On July 6, 2020, Claimant, Marlon Hinkson, (hereinafter, the "Claimant"), filed a verified claim seeking damages in the amount of $1,350,000.00 for negligent supervision of Claimant due to a physical altercation, which allegedly occurred at the Auburn Correctional Facility (hereinafter "Auburn"), between Claimant and another incarcerated individual (hereinafter, the "Claim"). The State interposed a Verified Answer on August 3, 2020.

The matter was duly scheduled and called for trial on the record on June 12, 2024 ^[FN1] . The Claimant testified on his own behalf and the State did not call any witnesses. The parties stipulated to Defendant's Exhibits A through E being entered into evidence.

The Court took judicial notice of the pleadings, which are part of the Court's record, to wit: the Claim, along with the documents annexed thereto; and the Verified Answer. (see e.g. People v Petgen, 55 NY2d 529, 536 [1982] [recognizing a court's authority to take judicial notice of its own records]).

The parties stipulated to the following facts: On May 22, 2020, Mr. Hinkson was assaulted in the south yard at Auburn at 8:35pm by an unidentified individual and was placed into Involuntary Protective Custody (hereinafter "IPC") for safety reasons. Claimant sustained a 3 inch and 0.5 inch laceration in the cheek and was sent to an outside hospital, where he received stitches in his right cheek. He also received stitches from the tip of his lip over to the back of the ear.

The Claim alleges that on May 20, 2020, when returning back to his cell after lunch, Claimant found a note instructing him to submit to Protective Custody ("PC") within 48 hours or else he would be seriously injured or killed because he is a "crip gang banger." He said when the guard made his rounds, he showed him the note and informed him that he wanted to see the [*2]Sergeant. The guard said it was probably a joke and that the Sergeant was busy. Shortly thereafter, when released from his cell, Claimant alleges that he informed the Sergeant about the note who also said it was probably a joke. The following day on May 21, 2020, upon coming back from dinner he found another note in his cell that stated if he did not "check into PC by Friday morning" that he would be "bodied" or seriously hurt. The Claim further alleges that Claimant stopped at the main desk and spoke to several guards and showed them the two notes and was told to "be a man and handle your business." On the evening of May 22, 2020, while in the south yard, Claimant alleges he was cut from behind on his right cheek, and punched in his face by a second person he did not know.

Claimant gave the following relevant credible testimony:

Claimant testified that he received two notes on his bed. He told the hall captain of the first note he received. The hall captain laughed at him. Two days later he received another note on his bed. He told the Sergeant about this second note. The Sergeant's response was that "if you are gang banging this is what you get."^[FN2] Claimant testified that he then went to the booth in the yard to tell the Sergeant in the yard, who directed Claimant "to get away from his station." Thereafter, Claimant was slashed across the right side of his face and when he turned to the right, he saw the incarcerated individual who cut him running away and another incarcerated individual coming towards him who punched him in the head. Claimant and the person who threw the punch got into an altercation. He testified that the officer in the yard and another officer witnessed the whole incident.

Claimant testified that he went to medical and received stitches on his cheek. He testified that he told the Sergeant he did not feel comfortable in this environment and 18 days later he almost got cut again. Thereafter, he was put into IPC.

On cross-examination, Claimant testified that he was housed at Auburn from 2019 to sometime in 2021, that when he first came into Department of Corrections and Community Supervisions ("DOCCS") custody he did not disclose any known enemies at his intake interview. Claimant further testified that prior to the incident, he did not have any altercations in his cell block He denied any gang affiliation, but stated that there are gangs throughout the whole prison system. He testified that he received the two threatening notes as follows: the first note on May 21, 2020, and the second note on May 22, 2020. It was after he received the second note, and was denied assistance from staff that he was slashed across his face. After having been cut, he refused PC.

On re-direct examination, Claimant testified that the reason he refused PC after he was cut was because of the nature of the culture of the prison. He stated that if PC had been offered to him prior to the incident, he would have accepted. He further testified that if, however, he accepted PC after the incident, he would have been placed in greater physical danger. This, according to him, is how things work in the prisons.

Claimant rested and Defendant did not call any witnesses. After Claimant rested, Defendant moved to dismiss based upon Claimant's failure to meet a prima facie case of negligent supervision. The Court reserved decision on that motion.

