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
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.
He received written responses to his complaint
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
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
On May 16, 1998, he requested voluntary protective custody status, which request
was refused by DOCS.
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
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
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.
On December 30,
1998, he was recommended for placement in Administrative
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
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
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
, 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
, 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
Sanchez v State of New York
, 99 NY2d 247, and its application to the
claim at bar. While some may have theorized that Sanchez
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
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
majority acknowledged, the procedural posture before them was a
Sanchez v State of New York, supra,
Graffeo, J., dissenting at
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.