New York State Court of Claims

New York State Court of Claims

LUNA v. STATE OF NEW YORK, #2009-039-134, Claim No. 113067


Following a trial, the Court concludes that claimant did not prove by a preponderance of the credible evidence that defendant was negligent in connection with an alleged inmate assault upon claimant. No credible proof was offered that defendant knew or should have known that an assault on claimant by the three inmates involved was reasonably foreseeable, or that claimant was in foreseeable danger from an attack by a fellow inmate.

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):

James H. Ferreira
Claimant’s attorney:
Jose Otero Luna, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael RizzoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 20, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Jose Otero Luna alleges that on or about November 1, 2006, he was assaulted by three fellow inmates while in the recreation yard in the Clinton Annex at Clinton Correctional Facility. A trial on this claim was held via video conference on May 19, 2009. Claimant, who speaks primarily Spanish, testified on his own behalf with assistance from an interpreter. Defendant called one witness to testify. Exhibits received into evidence included ambulatory health records relating to claimant and certain New York State Department of Correctional Services (hereinafter “DOCS”) records.

At the time of the November 2006 assault, claimant was serving a sentence arising from an incident which allegedly occurred in Manhattan in July 2004. Claimant was transferred from Rikers Island to Downstate Correctional Facility on February 22, 2006. When he arrived at Downstate, he was interviewed by a DOCS counselor. The questions and answers from that session were entered into a computer. Claimant stated that he was asked, among other things, whether he had any type of “separation” order or any enemies in jail. He told them that he had a “separation” with his co-defendants from his criminal trial, but was unable to proffer any evidence of this separation order or document. During cross-examination, claimant could not recall whether he was asked by the counselor if he had any need for protective custody or whether he told anyone on February 22, 2006 that he had no enemies and no concerns.

Claimant was subsequently transferred from Downstate to the Clinton Annex at Clinton Correctional Facility on October 31, 2006.[1] He stated that he arrived at Clinton at 7:45
At approximately 9:00
that evening, claimant spoke with a sergeant who told him that he was aware claimant had come from protective custody, but that “here everything is OK, everything is fine.” Claimant stated that he asked for an interpreter and the sergeant told him that he knew some Spanish. The next morning, at 9:45
, claimant was called to get his property. Claimant asked an officer in the area how inmates moved around the facility. He was told that inmates attended one mandatory meal and could sign up to go to the yard. He asked about programs that he would be involved in and was told that he would be informed of those by DOCS personnel. He went to the mess hall at 11:00
, had a meal, returned to his dormitory and watched some television with other inmates. At 3:30
, claimant was called to go to the yard, and by 3:45
., he was in the yard. He walked around the yard five times before sitting down and greeting a few Hispanic inmates who had said hello to him.

Claimant stated that a few seconds later, two inmates approached him. One inmate grabbed his right arm, and the other inmate grabbed his left arm. A third inmate named Jose Martinez then approached him with a “huge” rock and struck him in the head. According to claimant, Jose Martinez was a co-defendant at claimant’s criminal trial. Claimant stated that the inmate who grabbed his right arm then struck him on the nose with a rock, and that he was also cut on the cheek with a knife. He stated there was no officer in the area of the attack. He broke away from his assailants and found an officer, who had difficulty understanding claimant’s English. Claimant started bleeding from his head, and the officer activated an incident response switch. Claimant recalled fainting and that the officer tried to pick him up. He was then assisted to the on-site facility hospital where he was asked who assaulted him. He responded that it was his co-defendant. His head was wrapped, and he was taken by ambulance to a hospital outside the facility where he received five stitches on his scalp. His nose was also broken, and he stated that the assault still causes him nightmares. The Court received into evidence, without objection, six pages of records relating to his injury and treatment (see claimant’s exhibit 1).[2]

During cross-examination, claimant stated that an inmate named William Williams was a co-defendant in the conviction that led to his incarceration, but was not one of the three inmates who attacked him. Claimant identified Jose Martinez as the person who struck him and as the person he described at trial as his “co-defendant”. He agreed that one of the other two inmates holding his arms during the assault was named Vergos (ph), but could not recall whether the other assailant’s name was Aarius (ph). He acknowledged that “it’s possible” that when he arrived at Clinton he met with Mr. Joswick, a counselor at Clinton, but that Joswick never asked claimant whether he had any safety concerns or whether he needed protective custody.

