Claimant, an inmate appearing
, 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
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
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
, 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
). 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).
, 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
, 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.
LET JUDGMENT BE ENTERED ACCORDINGLY.