New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2002-030-021, Claim No. 101129


Synopsis


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


assault by fellow inmates dismissed. Claimant failed to establish his claim by a


preponderance of the credible evidence

Case Information

UID:
2002-030-021
Claimant(s):
GEORGE SIMMONS Caption amended to reflect only proper defendant.
Claimant short name:
SIMMONS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101129
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
GEORGE SIMMONS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBy: ELYSE ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
March 19, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
George Simmons, the Claimant herein, alleges in Claim Number 101129 that Defendant's agents failed to protect him from 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 18, 2002.

Claimant testified that he had been physically assaulted on three separate occasions while in the custody of the New York State Department of Correctional Services (hereafter DOCS). First, in July, 1992 he was "cut on the right side of his face at Rikers Island."[1]
Then in March or April, 1997 he was cut again, at Elmira Correctional Facility, suffering injuries to the left side of his face. Finally, on August 22, 1999, while part of the general population at Sing Sing, "coming out to the yard down the tunnel," he felt a stab in the back. He said he turned around to "catch... [the knife] when they caught...[him] on the arm...[He] got a hold of it, took it away, and got charged with holding a knife."
During the investigation of the assault a correction officer indicated to him that "they believed the inmate that stabbed you was your co-defendant". Claimant testified that he said that might be "possible."

No other witnesses testified.

In his Claim, Claimant provided a few more factual details about the incidents, indicating that after the Riker's Island assault he received "80 stitches", and that both the "...City as well as the State fully understood that this Claimant had a contract on his life, due [to] the nature of his criminal case, and that his own immediate family (parties therein) wanted to cause bodily harm to this Claimant." [Claim No. 101129, paragraph 7]. At Elmira, he wrote, he "was cut again...while on 5 gallery serving food was cut from behind on his left side..." receiving 68 stitches. [
Id., Paragraphs 9 and 10]. He does not appear to have identified his assailants in either case.
Finally, at Sing Sing, he suffered "a [puncture] wound to his back on the right side...[and] also received a [puncture] wound to his right forearm and left hand." [
Id., Paragraph 13]. He received medical attention in the emergency room at the facility, and was "...thereafter transferred to the H.B.C. Housing Unit" for protective custody. [Id., Paragraphs 15 and 16].
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 assault occurred, it was dealt with in a comprehensive and appropriate fashion, and immediate medical care was given.
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. There is no indication that if he knew his prior assailants, he ever advised authorities of their identities. By his own testimony, he did not identify his assailant in the Sing Sing assault as his co-defendant until it was suggested to him. There is no indication that he ever advised authorities of a particular risk with respect to this individual. When the August, 1999 assault occurred, it appears to have been dealt with in a comprehensive and appropriate fashion, and immediate medical care was given. Unfortunate as this attack was - and the Court credits Claimant's description of the assault - it was not foreseeable under applicable legal standards and therefore the State cannot be held liable. Accordingly, Claimant has failed to establish his claim of failure to protect by a preponderance of the credible evidence, and Claim Number 101129 is dismissed in its entirety.

Let Judgment be entered accordingly.

March 19, 2002
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




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