New York State Court of Claims

New York State Court of Claims

STOREY v. THE STATE OF NEW YORK, #2000-007-529, Claim No. 99744


Claimant, an inmate, brought a claim against the State after being assaulted by another inmate on February 9, 1998 at Clinton Correctional Facility. Claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

John L. Bell
Claimant's attorney:
Terell Storey, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Belinda A. Wagner, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
August 29, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Terell Storey, seeks damages for personal injuries sustained on February 9, 1998 when another inmate, Michael Garcia, approached him from behind, and using a sharp weapon, slashed him from above his upper lip and across his right cheek to the back of his neck in the gymnasium of the Clinton Correctional Facility (hereinafter "Clinton"). Garcia was ostensibly unknown to claimant, and no evidence was adduced at the trial concerning any reason for the cowardly attack or that prison officials or employees had any prior notice or warning that the assault might occur.[1]

In his filed claim, claimant asserted,
inter alia, as alleged causes of action, that defendant State was negligent in failing to (1) secure and monitor the movement of inmates as they entered the gymnasium area and to search individual inmates and employ a metal scanner for contraband and weapons as inmates entered the gymnasium; (2) stop Garcia from assaultive behavior against claimant and prevent the introduction into the gymnasium of a concealed weapon made of steel, metal or other material capable of inflicting serious wounds and injuries to others; (3) protect, secure and supervise claimant but rather having correction officers entertain themselves by introducing themselves to a fellow female officer new to the facility and the post; (4) ascertain the true nature of the incident and instead accusing the claimant of fighting; (5) provide claimant immediate medical treatment at a local hospital or medical center with the result that claimant's laceration resulted in permanent scarring.
A determination whether a breach of duty to claimant occurred under the prevailing circumstances must begin with a recognition of the realities of prison life. "The operation of a correctional institution is at best an extraordinarily difficult undertaking" (
Wolff v McDonnell, 418 US 539, 566; see, People ex rel. Vega v Smith, 66 NY2d 130, 141). The task of maintaining order and discipline in such an environment often requires correction officers to make difficult decisions under exceptionally trying circumstances (see, Arteaga v State of New York, 72 NY2d 212, 220). A review of both reported and unreported cases of the Court of Claims involving inmate assaults and this court's experience in trying such cases demonstrate that often inmates cleverly craft weapons or covertly secure implements such as that employed to injure claimant so grievously in the present matter.
As regards assaults by one inmate upon another in State correctional institutions, the general law is well settled. The State must provide inmates reasonable protection against foreseeable risks of attack by other inmates (
Flaherty v State of New York, 296 NY 342; Blake v State of New York, 259 AD2d 878; Colon v State of New York, 209 AD2d 842). The State is not, however, an insurer of the safety of inmates and the fact that an assault occurs does not give rise to an inference of negligence (Schittino v State of New York, 262 AD2d 824). Indeed, it is well recognized that, by their very nature of being filled with often violent criminals, correctional facilities continually face the potential of violence within their walls (see, Bell v Wolfish, 441 US 520, 559; Jones v North Carolina Prisoners' Labor Union, 433 US 119, 132; Arteaga v State of New York, supra, at 220; Goldgrab v State of New York, Ct Cl, June 6, 2000 [Claim No. 93825], Bell, J.). To establish liability for an inmate-on-inmate assault, a claimant generally must show that (1) the victim was a known risk and the State failed to provide protection (Sebastiano v State of New York, 112 AD2d 562), (2) the State had notice that the assailant was particularly prone to perpetrating such an assault and failed to take precautionary measures (Littlejohn v State of New York, 218 AD2d 833), or (3) the State had ample notice and ample opportunity to intervene but failed to act (Huertas v State of New York, 84 AD2d 650).
Claimant testified that on February 9, 1998 he was housed in 7 Building at Clinton. Accompanied by more than 20 other inmates, claimant entered the gymnasium about 7:30 p.m. He specifically related that he had no known enemies and did not know inmate Garcia before Garcia slashed his face and neck. He stated that the assault occurred as he was proceeding to a weight-lifting area in the gymnasium. After he was slashed, he caught inmate Garcia by chasing him around the gymnasium a few times. He testified that a response team arrived within a few minutes after the slashing and that the two inmates were restrained by correction officers. At the trial claimant abandoned his allegation set forth in the claim that a concealed weapon made of steel or metal was used to inflict the severe laceration to his face and neck and contended instead that a piece of glass emanating from a broken window in the gymnasium constituted the weapon used to slash him. No substantial proof demonstrated that the alleged weapon was a piece of glass from a broken window.

Clearly, claimant failed to establish liability by demonstrating that (1) he was a known risk and defendant failed to provide reasonable protection, (2) the State had notice that Garcia was particularly prone to perpetrating an assault, yet failed to provide proper precautionary measures, or (3) defendant had ample notice and ample opportunity to investigate but failed to act (
see, Stanley v State of New York, 239 AD2d 700).
Claimant's suggestion that as the assault occurred two correction officers assigned to the gymnasium were derelict in their security duties by talking to a recently hired female officer in the gymnasium is devoid of merit. Indeed, claimant's own testimony was simply that before he was assaulted the female correction officer was being escorted by one male correction officer who then introduced her to another male correction officer. Defendant's credible proof was that two correction officers were customarily assigned to the gymnasium and that the female correction officer had been assigned to the gymnasium to replace a correction officer who had planned to take a vacation. When the correction officer decided not to take a vacation, the female correction officer, who had been employed for about two months, was simply acting as an extra security officer in the gymnasium.

Similarly unavailing is claimant's argument that the correction officers assigned to the gymnasium were not in proper position to prevent the assault. Specifically, he asserted that three chairs were located in the gymnasium as fixed posts. Such testimony was completely refuted by Sergeant Norman Collins who testified that the chairs did not constitute fixed posts but were used for other purposes. Sergeant Collins explained that at least one correction officer customarily positioned himself wherever a large group of inmates congregated. The number of correction officers assigned to the gymnasium and the positioning of the officers constituted discretionary acts of Department of Correctional Services' officials. Deference to the judgment of correctional facility authorities in such matters must be the rule.

Finally, the court must consider claimant's contention that defendant was negligent in not transporting him to a local hospital immediately after the assault but instead waiting for a prison physician to arrive several hours later, examine and then order claimant to be transported to the Champlain Valley Physicians Hospital Medical Center for surgical treatment. Although it appears that the severe laceration sustained by claimant was not sutured until five or six hours after the subject incident, no medical testimony was offered to demonstrate that the lapse of five to six hours from the time of the subject incident to the time of the surgery affected the ultimate scarring resulting from the subject laceration.

Claimant's anger and indignation at having sustained a severe laceration resulting in scarring in an apparently unprovoked assault is patently understandable. Unquestionably, a fact finder should have no difficulty in fixing liability upon claimant's assailant if the assailant, rather than defendant State, were the defendant in a court of competent jurisdiction. But, in the absence of culpable conduct, defendant is not obligated to compensate an inmate for the villainous conduct of another inmate. Defendant's motion to dismiss upon which the court reserved decision at the trial, is now granted and the claim is dismissed.

The Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

August 29, 2000
Plattsburgh, New York

Judge of the Court of Claims

Prior to the trial on August 22, 2000, claimant moved to amend his claim to allege a cause of action for what can be referred to as a post-traumatic stress disorder and to compel certain discovery. At the trial, following argument, the court denied claimant's motion. A contemporaneous order denying claimant's motion will be filed in the office of the Clerk of the Court of Claims.