New York State Court of Claims

New York State Court of Claims

SKINNER v. THE STATE OF NEW YORK, #2005-015-509, Claim No. 106707


After trial court found that attack upon claimant by fellow inmates was not reasonably foreseeable and State was not liable for claimant's injuries.

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:
Robert Skinner, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on March 9, 2001 at Great Meadow Correctional Facility ( Great Meadow) in Comstock, New York when claimant was attacked by two fellow inmates and cut on the face by a handmade weapon containing a razor blade. The claim alleges that the State was negligent in failing to take appropriate action to protect claimant from his attackers.

The trial of this matter took place at Great Meadow on November 8, 2004.

Claimant testified that in 1998-1999 while confined at Attica Correctional Facility he became a confidential informant regarding gang activity. He alleges that he was marked for a hit by members of the Bloods gang as a result of his cooperation with the administration. Claimant requested and received a transfer from Attica to Great Meadow.

At trial claimant testified that he feared for his safety and that he wrote to Deputy Superintendent for Security at Great Meadow (P. Van Guidler) on February 4 and March 7, 2001 requesting protective custody (
see Exhibit 3)[1] or alternate placement in the "intermediate care program" (ICP) (see Exhibit 4).
On cross-examination claimant admitted that after a conversation with Sergeant Vedder he signed a statement dated 2/19/01 containing the following language: "I do not need or request Protective Custody at this time. If the need arises in the future, I will contact the supervisor immediately" (
see defendant's Exhibit A). He further admitted to signing an identical statement on March 31, 2000 after a prior request, investigation and discussion with Sergeant Vedder. Following the incident giving rise to this claim claimant was placed in involuntary protective custody.
On redirect examination claimant referred to Exhibit 6 as refuting the Attorney General's suggestion at trial that claimant failed to cooperate with facility personnel following the March 9, 2001 attack by refusing to identify his attackers. Exhibit 6, an Incident Report related to the March 9, 2001 attack, indicates that claimant identified his assailants from a photo array as inmates Moore and Sanchez.

After entertaining objections from both parties the Court admitted in evidence claimant's exhibits 3, 4, 6 and 7. Claimant asserted that prior to the March 9, 2001 attack he had informed his therapist and the "Dep of Security" that he anticipated problems with the Bloods but admitted he had no proof of any notice to DOCS personnel regarding an impending attack by the Bloods.

On its direct case the defendant called Sergeant T. L. Vedder who testified that he has been employed by DOCS for more than 22 years and in March 2001 was assigned to supervise the mental health unit at Great Meadow. The witness identified defendant's Exhibit E as a letter [
sic] written on August 30, 2000 to then-Captain VanGuilder regarding the witness's interview of the claimant which VanGuilder had directed following his receipt of one of claimant's requests for protective custody.
Sergeant Vedder explained the process for obtaining protective custody at Great Meadow stating that to qualify for placement an inmate must provide names, dates and information regarding specific threats to the inmate's safety. He alleged that claimant was uncooperative and failed to provide any specific information. Vedder testified that as stated in the August 30, 2000 memo he concluded from the interview that claimant was attempting to manipulate the system to avoid transfer back into the general population.

The witness identified Exhibit F as claimant's institutional enemies list and noted that none of claimant's named enemies were housed at Great Meadow prior to the March 9, 2001 attack. Exhibit C was identified as an Involuntary Protective Custody Recommendation executed at Great Meadow on the date of the attack giving rise to the claim. The form indicates that at the time of its completion claimant could not identify his attacker(s). The Court received defendant's Exhibits C, E and F in evidence.

On cross-examination by the claimant Sergeant Vedder acknowledged that during the interview giving rise to the August 30, 2000 memorandum claimant mentioned that the Bloods were after him but could not recall whether claimant advised him of a purported "worldwide hit" having been authorized as a result of claimant's activities at Attica. The witness explained the difference between inmate-requested protective custody and facility-ordered involuntary protective custody. He reiterated that facility policy requires an inmate to identify any inmate who threatens him in order to receive protective custody and the claimant was either unable or unwilling to provide such information. Sergeant Vedder stated in response to claimant's question that since he did not investigate the March 9, 2001 incident he does not know if claimant's attackers were, in fact, Bloods.