It is well settled that "[h]aving assumed physical custody of [incarcerated individuals], who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard [incarcerated individuals], even from attacks by fellow [incarcerated individuals]," (Sanchez v State of New York, 99 NY2d 247, 252 [2002]; see also Flaherty v State of New York, 296 NY 342 [1947]). This duty does not require "unremitting surveillance in all circumstances," nor does it cast the State in the role of an insurer of [incarcerated individuals], safety (Sanchez, 99 NY2d at 256). Rather, "defendant's duty is limited to providing reasonable care to protect [incarcerated individuals], from risks of harm that are reasonably foreseeable, i.e., those that defendant knew or should have known" (Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]; see also Dickson v County of Putnam, 171 AD3d 1131 [2d Dept 2019]; Wassmann v County of Ulster, 144 AD3d 1470 [3d Dept 2016]; Anderson v State of New York, 125 AD3d 1273 [4th Dept 2015]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The mere occurrence of an [incarcerated individual] assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez, 99 NY2d at 256; Williams v State of New York, 125 AD3d 1472, 1472 [4th Dept 2015], lv denied 25 NY3d 907 [2015]; Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012]).

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; see Basso v Miller, 40 NY2d 233, 241 [1976]; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). Even though the "precise manner in which the harm occurred" may not have been 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; Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]). Moreover, it applies to those risks that were foreseeable, "not simply by actual notice but by actual or constructive notice - by what the 'State knew or had reason to know'" (Sanchez v State of New York, supra at 255, quoting dissenting op at 260).

As in the Sanchez case, this Court is "concerned in this negligent supervision case with what risk the State, operating a maximum-security prison and having custody of [incarcerated persons] forcibly surrounded by [incarcerated persons] many of them with a proven capacity for violence—should reasonably have foreseen in the circumstances presented." (Sanchez v State of New York, supra at 256).

Like other duties in tort, the scope of the State's duty to protect [incarcerated individuals] is limited to risks of harm that are reasonably foreseeable (Sanchez v State of New York, supra; see Villar v Howard, 28 NY3d 74, 80 [2016] [finding facility need not foresee specific harm]). "To carry the burden of proving a prima facie case, the [claimant] must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Claimant need not demonstrate that "the precise manner in which the accident happened, or the extent of injuries, was foreseeable" (id.; see Harris v State of New York, 117 AD2d 298, 303 [2d Dept 1986]).

The State has been found negligent in incarcerated person on incarcerated person assault claims where a claimant was able to establish that the attack was foreseeable because: (1) Defendant knew, or should have known, that the claimant was at risk of assault, yet failed to provide reasonable protection; (2) Defendant knew, or should have known, that the assailant was [*3]prone to perpetrate an attack, yet failed to take proper precautionary measures; or (3) Defendant failed to intervene or act when it knew, or should have known, that surrounding conditions were likely to engender or facilitate an attack (Smart v State of New York, UID No. 2007-029-053 [Ct Cl, Mignano, J., Dec. 21, 2007], affd 65 AD3d 1218 [2d Dept 2009]; Douglas v State of New York, UID No. 2007-028-012 [Ct Cl, Sise, P.J., May 17, 2007]; Shearin v State of New York, UID No. 2007-028-011 [Ct Cl, Sise, P.J., May 8, 2007]). As this Court stated in Mercer v State of New York (Ct Cl, July 22, 1996 [Claim No. 90188], Corbett, J.), "[L]iability may be based either on defendant's failure to protect claimant from a known dangerous prisoner or to use adequate supervision to stop that which was foreseeable in an immediate or proximate sense, rather than in some generalized way" (see also Spadaro v State of New York, 38 Misc 2d 489 [1963], affd 28 AD2d 604 [1967]).

Applying the foregoing to the credible testimony and documentary evidence presented, the Court finds that Claimant has met his burden, by a preponderance of the evidence to establish a prima facie case of negligent supervision. Here, Claimant received two threatening notes advising him that if he did not check into PC he was going to get cut. After receiving each note, Claimant went to a DOCCS staff member, who laughed in his face and forced him away instead of taking steps to ensure his safety. Claimant sought protection from DOCCS prior to him being assaulted, but was not offered protective custody until after he was viciously slashed across the face.

In light of the State's breach of duty to the Claimant, the Court finds that Defendant is 100 percent liable for Claimant's injuries, and the Court awards him $5,000.00 for the injury he sustained and for pain and suffering. To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled. All motions are denied as moot.

The Clerk of the Court is directed to enter judgment accordingly.