New York State Court of Claims

New York State Court of Claims

ALMEIDA v. THE STATE OF NEW YORK, #2000-010-035, Claim No. 90111


Synopsis


Pro se
inmate assault

Case Information

UID:
2000-010-035
Claimant(s):
GEORGE ALMEIDA
Claimant short name:
ALMEIDA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
90111
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
GEORGE ALMEIDAPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 26, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, an inmate proceeding
pro se, seeks damages for the alleged injuries he sustained during a fight with another inmate on August 18, 1994 at Sing Sing Correctional Facility. Claimant contends that on August 17, 1994, he was twice attacked by other inmates and that defendant was negligent in its failure to place him in Involuntary Protective Custody prior to August 18, 1994. Claimant alleges that, due to defendant's negligence, he was injured in a fight on August 18, 1994. This claim was heard in a unified trial.
Claimant testified that on August 17, 1994, at 3:20 p.m., he was assaulted by inmate Restrepo and was subsequently placed in keeplock. According to claimant, at 9:10 p.m., later that evening, he was released from keeplock and returned to general population against his will. Claimant testified that he was afraid and wanted to go back to his cell. He communicated his concerns to a correction officer and was permitted to return to his cell.

Upon reaching his cell at 9:30 p.m., an unidentified assailant came from behind with a razor and cut the back of claimant's head. Claimant received stitches and was placed in keeplock.

The following morning, on August 18, 1994, claimant was released into the keeplock recreation yard, where he was assaulted by inmate Restrepo. Claimant maintains that this was the second incident, within two days, that he had had with inmate Restrepo and that defendant was negligent in placing claimant in keeplock rather than Involuntary Protective Custody after the first assault by inmate Restrepo on August 17
th.
Upon listening to claimant testify and observing his demeanor as he did so, the Court finds that his testimony failed to establish that he was in fact assaulted at 3:20 p.m. on August 17
th and specifically by inmate Restrepo. Notably, claimant failed to submit any documentary evidence regarding this alleged assault; nor was there any evidence that claimant informed defendant that he feared Restrepo after the alleged attack. Claimant pled guilty to fighting with Restrepo on August 18th (Ex. A) and did not offer any testimony explaining his plea or relating it to the alleged assault by Restrepo on August 17th. Accordingly, the Court finds no basis for defendant to have anticipated the August 18th incident with Restrepo.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from the foreseeable risk of harm (
see, Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). This includes the risk of attack by other prisoners (see, Littlejohn v State of New York, 218 AD2d 833). However, "[t]he State is not an insurer of inmate safety; its duty is to exercise reasonable care to prevent foreseeable attacks by other inmates." (Padgett v State of New York, 163 AD2d 914). The mere fact that a correction officer may not have been present when the assault of claimant occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see, Leibach v State of New York, 215 AD2d 978; Padgett v State of New York, supra). An unprovoked, unexplained attack by a fellow inmate, with whom claimant had no prior contact, does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeably dangerous situation (see, Stanley v State of New York, 239 AD2d 700; Roudette v State of New York, 224 AD2d 808; Leibach v State of New York, supra; Padgett v State of New York, supra). Based upon the evidence presented, the August 18th incident with Restrepo was not foreseeable. Moreover, claimant pled guilty to fighting with Restrepo and, in the absence of any evidence establishing that defendant had notice of a problem between claimant and Restrepo, defendant cannot be held liable.
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING Claim No. 90111.



July 26, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims