A federal judge has once again rejected the federal government’s wish to dismiss a lawsuit seeking to hold it liable for a prison yard attack on an inmate.

Within 24 hours of his arrival at the United States Penitentiary at Florence, David J. Martin alleged he was stabbed 19 times with a knife by his co-defendant in full view of prison guards. Martin filed a lawsuit claiming the government failed to prevent the attack or intervene and should have ensured Martin’s separation from his assailant in the first place.

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Last year, then-U.S. Magistrate Judge Nina Y. Wang determined Martin had credibly alleged the government was liable for his injuries and she declined to dismiss the lawsuit. Representing himself in court, Martin then filed an amended version of his complaint, prompting the government to again seek dismissal.

But U.S. Magistrate Judge Maritza Dominguez Braswell, who is now presiding over the case, once more sided against the United States. While she noted Wang’s previous analysis was not binding on her, Dominguez Braswell agreed with many of the earlier findings.

“Here, Plaintiff has alleged that he was violently attacked for several minutes in a location observable from several locations by BOP employees,” Dominguez Braswell wrote in a March 31 order, referring to the Federal Bureau of Prisons. Accordingly, “it is at least plausible that BOP employees, while owing a duty of care to Plaintiff, breached that duty by failing to intervene in the attack causing Plaintiff to suffer additional injuries.”

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In 2013, a federal jury in Minnesota found Geshik–O–Binese Martin, David Martin’s cousin, guilty of murdering a couple on an American Indian reservation. Jurors also convicted David Martin of robbery during the same incident.

According to David Martin, before trial he passed a message to Geshik–O–Binese Martin to either “take responsibility” for his actions or David Martin would testify about “who did the killing.” David Martin alleged this caused Geshik–O–Binese Martin switch his plea to guilty to avoid the death penalty, but court records do not reflect that change.

Nonetheless, David Martin alleged that Geshik–O–Binese Martin equated his threat to testify with “snitching,” and David Martin wanted a separation order for him and his cousin. Up through the trial, the U.S. Department of Justice allegedly required the two men be held separately.

Years after his sentencing, David Martin arrived at Florence on June 1, 2018. During intake, staff reported there was no one he should be separated from at the facility. But immediately, he heard from another inmate that Geshik–O–Binese Martin was there and wanted to meet him.

The next day, David Martin walked to the bleachers in the prison yard to meet his cousin. Suddenly, he realized he was being kicked and stabbed. David Martin fought back but received 19 stab wounds from Geshik–O–Binese Martin.

David Martin alleged that guards would have seen everything from a tower, but no one assisted him. Instead, only after he walked toward an office did a staff member allegedly say, “I know, I seen it.”

David Martin’s amended complaint seeks $500,000 in damages against the government stemming from an alleged failure to separate the two men, properly conduct his intake, prevent Geshik–O–Binese Martin from bringing a knife into the prison yard or intervene in his attack.

The government disputed its liability for the attack itself.

“Common sense dictates that there are multiple ways that a knife could get into the yard, some of which do not involve negligence by correctional officers,” wrote Assistant U.S. Attorney Jennifer Lake.

As for the alleged separation order, Lake noted that discretionary acts by federal prison officials are not subject to liability. She acknowledged at least one appeals court has found that once an inmate receives a separation order, the Federal Bureau of Prisons has no discretion whether to enforce it.

“However, the duty to ensure that inmates with a separation assignment are separated from one another does not apply here because Plaintiff does not actually allege that he had a separation assignment from his cousin at the time of the attack and, in fact, there was no such separation assignment,” Lake wrote.

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Dominguez Braswell, echoing Wang’s findings from last year, agreed there was a dispute over whether a separation order existed for David Martin, but his allegations suggested it did. She denied the government’s motion to dismiss the failure-to-separate claim and indicated she will set a schedule for the parties to uncover the purported order.

Otherwise, Dominguez Braswell found David Martin had credibly alleged the metal detectors to the prison yard would have been triggered by a knife. Therefore, the government could be liable if Geshik–O–Binese Martin “carried the metal knife through metal detectors and past guards who were allegedly negligent in failing to stop him,” she wrote.

The case is Martin v. United States.