Carlos Perez alleges in his claim that defendant’s agents at Green Haven
Correctional Facility [Green Haven] negligently failed to protect him from an
assault by a fellow inmate on February 23, 2004, causing him injury. More
specifically, it is alleged that the State negligently allowed claimant’s
assailant access to the upholstery shop in which claimant was working, despite
the known dangerous propensities of the assailant and the type of tools present
in the shop. Trial on the issue of the State’s liability was held on
December 17, 2008, and submitted for decision on May 22, 2009.
Mr. Perez alone testified on his direct case, while former Correction Officer
Roger L. Doyle, Jr. and civil employee Giselle Wilser testified for the
defendant. Officer Doyle had been the duty officer assigned to the upholstery
shop that day, supervising approximately 20 inmates as he recalled. He said as
part of his job there in addition to supervision he issued tools as well. Ms.
Giselle Wilser, responsible for training and supervision in the upholstery
shop, was also present on February 23, 2004. At the time of the attack, she had
been working in the upholstery shop for approximately 12 years, having begun her
employment with the New York State Department of Correctional Services [DOCS]
in 1983, and having worked in the upholstery shop since 1992.
Mr. Perez testified that on February 23, 2004 he was at his job assignment as a
porter in the “upholstery 2”
of Corcraft Industry sweeping the floor at about 9:30 a.m., when he was stabbed
from behind with cutting scissors wielded by inmate Robert Sweeney. These shears
were seized and photographed after the incident, he said, and he identified
Exhibit 3 as a photograph - not to scale - of the shears used to attack
Fifteen (15) other inmates were in the shop that day, he said. Mr. Perez
described the shop as a large “warehouse type” room - “about
55 feet long, and about . . . 25 feet wide” - with tables “all
around.” [T-22]. Cutting machines and sewing machines are on the tables,
utilized for making uniforms for inmates. In previous assignments in the shop,
claimant had worked as a cutter, using a cutting machine. Only inmates assigned
as cutters were issued and entitled to use scissors, he said. Accordingly he,
too, had been issued scissors when his assigned work was as a cutter. He claimed
not to have been issued scissors on February 23, 2004.
In Mr. Perez’ experience in the upholstery shop, generally one (1)
correction officer would be assigned as the duty officer, whose post itself
“is located in the middle of the shop.” [T-26]. There is a chair and
a desk associated with the post.
Immediately prior to the attack, Mr. Perez said he did not see Officer Doyle in
the upholstery shop. In that regard, Mr. Perez claimed various locations that
morning for Officer Doyle during the course of his testimony. For example,
Officer Doyle was allegedly downstairs having coffee at one point. Perez also
claimed to have overheard a conversation between Doyle and an inmate Rivera, who
was an electrician, discussing Rivera’s coworker (and claimant’s
eventual assailant) Sweeney, and how he was “missing medication.”
[T-39]. All the inmates, including Mr. Perez, were doing their work just prior
to the attack. He said he was “concentrating” on his sweeping
because there was a big mess. [T-36].
As Mr. Perez recalled it, just prior to the physical attack, a voice was heard
to say “I’ve got to rebuke the devil in Jesus’ name.” He
discounted it essentially because “a lot of guys . . . become
fanatics” in jail. [T-40]. He did not think it had anything to do with
him, especially since he had previously worked with all the inmates assigned to
the shop, and would not expect any of them to hurt him. The phrase was
repeated, and he felt shears going into his back “burning” him. He
turned with the shears “stuck” to the left side of his back to see
what was going on. [T-41]. He saw that his attacker was someone he had seen
before, but never in the upholstery shop. Fearing that he was gravely injured,
claimant headed toward the main stairwell in order to get out of the Corcraft
Industry building and to the medical unit. By this time, he saw Ms. Wilser -
who called for assistance - and had made it down “like two steps”
when he saw Officer Mullen and another officer, who then directed him to the
On cross-examination, claimant acknowledged that he had never had a problem
with his assailant and had never interacted with him in any fashion. He recalled
that perhaps he had seen him at the mental health unit when he himself was there
for psychiatric evaluations prior to family visits, or receiving prescribed
Prozac. Additionally, claimant did not recall much after the stabbing,
including whether the shears remained in his back or were taken out by his
assailant, and hypothesized that because of loss of blood he “[got] a
little hazy” within “four minutes” of the initial attack.
[T-62]. His testimony was somewhat equivocal about whether he ran out of the
upholstery shop and down the stairs before meeting any personnel, as well as his
initial indication on direct testimony that Officer Doyle was nowhere to be
found. He concluded at trial that it had been between three and five minutes
from the time of the stabbing until he got help. It was on cross-examination
that claimant clarified that all of the activity took place in the upholstery
shop, not on the stairs or on another floor.
