New York State Court of Claims

New York State Court of Claims

CLARK v. THE STATE OF NEW YORK, #2002-030-013, Claim No. 102858


Pro se inmate's Claim that Defendant's agents negligently failed to protect him from an assault

by fellow inmates dismissed. Claimant failed to establish his claim by a preponderance of the

credible evidence. No foreseeable risk, no proof of prior assaults.

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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 1, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Sam Clark, the Claimant herein, alleges in Claim Number 102858 that the Defendant's agents failed to protect him from an unprovoked assault by a fellow inmate while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on January 8, 2002.

Claimant testified that "..on May 10, 2000, I was in the gym area, went to the phone area...inmate Colley called my name...I didn't hear thing I knew he must have snuck a punch in my mouth...then he split my eye."[1]
Claimant went back to his cell, because he was hesitant to report anything since he'd "never had any incidents before", and "got some ice from some friends." His lip was "split bad, and...[his] eye was swelling up", so he went to an officer and said he'd had an accident playing basketball. Later he admitted that he had been assaulted. Claimant thought that the inmate was using force in order to extort money or "his ring" from him. He said the State was negligent because if there had been an officer posted at the gym, none of this would have happened.
In the Claim itself, Claimant sets forth different facts. He indicates he wrote to correction personnel on June 1, 2000 asking that he not be placed in general population from protective custody, "for fear that I may get into a situation with the friends of the inmate I had the problem with." [Claim No. 102858, Exhibit "A"]. He writes that he was placed back in general population June 29, 2000 despite his request, and that he was "approached by various inmates belonging to a so- call gang and told he would be seriously hurt if he remained in population. Later...claimant was attacked from behind by various inmates and claimant ran from this attempted assault on his person, thereafter the claimant was placed in Protective Custody for a second time." [
Ibid, Par. 9].
No other witnesses testified.

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, 284 AD2d 741, 728 NYS2d 530 (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).
Additionally, the court must consider whether there was information which would trigger any heightened awareness of a risk to this inmate - any "suspicious" behavior such as an individual leaving an assigned work post, or stuffing magazines in his shirt to avoid injury - to alert correction personnel of a specific danger brewing.
See, e.g., Huertas v State of New York, 84 AD2d 650 (3d Dept. 1981).
Even an inmate's request for protective custody may not necessarily trigger a specific duty to protect, if the inmate does "...not alert the interviewing...[correction officers] of his past problems, a specific hazard or a particular urgency to his situation."
Roudette v State of New York, 224 AD2d 808, 809 (3d Dept. 1996).
Additionally, the fact that officers may not have been present at the precise time and place of the assault, does not give rise to liability.
Colon v State of New York, supra; Padgett v State of New York, supra. "...[U]nremitting supervision..." is not required. Colon v State of New York, supra, at 844.
If the May 10, 2000 assault occurred as he described it, it was a truly unfortunate event, but not a foreseeable one as described. Taking into consideration both his trial testimony concerning the alleged May, 2000 assault, and his allegations in the claim concerning an alleged attempted assault some time after June 29, 2000, while there is some suggestion that he had alerted authorities concerning enemies, the time frame is not consistent with having put the State on notice so as to provide reasonable protection against a foreseeable risk of harm. There are internal inconsistencies to his story that make it impossible to credit it, including whether assaults on either date even occurred. No documents were submitted in evidence, for example, contemporaneously recording the fact of the alleged assaults, such as health records, or unusual incident reports. Based upon this record, therefore, Claimant has not established that the State failed to provide him with reasonable protection against a foreseeable risk of harm. Accordingly, Claimant has failed to establish his claim, to a preponderance of the credible evidence, and Claim Number 102858 is hereby dismissed in its entirety.

Let Judgment be entered accordingly.

March 1, 2002
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.