New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2007-015-557, Claim No. 109527


Three related causes of action in an inmate pro se claim proceeded to trial. Cause of action for negligence for injury sustained in inmate-on-inmate attach was dismissed. Cause of action for wrongful deprivation of outside exercise was dismissed. Claim for emotional distress was dismissed as unsupported by medical evidence. Damages on fourth cause of action were awarded with interest in accordance with prior motion for summary judgment.

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:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, seeks damages on four causes of action. The initial claim alleges two causes of action: the first for negligence arising out of an alleged assault by fellow inmate R. Trammel and the second for excessive confinement arising out of the alleged failure to permit the claimant daily outside exercise for one hour on each of nine days. The third and fourth causes of action as stated in an "Amend-Supplement Claim" are, respectively, for emotional distress arising out of the defendant's alleged failure to separate inmate Trammel from the claimant for 63 days following the alleged assault and for excessive confinement arising out of the alleged failure to permit two hours of out-of-cell gallery recreation time for thirty days. By decision and order dated September 1, 2005, claimant's motion for summary judgment was granted on his fourth cause of action and the claimant was awarded $300.00 with the direction that entry of judgment be held in abeyance pending the determination of the remaining causes of action. Claimant proceeded to trial on his remaining causes of action on March 21, 2007, which are decided herein.

The Negligence Claim For Failure To Protect

Claimant testified that he was assaulted by inmate Trammel on May 10, 2004 in the recreation yard at Great Meadow Correctional Facility. According to the claimant, the assault occurred as follows: Claimant was using the weight bench when Trammel approached the bench and wanted to use it. Trammel attempted to hit him with one of the weights and Correction Officer Vladyka instructed Trammel to drop the weight. The dispute over the use of the weight bench continued, however, and Trammel cut the claimant with a razor and struck him in the face with a large rock. During this time, Correction Officers Brooks and Vladyka were in the nearby guard shack watching the altercation but did nothing to prevent the foreseeable assault.

Claimant's Exhibits 1- 6 and 8 were received in evidence. Exhibit 1 is the claimant's medical record for the treatment received following the altercation and indicates that the claimant was seen on May 10, 2004 for an abrasion on his cheek and a laceration on his ear for which he received three stitches.

Exhibit 2 contains various photographs of the claimant which depict a minor abrasion on the claimant's cheek and a small laceration inside his ear.

Exhibit 3 is a misbehavior report issued to inmate Trammel and authored by Correction Officer Brooks. This report indicates that inmate Trammel was involved in a fight with the claimant and that inmate Trammel was on top of the claimant and appeared to be rubbing his face in the dirt. The report indicates that the inmates were separated and searched for weapons and that none were found.

Exhibit 4 is a grievance submitted by the claimant in which he set forth his description of the incident and requested that the correction officers be disciplined for their alleged failure to protect him. Also a part of Exhibit 4 is the decision on the grievance in which it is stated: "Grievant's allegation is not substantiated. Reports of the altercation do not corroborate the grievant's claims of weapon use and aggression by the other inmate. It is also apparent that staff responded promptly, gained control of the situation, and obtained rapid medical attention."

Exhibit 5 consists of two letters from the claimant in which he requested the criminal prosecution of inmate Trammel and the facility's responses relating its intention not to pursue criminal action.

Exhibit 6 is the transcript of the Tier II disciplinary hearing of the claimant, who was charged with fighting. The misbehavior report, which was signed by Correction Officers Brooks and Vladyka indicates that claimant "jumped" inmate Trammel while Trammel was on the work-out bench and both inmates ended up on the ground (Exhibit 6, p. 3). At the claimant's disciplinary hearing relating to this charge, testimony was taken from the claimant, Correction Officer Vladyka, Correction Officer Brooks and inmate Trammel. Claimant's testimony is notable for the contention that Correction Officer Vladyka instructed inmate Trammel to drop the dumbbell and then said "Listen, you want to get him. You have to fight but don't use no weapon. . . " (Exhibit 6, p.7).

Lieutenant Vladyka testified at the hearing that he did not give Trammel permission to fight and that the claimant initiated the altercation (Exhibit 6, p.13). He testified that he heard the two inmates at the weight bench "having words" but that neither had a dumbbell in his hands (Exhibit 6, p.14).

