New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2008-044-005, Claim No. 108651


Inmate’s claim for assault dismissed; claimant found not credible in his assertion that he advised prison officials of possibility of impending attack, and other evidence contradicted that assertion as well.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 24, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate, brings this claim against defendant State of New York (defendant), alleging that he was assaulted on December 15, 2001 by a fellow inmate, Vernon Jackson, at Elmira Correctional Facility (Elmira), due to negligent supervision by the Department of Correctional Services (DOCS). Trial of the matter was held in the Binghamton District on December 18, 2007. In light of the findings herein, the testimony and evidence regarding claimant’s alleged damages are not addressed.

At trial, claimant testified that the assault occurred as he and 15 to 20 other inmates were coming back from religious services that evening at approximately 7:30 p.m. He said that Correction Officer Manchester opened the gate to let him and Jackson onto their gallery to enter their cells. He said that the only inmates that were out of their cells on that gallery were the porter, Jackson[1] and himself. He went to get some hot water, returned toward his cell, and was standing in the four-foot-wide gallery talking to another inmate, who was presumably inside a cell. Jackson approached him in the hallway as if to pass, while carrying a bucket of water. As Jackson passed claimant, he dropped the bucket and stabbed claimant in the stomach and the arm. Claimant ran to the “slop sink”[2] room and locked himself in, while calling for help. Officer Manchester then returned and took claimant to the facility hospital. Claimant was later taken to a hospital outside the prison for further treatment.

Claimant testified that, prior to this incident, sometime in November, 2001, he had been approached by another inmate (not Jackson). This inmate, whom claimant could not identify, told claimant that he (claimant) should tell an officer he wanted to move out of his cell. The next day, Jackson told claimant to tell the officers he wanted to move. Claimant indicated that Jackson's comment was made in a threatening manner. Claimant said that Jackson approached him two or three times, again telling him to move, or there would be “a problem.”

Claimant said that he decided to tell an officer he wanted to move, and approached Officer Willette to ask if he could be moved to another cell, that of his friend “Ace.” He said Officer Willette told him to fill out a cell change request form. He did not advise Officer Willette at that time of the reason for his request. Claimant said he filled out the form Willette gave him[3] and put it in the mailbox (the intra-facility mail), but received no response. He said he filled out another cell change form several days later, and again did not receive a response. He claimed he gave yet a third request form to Officer Willette to hand-deliver, after telling him at some point that he expected there to be a “problem” if his request to change cells was not granted.

On cross-examination, claimant admitted that he had stated at his deposition that “if [he] had known [he] was in danger . . . [he] would have [gone] to the officer.” He said he thought that Jackson was just trying to scare him, although there might have been the potential for a fistfight. He did not think Jackson would “act out” over a cell. Claimant further acknowledged that he had stated at his deposition that, in his written requests for a cell change, he simply indicated there might be “problems” if the request was not granted, rather than indicating that he believed he might be in physical danger. Finally, claimant acknowledged that Jackson was not on his separatee list. Claimant rested his case at the conclusion of his testimony.

Officer Manchester testified on behalf of defendant. He had no memory of any events occurring on December 15, 2001, did not recall being present after claimant's assault, and said he did not respond to it.

Officer Willette also testified on defendant's behalf. Willette did not recognize either claimant's name or his face at trial. He had been an employee of DOCS for 21 years, 20 of them having been spent at Elmira. He said he routinely handed out cell change request forms[4] to inmates, and that around the time of the assault, he was probably giving out 10 to 15 of them per day. He did not recall ever having offered to hand-carry a cell change request form for an inmate. He also did not recall ever having any discussions with claimant, but said it was possible that he had spoken to him about a cell change. He also stated that he did not know what he would have done if an inmate had approached him saying that the inmate had not received any response to a cell change form.

Officer Andrew also testified for defendant. Andrew was the facility's Prisoner Movement and Control Officer at the time claimant was assaulted. During the course of discovery in this proceeding, Andrew was asked to locate any cell change requests filled out by claimant while he was at Elmira. Andrew testified that he searched in the facility archives and found no such slips, and further that no slips had been destroyed, to his knowledge. He said that these slips were maintained. Andrew also detailed the procedure followed by the facility when an inmate requested a cell change. He said that a change could take four or five days to be investigated and acted upon, unless there was the potential for danger to an inmate, in which case that inmate would be moved immediately.

Mary Carr, Inmate Record Coordinator at Elmira, also testified on defendant's behalf that she was unable to locate any cell change request forms filled out by claimant. She also was unable to locate the original photographs of claimant's injuries.[5] Defendant rested its case after Carr's testimony.

The State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [1999]). Despite this obligation, however, the State is not the insurer of the safety 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 [1985]). In order to establish that the State is liable for such an assault, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and which the State could have prevented (Sanchez v State of New York, 99 NY2d 247, 253 [2002]; see also Flaherty v State of New York, 296 NY 342, 347 [1947]).

Claimant has failed to prove his case by a preponderance of the evidence. Claimant himself acknowledged that he did not think Jackson would “act out” over a cell change. Claimant admitted that he stated at his deposition that if he thought he was in danger, he would have gone to an officer. Further, not only was claimant unable to support his testimony with copies of the cell change request forms he allegedly submitted,[6] but he actually identified a form not used at Elmira as the form he filled out to make that request. Based upon the foregoing, as well as upon an assessment of claimant's demeanor and testimony at trial, the Court finds that claimant was not a credible witness as regards his assertion that he informed (whether verbally or in writing) facility officials of an apparent threat to his safety (see Castilla v State of New York, Ct Cl, May 2, 2005, Scuccimarra, J., Claim No. 107997 [UID # 2005-030-009]; Robinson v State of New York, Ct Cl, June 17, 2002, Collins, J., Claim No. 95245 [UID # 2002-015-554]).

“When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State” (Sanchez v State of New York, supra at 256). Based on the evidence presented at trial, this is simply one of those unfortunate and unpreventable incidents. Claimant failed to demonstrate that defendant had notice, whether actual or constructive, of a potential attack, and thus failed to show that defendant breached its duty to him. Consequently, Claim No. 108651 is hereby dismissed.

Let judgment be entered accordingly.

March 24, 2008
Binghamton, New York

Judge of the Court of Claims

[1]. Claimant testified that he was not aware of Jackson's name at the time he was assaulted, but instead learned it later when he was shown pictures of inmates to see if he could identify his assailant.
[2]. All quotes herein are taken from the Court's recording of the proceedings, unless otherwise indicated.
[3]. Notably, the form claimant believes Willette gave him, a blank copy of which was admitted into evidence at trial (Claimant's Exhibit 12), is entitled “Request for Interview or Information.” Handwritten on that form, under a translucent sticker, are the words “This is from Wende Corr. Facility.”
[4]. Willette testified that he had never seen a form like Claimant's Exhibit 12, the form claimant testified Willette gave him in order to request a cell change. Willette stated that he would have given claimant a form entitled “Request for Cell and/or Housing Unit Change Form (Inmate Initiated)” (Defendant's Exhibit B) under those circumstances.
[5]. Copies of those photographs were provided to claimant during the discovery process, and were admitted into evidence at trial.
[6]. The Court credits Officer Andrew's testimony that he could not find any such requests, and that none had been destroyed.