New York State Court of Claims

New York State Court of Claims
GIBSON v. THE STATE OF NEW YORK , # 2010-037-509, Claim No. 112431


Case information

UID: 2010-037-509
Claimant(s): LAVAR GIBSON
Claimant short name: GIBSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112431
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Lavar Gibson, Pro Se
Defendant's attorney: Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. Friedfertig
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 3, 2010
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a pro se inmate, alleges in Claim Number 112431 that he was assaulted on February 10, 2005 by an unidentified fellow inmate while in the custody of the New York Department of Correctional Services (DOCS) at Gowanda Correctional Facility (Gowanda). Claimant seeks to recover damages for personal injuries based upon the alleged negligence of DOCS in failing to protect him from the attack. Trial of this claim was conducted by video conference on July 20, 2010, with Claimant appearing at Woodbourne Correctional Facility in Woodbourne, New York, Defendant appearing at Gowanda in Gowanda, New York and the Court sitting in Buffalo, New York. Claimant offered his own testimony and Defendant offered the testimony of DOCS Sergeant M. Maternowski.

At trial, Claimant testified that on December 9, 2004 he wrote a letter to officials at Gowanda naming inmates, including Marino Castillo (Castillo), who were attempting to extort money from him for an alleged drug deal and threatening physical harm if he did not comply. On the following day Sergeant W. Page interviewed Claimant asking if he felt his life was in danger and offering protective custody which Claimant refused by signing a Declination of Voluntary Protective Custody. On January 17, 2005, Claimant wrote another letter to the administration requesting protective custody based upon a renewed threat of physical harm by Castillo. However, after an interview with Sergeant Maternowski, Claimant signed a statement in which he again declined protective custody and also signed a Declination of Voluntary Protective Custody both dated January 18, 2005.

Sergeant Maternowski filed an Inmate Misbehavior Report on January 18, 2005 charging Castillo with attempted extortion and making threats against Claimant. Following a Tier III disciplinary hearing at which Claimant testified, Castillo was found guilty of the charges and sentenced to nine months in the Special Housing Unit (SHU).

Claimant further testified that on February 10, 2005, at approximately 11:00 A.M., he was returning to his cell with other inmates for the master count when he was attacked from behind and slashed by an unknown inmate. He sustained a six inch laceration on the right side of his face extending from his eye to his ear and a laceration on his neck behind the right ear. Claimant never learned the identity of his attacker, although he suspected it was someone associated with Castillo. After the assault he was treated in the facility infirmary, Tri-County Hospital and Erie County Medical Center in Buffalo, New York where twenty-nine sutures were required to close the wounds. Claimant asserts that DOCS personnel could have prevented the attack by placing him in involuntary protective custody at Gowanda.

The Court notes that Claimant filed a request for voluntary protective custody on February 11, 2005 based on his fear that Castillo's associates would assault him again because of his testimony at the disciplinary hearing. The request was granted and he was placed in protective custody.

Defendant called Sergeant Maternowski to testify as a witness. He testified that he has been employed by DOCS for twenty-five years and in 2005 was employed at Gowanda. He stated that on January 18, 2005 he met with Claimant regarding alleged threats by inmates which resulted in the filing of a misbehavior report against Castillo based upon Claimant's testimony. At that time, he concluded that Claimant did not request protective custody because Castillo had been removed from general population and placed in SHU as a result of the disciplinary hearing. The witness also indicated that during movement of the inmates on February 10, 2005 there were several correction officers posted within eyesight of Claimant when the assault occurred but no one witnessed the incident.

It is well settled that "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 [2002]; see Flaherty v State of New York, 296 NY 342, 346 [1947]; Di Donato v State of New York, 25 AD3d 944 [2006]). As in any other negligence action, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" (Sanchez v State of New York, supra at 252; see Basso v Miller, 40 NY2d 233, 241 [1976]). Even though the "precise manner in which the harm occurred" may not be foreseeable, liability attaches if it was "within the class of reasonably foreseeable hazards" to which the duty applies (Sanchez v State of New York, supra at 252). Foreseeable risks of harm include the risk of attack by other inmates (see Littlejohn v State of New York, 218 AD2d 833 [1995]). That duty, however, does not render the State an insurer of inmate safety (Sanchez v State of New York, supra at 253). The scope of the defendant's duty of care is to exercise reasonable care to prevent foreseeable attacks by other inmates (see Padgett v State of New York, 163 AD2d 914 [1990], lv denied 76 NY2d 711 [1990]). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually knew, but also "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 v State of New York, supra at 254 [emphasis in original]). At the same time, Defendant's duty to prisoners does not "mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. 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).

To establish liability in an inmate assault case, Claimant must demonstrate one of the following: (1) the State knew or should have known that Claimant was at risk of being assaulted and yet failed to provide Claimant with reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act. "The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Wilson v State of New York, 303 AD2d 678, 679 [2003]).

The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so. The witnesses provided generally sincere and forthright testimony. Nevertheless, the Court finds that Claimant did not meet his burden of proof and failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with the attack perpetrated upon him.

Here, Claimant asserts that inmate threats to his personal safety were reported to DOCS officials yet he twice refused offers to be placed in voluntary protective custody, choosing instead to remain in general population. Also, at the time of the attack, the inmate named by Claimant as having issued threats had been removed from general population. Claimant testified that the incident occurred in an instant without warning. He offered no testimony that he knew his assailant before the incident, or that there was any prior history of encounters with the assailant. Aside from his own self-serving testimony, Claimant failed to present any credible evidence to show how or why the incident occurred. Further, Claimant failed to proffer any credible evidence regarding the assaulting inmate or any belief or fear of any dangerous propensities of the assaulting inmate. Therefore, Claimant failed to establish that DOCS had notice of a dangerous situation or that the incident that occurred was foreseeable with respect to him. In addition, Claimant presented no credible evidence that anything Defendant did or failed to do was the proximate cause of the injuries he suffered from this sudden attack. Accordingly, based upon the foregoing, the Court, although sympathetic to the injuries suffered by him, finds that Claimant has failed to establish by a preponderance of the credible evidence that his injuries were the result of Defendant's negligence and the Claim is hereby dismissed.

All motions not previously ruled upon or upon which decision was reserved are hereby denied.


August 3, 2010

Buffalo, New York


Judge of the Court of Claims