New York State Court of Claims

New York State Court of Claims

RIVERA v.THE STATE OF NEW YORK, #2000-029-016, Claim No. 95293


Synopsis


Prisoner - assault by fellow inmate - no liability - dismissed.

Case Information

UID:
2000-029-016
Claimant(s):
FRANCISCO RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95293
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Francisco Rivera, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Elyse Angelico, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 30, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The claimant, appearing
pro se, seeks recovery from the defendant for damages which claimant alleges were the result of negligent supervision of inmates by the Department of Correctional Services. The trial of this claim was held on August 17, 2000 at Sing Sing Correctional Facility (hereinafter Sing Sing).
At trial, claimant testified that on April 23, 1995 recreation was called at approximately 9:15 a.m., at which time he was let out of his cell and he went to take a shower. Claimant stated that while waiting in line for a shower, he was attacked from behind and stabbed in the left shoulder by an inmate who, at that time, was unknown to him. He further stated that he tried to elude his assailant, but because he was bleeding profusely, he slipped on his own blood which had accumulated on the floor, and his attacker stabbed him again. Claimant asserted that no correction officer was present on the gallery at the time of the assault and therefore, no help was available to him. He stated he then went to a slop sink and washed his injury off prior to proceeding to the C.O.'s office to report the attack to C.O. Aman. Claimant testified that C.O. Aman called for assistance and another C.O. arrived to escort him to the Sing Sing infirmary. He was then taken to St. Agnes Hospital. Claimant also stated that, following his release from the hospital, he was interviewed by Lieutenant Gibson, who inquired if claimant knew his attacker. Claimant's response was that he did not. Claimant stated that he was then shown photographs of inmates and he identified his assailant, Inmate Torres. Claimant further testified that he was then placed in Involuntary Protective Custody (see Exhibit 1). Claimant also stated that the weapon Torres used to stab him was a butter knife (see photographs Exh. 3).

Claimant argues that he was attacked as a result of improper supervision of inmates. In support of this theory, claimant asserts that (1) Torres was not housed on "C" gallery and should not have been on the gallery without an officer escorting him; (2) the State was negligent in not being aware that Torres had a weapon; (3) the State was negligent in that a C.O. did not maintain constant visual surveillance of the company because the C.O. was in the office and not on the gallery at the time of the assault. Claimant asserts that if the officer was at her post, the assault would not have taken place.

Despite claimant's assertion that the correction officers at Sing Sing did not follow proper state guidelines for safety at the facility on April 23, 1995, claimant submitted no specific rule or regulation which he asserts was violated. Further, by claimant's own testimony, the inmate who engaged in the assault upon claimant was unknown to him at the time, although he eventually learned his assailant's identity.
While the State must provide inmates reasonable protection against foreseeable risks of attack by other inmates
(Blake v State of New York, 259 AD2d 878; Sebastiano v State of New York, 112 AD2d 562), the State is not an insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence (Sebastiano v State of New York, supra).
In order to establish liability on behalf of the State, an inmate claimant must allege and prove one of the following grounds:
(1) the victim was a known risk and the State failed to provide reasonable protection (see, Sebastiano v State of New York, supra); (2) the State had notice that the assailant was dangerous and refused to take the proper precautions (see, Littlejohn v State of New York, 218 AD2d 833; Wilson v State of New York, 36 AD2d 559); or (3) the State had ample notice and the latitude to mediate and failed to act (see, Huertas v State of New York, 84 AD2d 650).
Claimant offered no proof that he was a known risk, nor did he present any evidence that his assailant was a known dangerous prisoner, thereby placing the State on notice of any increased likelihood of assault. The record fails to establish any motive for the assault, or any indication that claimant or his assailant ever engaged in violent attacks or other disruptive conduct while incarcerated. Claimant did not testify that there was animosity between him and the attacker, and no evidence was presented to establish that the assailant was a known dangerous prisoner. Claimant also failed to establish that the State had notice that the attack would occur or was likely to occur.
Under the factual circumstances of the present case, liability against the State cannot be found. Despite the unwarranted and vicious assault upon the claimant, the proof demonstrates none of the grounds necessary for a finding of liability involving an assault by one inmate upon another in a State correctional institution. Unremitting supervision of inmates is not required (
Colon v State of New York, 209 AD2d 842). Nothing presented to the Court is sufficient to show that the presence of a C.O. at the end of the gallery would have prevented this sudden and "unprovoked" attack.
As to the "unauthorized" presence of Inmate Torres, the documentary evidence submitted by claimant includes a memorandum dated April 24, 1995 from Lt. Gibson to Deputy Superintendent Greiner (Exh. 2) which states that an altercation between claimant and Torres took place following an argument "over T.V. programming". The document further states that the gallery doors were locked prior to, during, and after the incident. There is no indication that Torres was "out of place" on "C" gallery at that time. Thus, there is no basis upon which this Court may conclude that Torres did not, in fact, belong on "C" gallery at the time of the incident.

With regard to the weapon, we note that determinations whether or not to search inmates with metal detectors constitute a procedure and exercise of discretion which is beyond the pale of a Judge of the Court of Claims (
Bostic v State of New York, Claim No. 83864, filed 3/6/95, Bell, J. affd 232 AD2d 837). Therefore, the failure to perform such search cannot create liability in the absence of clear abuse of that discretion or other exigent factual circumstance.
Based upon the evidence presented, we find and conclude that while claimant was assaulted and sustained serious injuries, he has failed to establish, by a preponderance of the credible evidence, that the State was negligent in failing to properly supervise the inmates.

Therefore, based upon the foregoing, the claim is dismissed. The Chief Clerk is directed to enter judgment accordingly.


August 30, 2000
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims