New York State Court of Claims

New York State Court of Claims

SUTHERLAND v. THE STATE OF NEW YORK , #2004-030-026, Claim No. 102524


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
August 23, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Patrick Sutherland, the Claimant herein, alleges in Claim number 102524 that Defendant's agents negligently failed to protect him from an attack by fellow inmates while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven).[1]
Trial of the matter was held at Sing Sing Correctional Facility on July 29, 2004.
Claimant testified that on May 28, 1998 while he was returning to his cell he was "slashed across the right side of . . . [his] face."[2]
A report of inmate injury form, and some limited medical records confirm the fact of the assault. [Exhibit 3]. He received immediate medical assistance. While he was awaiting an ambulance to an "outside hospital", he alleges that a "man with dark hair and a mustache" who he did not recognize at the time started asking him questions about his assailant. The man identified himself as the deputy superintendent of security - Claimant later learned his name was Schneider - and as they spoke he appeared to be squeezing the IV tube connected to Claimant as if trying to shut it off. Claimant indicated he didn't want to speak, but wanted to get to the hospital. Claimant was "finally allowed" to get in the ambulance where he "passed out and was later revived." He testified that he "lost four pints of blood and received 100 stitches."
After treatment in the "outside hospital", Claimant returned to the Green Haven facility hospital on the same day. Within the next few days, "a number of security personnel tried to interview . . . [him]." One day, the deputy superintendent came in with a captain and asked Claimant if he remembered speaking with the deputy superintendent on the day Claimant was cut,
and threatening to kill the identified assailant. Claimant responded that he never told the deputy superintendent anything, but rather refused to identify his assailant or discuss the matter further.
Thereafter, Claimant was served with "involuntary protective custody [hereafter IPC] papers" based upon his "refusal to cooperate," and Claimant proclaimed to the nurse that he was "going on a hunger strike." The same day he was served with the IPC papers, Deputy Superintendent Schneider, and the same captain and sergeant, appeared. They told him they had "gotten" the inmate who assaulted Claimant, and asked Claimant if he knew the inmate. Claimant said that the individual they named was his friend, and had not been his assailant. Indeed, Claimant indicated that he would be a witness for Joe Perelli - the inmate he indicated was not his assailant but rather a friend - at Mr. Perelli's disciplinary hearing. Claimant also indicated that he did not want protective custody, that he told authorities that the only reason they were forcing him into protective custody was that he would not cooperate with the investigation or with the security staff, and that he wanted to either leave the facility or go back to general population; and that "he had no problem."

Claimant was then advised that for his own safety and that of his fellow inmates he could not be allowed back in population since the assailant remained unidentified. Claimant continued to refuse protective custody, and told authorities he was going on a hunger strike.

At the protective custody hearing [
See Exhibit 1] - held in Claimant's hospital room - he was advised that Mr. Perelli had admitted to assaulting Claimant [Exhibit 2] and that as a result Claimant could be returned to population while Mr. Perelli was confined. "After the stitches were taken out of . . . [his] face, . . . [Claimant] was sent back to population."
Claimant testified that "over the next several months the deputy superintendent" engaged in a pattern of harassment by having Claimant's cell searched, moving him to other blocks, and preventing him from getting a job or serving on the inmate liaison committee. Claimant alleges that he was told that the "harassment would stop if . . . [he] became an informant."

On September 2, 1998 Claimant was returning to B-block from a visit when he was stopped by the "‘dep' of security", who began to question Claimant about a "knife fight out in the yard." When Claimant responded that he knew nothing about it, and was just returning from a visit, the deputy superintendent indicated that Claimant was lying, and that one of the individuals in the fight was a friend of Claimant's. The deputy superintendent wanted Claimant to get information about the fight, or he "wouldn't be getting anymore medical treatment for . . . [his broken] finger." Apparently, on August 31, 1998 Claimant had "a pin taken out of . . . [the] ring finger" of his right hand. Claimant refused to assist the deputy superintendent. There was a prison "lockdown" on September 2, 1998.

On September 3, 1998 the prison was opened up again. Claimant was told "on the go around" that day that he was "locked up for investigation." About fifteen minutes later officers came to the cell and escorted him in handcuffs to the Special Housing Unit. He was given an "administrative segregation recommendation ticket" on September 6, 1998. An "inmate assistant came to see him on September 8 or 9, 1998", and Claimant asked the assistant to give him all information on incidents he "had influence on," including "the names of the people involved." Instead, Claimant was "packed up" on September 10, 1998 and "sent to the furthest ‘max' prison in the State, and never got a hearing in Green Haven or in Attica, where . . . [he] was put in regular population."

Claimant reiterated that when he was originally assaulted there was no officer at his assigned post, and that this was the point of his claim. Additionally, he asserted that he should have been notified if there was any information known to the authorities that Claimant was in danger.

He stated that he wanted "plastic surgery," has "a hundred stitches in . . . [his] face", and a permanent scar, he had an "eye drooping for about three years", suffered from numbness, and had "a hole in . . . [his] head."

On cross-examination, Claimant conceded that he was familiar with the "enemies list" procedure, but had not submitted any names to it, because he didn't know he had a problem. He said, "if I knew I had a problem, I would have taken care of it."

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, supra). 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, supra); (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 Dept 2001). More broadly, in order to establish liability on the State's part, an inmate claimant must allege and prove 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 mere fact that a correction officer is not present at the precise time and place of an assault does not give rise to an inference of negligence absent a showing that officials had notice 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), lv denied 76 NY2d 711 (1990).
Additionally, the court must consider whether there was information which would trigger any heightened awareness of a risk to this inmate - any "suspicious" behavior such as an individual leaving an assigned work post, or stuffing magazines in his shirt to avoid injury - to alert correction personnel of a specific danger brewing.
See e.g. Huertas v State of New York, 84 AD2d 650 (3d Dept 1981).
Even an inmate's request for protective custody may not necessarily trigger a specific duty to protect, if the inmate does ". . . not alert the interviewing . . . [correction officers] of his past problems, a specific hazard or a particular urgency to his situation."
Roudette v State of New York, 224 AD2d 808, 809 (3d Dept 1996).
Additionally, the fact that officers may not have been present at the precise time and place of the assault, does not give rise to liability.
Colon v State of New York, supra; Padgett v State of New York, supra. ". . . [U]nremitting supervision . . . " is not required. Colon v State of New York, supra, at 844. When the assault occurred, it was dealt with in a comprehensive and appropriate fashion, and immediate medical care was given.
Based upon this record, Claimant has failed to establish that the State failed to provide him with reasonable protection against a foreseeable risk of harm. There was no indication that Claimant had advised authorities of any known enemies, that the State was otherwise aware of Claimant being a potential target, or that the assailant was known for violent propensities. Additionally, the balance of Claimant's testimony largely concerned his perception that he was being harassed by an individual member of correctional services after the May 1998 assault, but no cause of action is made out by the facts alleged.

Accordingly, Defendant's motion to dismiss, based upon Claimant's failure to establish a
prima facie case, reserved on at the time of trial, is hereby granted, and Claim Number 102524 is dismissed in its entirety.
Let Judgment be entered accordingly.

August 23, 2004
White Plains, New York

Judge of the Court of Claims

[1] The cause of action sounding in medical malpractice stemming from an incident dated August 1, 1998 was previously dismissed by Judge Waldon. See Sutherland v State of New York, Claim Number 102524, Motion No. M-65933 (Waldon, J., January 15, 2004).
[2] All quotations are to trial notes or audiotapes unless otherwise indicated.