New York State Court of Claims

New York State Court of Claims
SMITH v. THE STATE OF NEW YORK, # 2010-013-502, Claim No. 96846


The record established that the State's response to an inmate being attacked with a weapon by a fellow inmate was too little and too late, and the promptness of its response was inadequate. State is responsible only for injuries incurred in the second attack, not in the initial assault.

Case information

UID: 2010-013-502
Claimant(s): KEITH SMITH
Claimant short name: SMITH
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 96846
Motion number(s):
Cross-motion number(s):
Claimant's attorney: R. BRIAN GOEWEY, ESQ.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General of the State of New York
Assistant Attorneys General
Third-party defendant's attorney:
Signature date: April 13, 2010
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The trial of this claim was bifurcated and this decision deals solely with issues affecting liability. The history of the litigation of this matter is extensive and warrants some review to place it in context of this trial.

This is an action for personal injuries arising out of an inmate-on-inmate attack that occurred on June 1, 1997 at Attica Correctional Facility (Attica) when an inmate, Derrick Brown, attacked Claimant Keith Smith with a razorblade resulting in a significant cut on the Claimant's right cheek, as well as other cuts on his left wrist and hands. The case was originally assigned to the Hon. Donald J. Corbett, Jr. (now retired), who denied summary judgment on the ground that the Claimant had raised a material question of fact as to whether the Defendant negligently failed to respond promptly to the attack and narrowed the issue solely to the promptness of the Defendant's response (Motion No. M-57187 - decision and order filed December 23, 1998). There was no appeal therefrom. Claimant subsequently moved to compel disclosure after the Defendant rejected discovery demands regarding inmate Brown and his alleged keeplock status as being outside the scope of the claim. In a decision and order filed on November 28, 2001, Judge Corbett denied Claimant's motion as it sought discovery on issues that were disposed of in the summary judgment motion and went beyond the limited issue of the promptness of the Defendant's response (Motion No. M-62695 - p. 4).

After the claim was transferred to me, in a decision and order dated March 14, 2005 in Motion Nos. M-67814, M-68124 and M-68210, I granted the Defendant's motion for a protective order, and denied Claimant's motion for summary judgment and his request to renew the December 23, 1998 summary judgment motion. Subsequently, Claimant sought to reargue the denial of the motion to renew the summary judgment motion, relief that was also denied (Motion No. M-70059, dated July 14, 2005). More motion practice ensued, resulting in a decision and order in Motion No. M-71012 related to the scope of questioning at a deposition.

The extended delay in conducting the trial is attributable to a variety of reasons, including the foregoing motion practice, and was ultimately scheduled at the earliest opportunity when the parties were ready and available. It is appropriate to note that Claimant's now-deceased attorney of record appeared on Motion No. M-57187 in 1998, the result of which significantly narrowed the scope of the claim to the sole remaining theory of liability at trial. Thereafter, since trial counsel first appeared, he has sought valiantly, but vainly, to free Claimant from the limiting parameters of the earlier decision and order of Judge Corbett of December 23, 1998. Indeed, thus far in the litigation there has been no appellate review sought of any of the interlocutory orders. Regardless, trial counsel's vigilance and tenacity on behalf of his client is nonpareil. I also note that since the last motion practice before me, the original assistant attorney general representing the Defendant in this litigation has retired, and the comity between the parties thereafter has markedly improved.

While the proof at trial frequently trended outside the limited theory of liability, the focus was assessing the promptness of the Defendant's response on June 1, 1997 for the period of time commencing at 9:04 a.m. and ending no later than 9:20 a.m. While not the primary focus of the proof, it does appear that inmate Brown, as an inmate under a "keeplock" restriction, should not have been able to perambulate without an escort or to mingle with general population inmates, and should not have had the opportunity to assault the Claimant, who was a general population inmate. It further appears that this breach was a proximate cause of the assault and injuries sustained by Claimant, who is blameless in these events.

Claimant has presented evidence tending to establish a timeline for the events in question. While incidents of inmate-on-inmate assaults in correctional facilities are all too frequent, and correctional facilities are regimented and highly structured, these assaults are often spontaneous and unanticipated by authorities, short-lived and usually accomplished to avoid the immediate observation and proximity of correction officers. The claim at bar is not unusual in that context. As such, in the course of responding to such events, the listed times are more approximate than precise, and indeed here, the times of events in this 16 or so minute period in question, whether addressed in written reports or in testimony, vary markedly.

