New York State Court of Claims

New York State Court of Claims

SAMPER v. THE STATE OF NEW YORK, #2007-028-003, Claim No. 102210


Prison inmate who alleges that he was the victim of gang violence fails to prove that an attack by another inmate was foreseeable. 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:
BY: Joseph F. Romani, Esq. and
Geoffrey B. Rossi, Esq.Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
January 26, 2007

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on April 9, 1998 at Elmira Correctional Facility when Claimant was attacked by another inmate. Claimant contends that the State failed in its duty to provide him with reasonable protection from foreseeable harm, specifically from assault by members of a prison “gang”.
At trial, Claimant testified that on November 11, 1997, several months prior to the attack in question, he was attacked by an inmate at Shawangunk Correctional Facility. He states that the assailant, Inmate McNealy, was a member of the “Bloods” gang. A friend of Claimant’s, Jose Villaman, had had a fight with someone in the gang’s hierarchy and shortly thereafter Claimant himself was attacked “for no reason whatsoever” (T, 54).
Claimant stated that after that attack he, along with the assailant and two other inmates, was placed in the facility’s Special Housing Unit. On the following day, Claimant was moved to involuntary protective custody. He had not asked for protective custody for himself (T, 76, 78). Claimant remained in protective custody for four days and then, on December 4, 1997, was transferred to Elmira Correctional Facility.
It was Claimant’s belief that the transfer was made because correction officials believed that his life was in danger at Shawangunk (T, 60). He testified that when he arrived at Elmira, he asked for protection and wrote to the Deputy of Security saying that he had problems with some of the people at the facility. Claimant also testified that he told officials at Elmira that “they had put me in a group of people that I’ve had problems with in another institution, in another prison” (T, 63) and that he felt he was not safe.
Over the objection of Defendant, the Court permitted Claimant to place into evidence, as Exhibit 8, copies of two letters that he said he wrote to Deputy Superintendent Doane (T, 84, 87).
In these typewritten letters, dated December 12 and December 16, 1997, respectively Claimant requested that he be reassigned from the “I” unit, which housed long term keeplock inmates, because he had not been convicted of any misbehavior and because there were other inmates in the unit who were members of the “Bloods” and therefore friendly with his enemy from Shawangunk. In the December 16 letter, he added that he suffered from asthma and in the “I” unit, he was living in a double bunk cell with inmates who smoked.
Claimant testified that he remained in the long term keeplock unit for a period of two months despite the fact that he had not been charged with any misbehavior. He was later released to general population (presumably in February 1998) and over time, became less violent and alert for trouble. On April 9, 1998, he was attacked while watching television. He stated that he did not know who cut him, but that six or seven other inmates were sitting on a bench behind him. He did not know who they were, as he had been watching television for a half hour to an hour and had not been paying attention. He testified that after he was cut, he turned around and recognized that all six of the inmates behind him were “Bloods.” He stated that he knew this because they had been at Shawangunk when he was there (T, 91). He acknowledged, however, that when the investigating officer asked who had cut him, he said that he did not know.
The Unusual Incident Report relating to this incident (Exhibit 10) contained the report that Claimant did not know who cut him. It also noted that he had not been threatened or approached by any other inmate while at Elmira. This UIR was based in part on a report of the incident that had been drafted by Sergeant John Randall (Exhibit 9). Randall, who had interviewed Claimant shortly after the incident, testified at trial and repeated that Claimant said he did not know who cut him and that he had not been threatened or approached while at Elmira. Claimant had added that he did have a problem with a “Blood” while he had been at Shawangunk. Randall also spoke with the sergeant who had been assigned to the unit and had a search conducted of the area where Claimant had been cut. Nothing was found, not even any signs of blood.
Sgt. Randall stated that prior to April 9, he had had no notice that Claimant had a problem with any other inmates or that he feared for his safety. He also said that Claimant had never requested protective custody and that even after the assault on April 9, he declined protective custody, signing a waiver to that effect (Exhibit A). Due to the nature of the incident, however, Sgt. Randall filed an involuntary protective custody recommendation based on what he perceived to be a threat to Claimant and to the facility (Exhibits 5, 14). He also confirmed that the person who cut Claimant on April 9th was never identified.
Correction Officer Mark Saunders testified that he was on duty at Elmira Correctional Facility on April 9, 1998 at 10:45 a.m. He was assigned to act as a Tier III escort, taking inmates to and from their disciplinary hearings, but he also served as an officer for F Block, being present for cell counts and other routine matters. He was approached by Claimant, as he returned from recreation at the field house, and told that he had been cut on his face. Saunders observed “a cut and a scratch” down the right side of Claimant’s face (T, 8).
He escorted Claimant downstairs to the facility hospital. He said that Claimant did not identify the inmate who had attacked him.
Saunders said that he had not previously been aware of any particular problem at the facility, specifically the field house, earlier in the day or on the previous day. And, as was the case with Randall, Claimant had never expressed to him any concern that he might be victimized or harmed by other inmates. If he or any other inmate had such concerns, Saunders stated, they would typically refuse to leave their cells, and would pass a note to one of the correction officers or ask to see a sergeant immediately. Claimant had never taken any of those actions prior to the date in question. In an affidavit sworn to on September 30, 2003 (Exhibit 2), Saunders similarly stated that Claimant “gave no prior warning that Claimant was being threatened by another inmate” and that the assailant was unknown.
Defendant does not dispute that Claimant was assaulted or the nature and extent of his injuries. Defense counsel also stipulated that Claimant could make use of the photographs and medical records to prove his injuries (T, 27, 30; Exhibits 3, 4 [entry for April 10, 1998]).
It is well settled that the State, which has "assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can,” (Sanchez v State of New York, 99 NY2d 247, 252 [2002]) owes a duty of care to safeguard the inmates in its penal institutions, even from attacks by fellow inmates. That duty does not, however, render the State an insurer of inmate safety. Rather, “the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable (id. at 253).
In Sanchez, the Court of Appeals rejected the proposition that there be a “strict requirement of specific knowledge for foreseeability" for the injured party to succeed in proving the State liable for inmate on inmate assault and reaffirmed the “traditional standard” of requiring that there be "reasonable care under the circumstances" (id. at 254). Thus, foreseeability in this context encompasses both actual and constructive notice. Consequently, to establish liability in an inmate assault case, a claimant must prove one of the following: (1) that 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) that 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) that the State had ample notice and opportunity to intervene but did not act ( id.).
It requires a special set of circumstances or a clear pattern of events for the risk of harm to a particular inmate from gang-related violence to be considered foreseeable. The necessary basis was not provided in Di Donato v State of New York (25 AD3d 944 [3d Dept 2006]), where the injured inmate claimed that an earlier assault, at a different prison, was gang-related but investigation had determined that it resulted from a debt owed by the claimant. Upon transfer to a new facility, his request for protective custody was denied, and the State was not held liable when he was assaulted approximately a year later. Nor was harm from other inmates considered foreseeable where an inmate failed to advise prison officials that he had been a member of a particular gang and had listed no names on his enemy, or “separate,” list (Gonzalez v State of New York, 7 Misc 3d 1012[A] [Ct Cl 2005]). In a decision that contains extended discussion of the role of gangs in prisons, Savoca v State of New York (UID #2003-010-037, Claim No. 98982 [Ct Cl Dec. 3, 2003]), the Hon. Terry Jane Ruderman ruled that simply because an inmate fears a particular gang and has been the victim of a previous attack by that gang does not establish foreseeability or a duty to provide protective custody.
On the other hand, where an inmate who provided gang-related information to prison officials on several occasions received specific threats in two facilities and was assaulted in a third, it was held that the State was potentially liable when he was attacked after prison officials ignored his report of a specific threat, identification of the inmate making the threat, and request for protection or a transfer (Faust v State of New York, UID #2001-007-086, Claim No. 101112, Motion No. M-62775 [Ct Cl Feb. 13, 2001], Bell, J. [denying the State’s motion for summary judgment dismissing the claim]).

