New York State Court of Claims

New York State Court of Claims

SANTOS v. THE STATE OF NEW YORK, #2003-005-003, Claim No. 99576


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:
Robert B. Druar, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate in the custody of the New York State Department of Correctional Services (DOCS) and housed at the Attica Correctional Facility (Attica) on November 27, 1998, was attacked by another inmate who was armed with a razor, which assault caused personal injury to Claimant. He alleges that the State was negligent in failing to "supervise other inmates and to enforce regulations prohibiting assaultive behavior and the use of weapons by inmates upon other inmates such as Claimant."

On that date Claimant was in the exercise yard at Attica at approximately 9:00 p.m. when he was assaulted by three other inmates whom he had never met or knew. He alleges that the assailants were members of a gang called the "Latin Kings." He never saw the weapon that was used and he suffered severe lacerations. He was taken to the facility hospital where his wounds were treated.[1]

Claimant predicates liability on allegations that the State was on actual notice of his vulnerability to physical assault by members of the "Latin Kings" when he wrote letters dated July 1, 1997 and December 3, 1997, to an Assistant Commissioner of DOCS.[2]
He received written responses to his complaint letters.[3] On December 2, 1997, Claimant requested voluntary protective custody status consideration alleging threats by two inmates while he was housed at Auburn Correctional Facility (Auburn). On December 9, 1997, he was assigned to protective custody.[4] The two inmates who allegedly threatened Claimant at Auburn were not involved in the assault alleged herein. In general, Claimant states that he was threatened at numerous times by members of the "Latin Kings," some of whom he knows only by their street names, but not their proper names.
While in protective custody at Auburn he was transferred by DOCS to the Wende Correctional Facility (Wende), and on May 6, 1998, he was recommended for involuntary protective custody, a status which he refused.[5]
On May 16, 1998, he requested voluntary protective custody status, which request was refused by DOCS.[6] Thereafter he alleges that he was attacked in his cell at Wende by unknown inmates, who he alleges were members of the "Latin Kings." He states that he then requested a transfer from Wende.
In June 1998, Claimant was transferred to Attica where he suffered the assault that is the subject of this claim. The day after the assault, Claimant was offered voluntary protective custody status, but he declined the offer and was then placed in involuntary protective custody.[7]
Subsequently a hearing to consider the involuntary protective custody recommendation was conducted at which the Claimant denied any knowledge of the identity of his assailants.[8] On December 30, 1998, he was recommended for placement in Administrative Segregation.[9]
On cross-examination Claimant admitted that he signed two "Inmate Interview Slips" dated June 29, 1998 and October 13, 1998, where he indicated he had no known enemies at Wende and at F/OTC FG.[10]
More significantly, after maintaining that he had made enemies of the "Latin Kings" by testifying against their leaders in various criminal trials, Claimant admitted that this entire allegation was not true. This admission was only elucidated while Claimant testified under cross-examination and after being shown his own letter to the Deputy Superintendent for Security at Attica and the letter of an Assistant United States Attorney.[11]
This admission undermines the Claimant's credibility, and I am unable to credit his testimony. Specifically, I find that Claimant did not testify against the "Latin Kings" in the federal ‘RICO' prosecution of Luis Felipe and some other forty members of the "Latin Kings." This negates any alleged persecution of the Claimant by members of the "Latin Kings" in the custody of DOCS, and is further buttressed by his denial of having enemies and his ignorance of knowing who assaulted him in the incidents heretofore. Claimant's elevated sense of his own importance and his false notice of an non-existent risk from the "Latin Kings" evaporated, as his whole story was a fabrication. His web of deception was demolished on cross-examination.

Furthermore, I find that he has not sustained his burden of proof that the State failed to "supervise other inmates and to enforce regulations prohibiting assaultive behavior and the use of weapons by inmates upon other inmates such as Claimant" by a preponderance of the creditable evidence in the trial.

