New York State Court of Claims

New York State Court of Claims

MONTGOMERY v. THE STATE OF NEW YORK, #2001-030-501, Claim No. 97011


Synopsis


Pro se prisoner claim alleging assault by fellow inmates dismissed. No proof that assault occurred in the first instance

Case Information

UID:
2001-030-501
Claimant(s):
ARTHUR R. MONTGOMERY
Claimant short name:
MONTGOMERY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97011
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
ARTHUR R. MONTGOMERY - PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NYS ATTORNEY GENERALBy: ELYSE J. ANGELICO, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 4, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Arthur R. Montgomery, the Claimant herein, seeks recovery from the defendant for damages he alleges were the result of the negligent supervision of inmates by the Department of Correctional Services. Trial was held at the Sing Sing Correctional Facility (hereafter Sing Sing) on July 27, 2001.

Claimant testified that on September 9, 1997, he was hit in the neck with a knife or razor by an unknown assailant while on his way to the noon meal. He could not identify any inmate as his assailant, and testified that he had no known enemies. Claimant allegedly sustained an injury requiring 18 stitches, and creating a permanent scar 7 to 8 inches long on the right side of his neck.

Sergeant J. McNamara, called as
Claimant's witness, testified credibly concerning his investigation of the alleged assault. He indicated that he interviewed the Claimant, but could discover no witnesses to the incident. Although the Claimant had asserted that the assault occurred in the gallery while inmates were going in a large group to the noon meal, no physical evidence of an assault could be found at the location claimed. Additionally, when the Sergeant searched the Claimant's cell, he discovered blood and an altered razor. Together with the lack of witnesses these physical findings suggested to the witness that the injury was self-inflicted.
Claimant argues the defendant was negligent in failing to safeguard claimant by neglecting to post adequate, professionally trained security or personnel to secure claimant from attack by oncoming inmates.

While the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates, [
Blake v State of New York, 259 AD2d 878 (3d Dept. 1999); Sebastiano v State of New York, 112 AD2d 562 (3d Dept. 1985)], the State is not the 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 the State's part, 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 (3d Dept. 1995); Wilson v State of New York, 36 AD2d 559 (3d Dept. 1971)]; or (3) the State had notice and the opportunity to intervene to protect the inmate victim and failed to act. Smith v State of New York, 2001 WL 695067 (3d Dept. 2001). The mere fact that a correction officer is not present at the precise time and place of an assault does not give rise to an inference of negligence absent a showing that officials had notice of a foreseeable dangerous situation. Colon v State of New York, 209 AD2d 842 (3d Dept. 1994); Padgett v State of New York, 163 AD2d 914 (4th Dept. 1990), lv denied, 76 NY2d 711 (1990).
In this case, the court is simply not persuaded that an assault even occurred. The Claimant's version of events is unsupported by any other testimony or real evidence showing that an assault occurred at the place asserted. Indeed, the only real evidence produced points to some sort of infliction of injury - perhaps by the Claimant himself - in the Claimant's cell.

Additionally, even if Claimant had established that an assault occurred, he offered no other factual premise by which the State could be found liable. He never saw his alleged assailant. He had no known enemies or if he had, he had not provided the facility with a so-called "enemies list" in order to establish notice.

Accordingly, the Claimant has failed to establish by a preponderance of the credible evidence first that an assault occurred, and next that the defendant was negligent in failing to properly supervise inmates. Claim number 97011 is dismissed in its entirety. Any motions made at trial, upon which the Court reserved decision, are now hereby denied. The Chief Clerk is directed to enter judgment accordingly.

September 4, 2001
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims