Mann v State of New York

[*1] Mann v State of New York 2005 NY Slip Op 51339(U) Decided on May 5, 2005 Court Of Claims Ruderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 5, 2005
Court of Claims

Thomas Mann, Claimant

against

THE State of New York, Defendant



100169



Claimant's attorney:FALK & KLEBANOFF

By:Jeffrey P. Falk, Esq.

Defendant's attorney:HON. ELIOT SPITZER

Attorney General for the State of New York

By:Vincent Cascio, Assistant Attorney General

Terry Jane Ruderman, J.

Claimant seeks damages for the injuries he sustained during his incarceration at Sing Sing Correctional Facility (Sing Sing). On December 31, 1997, at approximately 10:05 a.m., claimant was slashed with a metal razor used as a weapon by another inmate. Claimant contends that defendant was negligent in its supervision of the area and its failure to prevent the attack. Specifically, claimant contends the attack was foreseeable due to the assailant's known dangerous propensities and that defendant was negligent in its supervision of the gym area where assaults had occurred prior to this incident. Claimant further contends that defendant failed to follow its policy and procedures regarding security of the gym area and its investigation of the incident. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant testified that he arrived at Sing Sing on November 26, 1997. On the morning of December 31, 1997, claimant left his cell and proceeded to the B Block gym along with approximately 35 other inmates. En route, claimant did not observe any metal detectors. However at the gate to the gym, there were six correction officers performing random pat frisks of inmates and three of the correction officers were using handheld electronic metal detectors (T1:122).[FN1] Claimant described his frisk as a two minute procedure which consisted of a correction officer patting claimant's body from top to bottom. The correction officer then used an electronic wand to scan claimant's body and claimant was directed to lift his feet for scanning. Claimant's jacket was removed and examined and claimant's sweatshirt was searched for hidden objects. Claimant observed approximately six other inmates subjected to the same procedure.

When claimant entered the gym, he did not observe any correction officers inside the gym (T1:87). Claimant headed to the pull-up bars in the workout area. A half hour later, claimant noticed a group of approximately 15 inmates "posting up" against the wall and observing claimant for 15 minutes (T1:76, 105). Claimant became concerned, so he left the workout area and walked to the outdoor smoking area to have a cigarette (T1:103). Claimant never advised any correction officer of his concerns about the suspicious behavior of the other inmates because he did not want to be labeled a "snitch" and that is a label he would avoid at all costs (T1:132-35). According to claimant, approximately six of the inmates from the group followed claimant to the smoking area which was five feet from the gate (T1:106). Claimant testified that he was aware that the smoking area was not visible to the correction officers and that the workout area would have been visible to them (T1:126). Nonetheless, claimant conceded that, despite his awareness of the suspicious inmates, he left an area that was observable by the correction officers and proceeded to an area which was not observable (T1:130-31). He did not leave the smoking area to tell the correction officers [*2]that he was being followed by a group of suspicious inmates. He did not request to go back to his cell (T1:103-04). He just continued smoking his cigarette for the next six or seven minutes (T1:105). He later testified that it was only two to three minutes, and "no more than five minutes" (T1:123). Claimant was attacked from behind by the group and cut on his face, head and chest. Claimant did not know his attackers and did not see their faces. He later learned that he was slashed by inmate Juan Valdez.[FN2] Claimant had no enemies list and had no history of problems with any inmates (T1:100-02).

At trial, claimant testified that Correction Officer Ramirez and another officer responded to the scene five minutes after the slashing and broke up the fight (T1:109). According to claimant, the officers told claimant and his attacker to "break it up, separate" (T1:92). Claimant then explained that "it wasn't a fight. It was me *** just trying to defend myself throughout the process of me being attacked" (T1:93). At his examination before trial, however, claimant testified that the correction officers "rushed" to the scene (T1:112). Claimant testified at trial that it took approximately five minutes to breakup the fight; however at his examination before trial he testified that it took about two minutes (T1:120-21). Claimant was transported to an outside hospital. When he returned to Sing Sing, he was placed in involuntary protective custody.