After he was taken to the medical clinic, claimant indicated that he refused
the offer for placement in protective custody, saying that it was his
understanding that his assailant would be going to the special housing unit or
its equivalent, meaning there was no reason in his mind to go to protective
custody. [See Exhibit B].
Mr. Perez also testified that he later learned from Sergeant Patterson and from
Mr. Sweeney’s psychiatrist, that Sweeney was classified as a mental health
patient at the time of the attack. Indeed, Mr. Perez claimed that the
psychiatrist told claimant not to “be mad” at Sweeney, because he
had not taken his medication on the day of the incident. [T-73].
Giselle Wilser recalled that she supervised between 28 and 32 inmates in the
upholstery shop in 2004, with Officer Doyle assisting as the bid officer. Entry
into the two-floor industry building was through an outside heavy metal gate
monitored by an officer, who would manually open it in order to allow entry. No
additional identification would be sought at that time from a civilian seeking
entry, because in order to get into the prison, one would have walked through a
security process involving showing identification and the like.
With regard to inmates, the duty officer would escort the inmates to the
industry building and to the assigned shop. After the outside metal gate,
entrance to the industry building itself was through a manually locked gate.
Once inside the building, each officer brought his group to the shop they
belonged to, and it is this same officer who was assigned to the shop. Upon
exiting, all the inmates were pat-frisked and taken through a metal detector
before returning to their housing blocks. Officer Doyle both escorted the
inmates working in the upholstery 2 shop, and was the assigned officer for the
shop. Thus he would pick them up, take them to the shop, and remain
In contrast to Mr. Perez’s recollection of the work as making uniforms,
Ms. Wilser said that the upholstery 2 shop worked on making the chair cushion or
cover portion of one type of chair made at Corcraft Industries.
Ms. Wilser recalled the stabbing incident that occurred on the morning of
February 23, 2004, although she did not directly witness the stabbing. She said
she was working on a cutting table laying out fabric and explaining a task to
other inmates, facing away from the “foaming area where Inmate Perez [was
working]” and where the stabbing occurred. She recalled that Officer Doyle
was at his “podium . . . on his station . . . right in back of . . .
[her]. It’s right in the foaming area.” [T-110]. She “heard
some commotion and . . . turned away from . . . [the] table
. . . [and ] around and . . . heard somebody say, ‘in the name of Jesus
Christ, the devil made me do it’ . . . [She] turned all the way and . . .
saw . . . an inmate [from maintenance] standing in front of the officer’s
podium [holding a weapon in his hands] and [Officer Doyle] request[ing] [that
he] hand over the weapon or the shears.” [T-111]. The request was
repeated several times.
Ms. Wilser thought that the inmate was from maintenance, because she associated
him with being one of a group of four inmates from maintenance whom she had seen
making repairs, but could not say if she had seen him before. When repairs were
needed, generally the civilian supervisor from maintenance would come up, look
over the problem, and then bring his workers along to fix it at some point.
These workers would be assigned to and be part of the maintenance shop located
in the industry building. The only way inmates could be in the industry
building would be if they were assigned to one of the shops, including the
In terms of the equipment in the upholstery 2 shop, Ms. Wilser said that the
equipment assigned to the inmate depended on the kind of job the inmate was
doing. All the tools were numbered. Tool inventories were done three times a day
between the officer and Ms. Wilser. When she arrived in the morning, she
checked her tool cabinets to make sure all the tools were in. When a tool was
given out from the cabinet, its “shadow” remained in
“outline[d]” form. [T-119]. Thus, when a pair of shears was given
out, there remained in the cabinet an outline of the tool. A metal tag
containing the inmate’s number was put in the spot where the shears were
kept. Each inmate had a number, and when tools were distributed they were signed
for and referenced by the inmate’s number. At lunchtime all the tools were
returned, everything was counted and closed up. When the inmates returned from
lunch, the process was repeated.
In the interim, the correction officer took attendance at approximately 10:00
a.m., which was reported to the watch commander. [T-122].
All tools were listed in a tool directive created for each shop, essentially an
inventory with a description of each tool. An inmate was responsible for the
tools he was assigned, and was not allowed to give them to somebody else. She
explained that because inmates have clothing without pockets, the tool would not
be on their persons per se, but rather “with [them]” in some
fashion. There was no directive that she was aware of that would require her
“to be present or to stand there while the shears are in use.”
