This Claim alleges that Claimant, Jason Heyliger (Claimant), suffered personal
injuries when he was assaulted on October 27, 1993 and October 30, 1993 at Sing
Sing Correctional Facility (Sing Sing). Claimant, an inmate at the time of the
accident, alleges the Defendant was
in failing to prevent the alleged assaults. The Court conducted a unified
of the Claim.
The Claimant testified that at the time of the incidents, he was living in A
Block, K Gallery, Cell Unit 263 at Sing Sing. On October 27, Claimant left the
gym on early "go back"
to perform his duty as sick call clerk, i.e., typing of the sick call list for
the next morning. As he left the gym and proceeded upstairs, inmate Tim
Nesmith (Nesmith) who was ahead of Claimant on the stairs, turned around and
"snatched my chain and nicked my ear." As Nesmith "took off running," Inmate
Charles Bryant (Bryant) "blocked me from chasing Nesmith." Claimant stated that
the incident ended when Correction Officer Dow, who was stationed at the gym
door, told us to keep moving. No words were spoken during the incident. Upon
returning to his housing unit, Claimant testified that the Correction Officer
(CO) on duty (a/k/a gallery officer)
what happened and directed Claimant to "lock-in." On cross-examination,
Claimant testified he reported "the chain snatch" to the gallery officer.
Claimant maintained that no one got back to him, although he acknowledged that
despite being aware of the procedures for doing so, he did not put anything in
writing, nor did he follow up on his complaint. Claimant further testified that
he did not seek medical attention "cause it wasn't that big of a
On October 30, 1993, Claimant testified that at approximately 6:00 o'clock in
the evening he was on his way to recreation and was "near the phone area" when
he was hit from behind and pushed to the side of the cells. The blow knocked
Claimant to the ground and rendered him temporarily unconscious. Claimant
testified that he "came to" when he hit the floor. At that moment, Claimant
described the scene as follows: Nesmith was on me by my legs stabbing me with
"an ice pick," Bryant was "trying to stomp me on my head and stab me with an ice
pick" and inmate Wayne Johnson cut me "from the back of my head with a razor."
Claimant stated he struggled to protect himself and fought back by kicking and
swinging at his assailants. Claimant testified that when he regained his feet
he saw "CO's standing near their office" and since none of them were moving "I
ran to M-North and sat in front of the Spanish TV." Claimant next testified the
Correction Officers saw him and brought him to the medical staff for treatment.
According to Claimant, the initial blow was struck within three feet of
Correction Officer Cannonier, who was seated at the "phone desk." On
cross-examination, Claimant testified the attack "lasted maybe 10-15
Claimant suffered multiple stab wounds in the October 30th attack accompanied
by pain. In addition, Claimant testified his injuries prevent him from being
certified as a sign language interpreter, as the continuing pain in his hands
has slowed the speed with which he signs to unacceptable levels.
Correction Officer John Hyde, a three year veteran of the Department of
Correctional Services (DOCS) at the time of the attack, was working at Sing Sing
on October 30, 1993 as the first officer on H & M Gallery. He testified on
behalf of the Defendant that there were three additional correction officers on
duty at the time of the incident. CO Hyde stated that as he exited the office
and was locking the door he saw the combatants coming "through the gate" -
three inmates were going after the Claimant and the Claimant was swinging back.
He estimated the distance from himself to the inmates to be "10 feet." He
"pulled the alarm" and he and Cannonier, who was the phone officer, responded.
CO Hyde yelled "break it up" and the assailants jumped up and started running
toward the gym. Nesmith was apprehended by CO Cannonier and the "red dot team"
captured Bryant. CO Hyde stated that he did not see the fight start but that it
was "over in a minute." CO Hyde testified he and another officer went to look
for Claimant and "found him at the Spanish TV."