On the morning of June 1, Claimant, who was housed in 35/36 Company on the third floor of C Block, went to breakfast in the mess hall with what would typically be approximately 40 inmates. On the way down to chow, the assembled inmates passed the day room and the door thereto (see Exhibits 24-29). Before descending the steps, Claimant observed two inmates in the day room as well as a correction officer. It was on the return from chow that these events unfolded. The inmates were returning from the mess hall, having lined up two by two and walking up the stairs from the first floor to Company 35/36 C Block (Exhibits 19 and 20). According to Claimant's recollection, there were two correction officers (CO's) escorting the company from the morning meal, one to the back of the company and one to the front. An inmate witness to the events, a company porter, Terrell Eleby, testified that both CO's were at the front, but that recollection is at odds with all other descriptions and seemingly contrary to security protocols. As they arrived on the floor of 35/36 Company, Claimant started walking down the gallery towards his cell (Exhibits 21 and 22), and passed by inmate Eleby standing near the bulletin board (Exhibit 24 and 25). Mr. Eleby, who testified at trial, said something to Claimant, who responded and Claimant proceeded on his way toward his cell, number 25 (see Exhibit 31). As he was walking between cell number 1 and number 2, Claimant heard "heavy" footsteps and turned to see what was behind him, but before he turned all the way around, he saw a hand coming towards him. He tried to block it, but was too late and inmate Brown slashed his face. He felt a burning sensation on the right side of his cheek, felt his face and saw that he was bleeding.

He turned all the way around and faced inmate Brown, whom he recognized but did not know, and saw that he had something in his hand that turned out to be a razorblade (Exhibit 5). Claimant backed up, attempting to defend himself, and incurred a deep cut to his left wrist, lacerating ligaments to his fingers, resulting in lost movement in his left hand. He also was cut on his right hand.

Claimant testified that at this point he observed a correction officer standing at the front of the gallery near the top of the stairs, observing the altercation, and Claimant first yelled out for help. Claimant then grabbed inmate Brown around the waist trying to protect himself, and they tumbled to the ground. Claimant ended up on his back with inmate Brown on top of him. Prior to grabbing Brown, Claimant estimated that he had stood facing him for about three to four minutes before he went to the floor, at which point he testified that he saw a second correction officer. Brown was kneeling on Claimant's arms and kept swinging/slashing. The second correction officer was standing more towards the day room side of the hall and further into the gallery.

Claimant said he heard the CO in the "bubble"(1) (see Exhibits 22 and 23) at the front of the gallery, near the doorway to the stairwell, sound the alarm by using his baton to hit the lockbox.

While this was going on, Claimant was cut a second time on the face by Brown, on the same side as the original cut, and more to the back of his neck (Exhibits 2 and 3). Claimant was then able to swing his arm around and knock the razor out of Brown's hand, after which Brown started to punch Claimant in the face, then "grabbed" his face, putting his hand into the cut and pulled and ripped at the skin below his ear toward the back of Claimant's neck.

It was at this point that Claimant recalls hearing an officer yell "break it up, break it up," but Brown did not stop. Claimant stated that he heard the alarm first sound with the baton striking the lockbox, an area above the cell door. He estimated that he was grappling with Brown on the floor of the gallery for about three to four minutes.

Eventually a number of correction officers with batons in hand approached yelling to break it up, and at that point Brown complied and got off Claimant and stood up, raised his hands on top of the lockbox and was searched. Claimant testified that he was held to the ground for a minute to a minute and a half by a CO after the assault was broken off.

Claimant rose to his feet with a little assistance, with his arms restrained by officers. A deputy superintendent on the scene (Khahaifa) directed that Claimant be brought to the infirmary as soon as possible. Claimant was given a towel for his face and escorted to the infirmary, a trip that took some two to three minutes.

Once at the infirmary, after a few preliminary questions by the infirmary correction captain, he was bandaged by Nurse Karen Sharp and then sent by ambulance to Strong Memorial Hospital where he received stitches and they successfully reattached the ligaments in his left hand allowing movement of his fingers. Upon his return to Attica that same day, he remained housed at the facility infirmary for two or three days for more treatment until he was returned to his cell.

