New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2001-010-074, Claim No. 99946


Inmate on inmate assault. Claim dismissed.

Case Information

ANDRE JOHNSON The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 22, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained on September 9, 1998 when, during his incarceration at Sing Sing Correctional Facility ("Sing Sing"), he was assaulted by another inmate alleged to be Marlon Legere, a/k/a Miz. Claimant maintains that, prior to the attack, he notified defendant verbally and in writing of his safety concerns. Defendant denies receipt of either notice. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
In September 1998, claimant was housed in A block, P gallery, cell 17, at Sing Sing ("P-17").
laimant testified that on Saturday, September 5, 1998, after 6:00 p.m., he deposited a letter he had written to Sergeant NcNamara in the interoffice mailbox located near the mess hall. The letter stated:
I am writing you to inform of a problem Im having with another inmate that locks in P-19 2 cells from me. His slang name is Miz. Sarg he has been threatening me saying that he is gonna do something to me Due to a problem that began on Rikers Island Sgt. I would like for you to move him or me to Avoid any problems thank you
(Claimant's Ex. 1). Claimant testified that the threats from Miz started shortly before September 5, 1998, specifically on September 3rd (T:43). Claimant knew the earliest the letter would be picked up would be Monday (T:42).[1] Claimant never received any response to his letter.
Claimant did not recall if he had gone to the recreation yard on September 7 and September 8, but he believes he did. He was aware that it was not required to go to the yard and that he could remain in his cell. On Wednesday, September 9, 1998, at approximately 6:00 p.m., claimant was in the yard and saw Miz and several other inmates approaching in a threatening manner. Claimant asked Correction Officer Denson, the officer in charge, if it would be permissible for claimant to return to his cell because he had a problem with someone in the yard. Denson denied claimant's request and, according to claimant, Denson stated that he would keep the situation under observation.
Claimant then walked to the handball court, which he estimated was more than 30 feet from where Denson was stationed. Miz approached claimant and assaulted him.
Sergeant J. Taylor responded to the scene and questioned claimant about the attack. Claimant stated "he was attacked from behind and did not see his attacker" (Ex. D). Later that evening, claimant signed a Refusal of Admission to Protective Custody form (Ex. J).
A week after the incident,
claimant spoke with New York State Police Investigator Richardson. Richardson advised claimant that inmate Legere was being held on disciplinary charges regarding the assault. Claimant did not know that Miz's real name was Legere. Claimant agreed to testify at the disciplinary hearing. However, claimant would not participate in a criminal proceeding because he feared reprisal. Claimant testified that Richardson was understanding about claimant's concerns of being labeled as a snitch. At Miz's disciplinary hearing claimant testified that Legere was not the attacker, rather, he is claimant's friend.
Sergeant John McNamara testified that he has been employed by the New York State Department of Correctional Services ("DOCS") for 19 years and has been the sergeant in charge of Housing Block A at Sing Sing since 1995. He explained that, throughout Sing Sing, there are intrafacility mailboxes designated for the superintendent, counselors and medical personnel. The mail is sorted and then distributed to the appropriate individual. Intrafacility mail deposited in the evening of Saturday, September 5
th would be picked up on Monday morning and then delivered on Tuesday, September 8th. McNamara was not working on September 8th or 9th and his mail is not opened in his absence. McNamara returned to work on September 10, 1998 and heard about the September 9th assault on claimant. McNamara testified that when he receives a letter from an inmate regarding safety, McNamara interviews the inmate and retains any documents generated by the interview. McNamara never received claimant's letter and a search of McNamara's records dating back to January 1998, did not reveal the letter.
McNamara testified that an inmate who feared for his safety could remain in his cell or express his fears
verbally, or in writing to a gallery officer, a sergeant, a supervisor or a counselor. According to McNamara, Legere was known as "Tree" rather than "Miz."[2]
New York State Police Investigator Fred Richardson, assigned to crimes that occur at Sing Sing, interviewed
claimant on September 11, 1998. Claimant reported that he was attacked from behind and therefore unable to see his attacker's face. Claimant stated that he would not identify his attacker nor participate in any administrative procedure. Richardson did not recall any conversation with claimant regarding his being labeled a snitch.
Correction Officer Tracy Denson testified that he
was stationed in the officer's booth, approximately 75 feet away from the handball court,[3] on the day of claimant's attack. Denson maintained that he did not have any conversation with claimant prior to the attack. At his EBT, Denson had no recollection of the events. He maintained that his memory was better at trial because he had reviewed his own report of the incident and a Misbehavior Report issued to claimant (Exs. 3, p. 3; F).
The mere occurrence of an unprovoked, unexplained attack by another inmate, with whom claimant had no prior confrontations, 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; Padgett v State of New York; 163 AD2d 914). Further, while the State is required to use reasonable care to protect the inmates of its correctional facilities from the foreseeable risks of harm (see, Flaherty v State of New York, 296 NY 342; Littlejohn v State of New York, 218 AD2d 833; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112AD2d 562), "[t]he State is not an insurer of inmate safety" (see, Padgett v State of New York, supra; Leibach v State of New York, 215 AD2d 978).
To establish liability, claimant must demonstrate one of the following (1) the State knew that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection (
see Sebastiano v State of New York, supra); (2) the assailant was particularly known to the State to be prone to perpetrating such an assault and the State did not take proper precautionary measures (see, Wilson vState of New York, 36 AD2d 559); or (3) the State had ample notice and opportunity to intervene but did not act (see, Huertas v State of New York, 84 AD2d 650).
Upon listening to the witnesses testify and observing their demeanor as they did so, this Court finds that there was a lack of credible evidence establishing any notice to
defendant prior to the attack. Detracting from claimant's credibility is his admitted awareness that a letter deposited in the intrafacility mail on Saturday, September 5th would not be delivered to McNamara's office until Monday, September 7th. Despite such awareness, claimant purportedly chose this manner of communication rather than a more immediate mode of communication. Claimant also did not elect to remain in his cell on Monday to await a response from his alleged sent letter. Rather, he chose to go to the yard where he could be at risk of attack. It was also not believable that, if claimant had truly feared for his safety, that he would continue to go to the yard on September 8th and 9th. Further, it was not believable that on September 9th, claimant asked to return to his cell because he feared for his safety and after such request was purportedly denied, he proceeded to a distance in the yard at least 30 feet from the supervising officer. Moreover, according to Sergeant Taylor, who responded to the scene, claimant stated that "he was attacked from behind and did not see his attacker" (Ex. D). Then, at the disciplinary hearing, claimant testified that Miz is not the attacker; rather he is claimant's friend.
This Court credits McNamara's testimony that he never received claimant's letter and does not credit claimant's testimony that, just prior to the attack, he expressed his fears to Denson and that claimant was assured of his safety. Rather, the Court finds that there was no notice to defendant, either by letter or verbal communication and
claimant has failed to establish that defendant was negligent.
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


October 22, 2001
White Plains, New York

Judge of the Court of Claims

[1] References to the trial transcript are preceded by the letter "T."
[2] Defendant offered evidence of DOCS' Facility Population Management System, a computer program maintaining inmates' housing assignments, to show that claimant was in P gallery of A block (Ex. K) and that Legere was not housed near claimant. Rather, Legere was housed in M gallery (Ex. L). While the Court received such evidence, it was not considered. Defendant failed to lay a proper foundation, i.e., that the record was made in the regular course of business and that there was a business obligation to maintain such record (T:127-29). There was also no basis for defendant's failure to identify such evidence at the Court's pre-trial marking conference. Accordingly, the evidence is stricken from the record.
[3] McNamara estimated that the booth was 100 feet away from the handball court.