Correction Officer Brooks testified at the hearing that he and Correction Officer Vladyka were in the D-block shack when they heard inmates arguing and Correction Officer Vladyka said "I think they're going to fight" (Exhibit 6, p. 21). Correction Officer Brooks testified that he did not see the initial fight break out but saw Trammel and the claimant wrestling. When they arrived at the location of the inmates, inmate Trammel was on top of the claimant and appeared to be pushing the claimant's face into the dirt (Exhibit 6, p. 21). The officers broke up the fight and found no weapon (Exhibit 6, p. 21). Correction Officer Brooks testified that he did not see anyone pick up a dumbbell. He testified that he observed the inmates arguing from the guard shack for over a minute and, although he stepped out of the shack to approach them at that point, he re-entered the shack as it did not appear the matter was going to escalate any further (Exhibit 6, pp. 22 - 23). Correction Officer Brooks testified at the hearing that he did observe two rocks in the area after the incident - one was very large and the other only approximately one inch in diameter (Exhibit 6, p. 23). After the incident he examined the rocks for traces of blood and found none (Exhibit 6, p. 24).

Inmate Trammel testified at the hearing by telephone. He testified that the claimant's coat was left on the weight bench and he asked to use the bench (Exhibit 6, p. 29). The claimant turned his back on Trammel and Trammel then laid the coat on the ground (id.). According to Trammel, the claimant approached him from behind as he sat on the bench and grabbed and bit him on the back (id.). He threw the claimant on the ground and put his knee in his neck and waited for the correction officers to come over to break up the fight (id.). He testified that no correction officer authorized the fight and that no weapon was used in the fight (Exhibit 6, p. 30).

Exhibit 8 consists of the order of this Court which authorized discovery of redacted portions of inmate Trammel's disciplinary record and a copy of Trammel's redacted record. This record reflects prior incidences of violent conduct and fighting.

This concluded the claimant's case in chief.

The defendant called Correction Officer Brooks as its first witness. Correction Officer Brooks testified that he and Correction Officer Vladyka were in the guard shack when they observed inmates arguing at the weight bench. He observed the claimant strike Trammel in the abdomen and Trammel take the claimant to the ground. He stated that approximately ten seconds elapsed between the time that they first observed the fight and the time they arrived to break up the fight. Correction Officer Brooks testified that no weapon was found and that he was aware of no prior incident between these two inmates.

Correction Officer Brooks identified the claimant's "Separatees List", which was received in evidence as defendant's Exhibit A. Correction Officer Brooks testified that the list includes the names of known enemies of an inmate. Upon his review of this list, Correction Officer Brooks testified that Trammel was not on the claimant's Separatees List.

On cross-examination Correction Officer Brooks testified that, notwithstanding the fact he failed to testify at the claimant's hearing that he observed the claimant strike inmate Trammel, he remembers distinctly that he did make this observation. He also acknowledged his prior testimony at claimant's disciplinary hearing in which he stated that he had observed Trammel and the claimant arguing for over one minute, and explained that he exited the shack at one point but re-entered the shack because it did not appear that the argument would escalate. Correction Officer Brooks made clear that arguments between inmates were common.

Correction Officer Vladyka was the defendant's next witness. Correction Officer Vladyka testified that he heard the two inmates arguing and remarked that he thought they were going to have a problem. He then witnessed the claimant attack inmate Trammel and he and Correction Officer Brooks ran out of the shack to break up the fight. He estimated that it took them approximately twenty seconds to get from the guard shack to the area of the fight, which was 90 - 100 feet from the shack. On cross-examination Correction Officer Vladyka confirmed that he heard a verbal altercation, however, he explained that inmates argue all the time.

