU (Ex. A, p 31). Rather, dangerousness was intended to be linked with the term security risk (id. at 22). She explained that:
“because of the nature of the setting, nearly - - or many of the people in those settings could be considered dangerous simply because of what brought them there. And we certainly wouldn’t be notifying superintendents with that level of frequency. And that it would need to be an exceptional kind of circumstance related to a security concern that would cause us to make that kind of notification.”
(id.). Therefore, a person could be dangerous in a psychiatric definition, but would not fall within the definition of “dangerous” as intended by the MOU (id.).

Upon Briney’s review of Davis’ medical records, Briney testified that exhibit 6, p 79, which noted that Davis had a history of treatment and received AVP services, was a standard mental status report form that Parole would send as a referral. She was not familiar with AVP (Alternative to Violence Program), which exists only at Green Haven (id. at 14). She stated that exhibit 6, p 85, which indicated in 2006 that “Davis has a past history of assaultiveness,” was an OMH form, which would not go to DOCS or Parole. She also testified that exhibit 6, p 81, dated May 25, 2006, is an OMH form prepared by an OMH social worker which indicates that Davis “has an assaultive history towards others including family members, the victims of his instant offense and previous offense, and other inmates.” Briney testified that this statement, listed under precautions, would not require notification by OMH to DOCS (Ex. A, p 29).

The deposition of Doris Ramirez-Romeo, the Director of the Mental Health Bureau of DOCS, was received into evidence (Ex. B). The bureau is part of the Division of Health Services, a unit responsible for medical services provided by DOCS to its inmates. OMH is a separate state agency (id. at 22). OMH Satellite Units are operated by OMH in correctional facilities and are units that have observation cells and dorm beds (id. at 24). Central New York Psychiatric Center is the hospital used when an inmate needs to be hospitalized (id. at 23).

Ramirez-Romeo was unfamiliar with the specifics of AVP, but she knew that it was a day treatment program run “solely” by OMH and not DOCS (id. at 36). An inmate’s assignment to AVP is an OMH clinical decision. If an inmate was on an active mental caseload of a clinician at Green Haven, the inmate could be referred to the OMH AVP. Ramirez-Romeo was familiar with Intermediate Care Program (ICP) because it is jointly operated by OMH and DOCS. It is for inmates who are mentally ill and restricted from general population due to their illness (id. at 27). ICP was not offered at Green Haven (id. at 27).

Ramirez-Romeo testified that correction officers and supervising sergeants are not advised of the OMH service level[3] of a particular inmate because it would be a HIPPA violation (id. at 28). Correction counselors, who have social worker responsibilities, are aware of OMH service levels (id. at 12, 28).

Ramirez-Romeo was asked to review exhibit 6, Davis’ redacted medical file, and explain some of the notations. She had no particular knowledge of any of the OMH documents regarding Davis and was not familiar with any of OMH’s forms (id. at 32). She noted that she did not see a Mental Health Service’s referral form (id. at 31). She stated that, similarly, DOCS does not coordinate its mental and physical exams of inmates with the Division of Parole, which is also a separate and distinct agency from DOCS charged with the supervision of inmates leaving DOCS’ custody (id. at 34).

Ramirez-Romeo was asked if the Unit Chief of the OMH Satellite Unit has a duty to inform DOCS’ Superintendent if an OMH patient/inmate is dangerous to himself or others (Ex. B, p 37). She replied affirmatively, but explained that a danger to self would be interpreted to mean a hunger strike or a risk of suicide. A danger to others referred to a security risk in the operation of the facility, such as a riot, taking over a classroom or taking down an officer, and would not include a threat to an unnamed inmate (id. at 40-43). “If it is identified that someone has a problem with another inmate, that information is seen as separatee information” (id. at 45). She explained that, “[g]iven the environment that we work in, any type of violence can happen on a day-to-day basis” (id. at 38). It is a difficult assessment to determine whether certain inmates are more likely to commit assaults than others and that would not be something which OMH would be required to report to DOCS. She stated that with regard to Davis, even if OMH learned that he “ha[d] an assaultive history” (Ex. 6, p 81), OMH would not be obligated to notify DOCS. Ramirez-Romeo explained, even when there is a continued pattern of assaultive behavior, we have “thousands of inmates that fall in that category, they’re on the caseload” (Ex. B, p 39). The superintendent would not be briefed on a history of assaultive behavior unless there was something unusual about the case, like a risk to the overall security of the facility (id.).

