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."
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. [
., 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
., 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
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
). 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
, Sebastiano v State of New York
(2) the State had notice that the assailant was dangerous and refused to take
the proper precautions [See
, Littlejohn v State of New
, 218 AD2d 833 (3d Dept. 1995); Wilson v State of New York
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
, 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
, 209 AD2d 842 (3d Dept. 1994); Padgett v State of New York
AD2d 914 (4th Dept. 1990), lv denied,
76 NY2d 711
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.
, 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
; Padgett v State of New
. "...[U]nremitting supervision..." is not required.
Colon v State of New York
, 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.