[T-124]. She said she was unfamiliar with what the job directives for an
assigned officer would be with regard to tools.
Shown a photograph of the shears purportedly used to stab claimant [Exhibit 3],
Ms. Wilser noted that they contain the number 25, and that these photographed
shears had therefore been assigned to Mr. Perez.
On cross-examination, she indicated that on February 23, 2004 Mr. Perez was
working in the foaming department, where the foam is cut to make chair padding.
She recalled that claimant had started work as a porter in the shop, as do many
inmates when they first start to work there, but was not working as a porter
that day. Shown the photograph of the shears again, Ms. Wilser was asked if the
shears were actually larger than depicted in the photograph. She said “No.
They’re approximately ten inches and they approximately have a six-inch
blade. We do have bigger shears . . . Only one. They don’t usually go
To get into the upholstery shop from the maintenance department, workers -
including inmates -usually took an elevator up and entered through unlocked
doors into the shop. Thus there were two stairways with locked doors before
entry to the shop, and there was a third means of access via the elevator.
Inmates from both maintenance and the upholstery shop would utilize this
delivery elevator. Whoever used the elevator, however, would have to have
gained entrance to the industry building through the initial gates.
Asked if during the 11 or 12 years she had worked in the upholstery shop if
there had been fights between inmates, she said that yes, there were fights.
There had been one other incident prior to this one involving the use of cutting
shears, but she could not recall when it took place. [T-148]. Generally, in
2004, the inmates “[got] along.” [T-148].
She noted that it would have been “impossible” for Mr. Perez to
have run out of the upholstery shop and down the stairs, because the door is
kept locked, and only the officer and Ms. Wilser had a key. [T-150].
Correction Officer Doyle confirmed that he had been the duty officer in
upholstery 2 at the time of incident. He said he supervised between 20 to 30
inmates daily, watching them while they worked. He issued tools to them,
brought tools back and “did the count.” [T-159]. He was located on
an elevated podium in the center of the shop.
He testified that on the morning of the stabbing he was sitting on his podium
when workers from behind him “started to scatter”, and Mr. Perez
“ran up” onto the podium saying that he had been stabbed. [T-160].
Officer Doyle saw that claimant’s left shoulder was bleeding, and also saw
over to the side that Inmate Sweeney was “holding a pair of shears and
walking back and forth pacing staring at Inmate Perez.” [T-161]. Officer
Doyle told Sweeney to give him the shears. After repeating the request
“about five times”, Sweeney complied. During the time that he was
speaking with Sweeney, Perez remained on the podium. While he did not recall
pulling the emergency response pin for help himself, a pin was pulled and other
officers responded to the upholstery shop within two minutes. He agreed that it
would have been either Ms. Wilser or him who pulled the pin, as they both had
Officer Doyle indicated that he had seen Inmate Sweeney in the shop before, and
that he knew him to work in the industry maintenance department. In order to
move around the industry building, an inmate worker would need a pass, but he
had no knowledge as to whether Sweeney had a pass to be in the upholstery shop.
He had seen him earlier that day with another inmate from the maintenance
Officer Doyle was familiar with DOCS tool directives, and knew that the shears
at issue were in the category of a Class A tool. [See Exhibit 1]. Such a
tool is to be in the possession of the user at all times. By possession, he
said, it is meant that the tool must be “within their control.”
[T-166]. There was no requirement on February 23, 2004 that an inmate assigned
a pair of shears carry them on his person.
He confirmed the same methodology for the dispensing and return of tools voiced
by Ms. Wilser, and agreed that it would be unlikely that Mr. Perez would be able
to run out of the upholstery area down the stairs, since both doors out are
“supposed to be locked.” [T-167]. He did not, however, have a
specific recollection as to whether they were locked on that day. In addition to
himself and Ms. Wilser, Sergeant Patterson - as the Sergeant of the Industry
area - had keys.
Officer Doyle said that during his assignments, there were times he was
required to leave the podium and walk around the shop. He also might leave the
shop for a very short period of time on the rare occasion to speak with the
officer in the shop next door, or to get something from downstairs. He did not
know whether he had left the area at any time on February 23, 2004. When the
inmates went to lunch for example, he would accompany them. There was a
restroom right in the shop, used only by Ms. Wilser and him, thus he did not
need to leave the shop for that purpose. While there was no relief officer who
would replace him officially, when he did have to run downstairs for something
he would ask an officer in the adjacent shop to “watch both shops.”
