New York State Court of Claims

New York State Court of Claims

FOMINAS v. THE STATE OF NEW YORK, #2003-031-516, Claim No. 101218


Claimant demonstrated that the State was negligent relating to an assault upon him by another inmate.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
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Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 2, 2003

Official citation:

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See also (multicaptioned case)

Claimant, Anatolis Fominas, filed claim number 101218 on October 8, 1999, alleging that the State of New York was negligent in failing to protect him from an assault by another inmate. I conducted a trial of this matter on March 12, 2003, at Wende Correctional Facility (Wende).

Claimant testified that on July 22, 1999, another inmate, named Grant, threw Kool Aid into Claimant's cell, destroying some of his legal work and three 33 cent postage stamps. Claimant, who was confined to his cell (keeplocked), complained to Correction Officer Ball about this incident, but nothing was done.

The next day, July 23, 1999, Claimant was escorted from his cell to the facility hospital for reasons unrelated to this action. He was placed in a waiting room which had been designated for keeplock inmates. Just after Claimant entered the room, inmate Grant entered the room, jumped on him from behind, and assaulted him. This attack was documented by the facility and both inmates received Inmate Misbehavior Reports for fighting. The charges against Claimant were later dismissed, as it was determined that he was the victim of an assault. Claimant alleges he was beaten about the head and face and that he injured his back during this attack. Claimant states that he now walks with a cane, something he did not do before the attack.

Claimant testified that he had problems with inmate Grant prior to the July 23, 1999 assault, and that he had complained about inmate Grant's assaultive behavior on several occasions. He had also specifically requested that he be separated from inmate Grant, but this was never done. In fact, he alleges that he had commenced an Article 78 proceeding concerning Department of Correctional Services' (DOCS) refusal to separate the two inmates. He had also complained to the Superintendent and requested that inmate Grant be placed on his enemies list. When testifying concerning his previous written notice to Defendant about his ongoing problems with inmate Grant, Claimant marked Exhibit 1 (a letter to the Commissioner of DOCS), which helped jog his memory concerning dates. This document was never offered into evidence and, therefore, is not considered in this decision. Claimant's testimony, however, was credible and not contradicted by Defendant.

Correction Officer John Ball testified on behalf of Defendant. He stated that he has been employed by DOCS for 16 years and that he has been at Wende for 8 years. On July 22, 1999, he was working the 7 - 3 shift in Claimant's cell block. He was familiar with Claimant and the fact that Claimant had been placed in keeplock for refusal to comply with the facility's tuberculosis testing policy. Officer Ball testified that the "Kool Aid" incident on that day was recorded in the B Block log book (Exh. A). The entry concerning this incident indicates that Fominas threw something at Grant, not the other way around.

Defendant also called Sergeant Lawrence Higley to testify. Sergeant Higley has been with DOCS since 1982 and was the Supervisor (Block Sergeant) of Claimant's cell block on July 22, 1999. Sergeant Higley also testified that it was his understanding that Claimant had initiated the Kool Aid throwing incident on that date. He had no recollection of Claimant ever requesting to be separated from inmate Grant.

Correction Officer Darryl Daniels then testified regarding the events of July 23, 1999. He was working the Regional Medical Unit (RMU) that day and recalled the fight between Claimant and inmate Grant. In fact, he wrote the Inmate Misbehavior Report for inmate Grant after the altercation. Officer Daniels testified that Grant happened to be in the RMU being examined when Claimant was placed in the waiting room. Officer Daniels was standing in the hallway facing the door of the room where Grant was being examined. There were one or two other officers on the unit at this time. When Grant came out of his examination room, Officer Daniels directed Grant to a holding pen where he was to wait until he could be escorted back to his cell. At first, Grant looked like he was going to the holding pen as directed, but he suddenly turned and entered the room where Claimant was waiting. Upon witnessing inmate Grant dash through the door of Claimant's room, Officer Daniels followed inmate Grant into the room. Within seconds, he and another officer on the unit were able to separate the two fighting inmates.

Officer Daniels also testified that he was not aware that Claimant and inmate Grant were purportedly enemies on the day of the assault but that, in any event, due to the nature of the RMU and the need to give expeditious medical treatment to all prisoners, it was a routine practice that even known enemies could be treated at the RMU at the same time. The extra security measures taken in these instances are to place confined inmates in an individual waiting room as they had done with Claimant. In Claimant's instance, however, the officers did not have a heightened sense of any impending problems, as Claimant was confined due to medical reasons, not for disciplinary reasons. It appears that, despite the fact that Claimant was placed alone in a waiting room due to his keeplock status, the door to that room was not locked, or even fully closed.

Defendant also called Mike Sedor, RN, to testify regarding the extent of Claimant's injuries after his altercation with inmate Grant. He had examined Claimant shortly after the altercation occurred. Nurse Sedor noted at that time that Claimant had a two inch by two inch "pinkish" bruise on the right side of his head, which Nurse Sedor characterized as "minor." There had been no loss of consciousness during the scuffle. All objective indications were that Claimant was otherwise uninjured. Claimant did complain, however, of slight neck, right shoulder, and lower back discomfort. Nurse Sedor noted at that time that: Claimant appeared to be in no distress; his movement and gait were normal; he had no loss of range of motion; and he did not grimace or otherwise indicate pain to the touch, or with movement. Following his examination of Claimant, Nurse Sedor concluded that Claimant suffered only minor injuries and needed only to rest, apply cold compresses to his bruise, and perhaps use ibuprofen for any subjective complaints or discomfort.

Claimant's Ambulatory Health Record, portions of which were admitted into evidence as Exhibit E, indicate that on July 23, 1999, Claimant was receiving the medication Indocin. Nurse Sedor testified that this related to a previous injury, as well as Claimant's preexisting arthritis and back problems. He also noted that Claimant was overweight which likely contributed to any back discomfort that Claimant experienced. Finally, Nurse Sedor testified that "sick call," an event which provides inmates access to medical care providers, was available to the Claimant four times each week. However, Claimant was not seen again by medical care providers concerning the July 23, 1999 incident (and had, in fact, refused two "sick calls") until sometime after August 2, 1999. This is consistent with Claimant's Ambulatory Health Record (Exh. E).

The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (
Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609).
In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented the assault, but failed to do so (
Huertas v State of New York, 84 AD2d 650). Recently, in Sanchez v State of New York (99 NY2d 247), the Court of Appeals explained that the State can be liable if the assault upon an inmate was reasonably foreseeable and the State failed to take reasonable steps to prevent the assault.
With regard to the throwing of "Kool Aid" on July 22, 1999, I find that the record before me indicates that the incident was initiated by Claimant. Claimant has failed to sustain his burden of demonstrating either that Defendant was negligent, or that Claimant sustained damages as a result of inmate Grant's actions, as opposed to his own.

However, I find that Defendant did have notice of the animosity between Claimant and inmate Grant. Although Claimant was a "keeplock" inmate visiting the RMU at the time of the assault, Defendant still had a duty to take reasonable precautions to protect him from this assault. As stated by the Court of Appeals in the recent case
Sanchez v State of New York, (99 NY2d at 252), "Regardless of the status of the plaintiff, the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived." [citation omitted]. I find that the July 23, 1999 assault upon Claimant by inmate Grant was foreseeable, and could have easily been avoided by insuring that Claimant and inmate Grant were separated. Fortunately, however, Claimant's injuries were minor and, from the record and testimony given, I find that Claimant suffered, at worst, a bruised right cheek and various muscle strains. For this reason, I find that Claimant is entitled to an award in the amount of $250.00.

July 2, 2003
Rochester, New York

Judge of the Court of Claims