New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2003-032-523, Claim No. 103166


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:
Law Office of John A. Piasecki, Esq.By: Peter A. Dumas, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kevan J. Acton, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 3, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

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 prisons.

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 hurt."[1] Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted therein (Stern v Waldbaum, Inc., 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 hearsay (id.). 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 established (id.). Where the truth of the statement is not at issue, it does not matter that the original declarant is unknown and unavailable for cross-examination (id.). 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 care.

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 inmates (
Flaherty v State of New York, 296 NY 342 [1947]). The scope of this duty to protect inmates is limited to risks of harm that are reasonably foreseeable (id. at 346, affd in Sanchez v State of New York, 99 NY2d 247, 255 [2002]). 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 (id.). 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.

December 3, 2003
Albany, New York

Judge of the Court of Claims

[1] The introduction of this statement at trial was objected to by the defense as hearsay. The Court reserved decision as to this statement's admissibility. Claimant argues in its post-trial brief that the statement is not hearsay as it is offered to show the statement was made and not offered to prove the fact asserted. The defendant argues that claimant was obligated to produce inmate Ladson who is currently incarcerated. The defendant further argues that admitting this statement would deprive it of the right to confront the witness and in a sense "reward" claimant for not producing his witness.