Claimant testified that Deputy Superintendent Khahaifa told him that inmate Brown was in keeplock and did not belong to that company. Claimant posited that the presence of an out-of-company inmate like Brown in the day room at that time of the morning was for a urinalysis test, as confirmed in an inmate misbehavior report (Exhibit X). Claimant opined that because Brown was keeplocked for purposes of urinalysis, the day room door to the gallery should have been locked because of the segregation of keeplock inmates during the movement of general population inmates, to wit, to and from chow or other programs.

Claimant on redirect recalled that the day room door (a sliding door) was not locked, but cracked open perhaps six to eight inches, which meant that one would only have to slide it open. While this aspect of putative culpable conduct was tangentially addressed at trial, and had clearly been precluded from further consideration in earlier motion practice and "law of the case," testimony at trial provided some further insight into Claimant's repeated attempts to reopen this theoretical door to liability.

CO David Korytkowski, now retired, had escorted two inmates to the day room in question prior to chow that morning. Both Brown and another unidentified inmate were required to provide urine samples as they earlier had either declined or were unable to do so. Correction Sgt. Thomas Graham was assigned as the company officer and was in the control room or "bubble" at the end of the gallery near the stairs which the company used to and from chow (Exhibits 22 and 23), from which he could see the day room and the day room door to the gallery. Sgt. Graham would have unlocked the day room door to permit CO Korytkowski, then assigned to escort another company of inmates housed on the second floor of the same C Block to chow (leaving Brown and the other urinalysis inmate in the day room), to lock the sliding door by fully closing it.

Prior to the return of 35/36 Company inmates from chow, CO Korytkowski had returned, and Sgt. Graham unlocked the day room door from the cage. He entered the day room, intentionally leaving the door open/unlocked (Exhibits 26 and 27), a practice he described as a security measure so as not to leave an officer in a locked room with inmates and allow easy access for fellow officers if help was required. In any event, the second inmate was escorted to an area within the day room to provide his urine sample, which CO Korytkowski was required to observe personally to prevent adulteration. Brown was positioned between the officer and the day room door, and CO Korytkowski directed Brown to remain standing at the wall, albeit closer to the unlocked door. As some of the 35/36 Company inmates, including Claimant, started to enter the gallery, Brown disregarded Korytkowski's direction, abruptly exited the day room and snuck up behind Claimant in a crouching position and initiated his attack.

Clearly inmate Brown should have been contained in the day room, but since the day room door was not locked and inmate Brown was more proximate to the door than CO Korytkowski, he was able to enter the gallery and attack Claimant from behind, inflicting the injuries previously described.

I now return to the singular remaining theory of liability. The evidence provided various and frequently discrepant sources for the timeline of events. Sgt. Graham, in the control room or "bubble" at the end of the gallery near the stairs which the company used to and from chow (Exhibits 22 and 23), could see the length of the gallery as well as the day room and the day room door, which opened to the gallery. Sgt. Graham observed inmate Brown come out of the day room, crouching down and then start to attack Claimant at about 9:04 a.m., a time which has been memorialized in various Department of Correctional Services (DOCS) documents, including the Hall Captain's Log (Exhibit 1), the Fight Investigation form (Exhibit 9), the Inmate Accident Report (Exhibit 10), the Inmate Misbehavior Report (Exhibit X) and Unusual Incident Report (part of Exhibit A).

Sgt. Graham testified that the attack took less than 30 seconds, that he called for assistance, and within 15 to 20 seconds officers responded. Specifically, as soon as he observed the assault taking place, he called the Hall Captain, who then "flicked" a signal twice to alert all officers in the block of an incident requiring a response. Since it would have been a breach of security for Sgt. Graham to have left the bubble cage, he was able to observe the officers' response. After the responding officers appeared, he testified that they directed the inmates to cease and desist, and they both complied,(2) and it was all over in a matter of seconds.

He listed the attack as having commenced at 9:04 a.m., acknowledging that all times are approximate. He testified that it would take some two to three minutes to escort Claimant from the gallery to the infirmary, but prior to that transport the officers would have assessed the situation, frisked and secured the two inmates for perhaps another two to three minutes.

CO Kevin Brun testified that he was inside the officers' cage area, adjacent to the bubble, perhaps some 15 to 20 feet away. Once he was alerted by Sgt. Graham that there was a problem, it took perhaps 30 seconds to get to the entrance to the gallery. He first observed the situation from his location at the entrance to the gallery, waiting until additional correction officers arrived, a period he estimated as being perhaps 15 to 20 seconds. Officer Brun testified that the altercation/assault ended when Brown stood up and disengaged in response to a direct order to do so. He estimated the entire attack as having taken a minute or so. He also confirmed that it would take two to three minutes to get Claimant from the company to the infirmary, but tempered all his reports and estimates of the duration of events noted above as being approximate.

