New York State Court of Claims

New York State Court of Claims

COLON v. THE STATE OF NEW YORK, #2006-029-550, Claim No. 102180


Prisoner; assault with weapon, not foreseeable. No liability found, claim 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:
Eskin & Eskin, P.C.By: David J. Eskin, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim alleges that on August 27, 1998, while incarcerated in the Special Housing Unit (hereinafter SHU) at Green Haven Correctional Facility (hereinafter Green Haven), claimant was attacked by a fellow inmate. Claimant seeks to recover damages based upon the alleged negligence of the defendant in failing to protect him from the attack. The trial of this matter was held on December 1, 2005.
Claimant testified that on the morning of August 27, 1998 he requested to go to the SHU recreation yard. He stated that he was escorted from his cell to the frisk area where a correction officer (hereinafter C.O.) performed a pat-frisk and used a hand-held metal detector to scan him. He then entered the yard and found two other inmates
already present. Mr. Colon testified that while speaking to Hernandez he saw his assailant approach him in an aggressive manner. He fell backwards to the ground and defended himself by kicking at his attacker and throwing gravel in his face. He said that a C.O. outside the yard told them to stop fighting and directed claimant to exit the yard. Claimant responded that he was not leaving the yard and then attacked Jenkins. After a few minutes, several C.O.s arrived and escorted him to the medical unit. He was subsequently taken to a hospital where he received three or four stitches to close a cut in his forehead.
Mr. Colon said Jenkins slashed him approximately eight times, but he never saw a weapon. Claimant stated that he did not receive a misbehavior report nor was any disciplinary action taken against him as a result of this incident.
On cross-examination claimant acknowledged at least six fistfights with other inmates. He also stated that he had never argued with Jenkins prior to the attack.
As witnesses, claimant called five C.O.s
who worked at Green Haven in SHU in August 1998 and were familiar with claimant. Several of the C.O.s testified that claimant was not a “problem” inmate until he did not get his way, at which time he became difficult. For example, claimant believed there should be a Hispanic porter on SHU and there was none. Sgt. Tierney and C.O. Kealty both stated that it was common knowledge that claimant had threatened to throw feces at a porter unless a Hispanic inmate was assigned to that job.
The evidence at trial established that all inmates were pat-frisked and scanned with a metal detector prior to entering the yard. The testimony also established that a piece of metal was found in the yard following the incident.
During the trial, the Court viewed a videotape (Exhibit A) which claimant alleges shows only the second part of the incident. However, according to the defendant the videotape shows the entire incident. This videotape clearly shows claimant as at least a willing participant, if not the actual aggressor, in the incident concerned here.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks 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 risks of harm include 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, 99 NY2d 247, supra at 254 [emphasis in original]). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence absent a showing that prison officials had notice of a foreseeable dangerous situation (see Colon v State of New York, 209 AD2d 842, 844). “[T]he State’s duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety.*** 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, 99 NY2d 247, supra at 256).
To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (id.). “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).
Here, claimant asserts only that the State knew or should have known that Jenkins was prone to perpetrating such an assault and did not take proper precautionary measures. However, claimant submitted no copies of misbehavior reports issued to Jenkins or other evidence of Jenkins’ violent propensities which would have put the State on notice.
On this record, the Court cannot conclude that the State knew, or should have known, that Jenkins was prone to assault other inmates. Therefore, I cannot conclude that the State failed to adequately protect claimant. Based upon the preponderance of the evidence adduced at trial, I find that claimant has failed to establish that an attack by Jenkins was reasonably foreseeable. The Court now turns to claimant’s assertion that the State was negligent in performing the pat-frisk and scan of Jenkins prior to his entering the recreation yard.
No evidence was presented to establish that the search of Jenkins was improper, in violation of standard procedures or otherwise negligently conducted. No expert testimony was elicited on this issue. The fact that an inmate was able to smuggle a weapon into the SHU yard does not, per se, provide an adequate basis to find culpable conduct by defendant (Smith v State of New York, Claim No. 94804; filed October 27, 1998, Bell, J.; see also Sanchez v State of New York, Claim No. 89153, filed October 18, 1995, Bell, J.). To hold the State liable for its failure to find a weapon during a pat-frisk supplemented by use of a metal detector would raise the State to the level of an insurer. It has been long held that the State is not an insurer of the safety of those entering its institutions (see Mochen v State of New York, 57 AD2d 719). “The history of assaults with sharp instruments in State correctional institutions demonstrates that inmates can be especially ingenious in crafting and concealing weapons that diligent searches by correctional facility personnel do not uncover” (Parsley v State of New York, Claim No. 90411, filed February 25, 1999, Bell, J., slip opinion p 7).
Finally, the Court allowed both sides five days after trial to submit closing arguments in writing. The Court received such argument from claimant’s counsel as well as a letter from claimant himself. Mr. Colon asserts that the defendant failed to comply with the standard of care set forth in 9 NYCRR § 7003.2 and § 7003.4. The Court notes that 9 NYCRR Part 7000 sets forth “Minimum Standards and Regulations for Management of County Jails and Penitentiaries”. Green Haven is a State correctional facility and thus the provisions referred to by claimant are inapplicable.
Based upon a preponderance of the credible evidence, claimant has failed to establish that the State’s negligence resulted in the assault and the claim is hereby dismissed.
The Chief Clerk of the Court is directed to enter judgment accordingly.

January 11, 2006
White Plains, New York

Judge of the Court of Claims

[1]. A Hispanic inmate named Hernandez, whom he knew and a black inmate, whom he did not know though he later learned this inmate’s name is Jenkins.
[2]. C.O. Kealty, C.O. LaRoque, C.O. O’Connor, Sgt. Montegari and Sgt. Tierney. All but Sgt. Montegari were working on the date of this incident.