On cross-examination Officer Doyle confirmed that from the podium he could see
the entire room. When the response team came in, they came in through the main
exit from downstairs to upstairs, next to the civilian’s office. Claimant
was placed on a stretcher inside the shop, and was taken out in the delivery
elevator. He could not recall exactly how many inmates were working in the shop
that day, except to say there were “probably” more than twenty.
[T-175]. He agreed that each inmate assigned to work on machinery would have
been issued cutting shears, but he could not say how many had been issued.
Officer Doyle recalled that the person yelling that morning was
“approximately four to five feet” to Officer Doyle’s left -
not close to Mr. Perez - since Mr. Perez was on the podium. Sweeney was holding
the shears “gripping . . . real tight and pacing back and forth.”
[T-177]. There was blood on the cutting shears. Officer Doyle testified he
said to Sweeney,
“A. Extremely hazardous and Class ‘A’ tools are issued only
by employees. When used by inmates, they must be under employee supervision at
all times. This means that the employee who issues the tool(s), or some other
supervising employee, must escort the inmate(s) with the tool(s) to the work
site and remain in the vicinity where the tool is being utilized. For example,
when an extremely hazardous or Class ‘A’ tool is issued in a shop,
the instructor must remain in the shop while the tool is being used.”
Asked to review the foregoing tool directive submitted in evidence concerning
the issuing of Class A tools, Officer Doyle indicated that he had seen the
directive before. [T-181-182]. He agreed that on February 23, 2004 there would
have been at least 20 cutting shears out in the shop, and that at various times
an inmate might put a pair of shears down on his desk as he used the sewing
machine. He confirmed that he would be the only officer monitoring any other
inmates coming in.
On redirect, Doyle confirmed that all inmates coming in to the industry
building would encounter other correction officers (and security measures)
before proceeding further. He maintained that either he or Ms. Wilser was in the
shop at all times that the Class A tools were out on February 23, 2004.
Introduced in evidence without explanatory testimony was a redacted copy of a
portion of inmate Sweeney’s psychiatric history, showing in-patient
treatment terminating in March 2002, after an approximate one-month
hospitalization, noting that he remained at risk for “explosive
violence” which might be triggered by relatively trivial matters. [Exhibit
2]. His mental health issues were deemed to be responsive to treatment
however, and his good disciplinary history according to the writer suggested his
return to a medium security facility, and less intensive levels of mental health
]. In that connection, Mr. Sweeney’s disciplinary
notes one incident (other than this
one) on December 27, 1998 wherein he was found guilty of creating a disturbance,
fighting, and violating a direct order, and served seven (7) days in keeplock.
[Exhibit E]. Elsewhere in the selective psychiatric history offered by claimant
in evidence there are indications that it was self-injury that was feared with
regard to Mr. Sweeney when he was seen by mental health personnel two (2) years
before this incident. [See
Contemporaneous memoranda confirm the general outlines of the attack and the
reactions by personnel [see Exhibits 4, 5, 6]. Officer Doyle wrote a
misbehavior report against inmate Sweeney [Exhibit A] which resulted in his
confinement in the special housing unit for a four - month period. [See
Also admitted in evidence was a certified copy of a printout of
claimant’s inmate disciplinary record, showing disciplinary infractions
dating back to 1997 through July, 2008, and including violent conduct,
interference, violations of direct orders, false information, harassment,
threats, drug use, soliciting, smuggling, and weapon possession among other
facility charges. [Exhibit D].
No other witnesses testified, and no other relevant evidence was
While the State must provide inmates with reasonable protection against
foreseeable risks of attack by other inmates, the State is not the insurer of
the safety of inmates, and the fact that an assault occurs does not give rise to
the inference of negligence. Blake v State of New York, 259 AD2d 878 (3d
Dept 1999); Sebastiano v State of New York, 112 AD2d 562 (3d Dept 1985).
More broadly, in order to establish liability on the State’s part, an
inmate claimant must allege and prove that the State knew or should have known
that there was a risk of harm to the claimant that was reasonably foreseeable
and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253
(2002); see also Flaherty v State of New York, 296 NY 342, 347
(1947). The Court must look to see if the actions taken by the State were
reasonable under the circumstances. The mere fact that a correction officer is
not present at the precise time and place of an assault does not give rise to an
inference of negligence absent a showing that officials had notice of a
foreseeable dangerous situation. Colon v State of New York, 209 AD2d 842
(3d Dept 1994); Padgett v State of New York, 163 AD2d 914 (4th Dept
1990), lv denied 76 NY2d 711 (1990).
“. . . [U]nremitting supervision . . .” is not required. Colon v
State of New York, supra at 844. When the assault occurred, it was
dealt with immediately, according to all the testimony, and immediate medical
care was provided.
