His proposed claim alleges negligence stemming from an assault upon him by
another inmate at Wende Correctional Facility on August 12, 2000. Claimant
asserts that Defendant failed to take proper precautions to protect him from the
assault, and that Defendant failed to intervene once correction officers became
aware of thealtercation between the two inmates. Claimant states that his
assailant was HIV positive. On August 12, 2000, Claimant and this inmate
allegedly had a verbal altercation which took place in the presence of at least
one correction officer. This altercation escalated to a point at which this
other inmate attacked and bit Claimant. Claimant alleges that he has suffered
both physical and emotional injuries, stemming from his wounds and the resulting
fear that he might have contracted AIDS during the altercation.
Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in
connection with a late claim motion: (1) whether the delay was excusable; (2)
whether Claimant has any other remedy; (3) whether Defendant had notice of the
essential facts constituting the claim; (4) whether Defendant had an opportunity
to investigate; (5) whether Defendant would be substantially prejudiced; and
(6) whether the claim appears to be meritorious. This list is not exhaustive
and the presence or absence of any one factor is not dispositive. Rather, the
Court in its discretion balances these factors in making its determination.
(Bay Terrace Coop. Section IV v. New York State Employees' Retirement Sys.
Policemen's and Firemen's Retirement Sys., 55 NY2d 979).
As to his excuse for failing to file a timely claim, Claimant, who only recently
retained counsel, asserts that he is not an attorney and had no access to the
legal library where he was incarcerated during the statutory period. He also
states that he suffered from extreme depression for several months after the
attack and was, therefore, unable to properly file a timely Claim. Claimant
failed to provide documentation from a medical care provider that he was either
physically or mentally incapacitated. However, I do take notice of the fact
that such support might be difficult for an inmate to obtain. The fact that
Claimant is not a lawyer, or that he is incarcerated does not justify his
failure to comply with the time requirements of the CCA. (Bommarito v. State
of New York, 35 AD2d 458; Plate v. State of New York, 92 Misc. 2d
1033, 1037-1038). This factor, therefore, tends to weigh in favor of Defendant.
Claimant does not have an alternate remedy available to him and this factor
weighs in his favor.
The next three factors covering notice, opportunity to investigate and prejudice
are closely related and may be considered together. (Brewer v. State of New
York, 176 Misc 2d 337, 342). Defendant had notice of the altercation.
Defendant's agent, C.O. Dorsey, issued Claimant a written misbehavior report
that same day. (Defendant's Affidavit in Opposition, Ex. A). Defendant
conducted a disciplinary hearing regarding the incident on August 16, 2000.
(Proposed Claim, Ex. A). Claimant also alleges, and Defendant does not
dispute, the existence of documentation in Claimant's medical file which
presumably supports the Claimant's assertions of notice to Defendant. This
medical file is created and maintained by officers or agents of Defendant.
In support of its position that it would be prejudiced by permitting the claim
at this time, Defendant points out that C.O. Dorsey, whom Claimant alleges
witnessed the incident, has retired and is no longer an employee of the State.
Defendant does not allege, however, that C.O. Dorsey's whereabouts are unknown,
or that he can not be contacted. Further, the Inmate Misbehavior Report
references a second witness, C.O. Olsen. Defendant did not discuss C.O. Olsen's
availability. Taken as a whole it does not appear that Defendant's ability to
investigate or defend this action has been significantly prejudiced.
The final and most important factor to be considered is merit. It is well
settled that the State is required to use reasonable care to protect the inmates
of its correctional facilities from foreseeable risk of harm ( see, Flaherty
v. State of New York, 296 NY 342; Dizak v. State of New York, 124
AD2d 329; Sebastiano v. State of New York, 112 AD2d 562). Foreseeable
risk of harm includes the risk of attack by other prisoners (see, Littlejohn
v. State of New York, 218 AD2d 833). However, "[t]he State is not an
insurer of inmate safety; its duty is to exercise reasonable care to prevent
foreseeable attacks by other inmates" (Padgett v. State of New York, 163
AD2d 914). The mere occurrence of an unprovoked, unexplained attack by a fellow
inmate, with whom Claimant had no prior contact, does not give rise to an
inference of negligence, absent a showing that prison officials had notice of a
foreseeable dangerous situation (see, Stanley v.State of New York, 239
AD2d 700: Roudette v. State of New York, 224 AD2d 808; Leibach v.
