Robert Anthony Green, Sr., the Claimant herein, alleges in Claim Number 105542
that Defendant's agents negligently failed to protect him from an assault by a
fellow inmate while he was in the custody of the New York State Department of
Correctional Services (hereafter DOCS), incarcerated at Downstate Correctional
Facility (hereafter Downstate). Trial of the matter was held at Sing Sing
Correctional Facility on February 27, 2004.
Claimant testified that on April 19, 2001, while he was boarding at the top
stair rail of a DOCS prisoner transport bus, he was struck in the forehead with
handcuffs by a fellow inmate named Carlos Gonzalez. He indicated that Mr.
Gonzalez was restrained with handcuffs and "a release belt waist chain connected
to the handcuffs and a black box."
Claimant's ambulatory health record [hereafter AHR] for the day confirms that
he was examined by medical personnel after the altercation, and contains the
subjective report that he was "hit with handcuffs on forehead." [Exhibit 8]. A
"slight swelling on the right forehead" is noted.
. He appears to have been treated and released on the day of the
fight, and according to the AHR, next returned on April 25, 2001 to see medical
personnel complaining of headaches. [Id].
prescriptions were submitted in evidence on consent, although there was no
testimony tying in how the prescriptions related to his injury. [Exhibit 7]. A
series of photographs taken contemporaneously in the facility hospital show a
raised, reddish bruise on the right side of Claimant's forehead. [Exhibits 1, 2,
3 and 6]. Other photographs do not show the impacted area. [See
On cross-examination, Claimant conceded that he received a misbehavior report
as a result of this incident, charging him with fighting with Mr. Gonzalez.
[Exhibit A]. He was found guilty of the charge, and the finding was affirmed on
]. When he sought judicial review of the administrative finding,
it was affirmed.
No further witnesses or evidence was submitted on Claimant's direct case.
Correction Officer Edward A. Thomas, who had been assigned to transportation on
April 19, 2001, and was seating the inmates on the bus, also testified. He
observed a fight going on at the top of the stairwell by the front seat between
Claimant, and another inmate. While he did not see how the incident started, he
first became aware of a fight when he heard yelling from the front of the bus.
He then saw the inmates standing at the front of the bus, with inmate "Gonzalez
down . . . partially in the seat with Mr. Green pushing down on him." The
witness gave two direct orders to stop the fighting, but neither participant
complied. Both inmates were issued misbehavior reports by Correction Officer
Thomas. [Exhibit A].
While the State must provide inmates with reasonable protection against
foreseeable risks of attack by other inmates, [
Blake v State of New York
, 259 AD2d 878 (3d Dept 1999); Sebastiano v
State of New York
, 112 AD2d 562 (3d Dept 1985)], the State is not the
insurer of the safety of inmates, and the fact that an assault occurs does not
give rise to the inference of negligence (Sebastiano v State of New York
). In order to establish liability on the State's part, an inmate
claimant must allege and prove one of the following grounds: (1) the victim was
a known risk and the State failed to provide reasonable protection (See
Sebastiano v State of New York
); (2) the State had notice
that the assailant was dangerous and refused to take the proper precautions
[See Littlejohn v State of New York
, 218 AD2d 833 (3d Dept 1995);
Wilson v State of New York
, 36 AD2d 559 (3d Dept 1971)]; or (3) the State
had notice and the opportunity to intervene to protect the inmate victim and
failed to act. Smith v State of New York
, 284 AD2d 741, 728 NYS2d 530 (3d
In terms of the foreseeability element, an inmate claimant must allege and
that the State knew or should have known that there was a risk of harm to the
Claimant that was reasonably foreseeable and inadequately addressed. Sanchez
v State of New York
, 99 NY2d 247, 253 (2002); See also Flaherty v
State of New York
, 296 NY 342, 347 (1947). The Court must look to see if the
actions taken by the State were reasonable under the circumstances. The mere
fact that a correction officer is not present at the precise time and place of
an assault, for example, does not give rise to an inference of negligence
absent a showing that officials had notice - actual or constructive - of a
foreseeable dangerous situation. Colon v State of New York
, 209 AD2d 842
(3d Dept 1994); Padgett v State of New York
, 163 AD2d 914 (4th Dept 1990)
76 NY2d 711 (1990); Huertas v State of New York
, 84 AD2d
650 (3d Dept 1981).
". . . [U]nremitting
supervision. . . " is not required. Colon v State of New York
, at 844.
Sanchez v State of New York
, the Court of Appeals reversed
the Appellate Division - which had affirmed a Court of Claims dismissal on
summary judgment of the Claimant's negligent supervision claim - finding that
there was a triable issue of fact as to the foreseeability of an attack upon
Claimant that was as much a surprise to him as it allegedly was to the
Sanchez v State of New York
was decided, Courts have
interpreted it as a clarification of "traditional" foreseeability concepts.
See e.g. Heyliger v State of New York
, Claim No. 91867, UID
#2003-028-004 (Sise, J., June 12, 2003); See also Fontenot v State of
, Claim No. 98022, UID #2002-013-524 (Patti, J., December 31, 2002);
Deleon v State of New York
, Claim No. 100061, UID #2003-013-504 (Patti,
J., August 4, 2003); Osuna v State of New York
, Claim No. 100555, UID
#2003-032-521 (Hard, J., November 20, 2003).
In this case, there has been no showing that the Claimant was known to be at
risk either generally, or that his attacker was known for violent propensities.
There was no prior notice of any antagonism between Claimant and his assailant,
or any other evidence of motive. There was no record made to establish that the
number of correction officers used to supervise the movement of inmates was
against penological standards of care, or that the methodology used for securing
the inmates in the bus was flawed. The attentiveness of Correction Officer
Thomas was reasonable under the circumstances, and there was no evidence that
this officer was not acting responsibly. Notably, it is the Claimant's burden
to establish his case by a preponderance of the credible evidence, including the
location of the officer or officers - it was unclear whether more than one
correction officer was present - and their sequence of actions, as well as the
efficacy of whatever security or restraint measures were in place. More
generally, the inherent risk of violent activity in a correctional facility
housing dangerous individuals does not mandate imposition of liability for
inmate-on-inmate assaults that are not reasonably foreseeable. From the facts
presented, this altercation came out of nowhere. Claimant has not sustained his
burden of establishing that the State had actual or constructive notice of the
harm that befell him by a preponderance of the credible evidence.
Claim Number 105542 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.