New York State Court of Claims

New York State Court of Claims

NARVAEZ v. THE STATE OF NEW YORK, #2002-031-507, Claim No. 99811


Claimant failed to demonstrate State was negligent in preventing his assault by another inmate. Claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Gabriel Narvaez filed claim number 99811 on February 16, 1999, alleging that the State of New York was negligent in failing to protect him from an assault by another inmate. I conducted a trial of this matter on May 8, 2002, at Wende Correctional Facility ("Wende").

Claimant testified that at 5:00 p.m. on January 29, 1999, he left his cell, where he was confined to keeplock, to go to chow in the A Mess Hall at Wende. Once in the mess hall, he went through the line, got his food and walked away from the food line to sit down. As he walked by Inmate Boatwright, Mr. Boatwright stood up and threw a piece of metal that was in his hand and swung at Claimant. Claimant dropped his tray and tried to push Mr. Boatwright away when he saw "blood coming out." He further testified that Correction Officers Mendez and Bunch grabbed Claimant and took him out of the mess hall. Claimant was cut behind his ear, on the side of his face, and on his right leg. Claimant was sent to an outside hospital and received stitches on his head and on his right leg. He returned to the facility after being treated at the hospital and when he was "locked in" at D Block, he was served with a misbehavior report.

Claimant further testified that the Inmate Misbehavior Report was dismissed (Defendant stipulated to this fact). Claimant alleges that the Inmate Misbehavior Report was dismissed because Defendant knew it negligently let Mr. Boatwright through the metal detector and into the mess hall with a razor blade.

Claimant stated that he had requested protective custody during discussions with a lady counselor a few days prior to the incident. He indicated that his copy of this request for protective custody was lost with his other legal papers prior to this trial. When I asked Claimant how he knew he was going to have a problem and therefore needed protective custody, Claimant stated that he had prior fights with other inmates when he resided in both A Block and B Block. He alleges that these prior fights were all with members of a gang called the "Bloods." He further alleges that Inmate Boatwright was a member of the Bloods because Claimant saw Mr. Boatwright hanging around with other known members of the gang. Despite this, his request for protective custody was denied. I noted that Claimant failed to mention the request for protective custody in his claim, his bill of particulars, and at his Tier II hearing, thus Defendant had no notice that this could be an issue at trial, and objected to Claimant's testimony regarding his request for protective custody on this basis.

Further, Claimant alleges that Mr. Boatwright was also in keeplock, in the same company as Claimant, but that Defendant erroneously released Mr. Boatwright; thus Mr. Boatwright should not have been in A Mess Hall on the date of the incident. This was the Claimant's first altercation of any kind with Mr. Boatwright.

On cross-examination, Claimant testified that he was locked in D Block, but that Mr. Boatwright was not in that block on that day. Claimant was not aware that Mr. Boatwright, in particular, would attack him, but was generally afraid of the Bloods. At his Tier II hearing, Claimant testified that he did not know Mr. Boatwright before the incident and did not know why Mr. Boatwright attacked him in the mess hall that day. Claimant also told medical staff after the incident that he did not know what happened. Claimant admitted that he never identified the Bloods as a group that threatened his personal safety but that, prior to the incident, he tried to tell Defendant's agents in general terms that he was in danger, as part of his endeavor to get protective custody.

When I asked Claimant to explain why he failed to mention the gang and his fear of them at the Tier II hearing, he stated that it was his understanding that the appropriate place to discuss those concerns was during his application for protective custody. It may be that he did put Defendant's agents on notice during the application and review of his request for protective custody, however, I have no other evidence, other than Claimant's testimony, to confirm whether or not Defendant was aware of the problem. After the incident, Defendant moved Claimant to Attica Correctional Facility.

Claimant then called Officer Mendez to the stand. Officer Mendez was present in the A Block Mess Hall on January 29, 1999 and observed Claimant on the line getting his food, but did not observe Mr. Boatwright attack Claimant. Officer Mendez did observe that Claimant was bleeding after the attack but he did not observe a razor blade. Officer Mendez secured Mr. Boatwright while Officer Bunch held Claimant. On cross-examination, Officer Mendez stated he was an "escort officer" and one of his duties was taking inmates to meals. He knew Claimant prior to the incident but was never aware of any concern Claimant had for his safety.

The witness explained the many ways that an inmate can express concerns for his personal safety. For example, the inmate can tell any of the officers at the various security points on his way to meals. Officers would then relay a request for protective custody to their supervisor, but would not be involved in determining whether or not it was appropriate to grant such a request. Nor would the officers be privy to requests for protective custody made through other channels unless the request had been granted.