Sergeant Berto Murray, the B Block Housing Sergeant on the date of the incident, has been employed by the New York State Department of Correctional Services (DOCS) for more than 20 years. At trial, he was shown the cover letter he wrote which was submitted with the Unusual Incident Report in this matter. It stated:

"Inmate Mann was chasing inmate Valdez up the steps, then Valdez turned and cut Mann twice in the face and once in the chest with a razor [box-cutter type]. Mann then stepped back, and was removed from the area. Valdez was also removed from the area."

(Ex. 3). Murray did not witness the incident. He did not have an independent recollection of the incident, nor did the exhibit refresh his recollection (T1:44-45).

Correction Officer Anthony Lorenzo testified that at 10:00 a.m. on December 31, 1997, he was posted at the gym door and was performing random pat frisks of inmates entering the gym. His duties also included preventing unauthorized entry into the gym; making security rounds; supervising inmates; remaining alert to illegal activities and submitting all necessary reports in a timely manner.

Lorenzo stated that he and Correction Officer Ramirez, who is now deceased, were standing together in front of the gym gate. The gym was the size of an official basketball court. On each side of the gym were landings approximately 26 by 27 feet. From where they were positioned, Ramirez could see part of the smoking area and he observed the incident. He completed inmate misbehavior reports charging Valdez and claimant with rule violations (Exs. 1, 7, A). Lorenzo recalled that he was alerted to the incident by Ramirez and that Lorenzo followed Ramirez into the gym. Upon entering the gym, Ramirez ran after Valdez and Lorenzo grabbed claimant as he was swinging at Valdez. Lorenzo handcuffed claimant, who was bleeding. Lorenzo did not prepare a memorandum because he did not observe the attack. [*3]

Lorenzo did prepare a report regarding an incident that had occurred on December 30, 1997 outside the gym door. That incident occurred as the inmates were leaving the gym and involved five inmates and metal weapons. Lorenzo distinguished the two incidents. He noted that the December 30, 1997 incident involved inmates leaving recreation; therefore a search of them was unnecessary. The December 31, 1997 incident involved inmates entering the gym; therefore random searches of those inmates were conducted.

Lieutenant Michael Spitz testified that on December 31, 1997, he was a sergeant at Sing Sing and recalled claimant's attack. He prepared a supporting deposition for an investigation undertaken by the New York State Police. Spitz stated that he had been notified of the attack and proceeded to the gym to assist. He recovered a utility knife on the southeast corner of the gym landing (Ex. 6) but did not characterize its discovery as indicative of a security breach (T1:250-51). He did not witness claimant's attack and therefore did not prepare a report. He did witness the December 30, 1997 incident and, therefore, prepared a report regarding that matter. He explained that on occasion, despite pat frisks, strip searches, and the use of handheld metal detectors, inmates obtain possession of weapons. He refused, however, to characterize such possession as common or foreseeable.

Sergeant Eddie Josie has been employed by DOCS for 26 years and was one of the sergeants assigned to Housing Block B on December 31, 1997. Josie testified that his routine began by checking in with the Officer-In-Charge (O-I-C) of the gym. The O-I-C had an office in the gym approximately 25 feet away from the pull-up bars. After checking in with the O-I-C, Josie proceeded to ascertain whether the other officers on duty were stationed at their assigned areas. Josie's duties included making security rounds of the gym and determining the location of the assigned officers. The logbook for December 31, 1997 indicates that Josie made a security round at 9:31 a.m. (Ex. F). The logbook also indicates that four other correction officers were assigned to the gym. Josie explained that inmates entering the gym were frisked and, once inside correction officers were assigned to designated areas. If an inmate in the gym felt threatened, he could return to his cell after speaking to the O-I-C.

On December 31, 1997, Josie was only in the gym for his 9:31 a.m. security round. He did not witness claimant's assault and accordingly, did not write a report. Claimant maintains that Section 9.5 of the Employees Manual requires otherwise (Ex. 13). Section 9.5 provides: "[i]n case of *** attacks, or fights where dangerous weapons are used, the employee [emphasis added] will call for assistance, notify his superior officer as soon as possible and take appropriate action to control the situation. No one shall be allowed to leave the area without permission. All evidence should be protected and not disturbed. Then a comprehensive written report should be made to the superintendent by the employee [emphasis added]."