Ramirez-Romeo testified that the MOU (Ex. 4) is a guide which directs DOCS and OMH to the services provided by each agency in the area of mental illness (Ex B, pp 34-35). The Memorandum mandates that OMH report to DOCS “Dangerous Patients, Security Risks - The [OMH] Unit Chief will notify the [DOCS] Superintendent of patients who are dangerous or who are determined by OMH staff to be a security risk” (Ex. 4, p 53). When questioned about this mandate, Ramirez-Romeo maintained that it referred to inmates who were a danger to themselves, such as a suicide risk, or a danger to others, such as a threat to the overall security of the facility (Ex. B, p 44). When directed specifically to the fact that the mandate stated dangerous “or” a security risk, Ramirez-Romeo testified that regardless of the conjunctive “or,” the mandate was interpreted as necessitating notice to the facility only with regard to inmates who were a danger to themselves or others as previously explained (id.). The resulting notification would be communicated to DOCS’ superintendent either in writing or by telephone, depending on the circumstances (id. at 45-46). Ramirez-Romeo did not know of any rules regarding how that information would be recorded by DOCS (id. at 46).
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm (see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risks of harm include the risk of attack by other prisoners (see Littlejohn v State of New York, 218 AD2d 833). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The State’s duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see Padgett v State of New York, 163 AD2d 914). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually knew, but also “what the State reasonably should have known – for example, from its knowledge of risks to a class of inmates based on the institution’s expertise or prior experience, or from its own policies and practices designed to address such risks” (Sanchez v State of New York, supra at 254 [emphasis in original]).

To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (id.). “The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable” (Wilson v State of New York, 303 AD2d 678, 679).

Here, the credible evidence established that, while claimant’s assailant, Shawn Davis, had a history of assaultiveness known to OMH, this information was not reported to DOCS. Notably, the evidence elicited that OMH does not notify DOCS of the inmates’ mental health service levels which would indicate the amount of mental health services the inmates were receiving because it would violate HIPPA. Additionally, the testimony of Rebecca Briney, the Director of Outpatient Operations for the OMH Central New York Psychiatric Center, and Doris Ramirez-Romeo, the Director of the Mental Health Bureau of DOCS, established that DOCS and OMH are separate and distinct agencies and that the mutual understanding between the agencies is that OMH is only required to report to DOCS such information as would impact the overall security of the facility. When asked to review Davis’ history, both Briney and Ramirez-Romeo maintained that this was not the type of information which fell within the mandates requiring notification to DOCS. Further, Briney and Ramirez-Romeo testified that the type of information contained in Davis’ medical record was not uncommon in this prison setting and there were “thousands” of other inmates with similar histories. Therefore, it would be impractical to require notification to DOCS of such commonly found information.

Claimant testified that he had been housed in the cell next to Davis for one and one half months prior to the assault without incident and that claimant had no reason to fear Davis. Accordingly, on the evidence presented, the Court does not find that DOCS was or should have been aware of Davis’ propensities for assault. Indeed, claimant concedes at page 2 of his brief that OMH “never notified” DOCS of Davis’ known dangerous nature and, therefore, DOCS “could not and did not take appropriate steps to protect other inmates, such as claimant, from Mr. Davis’s assaultive tendencies” (Claimant’s Brief, p 2).

“[T]he State’s duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. *** 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, supra at 256). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence absent a showing that prison officials had notice of a foreseeable dangerous situation (see Colon v State of New York, 209 AD2d 842, 844).

Contrary to claimant’s arguments, the credible evidence did not show that this was a case where DOCS failed to comply with its own procedures or an instance where defendant did not immediately respond to the scene. Claimant’s own testimony was that the assault was unforeseen, lasted 45 to 60 seconds, and an officer responded within one to two minutes and escorted claimant to the clinic. Sergeant Carter testified that, when he arrived on the scene, the two inmates were secured by four officers and the situation was completely under control. To impose a duty, as claimant argues, that defendant should be charged with responding to the scene within sufficient time so as to “prevent an assault” is unreasonable and would hardly be possible given the facts as testified to by claimant (Claimant’s Brief, p 20).

Accordingly, upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the security measures and supervision of the inmates was not negligent and that defendant acted reasonably under the circumstances as they existed.

Defendant’s motion to dismiss, upon which decision was reserved, is now GRANTED.


All motions not heretofore ruled upon are DENIED.

September 9, 2009
White Plains, New York

Judge of the Court of Claims

[1].References to the trial transcript are preceded by the letter “T.”
[2]. The transcript of the deposition testimony of Briney and Ramirez-Romeo was received into evidence as exhibits A and B, respectively.
[3]. OMH service levels are designations made on the amount of mental health services provided in each correctional facility (Ex. B, p 8).