ORTIZ v. THE STATE OF NEW YORK, #2009-040-082, Claim No. 113146
Prisoner – Assault by fellow prisoner. Court finds Claimant failed to
establish by a preponderance of the credible evidence that the State was
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CHRISTOPHER J. McCARTHY
FRANZBLAU DRATCH, P.C.By: Brian M. Dratch, Esq.
ANDREW M. CUOMO
Attorney General of the State of
New YorkBy: Joan Matalavage, Esq., AAG
October 30, 2009
See also (multicaptioned
Claimant, Marcus Ortiz, failed to establish, by a preponderance of the credible
evidence, that the State of New York was negligent in connection with injuries
he sustained in an inmate-on-inmate assault while he was incarcerated at Great
Meadow Correctional Facility in Comstock, New York (“Great Meadow”).
A bifurcated trial, addressing liability issues only, was held at the Court of
Claims in Albany, New York on July 14, 2009. There were three witnesses:
Claimant; Sergeant Scott Winchell; and Captain Stephen Rowe. Thereafter, the
parties requested and were granted additional time to submit post-trial
The facts of the assault itself are not in dispute. On the afternoon of July
28, 2005, Claimant was working as an inmate law library clerk at Great Meadow.
He was on B-2 company to deliver legal materials to inmates housed there. While
there, he was struck from behind by inmate Victor Sylvester, sustaining a broken
jaw, as well as other cuts that required sutures. Mr. Sylvester had been
released from his cell for the purpose of taking a shower (see also Exs.
2, 5 and 6).
Claimant testified that he knew Mr. Sylvester, but they were not friends. Mr.
Ortiz stated that he “never had any dealings
Mr. Sylvester. Claimant further
testified that he had no knowledge, or reason to suspect, that an assault would
take place. Captain Rowe and Sergeant Winchell each testified that, prior to
July 28, 2005, Claimant and Mr. Sylvester were not listed on each other’s
“enemies” or separation lists that are maintained by the Department
of Correctional Services (“DOCS”). Sergeant Winchell noted that Mr.
Sylvester was moved to the special housing unit (“SHU”) on B-1
company after the attack. He explained that the SHU housed inmates who had
committed more serious offenses and who were subject to more restrictive
disciplinary sanctions. Both parties agreed that, at the time of the assault,
B-1 company was a SHU area.
Stephen Rowe testified that he has been a captain at Great Meadow for the past
eight years. He stated that, in July 2005, there were approximately 1,680
inmates at Great Meadow. At that time, there were eight companies in B-block
with 39 inmates in each company for a total census of 312. Scott Winchell was
the supervising Sergeant in charge of B-2 company on July 28, 2005, though he
did not witness the assault. Sergeant Winchell reported that Correction Officer
Depalo, the company officer that day, was standing about 25 to 30 feet away from
Claimant at the time of the attack.
“Having assumed physical custody of inmates, who cannot protect and
defend themselves in the same way as those at liberty can, the State owes a duty
of care to safeguard inmates, even from attacks by fellow inmates”
(Sanchez v State of New York, 99 NY2d 247, 252 ; see Flaherty v
State of New York, 296 NY 342, 346 ; Di Donato v
State of New York, 25 AD3d 944 [3d Dept 2006]). As in any other negligence
action, “the scope of the duty owed by the defendant is defined by the
risk of harm reasonably to be perceived” (Sanchez v State of New
York, 99 NY2d 247, supra at 252; see Basso v Miller, 40 NY2d
233, 241 ; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept
2004]). Even though the “precise manner in which the harm occurred”
may not have been foreseeable, liability attaches if it was “within the
class of reasonably foreseeable hazards” to which the duty applies
(Sanchez v State of New York, 99 NY2d 247, supra at 252;
Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]).
