This is a claim to recover for personal injuries allegedly sustained when the
claimant was attacked by a fellow inmate, Mary Helen Meyers, at Bedford Hills
Correctional Facility at approximately 10:00 p.m. on November 14, 1996. The
trial of the claim was bifurcated with the liability phase being tried before
the Court in Kingston, New York on March 4, 2002. This decision addresses only
the issue of liability.
Cherise Robinson was the sole witness called to testify on claimant's behalf at
trial. She was sworn and testified that she arrived at the Bedford Hills
Correctional Facility in 1994 having been sentenced following a conviction for
assault in the second degree. She was transferred temporarily to another
facility (Taconic Hills Correctional Facility) but returned to Bedford Hills in
1996. She stated that following her return she became friends with inmate Mary
Helen Meyers and that over time that friendship developed into an intimate
relationship which lasted approximately five or six months ending in August or
September 1996. In the two months following the breakup of their relationship
but prior to the attack she alleged that Meyers stalked her and began
threatening her. Apparently, claimant did not report any of this alleged
ongoing activity on Meyer's part until a chance meeting with Correction Sergeant
Joseph Wuest one to two weeks prior to the attack.
She testified that sometime in the Fall of 1996 she received a letter advising
her that she was scheduled for parole release on November 19, 1996 and shared
that news with at least one other inmate in her housing unit. Claimant did not
directly testify that Meyers was privy to the information regarding her
anticipated release date but asserted that Meyers continued to threaten her and
that she became concerned Meyers would hurt her or that she herself would hurt
Meyers thereby jeopardizing her scheduled parole release. She contends that
approximately one to two weeks prior to the November 14, 1996 attack by Meyers
she spoke to Sergeant Wuest and advised him that Meyers was threatening "to fuck
her up" and that claimant wanted to be moved from the unit. Allegedly Sergeant
Wuest told claimant he would speak to Meyers and get back to her but she claims
she never saw Wuest again prior to the attack. Claimant further testified that,
after she spoke to Wuest, Meyers repeatedly walked past claimant's cell and
told her "[I]'m gonna fuck you up."
Despite the alleged threats against her claimant did not make any further
complaint regarding Meyers' threats to any other employee of the Department of
Correctional Services (DOCS) until the evening of the attack. On that occasion
she allegedly approached the bubble in the housing unit where three correction
officers were located and said "[S]he's threatening me, do something about it."
Claimant testified that she was alone at the time she requested assistance and
did not recall Officer Bethune or either of the other officers responding in any
way to her statement. Claimant testified that after her statement to the
officers she proceeded to the recreation room where she stayed until she
returned to her cell, retrieved her toiletries and went to the shower. Upon her
return from the shower she was attacked without warning by Meyers. She
testified that she first felt something hot and burning on her face and then
someone scratching her face. That person turned out to be Mary Helen Meyers.
Claimant asserts that this incident was not a fight and that she was unable to
defend herself. She was taken to an outside hospital for treatment.
On cross-examination claimant acknowledged that she knew inmates at Bedford
Hills who had been placed in protective custody away from other inmates but she
did not understand that she could request protective custody. Defense counsel
questioned claimant regarding crimes of which she had been convicted in an
effort to impeach her credibility as a witness and elicited testimony from the
claimant acknowledging having twice been involved in fights which resulted in
disciplinary charges while at Bedford Hills. Despite her conviction by a jury
on a charge of assault in the second degree and having been sentenced on that
conviction claimant maintained that she had not injured another person with a
weapon. She reluctantly conceded that she had also been convicted of a
misdemeanor following her release on parole from Bedford Hills in November
Ms. Robinson reiterated her earlier allegation regarding a purported
conversation with Sergeant Wuest concerning Meyers' verbal threat one or two
weeks prior to the incident and her alleged request to be moved off the unit.
With regard to the evening of the incident, on cross-examination the claimant
conveyed a slightly different version of her alleged conversation with Officer
Bethune, this time alleging that she asked the officer to get Meyers away from
her. She did not indicate to Officer Bethune that any specific threat had been
made against her nor did she convey any information from which threats to her
physical safety should have been inferred but merely asked the officer to direct
Meyers to leave her alone. According to the claimant, Meyers was at the far end
of the unit when the request for assistance was made.
On re-direct-examination claimant conveyed her understanding of Meyers' words
"I'm gonna fuck you up" to mean she was going to hurt her.
