Claimant seeks damages for the personal injuries he sustained during his
incarceration at Sing Sing Correctional Facility (Sing Sing) when, on April 17,
1998, he was attacked by another inmate. Claimant alleges that he remained in
his cell and that Correction Officer Bobo failed to lock it according to proper
procedure. Thus, another inmate was able to gain access to claimant's cell and
attack him. Defendant maintains that claimant was returning to his cell from
another location and that the cell was appropriately unlocked. The parties
stipulated that there are no documents reflecting claimant's whereabouts on
April 17, 1998 and none were available when, on August 27, 2002, they were first
requested by claimant. Nor were there any witnesses who could testify to
claimant's whereabouts. Accordingly, the credibility of claimant and Correction
Officer Bobo is critical to the determination of this case. The trial of this
claim was bifurcated and this Decision pertains solely to the issue of
Claimant testified that on April 17, 1998, he went to breakfast and then, at
approximately 8:30 a.m., returned to his cell on A gallery in Five Building.
At his examination before trial, however, claimant testified that he could not
remember whether or not he had gone to breakfast. Claimant testified that he
was enrolled in classes, but he did not have any classes that day. He also
stated that he was a porter, but he did not have any work assignments that day.
He recalled feeling tired, so he returned to his cell and went to sleep.
According to claimant, at 2:30 p.m. he was awakened by the facility's loud
speakers announcing a program change. He arose and walked toward the sink
inside his cell. Within one minute, as he was washing his face, he felt a
razor-like instrument slash his face. His attacker was inmate Serrano.
Correction Officer George Bobo responded to assist
Claimant testified that, prior to April 17, 1998, he had never been physically
assaulted. At his examination before trial, however, claimant testified that in
1992, while serving a previous sentence, he had been assaulted and had signed
himself into protective custody.
also testified that prior to April 17, 1998, his cell had been set on fire
twice, as recently as July 1997. Claimant did not know who had set the fires.
After the July 1997 fire, claimant signed a document refusing protective custody
and agreeing not to hold defendant liable. When asked at trial if he had spoken
to a sergeant after the second fire, claimant responded, yes. At his
examination before trial, however, claimant testified that he was not
interviewed by a sergeant, but rather he was interviewed by Captain
On September 2, 1997, in a letter to Captain McElroy, claimant requested that he
be removed from protective custody but remain in Five Building (Ex. D).
Claimant's request was granted and he was housed in A block in Five Building.
He remained there for three months without incident before he was assaulted on
April 17, 1998.
Claimant conceded that, prior to the April 17, 1998 attack, he did not fear that
he was in any danger, nor had he had any encounters with Serrano. Thus,
claimant acknowledged that no one in the New York State Department of
Correctional Services (DOCS) should have had any reason to believe there were
any issues between the two inmates. After the April 17, 1998 incident, claimant
was placed in Involuntary Protective Custody (Ex. 3).
Deputy Superintendent Terrence McElroy testified that he has been employed by
DOCS for 33 years. On April 17, 1998, he held the rank of Captain and was
Acting Deputy of Security at Sing Sing. He testified that as a Deputy
Superintendent, he did not conduct interviews regarding cell fires. Such
interviews would have been handled by a housing sergeant or block lieutenant.
Referring to inmate records, McElroy testified that on February 17, 1998 after a
disciplinary proceeding, claimant was transferred from B block to Five
Correction Officer George R. Bobo testified that on April 17, 1998, he worked
the 7:00 a.m. to 3:00 p.m. shift on A gallery Five Building. Bobo explained
that during the "go back,"
when inmates were returning from their programs and proceeding to their cells,
Serrano necessarily passed claimant's cell. Five to ten minutes before claimant
was attacked, Bobo observed claimant on the gallery headed toward his cell.
Thereafter, Bobo observed claimant leaning on his partly opened cell door. He
was standing between the door frames of his cell (Ex. 6, p. 17). Bobo witnessed
Serrano open claimant's cell door and slash him.
Bobo explained that the cells were locked individually and then secured by a
brake, or bar, that extended across all the cells. If an inmate did not leave
his cell during a program period, he remained inside a locked cell.
Bobo maintained that, according to his custom and practice, if claimant had not
left his cell for programs, the cell would have been deadlocked. During the go
back, the brake was open and was not closed until after all the inmates were
locked inside their cells (Ex. 6, pp. 13-14). Bobo had no recollection of
claimant remaining in his cell on April 17, 1998.
It is well settled that the State is required to use reasonable care to
protect the inmates of its correctional facilities from foreseeable risks of
see Flaherty v State of New York
, 296 NY 342; Dizak v State of
, 124 AD2d 329; Sebastiano v State of New York
, 112 AD2d
562). Foreseeable risk of harm includes the risk of attack by other prisoners
(see Littlejohn v State of New York
, 218 AD2d 833). That duty,
however, does not render the State an insurer of inmate safety (see
Sanchez v State of New York
, 99 NY2d 247). The State's duty is to
exercise reasonable care to prevent foreseeable attacks by other inmates
(see Padgett v State of New York
, 163 AD2d 914). The test for
liability has evolved from the strict requirement of specific knowledge to
encompass not only what the State actually knew, but also "what the State
reasonably should have known
– for example, from its knowledge of
risks to a class of inmates based on the institution's expertise or prior
experience, or from its own policies and practices designed to address such
risks" (Sanchez v State of New York
at 254 [emphasis in
original]). The mere fact that a correction officer may not have been present
when an assault occurred does not give rise to an inference of negligence,
absent a showing that prison officials had notice of a foreseeable dangerous
situation (see Colon v State of New York
, 209 AD2d 842, 843-44).
"[T]he State's duty to prisoners does not mandate unremitting surveillance in
all circumstances, and does not render the State an insurer of inmate safety.
*** The 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
To establish liability in an inmate assault case, claimant must demonstrate
one of the following: (1) the State knew or should have known that claimant was
at risk of being assaulted and yet failed to provide claimant with reasonable
protection; (2) the State knew or should have known that
the assailant was prone to perpetrating such an assault and the State did not
take proper precautionary measures; or (3) the State had ample notice and
opportunity to intervene but did not act (id.
). "The State will be
liable in negligence for an assault by another inmate only upon a showing that
it failed to exercise adequate care to prevent that which was reasonably
foreseeable" (Wilson v State of New York
, 303 AD2d 678,
Upon consideration of all the evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that
claimant's testimony is not worthy of belief and there is a lack of evidence
sufficient to meet claimant's burden of proof. The Court finds that the
testimony of Correction Officer Bobo was credible and forthright. Thus, there
was insufficient evidence to establish that claimant had remained in his cell
and that defendant was negligent in its failure to lock claimant's cell
aimant testified that, prior to the assault by Serrano, claimant had no fear of
attack nor had he had any prior encounters with Serrano. Three months prior to
the attack, claimant requested removal from protective custody and asked to
remain in Five Building. Claimant conceded that there was no reason for anyone
in DOCS' employ to believe there was any issue between claimant and Serrano.
Thus, there is no basis for finding that defendant should have reasonably
believed that claimant was at risk of attack.
The Court finds that the actions taken by
defendant to secure claimant's safety were reasonable under the circumstances;
therefore defendant is entitled to deference in managing the safety and order of
its facility (see Arteaga v State of New York
, 72 NY2d 212,
defendant's motion to dismiss, upon which decision was reserved, is now
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 99166.