New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2005-010-035, Claim No. 96824


Inmate on inmate assault not foreseeable.

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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

seeks damages for injuries he sustained on July 12, 1997 during his incarceration in general population on B block at Sing Sing Correctional Facility (Sing Sing), when he was slashed by an unidentified inmate. Claimant contends that defendant is liable for his injuries because, after claimant was first attacked in December 1996 and then placed in Involuntary Protective Custody (IPC), claimant should not have been returned to general population. Claimant maintains that, where the assailant is unknown, defendant's own policy was to keep the victimized inmate in IPC for one year. Defendant argues that its decision to transfer claimant from IPC to general population was discretionary and exercised with due care and therefore should be accorded absolute immunity. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that on December 1, 1996, he was slashed by an unidentified inmate. An investigation was conducted and claimant maintained that he had no enemies and no reason to fear for his safety in general population. Claimant's explanation of the attack was that his assailant must have been mistaken in claimant's identity as a targeted victim. Claimant declined protective custody. After a hearing, it was determined that the circumstances warranted claimant's placement in IPC. Thereafter, according to facility procedure, monthly periodic reviews were conducted to determine whether claimant should remain in protective custody (Ex. 2). On June 26, 1997, while claimant was still housed in IPC, he was involved in a fight with another inmate. The next day on June 27, 1997, the review committee recommended that claimant be transferred from IPC to general population and placed in keeplock on B block. Claimant maintains that he verbally objected to a correction officer regarding this change and also wrote a letter complaining to the Commissioner. The purported letter was not in claimant's file, nor did claimant produce a copy of the letter.
Claimant testified that on July 12, 1997, claimant was standing in the front of his locked cell on B block. He was conversing for 15 minutes with an inmate in the corridor. During the course of the conversation, claimant did not observe any correction officers. Claimant had a mirror hanging on the bars of his cell from which he could view anyone approaching from the right. While he was looking right, claimant felt an arm from the left reach through the bars and slash the left side of his face. Claimant never saw his attacker.
Donald Galgano was employed by the New York State Department of Correctional Services (DOCS) from 1988 to 2003. Galgano, now retired, was a Senior Counselor in 1996 and 1997. As part of his responsibilities, Galgano oversaw other counselors and served on the Protective Custody Review Committee. Galgano testified that the committee comprised members of the executive team, the security department and other counselors, who conducted monthly reviews of inmates in protective custody. The
purpose of any protective custody was to protect an inmate from harm from another inmate. IPC was directed when it was determined to be necessary for an inmate's safety, even if an inmate did not want the protection. As a means of avoiding attacks, inmates were asked to identify enemies or assailants as part of a separatee system aimed at keeping inmates with animosities toward one another in different housing facilities. When an inmate could not, or would not, identify his assailant, the general policy was to house the victimized inmate in IPC so as to avoid having him transferred with an unknown or unidentified enemy. Ordinarily, such inmates would be housed in IPC for one year before being transferred to another housing facility. Despite this general policy, other circumstances might cause an inmate to be released from protective custody in less than a year.
In 1996 and 1997, the Protective Custody Review Committee met every 30 days to assess whether changes in status should be recommended to the facility Superintendent. Before making its recommendations to the superintendent, the committee members considered, inter alia, disciplinary records, sergeants' reports,
and counselors' reports. The review committee forwarded its recommendations on a form, without explanation, to the Superintendent. If the Superintendent was in agreement, then the form would simply be returned. Otherwise, the committee would be contacted by the Superintendent for further discussion.
The evidence established that the IPC review committee met on June 27, 1997 and recommended that
claimant be released from IPC and returned to general population under keeplock status (Ex. 2D). A Misbehavior Report indicated that claimant, while housed in IPC, had been engaged in a fight on June 26, 1997. Galgano testified that this was the type of information that would be relevant to the committee. As Galgano reasoned, if an inmate had a fight while in IPC, he obviously had an enemy in the unit and needed to be moved to be separated from him. While Galgano did not specifically recall why claimant's status had been changed, he testified that the fight was probably the cause of the transfer.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from 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). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The State's duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see Padgett v State of New York, 163 AD2d 914). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually 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]).
Claimant argues that defendant did not follow its own policy of housing an inmate in IPC for one year where the inmate's attacker had not been identified. Notably, claimant had initially rejected Protective Custody and had to be placed in IPC despite his own objections and statements that he had no reason to be fearful in general population. Further, it was determined upon a monthly review by the Protective Custody Review Committee that claimant continue to remain in IPC from December 1996 through June 1997. It was not until such time as claimant was involved in a fight within the IPC unit that it was determined that claimant should be transferred out of IPC and returned to general population under keeplock status. Galgano testified that, despite a general policy of housing an inmate for one year in IPC when the assailant was unknown or unidentified, there were other considerations which impacted the committee's decision to transfer an inmate out of IPC. A fight within the IPC unit would qualify as a consideration for transfer.
The 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). "The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Wilson v State of New York, 303 AD2d 678, 679). There is no reason to find that any of the attacks on claimant were foreseeable given that claimant never identified his attackers nor did claimant have an enemies list. Additionally, claimant stated that he had no reason to be fearful of attack. Thus, there is no basis for finding defendant negligent. Defendant's decision to move claimant was a discretionary act exercised with a reasonable basis and within the particular expertise of defendant. Accordingly, defendant's decision regarding the safety and housing of its inmates is appropriately afforded absolute immunity (see Arteaga v State of New York, 72 NY2d 212).
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


June 10, 2005
White Plains, New York

Judge of the Court of Claims