New York State Court of Claims

New York State Court of Claims
MAS v. THE STATE OF NEW YORK, # 2010-015-506, Claim No. 111672


Claim for injuries sustained in an inmate-on inmate assault was dismissed following trial. Claimant failed to prove by a preponderance of the credible evidence that DOCS knew or should have known of the risk of harm.

Case information

UID: 2010-015-506
Claimant(s): ORLANDO MAS
Claimant short name: MAS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111672
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Orlando Mas, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Stephen Maher, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 11, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


This claim arising out of an inmate-on-inmate assault proceeded to trial on December 2, 2009.

The claimant, Orlando Mas, testified at trial that on June 11, 2005 he advised the New York State Department of Correctional Services, Division of Classification and Movement, of his concerns regarding the potential for problems with members of the Latin Kings gang housed at Great Meadow and Clinton Correctional Facilities. The letter (Exhibit 1) stated that the claimant had previously been assaulted by members of the Latin Kings while confined at Clinton Correctional Facility in October 2003 (Exhibit 1). Although he testified the letter was served by Certified Mail, Return Receipt Requested, claimant contended at trial that he was unable to produce the return receipt because it had been lost during a previous intra-facility transfer.

Claimant was transferred to Great Meadow Correctional Facility on August 15, 2005 without having received a response from the Division of Classification and Movement. On August 16, 2005 the claimant alleges that he informed Mr. Osborne, a counselor at Great Meadow, of the potential threat he faced from Latin Kings' members while in the facility. According to the claimant, Mr. Osborne informed him that he could not provide any assistance unless the claimant could provide the names of specific individual inmates. Claimant responded that he did not know the names of the individual inmates and that the threat emanated from the Latin Kings, in general. Later that day the claimant went to the recreation yard and was assaulted by an unknown assailant, sustaining a laceration to his face which the claimant testified required fifty stitches to close.

On cross-examination Mr. Mas testified that he did not possess a return receipt for the letter allegedly mailed to the Division of Classification and Movement on June 11, 2005. He agreed that, in any event, the letter does not identify a specific individual as an enemy. Although he repeated his testimony on direct examination that he advised Counselor Osborne of the potential danger from members of the Latin Kings organization, he was informed that nothing could be done unless he could identify the specific individual(s) who posed a potential danger.

The defendant called Harold Osborne to the stand, who testified that he has been a counselor at Great Meadow Correctional Facility for the past 26 years and that as part of his duties he performs initial interviews with inmates transferred to Great Meadow Correctional Facility, generally within five days of their receipt at that facility. Prior to conducting an initial interview it is his practice to consult the Separatees List maintained by DOCS which lists each individual inmate's identified enemies. Mr. Osborne could not specifically recall his interview with the claimant. He did, however, indicate that had claimant informed him that he had enemies at Great Meadow Correctional Facility that fact would have been noted on Exhibit A, claimant's Inmate Orientation - Initial Interview form. Although the security profile section of Exhibit A indicates that the claimant had enemies, Mr. Osborne testified that the entry indicates that claimant had identified enemies within the statewide correctional system. It does not refer to enemies housed at Great Meadow Correctional Facility. According to Mr. Osborne, had the claimant identified enemies at Great Meadow he would have noted "protective custody investigation" on Exhibit A and designated claimant for keeplock, and the claimant would have been " pink tagged" as a result of which he would not have been permitted to leave his cell unaccompanied by a correction officer.

The defendant next called Douglas Botsford, the Acting Director of the Department of Correctional Services, Division of Classification and Movement. Mr. Botsford testified that the Division of Classification and Movement is charged with the responsibility of ensuring that inmates who are identified as enemies are separated within the correctional system. The witness testified that correspondence received from inmates expressing concerns for their safety are placed in the inmates' files. Mr. Botsford reviewed the claimant's file maintained by the Division of Classification and Movement as well as the DOCS' computerized separation list for any indication that the claimant had corresponded with the Department in or around June 2005 regarding concerns for his safety. Mr. Botsford testified that he personally reviewed the file maintained on the claimant by the Division and that it contains no such correspondence for the period in and around June 2005.

At the close of the defendant's case the claimant explained that the return receipt for the correspondence to the Division of Classification and Movement in June 2005 was lost by Department of Correctional Services personnel during the course of transporting him to various facilities to attend a previous court session.

It is well settled that the State has a duty to safeguard inmates from attacks by fellow inmates (Sanchez v State of New York, 99 NY2d 247 [2002]). As stated by the Court of Appeals in Sanchez:

"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" (Id. at 252).

This duty does not require "unremitting surveillance in all circumstances," nor does it cast the State in the role of an insurer of inmate safety (Sanchez v State of New York, 99 NY2d at 256). Rather, the scope of the duty is limited to risks of harm that are reasonably foreseeable, which is to be determined not only by what the defendant knew but what it should have known (Id. at 253, 255; see also Vasquez v State of New York, 68 AD3d 1275 [2009]; Di Donato v State of New York, 25 AD3d 944 [2006]). "Although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent" (Sanchez v State of New York, 99 NY2d at 252). Here, the claimant failed to establish by a preponderance of the credible evidence that the risk of harm to the claimant was reasonably foreseeable.

While claimant testified that he had been assaulted by members of the Latin Kings at Clinton Correctional Facility and that he notified DOCS both by letter and orally of the potential threat of harm posed by members of the Latin Kings at Great Meadow, claimant failed to establish that his assailant was a member of the Latin Kings. Claimant testified that he was unaware of the identity of his assailant and no evidence was adduced at trial linking his assailant to any gang. Absent such evidence the Court cannot conclude that the assault on the claimant was a foreseeable result of any breach of duty on defendant's part (see Di Donato v State of New York, supra).

In addition, the Court does not find credible claimant's testimony that he notified Mr. Osborne, who performed the initial interview at Great Meadow, of the threat he faced from members of the Latin Kings. Mr. Osborne testified that had he been so informed, he would have noted "protective custody" on the interview form, which he did not do (Exhibit A). Likewise, to the extent claimant contends that a letter dated June 11, 2005 informing the Division of Classification and Movement of the potential threat posed by members of the Latin Kings was sent by certified mail, return receipt requested, no return receipt was produced at trial and Mr. Botsford testified that his review of the files disclosed no such letter. Under these circumstances the Court concludes that claimant failed to prove negligence by a preponderance of the credible evidence.

Based on the foregoing, the claim is dismissed.

Let judgment be entered accordingly.

February 11, 2010

Saratoga Springs, New York


Judge of the Court of Claims