The Court dismissed the case of a prisoner who was assaulted by a guard while standing in line in a prison mess hall after it determined that the assault took place outside the "scope of [the guard's] employment.”

On January 15, 2010, Jose Rivera was waiting to enter the mess hall for breakfast. Rivera wore a protective helmet for his seizure disorder. As he passed prison guard Wehby, the guard asked Rivera “what kind of stickers he wanted” in front of other prisoners. Sensing this, Rivera politely requested the guard to refrain from making such comments as he was afraid other prisoners would belittle him for it. Rivera got back into line and was again summoned by the guard. With no reasonable justification and absent any credible threat, Wehby proceeded to "strike [Rivera] on the right side of his head and ear.” Wehby continued to strike the prisoner even after another guard had applied cuffs to him. During the guard's attack, Wehby ripped off Rivera's helmet and stomped on his head. These underlying facts were "undisputed.”

Officer Wehby was indicted by a grand jury in 2011 “for assault in the second and third degree.” Wehby pleaded guilty only to “misdemeanor of official misconduct,” however. His punishment was being “allowed to retire” and a $1,000.00 fine. The Court further discharged his conviction on the condition that he refrain from violating laws.

On September 12, 2017, Rivera v. The State of New York was decided. Five years prior, Jose Rivera had filed a claim for “failure to provide adequate protection; gross negligence; excessive force; failure to properly train and supervise correction officers; negligence per se for assault and battery; and intentional infliction of emotional harm.” Rivera moved for summary judgment.

Since the facts had already been established previously, Rivera believed that the Court would rule that the State was negligent. The Court, however, ruled that even though the assault was undisputed, "Wehby was not quelling a dispute, or performing some other duty of his employment,” therefore the assault “fell far afield from actions within the scope of his employment.” Meaning, although Wehby, in his guilty plea for misdemeanor misconduct, stated that he “understood his action to be an unauthorized exercise of his official function,” the Court nonetheless disregarded those above. Therefore, the State of New York could not be held liable for Wehby's actions because they "fell outside the scope of his employment.”

See: Rivera v. State, # 2019-054-011 (N.Y. Ct. Cl. Feb. 27, 2019)

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