BOYD v. STATE OF NEW YORK, #2007-010-018, Claim No. 109224
Inmate who testified against the Gotti crime family did not establish that
attack was related.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
Terry Jane Ruderman
ANDREW F. PLASSE, ESQ.
HON. ANDREW M. CUOMO
Attorney General for the
State of New
YorkBy: J. Gardner Ryan, Assistant Attorney General
June 19, 2007
See also (multicaptioned
Claimant seeks damages for injuries he sustained during his incarceration at
Green Haven Correctional Facility (Green Haven) when he was assaulted by another
inmate on June 15, 2001.
In 1991, claimant
testified in federal court against members of the Gotti crime family.
In June 2000, claimant was transferred from Sullivan Correctional Facility
(Sullivan) to Green Haven. Claimant contends that despite his continued
requests to be placed in voluntary protective custody, he was not. He further
contends that the attack on him was foreseeable and that defendant’s
failure to place him in protective custody was a proximate cause of the attack.
The trial of this claim was bifurcated and this Decision pertains solely to the
issue of liability.
Claimant testified that in 1991, during his incarceration at Sing Sing
Correctional Facility, he became friends with an inmate named Robert Francella
a.k.a. “Bobby Fingers.” Through Francella, claimant offered to try
to influence a juror who was serving in the racketeering trial of Peter Gotti in
the Eastern District Federal Court. Thereafter, claimant had second thoughts
and he contacted the Office of the United States Attorney and cooperated with
them by testifying in federal court as to his involvement with Francella and
others regarding the jury tampering efforts. Claimant pleaded guilty to
obstruction of justice and was sentenced to time served. In January 2000,
claimant was transferred from the federal correctional system to the state
correctional system and was incarcerated at Sullivan, where he was placed in
voluntary protective custody pursuant to his request.
Six months later in June 2000, claimant was transferred from Sullivan to Green
Haven. Claimant’s transfer summary stated: “REASON FOR TRANSFER:
04 UNSUIT-SEPAR. FROM INM” (Ex. 2). There was no testimony explaining
what “04” referred to; there was testimony from defendant that the
rest of the information referred to protective custody or administrative
segregation. The “EXPLANATION FOR TRANSFER” stated:
“SECURITY SUPERVISORS RECEIVED AN ANONYMOUS LETTER CONTAINING A THREAT ON
BOYD’S LIFE. BOYD BELIEVES THERE IS A ‘CONTRACT’ ON HIS LIFE
BECAUSE HE TESTIFIED AGAINST ‘MOB’ GOTTI FAMILY
(id.). The transfer summary also stated that claimant “SHOULD
PARTICIPATE IN VOCA, WORK, SUBST, ABUSE AGGRESSION, COMM PREP, PERS AND RELA
According to claimant, he made numerous requests for placement in voluntary
protective custody when he first arrived at Green Haven. Claimant’s
initial request was to Sergeant Ward. Claimant related that he had been a
witness in a federal trial and that there was a contract on his life and he
feared for his safety. Claimant was not placed in protective custody.
According to claimant, he then wrote a letter to the captain and the acting
captain responded by letter. Neither of these letters, nor copies, were
produced at trial. Claimant testified that he also wrote several letters to the
Inspector General and never received a response. Claimant did not offer copies
of those letters at trial. Thereafter, claimant repeated his request for
protective custody to Sergeant Keyser. Claimant was never placed in protective
custody at Green Haven.
On June 15, 2001, claimant gave a presentation to a group of inmates as part
of the facility’s transitional services program. After the session, at
approximately 11:00 a.m., as claimant and approximately 200 other inmates were
heading back to their housing units, claimant was assaulted by Mark Digeorgio,
one of the attendees at the presentation. Claimant did not know Digeorgio and
he had no reason to fear him. Digeorgio punched claimant’s face and,
according to claimant, Digeorgio uttered, “Rat bastard. This is from
Claimant testified that
Digeorgio was not a known enemy of claimant prior to the attack and was,
therefore, not listed on his enemies list. Claimant testified that he had
indicated to the New York State Department of Correctional Services (DOCS) that
his enemies would include anyone affiliated with the racketeering case in which
claimant had provided testimony. Digeorgio was never connected to the case or
to the Gotti crime family.
