New York State Court of Claims

New York State Court of Claims

LASHLEY v. THE STATE OF NEW YORK, #2006-031-508, Claim No. 106808


Claimant failed to demonstrate that State was negligent in preventing assault upon him by another inmate. Claim dismissed

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:
Defendant’s attorney:
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 24, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Corey Lashley filed claim number 106808 on October 18, 2002, alleging that the State of New York was negligent in failing to protect him from an assault by another inmate. The claim was bifurcated and I conducted the liability trial of this matter on September 13, 2005, at Auburn Correctional Facility (“Auburn”).
Claimant testified that the assault occurred at Five Points Correctional Facility (“Five Points”) at approximately 1:30 p.m. on April 28, 2002. According to Claimant, he was in the 8-block recreation yard restroom when he was assaulted by Barry Green, another inmate at Five Points. According to Claimant, he and Mr. Green had been involved in an altercation in January of 2002, approximately three months prior to the incident in question. Claimant concedes that the earlier incident involved no weapons, and resulted in a Tier II disciplinary hearing in which it was determined that Claimant assaulted Mr. Green. After that initial incident, Claimant refused protective custody and gave no further direct notice to Defendant that he feared for his own safety in any regard.
Claimant argues, however, that in addition to the first incident, he did attempt to give notice to Defendant of his belief that he was in danger from Mr. Green. According to Claimant, he talked to another inmate, one Derrick Johnson, whom Claimant believed informed Defendant that Claimant was in danger. Apparently, Mr. Johnson holds a position among the Muslim inmate population which, according to Claimant, roughly equates to a liaison between the facility and the Muslim population.
Claimant testified that he saw Mr. Green in the mess hall on April 27, 2002. He reported to Mr. Johnson that there were some issues between him and Mr. Green and that he feared for his safety. According to Claimant, Mr. Johnson was going to give notice to Defendant that these two men should be separated. Claimant alleges that, despite receiving notice from Mr. Johnson, Defendant took no steps to ensure that the inmates were separated and Claimant was assaulted the next day, April 28, 2002.
The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented the assault, but failed to do so (Huertas v State of New York, 84 AD2d 650).
Here, Claimant asserts that the State was aware of the animosity between him and Mr. Green because he assaulted Mr. Green a few months earlier in January of 2002. Although this is true, I am also aware that this first incident was a relatively minor altercation. No weapons were used, no serious injuries were incurred and it was of relatively short duration. Neither inmate indicated the need or desire for protective custody and Mr. Green was not placed on Claimant’s “enemies list.” Claimant’s Exhibit 3, the Department of Correctional Services Manual for the Automated Enemy System, sets forth the nature of the different objectives which must be balanced in determining when and if inmates should be separated. It is neither possible nor desirable to separate each inmate from every other inmate with whom he has had a minor altercation, especially where, as here, there is no indication from the Claimant himself that he perceives any danger.
Although Claimant presented his case admirably and with great skill, I find that there was
no notice to Defendant that a dangerous situation existed in the recreation yard restroom prior to the assault. Though I do not doubt Claimant’s word that he discussed his fears with Mr. Johnson, Mr. Johnson is not an agent of Defendant; he is another inmate. Accordingly, I find no legal basis to impute his knowledge of Claimant’s concerns to Defendant. This is especially so in light of Claimant’s own concession that he did not directly attempt to notify Defendant of his concerns after seeing Mr. Green in the mess hall the day before the assault. Absent such notice, unremitting supervision is unnecessary (see Hirsh v State of New York, 8 NY2d 125; Padgett v State of New York, supra; Carlino v State of New York, 30 AD2d 987, 988). The assault was sudden and without warning, and was of relatively short duration. Even Claimant was taken completely by surprise. Given these facts, I find that the assault by Mr. Green was not foreseeable.
For the reasons stated above, Claimant has failed to demonstrate that Defendant was negligent in failing to protect him from the assault by inmate Green. The claim is dismissed. Let judgment be entered accordingly.

April 24, 2006
Rochester, New York
Judge of the Court of Claims