Edward Van Steenburg, the Claimant herein, alleges in Claim Number 102771 that
Defendant's agents failed to protect him from an assault by a fellow inmate
while he was incarcerated at Green Haven Correctional Facility (hereafter Green
Haven). Trial of the matter was held at Sing Sing Correctional Facility on
August 20, 2004.
Claimant testified that in 1996 he was at Shawangunk Correctional Facility
(hereafter Shawangunk) when he was assaulted by an individual named Gonzalez in
the recreation area of the housing unit, placed in involuntary protective
custody (hereafter IPC), and then transferred to another facility in the
"interest of security."
He indicated that the assault had occurred because fellow inmates were hostile
to him because of certain memoranda he had relayed to the security at the
After being moved to various facilities, in 1999 he was placed at Green Haven
in the same housing unit as inmate Carbone, who he recognized - although not by
name -as an inmate from Shawangunk who had verbally threatened him in 1996. On
July 12, 1999 he was assaulted by inmate Carbone in the recreational area of his
housing unit at Green Haven with a "razor type" weapon. A report of inmate
injury, an unusual incident report and medical records substantiate the fact of
the assault and the resulting injuries. [Exhibit 2]. After treatment at the
facility hospital he was taken for treatment to St. Francis Hospital. When he
returned to Green Haven, he was again in protective custody after identifying
Inmate Carbone, briefly spent time in general population at his request, and
then was transferred to Comstock Correctional Facility.
In terms of notice, Claimant testified that on July 5, 1999, although he did
not know his name except by the nicknames of "Wiz" and "Wizard", he wrote to the
A-Block Sergeant at Green Haven saying that he recognized an inmate who was
supposed to be on his known enemies list since the assault at Shawangunk.
On cross-examination he conceded that at the 1996 IPC hearing at Shawangunk, he
had not known his assailant's or inmate Carbone's name, nor did he subsequently
learn it at Shawangunk. He first learned of his name when a counselor at Green
Haven helped him place names to photographs he had identified at the IPC
hearing. He did not otherwise try to ascertain the identity of Carbone.
He conceded that while at Green Haven, prior to the assault, he had observed
Carbone "four to five times", though he never had conversation with him; nor
did Carbone say anything to Claimant or touch Claimant. He admitted that in the
letter he wrote to the sergeant he did not provide a physical description of
"Wiz", nor did he specifically indicate where the inmate was housed. He conceded
that the letter was not addressed to any person in particular, that the only
information he communicated was that he had been assaulted in 1995 or 1996 at
Shawangunk, and that "Wiz" or "Wizard" should be on his enemy list. He did not
ask to be placed in protective custody, nor did he express any fear for his
safety. Claimant testified that he placed the letter in the facility mailbox in
a sealed enveloped addressed to the "A-Block Sergeant, Green Haven, C.F." Other
than talking to the officers about his concern - who advised that "when a
sergeant is available one will talk to you" - Claimant did not follow up on his
letter. He had written the letter because officers had not acted on prior verbal
requests. After writing the letter, during the next seven (7) days, he was
still confined to his cell because he was in "reception status," and would be
released only to go to meals and for recreation.
He indicated that he "believed" that he had an enemies list when he arrived at
Green Haven in 1999, but was not familiar with the record keeping practices of
the State, but assumed that since he had been in IPC before and had testified
against other inmates before that there "should have been some kind of a list
maintained." He'd identified inmate Gonzalez by photograph as the person who
had assaulted him at Shawangunk in 1996. Although others had been identified by
photographs at the IPC hearing at Shawangunk, including Carbone, no one was
known by name when he arrived at Green Haven except his actual assailant,
Claimant admitted that as "best he could recall" in 1996 at Shawangunk, Carbone
spoke to Claimant near Carbone's cell. Carbone appeared to have a copy of the
document Claimant had prepared relative to his complaints sent to "security" at
the prison - "how . . . [Carbone] ended up with it I haven't a clue" - "which
led to . . . [Carbone] making threats about getting off the housing unit" or
else Claimant would suffer physical harm, and called him a "snitch" or a "rat."
The threats were a "continuing thing." Claimant asserted that the "threats"
occurred before and after the actual assault at Shawangunk. Although inmate
Gonzalez was not the only inmate in the area at the time, "as far as . . .
[Claimant] knew" he was the only one who had physical contact with the Claimant.
Inmate Carbone was not in the recreation area at the time, as he was "locked in"
to his cell. Claimant did not know whether Carbone was ever disciplined for
making the alleged threats. Claimant alleged that he had no access to his own
separatee list for security reasons.
Documents provided by Defendant pursuant to prior order of the Court were
admitted in evidence and reviewed [
Exhibit 3], although without explanatory testimony they are of
limited utility. The documents include what appears to be current separatee
information for Claimant listing inmates Gonzalez and Carbone on a computer
printout; and a computer printout of inmate Carbone's disciplinary history,
setting forth only the dates of incidents, charges, hearings and dispositions,
but without any detail as to the incidents or participants. [Id].
although there is an indication that inmate Carbone was at Shawangunk in 1996,
there is no indication that he was involved in Claimant's assault by Gonzalez
there, or otherwise involved with Claimant.