Claimant requested that specific portions of Officer Bethune's examination
before trial testimony be read into the record, identifying such portions by
page and line numbers. Thereafter, the attorneys for the parties stipulated to
the admission of claimant's Exhibits 1 through 8 which were received in
evidence. The Court, however, sustained a hearsay objection to Exhibit 9,
purported to be a transcript of a disciplinary hearing against Mary Helen Meyers
as a result of this incident. Following the receipt of Exhibits 1-8 in evidence
the claimant rested. Defense counsel then moved to dismiss the claim due to
claimant's failure to prove a prima facie case in that the statements allegedly
made by claimant to Sergeant Wuest and Officer Bethune did not indicate a risk
of imminent harm. The Court reserved decision on the motion.
The defendant's first witness was Correction Officer Latasha Bethune who
testified that she was a correction officer in training assigned to Bedford
Hills Correctional Facility on November 14, 1996. She was assigned to the
claimant's housing unit on the date of the incident and worked the 3:00 p.m. to
11 p.m. shift. Officer Bethune testified that during her tour of duty that
evening she was in the bubble with two other correction officers, Correction
Officers Body and Castalecki, when claimant and inmate Meyers approached. She
observed that Meyers had her arms around the claimant's shoulders and described
their behavior as playful. Officer Bethune recalled that Robinson asked the
correction officers to tell Meyers to leave her alone. The witness stated that
one of the correction officers, believed to be Officer Body, told Meyers and
the claimant to go to their respective cells but the two inmates left the area
of the bubble and instead went together to the recreation room. Officer Bethune
indicated that claimant and Meyers were at the bubble for less than a minute and
that she did not perceive claimant's request as serious.
On cross-examination the witness reiterated that neither she nor the other
officers on duty took claimant's request seriously because the inmates were
acting in a playful manner. She admitted that under the circumstances neither
she nor the other officers explained or offered protective custody to the
The witness on re-direct examination testified that the two inmates were
laughing and joking and acting in a playful manner at the time claimant made her
request to have Meyers leave her alone.
The defendant's second and final witness was Joseph Wuest a sixteen year DOCS
employee who is currently a lieutenant at Oneida Correctional Facility. The
witness testified that he was a correction sergeant assigned to Bedford Hills
Correctional Facility in November 1996 and that his chief duty was to supervise
correction officers in a given area of the facility. Lieutenant Wuest testified
that he did not recognize claimant in the courtroom and had no recollection of
claimant ever advising him of a threat being made against her. At counsel's
request the witness related the standard procedure he would have followed upon
receiving information regarding a credible threat to an inmate. He stated that
he would pass such information on to the watch commander or lieutenant because
as a sergeant he did not have authority to place a person in protective custody.
If and when a credible threat of violence was reported to the watch commander or
lieutenant the complaining inmate would receive an explanation of the protective
custody program and would be offered voluntary protective custody. If the
inmate refused protective custody and the evidence of the threat did not appear
to be credible, the inmate would be asked to sign a written waiver of protective
custody. If the inmate refused to sign the waiver and there was credible
evidence of the reported threat, or if danger to the reporting inmate was
otherwise perceived the administration would place the inmate in involuntary
Lieutenant Wuest further testified that if an inmate did not report an actual
threat but related that another inmate was bothering him or her the officer
receiving such information would investigate to determine what the problem was
and whether the conduct complained of was in fact a threat or a personality
issue. Wuest further testified that inmates could request a housing unit change
from the housing lieutenant.
The witness alleged that he had no recollection of Cherise Robinson approaching
him to report a threat one or two weeks prior to the incident of November 14,
1996 and that had she as she claims he would have followed the standard
procedure as outlined above. Wuest found no paperwork regarding claimant's
alleged prior report of a threat and testified that he would have recalled such
a report and noted it on the written report of the November 14, 1996 incident.
He testified that the absence of any notation by him on the incident report of
an incident occurring so shortly following the alleged report of a threat led
him to conclude that claimant made no such earlier report to him.
Lieutenant Wuest was called and responded to the reported incident on November
14, 1996 after the fact. At the time of his arrival claimant had already been
placed in the dayroom and inmate Meyers had been locked in her cell.
On cross-examination the witness repeated his earlier testimony regarding the
procedure he would have followed had he received the information which claimant
alleges she conveyed to him prior to the attack. He reiterated that he did not
recall claimant advising him that Meyers had threatened her nor did he recall
claimant requesting to be moved from the unit.
Lieutenant Wuest, on re-direct-examination, indicated that if Robinson had
complained as alleged he would have initiated an investigation and prepared the
appropriate paperwork but that no such paperwork was found.
The witness testified on re-cross-examination that if the claimant had
complained to him two weeks prior to the incident he would have cause to
remember her and would have noted the prior request for assistance in his
written report of the November 14, 1996 attack.
