On November 18, 1999, claimant was an inmate at the Upstate Correctional
Facility ("Upstate") in Malone, New York. According to claimant, correction
officials were on notice that he had been threatened on the morning of November
18, 1999, by his cellmate, Kevin Ladson ("Ladson"). It is alleged that
correction officials ignored the threat and did not move either inmate.
Subsequently, when prison officials issued inmate Ladson a razor, he used this
as a weapon to slash claimant multiple times later that same day.
Claimant had been transferred to Upstate to serve a one year term (later
reduced to six months) in a special housing unit after being found guilty of
violating prison rules at the Great Meadow Correctional Facility in Comstock,
New York. Upstate is a 24 hour lock-down maximum security prison. The cells
have an electronic door at the entrance and a self-locking door in the rear
which leads to a caged outdoor recreational pen. The front door of the cell has
a slot which can be opened to provide prisoners their meals and toiletries.
Under normal circumstances the prisoners stay in the cell for 23 hours and in
the attached recreational pen for an hour each day. Prisoners are usually sent
to this facility after having been convicted of disciplinary violations at other
Claimant was housed with Ladson for a few months prior to the incident.
Claimant testified that his relationship with Ladson was always acrimonious, as
Ladson was sloppy while claimant was neat. They also disagreed with each other
when discussing any issue. Claimant testified that he had spoken to Sergeant
Jody Johnston about switching cells prior to
November 18, 1999. Claimant stated that he told a counselor at the prison
that they did not want to live together. According to claimant, Ladson also
wrote various correction officials requesting that he be moved to a different
cell. No action was taken. Things grew progressively more contentious, to the
point that the cellmates did not speak to each other for over a month prior to
November 18, 1999.
On the morning of November 18, 1999, claimant testified he told Sergeant
William Allen that he and Ladson had not spoken for over a month and that the
environment in the cell had become hostile. During this conversation, Ladson
suddenly jumped off the top bunk and told Sergeant Allen in a loud voice, "move
one of us or someone is going to get
Hearsay is defined as an out-of-court
statement offered to prove the truth of the matter asserted therein (Stern v
, 234 AD2d 534, 535 [2 Dept 1996]). However, a statement
which is not offered to establish the truth of the facts asserted therein is not
. It is well established that out-of-court statements, even
those made by unknown declarants, are admissible to establish notice of a
dangerous condition, even where the accuracy of the statements is not
.). Where the truth of the statement is not at issue, it
does not matter that the original declarant is unknown and unavailable for
.). Anyone who heard an out-of-court utterance
which is offered merely to prove that it was made may testify to it, and have
his veracity tested upon cross-examination in the ordinary way (id
The Court finds that Ladson's statement is not hearsay.
Claimant testified that Sergeant Allen wrote something in his notes and said
"I'll see what I can do." No further action was taken however.
That afternoon, shower bags containing shaving razors were distributed to the
inmates. After both men had showered, claimant stood facing the cell door
waiting to return his shower utensils. As he waited for Officer Spinner to
collect the shaving utensils through the slot in the cell door, Ladson reached
from behind the claimant and slashed him in the face multiple times with the
State issued razor. Upon realizing he had been slashed, claimant retreated into
the recreation area, pulling the self-locking door behind him. After removing
Ladson from the cell, correction officers promptly took claimant for medical
Sergeant William Allen, a correction officer for fifteen years and sergeant for
four years, was assigned to Building 8, where he supervised approximately nine
officers and three hundred inmates. In addition to this supervisory
responsibility, he would also make rounds through Building 8, fielding inmate
complaints. He testified that inmates were celled together on the basis of
their physical size, ethnicity and religious background in an effort to achieve
compatibility. This, however, would not stop the frequent requests by inmates
to be moved to different cells. Sergeant Allen testified that transfers would
be granted only if there was a credible threat against one of the inmates. He
described a credible threat as either a direct threat, e.g., "I'm going to hurt
you", or an indirect threat, in which he would exercise his judgment by studying
the inmate's demeanor and the hostility of the threat.
Sergeant Allen did not recall being told of either claimant's or Ladson's
desire to move prior to November 18, 1999. He also had no recollection of
Ladson threatening claimant earlier that day. He testified that if such a
threat had been made in his presence, he would have immediately locked one of
the inmates in the recreational pen and one in the cell. This would have given
him time to arrange new housing for one of the inmates.
Sergeant Jody Johnston, a correction officer for fifteen years and sergeant for
over four years, was also assigned to Building 8 in the months before the
incident, transferring to another facility prior to the incident in November of
1999. He was the housing unit supervisor of Building 8 in the months preceding
the incident and he testified that he had no recollection of any move request
relating to claimant. He also testified that a threat against a correction
officer or a threat against another inmate in the presence of a correction
officer would warrant the issuance of a misbehavior report against the person
making the threat.
It is well established that when the State assumes physical custody of inmates,
it owes them a duty of care to safeguard them, even from attacks from fellow
Flaherty v State of New York
, 296 NY 342 ). The scope of this
duty to protect inmates is limited to risks of harm that are reasonably
. at 346, affd
in Sanchez v State of New
, 99 NY2d 247, 255 ). The State, however, is not an insurer of
inmate safety (id.
at 256). The State's duty takes into account
the inherent risk of an unpreventable inmate assault when housing many dangerous
persons in close proximity. There must be credible evidence that the assault
was reasonably foreseeable in order to establish negligence against the State
.). In the case at bar, claimant has not proven by a preponderance of
the credible evidence that this assault was reasonably foreseeable. In a case
of inmate-on-inmate assault, foreseeability is defined by what the "State knew
or had reason to know" or what the State "is or should be aware of", as well as
by actual or constructive notice (id
. at 255).
Even in claimant's own testimony, there is no allegation that prior to November
18, 1999, Ladson ever threatened him or that claimant ever communicated a
threat to any correction officer. Prior to November 18, 1999 claimant testified
that he and Ladson had reached out to various officials in order to request
switching cells. Claimant testified that he spoke to Sergeant Johnston
regarding switching cells, a conversation Sergeant Johnston did not recall.
Claimant also testified that he spoke to Counselor Precipio regarding a move,
but there is no corroborative evidence of that conversation. Claimant also
testified that Ladson wrote several letters prior to November 18 to correction
officials requesting to be moved, but he did not produce either the letters or
Ladson to corroborate this testimony. The Court finds, therefore, that there is
no evidence of a threat prior to November 18, 1999 and, other than claimant's
testimony, no evidence that claimant or Ladson even requested to be moved.
As to the morning of November 18, 1999, when claimant states he was threatened
by Ladson while conversing with Sergeant Allen, claimant did not produce the
notes that he said Sergeant Allen wrote. The Court credits the testimony of
Sergeant Allen that if Ladson's statement was a credible threat and had he heard
it, he would have immediately separated the inmates. The Court also credits the
testimony of Sergeant Johnston who stated that any threat made to staff or to an
inmate in the presence of staff would result in a misbehavior report being
issued to the person making the threat.
Implicit in the requirement that defendant be put on notice of a dangerous
condition or situation, it is necessary to prove that the threat was
communicated to the defendant. Other than claimant's testimony, there was no
other evidence offered to establish that this is accurate. The Court finds that
claimant did not prove by a preponderance of the credible evidence that anyone
on the prison's staff was aware claimant had been threatened and, therefore, was
in a dangerous situation.
The Chief Clerk is directed to enter judgment in favor of the defendant.
Let judgment be entered accordingly.