New York State Court of Claims

New York State Court of Claims

ELLISON v. THE STATE OF NEW YORK, #2006-032-502, Claim No. 105508


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:
Christopher Ellison, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 14, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant commenced this action for negligent supervision, to recover injuries sustained in an inmate-on-inmate assault which occurred December 1, 2001 at Upstate Correctional Facility (UCF). Claimant and his assailant were both inmates at UCF, a maximum security disciplinary facility for inmates who are considered to have behavioral problems or who are serving behavioral time for misconduct in other facilities.[1]
The cells at UCF are mostly double cells. After a trial conducted on January 23, 2006, the Court makes the following determination.
Claimant arrived at UCF on November 28, 2001 and was immediately placed in a double cell with inmate Ali Malik. Three days later, on December 1, 2001, while returning from the recreation pen, claimant contends that Malik came from behind and slashed him with a weapon[2]
across the right side of his head and upper ear, causing a laceration approximately 5.5" long requiring fifteen stitches. Surveillance video of the incident verifies that Malik caused claimant's injury. (Exhibit 8).
Correction Officer Thompson reported to the scene after the incident. He testified that he made rounds every half hour during his shift. Thompson notified Sergeant Coffey, who ordered that claimant be brought to the medical center. Malik was strip frisked, but no weapon was found. Claimant's cell was also frisked after the incident and no contraband was found.

Claimant alleges that he should not have been placed in the double cell with Malik due to Malik's prior history of violence.[3]
Malik had been involved in two incidents of violent conduct and one incident of fighting within three months prior to this assault (Exhibit 3). He claims that the harm he suffered was reasonably foreseeable and, therefore, defendant failed to protect him. He further alleges that due to this incident, he has lost feeling in his upper ear, and he has developed a fear of being attacked from behind, which prevents him from being able to share a cell with another inmate.
Generally, the State owes a duty to protect inmates from attacks by fellow inmates (see Sanchez v State of New York, 99 NY2d 247, 252 [2002]; Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]). However, this duty is limited to acts that are reasonably foreseeable, when it can be shown that the State knew by either actual or constructive knowledge that the attacker was dangerous but failed to protect the inmate from the assault (see Sanchez v State of New York, supra at 252). Moreover, claimant must establish these elements by a preponderence of evidence that defendant breached this duty by placing him in a double cell with an inmate that it knew or should have known through prior history to be dangerous.[4]
In order to prove that the State had knowledge of Malik's propensity towards violent conduct, claimant cites Malik's "Inmate Disciplinary History" [Exhibit 3] which includes two incidents of violent conduct and one incident of fighting within the three months prior to the assault involving claimant. No evidence was offered that Malik was more dangerous than any of the other inmates under the Correction Officer's supervision. It has been held, "[u]nder such circumstances, there was no need to take special precautions with respect to the claimant's attacker" (
Casella v State of New York, 121 AD2d 495 (2d Dept 1986); Mobley v State of New York, 1 AD2d 731 (3d Dept 1955). UCF is a disciplinary prison for problematic inmates. Although inmate Malik had three prior citations for disciplinary problems, this was not enough evidence, in a prison full of problematic inmates, to establish that defendant had notice that Malik's propensity towards violence warranted a single cell placement for him or more supervision by the correction officers.
As such, claimant failed to establish his claim by a preponderance of the evidence and, therefore, it is dismissed. All motions not heretofore decided are deemed dismissed.

Let judgment be entered accordingly.

March 14, 2006
Albany, New York

Judge of the Court of Claims

[1]In most cases, the behavior that warrants the placement of an inmate in this special facility involves violent conduct.
[2]Claimant thought it was a razorblade, but the type of weapon used was not precisely determined.
[3]The Court ordered Malik's records regarding misbehavior reports be produced at trial, as redacted by the Court. The Court received this document as Exhibit 3.
[4]Although claimant also contends that defendant violated Department of Correctional Services directive pertaining to the selection of inmates for double cell housing (Exhibit 1, Appendix A), this directive does not apply to UCF since it was constructed after 1996 (see, 7 NYCRR, 1701.1).