New York State Court of Claims

New York State Court of Claims

SAMPER v. THE STATE OF NEW YORK, #2003-019-562, Claim No. 102210, Motion No. M-67377


Claimant's motion for summary judgment based on inmate on inmate assault and failure of prison officials to grant protective custody is denied.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 9, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for summary judgment pursuant to CPLR 3212. The State of New York (hereinafter "State") opposes the motion.

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.

October 9, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. Claim, filed March 31, 2000.
  2. Notice of Motion No. M-67377, undated and filed September 11, 2003.
  3. Affidavit of Carlos Samper, in support of motion, unsworn to, with attached exhibits.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated October 1, 2003, and filed October 3, 2003, with attached exhibits.
  5. Affidavit of John Randall, in opposition to motion, sworn to September 30, 2003.
  6. Affidavit of Mark Saunders, in opposition to motion, sworn to September 30, 2003.
  7. Memorandum of Law, in opposition to motion, dated October 1, 2003.