New York State Court of Claims

New York State Court of Claims

ROSALES v. THE STATE OF NEW YORK, #2002-029-226, Claim No. 98572


Prisoner; assault by fellow prisoner. Claimant attempted to establish that there was a foreseeable risk of attack. Court finds claimant failed to establish burden of proof. No liability, claim 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:
Andrew F. Plasse, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: John M. Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 22, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Luis Rosales, claimant herein, alleges in this claim that employees of the Department of Correctional Services (hereinafter DOCS) negligently failed to protect him from an assault by a fellow inmate in the Special Housing Unit (hereinafter SHU) Recreation Yard at Downstate Correctional Facility (hereinafter Downstate) on March 27, 1997. The trial of this matter was bifurcated and this decision deals solely with the issue of liability.

Claimant testified that on March 27, 1997 he was in residence in the E Section of the SHU at Downstate. Claimant testified that on that date he was in the recreational yard with other inmates and one correction officer (C.O.). Claimant further testified that the yard was "very tense" that day and that he remained "near the fence" trying to avoid the noise and the tension present in the yard. Claimant testified that, as a result of his fear, he requested that the C.O. present allow him to return to his cell. Claimant was not allowed to return to his cell, rather he was told to stand by the fence, which he did.

Finally, claimant testified that while he was standing by the fence with his back to the recreation yard he felt a burning sensation and then realized that he had been cut. He testified that when he turned to face the yard, other inmates were beating another Hispanic in a different area of the yard. Claimant was subsequently taken to the infirmary for treatment where he allegedly spoke to another C.O., whom he cannot identify.

The parties stipulated that an assault occurred upon claimant by another inmate on March 27, 1997. Therefore, this Court finds that such an assault did in fact occur. However, the mere fact that an assault occurs in a prison does not give rise to the inference of negligence on the part of the State (
Sebastiano v State of New York, 112 AD2d 562). It is well settled that 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; Sebastiano v State of New York, supra), the State is not an insurer of the safety of inmates (Sebastiano v State of New York, supra).
On cross-examination, claimant stated that he had not felt personally endangered at any time prior to March 27, 1997 and that, on that date, he had no knowledge of any particular enemies within the correctional system. Claimant further acknowledged that he had never requested protective custody nor had he ever indicated to DOCS that he considered himself in any specific danger. At the time of the assault, claimant was in a SHU yard. In fact, claimant was in SHU as a result of his assault upon another inmate with a "shank". Thus, claimant can hardly be said to have been unaware of the generalized potential dangers in a SHU yard. Finally, claimant testified that he did not file a grievance or complaint against the C.O. from whom he allegedly requested permission to return to his cell early.

Claimant called C.O. James A. Salazar as a witness. C.O. Salazar, a 12-year veteran of DOCS, was at the facility on March 27, 1997. He independently recalled the Rosales/Bailey incident which he testified took place in the 1-E SHU yard, the disciplinary SHU yard.

C.O. Salazar testified as to the procedures for taking an inmate from a SHU cell to the yard. The procedures involve a pat-down frisk and a wand scan. C.O. Salazar testified that he and another C.O. performed the pat-down frisk and the wand scan procedures on both the claimant and his alleged assailant, inmate Bailey.

At this point, C.O. Salazar's testimony diverges significantly from that of the claimant. His estimate of the size of the SHU yard is radically different[1]
from that testified to by claimant and he remembers three inmates being in the yard at the time of the incident rather than "many others" as claimant testified. C.O. Salazar also denies ever being asked by claimant to allow him to return to his cell early and denies that the inmates in the cell block adjacent to the 1-E SHU yard were yelling and causing noise and tension in the yard.
In summary, C.O. Salazar directly contradicts the claimant as to the level of tension in the yard, the alleged request by claimant to return to his cell early and the number of inmates that the yard contained at the time of the assault.

The final witness was Lieutenant (Lt.) Oliver, who has been employed by DOCS for 30 years and has been a Lieutenant since 1989. During his testimony, the claimant and defendant stipulated that the assailant, Bailey, was in possession of a "sharp" object. However, no stipulation was reached, nor proof offered, that the sharp object was metal. Obviously, this is a material fact since a metal instrument would presumably be discerned in the wand scan while a sharp object of another material might not.

