New York State Court of Claims

New York State Court of Claims

McCLOUD v. THE STATE OF NEW YORK, #2002-030-017, Claim No. 101876


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

assault by fellow inmates dismissed for failure to establish a prima facie case. No foreseeable

risk, no assault

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 11, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Armond McCloud, the Claimant herein, alleges in Claim Number 101876 that defendant's agents negligently failed to protect him from an assault by fellow inmates while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on January 15, 2002.

Claimant testified that "on January 6, 2000 I reported that a pair of Timberland boots were stolen out of my cell, I notified an Officer Harris to this fact...of who might be involved."[1] Thereafter, on January 14th "in the chapel area, while waiting to return to my cell, I was savagely attacked by inmate K. Sherrod, all over a possible cell robbery, and me being labeled a ‘snitch' because I did cooperate with authorities in informing them who indeed robbed my cell." He said he "received 24 stitches in... [his] face at the outside hospital."

The "unusual incident report" documenting the assault confirms the fact of the assault and Claimant's identification of his assailant, as well as his being escorted first to the facility emergency room and then to St. Agnes Hospital. [Claimant's Exhibit "2"].

Thereafter, he was placed in protective custody, where he was "assured...[he] would be safe from this attacker." He identified his attacker as K. Sherrod, and confirmed it in his application for protective custody. [Claimant's Exhibit "1"]

"Approximately a year later[2], while still in ‘pc' waiting to be transferred to another facility apparently this one that attacked me came right back on the gallery as a court holdover - or for whatever reason - and immediately upon seeing me he spat on me and pretty much started verbally assaulting me....They placed him right back on my gallery for me to be further assaulted."

On cross-examination he conceded that the inmate was locked in his cell, and that "...all I had to do was stay away from him." He denied being made aware that inmate Sherrod was back at Sing Sing for a funeral visit. Other than being spat at, Claimant was not physically assaulted in any way. His one hour recreation period otherwise passed without incident.

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.

When the January 14, 2000 assault occurred, it appears to have been dealt with in a comprehensive and appropriate fashion, and medical care was given. The State had no notice of dangerous inmates, no notice of the likelihood that Claimant would be a victim, and appears to have acted promptly to protect him once the assault began. Thereafter, Claimant was placed in protective custody, where he remained without incident until the second incident alleged in March, 2001. While placement of his enemy in the same gallery may have been somewhat careless, it appears that inmate Sherrod remained locked in his cell and, therefore, was never put in a position to physically attack Claimant. Moreover, beyond verbal threats and attempts to spit at Claimant, nothing happened.

Based upon this record, Claimant has failed to establish that the State failed to provide him with reasonable protection against a foreseeable risk of harm. Claimant has failed to establish a prima facie case. Claim Number 101876 is dismissed in its entirety.

Let Judgment be entered accordingly.

March 11, 2002
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audio tapes unless otherwise indicated.
[2] Claimant later indicated that it was on March 4, 2001.