New York State Court of Claims

New York State Court of Claims
BUSH v. THE STATE OF NEW YORK, # 2021-053-506, Claim No. 125154, Motion No. M-96005


The State's motion for summary judgment in a claim brought by a former inmate alleging that the State negligently failed to protect him from an assault by his cell mate is granted. The State established that the assault was not reasonably foreseeable and that discretionary decisions regarding security and staffing were reasonable.

Case information

UID: 2021-053-506
Claimant(s): TIMOTHY BUSH
Claimant short name: BUSH
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125154
Motion number(s): M-96005
Cross-motion number(s):
Claimant's attorney: TIMOTHY BUSH, Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 25, 2021
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Timothy Bush, a former inmate proceeding pro se, alleges in claim no. 125154 that the defendant State of New York negligently failed to protect him from an assault by his cell mate while he was confined in a double bunk Special Housing Unit (SHU) cell at Lakeview Shock Correctional Facility (Lakeview). Defendant moves for summary judgment dismissing the claim. Claimant failed to appear or otherwise oppose defendant's motion.

According to the claim, claimant was relaxing in his double bunk cell at 6:00 p.m. on August 24, 2013, when his cell mate, the assailant K. Melendez, "suddenly, and without warning or provocation struck claimant in the back of the head from behind." For over 30 minutes after the assault, claimant alleges that he yelled for help before a Correction Officer (CO) arrived (Claim, 3; Exhibit A).

Assistant Attorney General Wendy E. Morcio contends in her supporting affidavit that claimant's basis of liability is three-fold: first, that defendant failed to protect him from an inmate who allegedly had a history of assaultive behavior and mental health issues; second, that he should not have been classified as suitable for double bunking; and third, that the levels of security staff were inadequate and that, accordingly, the staff at Lakeview did not respond in an appropriate amount of time.

Summary judgment is a drastic remedy which will only be granted when the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish his right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, his motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). Once a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (Id. Zuckerman v City of New York, supra at 562). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]).

"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, 252-253 [2002]). Negligence may not be inferred, however, simply because an incident occurred (Sanchez v State of New York, 36 AD3d 1065 [3d Dept 2007], lv denied 8 NY3d 815 [2007]). Rather, the State's duty is to provide "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985]).

The State's duty to prisoners does not require "unremitting surveillance" and does not make the State an insurer of inmate safety. The occurrence of an inmate assault does not establish the negligence of the State, without evidence that the assault was reasonably foreseeable (Sanchez, supra at 256).

With respect to claimant's allegation that the State failed to protect him, there is no evidence to support this allegation. There was no prior history of any altercations between claimant and inmate Melendez. According to the exhibits and affidavits submitted by the defendant, claimant arrived at Lakeview on July 1, 2013. Between that date and August 24, 2013, the day of the subject assault, there was no evidence of a prior assault by inmate Melendez against claimant and no reported threats of harm by Melendez. Claimant first bunked with inmate Melendez on August 1, 2013 (Exhibit D). During this twenty-three day period before the assault, there were no issues between claimant and inmate Melendez. There was no notice that inmate Melendez would assault claimant. In fact, claimant described the assault as being "sudden and without warning or provocation" (Claim, 3; Exhibit B). In his grievance (Exhibit F), claimant described the assault as happening for "no apparent reason." Where as here, there is no credible evidence that an assault by inmate Melendez upon claimant was reasonably foreseeable, the State cannot be held liable for failing to protect claimant (Williams v State of New York, 125 AD3d 1472 [4th Dept 2015]; Padgett v State, 163 AD2d 914 [4th Dept 1990]).

Claimant further alleges that he should not have been classified as suitable for double bunking and that the levels of staffing at the facility were inadequate. In support of its motion for summary judgment, defendant submits affidavits from: Correction Officer Dale VanValkenburg who was assigned to SHU at Lakeview on August 24, 2013; security expert Stewart Eckert, Supervising Superintendent of the Wende Hub, which included the Lakeview Facility; Joseph Bonacci, Assistant Director of Classification and Movement; Correction Officer Matthew Scarpine who was assigned to the SHU on August 24, 2013; and Captain Michael Napierala to address these issues.