While actual knowledge with respect to the foreseeability of a given assault
“offers a bright-line test, that line redefines the traditional standard
of reasonableness that has long been the touchstone of the law of negligence,
and it cuts off consideration of other factors that have previously been found
relevant to foreseeability. What the State actually knew plainly falls within
the ambit of foreseeability . . . what the State reasonably should have known -
- for example, from its knowledge of risks to a class of inmates based on the
institutions’s expertise or prior experience, or from its own policies and
practices designed to address such risks . . . (citation
)” may also be established. Sanchez v State of New
A large part of the resolution of this claim rests upon the relative
credibility of the witnesses, and the weight of the evidence claimant presented
to substantiate his claim. Resolving issues of credibility is the province of
this Court as the trier of fact. LeGrand v State of New York, 195 AD2d
784, 785 (3d Dept 1993), lv denied 82 NY2d 663 (1993); Newland v State
of New York, 205 AD2d 1015 (3d Dept 1994).
Upon review of all the evidence, including listening to the witnesses testify
and observing their demeanor as they did so, the Court finds that claimant has
failed to establish that defendant was negligent and that such alleged
negligence was a proximate cause of his sudden assault by a fellow inmate and
any injury. Based upon a preponderance of the credible evidence, the claimant
has failed to establish the elements of his claim. More generally, the inherent
risk of violent activity in a correctional facility housing dangerous
individuals - including those with prior or current violent mental health issues
- does not mandate imposition of liability for inmate-on-inmate assaults that
are not reasonably foreseeable. The testimony of the claimant, who impressed
the court as an intelligent and resourceful individual, was not credible past a
certain point, and was diminished by his volunteering additional information
which was more a testament to his intelligence than to the truth of the matter.
In this case, there has been no showing that the claimant was known to be at
risk generally, or that his attacker was known or should have been known for his
violent propensities. There was no prior notice of any specific antagonism
between claimant and his assailant; indeed, claimant did not know Mr. Sweeney
except for recognizing him as a maintenance worker and for (perhaps) having seen
him at the mental health unit. As to the assailant’s mental health
status, the fact that Mr. Sweeney was in care two (2) years before the assault,
and had successfully (apparently) been in DOCS custody without any disciplinary
action since, suggests not that he had a propensity for violence about which the
State should have had notice, but rather that whatever health issues he had were
being adequately addressed and managed. In this regard, there was no testimony
proffered to explain any assessments in the limited selection of the psychiatric
record offered in evidence [Exhibit 2], nor was any expert testimony offered to
assist in determining whether Mr. Sweeney should have been in general population
at the time of the assault, or whether the State’s agents knew or should
have known that this inmate with this type of record had a propensity for
violence. Claimant’s testimony about Mr. Sweeney’s mental health
classification or status, and the suggestion that the sergeant and Mr.
Sweeney’s psychiatrist would discuss Mr. Sweeney’s health with him
is not credited.
As to other bases for liability, there was no record made to establish that the
use of one correction officer to supervise the inmates in the shop was somehow
against penological standards of care. The correction officer and the civilian
supervisor performed in accordance with the operative regulations presented and,
as a practical matter, were familiar with the inmate upholstery shop workers
present that day and more casually familiar with inmate maintenance workers who
had been seen before. All witnesses, including claimant, said that Sweeney had
been seen before as a maintenance worker, thus his presence in the upholstery
shop on the day of the incident was not of any particular note.
Ms. Wilser’s vague indication that there might have been a previous
incident involving cutting shears was so unspecific as to the particulars - -
including when such an incident might have taken place - - that the testimony
lacked any probative value as to notice of supervisory deficiencies or
deficiencies in the manner in which the tools were handled. Inevitably, there is
some risk, and there will always be some risk, in allowing inmates to use what
could be dangerous tools, however that is why there are regulations in place
affording those working with inmates some guidance but also allowing some
discretion. In this regard, the protocols for the management of the Class A
tools in use were followed based upon the credited testimony of both Ms. Wilser
and Officer Doyle. One or the other was present at all times particularly when
the tools were issued. As noted, even if Officer Doyle did not see the claimant
at the precise time when he was attacked - a concession made by Officer Doyle to
his credit - the unremitting supervision that claimant would urge here is not
required, when the sudden attack was not reasonably foreseeable based upon what
personnel knew or should have known at the time.
Based on the foregoing, claimant has not sustained his burden of establishing
by a preponderance of the credible evidence that the State had actual or
constructive notice of the harm that befell him.
Accordingly, Claim number 109315 is in all respects dismissed.
Let judgment be entered accordingly.