New York State Court of Claims

New York State Court of Claims
GREEN v. THE STATE OF NEW YORK, # 2018-054-046, Claim No. 123172


Inmate on inmate assault-double-cell housing in cadre unit justified, defendant not liable for attack, not foreseeable.

Case information

UID: 2018-054-046
Claimant(s): FRANK GREEN
Claimant short name: GREEN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123172
Motion number(s):
Cross-motion number(s):
Claimant's attorney: FRANK GREEN
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Elizabeth Gavin, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 13, 2018
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant seeks damages for the injuries he sustained on August 22, 2012 during his incarceration at Downstate Correctional Facility, when he was violently assaulted in his cell by inmate Raul Davis with whom claimant had been double-cell housed since June 21, 2012. Claimant contends that defendant violated its own guidelines regarding double-cell housing and should not have placed Davis in a double-cell housing assignment with claimant. Claimant also contends that defendant was negligent in its response to the incident by failing to immediately enter the cell to separate the inmates during the incident.

Defendant maintains that it did not violate any of its guidelines regarding double-cell housing and that its response to the incident was timely and appropriate under the circumstances presented.

Claimant testified on his own behalf and his exhibits 2, 4 and 6 through 10 were received into evidence.

Claimant testified that he was housed at Downstate in a "cadre unit" which he described as a choice housing assignment for inmates selected as workers to maintain the facility and its grounds. Claimant was awaiting a single-cell assignment in the cadre unit when, on June 21, 2012, Raul Davis was double bunked in the same cell with claimant. Claimant testified that he and Davis were about the same height and weight, 5' 8" tall and 200 pounds. However, according to claimant, Davis was the Green Haven Correctional Facility boxing champ and he was more than 10 years younger than claimant. Davis expressed to claimant that he felt that he had slipped through the cracks by getting transferred to the cadre unit. Claimant testified that he was a nonviolent felony offender incarcerated on drug charges and that it was inappropriate for defendant to house Davis in the same cell as claimant because Davis was a violent felon convicted of homicide. On cross-examination, however, claimant conceded that he had a prior conviction of first degree manslaughter.

Claimant further maintained that according to 7 NYCRR 1701.5 (Selection of inmates for double-cell housing) (Ex. A), Davis should not have been placed in a double-cell housing because Davis had a history of disciplinary violence, a Tier III disciplinary determination (7 NYCRR 1701.5 [2] [ii]), and a violent criminal history (7 NYCRR 1701.5 [4] [iii]).

Prior to the incident on August 22, 2012, Davis was not on claimant's enemies list; there was no animus between the two men; claimant was not in fear of attack by Davis and claimant did not request to be placed in protective custody. Rather, claimant and Davis lived peacefully double bunked together for two months prior to the incident.

According to claimant, Davis was pacing the cell on August 22, 2012 and was bothered by something. Davis confronted claimant and threatened to break claimant's back. Davis then pushed claimant and claimant hit his head on the steel frame of the bunk bed. Davis pinned claimant to the lower bunk bed and punched claimant repeatedly. Davis dragged claimant onto the cement floor and continued to punch claimant. One particular punch to the left eye caused claimant excruciating pain. Claimant yelled for help and kicked a cabinet down to get a correction officer's attention. Claimant got to his feet to try to defend himself, but Davis pulled claimant back to the floor and slammed claimant's head on the floor. Claimant testified on cross-examination that he did not recall standing and returning blows to Davis as described in the Unusual Incident Report (Ex. 7). Claimant maintained, however, that if he had done so, it was in self-defense. Claimant testified on direct examination that the incident lasted seven to ten minutes before the correction officers opened the cell to intervene. On cross-examination, claimant conceded that his claim describes the incident as lasting three to five minutes and that he was not sure how long the incident lasted.

Claimant and Davis were each issued a misbehavior report charging them with fighting, violent conduct and refusing a direct order (Ex. 10). Correction Officer Pulice, who completed the misbehavior reports for claimant and Davis, described the incident as follows (Ex. 10, pp 27-30). Pulice heard loud yelling and ran to the cell. As he approached the cell, he saw "both inmates" engaged in a violent fist fight (id.). As Pulice got closer, he saw claimant on the floor on his stomach with Davis kneeling on top of claimant violently punching him (id.). Pulice yelled direct orders to "break up the fight" and "neither inmate complied" (id.). Pulice then reported that claimant attempted to get up from the floor and managed to briefly stand when Davis grabbed claimant's legs and pulled claimant back down to the floor. Davis then continued to punch claimant in the head and face and violently banged claimant's head onto the floor as claimant was punching Davis in the head and upper torso. Pulice activated his alarm as "both inmates continued fighting" (id.). A sergeant and other responders arrived on the scene and separated the inmates. After a disciplinary hearing, Davis was sentenced to special housing unit (SHU) from August 22, 2012 through December 13, 2013 and claimant was sentenced to SHU from August 22, 2012 through September 22, 2012 (Ex. B, p 16).