Defendant called Peter Frederick, a DOCS Supervising Correction Counselor at Clinton for the past four years, and employed in correction counseling for approximately 22 years. During his testimony, the Court received into evidence a DOCS Reception Assessment Worksheet prepared with claimant upon his arrival at Downstate in February 2006. The worksheet shows that claimant was asked various questions by a counselor and delineates claimant’s answers (see defendant’s exhibit A). A box on this worksheet indicating whether protective custody was needed was marked in the negative and the worksheet states “[i]nmate claimed no enemies, stated no concerns” (id.). The Court also received into evidence, without objection, a form labeled “Chronological Entry Sheet Clinton Correctional Facility - Annex” (see defendant’s exhibit B). Frederick testified that this sheet, which states that on October 31, 2006 claimant was transferred from “Downstate General to Clinton Annex,” indicates that claimant was transferred from a general population classification at Downstate. The sheet also reveals that he underwent an initial interview with a counselor on November 1, 2006, and that the counselor noted that claimant was a “separation transfer from downstate CADRE; no recent concerns voiced” (id.).[3] Frederick testified that a reception interview at Clinton would ordinarily cover an inmate’s special needs, any past or current problems, any safety concerns and what claimant could expect at the Annex. Frederick acknowledged that the counselor ordinarily asked the questions in a reception interview. In an entry dated November 21, 2006, the sheet states that “separtee [sic] data has already been submitted for three individuals that were found to be involved in . . . assault on Otero-Luna.”

The Court also received into evidence a computer printout titled “Separation System Overview Display” (see defendant’s exhibit C). The document dated November 2, 2006 applies to claimant and lists two inmates, William Williams and Orie Bennett, as inmates that needed to be kept separate from claimant. Significantly, two of the persons alleged to have been involved in the commission of the crimes that led to claimant’s incarceration were William Williams and Jose Martinez. However, claimant stated that Williams did not participate in the assault, and according to the printout, no one named Jose Martinez, or the other two alleged assailants, Aarius (ph) and Vergos (ph), were listed as persons to be separated from claimant (id.).

It is axiomatic that “[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” (Sanchez v State of New York, 99 NY2d 247, 252 [2002]; see also Flaherty v State of New York, 296 NY 342, 346 [1947]; Di Donato v State of New York, 25 AD3d 944 [2006]; Littlejohn v State of New York, 218 AD2d 833 [1995]; Dizak v State of New York, 124 AD2d 329 [1986]). However, “negligence may not be inferred merely because an incident occurred” (Sanchez v State of New York, 36 AD3d 1065, 1066 [2007]). “[T]he scope of the State’s duty to protect inmates is limited to risks of harm that are reasonably foreseeable” (Sanchez v State of New York, 99 NY2d at 253). “In order to establish that the State is liable for such an assault, [the] 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” (Vasquez v State of New York, 16 Misc 3d 1116(A) [2007]).

Upon applying these principles to the facts at issue, and having considered the evidence, including the testimony and demeanor of the witnesses and the exhibits, the Court finds that while the attack on claimant was unfortunate, claimant has failed to prove by a preponderance of the credible evidence that defendant was negligent in connection with the inmate assault on claimant. No credible proof was offered indicating that defendant knew or should have known that an assault on claimant by the three inmates involved was reasonably foreseeable, or that claimant was in foreseeable danger from an attack by inmate Jose Martinez, claimant’s co-defendant. Claimant provided no evidence of a separation order involving Martinez or his other co-defendants, or any other documentary proof which would establish that the three assailants were enemies of claimant or needed to be separated from claimant. Even accepting as true claimant’s assertion that a separation order existed, the only evidence demonstrating that claimant had “separatees,” or persons he needed to be separated from, was defendant’s exhibit C, which identified two inmates, William Williams and Orie Bennett, neither of whom were identified as being involved in the assault.

Furthermore, claimant acknowledged that he was interviewed by counselors when he arrived at Downstate and at Clinton. The documentary proof arising from those interviews suggests that the issues of protective custody, enemies and safety were raised with claimant and that claimant’s responses failed to trigger any such concerns (see defendant’s exhibit’s A and B).

Based on the foregoing, the Court concludes that claimant failed to prove by a preponderance of the credible evidence that defendant was negligent in its care of claimant by failing to foresee and prevent the attack on claimant by three other inmates. “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). Accordingly, this claim is dismissed in its entirety. Any and all motions upon which this Court may have previously reserved on or not previously decided are hereby denied, and any objections previously reserved on and not otherwise addressed herein are overruled.

The Clerk of the Court is directed to enter judgment in accord with this decision.

August 20, 2009
Albany, New York

Judge of the Court of Claims

[1].There is some conflicting testimony regarding when claimant arrived at the Clinton Annex. Claimant testified that he arrived at Clinton on 11/1/06 and that the assault occurred on 11/2/06. Records received into evidence, however, suggest that he was transferred on 10/31/06, met with the counselor at Clinton on 11/1/06, and that the assault occurred later that day (see claimant’s exhibit 1; defendant’s exhibit B).
[2].Claimant referred to a written request that he claims to have made to the Court for issuance of a subpoena directing defendant to provide him with a copy of a video of the alleged assault. Neither the Court’s files nor the Attorney General’s files contained such a request. Nor is there any proof before the Court to show that a demand for any such discovery was ever made.
[3]. No testimony was provided as to what the term “separation transfer” means. Claimant also stated that he was not in the CADRE unit at Downstate at the time he was transferred to Clinton, but had been in protective custody separated from the general population. Other than his own testimony, no proof of this assertion was provided.