At the conclusion of Lieutenant Wuest's testimony the defendant rested.
Cherise Robinson returned to the stand as the sole rebuttal witness and
testified that Sergeant Wuest never explained protective custody or offered
protective custody to the claimant.
The law with regard to an assault by one inmate upon another in a State
correctional facility is well settled. The State must provide reasonable
protection from foreseeable risk of harm, including the foreseeable risk of an
attack by another inmate (
Stanley v State of New York
, 239 AD2d 700; Colon v State of New
, 209 AD2d 842). The State, however, is not an insurer of the safety of
inmates and the fact that an assault occurred does not give rise to an inference
of negligence (Padgett v State of New York
, 163 AD2d 914, lv
76 NY2d 711; Schittino v State of New York
, 262 AD2d
As the Appellate Division, Third Department in
Smith v State of New York
, 284 AD2d 741, recently observed at 742:
"As is evident from these principles, while a duty to protect an inmate from
an assault by another inmate exists, the key to liability is whether such act is
reasonably foreseeable" (
Sanchez v State of New York
, 288 AD2d 647, 648).
The Appellate Division, Third Department in
also said: "[w]hen a duty exists, nonliability in a particular
case may be justified on the basis that an injury is not foreseeable. In such a
case, it can [then] be said that foreseeability is a limitation on duty"
(Sanchez v State of New York
at 648 quoting Pulka v
, 40 NY2d 781, 786).
Foreseeability is generally a question of fact (
, Ingenito v Robert M. Rosen, P.C.
, 187 AD2d 487, lv
81 NY2d 705) and in this instance requires the Court to weigh the
credibility of claimant against that of Lieutenant Wuest and Correction Officer
Bethune. Claimant testified that one or two weeks prior to the attack she
advised then Sergeant Wuest that inmate Meyers had threatened her and asked to
be transferred from the unit. She testified that she was concerned that a
physical confrontation with Meyers might jeopardize her scheduled parole
release. She claims that Wuest told her he would speak to Meyers and get back
to her but never did. Despite her claims that Meyers continuously stalked her
the claimant did not allege any attempt to secure a response from the sergeant,
to report Meyers' continuing threats or to renew or repeat her alleged request
for a unit transfer.
Despite repeated inquiries, Lieutenant Wuest consistently testified that he had
no recollection of the claimant requesting his assistance due to threats made
against her and that had such a request been made he would have taken certain
actions in response thereto. Although he was unable to affirmatively disavow a
conversation which allegedly took place in early November 1996, having had the
opportunity to observe both the claimant and Lieutenant Wuest as they testified
the Court finds that the claimant has failed to satisfy her burden of proving by
a preponderance of the credible evidence that the State received notice of a
potential risk to her physical safety one to two weeks prior to the assault.
Simply stated, the Court does not credit the claimant's testimony relative to
her alleged conversation with Lieutenant Wuest in the weeks preceding the
The same conclusion is reached relative to the claimant's alleged request for
assistance and/or protection made to the correction officers in "the bubble"
shortly before the assault. In her direct testimony the claimant testified that
she informed the officers that Ms. Meyers was threatening her. On
cross-examination her testimony was that she informed the correction officers
that Meyers was bothering her and requested that Meyers be told to leave her
alone. She further testified on cross-examination that she was alone when she
spoke to the officers and that Meyers was at that time at the far end of the
unit. Correction Officer Bethune testified that the claimant and Ms. Meyers
approached the bubble together and were laughing and joking when claimant asked
the officers to tell Meyers to leave her alone.
The Court credits the testimony of Officer Bethune and finds that neither the
language used by the claimant nor her demeanor in any way communicated notice to
the defendant's employees that an attack by Meyers was either imminent or likely
and that protective measures were required. The claimant and Meyers were
together, their manner was relaxed and playful and there was no history of
assaultive conduct between them. Nor was there any proof offered to establish
that Meyers was a "known dangerous prisoner [so as to ] place the State on
notice of an increased likelihood of an assault and impose a heightened duty to
take special precautions" (
Colon v State of New York
, 209 AD2d 842, 844).
Upon the evidence submitted the Court finds that the November 14, 1996 attack
was sudden and unexpected and the defendant had neither notice nor an
opportunity to intervene to protect the claimant. Accordingly, there is no
basis to impose liability against the defendant for claimant's injuries
resulting from the unforeseeable and allegedly unprovoked attack by a fellow
The relief requested is in all respects denied and the claim is dismissed upon
the evidence presented at trial. Any motion not previously decided is hereby
The Clerk shall enter judgment accordingly.