MONAGAS v. THE STATE OF NEW YORK, #2009-010-032, Claim No. 113447
Inmate assault by OMH inmate not foreseeable by DOCS.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Terry Jane Ruderman
GARY E. DIVIS, ESQ.
HON. ANDREW M. CUOMO
Attorney General for the
State of New YorkBy:
Jeane Strickland Smith, Assistant Attorney General
September 9, 2009
See also (multicaptioned
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
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
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.
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,
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
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.
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
(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
particular inmate because it would be a HIPPA violation (id.
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
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
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
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
Defendant’s motion to dismiss, upon which decision was reserved, is now
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 113447.
All motions not heretofore ruled upon are DENIED.
September 9, 2009
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
.References to the trial transcript are
preceded by the letter “T.”
. The transcript of the deposition testimony
of Briney and Ramirez-Romeo was received into evidence as exhibits A and B,
. OMH service levels are designations made on
the amount of mental health services provided in each correctional facility (Ex.
B, p 8).