Claimant, an inmate appearing pro se, moves for summary judgment pursuant to
CPLR 3212. The State of New York (hereinafter "State") opposes the
Claimant alleges he was cut with a razor on the right side of his face by
another inmate while in the field house at Elmira Correctional Facility
(hereinafter "Elmira") on April 9, 1998. Claimant further alleges that in 1997
he had been placed in involuntary protective custody while incarcerated at
Shawangunk Correctional Facility (hereinafter "Shawangunk") due to threats
received from members of the "Bloods" gang. Claimant asserts that after
transfer to Elmira he realized that he had been housed with members of the same
gang that had threatened him at Shawangunk. Claimant states that his repeated
requests for protective custody at Elmira were ignored.
By way of this motion, claimant argues that he has established the State's
negligent supervision and his right to summary judgment as a matter of law based
upon the mere fact that he was attacked; the State's failure to monitor the area
with video cameras; and the State's decision to grant him involuntary protective
custody the day after the attack. In support, claimant has submitted, among
other things, the involuntary protective custody recommendations from Shawangunk
dated November 27, 1997 and Elmira dated April 9, 1998.
On a motion for summary judgment the moving party must present evidentiary
facts that establish the party's right to judgment as a matter of law, upon
which the opposing party must present evidentiary proof in admissible form that
demonstrates the existence of a factual issue. (Friends of Animals v
Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Moreover, under CPLR 3212,
the proponent's "[f]ailure to make such showing requires denial of the motion,
regardless of the sufficiency of the opposing papers [citations omitted]."
(Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). It is
well-settled that the State is not an insurer of the safety of inmates, although
it must provide reasonable protection against foreseeable risks of attack by
other inmates. (Pierrelouis v State of New York, 255 AD2d 824, 825). Of
course, "[t]he 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, 99 NY2d 247, 256). Stated
another way, in order to establish liability, claimant must prove that the State
knew or should have known that there was a risk of harm to him that was
reasonably foreseeable and inadequately handled. (Id.).
In response, the State has submitted affidavits from Lt. John Randall and
Correction Officer Mark Saunders from Elmira both of whom investigated the
assault; its attorney's affirmation; the Unusual Incident Report from Elmira
dated April 10, 1998; handwritten memorandums from then Sgt. Randall and Officer
Saunders both dated April 9, 1998; and a Protection Waiver signed by claimant on
April 9, 1998 after this assault occurred. Both officers dispute claimant's
allegations to the extent that he alleges with certainty that members of the
"Bloods" gang were responsible for the prior threats at both Shawangunk and
Elmira and this assault. In short, the officers allege that claimant had
previously indicated that he did not know who assaulted him or made threats and
thus could not have made known to prison officials any specific risk of harm
from "Bloods" members.
Based upon this record, this court finds that claimant has failed to present
evidentiary facts that establish his right to judgment as a matter of law. The
parties' submissions offer differing accounts of events as to who knew what and
when. For instance, claimant's allegation that members of the "Bloods" gang
assaulted him in Shawangunk is contradicted by the Shawangunk Involuntary
Protective Custody Recommendation that indicates claimant did not know who was
threatening him. (State's Exhibit A). Additionally, the Elmira Involuntary
Protective Custody Recommendation indicates that the inmate who assaulted
claimant at Elmira was unknown. (State's Exhibit B). Nor has claimant
submitted any evidentiary proof in admissible form that he communicated to
Elmira officials this ongoing risk of harm by "Bloods" gang members.
Based on this record, the court cannot determine as a matter of law the
circumstances of events at Shawangunk or Elmira or, for that matter, what
officials at Elmira knew, if anything, regarding prior threats against claimant
in Elmira. Rather, the parties' submissions have created triable issues of fact
as to the foreseeability of the alleged assault on claimant; the measures, if
any, taken to protect him and/or to supervise other inmates with a violent
propensity, all of which are not proper issues for resolution on a motion for
summary judgment. As such, the court finds that there are questions of fact
which mandate denial of claimant's motion for summary judgment.
Accordingly, in light of the foregoing, it is ORDERED that claimant's motion
for summary judgment, Motion No. M-67377, is DENIED.
Claim, filed March 31, 2000.
Notice of Motion No. M-67377, undated and filed September 11, 2003.
Affidavit of Carlos Samper, in support of motion, unsworn to, with attached
Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated October
1, 2003, and filed October 3, 2003, with attached exhibits.
Affidavit of John Randall, in opposition to motion, sworn to September 30,
Affidavit of Mark Saunders, in opposition to motion, sworn to September 30,
Memorandum of Law, in opposition to motion, dated October 1, 2003.