New York State Court of Claims

New York State Court of Claims
MULLAMPHY v. THE STATE OF NEW YORK, # 2011-010-024, Claim No. 115461


Inmate on inmate assault, defendant not liable.

Case information

UID: 2011-010-024
Claimant short name: MULLAMPHY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115461
Motion number(s):
Cross-motion number(s):
Judge: Terry Jane Ruderman
Claimant's attorney: ANDREW F. PLASSE, ESQ.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 20, 2011
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant seeks damages for injuries he allegedly sustained on September 8, 2007 during his incarceration in Green Haven Correctional Facility (Green Haven). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

On September 8, 2007, claimant was housed in H block one company with approximately 38 to 42 other inmates, including inmate George Morales who was keeplocked in his cell. According to claimant, at approximately 9:30 a.m., he was returning to his cell. There were no other inmates on the gallery. Claimant heard a cell door open and saw Morales on the gallery looking "weird" and "disoriented."(1) Claimant testified that Morales, swinging his arms, exited his cell and rushed toward claimant. Initially, claimant believed that Morales was having a seizure and claimant did not think he was being attacked. Then Morales struck claimant. At that point, claimant raised his hand in an attempt to fend off Morales. During the scuffle, claimant stepped backwards and lost his balance. Claimant testified that he slipped and fell, hitting a pipe that was protruding six inches from the wall.

Eight to ten correction officers responded to the scene. Claimant was patted down, handcuffed and escorted to the facility clinic. Claimant refused placement in protective custody. Both inmates were charged with fighting. Claimant testified at his own disciplinary hearing and on behalf of Morales at his hearing. Both were found guilty. Prior to the incident, claimant had no problem with Morales and considered him, like everyone else, a "buddy."

Claimant testified that prior to the incident he had been keeplocked at Green Haven and that his experience was that whenever a keeplock inmate was out of his cell, a correction officer was present to secure the other inmates. Claimant testified that on September 8, 2007, however, a correction officer was not present when Morales exited his cell. Rather, the correction officers were at the end of the gallery. Therefore, claimant maintained that he was not secured by the presence of a correction officer. After the incident, claimant filed a grievance requesting that general population inmates be confined to their cells when keeplock inmates are released from their cells. Claimant recalled receiving a response from the facility that it did not have such a policy.

Correction Officer Anthony Henson was employed as a resource officer at Green Haven from May 2007 to January 2008. He testified that, on September 8, 2007, he witnessed claimant and inmate Morales exchanging closed fist punches. Henson directed them to stop and completed misbehavior reports for both inmates (Ex. B). Henson maintained that if he had observed one of them having a seizure, he would have noted that in his report.

Sergeant Robert Backus, who has been employed by the New York State Department of Correctional Services (DOCS) for more than 23 years, was assigned as a sergeant on the day shift at Green Haven on September 8, 2007. He testified that he was notified by radio that there was a fight between two inmates on H block. Backus responded to the scene. When he arrived, he observed that the inmates had been separated. It did not appear to Backus that either inmate was having a seizure and such an observation would have been noted in his report. Backus interviewed the inmates and obtained written statements from the correction officers at the scene. Both claimant and Morales were offered and refused protective custody (Ex. B). Claimant never indicated that he felt threatened by Morales or that he feared him. Backus did not see any pipes protruding from the wall.

Backus testified that keeplock inmates are restricted to their cells for 23 hours a day and are only permitted to be released from their cells for one hour each day for recreation or to shower. A keeplock inmate is allowed to leave his cell even if other inmates are in the area at that time. According to Backus, there is no general policy or prison directive mandating that the general population be secured when a keeplock inmate is released from his cell.(2) Backus further testified that correction officers do not frisk keeplock inmates before they exit their cells. Backus stated that there was a general practice that when a keeplock inmate reaches the entrance to the gallery, he is searched and then escorted by a correction officer to the next destination.

Captain Edward Burnett, who has been employed by DOCS for 26 years and has been a captain at Green Haven for the past five years, testified that he is responsible for overall security at the facility and reports directly to the Deputy Superintendent-in-Charge of Security. As part of his duties, Burnett is responsible for maintaining updated copies of all DOCS directives as well as policies and procedures specific to Green Haven. Keeplock inmates are confined to their cells, except for one hour of recreation a day, showers three times a week, medical appointments and parole hearings. Burnett stated that keeplock inmates are not escorted from their cells; rather they are escorted from the door at the entrance to the block. Correction officers waiting at the entrance can see the length of the gallery as the inmates walk toward the officers. Burnett was not aware of any directive requiring that keeplock inmates to be escorted from their cells or pat frisked before they exited their cells. Nor was he aware of any directive or facility policy mandating that general population inmates be secured when a keeplock inmate is released from his cell. Prior to this incident, Burnett was not aware of any assault between a keeplock and a general population inmate.

Burnett reviewed Morales' prior disciplinary history at trial and testified that, while Morales had a series of disciplinary infractions, of his eight prior dispositions in the year and a quarter before the incident, only one was for fighting (Ex. 2, p 4). Burnett conceded that while Green Haven takes precautions to prevent random assaults, not all are avoidable. Contrary to claimant's assertions that he was injured when he fell on a pipe protruding from the wall, Burnett testified that there was no such condition and he referred to photographs of the area (Exs. I-O), which failed to show the purported pipe.


It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm including the risk of attack by other inmates (see Flaherty v State of New York, 296 NY 342; Littlejohn v State of New York, 218 AD2d 833). "[T]he State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. *** The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, 99 NY2d 247, 256).

To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (id.). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see Colon v State of New York, 209 AD2d 842, 844).

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that there is a lack of evidence sufficient to meet claimant's burden of proof. Specifically, claimant has failed in his arguments that the security measures and supervision of keeplock inmates were inadequate and violated any DOCS' directives. Specifically, there was no directive or rule applicable to Green Haven which required keeplock inmates to be frisked before exiting their cells or required an escort of keeplock inmates through their contact with general population inmates. Additionally, the proof did not establish that Morales was a "known dangerous prisoner" prone to attack (see Auger v State of New York, 263 AD2d 929, 930) or that claimant feared Morales or identified him on an enemies list (Elnandes v State of New York, 11 AD3d 828 [attack with metal object not foreseeable where assailant had no prior encounters with claimant and was not listed on claimant's enemies list]). Rather, claimant testified that prior to the incident he considered Morales to be a buddy and Morales did not have a history of violence within the facility.

The mere occurrence of an inmate assault, despite defendant's continued efforts, does not mandate a finding of negligence in this case. The actions taken by defendant to secure the safety of general population inmates, including claimant, were reasonable under the circumstances; therefore defendant is entitled to deference in managing the safety and order of its facility (see Arteaga v State of New York, 72 NY2d 212, 216).

Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


September 20, 2011

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims

1. All quotations are to the trial notes or audio recording unless otherwise indicated.

2. In his post-trial memorandum, claimant asks the Court to take judicial notice of "DOCS directives 2041 and 2207" as cited in an unreported decision of Judge Alan C. Marin, Donaldson v State of New York (Ct Cl, March 7, 2000, Claim No. 93941, UID 2000-016-001) and described as directives setting forth the required supervision for escorting keeplock inmates. Upon further submission from defendant, it is clear that the "directives" cited to in Donaldson were not in fact DOCS' directives with statewide applicability. Rather, they were rules adopted by Sullivan Correctional Facility which were specific to that facility. These rules are not relevant in this case because they have no applicability to Green Haven.