Moreover, it applies to those risks that were foreseeable, “not simply by
actual notice but by actual or constructive notice – by what the
‘State knew or had reason to know’ ” (Sanchez v State of
New York, 99 NY2d 247, supra at 255, quoting dissenting op at 260
[emphasis in original]). In the instant Claim, it encompasses those risks that
Defendant reasonably should have foreseen in the context of its operation of
“a maximum security prison and having custody of inmates forcibly
surrounded by felons – many of them with a proven capacity for
violence” (Sanchez v State of New York, 99 NY2d 247, supra
At the same time, Defendant’s duty to prisoners does not “mandate
unremitting surveillance in all circumstances, and does not render the State an
insurer of inmate safety. When persons with dangerous criminal propensities are
held in close quarters, inevitably there will be some risk of unpreventable
assault, a risk the State cannot possibly eradicate. The mere occurrence of an
inmate assault, without credible evidence that the assault was reasonably
foreseeable, cannot establish the negligence of the State” (Sanchez v
State of New York, 99 NY2d 247, supra at 256; Elnandes v State of
New York, 11AD3d 828 [3d Dept 2004]).
The State has been found negligent in inmate-on-inmate assault claims where a
claimant was able to establish that the attack was foreseeable because: (1)
Defendant knew, or should have known, that the claimant was at risk of assault,
yet failed to provide reasonable protection; (2) Defendant knew, or should have
known, that the assailant was prone to perpetrate an attack, yet failed to take
proper precautionary measures; or (3) Defendant failed to intervene or act when
it knew, or should have known, that surrounding conditions were likely to
engender or facilitate an attack (Smart v State of New York, Ct Cl, Claim
No. 98024, December 21, 2007, Mignano, J. [UID No. 2007-029-053], affd 65
AD3d 1218 [2d Dept 2009]; Douglas v State of New York, Ct Cl,
Claim No. 108585, May 17, 2007, Sise, P.J. [UID No. 2007-028-012]; Shearin v
State of New York, Ct Cl, Claim No. 108798, May 8,
2007, Sise, P.J. [UID No. 2007-028-011]).
The Court has considered all the evidence, including a review of the exhibits
and listening to the witnesses testify and observing their demeanor as they did
so. The witnesses provided generally sincere and forthright testimony.
Nevertheless, the Court finds that Claimant did not meet his burden of proof and
failed to establish by a preponderance of the credible evidence that Defendant
was negligent in connection with the attack perpetrated upon him.
Claimant failed to establish that Defendant knew, or should have known, that
Mr. Ortiz individually was at a greater risk of assault than any other inmate in
the inherently volatile environment of a correctional facility and failed to
provide reasonable protection.
Moreover, the Court determines that the record is insufficient to establish
that Defendant knew, or should have been expected to know, that Mr. Sylvester
was prone to perpetrate his attack upon Claimant. In fact, Claimant
“concedes that [D]efendant had no knowledge that [Mr.] Sylvester was
planning to assault Claimant” (Post-Trial Letter Brief of
Claimant’s Counsel, dated August 13, 2009 [“Dratch Letter
Brief”], p. 1). Thus, the State was not under a heightened duty to take
Claimant, likewise, failed to establish that Defendant failed to intervene or
act when it knew, or should have known, that surrounding conditions created an
increased likelihood that an assault could occur.
Mr. Ortiz argues that the State breached its duty of care to safeguard him
because, he maintains, B-2 company was governed by the restrictive provisions
contained in DOCS directive #4933, which governs SHU areas. Thus, he asserts
that: he should not have been allowed onto B-2 company; Mr. Sylvester should not
have been released from his cell without mechanical restraints; and, in any
event, Mr. Sylvester should not have been permitted to leave his cell at all
while Claimant was on B-2 company (see Dratch Letter Brief, p. 2).
