New York State Court of Claims

New York State Court of Claims
LATIMER v. THE STATE OF NEW YORK, # 2010-030-001, Claim No. 115832


Claim dismissed after liability trial. Claimant did not sustain burden of establishing prima facie that State should be held liable for sudden inmate-on-inmate assault in recreation yard that was not reasonably foreseeable. No evidence of violent disciplinary history for assailant or violent psychiatric history other than testimony by claimant. No record made of penological standards of care.

Case information

UID: 2010-030-001
Claimant(s): COREY A. LATIMER
Claimant short name: LATIMER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115832
Motion number(s):
Cross-motion number(s):
Claimant's attorney: COREY A. LATIMER, PRO SE
Third-party defendant's attorney:
Signature date: January 8, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Corey Latimer alleges in his claim that on August 3, 2008 defendant's agents at Green Haven Correctional Facility [Green Haven] failed to protect him from an assault by a fellow inmate, causing him to suffer serious physical injuries. More specifically, he alleges that on that date he was in the Green Haven recreational yard at approximately 1:00 p.m. when he was "attacked by a level one (PSU) mental health inmate" wielding a "pick type" weapon, and suffered from puncture wounds and lacerations thereby. [See Claim No. 115832, 2].

At the trial of the matter, Mr. Latimer essentially testified as set forth in his claim, with some amplification. He testified that he had been sitting at a table playing scrabble in the yard when an inmate he did not know attacked him. He said

"while I was defending myself I suffered superficial punctures and lacerations from an ice-pick type weapon. Somehow, the weapon that was consistent with my injuries, was found on me."(1)

Claimant said he was "searched three different times", and no weapon was revealed. He was searched by Officer North on the yard, at H-block, and again at the medical infirmary.

Finally, after he was stripped to his underwear at the clinic in order to be checked by medical personnel and to have photographs taken, and as he was getting dressed, "a pen hit the floor." Claimant said he picked it up, and handed it to Officer North saying "this is the pen right here that the guy had." The officer pulled the top off, saw a metal rod sticking out of it, and said "this isn't a pen." Claimant said, "that's what the guy had." Just then, Sergeant O'Connor came back in the room, the pen was handed to O'Connor, who "made some phone calls", and then claimant was taken back to his cell and locked up. "The next day [he] was brought to SHU."

Asked to describe the activity leading up to the assault more specifically, Mr. Latimer said that the assailant approached claimant while he was sitting at the table playing scrabble, and asked him if he would pay a bill for him. Claimant asked how much the assailant owed. After being told the amount of the debt, claimant said he would not pay it for him, and the other inmate walked away. Claimant's scrabble partner warned him to "watch his back" as almost immediately thereafter, the assailant came from behind and "started swinging at [him]." Claimant turned, and the pen "almost hit [his] eye." Claimant grabbed the assailant's hands "trying to get up, and swung him to the side." Claimant finally got up, heading toward the officers, when others again warned him that he should watch his back, since the assailant was following claimant. Mr. Latimer turned to look and the assailant "swung" at him and "caught [him] in the neck." Claimant said that he "grabbed" the assailant again, "going to the ground, and this time holding him there." It was at that point that the officers arrived, told them to "break it up" and the searches and medical treatment followed.

An inmate injury report completed at the time reports that Mr. Latimer was "cut by another inmate [with] pen," confirms the injuries described by claimant ("superficial laceration [left] thorax, [superficial] puncture [left] scapula area, abrasion [right] elbow, [superficial] puncture . . . (illegible) to [left] eye") and provides that he was given a tetanus shot, and his wounds were cleaned and treated. [See Exhibit 1]. Claimant also submitted a portion of the Superintendent's disciplinary hearing disposition, wherein the hearing officer notes that he relied on the evidence of Correction Officer Meister's misbehavior report indicating that claimant and the other inmate - named Patterson - were observed fighting, Mr. Latimer's concession that he was fighting, and Sergeant O'Connor's misbehavior report indicating that a "homemade ice pick type weapon fell out of . . . [claimant's] sweatpants during a post fight physical . . . " [See Exhibit 2]. The hearing officer also notes in the portion of the form entitled "reasons for disposition", that

"This disposition is given as punishment for having a weapon on your person and fighting. However, it is not as severe as recommended due to your good record and the circumstances surrounding . . . (illegible) inmate involved has a long record [of] assaults on inmates and staff and many weap . . . (illegible)."

A portion of an Unusual Incident Report also submitted by claimant reports the incident and the seizure from claimant of the altered pen, reports claimant's injuries, the searches of the two inmates, and indicates that the claimant's wounds were consistent with "ice pick type weapon wounds" but notes that a weapon was unrecovered. [Exhibit 3]. Photographs taken of Mr. Latimer show the lacerations and puncture wounds described. [Exhibit 4].

On cross-examination, claimant acknowledged that after a disciplinary hearing based upon the two misbehavior reports he was issued, he was found guilty of fighting, possession of a weapon, and altering a weapon, and sent to the special housing unit [SHU]. At first Mr. Latimer testified that he did not know his assailant ("I think his name is Patterson") and that this incident was the first time he had any contact with him. He later clarified his testimony concerning his knowledge of Mr. Patterson somewhat by saying that he did not "know him, know him," meaning he did not "hang out" with him. Upon further inquiry however, it appeared that claimant had previously paid a debt of Mr. Patterson's with regard to cigarettes and had some acquaintance with Mr. Patterson through Mr. Patterson's brother and mother. Mr. Latimer said:

"We were on the same block in the same facility. I knew his brother, me and his brother hung out, and knew his mother from the street. His brother told me he was here . . . I felt sorry for him, being that we came from the same town, and I paid the first bill."

