Jose Vasquez (“Claimant”) filed claim number 106122 on May 28,
2002. Claimant alleges that he was assaulted by another inmate while
incarcerated at Elmira Correctional Facility (“Elmira”) and that
Defendant State of New York’s negligent failure to prevent the assault was
the proximate cause of his injuries, including the loss of an eye. I held the
trial in this matter on September 8, 2006 in Binghamton, New York.
Claimant testified that he arrived at Elmira seven days before the
Prior to Elmira, he had been
incarcerated at Cayuga Correctional Facility’s Special Housing Unit
(“Cayuga SHU”). During transit from Cayuga SHU, he was housed with
an inmate named Pizzaro. Claimant stated that inmate Pizzaro came to Elmira
from Cayuga SHU and that he did not have any problem with him. They shared
cigarettes and went through orientation together. Claimant understood that he
and Pizzaro were supposed to be double-bunked in Elmira’s G block. The
day of the assault, an inmate porter arrived at C block to help pack and move
Claimant’s and Pizzaro’s property to this new cell in G block.
Correction Officer (“CO”) William Carnegie was posted at the end
gate on G block - 2 Company when Claimant and Pizzaro arrived with their
property. Claimant testified that CO Carnegie entered the cell first so he
could check for weapons. Finding none, Pizzaro proceeded to bring in the bags
of property while Claimant cleaned the toilet. Claimant stated the next thing
he knew, he was stabbed by an unknown assailant. He first felt a pain in his
arm and, when he looked down, he saw an ice pick. He attempted to grab the ice
pick and injured his hand. He stated that Pizzaro then entered the cell to try
to fend off the assailant. As Pizzaro struggled with the assailant, Claimant
stated that he saw another person enter the cell and believes that this second,
unidentified individual stabbed Pizzaro because Claimant heard Pizzaro exclaim
“I’m hit, I’m cut,” and the second, unidentified
individual then ran from the cell. It appears from Claimant’s description
of the attack that he momentarily turned his back on the assailant with the ice
pick when he heard Pizzaro shout. As Claimant turned to again face his own
assailant, he was stabbed in the face. Claimant stated he was stabbed in the
eye and the bridge of his nose. He also received approximately 10 to 12 other
minor wounds from the ice pick. After about 30 to 45 seconds, Claimant’s
assailant also ran out of the cell.
Clearly, Claimant was attacked. What is not clear is by whom he was attacked.
Claimant freely admitted that, on the day of the incident and throughout
Defendant’s investigation thereafter, he purposely failed to tell the
authorities the identity of the individual who attacked him. It was not until
the end of his deposition in this case, on December 5, 2002, that he finally
identified the inmate who attacked him. He also admitted that the ice pick he
was stabbed with was never found, even though the cell where it happened was
searched and an investigation was concluded.
Claimant explained he was reluctant to identify his assailant because he
“didn’t want to get in trouble.” He feared for his safety at
Elmira so he intentionally failed to pick out his assailant in a photo array,
refused to testify against him in the criminal trial, continued to deny he knew
who attacked him even while in protective custody, and he did not confirm the
identity when the “rumor mill” identified the inmate. Claimant
stated that he felt he could safely identify the assailant now because he was
being released from custody soon and is currently housed in a facility where he
Claimant asserted he was attacked by an inmate named Alexander Rios. Claimant
explained he first met Rios six or seven years ago at Greenhaven Correctional
Facility and Rios was the best man at Claimant’s wedding. Claimant had
not heard from Rios since 1999. Nor did Claimant know Rios was in Elmira when
he transferred there. Claimant stated that, prior to the attack, he was unaware
that he had a problem with Rios. Claimant came to understand later that
Rios’s motive for the attack might have been in retaliation for an attack
upon Rios by a mutual acquaintance of theirs from Greenhaven. That incident had
occurred at Auburn Correctional Facility.
It appears that Rios could have had access to Claimant’s open cell. Rios
was a porter locking in 3 gallery in G block at the time of the attack. As a
porter, his cell door stayed open and he had responsibility for cleaning up 3
gallery as well as 2 gallery on the second floor (Exh. A). He was permitted to
leave the gallery as part of his porter duties to dispose of garbage each
afternoon. He stated under oath at his deposition that he never escorted any
inmates, “That’s the C.O.’s job” (Exh. A, p. 32). Nor
was he ever asked to deliver any inmate property to another block in the
facility (Exh. A, p. 37). Rios maintains that he was locked in his cell at the
time of the attack and that CO Daugherty was aware of that fact.
The transcript of CO James Daugherty’s Examination Before Trial
(“EBT”) was admitted into evidence as Exhibit 5. He stated in his
EBT that he was the officer responsible for all inmate movement on G block on
the date of the assault, including movement up and down the block stairs, but
principally movement on the second floor. He testified that Correction Officer
Carnegie was stationed at the desk on the first floor. He explained that there
are times when certain porters are asked to assist other inmates with a move,
but Daugherty testified that Rios was not permitted to help anyone move that day
at around the time of the assault (Exh. 5).
Officer Carnegie’s trial testimony contradicted that statement. Carnegie
was a Block Officer on the date of the assault. He was responsible for all the
inmates on the block, making sure they were where they were supposed to be,
doing what they were supposed to be doing; this position was referred to as the
“first man.” He was stationed at the correction officer’s
desk noted on Exhibit 1. That morning, he had two inmates that were moving from
G block to C block. According to CO Carnegie, he ordered Rios to help with the
move. Although CO Carnegie couldn’t testify to the exact time of the
move, he knew it was between 8:45 and 9:15 a.m. because moves didn’t start
on the block until “turn ins” were complete. A “turn
in” was the process of making sure all inmates were locked in their cells
except for the porters and those in program.
