Jose Oslan, the Claimant herein, alleges in Claim Number 103201 that
Defendant's agents negligently failed to protect him from an assault by a fellow
inmate while he was incarcerated at Sing Sing Correctional Facility (hereafter
Sing Sing). Trial of the matter was held at Sing Sing on October 18, 2002.
Claimant testified that on August 26, 2000, he was lying on his bed in his
"cube at Tappan, listening to the radio"
, when he was approached by Inmate Rodriguez saying he'd like to talk to him.
Correction Officer McMillan was nearby, standing around at his post in "the
bubble." Rodriguez accused Claimant of "planning on robbing him with somebody
else," but Claimant explained to Rodriguez that he "didn't even know [him]", and
returned to his cube. About "half an hour later" the Claimant was approached by
another inmate who told claimant that Inmate Rodriguez wanted to see him in the
dayroom. Claimant was in his shower slippers, but acceded to the request and
went to the dayroom to talk to Rodriguez. Correction Officer McMillan was
"there the whole time." When he got to the dayroom, Rodriguez was watching
television in a corner, and said "I know you [sic
] playing around with
me", and before Claimant could answer, Rodriguez pulled out a razor and cut the
claimant on the left side of his face near his sideburns. Claimant ran back to
his cube, put his sneakers on, and went to look for Correction Officer McMillan
but couldn't find him. In the meantime, Rodriguez left the dayroom, coming to
Claimant's cube. Claimant grabbed a cane from another inmate's cube to "defend
himself", and Rodriguez cut him again on the face at Claimant's cube. When
Claimant attempted to leave the cube, he was stopped by Correction Officer
McMillan, who "allowed Rodriguez to run away and dump the razor."
That evening another correction officer asked "Who did this"? and Claimant
responded that "Correction Officer McMillan should know, he was right there."
Claimant was shown photographs, and identified Rodriguez as his assailant.
Photographs were taken of Claimant showing a significant cut extending across
the left side of his face from his sideburns, down his cheekbone, to his nose.
[Claimant's Exhibit "1"]. Claimant was treated at an outside hospital,
ultimately receiving "24 stitches."
Claimant received a ticket for "violent conduct", written up by Correction
Officer McMillan, that appears to have resulted in a finding of guilty, with the
disposition that Claimant be "counsel[ed] and release[d]" because of an
"excellent disc[iplinary] record."
Claimant's Exhibit "2"].
On cross-examination Claimant conceded that at the time of the assault
Correction Officer McMillan was standing between 25 to 30 feet away, and that
the correction officer "could have seen" the incident from where he was
standing, but was conversing with others.
No other witnesses testified, and no other evidence was submitted.
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 [See
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 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
76 NY2d 711 (1990)."Unremitting 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.
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
Based upon this record, Claimant has not established that the State failed to
provide him with reasonable protection against a foreseeable risk of harm. From
Claimant's description of the actual assault - as brutal as it may have been -
it was not foreseeable, and defendant's agents acted promptly to stop the
situation once they were aware that assaultive conduct was occurring.
Accordingly, Claimant has failed to establish his claim by a preponderance of
the credible evidence, and Claim Number 103201 is dismissed in its
Let Judgment be entered accordingly.