New York State Court of Claims

New York State Court of Claims

MALAVE v. THE STATE OF NEW YORK, #2009-044-001, Claim No. 110505


Inmate’s claim for personal injuries received in assault by mentally ill fellow inmate dismissed for failure to show that defendant had notice of potential attack

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: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 14, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, brings this claim against defendant State of New York (defendant), claiming that he was assaulted on September 18, 2004 by an allegedly mentally ill fellow inmate due to negligent supervision by the Department of Correctional Services at Elmira Correctional Facility (Elmira). Trial of the matter was held at Elmira on November 5, 2008.

At trial, claimant testified that he was working in the mess hall at Elmira serving breakfast on the date of the assault. He turned around to get another serving tray, and when he turned back around he was hit in the head by a tray thrown by another inmate. He received 12 sutures for an approximately 3½-inch laceration to the forehead.[1] Claimant said that while he was in the infirmary, he was advised by a correction officer that the tray had been thrown by a mentally ill inmate.[2]

Claimant stated that he did not know his assailant, and at trial did not recall any conversation with him prior to the incident. He also did not see the tray flying at him until it hit him. He declined to be placed in protective custody after the assault, because he did not believe he was in danger.

Correction Officer Huffner also testified at trial. He said that on the day of the incident, he was assigned to supervise the food line at breakfast. He was standing approximately five to six feet away from claimant. He said that an inmate stopped in the line, which caught his attention, and then that inmate threw his serving tray at claimant. Huffner intervened and took the assailant back to his cell immediately. He said he had never seen the assailant before. Huffner also testified that some inmates with mental health issues did participate with other inmates in such activities as recreation, eating and other programs.

Sergeant Harvey also testified. He stated that he was the supervisor in charge of the mess hall on the day of the incident, and was standing at the back wall of the mess hall. He saw claimant’s assailant get in line and subsequently throw the tray at claimant. He acknowledged that claimant’s assailant was classified as a mental health unit level two. He defined a level two mental health inmate, stating that a level one inmate would be the most seriously ill, and a level six inmate would be someone “normal.” He said that there were many level two inmates in general population, and that there was no way for anyone - including correction officers - to know whether a particular inmate had mental health issues unless they had previously interacted with that inmate.

Harvey initiated a “To-From” memo regarding the incident to his supervisor, Lieutenant Erickson.[3] That memo stated that after the assault claimant said that his assailant asked for more eggs on his plate, and claimant said he could not give him any more. The memo concluded that the incident was spontaneous, and arose “over the fact that [claimant] refused to give [his assailant] more eggs then [sic] he was intitled [sic] to.”[4]

It is well settled that 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 inadequately addressed (Sanchez v State of New York, 99 NY2d 247 [2002]; see also Flaherty v State of New York, 296 NY 342 [1947]).

Claimant has failed to prove his case by a preponderance of the evidence. Claimant does not contend that he was specifically at risk. Rather, claimant appears to argue that defendant should have known that the fellow inmate was dangerous solely due to his alleged mental illness. However, there was no showing either of any previous propensity for violence on the part of claimant’s assailant, or of any basis whereby defendant might have known or had reason to know that this inmate posed a particular risk to those around him.

“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. 110505 is hereby dismissed.

Let judgment be entered accordingly.

January 14, 2009
Binghamton, New York

Judge of the Court of Claims

[1]. Claimant’s Exhibit 3, Inmate Injury Report.
[2].The name of claimant’s assailant, which is referenced in the Inmate Misbehavior Report admitted as Claimant’s Exhibit 2, has been omitted from this Decision to protect his privacy.
[3]. Defendant’s Exhibit B.