CO Carnegie testified that he wrote Rios a pass indicating the destination,
time leaving G block and the gallery tags identifying the two inmates moving to
C block. He testified that Rios was to take the 10 to 15 minute walk between
blocks, check in with the C block officer who would record the necessary
information and sign Rios’s pass, noting the time he arrived. Rios was to
then take care of the move and return to G block. If the first man was busy,
which CO Carnegie was on this day, Rios was to leave his pass on the desk for
the CO to record later.
At approximately 9:20 a.m., after Rios left the area to facilitate the move,
Claimant came out of cell G-1 and approached the desk holding his right eye and
was bleeding. Two to four minutes later, Pizzaro came out, cut and bleeding as
well. CO Carnegie had both injured inmates escorted to medical. He checked to
make sure all his outstanding passes were returned - and they were.
Jeffry Perry had been employed by the Department of Correctional Services
(“DOCS”) for 23 years. He was a sergeant at Elmira at the time of
the assault. He stated he retired from DOCS in October 2004. In his capacity
as correction sergeant that day, he had supervising responsibilities for G and F
blocks and the Protective Custody area. He testified he first became aware of
the assault when Carnegie contacted him on his radio. He then left the G block
sergeant’s office and proceeded to the G block desk on the first floor
where he observed Carnegie speaking to Claimant. Claimant was bleeding and
holding his right eye. Carnegie had reported that Claimant was assaulted in his
cell. Perry testified that he then asked Claimant what happened.
Perry stated he questioned Claimant several times, first on the cell block,
then on the way to the hospital, and again while Claimant was at the hospital.
Perry stated that he believed Claimant was assaulted by Pizzaro. Claimant
alternatively denied and affirmed that Pizzaro was the assailant and even later
in the investigation stated that he did not see who assaulted him. Perry also
spoke to Pizzaro, Carnegie, a few other inmates on the upper tiers and the
porters on the flats, but uncovered no leads. He also examined the cell which
he described as being approximately six by ten feet with “a lot of
property bags around.” He observed blood on the floor and walls, and
footprints from two different pairs of shoes. Later, he determined that the
footprints matched the shoes worn by Claimant and Pizzaro. He never found a
The day after the incident, he found a note under his office door that
indicated that Rios was the assailant. Perry testified that Rios had never been
a problem before and denied his involvement when approached by Perry as part of
the investigation. Rios maintained he was not on the block at the time of the
assault. After Perry received the note, he went back to ask Claimant if Rios
was the inmate who cut him. Claimant denied it. Perry then showed Claimant a
photo array containing a picture of Rios and Claimant at first stated that he
did not recognize anyone in the photo array. Perry stated he pressed the issue
because he was aware that Claimant knew Rios. When Perry reminded Claimant that
Rios was the best man at Claimant’s wedding, Claimant then acknowledged he
recognized Rios’s picture in the array.
Perry testified that he confirmed that Rios had shown up on C block and that
Rios’s pass had been signed by an officer in C block. The pass was not
signed when Rios returned to G block so Perry could not determine one way or the
other whether or not Rios was on the block at the time of the assault.
Rios’s cell was searched and nothing was uncovered that would have linked
him to the assault.
While the State must provide inmates with reasonable protection against
foreseeable risks of attack by other inmates, the State is not an insurer of
inmates, and the fact that an assault occurs does not give rise to the inference
of negligence (Sebastiano v State of New York, 112 AD2d 562). In order
to establish liability on the Defendant’s part, an inmate claimant must
allege and prove one of the following grounds: 1) the victim was a known risk
and the Defendant failed to provide reasonable protection; 2) the Defendant had
notice that the assailant was dangerous and refused to take the proper
precautions; or 3) the Defendant had notice and the opportunity to intervene to
protect the inmate victim and failed to act. More broadly, in order to
establish liability on the Defendant’s part, an inmate claimant must
allege and prove that the Defendant knew or should have known that there was a
risk of harm to the Claimant that was reasonably foreseeable and inadequately
addressed (Sanchez v State of New York, 99 NY2d 247, 253).
No evidence was presented at trial that established Defendant knew that
Claimant was a potential victim or that Rios or Pizzaro were dangerous.
Further, the trial testimony showed that the attack was quick and quiet enough
to avoid detection by the guard posted at the end of the block in close
proximity to the cell where the attack occurred or by other inmates in the
Despite the lack of actual or constructive notice, was it reasonably
foreseeable that claimant would be attacked while moving into his new cell on
April 25, 2002? The attack was not reasonably foreseeable. Claimant was not on
anyone’s enemy list, nor did he indicate, at any time, to any agent of the
Defendant, that he had a problem with another inmate. 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; Carlino v State of New York, 30 AD2d
987). 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. From Claimant’s
testimony at trial, I understood that Claimant was surprised by this attack.
The viciousness of the attack and the resulting serious injury to Claimant alone
cannot justify a finding of liability.
Accordingly, Claim No. 106122 is hereby DISMISSED.
Any and all other motions on which the Court may have previously reserved or
which were not previously determined, are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.