New York State Court of Claims

New York State Court of Claims

FORDHAM v. THE STATE OF NEW YORK, #2005-031-528, Claim No. 108346


Claimant demonstrated that the State was negligent relating to an assault upon him by another inmate. Claimant awarded $350.00

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:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 24, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Arnold Fordham, filed claim number 108346 on October 1, 2003 against the State of New York alleging both that Defendant failed to protect him from an assault by another inmate on July 8, 2003 at Five Points Correctional Facility ("Five Points") and that he was illegally confined following that incident. I conducted trial on this matter on December 13, 2004 at Auburn Correctional Facility.

At the conclusion of Claimant's proof, the Defendant made a motion to dismiss the illegal confinement portion of the claim because the Claimant did not demonstrate a prima facie cause of action. I granted Defendant's motion.

With regard to the assault cause of action, Claimant alleges that: 1) he was assaulted by a known enemy and suffered back injuries requiring medical attention and physical therapy; 2) that the State of New York had actual knowledge of the threat his cellmate posed and negligently failed to protect him, and; 3) that his cellmate was mentally disturbed and regularly demonstrated abnormal and threatening behavior.

At approximately 11:15 p.m. on July 8, 2003, Claimant alleges that his cellmate, Inmate Dudek, asked for a cigarette. Claimant testified that, upon his refusal, Inmate Dudek grabbed him from his top bunk and threw him into the sink and toilet bowl. Claimant admitted that a fight ensued; he used a pen to stab Inmate Dudek, who is significantly larger than he is, in order to fend off his assailant. Inmate Dudek used his cane as weapon to hit Claimant repeatedly on his back.

Correction Officer Joseph Kampnich, employed at Five Points at the time of the incident, testified that he heard shouting coming from Claimant's cell. Officer Kampnich testified, and documented on the inmate misbehavior report (Exhibit A), that Claimant insisted that he open the hatch to remove Inmate Dudek's cane. Officer Kampnich immediately noticed that Inmate Dudek was bleeding from his face. Both inmates received medical attention. Claimant's injury report for this incident indicates that he was treated for superficial injuries to the face, side head, and elbow, consistent with the fight. There is no mention on the incident report of back injuries. The form indicates that Claimant was not admitted to the facility infirmary and his injuries did not require hospitalization (Exhibit B). According to the transcript of the Tier III hearing, however, pictures were taken of his lower back and used at the hearing (Exhibit 2)

Claimant allegedly reported his cellmate's disturbing behavior to Sergeant Willey, the appropriate area supervisor. Claimant told Sergeant Willey that he feared for his life and requested a cell change. The conversation occurred during the course of an investigation that Sergeant Willey was conducting of an alleged assault on a nurse by Claimant's cellmate, Inmate Dudek. Claimant also claims that he discussed his concerns about Inmate Dudek with multiple correction officers on the block, including Officer Drayse, who testified with Sergeant Willey at Claimant's Tier III hearing on July 15, 2003. The transcript from the hearing (Exhibit 2) revealed that Officer Drayse did know of Claimant's concerns approximately two months before the incident. Claimant allegedly informed these officers that he feared for his life, citing increasingly threatening and erratic behavior, and requested a cell change. There is no documentation of Claimant's alleged communications and no records pertaining to the request of a cell change.

Officer Kampnich, who generally works the overnight shift, did not receive any complaints from Claimant, but testified that he receives requests from inmates for cell changes three to four times a week. Officer Kampnich stated that he can generally tell whether the requests are serious or not, and the complaints go on to the supervising Sergeant if they are deemed serious by the correction officer.

Claimant filed a grievance with the facility for failing to remove him from the cell with Inmate Dudek after the incident. The Superintendent denied the grievance, citing that Claimant said that he "had not been implicitly threatened by Dudek and that (Claimant was) waiting for Sergeant Willey to return from vacation in order to get moved when the incident occurred." With regard to Claimant's allegation that Inmate Dudek was, or should have been, an Office of Mental Health level one inmate (and, therefore, ineligible for double cell placement) because of his mental disturbance, the Superintendent wrote that "Inmate Dudek was not and is not an OMH level one and was eligible to double cell" (Exhibit 1).

The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (
Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609).
In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and had an opportunity to intervene in a way that would have prevented the assault, but failed to do so (
Huertas v State of New York, 84 AD2d 650). In Sanchez v State of New York (99 NY2d 247), the Court of Appeals explained that the State can be liable if the assault upon an inmate was reasonably foreseeable and the State failed to take reasonable steps to prevent the assault.
I find that Defendant did have notice of the animosity between Claimant and Inmate Dudek and that Inmate Dudek had been assaultive prior to his attack upon Claimant. Defendant had a duty to take reasonable precautions to protect Claimant from this assault and failed to fulfill this duty. As stated by the Court of Appeals in
Sanchez v State of New York (99 NY2d at 252), "Regardless of the status of the plaintiff, the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived [citation omitted]." I find that the July 8, 2003 assault upon Claimant by Inmate Dudek was foreseeable and could have easily been avoided by insuring that Claimant and Inmate Dudek were separated. Fortunately, however, Claimant's injuries were minor and, from the record and testimony given, I find that Claimant suffered relatively superficial injuries. For this reason, I find that Claimant is entitled to an award in the amount of $350.00.
To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).


March 24, 2005
Rochester, New York

Judge of the Court of Claims