New York State Court of Claims

New York State Court of Claims

DIDONATO v. THE STATE OF NEW YORK, #2004-019-010, Claim No. 104500


Claimant alleged the State was negligent in failing to grant him protective custody and in failing to prevent assault by another inmate. After trial, the court found claimant did not prove by a preponderance of the evidence that the State could have reasonably foreseen this attack; claim dismissed

Case Information

FRANCIS DIDONATO The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
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The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
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HON. ELIOT SPITZER ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
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June 22, 2004

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See also (multicaptioned case)


Claimant, Francis DiDonato, brings this claim against the State of New York alleging he was injured while an inmate at the Elmira Correctional Facility (hereinafter "Elmira"), due to the negligent supervision of said facility and its inmate population by the correction officers and other employees of the Department of Correctional Services. The trial of this claim took place in the Binghamton District on September 4, 2003.

On August 12, 1999, at approximately 10:15 a.m., claimant Francis DiDonato was an inmate at Elmira and requested permission to go to the mail area from his position in I-Block. Claimant testified that while a written pass is generally required for permission to leave a particular area, on this date he was allowed down a laundry room corridor toward the mail area without a pass. After dropping mail in the mailbox, claimant turned and was on his way back to I-Block via the laundry corridor when he was punched in the head from behind and a chain pulled off his neck. Claimant testified that he reached up and felt blood coming down his face. He then testified that he saw an unknown assailant 5'9" to 5'10", heavy set black male with dreadlocks. Claimant proceeded down the hallway to a slop sink area to throw water on his face. He did not realize he was also cut until correction officer Taylor showed up and told him "don't move"[1]. Officer Taylor then called for an escort and claimant was escorted by correction officer Tipton to the infirmary. Claimant testified that he was going to report the injury as soon as he could stop the bleeding but was discovered by correction officer Taylor before he could do so. There were no witnesses to this incident and the attacker has never been identified. Claimant received five stitches at the infirmary.

After leaving the infirmary, claimant returned to I-Block where he was interviewed by Sergeant Volker. Sergeant Volker asked the claimant during the course of the interview if he wanted protective custody. Claimant declined protective custody and signed a protective custody waiver.

Claimant testified he declined protective custody because he was "full of anger and wanted to retaliate", although he admits he never told this to Sergeant Volker. Nevertheless, Sergeant Volker placed claimant in involuntary custody based upon this incident.

Claimant was charged with two violations of the standards of inmate behavior for violating Rule 109.10 ("Inmates shall not be out of place in any area of the facility"), as well as Rule 118.23 ("Inmates shall promptly report illness or injury to a facility employee"). (7 NYCRR 270.2). At his disciplinary hearing on these charges, claimant pled guilty to the charge of unreported injury and the hearing officer entered a not guilty disposition on the charge of "out of place".

The thrust of claimant's complaint relates to his initial admission as an inmate at this Facility. At the time of his admission, claimant stated he warned Elmira officials that he was a target for assault by an unauthorized inmate organization gang named "The Bloods". However, claimant conceded that he just said "Bloods" and did not identify any individuals or specific threats at the time of his admission. With respect to this attack, claimant could not identify his attacker and therefore could not confirm that he had actually been assaulted by a member of "The Bloods". Claimant did testify that his silver chain and cross were taken during this incident.

The State's witnesses acknowledged that upon arrival at Elmira, claimant advised that he was having a problem with "The Bloods" and was placed in pending protective custody status based on his statements. Thereafter, the State's witnesses testified they reviewed claimant's request for protective custody, but ultimately determined that protective custody status was not warranted. This review process was described by State witnesses Sergeant Ferguson and Senior Correction Counselor William Bills. Sergeant Ferguson explained that due to limited protective custody capacity, the State requires specific threats and/or identification of individuals such as names, descriptions, cell locations, etc. Senior Correction Counselor William Bills testified that after his investigation he discovered that claimant's prior problems at Sing Sing Correctional Facility were not related to the Bloods or a threat from the Bloods, but rather were related to a specific drug debt that the claimant had incurred while at that facility.

