The opinion of the court was delivered by: LEVAL
PIERRE N. LEVAL, U.S.D.J.
This is an action under 42 U.S.C. § 1983. Plaintiff pro se James McGriff, a prisoner at Ossining Correctional Facility, seeks compensatory and punitive damages from defendants Thomas A. Coughlin, III, Commissioner of the New York State Department of Correctional Services, Wilson E.J. Walters, III, former Superintendant, Ossining Correctional Facility ("the Prison"), together with three named
and other unnamed corrections officers at the prison, for failing to protect him from other inmates. Defendants move for summary judgment, contending that  an isolated instance of violence between inmates does not give rise to a cause of action under 42 U.S.C. § 1983,  the defendants' actions and omissions did not demonstrate recklessness or indifference to the plaintiff's safety and  defendants cannot be held liable for the actions of their subordinates. The motion is granted.
On the evening of October 23, 1982 there was a serious disturbance at Ossining Correctional Facility during which several inmates, including plaintiff, were assaulted by other prisoners. A fight broke out between several Black and Hispanic inmates in the prison gym during the recreation period. The fight was broken up, but the tension among the inmates nevertheless mounted, and many prisoners in the gym began breaking furniture and yelling. Defendant Sergeant Enceneat, the Sergeant in charge of A Block, decided to clear the inmates from the gym in order to diffuse the tension. (Enceneat Aff. P 7)
Plaintiff had been watching television on M Gallery near the entrance to the gym, and when a group if inmates rushed out the door, he was caught up in the crowd. The crowd of inmates pushed their way to the desk of the Officer-in-Charge situated in the center of the block. As they pushed from M to H gallery in A Block, plaintiff and other inmates saw the officer in charge. Defendant Petersen, standing out of the way with his back against a cell. Peterson had previously given his keys to Officer Lane and instructed her to remain at the Officer-in-Charge desk while he tried to reach the gate near the gym to slow the flow of inmates. when the inmates arrived at the Officer-in-Charge desk, they demanded that Lane unlock the gate that led to the upper tiers where the inmates cells were located. As was usual during the recreation period, the tiers were unguarded and the cells were locked. Lane, fearing violence, acceded to their demands. Lane states that she believed that the inmates were unarmed and seeking refuge from the violence surrounding them, and that allowing the inmates into the tiers would dissipate the disturbance. (Lane Aff. P3)
When the gate was unlocked, McGriff ran upstairs with the other inmates. When he reached the first floor landing at gallery N, five or six Hispanic inmates armed with sticks, pipes and homemade knives attacked him. Plaintiff suffered stab wounds in his thigh, contusions and back injuries. Plaintiff knows of no specific reason these inmates attacked him, but suggests that it may have been because he is Black and racial animosity was prevalent at Ossining.
McGriff claims that several unknown corrections officers witnessed his attack but did nothing to aid him. He states that during the attack he called to one Caucasion officer who was standing on the landing between N and J galleries and the officer ignored him. He also claims that three officers one floor below him on M gallery acknowledged his screams by looking towards him but did nothing to aid him. These unknown officers have not been identified or served and thus are not parties.
Plaintiff also alleges that Officers Lane and Peterson were informed of the attack by another inmate and did nothing to stop it. Plaintiff's only witness for this last claim admitted at his deposition that he was unsure whether Lane and Peterson were the officers informed of the attack.
Plaintiff contends that the actions of Lane, Enceneat, Peterson and the unknown Corrections Officers were grossly negligent and demonstrated a deliberate indifference for his safety, thus violating his constitutional rights under the Eighth and Fourteenth Amendments giving rise to relief under 42 U.S.C. § 1983.
Plaintiff's claim against Coughlin, Commissioner of New York State Department of Correctional Services, and Walters, former Superintendent of Ossining, arises from the prevailing conditions at Ossining.
Plaintiff alleges that security at the prison was dangerously lax and that the prison was a "breeding ground for violence." (Plaintiff's Brief, p.3) In support of this allegation he offers the "Report to Governor Cuomo: The Disturbance at Ossining Correctional Facility, Jan. 8-11, 1983" prepared by Lawrence T. Kurlander, former Director of Criminal Justice. The Report documents the many security lapses and the high incidence of inmate violence during 1981 and 1982. Plaintiff argues that the attack against him should not be viewed as an isolated incident, but rather in the context of pervasive prison violence. In this context, he argues, defendants were aware of the risk of violence at Ossining and that as a result, the attack against him was predictable. By failing to avert it, defendants showed deliberate indifference to his safety. Thus, he contends, they were personally involved in a violation of his constitutional rights.
The standard for prisoner claims brought under 42 U.S.C. § 1983 is high. Mere negligence or lack of due care does not give rise to a claim under the Due Process Clause. Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 670, 88 L. Ed. 2d 677 (1986); Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 666, 88 L. Ed. 2d 662 (1986). It remains an open question whether recklessness or gross negligence triggers the protection of the Due Process Clause. Daniels, supra, at 667, n.3. A claim may be made out under the Eighth Amendment by showing the deliberate indifference of prison officials to conditions seriously risking a prisoner's health. See Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). At least one court has held that tolerance of pervasive violence may constitute evidence of deliberate indifference if the level of violence reaches an extreme or exceeds the norms of similar institutions. Murphy v. U.S., 209 U.S. App. D.C. 382, 653 F.2d 637, 644-45 (D.C. Cir. 1981) (Wald, J.).
Conditions at Ossining did not deprive plaintiff of his constitutional rights. Violence is unfortunately endemic ni American prisons, and at Ossining this problem was compounded by serious security deficiencies. As the kurlander Report documents, the security guards were inadequately trained, the inmates were inadequately supervised, and many prisoners possessed contraband weapons. In 1981 and 1982 violent assaults between inmates escalated rapidly.
Nevertheless, statistics indicate that violence was no more prevalent at Ossining then at most comparable prisons. The inmate assault ratio at Ossining in 1982 was 1.7% (34 reported inmate-upon-inmate assaults in an average prison population of 2,122) (Tracey Aff., PP 4-6). The inmate assault ratio at other New York State prisons ranges from .67% - 2.7% (Becker Aff. P8) The inmate-upon-inmate assault ratio for all federal prisons is 1.4% (Becker Aff. p. 3 and Exhibit B) Thus, the level of prison violence falls within the range of violence at other comparable prisons. In this case, where the ratio of inmate-upon-inmate assaults was comparable to those in similar institutions, the court cannot say that defendants Coughlin, Walters, or any other prison officials were deliberately indifferent to the plaintiff's need for reasonable safety measures. The Constitution does not guarantee an assault-free prison environment; it promises only ...