New York State Court of Claims

New York State Court of Claims

COLON v. THE STATE OF NEW YORK, #2006-031-523, Claim No. 109125


Claimant failed to show that assault upon him by another inmate was reasonably foreseeable, or occurred due to negligence on Defendant’s part. 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:
Defendant’s attorney:
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 9, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Armando Colon filed claim number 109125 on April 1, 2004. He seeks damages for an assault perpetrated upon him by another inmate on November 30, 2002 while Claimant was confined at Auburn Correctional Facility (“Auburn”). I held a trial in this matter on July 26, 2006.
Claimant testified that he was stabbed in the neck and arm by an unknown inmate on November 30, 2002. According to Claimant, he requested a transfer from Auburn in December of 2001, indicating that he had unknown enemies in the C and D blocks of the facility. Claimant indicated that he did not want protective custody. He was, nonetheless, recommended for involuntary protective custody for his protection. Claimant successfully opposed this application and was not placed in involuntary protective custody.
Claimant stated that he was initially given a housing assignment in E block, a block where he felt that he had no enemies. However, Claimant testified that he participated in a hepatitis treatment program that required him to move to C block, a portion of the prison in which he felt unsafe. He stated that he told his counselor, as well as Deputy Superintendent for Security Mark Bradt, that he feared for his safety because he believed that he had unknown enemies on that side of the facility. Deputy Superintendent Bradt offered Claimant protective custody, but he again refused.
Claimant also indicated that another inmate reported to him that one of the officers in D block made slanderous statements against him that tended to make him more prone to attack by other inmates. According to Claimant, he complained about this incident and an employee of Defendant, Captain Craig Gummerson, investigated the complaint, but that no action was taken.
On the day of the incident, November 30, 2002, Claimant was returning to his housing area from lunch when he was assaulted from behind and stabbed in the neck. As he fought off his attacker, he was also stabbed in the arm. He stated that at the time of, or at least just prior to, the attack, he saw no officers at their usual posts. He stated that the impact of the blow made him fall to his knees, but that as he got up he believes that his assailant walked right past a correction officer as if nothing had happened.
The State called Captain Craig Gummerson, a 32-year employee of the Department of Correctional Services, to testify concerning the incident. Captain Gummerson was employed at Auburn prior to and on the date of the incident. He also stated that he was familiar with Claimant at the time of the incident. According to Captain Gummerson, Defendant had notice only that Claimant had some vague indication of danger on the C and D sides of the facility. He stated that they had no information concerning a specific threat to Claimant’s safety and for that reason, no heightened level of security concerning Claimant was justified.
Captain Gummerson testified concerning the officers assigned to the area where Claimant was assaulted. One officer was assigned to the front of the company and one to the back. Captain Gummerson testified that this was normal staffing for that time of day. He also stated that the officers are not frozen in place, they are expected to move around, a tactic that he believes increases security. He heard Claimant testify and opined that, as Claimant only identified a general fear or threat and had no information concerning who wanted to hurt him and why, Claimant’s information was not specific enough to warrant a change in his housing assignment.
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). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and 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 the record before me indicates that Defendant did not have notice that Claimant was in any danger prior to the assault. As the Court of Appeals stated in Sanchez v State of New York (99 NY2d 247, 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.”
With regard to Claimant’s allegations relating to Defendant’s failure to properly supervise the walkway where he was assaulted, I note generally that, as stated by Judge Bell in Tucker v State of New York (Claim No. 85578, August 28, 1996):
The number of corrections officers who should be present in various areas of a correctional institution . . . essentially involves the experience and discretion of the Department of Corrections. Indeed, deference to the judgment of correctional facility authorities must be the rule, and a court cannot properly substitute its judgment for that of such authorities.
With regard to Claimant’s allegation that the assault was foreseeable because he told Defendant that he had unknown enemies on that side of the facility, I find that this information, without more, does not give rise to liability. As this Court stated in Mercer v State of New York (Ct Cl, July 22, 1996 [Claim No. 90188], Corbett, J.), "[L]iability may be based either on defendant's failure to protect claimant from a known dangerous prisoner or to use adequate supervision to stop that which was foreseeable in an immediate or proximate sense, rather than in some generalized way" (see also Spadaro v State of New York, 38 Misc 2d 489, affd 28 AD2d 604). Claimant’s fears relating to unknown enemies was far too generalized and lacked the specificity necessary to permit Defendant to take reasonable steps to prevent the assault.
Further, Claimant was offered, and refused, protective custody. Even an inmate's request for protective custody may not necessarily trigger a specific duty to protect if the inmate does "not alert the interviewing [correction officers] of his past problems, a specific hazard or a particular urgency to his situation" (Roudette v State of New York, 224 AD2d 808, 809).
Claimant admits that his enemies were unknown, that the assault was sudden, without warning, and took even Claimant by surprise. Neither Claimant nor Defendant had notice that a dangerous situation existed prior to the assault. Absent such notice, unremitting supervision was unnecessary (see Hirsh v State of New York, 8 NY2d 125; Padgett v State of New York, supra; Carlino v State of New York, 30 AD2d 987, 988). I find, therefore, that Claimant has failed to demonstrate that the assault was reasonably foreseeable or that Defendant was negligent in failing to protect him from the unexpected and unprovoked assault.
Finally, Claimant also offered no evidence to support his allegation that an officer made slanderous remarks about him prior to the assault. Further, even assuming that he had, the record is absolutely devoid of any causal relationship between what this officer might have said and the assault upon Claimant.
Accordingly, Claim No. 109125 is hereby DISMISSED.
Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

November 9, 2006
Rochester, New York

Judge of the Court of Claims