Claimant was escorted to the hospital where his broken left eye socket sustained in the incident was surgically repaired. Claimant maintains that he still has double vision since the incident when he looks down.

At the conclusion of claimant's case, defendant moved to dismiss the claim based upon claimant's failure to establish a prima facie case. Claimant opposed the motion. The Court reserved decision on the motion.

Defendant presented the testimony of Lieutenant Thomas Quackenbush from Downstate Correctional Facility and defendant's exhibits A through H were received into evidence.

Quackenbush testified that he was a watch commander and worked in administration. He described Downstate as a desired housing assignment by many inmates due to its proximity to New York City; therefore inmates must volunteer for double-cell housing to be housed at Downstate because of the space constraints and the desire of so many inmates to be housed in Downstate. Quackenbush explained that moving an inmate closer to New York City helps rehabilitate them by bringing them closer to their families. The procedure is that inmates are housed in double-cell housing assignment for no more than six months, unless an inmate signs a waiver to remain in a double-cell assignment for more than six months. Quackenbush explained that an inmate would often sign a waiver to remain in a double-cell assignment at Downstate rather than be transferred to another facility. Quackenbush was not aware if claimant had signed such a waiver.

Quackenbush explained that an inmate is initially screened for double-cell housing. Thereafter, if an inmate is transferred from a double-cell housing unit or facility to another double-cell housing unit or facility, the inmate is not screened a second time. Proper screening of Davis for double-cell housing was done at Five Points Correctional Facility and therefore another screening was not required before transferring Davis to Downstate to be in the cadre unit (Ex. H). Quackenbush testified to the screening requirement set forth in 7 NYCRR 1701.5 (Ex. A) as it related to Davis' record and noted that Davis met the size, age and mental status criteria (Ex. C, p 12; Ex. E). Quackenbush explained that Office of Mental Health (OMH) classifications range from level 1 (most severe) to level 7 (least severe) and that Davis was a level 6 (Ex. E).

Quackenbush also testified that according to 7 NYCRR 1701.5 (b) (2) (ii), because Davis had a Tier III(1) disciplinary determination within two years prior to his transfer to Downstate, he could be double-cell housed. The directive does not preclude double-cell housing of inmates with a Tier III disciplinary history. Rather, the directive precludes double-cell housing for inmates who meet all the criteria and essentially does not force double-cell housing on inmates who do not have a Tier III disciplinary history, unless the inmate signs a waiver. It was also noted that Davis signed a waiver (Ex. H, p 2).

Quackenbush further testified that there is no policy or procedure precluding a nonviolent felon from being housed with a violent felon. Quackenbush also testified that classification of inmates is based upon their complete criminal history (Ex. B, p 11). Davis' criminal history, despite a murder conviction, was nonviolent and would not disqualify him from double-cell housing (Ex. C). Claimant's past criminal history included manslaughter and his risk assessment was 12. Davis' risk assessment was 13. Both inmates were accordingly classified as Max A for housing. Quackenbush further testified that upon review of Davis' criminal and disciplinary history, Quackenbush had no reason to believe that Davis was prone to violence. Davis and claimant were not listed in each other's separatee list until after the incident in issue (Ex. F).

