New York State Court of Claims

New York State Court of Claims

DeROSSE v. THE STATE OF NEW YORK, #2002-030-022, Claim No. 101101


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

GERALD DeROSSE, JR. Caption has been amended to reflect the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been amended to reflect the only proper Defendant.
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 19, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 some problems."[1]
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, 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). 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, supra; Padgett v State of New York, supra. "...[U]nremitting supervision..." is not required. Colon v State of New York, supra, 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.

March 19, 2002
White Plains, New York

Judge of the Court of Claims

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