Claimant then called Officer Bunch. I questioned this witness concerning the layout of A Block Mess Hall and how the inmates proceed through the line. Claimant explored the witness's memory of the details of the incident, specifically noting that the witness observed Mr. Boatwright pick up his tray as Claimant passed, watched him strike Claimant with it, then saw Claimant drop his own tray and saw them exchange blows with their fists. Officer Bunch stated that he restrained Claimant once he saw another officer restrain Mr. Boatwright. He noticed the blood on Claimant's head once Claimant was restrained. On cross-examination, the witness stated he was unaware of any concerns that Claimant had for his personal safety and made it clear that Claimant had the opportunity to tell him or any of the other officers in the mess hall that he was worried about a possible assault. The witness further stated that if Claimant had a problem with the Bloods he could have declined to attend the evening meal that day.

The State then called Sergeant Zydell, who was in B Block on the date of the incident and who also was in charge of the investigation of the incident. The Sergeant interviewed Claimant as to why Mr. Boatwright had attacked him. The witness stated that Claimant could not tell him why Mr. Boatwright attacked him. Nor did Claimant indicate during this process, or prior to this incident, that Claimant feared for his personal safety. At no time had Claimant indicated to the witness that he desired protective custody.

Sergeant Zydell is now in charge of reviewing inmate requests for protective custody. Although he was not assigned those duties at the time of the incident, he was familiar with the process. I accepted his testimony concerning background and the process employed by Defendant for reviewing such requests, given Claimant's assertion that he had made such an application prior to the assault. It appears that any inmate may advise any officer that he is requesting protective custody. The officer would then advise a sergeant who would conduct an interview of the inmate. Paperwork would be initiated by the interviewing sergeant who records facts regarding the threat. The paperwork is sent to the Deputy Superintendent of Security for the facility. At the same time, a copy of the paperwork is sent to the Counselor's Office. The counselor conducts a second interview. During the process, the inmate is confined to his cell until the Deputy Superintendent of Security, the Counselor, and the Protective Custody Sergeant review the file. These three individuals then make a recommendation to either grant or deny the request. The recommendation is made to the facility Superintendent. The Superintendent reviews the recommendation and file and makes the final determination. If the application is denied, the information is kept in the Counselor's Office and a letter is sent to the inmate from the Superintendent with the decision. A copy of that letter is sent to the Deputy Superintendent of Security, the Counselor, and the Protective Custody Sergeant as well.

The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (
Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented the assault, but failed to do so (Huertas v State of New York, 84 AD2d 650).
The issue here is whether Claimant's generalized notice to Defendant that he thought he was in danger was enough to put Defendant on notice that this incident was foreseeable.
As this Court stated in Mercer v State, (Ct Cl, July 22, 1996, [Claim No. 90188], Corbett, J.) "[L]iability may be based either on defendant's failure to protect claimant from a known dangerous prisoner or to use adequate supervision to stop that which was foreseeable in an immediate or proximate sense, rather than in some generalized way" (See also Spadaro v State of New York, 38 Misc 2d 489, affd 28 AD2d 604).
Given that Claimant's application for protective custody was denied after the review process described above, in conjunction with the fact that Claimant was unable to particularize a threat from a specific inmate, I find that the assault by Mr. Boatwright was not only unprovoked, but unforeseeable. As further evidence of the unforeseeable nature of this assault, Claimant, at his Tier II hearing, testified that he could not explain why this individual attacked him, nor could he explain it to the medical personnel that assisted him after the attack. In addition, based on the evidence submitted, Mr. Boatwright did not even reside on the same block as Claimant.

Regarding the alleged prior assaults by gang members, Claimant was unable to show me that the assaults were connected to this incident and that Defendant knew, or should have known, that an additional assault was likely. Claimant has failed to establish that this attack was foreseeable.

Regarding Claimant's assertion that the State was negligent because Mr. Boatwright was not supposed to be in the mess hall that day, Sergeant Zydell's investigation revealed that Mr. Boatwright was not subject to confinement at that time and that, in fact, Mr. Boatwright actually resided in C Block. This was confirmed by the testimony of Officer Bunch, the author of the Inmate Misbehavior Report issued to Mr. Boatwright. ( Ex. C ).

For the reasons stated above, Claimant has failed to demonstrate that Defendant was negligent in failing to protect him from the unexpected and unprovoked attack of Inmate Boatwright. The claim is dismissed. Let Judgment be entered accordingly.

September 30, 2002
Rochester, New York

Judge of the Court of Claims