Claimant acknowledged that Mr. Patterson was not on his "enemies list" and that after the incident, he declined the offer of protective custody - saying "I was on SHU already" - and did not thereafter place the assailant on his enemies list.

No other witnesses testified and no other evidence was submitted on claimant's direct case.

After claimant rested, defendant moved to dismiss the claim based upon claimant's alleged failure to prove prima facie that defendant negligently failed to protect claimant from a reasonably foreseeable assault by his fellow inmate. Claimant argued that correction personnel knew his assailant was a threat to inmates and staff members, and they were "not even monitoring him." The Court reserved decision on the motion, but now grants the motion to dismiss for reasons stated below.

While the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence. Blake v State of New York, 259 AD2d 878 (3d Dept 1999); Sebastiano v State of New York, 112 AD2d 562 (3d Dept 1985). More broadly, in order to establish liability on the State's part, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253 (2002); see also Flaherty v State of New York, 296 NY 342, 347 (1947). The Court must look to see if the actions taken by the State were reasonable under the circumstances. The mere fact that a correction officer is not present at the precise time and place of an assault does not give rise to an inference of negligence absent a showing that officials had notice of a foreseeably dangerous situation. Colon v State of New York, 209 AD2d 842 (3d Dept 1994); Padgett v State of New York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711 (1990).

". . . [U]nremitting supervision . . ." is not required. Colon v State of New York, supra, at 844. When the assault occurred, it was dealt with immediately, according to all the testimony, and immediate medical care was provided.

While actual knowledge with respect to the foreseeability of a given assault ". . . offers a bright-line test, that line redefines the traditional standard of reasonableness that has long been the touchstone of the law of negligence, and it cuts off consideration of other factors that have previously been found relevant to foreseeability. What the State actually knew plainly falls within the ambit of foreseeability . . . what the State reasonably should have known -- for example, from its knowledge of risks to a class of inmates based on the institutions's expertise or prior experience, or from its own policies and practices designed to address such risks . . . (citations omitted)" may also be established. Sanchez v State of New York, supra.(2)

A large part of the resolution of this claim rests upon the claimant's credibility, the weight of the evidence claimant presented to substantiate his claim, and the applicable law. Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993), lv denied 82 NY2d 663 (1993); Newland v State of New York, 205 AD2d 1015 (3d Dept 1994).

Upon review of all the evidence, including listening to Mr. Latimer testify and observing his demeanor as he did so, the Court finds that claimant has failed to establish that defendant was negligent and that such alleged negligence was a proximate cause of his sudden assault by a fellow inmate and any injury. The claimant has simply failed to establish the elements of his claim.

The inherent risk of violent activity in a correctional facility housing dangerous individuals - including those with prior or current violent mental health issues - does not mandate imposition of liability for inmate-on-inmate assaults that are not reasonably foreseeable. The testimony of the claimant alone, although largely credible, did not establish the required elements to establish a failure to protect claim. In terms of credibility, although claimant was somewhat equivocal about the level of his prior acquaintance with Mr. Patterson initially, such equivocation appeared to be more as a result of the terminology being used by counsel, not necessarily claimant's unwillingness to disclose their prior connections (though he was wary of asserting such acquaintance).

In this case, there has been no showing that the claimant himself was known by correctional personnel to be at risk either generally or, even if his attacker was known for his violent propensities as set forth in the hearing officer's notations, that the precautions taken by correctional personnel were somehow insufficient. There was no prior notice of any specific antagonism between claimant and his assailant. As to the assailant's mental health status, it is only the claimant's assertion that the inmate was one with mental health issues. Significantly, even if Mr. Patterson was an inmate who suffered from mental illness, or who had a prior history of assault, there was no showing through expert testimony or otherwise that defendant's agents should have been on notice that Mr. Patterson was unsuitable for the general population at the time of the assault, or that the methods of monitoring Mr. Patterson were inadequate.

In this regard, claimant did not establish that the type of supervision practiced in the recreational yard was somehow against penological standards of care. From his own testimony, it appears that two to three correction officers responded quickly to the incident, separated the claimant from his assailant, and medical treatment was immediately provided. There was no testimony as to how many inmates were in the yard at the time. Inevitably, there is some risk, and there will always be some risk, in allowing groups of inmates recreational opportunities. As noted, even if the officers on the yard did not see the claimant at the precise time when he was attacked, the unremitting supervision that claimant would urge here is not required when the sudden attack here was not reasonably foreseeable based upon what personnel knew or should have known at the time. Moreover, claimant himself was armed with a weapon too. While it is unfortunate that claimant was injured, there is no basis for assigning liability for such injury to the State of New York on this record.

Based on the foregoing, claimant has not sustained his burden of establishing that the State had actual or constructive notice of the harm that befell him and, accordingly, Claim number 115832 is in all respects dismissed.

Let judgment be entered accordingly.

January 8, 2010

White Plains, New York


Judge of the Court of Claims

1. Most quotations are to audio recordings unless otherwise indicated.

2. It is noted that the majority opinion - addressing the concerns of the dissent - declares that ". . . we underscore that the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate." The majority confirms that in the case before it there was simply a triable issue, given ". . . uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack during congregate 'go-back' time; and uncontested evidence of both the regularity of the correction officer's inattentiveness at precisely that time and the officer's inability to see claimant at the location where he was required to stand."