With respect to claimant's initial admission into Elmira, the court is satisfied based upon the evidence presented that the State did not possess any evidence from which it could reasonably foresee that claimant was at risk upon his initial admission. To the contrary, claimant established that he made merely general allegations of a "problem with the Bloods", but was unable to provide any specific information upon admission which would have warranted protective custody status. (Cl Exs. 4, 5 & 6). Additionally, the court notes that claimant never reapplied for protective custody after his initial request was denied. As such, the court finds that the State's denial of protective custody upon claimant's initial admission after due consideration was proper given the limited information supplied to officials at the time.

With respect to this incident which occurred in the laundry corridor, claimant alleges that he was injured due to the State's violation of the standard of care set forth in Sanchez v State of New York, 99 NY2d 247. It is well settled that the State owes a duty of care to safeguard inmates, a duty which includes prevention of attacks from fellow inmates that may be reasonably foreseen. (Id.). Claimant urges this court to conclude this attack was reasonably foreseeable based upon claimant's warning that he was at risk by this gang and based upon the State's general knowledge that such gangs exist within the prison environment.

As correctly pointed out by the State, Sanchez did not create new law but rather clarified that test of foreseeability by stating:
[t]he State owes a duty of care to inmates for foreseeable risks of harm; and that foreseeability is defined not simply by actual notice but by actual or constructive notice - by what the "State knew or had reason to know"..., what the State "is or should be aware" of.... The requisite foreseeability is as to a "risk of harm"...or "injury- producing occurrence"...or "risk of inmate-on-inmate attack".
Finally, we underscore that the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State.

(Sanchez, 99 NY2d at 255, 256 [emphasis in original; citations omitted]).

In this court's view, there is nothing in this record to show that this attack was reasonably foreseeable. Claimant's warnings of a general risk combined with the State's general knowledge of the existence of gangs within its facilities does not equate to the State's actual or constructive notice of a foreseeable risk of harm to this claimant. Moreover, there is nothing in this record to show that the assault on claimant was anything other than a random event of inmate violence by another inmate that appears to have been motivated for the purpose of stealing claimant's silver chain and cross. Additionally, the court is satisfied that the State adequately reviewed claimant's alleged prior institutional problems as reported at the time of his reception at Elmira and found them to relate to drug dealing problems rather than with any type of unauthorized inmate organizations. (Cl Ex. 6). In short, the court does not believe that the State had notice, actual or constructive, that this claimant would be assaulted and consequently did not breach any specific duty of safety or protection owed to him. Stated another way, the court does not believe that this particular incident of attack by an unknown assailant for the purpose of thievery was reasonably foreseeable by the State.

Furthermore, the court finds claimant's allegations that the State should have provided additional officers in the laundry corridor to be without merit. To require the State to provide additional manpower and supervision in this location (the laundry corridor) at a time when no other inmates were traversing the same area would improperly render the State an insurer of inmate safety.

Based upon the foregoing, the court finds that the claimant has not proven by a preponderance of the evidence that the State could have reasonably foreseen this attack based upon what was known at the time. Further, the court agrees with the State's position that Elmira officials undertook appropriate measures to evaluate claimant's vulnerability upon admission and made a considered judgment that protective custody on the facts as explained to them and as investigated by them was not warranted. Finally, the court finds that unremitting supervision of the laundry corridor was not required. Consequently, the court is satisfied that Elmira officials acted reasonably and appropriately in providing claimant with a relative safe prison environment and could not have reasonably foreseen or prevented this particular incident as testified to by claimant at trial.

Accordingly, Claim No. 104500 should be and hereby is DISMISSED.

Any motions upon which the court reserved decision or which remain undecided are hereby denied.


June 22, 2004
Binghamton, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, all quotations are from the court's trial notes.