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