Joseph Bonacci, the Assistant Director of Classification and Movement, averred in his affidavit that the Department of Corrections and Community Supervision (DOCCS), uses a computer program to record an inmate's criminal history, educational background, disciplinary history and to maintain an enemies/separation list. According to the affidavits of Bonacci and of Captain Michael Napierala, neither the claimant nor inmate Melendez was listed as a "separate" on the other's separation list. According to Bonacci, the selection of inmates for double booking involves the exercise of discretion. Both Bonacci and Napierala averred in their affidavits that claimant and inmate Melendez were appropriately screened, evaluated and met the criteria for double-cell placement at Lakeview. Where, as here, the acts of DOCCS officials in deciding double cell placements involve discretion, the State is immune from liability (Donald v State of New York, 17 NY3d 389 [2011]).

The State also provided an affidavit of Correction Officer (CO) Dale Von Valkenburg, who was the S Block Floor Officer assigned to the SHU at Lakeview on August 24, 2013. According to his affidavit, he made his required rounds at 6:11 p.m. and at 6:42 p.m., was notified of a disturbance and made a round to locate the disturbance. As he was making this round, he heard kicking and yelling coming from a cell, but could not identify the location of the noise until he arrived at claimant's cell. When he arrived at claimant's cell, he learned that claimant had been assaulted by inmate Melendez. He notified the supervisor, ordered Melendez into the recreation pen and took claimant to the bullpen to see medical. (see Log Book entries, Exhibit G).

Finally, the State provided an affidavit from Stewart Eckert, DOCCS' Supervising Superintendent of the Wende Hub which includes the Lakeview facility. Superintendent Eckert is familiar with DOCCS' rules and regulations regarding the supervision, security and management within SHU facilities and has previously provided affidavits as a security expert. According to Eckert, one control officer was stationed within SHU's control area or "bubble" in accordance with protocols, DOCCS' rules and regulations and the Correction Law. The bubble consisted of two levels providing a visual of the galleries surrounding the bubble and the outside recreation area. Due to privacy issues, the control officer could not see within the individual cells along the galleries. To do so, staff made routine rounds to view within each cell. According to the affidavits of Superintendent Eckert and of Matthew Scarpine, the SHU control officer on August 24, 2013, regular security rounds were made throughout the shift, and once the control officer was made aware of claimant kicking the cell door, he immediately notified security and supervision.

In conclusion, it was the opinion of Superintendent Stewart Eckert, as an expert in the field of prison security, that the level of security and staffing within Lakeview's SHU, coupled with the security staffing rounds was within acceptable standards and that the response by the SHU staff at Lakeview was adequate, reasonable and within acceptable standards for the supervision and management of SHU prison facilities.

As noted by the Court of Appeals in Sanchez v State, 99 NY2d 247 at 256 (2002):

"[T]he State'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."

I find that this is just one such claim. Here, the State has established its prima facie entitlement to judgment dismissing the claim by demonstrating that the assault by inmate Melendez on claimant was not reasonably foreseeable and that the discretionary decisions regarding security and staffing were also reasonable. In turn, claimant has failed to raise a triable question of fact by failing to file any affidavits in opposition to the State's motion for summary judgment.

Accordingly, the defendant State's motion no. M-96005 for summary judgment is granted and claim no. 125154 is dismissed.

February 25, 2021

Buffalo, New York


Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion and affidavit of Assistant Attorney General Wendy E. Morcio sworn to September 28, 2020, with annexed Exhibits A-K;

2. Supporting affidavit of Dale Van Valkenburg sworn to September 8, 2020;

3. Supporting affidavit of Stewart Eckert sworn to September 9, 2020;

4. Supporting affidavit of Joseph Bonacci sworn to August 18, 2020;

5. Supporting affidavit of Matthew Scarpine sworn to September 8, 2020; and

6. Supporting affidavit of Michael Napierala sworn to September 25, 2020.