Josie and the other correction officers who testified all interpreted the obligation of "the employee" to be imposed only upon an employee who witnesses an incident.

Josie did not recall any inmate on inmate slashing in the gym prior to claimant's attack.

Correction Officer Gregory Ebron has been employed by DOCS and assigned to Sing [*4]Sing for 17 years. On December 31, 1997, Ebron was the O-I-C in the gym and based upon the logbook entries, he recounted his activities that morning. He had no independent recollection of the particular day, however, and maintained that he was in the gym the entire morning.

Ebron arrived at the gym at 8:00 a.m. and made a security round at 8:30 a.m. He searched the gym for contraband. At 8:40 a.m., the inmate porters cleaned the gym. At 9:30 a.m., recreation was in progress and the other correction officers pat frisked the inmates as they entered the gym. Ebron made a late entry recording claimant's attack. He maintained that he was not obligated to prepare a report of an incident unless he had actually witnessed the incident.

Ebron's office was approximately 15 to 20 feet from the pull-up bars and the entire gym was visible from the office, except the exit area . Ebron had no recollection of inmates posting up. He further noted that if an inmate feels threatened in the gym, he can say he does not feel well and will be escorted back to his cell.

Robert DeRosa was employed by the New York City Department of Correctional Services (NYC DOCS) for 26 years and offered expert testimony on behalf of claimant. DeRosa had served as warden of the Anna M. Kross Detention Center for Men at Rikers Island (Kross Center) and as the compliance chief for the NYC DOCS before his retirement from the agency in 1995. The last time that he had operational duties concerning security in a correctional facility was in 1991.

In analyzing claimant's case, DeRosa opined that the New York State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries (Commission Regulations), promulgated for local correctional institutions, are relevant in establishing a reasonable standard for the operation of any prison within the state (see 9 NYCRR 7000 et seg). Specifically, he maintained that Section 7003.4, referring to the standard of active supervision of inmates in activities outside the housing unit, should be applied to Sing Sing even though that section addresses local rather than State facilities. As defined by Section 7003, active supervision means that facility staff should be available to respond immediately to a problem; inmates should have an uninterrupted ability to communicate with staff; and correction officers should be alert at all times.

DeRosa stated that the New York State Commission of Correction promulgates regulations for city and state facilities. The Commission provides minimum standards in state prisons for environmental issues and grievance procedures, but not security. Although he acknowledged that the New York State Department of Correctional Services (DOCS) establishes its own directives, post descriptions and institutional orders, he still maintained that the Commission regulations applied to Sing Sing.

DeRosa opined that the way a prison is managed and its levels of supervision determine the foreseeability of security breaches. He explained that the determining factors are the deployment and training of staff, their ability to observe and evaluate conditions, and the maintenance and use of electronic devices. DeRosa maintained that, in the instant case, there were 150 inmates in the gym for a half hour without a correction officer present. DeRosa's conclusion that a correction officer was not in the O-I-C office was based upon the absence of a report indicating the presence of the O-I-C. He further maintained that this was not consistent with standards that require an officer to observe and respond to incidents. Claimant's assertion of inmates "posting up," leaning on the wall, should have been a cause for concern and alerted defendant to a potential problem.

DeRosa further testified that defendant did not meet the standards set forth in the Sing [*5]Sing employee manual (Ex. 13). Specifically, he characterized the reports as inadequate and concluded that Lorenzo and Ramirez were not alert based upon the content of the reports. DeRosa's interpretation of the employee manual, as to who was required to make a report, is unfounded.

