New York State Court of Claims

New York State Court of Claims

ROBINSON v. THE STATE OF NEW YORK, #2002-015-554, Claim No. 95245


Court dismissed claim after trial in case involving inmate on inmate assault finding no prior notice of assailant's vicious propensities and that State did not have notice of impending attack. Court found claimant's testimony on notice was not credible.

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):

Cross-motion number(s):

Claimant's attorney:
Parker & Waichman
By: Zwiebel, Brody, Gold & Fairbanks, EsquiresMajer H. Gold, Esquire, Appearing
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 17, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

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 1996.

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 claimant.

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 protective custody.

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 York, 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 denied 76 NY2d 711; Schittino v State of New York, 262 AD2d 824).
As the Appellate Division, Third Department in
Smith v State of New York, 284 AD2d 741, recently observed at 742:
To establish liability against the State, one of the following must be shown: (1) the victim was known to be at risk and the State nonetheless failed to take reasonable steps to protect him or her (see, Stanley v State of New York, 239 AD2d 700, 701; Sebastiano v State of New York, 112 AD2d 562, 564), (2) the assailant was known to be dangerous but the State failed to protect other inmates from him or her (see, Auger v State of New York, supra, at 931; Casella v State of New York, 121 AD2d 495, 496), 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 (see, Schittino v State of New York, 262 AD2d 824, 825, lv denied 94 NY2d 752).
"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
Sanchez 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, supra at 648 quoting Pulka v Edelman, 40 NY2d 781, 786).
Foreseeability is generally a question of fact (
see, Ingenito v Robert M. Rosen, P.C., 187 AD2d 487, lv denied 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 attack.

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 inmate.

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 denied.

The Clerk shall enter judgment accordingly.

June 17, 2002
Saratoga Springs, New York

Judge of the Court of Claims