State of New York, 215 AD2d 978; Padgett v. State of New York,
Generally, liability in a claim asserting negligence on the part of the State
when one inmate assaults another inmate must be predicated upon one of the
following grounds: (1) the victim was a known risk and the State failed to
provide protection (Sebastiano v. State of New York, supra); (2) the
State had notice that the assailant was particularly prone to perpetrating such
an assault and failed to take precautionary measures (Littlejohn v. State of
New York, supra; Wilson v. State of New York, 36 AD2d 559), or (3)
the State had ample notice and ample opportunity to intervene but failed to act
(Schittino v. State of New York, 262 AD2d 824; Huertas v. State of
New York, 84 AD2d 650).
In this case, Lewis asserts two theories of liability against the State. The
first is that the inmate that assaulted him should have been segregated from the
general inmate population (specifically because of his HIV positive status, and
more generally because his attacker was "violent"). This argument, as Defendant
correctly points out, is without merit. Inmates may not be segregated merely
because they are HIV positive. (Nolley v. County of Erie 776 F. Supp.
715). To the extent that Claimant believes his assailant should have been
segregated for other reasons, the proposed claim is far from clear on this
point. Claimant alleges that his assailant was "violent" and that Defendant, or
its agents, were aware of that alleged fact. Claimant's motion papers do not
allege that he had any previous contact with his attacker. The record before me
is otherwise devoid of any specific allegations of violence on the part of
Claimant's attacker directed at other inmates at the facility, facility staff,
or Claimant. The simple bald assertion that the assailant was violent and
Defendant knew it, is not sufficient to create even a presumption of foreseeable
risk of harm (see, Matter of Garguiolo v. New York State Thruway Auth.,
145 AD2d 915).
Claimant's second theory is that Defendant should have acted more quickly to
break up the altercation. However, Claimant has failed to state a prima facie
claim of negligence for failure to intercede. Claimant alleges that officer
Dorsey "observed the argument [between claimant and his assailant] and did not
intercede. ... [T]he person who started the argument with the claimant then
walked up to the claimant and started to bite claimant in the face". Claimant
further alleges that: "Officer Dorsey did not break up the fight. Instead he
simply yelled at the inmate who attacked the claimant."
The claim itself indicates that the physical part of the confrontation was
short and began with claimant being bitten on the face. There is no indication
that the assault was prolonged, or that Claimant was bitten after a reasonable
time for officers to react had passed. The claim, therefore, implies that the
duty to intercede emanated from the officers awareness of the verbal
confrontation between Claimant and his assailant. The law recognizes no such
duty. As other Courts have recognized "prisons are noisy and raised voices in
arguments are commonplace." (Taylor v. State of New York, Claim No.
87532, Ruderman J, 10/19/00). The mere fact that two inmates are arguing does
not, without more, require intercession on the part of correctional
I take notice that both the allegations in the claim, and the inmate
misbehavior report written by C.O. Dorsey, demonstrate that C.O. Dorsey gave the
inmates a direct order to "break it up" and waited for backup before any
physical intervention was attempted. Merely because an officer did not prevent
or timely stop an attack does not establish negligence (see, Pierrelouis v.
State of New York, 255 AD2d 824 [claimant failed to establish that defendant
breached a duty to claimant to prevent or timely stop the fight from occurring
and failed to demonstrate a lack of reasonable care]). There was no showing
that C. O. Dorsey's conduct was unreasonable, or deviated in any way from the
standards which control his conduct. In sum, the Court finds that Dorsey had no
reason to believe that Claimant was about to be attacked and bitten and that
Dorsey's actions in attempting to stop the assault were appropriate (see,
Schittino v. State of New York, supra [inmate fight escalated quickly and
was not reasonably foreseeable; court rejected claim that correction officer's
failure to intervene was negligent]).
Upon reviewing and balancing all of the factors enumerated in CCA §10(6),
I find that they weigh in favor of Defendant. Claimant's motion for
permission to file a late claim is therefore denied.