Claimant waited until 5:10 p.m. on June 15, 2001 to report his injuries at
sick call. At that time, claimant advised the nurse that at approximately 1:00
p.m. he had been playing basketball and had been struck in the eye by another
inmate’s elbow. He did not report that he had been assaulted. He also
did not request protective custody. In fact, claimant was offered protective
custody and refused the offer (Ex. B). Subsequently, after an Involuntary
Protective Custody hearing, claimant was placed in involuntary protective
custody. Claimant testified that the reason he had refused protective custody
after the assault was because his natural instinct was to get
The following morning, claimant went to
see Digeorgio with the intention of ensuring that there would not be another
attack on claimant.
Thomas Levanduski, a retired Senior Correction Counselor at Green Haven,
testified that he had conducted claimant’s Involuntary Protective Custody
hearing after the attack at Green Haven (Ex. C). The hearing record sheet
revealed that claimant indicated that he was not in need of protective custody
(id.). As a result of the hearing, claimant was placed in involuntary
protective custody to provide protection to him and to prevent retaliation.
Levanduski testified that, if DOCS knew that an inmate had a problem with a
certain group of people, an inmate could be placed in involuntary protective
custody even if he did not identify his assailant.
Lieutenant Richard Ward,
who has been
employed by DOCS for 25 years, testified that if an inmate states
“mob” or “Italians” are after him, there is nothing the
State can do to safeguard that inmate because there is no way of identifying an
inmate as a mob affiliate, agent, or associate. More specific information would
be necessary to identify potential assailants. Ward stated that when an inmate
requires protective custody, an investigation is done before that inmate is
placed in protective custody to ensure that the inmate would not be a danger to
those already in protective custody and that those in protective custody are not
known enemies to the inmate requesting protective custody. Ward was questioned
about claimant’s transfer summary and explained that administrative
segregation is usually for inmates who are gang leaders or who direct gang
members to attack another inmate.
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, supra at 254 [emphasis
in original]). Indeed, Lieutenant Ward testified that more specific information
is necessary to effectively safeguard an inmate from potential assailants
because there is no way of identifying an inmate as a mob affiliate, agent, or
associate. Claimant’s assailant was not on claimant’s enemies list
and claimant testified that he did not have reason to believe he would be
subject to attack by Digeorgio. Digeorgio was never linked to the Gotti crime
family or to the federal case in which claimant provided testimony and the Court
did not find the statement attributed to Digeorgio to be of sufficient weight to
establish that connection.
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 (see Colon v State of New York, 209 AD2d 842, 844).
“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).
Upon listening to claimant testify and observing his demeanor as he did so,
the Court found him to be less than credible. Curiously, claimant testified
that he had repeatedly requested protective custody because he was fearful of
being attacked, yet after he was attacked he lied about the incident at sick
call and then refused the offer of protective custody. He did not timely report
his injuries nor was he forthright in relating how his injuries were sustained.
He testified that he refused protective custody because his instinct was to get
even. The Court finds that claimant appeared to be calculating in his testimony
and that his alleged continued requests for protective custody were not
believable. There was no evidence presented at trial to clarify the ambiguity
of claimant’s transfer summary from Sullivan to Green Haven which referred
to protective custody or administrative segregation, but also directed that
claimant should participate in numerous programs. Therefore, it remains unclear
as to whether the transfer summary directed that claimant be segregated from
other inmates at Green Haven or whether he had been so housed at Sullivan and
upon transfer to Green Haven segregation was no longer warranted. As testified
to by claimant, upon return from the program at which he was a speaker, there
were approximately 200 other inmates heading back to their housing units.
Claimant could have been attacked by anyone of those hundreds of inmates for a
variety of reasons. The Court does not credit claimant’s testimony that
his attack was related to the Gotti crime family and there was no evidence,
other than claimant’s own self-serving testimony, linking his assailant to
the Gotti crime family (see DiDonato v State of New York, 25 AD3d
944 [claimant denied protective custody and was allegedly assaulted by gang
member; held no direct evidence linked unknown assailant to any gang and
assaults occur for a variety of other nongang-related reasons]).
In sum, the Court finds that the attack on claimant was random and not
foreseeable and that there is a lack of credible evidence sufficient to sustain
claimant’s burden of proof.
Accordingly, defendant’s motion to dismiss, upon which decision was
reserved, is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 109224.
June 19, 2007
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
. While the claim alleged that the assault
occurred June 14, 2001, claimant testified that the assault occurred June 15,
.The Court allowed claimant to testify, over
defendant’s objection, to Digeorgio’s statement.
. It is noted that claimant also testified
that in September 1992, he was stabbed while incarcerated at Clinton
. Ward was promoted from Sergeant to
Lieutenant in 2002.