Quackenbush described the cadre unit as a desired housing unit for inmate workers who maintained the facility. The cadre unit inmates are afforded more unsupervised free time than in other housing units. Contrary to claimant's testimony that Davis told claimant that he was transferred from SHU to cadre in Downstate, this was not supported by Davis' records. Quackenbush clarified that Davis was not transferred directly from SHU to the cadre unit (Ex. 10) and that Davis' confinement in SHU in 2010 and 2011 would not preclude him from double-cell housing in cadre (Ex. C, p 4; Ex. 10, p 14). Quackenbush initially testified that he believed that an inmate with a history of violence within the two years prior to his transfer would not be transferred to cadre. However, Quackenbush was not aware of the particulars regarding Davis' transfer to cadre and the directive to which claimant referenced 7 NYCRR 1701.5 (Ex. A) was not relevant to a cadre transfer. Quackenbush subsequently testified that one year without any disciplinary incidents may have been enough to permit Davis to be transferred to cadre (Ex. 10). Quackenbush further testified that, upon review of Davis' disciplinary history, Davis would not be precluded from housing in the cadre unit noting that Davis' last violent incident was in 2008 (Ex. C, p 3). Quackenbush also testified that Davis' weapons infraction in the facility was not considered a violent incident because there was no evidence of violence associated with Davis' possession of a weapon.

Quackenbush testified that when the incident occurred, it was not unusual or improper that there was only one officer present during the count at the housing block. According to the Unusual Incident Report (Ex. 7, p 1), Pulice ordered the inmates to stop fighting and they both refused the direct order. Quackenbush testified that, under the circumstances, the protocol was for the single officer to call for backup before opening the cell and not to intervene until backup had arrived. Quackenbush testified that there should be at least one other officer present before opening the cell. However, the officer could make a judgment call to enter the cell if he felt he could safely intervene. Pulice did not act contrary to any guidelines or procedures by waiting for backup to arrive before intervening. The backup responders were in other housing units taking counts; therefore they could reasonably take three to five minutes to respond.

Quackenbush conceded that the misbehavior report for claimant, the misbehavior report for Davis and the Unusual Incident Report are all somewhat different; however it appeared from those records that Davis was more aggressive than claimant. It was also noted that after the disciplinary hearings, Davis was sentenced to 18 months and claimant was sentenced to only one month in SHU.


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 [1947]; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]). "[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 [2002]; Sanchez v State of New York, 36 AD3d 1065 [3d Dept 2007]; Colon v State of New York, 209 AD2d 842, 844 [3d Dept 1994]). 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 Arteaga v State of New York, 72 NY2d 212, 216 [1988]). Additionally, prison authorities should be afforded deference in managing the safety of their facilities (Vasquez v State of New York, 68 AD3d 1275 [3d Dept 2009]; Matter of Blake v Selsky, 10 AD3d 774 [3d Dept 2004]).

The Court finds that there is a lack of evidence sufficient to meet claimant's burden of proving that defendant should be held liable for claimant's injuries based upon claimant's allegation that defendant improperly placed Davis in double-cell housing with claimant in the cadre unit and that it was or should have been foreseeable to defendant that Davis would assault claimant.

Claimant invokes 7 NYCRR 1701.5 (Selection of inmates for double-cell housing) (Ex. A), which provides that the selection of inmates for double bunking requires a risk assessment by the Deputy Superintendent for Security who shall consider the eligibility criteria set forth in subdivision (b) (c) (d) of Section 1701.5. 7 NYCRR 1701.5 (b) (Eligible population) (2) provides that a general population inmate transferred for non-disciplinary reasons may not be assigned to double-cell housing in general confinement at the receiving facility if the inmate meets "all" of the four criteria set forth under subdivision (2), which includes (i) through (iv). Subdivision (2) (ii) provides "the inmate has had no Tier II or III disciplinary determinations of guilt within the last two years"(Ex. A, p 2). Subdivision (2) (iii) provides "the inmate has not volunteered for double-cell housing" (id.). Thus, contrary to claimant's arguments regarding his interpretation of the directive, 7 NYCRR 1701.5 (b) (2) did not preclude Davis from being transferred to double-cell housing because, under subdivision (2) (ii) Davis had a Tier III determination of guilt two years prior to his transfer. Rather, the explicit terms of the directive provide that an inmate may not be transferred to double-cell housing if he meets "all" of the four criteria set forth in subdivision (2) which includes both (ii) and (iii). Thus, an inmate who has not had a Tier II or Tier III disciplinary determination of guilt within the last two years cannot be transferred to double-cell housing unless the inmate has volunteered for double-cell housing. In addition, the Pre-Transfer Double Cell Waiver signed by Davis on April 4, 2012 provided that Davis had consented to double-cell housing (Ex. 10).

Additionally, 7 NYCRR 1701.5 (c) (Assessment of suitability) provides in pertinent part that the Deputy Superintendent of Security shall determine if any factors exist that would preclude a double-cell assignment such as:

(2) Physical status.