Sgt. Lawrence Hoinski investigated the incident and issued a Fight Investigation Report and an Unusual Incident Report (see Exhibits 9 and A), and his memorialization of the time of the commencement at 9:04 a.m. came primarily from his interview of Sgt. Graham. He declined to vouch for the accuracy of the time of Claimant's arrival and treatment at the infirmary at 9:20 a.m., merely conceding that was the time inputted on Exhibits 10 and 16. Exhibit A also includes a record indicating that the attacker, inmate Brown, arrived at the infirmary at 9:21 a.m. and was treated at 9:22 a.m.

Lt. Glenn Randall was the Hall Captain for C Block on the date of this incident. He prepared the Hall Captain's Log (Exhibit 1), wherein it is noted that the block was secured as a result of this incident at 9:04 a.m. This reflects his notification of this event from Sgt. Graham. He confirmed that the trip to the infirmary from 35/36 Company would take some two to three minutes.

Terrell Eleby, the company porter who testified at trial, provided an inmate's perspective of the events from his position in the gallery. While he seemed earnest and forthright, I discounted much of his testimony, as it was at variance with other, more credible, evidence. Specifically, he reiterated without hesitation that inmate Brown accessed the gallery from the stairwell to attack Claimant from behind. Since Mr. Eleby marked his location in the gallery between the stairs and the day room door (Exhibit 24), and since there is no question whatsoever that Brown came from the day room, this testimony is discounted. Equally contradictory was Mr. Eleby's affidavit from April 20, 1998, part of the earliest summary judgment motion, that when the incident occurred he was standing in front of Cell 36-1, further down the gallery past the day room door. Moreover, Mr. Eleby was clear that both correction officers escorting the inmates from chow were at the front of the company, a notion already rejected herein. Finally, albeit while pressed by counsel, he also testified that the events here definitely took place before 9:00 a.m. While Mr. Eleby's estimates of the duration of the period when Claimant and Brown remained standing and then grappled on the ground were essentially consistent with Claimant's descriptions, I could not give credibility to most of his testimony.

Nurse Karen Sharp treated Claimant at the Attica infirmary, noting in both the Inmate Accident and Medical Report (Exhibit 10) and Claimant's ambulatory health record (Exhibit 16) the time of his arrival and treatment as 9:20 a.m. Her testimony, however, was somewhat equivocal as she noted that it was "approximately" 9:20 a.m. Photographs of his injuries are graphically displayed in Exhibits 2 and 3. Testimony established that because of the seriousness of his injuries, Claimant was the first inmate escorted to the infirmary after the incident. Nurse Sharp noted that he was given immediate treatment at the infirmary and was promptly transported to Strong Memorial Hospital (Strong) by ambulance for stitches and other medical treatment. He returned to the Attica infirmary at 6:50 p.m. (Exhibit 18).

Sgt. Robert Kauffman testified for the Defendant. He served as hospital sergeant at the Attica infirmary on the morning of the incident in question, coordinating (what I might characterize as triaging) inmates as they arrived. He had other responsibilities at that time with the mental health unit and for "call outs" to the Special Housing Unit (SHU). His testimony is pertinent as he took Polaroid photographs of both Claimant and inmate Brown. Specifically, Exhibit A contains copies of four such photographs of Claimant with Sgt. Kauffman's written notations at the bottom thereof, indicating the date of 6/1/97 at 9:10 a.m., but also see Exhibits 2, 3 and 4, color duplicates of three of the photographs provided by the Defendant which contain only Claimant's name and inmate number, the 6/1/97 date and the word "Duplicate." Exhibit A contains photographs of inmate Brown, noting the same date, and times as 9:28 and 9:56. Sgt. Kauffman testified that he contemporaneously marked the Polaroids when he took them.

This of course conflicts with the notations made by Nurse Sharp (Exhibits 10 and 16) that Claimant arrived and was treated at the infirmary at 9:20 a.m. that day. What is a more accurate reflection of the time? In trying to harmonize the discrepant times, I note that Claimant supposedly arrived at 9:20 and was supposedly photographed four times at 9:10, while inmate Brown arrived at 9:21, was treated at 9:22 and photographed at 9:28 and 9:56. Without denigrating the accuracy of any of the recorded times as testified to, and cognizant of the discrepancy and incompatibility of this and other such recorded times, I am more persuaded by the Inmate Accident and Medical Report (Exhibit 10) and Claimant's ambulatory health record (Exhibit 16).

