New York State Court of Claims

New York State Court of Claims

SILVA v. THE STATE OF NEW YORK, #2005-009-138, Claim No. 103100


Claimant instituted this claim seeking damages for personal injuries sustained in two separate and distinct inmate-on-inmate assaults which occurred at Auburn Correctional Facility. The Court found that claimant failed to establish his claim of negligent supervision and failure to follow established facility procedures, and therefore found that neither assault was reasonably foreseeable. The claim was dismissed.

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:
Attorney General
BY: Ed J. Thompson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 20, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for personal injuries sustained in two separate inmate-on-inmate assaults which occurred while he was incarcerated at Auburn Correctional Facility. The trial of this claim was bifurcated and this decision pertains solely to the issue of liability.

Claimant testified that the first incident occurred on January 14, 1999, just outside the "industrial area"[1]
of the furniture upholstery shop at Auburn Correctional Facility. At the completion of his work day, claimant had just been released from the work area to return to his cell when a fight ensued between claimant and another inmate in the stairwell. Correction officers intervened, and the inmates were eventually separated. During this altercation, claimant sustained a cut to his neck. According to claimant's testimony, a box-cutter razor was found by one of the correction officers near the stairs after this incident.
Inmate William Mejia was identified as the inmate who was involved in this altercation with claimant. Following this incident, both claimant and inmate Mejia were charged with violating facility rules, and after separate disciplinary hearings, each was found guilty of misconduct. Claimant was sentenced to 60 days of keeplock, which restricted him to his cell except for limited periods of recreation.

The second incident occurred on January 21, 1999, while claimant was still restricted to his keeplock status. That morning
, claimant was admitted to the keeplock recreation area with about four or five other inmates. Claimant testified that the procedures for searching inmates are more stringent for inmates on keeplock status, but on this day correction officers failed to use a wand-type metal detector to search claimant prior to his entry into the recreation area. In support of this contention, claimant testified that he wore his wristwatch in the recreation area on this date, but that on the five prior days, while he was on keeplock, he had been searched and had to remove his wristwatch prior to entering the recreation area.
While in the process of exercising, another inmate walked up to claimant from behind and cut him in the face, necessitating medical treatment.

Correction Officer Mark J. Sullivan was on duty in the keeplock recreation area on the day of the January 21
incident, and actually witnessed this assault against claimant. He testified that he observed inmate Christopher Solis walk up to claimant from behind and cut him in the face. He then observed inmate Solis drop his weapon in the snow. After this incident, Correction Officer Sullivan recovered a box-cutter-type razor, wrapped in electrical tape, in the location where he had observed inmate Solis drop it. Correction Officer Sullivan remarked that inmate Solis made no attempt to conceal his actions, or his identity, while carrying out this assault.
Furthermore, after the first altercation with inmate Mejia, claimant was offered protective custody status, but declined as he did not believe he was at risk from any further assault. Claimant conceded that he had been involved in other altercations at other correctional facilities during his period of incarceration. Claimant testified that he did not have any problems with either inmate Mejia or inmate Solis prior to these assaults.

Defendant offered into evidence claimant's interview form completed upon his reception at Auburn Correctional Facility, in which claimant stated, in effect, that he had no known enemies at the facility (see defendant's Exhibit A).

It is claimant's contention that the State failed to provide adequate supervision of its inmates, thus permitting these assaults to occur on two separate occasions, and that the State was negligent by failing to detect the weapons utilized in each assault. Furthermore, with regard to the second incident, claimant apparently also alleges that the defendant violated facility policy by permitting inmates who were restricted to keeplock status to enter the recreation yard without being adequately searched.

It is well settled that the State is required to use reasonable care to protect inmates of its correctional facilities from the foreseeable risk of harm (see
Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 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). The duty to protect inmates from the risk of attack by other prisoners, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The scope of the defendant's duty of care is to exercise reasonable care to prevent attacks which are reasonably foreseeable (Sanchez v State of New York, supra). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State 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, supra at 254 [emphasis in original]). Accordingly, "[t]he 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, supra at 256).
In this particular matter, claimant presented no evidence that he was known to be at risk of assault or attack prior to either of the two incidents. As set forth previously herein, upon his arrival at Auburn Correctional Facility in December, 1998, claimant had indicated that he had no known enemies and no need for protection. Additionally, claimant testified at trial that he did not have any problems with either inmate Mejia or inmate Solis prior to the separate altercations involving these inmates. Claimant even testified that after the incident involving inmate Mejia, he refused protective custody, providing the State with no basis whatsoever to foresee that claimant was potentially subject to further attack.

Furthermore, there was no evidence to establish that either inmate Mejia or inmate Solis were particularly prone to perpetrating an assault prior to their respective attacks upon claimant.

In sum, there was no credible evidence presented at trial to establish that either assault against claimant was reasonably foreseeable, or that the State failed to exercise adequate care to prevent either assault.

As mentioned above, claimant apparently also contends that the State failed to adequately search his assailants, and that the State's failure to detect the weapons concealed by both inmates was a proximate cause of the injuries suffered by him in these assaults.

With respect to the incident which occurred on January 14, 1999 outside the industrial upholstery shop, Correction Officer Kevin Baker testified on behalf of the State. He testified that he was on duty at this location at the time of the incident, and that pursuant to established procedures, all inmates were frisked as they left the shop that day. Claimant presented no evidence that established procedures were not followed, or that such procedures were unreasonable, with regard to this incident.

With regard to the second incident, however, claimant testified that correction officers failed to follow established facility procedures in searching inmates restricted to keeplock status. As set forth above, claimant testified that correction officers failed to use a metal detector to search claimant prior to his entry into the recreation area, and that, by inference, they failed to use a metal detector to search all other inmates. According to claimant, this breach of proper protocol provided his assailant with the opportunity to smuggle a knife into the recreation area which he then used against claimant.

As mentioned above, Correction Officer Sullivan was on duty in the keeplock recreation area on that date and witnessed the attack against claimant. He testified that there were numerous wand metal detectors available to the guards on that date, and that they were in proper operating condition. He also testified that the standard operating procedures at the facility required the use of these metal detectors to search all inmates prior to their entry into the keeplock recreation yard. He testified that these procedures were implemented as much to protect the correction officers working in the area as to protect the inmates.

Furthermore, Correction Officer Sullivan testified that it is a common practice in correctional facilities for inmates to attempt to avoid wand detection of weapons by wrapping a knife in electrical tape, and concealing this weapon inside a body cavity. He admitted that while an assault of this nature in the keeplock recreation area is rare, they have occurred on occasion in situations when an inmate has somehow been able to avoid detection of his weapon.

Based on the testimony presented, the Court does not find that any violation of facility procedures on the date of this incident was established. Even if the Court were to accept claimant's testimony that he was not searched prior to his entry into the keeplock recreation yard, claimant has presented absolutely no evidence to suggest that the other inmates in the yard, and in particular, claimant's assailant, were not properly searched on that day. The mere fact that claimant's assailant successfully smuggled a prohibited weapon into the keeplock recreation yard is not sufficient, in and of itself, to cast liability against the State.

Accordingly, based upon the foregoing, the Court finds that claimant has failed to establish by a preponderance of the credible evidence that the injuries suffered by him in either incident were the result of defendant's negligent supervision or failure to abide by established and reasonable facility procedures. There was no evidence presented that either assault was reasonably foreseeable.

Therefore, this claim must be, and hereby is, dismissed.

All motions not heretofore ruled upon are hereby denied.

June 20, 2005
Syracuse, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.