New York State Court of Claims

New York State Court of Claims

WIMS v. THE STATE OF NEW YORK, #2002-011-587, Claim No. 103233, Motion Nos. M-65239, M-65241 and M-65356


Defendant's motion for summary judgment dismissing the claim is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-65239, M-65241 and M-65356
Cross-motion number(s):

Claimant's attorney:
Jawanza Wims, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 10, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved for summary judgment dismissing the claim. Claimant has made

motions to compel and for leave to amend the claim.

On May 6, 2000 while an inmate at Clinton Correctional Facility claimant was involved in a fight with another inmate. Claimant suffered cuts to his face and hands which required more than 50 stitches to close. As a consequence of the incident, a misbehavior report was issued to claimant charging him with fighting and refusing a direct order. Following a disciplinary hearing on the charges, claimant was found guilty and a penalty, which included loss of privileges and confinement to the Special Housing Unit, was imposed. Thereafter, claimant instituted this action to recover damages based upon allegations of negligence and violation of his due process rights.

Although the parties do not agree on all of the facts surrounding the incident, they agree on the essential facts affecting the claim and this motion. On the day of the incident claimant was on keeplock status and confined to his cell on E Block. Claimant and inmate Markins, housed in the cell next to claimant's, and also on keeplock status, were let out of their cells at the same time so that civilian exterminators could spray the cells. A fight ensued between the two inmates during which the other inmate cut claimant with a razor blade. Although a correction officer was present and directed the two inmates to stop fighting, he did not intervene physically. Instead he called for backup and waited for other officers to arrive.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

The State has a duty to use reasonable care to protect its inmates from foreseeable risks of harm, including risks of attack by fellow prisoners (Colon v State of New York, 209 AD2d 842). Though the State is not an insurer of inmate safety (Littlejohn v State of New York, 218 AD2d 833, 834), liability may be imposed where "(1) the victim was known to be at risk and the State nonetheless failed to take reasonable steps to protect him or her ..., (2) the assailant was known to be dangerous but the State failed to protect other inmates from him or her ... or (3) the State had both notice and the opportunity to intervene for the purpose of protecting the inmate victim but failed to do so" (Smith v State of New York, 284 AD2d 741, 742, [citations omitted]).

In support of its motion, defendant has submitted affidavits by Correction Officer Tim Ledwith, who witnessed the incident, and Sergeant Dale Mason, a correction officer for twenty-three years assigned to Clinton Correctional Facility for the last four and a half years. Both assert that prior to the incident neither they nor anyone else at the facility were aware of a dispute between claimant and inmate Markins. In addition, both aver that E Block was not a part of a Special Housing Unit and that multiple inmates were routinely let out of their cells at the same time. Furthermore, Officer Ledwith maintains that at the time of the fight he assessed the situation and determined that his first priority was to ensure the safety of the civilians on the block. With that in mind he decided not to intervene physically in an armed fight and instead called for backup and waited for other officers to arrive.

Based on the allegations in the claim, and the proposed amended claim, the affidavits are sufficient to establish, prima facie, that the fight between claimant and inmate Markins was not foreseeable and once underway could not reasonably be prevented by the only officer on the scene.

Where, as here, a prima facie showing of entitlement to summary judgment has been made, the burden shifts to the party opposing the motion to raise a triable issue of fact (Hackstadt v Hackstadt, 194 AD2d 908).

Claimant maintains that the block where the incident occurred was a Special Housing Unit and that had proper procedures been followed, the attack upon him would have been prevented. Claimant contends that because it was a Special Housing Unit each inmate should have been pat frisked before being let out of his cell. The regulations provide that an inmate housed in a Special Housing Unit will be pat-frisked whenever he or she goes out of or returns to the SHU; and/or prior to and upon returning from any exercise periods, hearings, interviews, etc. (7 NYCRR 305.1[b]). Thus, if the block on which the incident occurred was a Special Housing Unit a question of fact is raised as to whether proper procedure was followed in letting the two inmates out of their cells.

A Special Housing Unit is any area or cells of a correctional facility designated by written order of the superintendent as such (7 NYCRR 300.2[a]). The regulation further provides that a copy of any such designation shall be transmitted to the commissioner immediately for approval by the commissioner or his designee. Given that a record would exist if E Block had been designated a Special Housing Unit and that any such record would be available to claimant through disclosure[1], his conclusory assertion that the block was a Special Housing Unit is insufficient to raise a question of fact on that issue. Claimant's assertion that the pat frisk procedure should have been followed even if E Block was not a Special Housing Unit is also unsupported by anything other than his own belief and likewise fails to raise an issue of fact.

Furthermore, claimant does not assert that inmate Markins was known to the State to be dangerous such that defendant should have acted to protect other inmates from him. Finally, any question as to whether the State was aware that claimant was at risk of attack by inmate Markins is answered in the negative by claimant's own statement that he did not know that he was going to be attacked.

As claimant has failed to raise an issue of fact, defendant is entitled to summary judgment dismissing the cause of action sounding in negligence.

Claimant has also asserted a claim for violation of his due process rights. He maintains that the hearing officer who determined the disciplinary charges failed to thoroughly investigate the incident and as a result claimant was unjustly punished. As defendant notes, in carrying out their duties relating to security and discipline, the actions of correction employees are quasi-judicial in nature and are cloaked with absolute immunity (Arteaga v State of New York, 72 NY2d 212, 220). Thus, the cause of action based upon the disciplinary hearing must also be dismissed.

Defendant is granted summary judgment dismissing the claim and the motions to compel and to amend are denied as moot.

September 10, 2002
Saratoga Springs, New York

Judge of the Court of Claims

Papers Submitted:

1. Motion to Compel Disclosure and Motion for Continuance filed on April 25, 2002 with exhibits annexed - M-65239
2. Affirmation in Opposition of Paul F. Cagino, Esq. dated June 10, 2002
3. Affidavit in Opposition of Jawanza Wims sworn to the 16th day of July, 2002 with exhibits annexed
4. Representations in Support of the Amended Complaint dated April 23, 2002 - M-65241
5. Notice of Motion to Amend dated July 16, 2002
6. Affirmation in Opposition to Claimant's Motion to Amend Complaint of Paul F. Cagino, Esq. dated July 23, 2002
7. Notice of Motion for Summary Judgment dated June 13, 2002
8. Affirmation in Support of Paul F. Cagino, Esq. dated June 13, 2002 with exhibits annexed - M-65356
9. Affidavit in Opposition of Jawanza Wims sworn to the 16th day of July, 2002 with exhibits annexed

[1]Although a motion by claimant to compel disclosure is pending, the outstanding demand for disclosure does not request information concerning the designation of E Block as a Special Housing Unit.