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
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.
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
, 163 AD2d 914, lv denied
76 NY2d 711; Casella v State of New
, 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
, 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