This claim raises issues regarding assaults upon inmates that have been visited many times. In past claims, I have applied generally recognized and accepted standards that governed an inmate's entitlement to recovery only if (1) he was known to be at risk and the Defendant failed to provide reasonable protection (
see, Sebastiano v State of New York, 112 AD2d 562); (2) Defendant had notice that the assailant was particularly prone to perpetrating such an assault and Defendant failed to provide reasonable protection (see, Littlejohn v State of New York, 218 AD2d 833; Wilson v State of New York, 36 AD2d 559); or (3) Defendant had ample notice and opportunity to intervene in order to protect Claimant and failed to do so (see, Huertas v State of New York, 84 AD2d 650).
At the outset it is appropriate to address the recent ruling by the Court of Appeals in
Sanchez v State of New York, 99 NY2d 247, and its application to the claim at bar. While some may have theorized that Sanchez has clarified the law and applied a new standard, to wit, whether the Defendant knew or reasonably should have known that an inmate claimant was at risk of harm, I read Sanchez more narrowly.[12]
Sanchez was an inmate-on-inmate assault case where a claim of negligent supervision was dismissed on summary judgment, on the ground that the attack was unforeseeable as a matter of law, and the Court of Appeals merely concluded that the record raised a triable issue as to foreseeability. This holding occurred primarily, in my view, because the claimant there provided the unrefuted affidavit of an expert penologist who opined that the State's supervision of Sanchez on the night of the assault violated generally accepted penological standards of care, and the State, without providing any evidence to refute such assertions, was not entitled to summary judgment dismissing the case.
As the
Sanchez majority acknowledged, the procedural posture before them was a narrow one:
To obtain summary judgment, the State must meet a high threshold: there must be only one conclusion that can be drawn from the undisputed facts – that as a matter of law injury to Sanchez was not reasonably foreseeable. This record will not support that conclusion. . . . [Specifically,] this record by expert affidavit identifies a risk of assault . . . and the existence of such a risk is uncontroverted. . . . Here, there is uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack during congregate "go-back" time; and uncontested evidence of both the regularity of the correction officer's inattentiveness at precisely that time and the officer's inability to see claimant at the location where he was required to stand.
Sanchez v State of New York, supra. at 254-255.
In the claim at bar, despite the invitation to do so, Claimant presented no evidence of any regulations or rules which were violated, and provided no expert opinion. This claim went to trial, Claimant's factual assertions were contested, and indeed controverted. Perhaps it is best stated this way: whatever holding that
Sanchez stands for does not apply to the claim at bar.
Another perhaps more telling aspect of
Sanchez is the suggestion that the court below had too narrowly defined the three traditional scenarios that would suffice to raise an issue of fact concerning foreseeability, as even the dissent recognized that:
[T]he list is incomplete; other types of proof would also raise a question of fact. For example, an inmate might establish foreseeability by offering proof that there were a number of prior attacks in a certain location in a facility, indicating an unreasonable risk of harm particular to that place, or by demonstrating that the authorities received threats or were aware – or should have been aware – of other indicia of unrest prior to a certain event or program which ultimately culminated in violence.
Sanchez v State of New York, supra, Graffeo, J., dissenting at 261-262.
Nonetheless here the State's liability is measured against the three traditionally described scenarios above, as they are the only criteria upon which Claimant attempted to rely. "[T]he State's duty to prisoners . . . does not render the State an insurer of inmate safety. . . . The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (
Sanchez v State of New York, supra at 256). No evidence was presented that distinguishes this unfortunate assault from those present every day at any correctional facility.
There is no credible evidence that this assault was foreseeable, and thus no breach of any duty owed by the Defendant to the Claimant. Accordingly, the claim must be, and hereby is, dismissed. While I did grant the motion of the Claimant to conform the pleadings to the proof, all other motions not heretofore ruled upon, are now denied.

Let judgment be entered accordingly.

June 17, 2003
Rochester, New York

Judge of the Court of Claims

[1] Exhibits 16-A, 16-B and 16-C.
[2] Exhibits 2 and 5.
[3] Exhibits 6 and 7.
[4] Exhibit 9.
[5] Exhibits E and 11.
[6] Exhibit 11.
[7] Exhibit C.
[8] Exhibits D and D-1.
[9] Exhibits 14 and 15.
[10] Exhibits A and B.
[11] Exhibits F and G.
[12] The Fourth Department, in its only opportunity to review this newly articulated standard, has implied that the standards are now broader (Gangler v State of New York, 302 AD2d 964, 965).