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.
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.
cross-examination claimant acknowledged at least six fistfights with other
inmates. He also stated that he had never argued with Jenkins prior to the
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
, 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
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
, 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
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 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.