New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2002-010-060, Claim No. 96598


Inmate on inmate assault. No notice to defendant.

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):

Terry Jane Ruderman
Claimant's attorney:
GREENBLATT & WINSLOWBy: Richard Greenblatt, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 13, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained on July 29, 1996 during his incarceration at Sing Sing Correctional Facility ("Sing Sing"), when he was slashed in the face by another inmate. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that in July 1996, he was living in housing block B ("HBB") and worked as the clerk of the Inmate Grievance Resolution Committee ("IGR"). This committee attempted to resolve inmate problems. As the IGR's clerk, claimant had office duties and often had passes which permitted him to move throughout the facility more freely than other inmates. In 1996, the IGR was supervised by Richard Colon, a civilian employee.
In July 1996, five or six inmates approached
claimant in the HBB yard and solicited his participation in transporting drugs throughout Sing Sing due to claimant's ability to move within the facility. Claimant refused. Several days later, the same inmates approached claimant and threatened him with razors. Claimant testified that he did not know their names. Within the next day or two, claimant reported the incident to Colon and requested a transfer from HBB. After expressing his concerns, claimant was transferred to housing block A ("HBA"). Approximately five days after his move, while claimant was in the mess hall, he was slashed by an inmate housed in HBB, who had previously threatened claimant.
Claimant never asked to speak with any security person or the Deputy Superintendent in charge of security, Charles Greiner. Claimant was aware that he could have requested protective custody, yet instead of requesting it, he conferred with Colon. In addition to fears about his safety, claimant was concerned that his good disciplinary record might be affected and that he might be transferred from Sing Sing, which was close to his family.
Richard J. Colon testified that he has been employed by the New York State Department of Correctional Services since 1990 and, in July 1996, was the Inmate Grievance Supervisor at Sing Sing. He was a civilian employee and not a correction officer. Colon recalled that
claimant stated that he had been threatened. Claimant never identified the individuals involved. Colon informed Sing Sing Deputy Superintendent in charge of security, Charles Greiner, of the threats.
Superintendent Charles Greiner[1]
testified that he had a meeting with Colon concerning the threats to claimant. Since Colon was known to claimant and trusted by him, Greiner believed that Colon was the best person to investigate the matter so Greiner directed Colon to obtain more information from claimant. Colon's attempt was not fruitful; claimant did not reveal anything further. Greiner did not direct anyone else to investigate the matter. When it was apparent that no additional information was or would be obtained from claimant, Greiner decided to move claimant to HBA. With the minimal information he had, Greiner did not consider placing claimant in protective custody. Had claimant furnished descriptions of the individuals, Greiner would have attempted to obtain their identity and would have placed claimant in protective custody. Due to the scant information provided by claimant, Greiner decided to move claimant to HBA.
HBB and HBA had separate mess halls and the inmates were restricted to the mess hall in their housing block. The mess halls, however, shared a common kitchen and the inmates assigned to work in the kitchen could access both mess halls.
In July 1996, there were 2,300 inmates housed at Sing Sing. Greiner explained that claimant was a maximum security inmate and therefore could only be housed in HBA or HBB because the other housing blocks would not have been appropriate for claimant. Accordingly, Greiner transferred claimant to HBA, with the intention of separating him from the 600 inmates in HBB. There was no reason for defendant to believe that any of the inmate kitchen workers posed a threat to claimant.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from 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). Foreseeable risk of harm includes the risk of attack by other prisoners (see, Littlejohn v State of New York, 218 AD2d 833). That duty, however, does not render the State an insurer of inmate safety (Sanchez v State of New York, ___ NY2d ___, Nov. 21, 2002). The State's duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see, Padgett v State of New York, 163 AD2d 914). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see, Colon v State of New York, 209 AD2d 842, 844). "[T]he State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. *** The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, supra).
To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that
the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (Id.). Claimant has failed to establish any basis for finding defendant liable for the alleged attack.
Claimant invokes Sebastiano v State of New York, 112 AD2d 562, for the proposition that the State owed claimant a special duty. In Sebastiano, claimant was confined to keeplock on the eve of his transfer to another facility. The cells on the block were open to allow for food tray delivery and pickup. This task was completed 20 to 30 minutes before an unauthorized inmate entered the open cell area and doused the claimant with liquid and set him on fire while he remained in his cell. The Third Department reversed the trial court's dismissal and ordered a retrial on the ground that there was potentially available evidence which could more fully develop the underlying facts and could support a theory of assumption of a special duty to protect claimant from attack. The Third Department noted, "[h]aving segregated claimant from potential attackers and presumably, them from him, the facility had, in actuality, left claimant in a more vulnerable position than that which he would have been in had his freedom of movement not been restricted" (Id. at 564). The Court further noted that the trial court did not address the delay in locking the gates after the food process had been completed nor did the trial court resolve whether the customary procedure was violated in keeping all gates open until the feeding process on all three floors of the cell block had been completed.
This case is distinguishable from
Sebastiano for a number of reasons. Significantly, there was no issue in this case as to whether defendant departed from its customary procedures and claimant was not segregated to a more confined status in keeplock. Rather, based upon the nonspecific information supplied by claimant, defendant transferred claimant to another housing block in accordance with its customary procedures. Notably, claimant knew protective custody was available to him, but he did not request it. If claimant did not think his transfer to another housing block was sufficient to secure his safety, then it was incumbent upon him to supply defendant with more specific information regarding the identity of the inmates who had threatened him.
While HBA and HBB shared a common kitchen and the inmate workers could access both mess halls, there was no proof that
claimant's assailant was a kitchen worker, nor that the assailant had indeed passed through the kitchen, rather than some other unauthorized passage in the facility. Even assuming that the assailant had passed through the kitchen, on the facts presented, there was no proof that such unauthorized conduct was foreseeable by defendant or that defendant was negligent in failing to guard against such possibility. Rather, given the information provided by claimant, defendant assessed the available housing alternatives and, within two days after claimant had reported the threats and had requested a housing transfer, defendant transferred claimant to the best available housing block.
In sum, the Court finds that the actions taken by
defendant to secure claimant's safety were reasonable given the information supplied to defendant by claimant and therefore defendant is entitled to deference in managing the safety and order of its facility (see, Arteaga v State of New York, 72 NY2d 212, 216).
defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

January 13, 2003
White Plains, New York

Judge of the Court of Claims

[1] Greiner is now the Superintendent of Greenhaven Correctional Facility.