The Court determines that Mr. Ortiz failed to establish that B-2 company was
subject to the SHU directive. Claimant cited the State’s Response to
Combined Discovery Demands and Notice to Produce, dated October 4, 2007, to
support his contention that it was. Claimant had requested that Defendant
provide “[c]opies of all rules and regulations in effect on the date of
the incident regarding the release and mobility of inmates segregated to B-Block
Long Term Confinement Companies” (Ex. 1, p. 7, #14). The State responded
that Claimant could obtain a copy of DOCS directive #4933 from the prison
DOCS directive #4933 establishes standards for the operation of SHUs (Ex. 3,
§ 300.1[a]). The superintendent of a facility designates, by written order,
certain areas or cells as SHUs (id., § 300.2[a]). Except as
otherwise provided to the contrary, the provisions of directive #4933 apply only
to such designated SHUs (id., § 300.1[a]). The directive states
that ‘[n]o inmate advisors or inmate law clerks will be permitted to visit
the SHU” (id., § 304.7[c]). The directive further provides
that SHU inmates must be placed in mechanical restraints before leaving their
cells and that such restraints can be removed to accommodate showering only
after they have been secured in the shower area (id., §305.3).
Claimant contends that the State’s response constitutes an admission by
Defendant that directive #4933 was applicable to B-2 company on the day he was
The Court notes that Defendant’s response was provided “upon
information and belief” and that the State expressly reserved the right to
amend and/or supplement that response after further discovery and investigation
(Ex. 1, pp. 1, 7). Representations made “upon information and
belief” do not constitute formal or informal judicial admissions
(Scolite Intl. Corp. v Vincent J. Smith, Inc., 68 AD2d 417, 421 [3d Dept
1979]; see Empire Purveyors, Inc. v Weinberg, __ AD3d ___ [1st Dept
2009], 2009 NY Slip Op 07336; Prince, Richardson on Evidence § 8-215, p.
525 [Farrell 11th ed]; but see Ficus Invs., Inc. v Private Capital Mgt.,
LLC, 61 AD3d 1, 11 [1st Dept 2009]). Thus, the Court concludes that the
State’s response did not constitute an admission.
The Court further determines that the statement Defendant provided was both
correct and responsive to Claimant’s query, which related to all
B-block companies, of which there were eight. While DOCS directive
#4933 did apply on the date of the assault to some B-block companies, namely the
SHU located on B-1 company, the Court is persuaded by the testimony of the
DOCS’ officers that it did not apply to B-2 company, where the assault
occurred. While the State’s response may have been an unfortunate source
of confusion, insofar as Claimant construed it as an admission that B-2 company
was governed by DOCS directive #4933, he was mistaken.
The parties agreed that B-2 company could have held overflow from SHU on B-1
company, as well as prisoners in long-term keep-lock status, on the date of the
assault (see Ex. 4, p. 1, #2). Neither Captain Rowe nor Sergeant
Winchell knew whether that was the case on July 28, 2005 and, if so, how many
inmates were in such status. Captain Rowe was sure, however, that it had
happened on occasions during 2005. He also noted, however, that, in such cases,
Great Meadow tried to place nonviolent, lower-level security risks on B-2
company. Inmates with a violent nature, who had committed assaults on staff or
other inmates, or had been found in possession of weapons, went directly to the
SHU. Sergeant Winchell also explained that, if an inmate on B-2 company had
pending SHU sanctions, they would not go into effect until such time as the
inmate was moved to the SHU.
In any event, Captain Rowe confirmed, unequivocally, that Mr. Sylvester was in
keep-lock status on July 28, 2005. To the best of his knowledge, Sergeant
Winchell also believed that Mr. Sylvester was then in keep-lock status.
Mr. Ortiz also testified that, typically, he would deliver legal materials to,
and pick up materials from, the correction officers on both those companies and
it was those officers, in turn, who would distribute items to the inmates housed
there. He said that he had been instructed not to go onto any of the special
housing units in connection with his duties as an inmate law library clerk,
including both B-1 and B-2 companies. On the day of the assault, however,
Claimant testified that the correction officer on B-2 company instructed him to
pick up and deliver legal materials directly from the inmates’ cells.
Captain Rowe was aware of one 1995 DOCS memorandum that instructed company
officers to collect legal materials being returned by inmates, as well as
requests for new materials, and to have them available at their desks for pickup
in the morning by the inmate law library clerks. He believed, however, that the
1995 memorandum was intended to streamline and expedite the collection process
and was not promulgated as a safety measure. He testified that the memorandum
did not address whether or not inmate law library clerks were allowed onto the
companies to deliver legal materials. Both Captain Rowe and Sergeant Winchell
said that, in 2005, inmate law library clerks were allowed onto B-2 company to
distribute and collect legal materials under the supervision of corrections
staff. The Inmate Misbehavior Report issued to Mr. Sylvester supports their
testimony in stating that Claimant was “making the regular
rounds” when the assault occurred (Ex. 2 [emphasis supplied]).
Captain Rowe testified that the 1995 memorandum provided that inmate law
library clerks were to be observed by correction officers while they were on
long-term confinement companies because keep-lock inmates were prohibited from
exchanging personal items with the inmate clerks. At the same time, the
memorandum did not mandate that inmate law library clerks be escorted while they
were on the company. Sergeant Winchell explained that company officers tried to
keep a little distance in order to provide some privacy for any law-related
conversations that might occur between clerks and the keep-lock inmates. Both
officers further agreed that inmate law library clerks, by contrast, were not
allowed onto the SHU unit. Captain Rowe explained that was because it is the
prison’s most secure unit and agreed that safety was one reason for that
Captain Rowe testified that there are no memoranda governing the release of
keep-lock inmates on B-2 company while other inmates are present, though he did
say that the general prison rule was to minimize traffic flow on any company
The Court concludes that Claimant failed to establish that B-2 company was
governed by the provisions of DOCS directive #4933. No evidence was introduced
to establish that the superintendent of Great Meadow designated, by written
order, that B-2 company serve as a SHU, as required by that directive.
Moreover, while some procedures were common to both B-1 and B-2 companies, the
record also reveals important differences in how the two companies were policed
and supervised. Captain Rowe noted a number of procedures applicable to B-2
company that were less restrictive than SHU rules. Many of the rules applicable
to general population inmates also applied to inmates in long-term keep-lock
status. For example, they were allowed to possess all of their property. They
were not escorted in restraints when they moved from B-2 company to other areas
of Great Meadow. They were allowed privileges, such as access to telephones and
the prison commissary. Sergeant Winchell also testified that various DOCS
employees, including counselors, nurses, supervisory staff, and clergy were
permitted on keep-lock units. He also noted that inmates were permitted to walk
from their cell to the shower without restraints. Captain Rowe stated that
inmates housed on B-2 company with pending SHU sanctions would be subject to the
long-term keep-lock rules and not the more restrictive special housing unit
provisions. He confirmed that there is no single DOCS directive governing
long-term keep-lock status.
Because Claimant did not establish that B-2 company was a SHU area governed by
DOCS directive #4933, the Court concludes that he, likewise, failed to establish
that: he should not have been allowed onto B-2 company; Mr. Sylvester should not
have been allowed out of his cell without mechanical restraints; and, in any
event, Mr. Sylvester should not have been permitted to leave his cell at all
while Claimant was on B-2 company. To the contrary, the credible testimony of
Captain Rowe and Sergeant Winchell was that none of those events was a violation
of the rules governing a long-term keep-lock area, such as B-2 company.
Claimant failed to establish his Claim by a preponderance of the credible
All motions and cross-motions are denied as moot. All objections upon which
the Court reserved determination during trial, and not otherwise addressed
herein, are now overruled.
The Chief Clerk is directed to enter judgment dismissing the Claim.
Albany, New York
HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims
.All quotations not otherwise attributed are
taken from the electronic recording of the trial.