It was stipulated that there were no prior incidents in the gym. Nonetheless, DeRosa contended that DOCS should have been aware that Valdez had a predisposition to violence and DOCS should not have created a condition where Valdez was in the gym with 149 other inmates in the absence of a correction officer. In November 1995 and April 1997, Valdez was involved in fist fights, and in June 1996, in a fight with another inmate where both had weapons. While these were fights outside the gym, and not assaults, DeRosa maintained that Valdez should have been segregated. Later, however, DeRosa conceded that the incident did not warrant Valdez's segregation. Valdez was not listed as an enemy by claimant and there was no history of any problems between the two inmates.

DeRosa testified that when he was the warden at the Kross Center, he followed the applicable rules and regulations and analyzed data from previous incidents and attacks. Nonetheless, he conceded that inmate on inmate assaults with weapons still occurred. According to DeRosa, the random pat frisks conducted at Sing Sing were inadequate because a utility knife went undetected. Despite his criticism of Sing Sing's search procedure, he conceded that when he was the warden at the Kross Center, pat frisks were not performed on every inmate, every time they changed locations.

On cross-examination, DeRosa acknowledged that the Commission regulations do not apply to Sing Sing and do not mandate handheld or walkthrough metal detectors. He was aware that Sing Sing has its own rules and regulations, promulgated pursuant to the Correction Law, yet he did not consider any of those rules in formulating his opinion. He also did not refer to any DOCS' directives in his analysis.

DeRosa never visited Sing Sing and did not familiarize himself with the diagram drawn by Lorenzo of B Block and the gym. DeRosa did not know the dimensions of the gym and the distance between Ramirez and claimant at the time of the assault. DeRosa maintained that he had wanted to obtain the measurements between the office and claimant, but he had never received them.

It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risk of harm includes the risk of attack by other prisoners (see Littlejohn v State of New York, 218 AD2d 833). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The State's duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see Padgett v State of New York, 163 AD2d 914). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually knew, but also "what the State reasonably should have known for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez v State of New York, supra at 254 [emphasis in original]). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see Colon v State of New York, 209 AD2d 842, 844). "[T]he State's duty to prisoners does not mandate unremitting [*6]surveillance in all circumstances, and does not render the State an insurer of inmate safety. *** The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, supra at 256).

To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (Id.). "The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Wilson v State of New York, 303 AD2d 678, 679).

The Court finds that upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, there is a lack of evidence sufficient to meet claimant's burden of proof. The Court does not find claimant's testimony worthy of belief and credits the testimony presented by the State regarding the security measures taken on the day of claimant's incident. Claimant's testimony that he did not observe any correction officers inside the gym does not in fact establish that the correction officers were not present. Significantly, claimant was aware that he could have requested a correction officer to escort him back to his cell and he could have advised a correction officer of his fears. Nonetheless, claimant testified that he did not seek out any correction officers regarding his concerns because he did not want to be labeled a "snitch" and that he would avoid that label at all costs. Moreover, claimant maintains that, despite his feelings of fear and apprehension, he knowingly proceeded to an area that would not be observable by the correction officers on duty. Claimant's testimony strains credulity in that it appears to be tailored to establish that correction officers were not present. The testimony of claimant's expert was equally unavailing. Significantly, DeRosa did not visit Sing Sing and his unfamiliarity with the facility detracted from his analysis. His conclusions were faulty and contradictory. In sum, the Court finds that claimant failed to establish that defendant was negligent in its supervision and that the incident between claimant and Valdez was foreseeable. Rather, the Court finds that defendant acted reasonably under the circumstances as they existed and that claimant's account of the incident was not credible. Contrary to claimant's argument, the Court finds the incident was not foreseeable (see Silvera v State of New York, 306 AD2d 269).

Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED. All other motions not ruled upon are DENIED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 100169.

Appendices: Footnotes

Footnote 1: References to the trial transcript from April 1, 2004 are preceded by "T1," references to the trial transcript from June 1, 2004 are preceded by "T2" and references to the trial transcript from June 16, 2004 are preceded by "T3."

Footnote 2:Valdez had been involved in three other fights during his incarceration: November 22, 1995; June 19, 1996; April 10, 1997; and Valdez used a weapon in the 1996 incident (Ex. 20).