The difficulty in trying to establish the timeline is exemplified, for example, by the discrepancy of the testimony regarding the duration of the assault. Sgt. Graham said it was over in less than 30 seconds. Yet Claimant himself estimated that he and Brown were standing for 3 to 4 minutes and then grappled on the ground for another 3 to 4 minutes before they were disengaged by officers. These are dramatically disparate estimations of time.

As an example of the imprecision of the times set forth above and below, and the presumed priorities of disengaging the inmates and treating their injuries, rather than timekeeping, the Inmate Accident Report for inmate Brown (page 6 of Exhibit A), notes his arrival at the infirmary at 9:21 a.m. and treatment at 9:22 a.m. It seems somewhat incongruous that the assaulting inmate and his victim would arrive and be treated within one or two minutes of each other. Moreover, as inmate Brown was sent from the infirmary to SHU, the documentation (page 7 of Exhibit A), the memo of the SHU escorting sergeant (Kauffman) recorded that the escort started at "approx 9:15 a.m." and ended at 10:17 a.m. That same document, however, notes that the medical staff member who examined inmate Brown was J. Blake, an R.N., at 10:20 a.m., seemingly after the conclusion of the escort to SHU. Conversely, the commencement of the SHU escort from the gallery to the infirmary at approximately 9:15 is consistent with the conclusion of the incident by most accounts. I highlight these discrepancies to reflect the uncertainty of relying upon both the written documents and the testimonial recollections to reconstruct a precise timeline of the events of that morning. The written times and estimations of times are approximate at best.

Regardless of my depiction of the timeline above as being supported by approximations, I find by a preponderance of the credible evidence that the assault was initiated at 9:04 a.m. on June 1, 1997 and that Claimant was first treated at the Attica infirmary at 9:20 a.m. The evidence also establishes that the period measured from the moment of disengagement by inmate Brown in response to a direct order, the correction officers' assessment of the situation, the search and frisk of both inmates and the duration of Claimant's escort to the infirmary, took five or perhaps six minutes.

What remains unaccounted for is the 10- or 11-minute period between the commence-ment of the assault at 9:04 a.m. until its conclusion at 9:14 a.m. or 9:15 a.m. While Claimant described the engagement with inmate Brown as a six- to eight-minute period of standing and then grappling on the ground, it is likely that his recollection is somewhat skewed by the emotion and his survival instincts of the moment, to wit, the episode seemed much longer than it actually was.

On the other end of the spectrum are the accounts of the correction personnel, which suggest that the attack was less than one minute. Their response in sounding the alert and gathering an adequate phalanx of officers who were able to stop the assault by the issuance of a verbal direct order was also less than one minute. It is likely that this estimation of time is somewhat skewed in favor of exaggerating the immediacy and promptness of their response to a vicious assault.

Regardless of which timeline is closer to actuality, the reality remains that the State's response was too little and too late, and the promptness of its response was inadequate. I do not place a stopwatch on or imply a fixed period of time within which correction officers must intervene in such situations. Rather, there is culpability for the untimeliness of the response in this particular incident, and this incident alone. Of course, there is no liability for the initial assault when Brown first cut Claimant's cheek more or less from behind, or for the injuries to his hands and left wrist while they were standing in the gallery. Liability attaches only to the second part of the assault when they were on the ground, and Brown was able to slash Claimant's face further toward the back of his neck with the weapon and then claw at the cut with his hand, ripping the skin and further deepening the wound.

As this trial is solely devoted to the issue of liability, the description of the distinction between the injuries sustained in the first and second aspects of the assault(s) are demonstrative only, and is meant to differentiate between them to ascribe liability only for the latter attack.

Accordingly, I find the Defendant answerable in damages and fully responsible for the injuries and damages proximately caused in the second assault as described above. All motions not heretofore ruled upon are now denied.

The Clerk is directed to enter interlocutory judgment consistent herewith. The parties will be advised under separate cover of a conference for a new scheduling order relative to damages and setting a day certain for trial thereof.


April 13, 2010

Rochester, New York


Judge of the Court of Claims

1. Also characterized at trial as the control desk or cage.

2. Exhibit X, an Inmate Misbehavior Report, reports that no physical force was used to end the incident.