Gerald DeRosse, the Claimant herein, alleges Defendant's agents negligently
failed to provide meaningful protection 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 18, 2002.
Claimant testified that his "cousin Eddie was doing dope, ran up a bill and had
Eddie was moved from B-Block to A-Block where he was "ripped in the gym" and,
sent to protective custody. At the same time Eddie had been moved, Claimant was
moved from A-Block to B-Block. After the assault on Eddie, Claimant was
approached by correction personnel and asked whether he wanted to be placed in
protective custody because of his cousin's problems. Claimant refused
protective custody at that time, saying it hadn't anything to do with him. The
next day, he "...put down for chow in the yard, and they...[told him] you're
locked up for three days in...[your] cell." Thereafter, he was "put in the box
[administrative segregation] for 5 months,...[correction personnel] saying they
think I know who did it to my cousin and they think my life is in danger."
After the five months in administrative segregation, Claimant was placed back in
general population, now under protest. He testified that now the "dudes thought
I must've told something, that's why in ‘pc'..."
He said he was talking to "a kid" in the A-Block yard who was demanding payment
of Claimant's cousin's debts when another hit him from behind with a rock. They
held him while he was hit with a rock. Rather than report the injury, Claimant
went to his cell "for two days." Then he "went to sick call at the gym, told
them...[he] was playing basketball - they didn't believe it." Claimant was sent
to St. Agnes Hospital where he received surgery, and "two partial plates in the
face on the bottom right side of the jaw."
He had never been attacked by these individuals, although he was familiar with
them because of his cousin's drug problems and debts. Claimant was adamant that
by placing him in administrative segregation for five months everyone was bound
to think he had revealed something - had he been in his assailants' shoes he
would have. Thus, he maintained, defendant had placed his life in danger. It
does not appear from this record that the Claimant gave the State any specific
names of enemies prior to the alleged assault.
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
). 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). Claimant
has testified that these individuals had never constituted a particular threat
to him, and he had never alerted authorities as to which - if any - inmates,
were a threat to him.
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 personnel realized
Claimant had been injured - since he had concealed it from them - 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, to
a preponderance of the credible evidence. Accordingly, Claim Number 101101 is
dismissed in its entirety.
Let Judgment be entered accordingly.