New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2002-015-572, Claim No. 96479


Claimant failed to demonstrate at trial that State had actual or constructive notice of an impending attack upon him by a fellow inmate and, accordingly, the claim is dismissed.

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:
Law Office of Tom StickelBy: Neil Gronowetter, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 6, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on May 16, 1997 when claimant was assaulted by a fellow inmate at Altona Correctional Facility, Altona, New York. The claim alleges that the State was negligent in failing to provide supervision adequate to prevent the attack. The trial was bifurcated by order dated September 11, 2002 and this decision addresses only the issue of liability.

The evidence at trial established that on May 16, 1997 at approximately 10:50 a.m. inmate Luis Casillo assaulted claimant in the mess hall at Altona Correctional Facility with a weapon constructed of two razor blades imbedded in plastic.
Claimant, Bobby Martinez, testified that while at lunch in the facility mess hall he was seated across the table from Luis Casillo. Casillo allegedly reached over the table and cut claimant on the left side of his face without saying a word or providing any warning. The unprovoked attack was witnessed by a correction officer who thereafter removed claimant to the infirmary where he received 8 - 10 stitches to repair the wound. The Court observed a scar measuring approximately 7 centimeters on the left side of claimant's face. Claimant admitted that at the time he was assaulted he did not know who his assailant was or precisely how the injury was inflicted. He acknowledged that correction officers provided him with information concerning the incident and that Casillo was subsequently "issued a ticket"[1]
as a result of the assault.
Claimant testified that the facility's razor policy requires that each inmate turn in his facility- issued safety razor for a new razor on a weekly basis. He stated that the facility also collects razors once each month and alleged that a ticket would be issued and the offending inmate segregated in the special housing unit (SHU) if he reported his State-issued razor as lost during a collection/distribution run.

On cross-examination claimant testified that he was somewhat familiar with his assailant, having slept several bunks down from Casillo in the dormitory. His trial testimony , however, was inconsistent with his earlier testimony at an examination before trial at which he stated that he slept right next to Casillo in the dorm. Claimant further testified at trial that he broke up an argument involving Casillo and another inmate on the night prior to the attack, but he denied any knowledge that Casillo was injured during what claimant described as a verbal altercation the previous evening. Following the May 16, 1997 attack claimant was placed in involuntary protective custody and professed no memory of having been offered voluntary protective custody.

Correction Officer Gary Canning was called as a witness by the claimant. C.O. Canning testified that on the day at issue claimant was brought to him by C.O. Crowley who informed Canning that he observed inmate Casillo swing at claimant in the mess hall. The witness stated that he observed a bloodstained piece of plastic in which two razor blades were embedded lying on the floor next to the table where inmate Casillo was seated. He testified that the razor blades used in the device did not appear to be of the same type as the disposable razors issued to inmates by DOCS and provided testimony concerning the facility's razor policy which was similar to that offered earlier by claimant. The witness indicated that the retention of more than one State-issued razor by an inmate would constitute possession of contraband.

C.O. Canning further testified on direct examination regarding the facility's frisking procedure stating that inmates at Altona Correctional Facility are subject to random frisks when entering the mess hall. He also asserted that there are six correction officers assigned to the mess hall during lunch, some of whom roam the area and others who occupy fixed positions.

The witness also testified that a correction officer would not conduct a mouth search of any inmate unless there was an articulable reason for doing so. He expressed general familiarity with inmate on inmate assaults involving razor blades and conceded that sometimes a razor blade is concealed within an inmate's mouth prior to its use as a weapon.

On cross-examination C.O. Canning again described the facility's razor distribution/collection procedures. He further testified that all incoming packages are searched for contraband.

On his redirect examination the witness testified that mouth searches are performed as part of a strip search but would occur at other times only if the correction officer provided his or her superior with an articulable reason for doing so such as an inmate's inability to speak, slurred speech or an apparent bulge in the inmate's mouth. Such a search might also be performed if an inmate refrained from eating during mealtime.

Claimant rested at the conclusion of C.O. Canning's redirect examination and the State moved to dismiss the claim on the grounds that claimant had not proven a prima facie case. The Court reserved decision on the motion and it is hereby denied in favor of a determination on the merits.

While the State must afford 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 simple fact that an assault occurs does not give rise to an inference of negligence (Sebastiano v State of New York, supra).
To establish liability against the State in the context of an inmate-on-inmate assault it has long been held that the claimant must allege and prove: (1) the victim was a known risk and the State failed to provide him or her 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 both notice and the opportunity to intervene but failed to act (see, Smith v State of New York, 284 AD2d 741; Huertas v State of New York, 84 AD2d 650; see also, LaCourt v State of New York, 2002 WL 31415413 [N.Y. Ct. Cl. July 25, 2002]). The aforementioned grounds were recently reexamined by the Court of Appeals in Sanchez v State of New York, 2002 WL 31619048 (November 21, 2002) where the Court took issue with the Appellate Division, Third Department's "requirement of specific knowledge for foreseeability." The Court of Appeals clarified that, in addition to actual notice, constructive notice derived from the State's "knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" may also act to render an inmate assault foreseeable.
Sanchez the Court of Appeals expanded the test of foreseeability in inmate assault cases to clearly encompass circumstances which should reasonably be perceived as well as those actually known to the State. Unlike the claimant in Sanchez, however, the instant claimant has not demonstrated any facts at trial which could support a finding that the State had either actual or constructive notice of an impending attack upon the claimant by inmate Casillo. The trial evidence demonstrates that no words were spoken, no knowing glances exchanged, no fists were raised to arouse even the suspicion of an impending assault or to prompt preemptive State action.
Despite claimant's testimony that he intervened in a verbal dispute between his assailant and another inmate the night prior to the attack he did not believe Casillo had been injured at that time nor did claimant seek protective custody or express any fear or apprehension of an attack to any DOCS employee. In fact, by his own admission claimant was surprised by the attack and became aware that he was injured only through the subsequent actions of the correction officer who removed him from the scene to the infirmary. Nor does the Court find, as urged by claimant, that a cut on Casillo's lip should have prompted a mouth search prior to allowing him to enter the mess hall. As claimant's own Exhibit 3 reveals, Casillo had sought treatment for a lip injury on the night prior to the incident which Casillo stated resulted from a fall in his cube. Since his apparent injury had been explained the Court refuses to find constructive notice of an impending attack based on such proof. Finally, there was no proof at trial establishing that the staffing levels or manner of staff utilization in the mess hall was inadequate or non-compliant with Departmental or penalogical standards.

It has long been held that an unprovoked, unexplained attack by a fellow inmate with whom claimant had little or no contact does not support a finding of negligence even where the attack involved the use of a handmade weapon (
see, Stanley v State of New York, 239 AD2d 700; Roudette v State of New York, 224 AD2d 808; Leibach v State of New York, 215 AD2d 978; Padgett v State of New York, 163 AD2d 914). Nor does the mere presence of contraband justify a determination of liability (see, Smith v State of New York, Ct Cl, October 27, 1998 [Claim No. 94804] Bell, J., unreported).
Based upon the evidence presented at trial the May 16, 1997 attack on claimant by inmate Casillo was not reasonably foreseeable and the State is therefore not liable for claimant's injury. The claim is dismissed.


January 6, 2003
Saratoga Springs, New York

Judge of the Court of Claims

[1]All quotations are taken from the Court's trial notes.