(i) Size. Any inmate over 6'5" or weighing over 299 lbs;

(ii) Age. Except for volunteers, any inmate age 70 years or older.

(3) Mental status.

(i) Level 1. Any inmate classified as a Level 1 OMH;

(ii) Levels 2 and 3. OMH classification must be closely scrutinized.

(4) History and behavior.

"(ii) Assaultive inmates. Inmates with a pattern of predatory assaults on other inmates by the use of contraband weapons or where the assaults resulted in serious physical injury to the victims;

(iii) Criminal histories of extreme violence. Inmates whose criminal histories involve a pattern of acts of violence resulting in serious physical injury to victims, or inmates whose crime(s) of commitment involve acts of violence resulting in serious physical injuries to multiple victims or intentional and depraved infliction of extreme physical pain resulting in serious physical injury to any one victim."

Subdivision (d) (Assessment of compatibility) provides in pertinent part that, after an inmate has been screened for eligibility and suitability, the inmate is then assessed for compatibility with the other inmate assigned to the cell. The criteria include whether the inmates are known enemies or have otherwise been determined by the department that they should be kept apart; their respective ages; their criminal history/length of sentence as in their years to earliest release and nature of their crimes; their size and physical capabilities.

Davis did not meet the criteria for ineligibility for double-cell housing as to size, age or mental status; nor did Davis meet the criteria under (4) (ii) (Assaultive inmates) or (iii) (Criminal histories of extreme violence). Notably, the directive refers to extreme violence and does not refer to the death of a victim.

The Court finds that the actions taken by defendant in transferring Davis to double-cell housing with claimant in the cadre unit were reasonable and there is no basis for finding that defendant was negligent or that the attack upon claimant was, or should have been, foreseeable (see Di Donato v State of New York, 25 AD3d 944, 945 [3d Dept 2006] [even where protective custody request by inmate was denied, court held that evidence was insufficient to establish assault was the foreseeable result of any breach of duty by defendant]; Elnandes v State of New York, 11 AD3d 828 [3d Dept 2004] [attack with metal object not foreseeable where assailant had no prior encounters with claimant and was not listed on claimant's enemies list]).

It is further noted that Davis did not have a history of recent acts of violence prior to the incident with claimant on August 22, 2012. Davis' last documented act of violence was nearly four years prior to the incident with claimant when, on November 28, 2008, Davis violently swung his elbow back towards a correction officer in an unsuccessful attempt to strike the officer (Exs. C; Ex. G, p 8; Ex. 8, p 2). Prior to that, Davis was disciplined for fighting on May 8, 2003 and June 1, 2003 (Ex. C, p 3; Ex. 9). Notably, Davis was not on claimant's enemies list. There was no history of any violence between claimant and Davis nor was there any apprehension of violence by claimant prior to the incident. Thus, the Court concludes that it was not reasonably foreseeable that Davis would assault claimant (see McAllister v City of New York, 159 AD3d 887 [2d Dept 2018]; Williams v State of New York, 125 AD3d 1472 [4th Dept 2015]; see Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012] [assault was not foreseeable as inmate assailant had not been cited for violence for over three years and therefore there was no history of violence between the two inmates]; Vasquez v State of New York, 68 AD3d 1275 [3d Dept 2009] [assault was not foreseeable where there was no evidence that assailant was prone to violence]).

The Court also finds that, contrary to claimant's arguments, it was not unusual or negligent for a single officer to be present during the count when the incident occurred. Further, after the correction officer ordered Davis and claimant to stop fighting and they purportedly refused, it was not negligent for that lone officer to wait three to five minutes for backup responders to arrive from other locations before entering the cell to stop the incident (see Arteaga, 72 NY2d at 216 [defendant is entitled to deference in managing the safety and order of its facility]; Colon, 209 AD2d at 844). Thus, the Court finds that the evidence established that the correction officer's response was appropriate to wait for backup before entering the cell, when the inmates had initially refused a direct order to stop fighting (see Anderson v State of New York, 125 AD3d 1273 [4th Dept 2015] [supervision was appropriate as was correction officer's response to attack]).

In sum, the Court finds that claimant has failed to meet his burden of proof and the claim warrants dismissal. Accordingly, defendant's motion to dismiss, made at the conclusion of the trial, is now GRANTED.


June 13, 2018

White Plains, New York


Judge of the Court of Claims

1. Disciplinary Tier I is the least serious and Tier III is the most serious, which results in SHU confinement.