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
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
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
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
, 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
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
, Sebastiano v State of New York
); (2) the State
had notice that the assailant was dangerous and refused to take the proper
, 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
v State of New York
, 284 AD2d 741; Huertas v State of New York
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
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.
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
, 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
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 (
, Stanley v State of New York
, 239 AD2d 700; Roudette v
State of New York
, 224 AD2d 808; Leibach v State of New York
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.