Lt. Oliver testified that other incidents had occurred in the 1-E SHU yard prior to March 27, 1997 but he could not give any accurate estimate of the number of such incidents or the timing of such incidents. Lt. Oliver confirmed the policies and procedures for taking an SHU inmate from his cell to the yard, confirmed the six-person limitation of the 1-E SHU yard and the fact that an inmate is not required to go to recreation (although presumably this one hour per day out of the cell would be desirable to an inmate). On redirect examination, Lt. Oliver testified that the early removal of an inmate from the recreation yard would be at the discretion of the C.O. on duty in the yard.

At this point, claimant rested and the State moved to dismiss for failure to prove a prima facie case. The Court reserved decision on this motion.

The State then incorporated the prior testimony of C.O. Salazar and Lt. Oliver, derived on cross-exam, as its case in chief and also rested. At that point, the State renewed its motion to dismiss, which claimant opposed citing
Blake v State of New York (Claim No. 85065, filed December 19, 1997, Patti, J., affd 259 AD2d 878).
In order to establish liability against the State, an inmate claimant in these circumstances 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; Wilson v State of New York, 36 AD2d 559); or (3) the State had ample notice and the latitude to mediate and failed to act (see, Smith v State of New York, 284 AD2d 741; Huertas v State of New York, 84 AD2d 650).
In the instant matter, claimant himself testified that he was not a known risk, that he never felt himself in danger and that he had no known enemies. Therefore this case fails under the
Sebastiano (supra) line of cases.
Further, testimony at trial clearly established that the attack upon claimant by inmate Bailey took place and was terminated within a matter of seconds. Thus, the State did not have notice that such an attack would occur, nor did it have the opportunity to intervene to protect the claimant. As a result, there can be no liability to the State under the line of cases deriving from
Smith v State of New York (supra) and Huertas v State of New York (supra).
In the case at bar, claimant relies heavily upon the second theory of liability, espoused in
Littlejohn v State of New York (supra) and Wilson v State of New York (supra) that the State had notice that the assailant, Bailey, was dangerous and refused to take proper precautions. Claimant relied heavily upon the matter of Blake v State of New York (supra) in which Judge Patti of this Court held the State liable on the theory that the assailant in that matter should have been identified as a "dangerous inmate".
In support of his claim, claimant submits disciplinary records of the assailant as Exhibit 7.[2]
In Blake (supra), Judge Patti was confronted with a situation where an inmate who committed the assault upon claimant therein had been involved in another altercation in the SHU recreation yard approximately two months before the subject incident. The Hearing Officer at the time noted that the assailant also had "a history of assaultive behavior which cannot be ignored" (Blake v State of New York, supra at p 7).
In the case at bar, Exhibit 7 demonstrates that inmate Bailey, while not a model citizen, did not have the history of assaultive behavior which would bring this case within the ambit of Judge Patti's decision in
Blake (supra).
In this matter, Bailey's history of one prior disciplinary proceeding for an assault is distinguishable from the
Blake (supra) assailant's unspecified "history of assaultive behavior". Further, Bailey's prior assault was upon a C.O., not another inmate, and involved the throwing of human waste material, not a knife or other sharp object. While the Court in no way intends to minimize an assault by an inmate upon a C.O., nor to minimize the type of assault described herein, the fact remains that one such incident does not establish sufficient violent history so as to bring inmate Bailey into that category of known, dangerous inmates which would require the State to take extra steps to protect the claimant against him in the SHU yard. Thus, I find that Blake (supra) is distinguishable from the case at bar and claimant's reliance upon that matter is insufficient. As a result, the Court finds claimant has failed to establish liability under the Littlejohn (supra) rationale discussed.
In regard to the divergence of testimony between the claimant and C.O. Salazar, this Court credits C.O. Salazar's testimony as to the number of inmates in the yard (three) and the absence of any feeling of "tension" and that there was no request by claimant for early return to his cell. Therefore, the Court finds that there was no hostile environment or other indication prior to the assault that the subject assault would occur.

In summary, this Court finds no basis for imposing liability upon the State as a result of the assault which, unfortunately, did occur and in which the claimant was seriously injured. The claim is therefore dismissed upon the merits. All motions made at trial, upon which the Court reserved decision, are now denied as moot. The Chief Clerk of the Court is directed to enter judgment accordingly.

October 22, 2002
White Plains, New York

Judge of the Court of Claims

[1] Claimant's testimony was that the yard was three times the length of the courtroom while C.O. Salazar estimated 1/3 the size of the courtroom.
[2] These disciplinary records were made available to the claimant after in camera inspection by the Court during the discovery process.