Claimant, an inmate proceeding pro se, brings this claim against defendant
State of New York (defendant), alleging that he was assaulted on January 20,
2004 by a fellow inmate due to negligent supervision by the Department of
Correctional Services at Elmira Correctional Facility (Elmira). Trial of the
matter was held in the Binghamton District on July 31, 2008.
claimant testified that after he had performed his usual job working in the mess
hall at Elmira on the date of the incident, he was playing cards while seated in
Mess Hall 2. He said that an unknown inmate approached him from behind and
slashed him across the face. He put his hand up to protect himself, and he was
also cut on the wrist. Claimant was taken to the infirmary, where he was
treated with 16 sutures to close a 4½-inch laceration to his right cheek,
and 3 sutures to treat a 1-inch laceration to his right wrist. Claimant waived
protective custody (Defendant’s Exhibit A), and was then placed in either
administrative segregation or involuntary protective custody
pending a hearing.
Claimant testified that he had previously been put into
IPC on January 5, 2004. Claimant testified that he was confined at that time
after prison officials received a note indicating his life was in danger. On
cross-examination, claimant acknowledged that he had come to his program
activity that day with a laceration to the head which took four sutures to
close. Claimant said that he had received the injury during a recreational
basketball game several days prior to that. Claimant admitted that he received
a misbehavior “ticket” for failure to report the injury. However,
claimant continued to cite his belief that prison officials had received
“a note or whatever”
indicating a threat to claimant as their basis for putting him in IPC. Claimant
also admitted that, when a protective custody hearing was held on or about
January 5, 2004, claimant stated that he did not believe he was in danger and
did not want to be placed in protective custody. Claimant was apparently
released back into general population, where he subsequently received the
injuries underlying this claim.
also testified at trial. He stated he had a fairly good recollection of
investigating this incident. After receiving a tip from a confidential
informant regarding the identity of the assailant, he presented claimant with a
photographic lineup. Claimant identified his assailant from the
Evans confirmed that his investigation revealed that claimant had
been put into IPC on January 5, 2004. However, contrary to claimant’s
testimony, Evans stated that the reason claimant had been put into IPC was
because prison officials were uncertain whether he had received his injury from
a fight or from a collision during a basketball game. He said that claimant
told his block officer that he might have been in a fight, but did not remember.
Claimant was issued a misbehavior report for failure to report an injury. After
the IPC hearing, claimant was released back into general population.
also testified that Correction Officer (CO) Squires was on duty in the mess hall
and scullery on January 20, 2004, when claimant was attacked. Evans said that
Squires was making his rounds at the time of the assault, consistent with his
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 ). 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 ). 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 inadequately addressed (Sanchez v State of New
, 99 NY2d 247 ; see also Flaherty v State of New
, 296 NY 342 ).
The only evidence presented at trial that
defendant knew or should have known that claimant was at risk of harm was
claimant’s own testimony that prison officials had received “a note
or whatever” indicating that claimant was in danger, thus precipitating
claimant’s placement in IPC on January 5, 2004. However, this testimony
was sharply contradicted by claimant’s own admission on cross-examination
that he had come to his program activity (working in the mess hall) on January
5, 2004 with a laceration to his head, and that he received a disciplinary
ticket for his failure to report the injury. This letter testimony was
consistent with Evans’ testimony that claimant was placed in IPC on
January 5, 2004 because prison officials were uncertain how claimant received
the injury with which he appeared in the mess hall on that day. There was no
other evidence which might have confirmed claimant’s contention that
prison officials had received a note indicating claimant was in danger.
Court finds that events transpired exactly as testified to by Evans: that
claimant was somehow injured on or before January 5, 2004, and when he appeared
in the mess hall with the injury giving contradictory explanations regarding how
he received it, he was placed in IPC pending a hearing. Claimant’s own
testimony at that hearing, as confirmed by him at trial, was that he received
the injury in a basketball game. Accordingly, there was no need to keep him in
IPC, and further, no basis for defendant to believe claimant was in any danger.
Moreover, claimant’s testimony that prison officials had received “a
note or whatever” indicating that claimant was in danger was not
consistent with the rest of claimant’s testimony, and his testimony on
that point was not credible. Claimant has not shown the element of notice of
foreseeability of harm necessary to prove his claim.
Claimant also contended
that if CO Squires had been physically present in the room at the time, the
attack could have been prevented, or at the very least, CO Squires could have
identified the assailant.
Obviously, these arguments are merely speculative, and there is no guarantee
that the attack could have been prevented if CO Squires had been
The absence of a correction officer in the mess hall is
insufficient to support a finding of negligence in and of itself, without a
showing of foreseeability. Because claimant did not meet his burden of proof
regarding foreseeability, the claim must be dismissed.
motion to dismiss is hereby granted, and all other motions upon which the Court
previously reserved or which were not previously determined at trial are
Let judgment be entered accordingly.