It is well settled that having "assumed physical custody of inmates, who
cannot protect and defend themselves in the same way as those at liberty can,
the State owes a duty of care to safeguard inmates, even from attacks by fellow
inmates. That duty does not, however, render the State an insurer of inmate
safety. Like other duties in tort, the scope of the State's duty to protect
inmates is limited to risks of harm that are reasonably foreseeable"
(Sanchez v State of New York,
99 NY2d 247 [citations omitted]). The
Court of Appeals in Sanchez
, reading recent Appellate Division decisions
to have imposed "[T]he strict requirement of specific knowledge for
foreseeability" for inmate on inmate assault cases (Sanchez,
at 254), rejected such a bright-line test and reaffirmed "the
traditional standard of reasonableness;" that is, "reasonable care under the
. [citations omitted]). The Court of Appeals was
unanimous in reiterating that foreseeability encompasses both actual and
constructive notice (id
This Court does not face the issue found in
and which divided that Court; namely, whether Claimant had raised
a question of fact sufficient to meet his burden to stave off summary judgment.
Rather, this Court must determine, following trial, whether Claimant has
established that the Defendant had actual or constructive notice of an attack
upon an inmate, that is, whether, the inmate on inmate assaults were reasonably
foreseeable (see Gangler v State of New York
, __ AD2d__, 755 NYS2d 174).
As the Court of Appeals was clear to confirm "[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
, 99 NY2d 247, 256).
The Court finds that Claimant offered no evidence that either incident was
preceded by any outward manifestation of what was to come which could have
spurred the State to action (see
Williams v State of New York
, Ct Cl, Collins, J., Claim No. 100059
[unpublished decision]), nor was any policy or procedure implicated as exposing
the Claimant to a foreseeable risk (see i.e. Blake v State of New York
259 AD2d 878 [releasing inmate while handcuffed into recreation yard]). Nor was
there any suggestion that Claimant was at risk or that his attackers had known
violent propensities. As such, Claimant cannot establish that the State was
negligent with regard to the first incident on October 27, 1993. Moreover, that
incident, although now alleged to be an assault, is more appropriately
characterized as a theft. This conclusion is buttressed by Claimant's testimony
that he reported a "chain snatch" and Claimant's additional testimony that
after stealing his chain, the perpetrators made him an offer, which Claimant
refused, to sell the chain back to Claimant for $200.00.
Turning to the assault on October 30, 1993, Claimant puts forth two avenues for
the Defendant's negligence - the harm to him was reasonably foreseeable based
upon the October 27 incident, and the Correction Officers present failed to
promptly intervene to protect him once the assault was underway. The Court
rejects both theories posited by Claimant. As to the latter theory of the case,
the Court credits the testimony of CO Hyde who testified that he and CO
Cannonier responded to the altercation
. As he was moving towards the fight, CO Hyde testified that he yelled "break
it up" at which point the combatants scattered ending the altercation. The
Court does not credit Claimant's testimony that the Correction Officers "did
nothing" to prevent or end the attack or that the attack lasted up to "10
minutes." As to the former theory of the case, Claimant admitted that although
knowledgeable of the procedures, he took no action to file a grievance or seek
medical attention and he testified he did not seek voluntary protection because
he didn't think "there'd be any problems." Assuming arguendo Claimant did
notify a Correction Officer of the October 27, 1993 incident when he returned to
his cell, given Claimant's own conclusions about the incident, the Court finds
such report would not have placed the State on either actual or constructive
notice that a future attack was planned or contemplated.
Claimant offered only his own testimony in support of his Claim and in doing so
has failed to proffer any credible evidence that would establish, let alone
suggest, that the Defendant had either actual or constructive notice of the harm
that befell Claimant on either date.
Accordingly, and after having observed the witnesses' demeanor while
testifying, the Court finds the Claimant has failed to establish by a
preponderance of the credible evidence that either incident was reasonably
foreseeable by the State and therefore, the State is not liable for Claimant's
injuries. Claim No. 91867 shall be and hereby is dismissed.
Let judgment be entered accordingly.