The Court granted claimant's belated request to call Deputy Superintendent of Security Patrick VanGuilder as a witness. Upon being examined by claimant the witness explained the facility's protective custody process which includes a written request by the inmate and the review and recommendation of a committee to the superintendent. Claimant asked the witness if involuntary protective custody would be appropriate in the case of an inmate who had signed a waiver of protective custody but was known to be a confidential informant and who received a threat. VanGuilder responded that it depended on the nature and circumstances of the threat. The witness denied any recollection of claimant advising him that he had been a confidential informant for Deputy Superintendent Conway at Attica.

On cross-examination the witness identified Exhibits D and I, the latter being a letter written by claimant to the facility chaplain (Rev. Caron) on February 18, 2001. Upon his receipt of the letter from Rev. Caron, Deputy Superintendent VanGuilder instructed Sgt. Vedder to investigate claimant's request. At the conclusion of the investigation claimant signed a waiver of protective custody (Exhibit A) dated 2/19/01, three weeks prior to the attack.

Deputy Superintendent VanGuilder denied ever having seen claimant's Exhibit 4 dated 3/7/01 and stated that if he had seen it he would have instructed one of his sergeants to investigate it as he had done in the past. The witness did not recall claimant advising him that he had been a confidential informant at Attica or that he was concerned about retaliation from the Bloods.

While the State must afford inmates reasonable protection against foreseeable risks of attack by other inmates (
Blake v State of New York, 259 AD2d 878; Sebastiano v State of New York, 112 AD2d 562) the State is not an insurer of the safety of inmates and the simple fact that an assault occurs does not give rise to an inference of negligence (Sebastiano v State of New York, supra).
To establish liability against the State in the context of an inmate-on-inmate assault it has long been held that the claimant must allege and prove: (1) the victim was a known risk and the State failed to provide him or her 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; Wilson v State of New York, 36 AD2d 559); or (3) the State had both notice and the opportunity to intervene but failed to act (see Smith v State of New York, 284 AD2d 741; Huertas v State of New York, 84 AD2d 650; see also LaCourt v State of New York, 2002 WL 31415413 [N.Y. Ct. Cl. July 25, 2002]). The aforementioned grounds were reexamined by the Court of Appeals in Sanchez v State of New York, 99 NY2d 247 where the Court took issue with the Appellate Division Third Department's "requirement of specific knowledge for foreseeability". The Court of Appeals held that, in addition to actual notice, constructive notice derived from the State's "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" may also act to render an inmate assault foreseeable.
Sanchez the Court of Appeals expanded the test of foreseeability in inmate assault cases to clearly encompass circumstances which should reasonably be perceived as well as those actually known to the State. Unlike the claimant in Sanchez, however, the instant claimant has not demonstrated any facts at trial which support a finding that the State had either actual or constructive notice of an impending attack upon the claimant by inmates Moore or Sanchez. The record demonstrates that claimant's prior requests for protective custody were promptly investigated and that on 3/31/00 and 2/19/01 he waived in writing the protective custody he had previously requested. The Court credits the testimony of Deputy Superintendent VanGuilder that he never received the claimant's 3/7/01 letter requesting ICP placement or protective custody.
Based upon the evidence presented at trial, the Court finds the March 9, 2001 attack upon the claimant by inmates Moore or Sanchez (who may or may not have been Bloods) was not reasonably foreseeable and the State is therefore not liable for claimant's injury. The claim is dismissed.

Let judgment be entered accordingly.

February 14, 2005
Saratoga Springs, New York

Judge of the Court of Claims

[1]Claimant's Exhibits 3 and 7 appear to be an original and carbon copy of a request dated 2/4/01.