New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2000-0280-0002, Claim No. 96051


A prison inmate assaulted by two other inmates assigned to Involuntary Protective Custody when their housing unit had to be evacuated for the day failed to prove either that the State had notice that there was a heightened risk that he would be assaulted or that the procedures used to move inmates from the housing area were unreasonable.

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):

Claimant's attorney:
Defendant's attorney:
BY: Michele M. Walls, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 29, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on February 27, 1997 at Coxsackie Correctional Facility, when claimant was assaulted by two other inmates. Claimant was housed in the Involuntary Protective Custody (IPC) unit, as the result of a November 1996 incident in which he was the subject of an attempted stabbing. On the day in question, all residents of the E-3 Division, IPC inmates as well as those in the general population keeplock, were moved into the recreation yard and placed in six separate cages. This movement was necessary, according to defense witness Sgt. Graham, because the E-3 Division was being treated with roach spray or bug spray.

Claimant was placed in one of the cages with, among others, two inmates, Smith and Wurtham, known to claimant as "Tommy Gun" and "Dough Boy", who had been classified and housed as either IPC Keeplock or IPC Investigation. These inmates assaulted claimant.

Claimant testified that the State was on notice that he might be assaulted because he had previously given notice that a "contract" had been put on his life by members of a gang known as "Bloods". This contract was supposedly placed on him by another inmate, a co-defendant in an unrelated criminal matter. Sgt. Graham testified that he had no knowledge of any "contract" on claimant and that there was no history of trouble between claimant and the two inmates who assaulted him.

The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see, Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see, Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented the assault, but failed to do so (Huertas v State of New York, 84 AD2d 650).
Claimant has failed to carry his burden of proving, by a preponderance of the credible evidence, that the State had notice of any heightened risk of harm to him from any other inmate or that the State's procedures in removing all inmates from the E-3 Division were in any way negligent. His testimony that he had given notice about a "contract" on his life was unsubstantiated and refuted by Sgt. Graham. Sgt. Graham further testified, credibly, that the procedures used in evacuating the housing unit were standard and ordinary and that, with no reason to suspect trouble between claimant and his assailants, they would normally be placed in the same cage area because all three were the same status, namely IPC.

The claim is dismissed. Let judgment be entered accordingly.

September 29, 2000
Albany, New York
Judge of the Court of Claims