No other witnesses testified.
As an initial matter, the Court reserved decision on the admissibility of two
sets of documents offered in evidence by Claimant and Defendant respectively, to
consider the objections made concerning the certifications. [Exhibits 1 and A
Claimant offered, collectively, three sets of documents that each contains an
affidavit purporting to certify the documents attached. He testified that these
had been received pursuant to Freedom of Information Law (hereafter
requests, but did not include the FOIL requests made or any transmittal of the
responses beyond the affidavits attached to these documents that are dated,
respectively, March 11, 2004, February 24, 2004, and March 31, 2004. [Exhibit 1
for Identification]. The affidavits contain the same attestation language for
all three sets of documents as follows: "I, Carol Hillman, being duly sworn,
depose and say: I am a Counselor at the Elmira Correctional Facility, and
further state that the Certified Copy of the . . . [document list] attached
hereto is a true and accurate copy of the original record of: Edward Van
Steenburg, DIN# 93A6583. That I have compared the foregoing and attached copy
with the said original now on file and/or generated from the Department of
Corrections Computer System in my office and it thereof contains a true and
correct transcript and copy of said original and/or computer generated records
as of this date, kept in the normal course of business at the Elmira
Correctional Facility . . . " Ms. Hillman's notarized signature with the title
of "Counselor" follows.
The State offered a two page computer printout document, attached to a
certification that reads as follows: "I, Amy J. Mahar, being employed by the New
York State Department of Correctional Services in the position of Senior
Attorney, have reviewed the attached documents and hereby state and certify that
they are the true and exact copy of the separatee information between Edward
Vansteenburg, #93-A-6583, and Chris Carbone, #88-A-1637, which are maintained in
the regular course of business of the Department of Correctional Services."
Exhibit A for Identification].
Without delving at length into the differences between the various kinds of
documents attached by both parties - which include a memorandum from Claimant to
the "A-Block Sergeant" dated July 5, 1999, FAX transmissions from the Attorney
General's Office, an affidavit by the same Correction Counselor, Carol Hillman,
records of an Involuntary Protective Custody hearing after the 1996 assault,
handwritten memoranda from Claimant to correction officers ostensibly written in
1996, correspondence from Claimant to the Superintendent at Great Meadow
Correctional Facility dated February 22, 2000, and computer printouts
purportedly showing Claimant's separatee history - the certifications are
inadequate with respect to both sets of evidence and do not operate to lay the
foundation for the admission of these documents.
Civil Practice Law and Rules §§4520 and 4540.
Neither certification adequately establishes that the affiant is either
authorized to perform such comparisons, or that indeed she is the custodian of
such records. Although generally an attorney's certification that he has
compared a copy of a paper with its original and found it to be a "true and
complete copy" may suffice in terms of assuring the authenticity of a copy
vis-à-vis its original [
Civil Practice Law and Rules §2105], the certification alone
does not allow admission of a so-called business record absent some foundation,
either in the form of testimony, or in the form of an affidavit containing the
appropriate language. Accordingly, both objections are sustained, and neither
Exhibit will be admitted in evidence.
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
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
NY2d 247, 253 (2002); See also Flaherty v State of New York
NY 342, 347 (1947). ". . . [U]nremitting supervision . . ." is not required.
Colon v State of New York
, 209 AD2d 842,
844 (3d Dept
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
In this case, there has been no showing that the Claimant's assault was
reasonably foreseeable and inadequately addressed under the circumstances.
Claimant was not known to be at risk from this assailant, nor was his attacker
known for violent propensities. Certainly, prior to Claimant's arrival at Green
Haven in 1999 he suffered an assault three years earlier at the hands of one
known inmate: Gonzalez. As a consequence, Claimant and inmate Gonzalez had been
With respect to any other hostile inmates remaining from the Shawangunk
altercation, however, there was no identification made in sufficient time to
isolate the danger. Indeed, Claimant conceded that he only knew that the
individual he now recognized from Shawangunk as being someone who verbally
threatened him in the past - but did not participate in the 1996 assault - had a
nickname of "Wiz." He did not describe him, did not say what he had done in the
past, nor did he narrow down the time of the Shawangunk assault to a specific
year, in that he stated the assault occurred in 1995 or 1996. Other than this,
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 procedure - or lack of procedure
- involved in responding to Claimant's alleged verbal and then written request
to speak to an officer is against penological standards of care. As a practical
matter, Claimant appears to have been largely confined to his cell prior to the
assault, while the facility - as Claimant himself conceded - determined his
placement as a new arrival. 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. When the assault occurred, it was dealt with in a
comprehensive and appropriate fashion, and immediate medical care was
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
Claim Number 102771 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.