New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2003-009-119, Claim No. 104003


Claimant sought damages for injuries suffered in an assault against him by another inmate at Marcy Correctional Facility. The Court found that the assault was not reasonably foreseeable and dismissed the claim (Sanchez v State of New York, 99 NY2d 247).

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:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate appearing
pro se, seeks damages for injuries suffered in an assault committed against him by another inmate, while both were incarcerated at Marcy Correctional Facility. Claimant alleges that the State was negligent for failing to remove a pair of State-issued, rubber soled boots and a paper clip from the cell occupied by claimant and his assailant, which items were allegedly used against him by his assailant during this altercation. A trial was held on this claim at Marcy Correctional Facility on June 18, 2003.
According to his claim and trial testimony, on February 16, 2001, claimant was housed in the Special Housing Unit (SHU) at Marcy Correctional Facility. Another inmate, one Glen Bowman, was housed in the same cell with claimant. On that day, claimant alleges that he was resting on his bed when inmate Bowman, without any provocation, assaulted him. Claimant testified that he was struck by Bowman numerous times with the "State boots"[1]
and that Bowman also used a sharpened paper clip to stab him. Claimant further testified that prior to this incident, he had had no other problems with inmate Bowman, that inmate Bowman had never threatened him, and that he had no reason to be afraid of inmate Bowman up to the point of this attack.
Claimant asserts that the State was negligent in allowing both the State-issued boots and paper clip to remain in the cell in violation of rules and regulations of the Department of Correctional Services, and it was this negligence that was a substantial contributing cause of the injuries suffered by him.

In opposition, the State produced the testimony of Glen Bowman, taken in an examination before trial on December 28, 2001 (see Defendant's Exhibit B).[2]
In his deposition, inmate Bowman testified that he and claimant had an altercation in their cell on February 16, 2001, but he denied using either the boots or paper clip during the fight, and further denied that such items were even present in the cell at this time.
Tom Chamberlain and David Hillriegel, correction officers at Marcy Correctional Facility, also testified for the State. At the time of this incident, both of these officers were assigned to the SHU building where the assault took place. Following the assault, both officers testified that they responded to the incident, but did not observe any boots or paper clips in the cell.

Additionally, Mr. Hillriegel testified that a cell search had been conducted on January 28, 2001, a short time prior to the incident. At that time, some items of contraband (clothesline and fishing line) were confiscated from the cell, with the inference being that the boots and paper clips, if they were present in the cell, would also have been confiscated at that time.

It is well settled that the State must use reasonable care to protect the inmates of its correctional facilities against foreseeable risks of attack by other inmates (
Blake v State of New York, 259 AD2d 878; Sebastiano v State of New York, 112 AD2d 562). The State, however, is not an insurer of inmate safety, and the fact that an assault occurs does not give rise to an inference of negligence against the State (Sebastiano v State of New York, supra). Unless there is credible evidence to establish that the assault was reasonably foreseeable, the State will not be liable for negligence (Sanchez v State of New York, 99 NY2d 247).
arguendo, that permitting unauthorized items such as the boots and paper clips to remain in a SHU cell would be sufficient to constitute negligence against the State, this Court must nevertheless find that claimant has not established, by a preponderance of evidence, that such items were used in the attack against him by inmate Bowman, or that they were even present in his cell at that time. The Court takes into account that claimant's testimony was directly contradicted by the deposition testimony given by inmate Bowman, and by the fact that neither of the correction officers who arrived at claimant's cell immediately after the incident observed any of those items in the cell.
Furthermore, an unprovoked unexplained attack by a fellow inmate does not necessarily support a finding of negligence, even where the attack involved the use of a handmade weapon (see,
Stanley v State of New York, 239 AD2d 700; Leibach v State of New York, 215 AD2d 978).
Based on the foregoing, this Court must conclude that the unfortunate attack against claimant was not reasonably foreseeable, and the State is therefore not liable for claimant's injuries. Accordingly, the claim is hereby dismissed.

Any motions not heretofore ruled upon are hereby denied.

September 17, 2003
Syracuse, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[2] The transcript of Mr. Bowman's deposition testimony was admitted into evidence due to the fact that inmate Bowman had died prior to the date of trial, as evidenced by Division of Parole records introduced as Defendant's Exhibit A.