On July 25, 2004, while in the recreation yard at Clinton Correctional Facility
(Clinton), Jose Mercado (claimant) was injured in an altercation at
approximately 6:30 p.m.
Claimant testified that while having his hair braided, he was attacked from
behind by two unknown assailants who stabbed him with an ice pick, inflicting
injuries upon his chest, neck and arm.
Claimant asserts the defendant was negligent in its supervision of the
recreation yard, in permitting an ice pick into the yard (past metal
detectors), and in wrongfully placing claimant in the yard that day when he
should have been held in his cell that day, pending his scheduled trip to a
court proceeding the following day.
Upon cross-examination, claimant conceded that his claim stated that he had
been attacked by a single unknown assailant, and further, that after having been
given a ticket for fighting on July 25, 2004, he pled guilty to that charge at a
He further testified that the attack was sudden, that neither prior to nor
after the altercation had he requested protective custody, that he had no
enemies, had received no threats, did not feel threatened and that he did not
expect trouble on July 25, 2004.
Correction Officer James Canning, on duty in the recreation yard watchtower on
July 25, 2004, testified that he observed claimant and another inmate fighting,
that he immediately reported the fight via radio, and that officers responded in
20 seconds. On the same day of the altercation, Correction Officer Canning
prepared an Interdepartmental Communication (Exhibit A) and an Inmate
Misbehavior Report (Exhibit B) in which he indicates having observed the
claimant involved in a fight with another single, unknown inmate.
“Having 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 ). “This duty,
however, is limited to providing reasonable care to protect inmates from risks
of harm that defendant knew or should have known were foreseeable” (Di
Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). “The State .
. . is not an insurer of inmate safety, and negligence cannot be inferred solely
from the happening of an incident” (Colon v State of New York, 209
AD2d 842, 843 [3d Dept 1994]).
In determining if the State provided reasonable care to protect an inmate from
assault the court may consider whether the claimant had previous known
encounters with his assailant or had listed his assailant on an “
‘enemies list’ with the institution” (Elnandes v State of
New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider
whether the assailant was “a known dangerous prisoner” (Auger v
State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v
State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may
consider whether “claimant was a known assault risk” (Stanley v
State of New York, 239 AD2d 700, 701 [3d Dept 1997]).
The State’s potential liability for negligent supervision with respect to
an inmate-on-inmate assault is not limited, however, to situations in which
actual notice of a particular claimant's vulnerability or a particular
assailant's violent propensities can be shown. The State is also charged with
the duty of protecting an inmate from reasonably foreseeable risks of harm based
upon “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, 99 NY2d at 254 [emphasis in
The fact that a correction officer is not present at the exact time and place of
an assault does not rise to an inference of negligence absent a showing that
facility officials had notice of a foreseeable dangerous situation (Colon v
State of New York, 209 AD2d 842 [3d Dept 1994]; Padgett v State of New
York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711
A correctional facility superintendent has discretion to “provide for
such measures as he may deem necessary or appropriate for the safety, security
and control of correctional facilities” (see Correction Law §
137 and § 18; see Matter of Shabazz v Portuondo, 260
AD2d 733 [3d Dept 1999], lv denied 94 NY2d 756). In general, courts
should defer to prison authorities in matters of internal prison security
(Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]).
Beyond the substantial credibility issues raised by claimant’s testimony,
in which claimant failed to prove he was the victim or target of an assault, as
opposed to a willing participant, if not the aggressor, in a physical
confrontation, the claim must fail under the decisions cited above.
The lack of any known enemies of claimant, any previous threats to claimant, or
of any perceived threats to claimant, obviates any allegation that defendant
should have reasonably foreseen and taken measures to insulate claimant from
harm, especially given its suddenness. Prisons are sometimes violent locations,
housing violent individuals sometimes prone to sudden and violent acts. Those
facts cannot serve as a basis to find that defendant acted negligently under the
circumstances set forth in this claim.
For all of the foregoing reasons, the claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.