It is settled that the State has a duty to safeguard inmates even from attacks by fellow inmates (Sanchez v State of New York, 99 NY2d 247 [2002]; Di Donato v State of New York, 25 AD3d 944 [2006]). This duty does not require "unremitting surveillance in all circumstances," nor does it cast the State in the role of insurer of inmate safety (Sanchez v State of New York, supra at 256). Rather, the scope of the duty is limited to risks of harm that are reasonably foreseeable, which includes not only what the defendant knew but what it should have known (id. at 253, 255; see also, Smith v County of Albany, 12 AD3d 912 [2004]). Conversely, the State cannot reasonably be expected to guard against a sudden, unanticipated act of a fellow inmate.

Here, the Court finds persuasive the testimony of the correction officers that inmates often argue, a fact which does not signal that violence is sure to follow. While Correction Officers Vladyka and Brooks observed an argument between the claimant and inmate Trammel, they did not know and, according to them, could not have known, that a physical assault was about to occur. The Court notes that the claimant's version of the events at his hearing included his testimony that Correction Officer Vladyka authorized Trammel to fight with the claimant. This allegation was denied by Correction Officer Vladyka at the hearing and this version was not repeated by the claimant at trial.

The Court credits the testimony of the correction officers that when the physical fight between the inmates did erupt, the correction officers promptly responded and broke up the fight. The Court concludes that the incident was a sudden spontaneous event which could not have been foreseen. The fact that inmate Trammel's disciplinary record includes some history of violence does not change the result. Many inmates have a known propensity for violence and nothing appears in the disciplinary record of inmate Trammel, or the claimant's Separatees List, which would have apprised the defendant of the need to protect the claimant from the risk of injury caused by this inmate. Claimant failed to prove by a preponderance of the credible evidence that the defendant was negligent in protecting him from harm. Accordingly, the first cause of action in the claim is dismissed.

Claim For Nine Days Deprivation Of Outdoors Exercise

Claimant alleges in his second cause of action that he was wrongfully deprived of his right to one hour of outdoors exercise for each of the following days: 4/3/04, 4/10/04, 4/17/04, 4/24/04, 5/1/04, 5/8/04, 5/15/04, 5/22/04 and 5/31/04. At trial, the claimant testified that on the dates set forth above, his company was not permitted outdoor exercise and that the logbook entries for these dates, received in evidence at trial as Exhibit 1, reflect that fact.

Correction Officer Brooks testified on the defendant's behalf at trial and explained that inmates are given the option of exercising and may do so indoors or outdoors. He testified that if a cell number is not listed in the logbook it means that the inmate did not apply for exercise that day. Correction Officer Brooks also testified that some correction officers do not specify in the logbook which inmates chose indoor and which chose outdoor recreation. Reviewing the logbook, Correction Officer Brooks concluded that the claimant, who was housed in cell number 21 at the time, did not apply for outdoor exercise on the dates listed in his claim.

The applicable regulation allows one hour of exercise out-of-doors "[w]eather permitting" (7 NYCRR 330.4[b]). Based upon the testimony of Correction Officer Brooks and a review of the logbook entries, the Court finds that the claimant did not opt for outdoor recreation on the dates alleged in his claim. Claimant, having failed to prove by a preponderance of the credible evidence that he was wrongfully deprived of outside exercise, the second cause of action in the claim is dismissed.

Claim For Emotional Distress

Claimant's third cause of action for emotional distress as the result of the alleged failure to separate inmate Trammel from his unit following their altercation in the recreation yard was dismissed at trial (see Tatta v State of New York, 20 AD3d 825 [2005], lv denied 5 NY3d 716 [2005][absence of medical evidence to support claim for negligent infliction of emotional distress required dismissal]; Walentas v Johnes, 257 AD2d 352 [1999], lv dismissed 93 NY2d 958 [1999] [to prevail on claim of intentional infliction of emotional distress, claim must be supported by medical evidence that severe emotional distress was suffered]).

Based on the foregoing, the claimant's first, second and third causes of action are dismissed.

In accordance with the decision and order of this Court dated September 1, 2005, claimant is awarded $300.00 on his fourth cause of action, plus interest at the statutory rate from the date of the decision and order (see CPLR 5002; Love v State of New York, 19 AD3d 536 [1991]; Eisenberg v Rockland County, 19 AD3d 536 [2005]).

To the extent the claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).

Let judgment be entered accordingly.

May 22, 2007
Saratoga Springs, New York

Judge of the Court of Claims