In the instant case, however, there is no such factual support for concluding that the State owed a particular duty to Claimant to protect him from harm from other inmates. The one prior assault, at another institution, had been determined to be unrelated to gang activity; Claimant never requested protective custody but asked only to be moved from a more restrictive housing unit to general population. And during the time he was in general population prior to the April 1998 assault, Claimant received no threats, communicated no concern for his safety, and did not ask for protection or to be moved. There is nothing in this sequence of events that would have put the State on notice that Claimant was at any heightened risk of being harmed by another inmate.
The Chief Clerk is directed to enter judgment in favor of Defendant, dismissing Claim No. 102210.
Let judgment be entered accordingly.

January 26, 2007
Albany, New York
Judge of the Court of Claims

[1]. At this point in the trial, Claimant offered two DOCS reports, Exhibits 6 and 7 marked for identification, that, he said, indicated threats against his life. Because the makers of the reports were not present to testify and Claimant had not asked that they be subpoenaed, the reports were not accepted into evidence (T, 56-59). Exhibit 6 was the Inmate Misbehavior Report relating to the November 11, 1997 incident and would have confirmed Claimant’s testimony that he was attacked by Inmate McNealy. Exhibit 7 was an Involuntary Protective Custody Recommendation dated November 27, 1997 and signed by Sergeant R. Walton, indicating that another correction officer had received confidential information that Claimant’s life was in danger (T, 67-72). Subsequently, on the second day of trial, these exhibits were accepted into evidence.
[2]. Following trial, counsel for Defendant informed the Court, and Claimant, that he had been unable to find copies of these letters in the files of the Attorney General’s Office or the Department of Correctional Services.

[3]. The description given by Saunders in a To/From handwritten memorandum dated April 9, 1998 (Exhibit 1), stated that Claimant “had a razor type cut across the right cheek to the back of the neck.” Photographs of Claimant’s injuries, taken by prison officials, were introduced as Exhibit 3, as were Claimant’s medical records as Exhibit 4. In those records, the cut to Claimant’s face was described as being approximately five inches long and made with a sharp object (T, 47). Sgt. Randall, who interviewed Claimant while he was hospitalized, described the cut as 3 inches long and requiring 10 stitches to close.
[4]. Faust was subsequently settled.