New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2009-030-016, Claim No. 109315


Synopsis


Claim dismissed after liability trial. Claimant did not sustain burden of establishing by preponderance of the evidence that State should be held liable for an inmate-on-inmate assault in upholstery shop that was not reasonably foreseeable. Psychiatric history of assailant without explanatory expert testimony not sufficient to establish foreseeabilty of an assault occurring two years after in-patient treatment terminated, and assailant’s apparent responsiveness to treatment. No disciplinary history for assailant. No record made of penological standards of care.

Case Information

UID:
2009-030-016
Claimant(s):
CARLOS PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109315
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ANDREW PLASSE. P.C.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 15, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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”[1] shop 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 him.

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 medical unit.

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 there.

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 maintenance shop.

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 out.” [T-127].

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 one.

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 area.

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.” [T-170].

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,
“[G]ive me the shears”, then added, “I wanted to get his attention away from Inmate Perez . . . He then made eye contact with me and then he just relaxed, handed the shears over as if I would grab them with the handle and he handed them to me.” [T-177].


Officer Doyle confirmed that Sweeney gained entrance from the maintenance shop into the upholstery 2 shop “through one of the exit doors.” [T-178]. He did not recall speaking to Sweeney prior to his entry into the upholstery shop, nor could he say what he was doing there. Officer Doyle later learned that the shears used against Mr. Perez had been assigned he “believe[d]” to Inmate Pagon. When he spoke with Inmate Pagon to ask if he had seen what happened, Pagon said he saw Mr. Perez ask Mr. Sweeney for a cigarette, and then heard the devil proclamations and saw the stabbing. Pagon did not tell him how Sweeney had obtained the shears.

DOCS Directive #4930, entitled “Tool Control” and apparently applicable July 11, 2000, provides the following in pertinent part in a section concerning issuing tools:
“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.” [Exhibit 1].

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 care. [Id.]. In that connection, Mr. Sweeney’s disciplinary history[2] 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 Exhibit 2].

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 Exhibit E].

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 submitted.
DISCUSSION AND CONCLUSION
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 . . . (citations omitted)” may also be established. Sanchez v State of New York, supra.[3]

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.

June 15, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Quotations are to trial notes or the transcript unless otherwise indicated. Here, [T-20].
[2]. Since Mr. Sweeney’s disciplinary history is not certified, it is not certain this is the complete history; however, no objection to the effect that this was not certified, or not the complete history, was made, and admission of Exhibit E was by stipulation, as were all the exhibits except Mr. Sweeney’s selected psychiatric history [Exhibit 2].
[3]. It is noted that the majority opinion - addressing the concerns of the dissent - declares that “. . . we underscore that the State’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 majority confirms that in the case before it there was simply a triable issue, given “uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack during congregate ‘go-back’ time; and uncontested evidence of both the regularity of the correction officer’s inattentiveness at precisely that time and the officer’s inability to see claimant at the location where he was required to stand.”