Evans v State of New York

[*1] Evans v State of New York 2006 NY Slip Op 50391(U) [11 Misc 3d 1065(A)] Decided on January 31, 2006 Ct Cl 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2006
Ct Cl

Rodney Evans Claimant

against

The State of New York, Defendant.



100170



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: Rachel Zaffrann, Assistant Attorney General

Terry Jane Ruderman, J.

Claimant seeks damages for injuries he sustained during his incarceration at Sing Sing Correctional Facility (Sing Sing) when, on November 9, 1997, he was attacked from behind by another inmate in the A block yard. While claimant later learned the identity of his assailant, claimant did not know of any reason why he would be the subject of an attack. Claimant contends that the fact that he was attacked with a metal weapon evidences defendant's negligence in failing to employ adequate security measures. 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 7, 1997. The next day, a sergeant interviewed claimant as to his enemies and whether he had had any problems at other facilities. Claimant advised that he had no enemies and had not encountered any problems at other facilities. Claimant was placed in general population.

On the morning of November 9, 1997, claimant left his cell in 5 Building and proceeded down a tunnel to the A block yard. Despite the presence of a correction officer near the school building, claimant maintains that he and all the other inmates walked around the metal detector. Claimant further testified that the two correction officers supervising the movement of the inmates in that area did nothing to ensure that inmates passed through the metal detector. Claimant was never pat frisked nor did he observe any one else pat frisked.

When claimant reached the yard at approximately 9:15 a.m., he headed to the phone area which was 150 to 180 feet from the entrance. The phone area was approximately 20 feet long and six feet wide and was enclosed by a chain-link fence with an opening on one end. Inside the phone area were ten phones, hung on the wall of a building. As claimant waited for an available phone, he was grabbed from behind and slashed with a sharp object. Claimant struggled to free himself and started running. A correction officer ran to claimant from across the yard and escorted claimant to the facility's emergency room.

Claimant later learned that his assailant was inmate Alan Ramirez, who had been housed at Rikers Island while claimant was there. Claimant, however, had never had any prior encounters with Ramirez. Claimant was not aware that Ramirez was at Sing Sing, nor did claimant know why Ramirez had attacked claimant.

The examination before trial (EBT) testimony of Correction Officer Stephen Fallon was received into evidence (Ex. 28). Fallon testified at this EBT that, on November 9, 1997, he was the Officer-In-Charge (OIC) of the yard for the 7:00 a.m. to 3:00 p.m. shift. Prior to the entry of the inmates into the yard, he made a security check of the entire area. He looked for problems in the fence and walked the perimeter and center of the yard searching for weapons (Ex. 28, p 43). After completing his inspection, Fallon entered the OIC booth to write an entry in the logbook. As the inmates were coming into the yard, Fallon heard Correction Officer James Minde yell that there was a fight (Exs. 13; 15, p 4). Fallon then observed two inmates fighting near the phone area. He responded to the scene. The inmates were directed to stop fighting and they complied. [*2]

Correction Officer Santos Martinez testified that he has been employed at Sing Sing for 20 years and since May 1986 his assignment has been the yard gate, where he is responsible for monitoring inmate movement. An inmate needs a pass or must be accompanied by an escort officer to go through the gate. As part of his responsibilities, Martinez conducts random pat frisks and checks the exterior fence to look for weapons and holes. Additional searches of the yard are conducted by the OIC and the correction officer posted at the school. Martinez explained that he loved his job at this post because it was easy in that the number of inmates, 40 to 60, was relatively small and easy to monitor. He could not recall any prior incidents involving inmates fighting or assaulting one another in the yard.

On November 9, 1997, Martinez arrived at the gate at approximately 7:05 a.m. No one passed through the gate and into the yard until 9:00 a.m., after the OIC had inspected the yard and examined the fence. Within ten minutes, inmates began arriving and dispersed throughout the yard. Martinez counted 40 inmates as they entered the yard. At approximately 9:15 a.m., Martinez noticed two inmates a few feet from the entrance to the phone area. They appeared to be talking and within seconds a fight ensued. Martinez gave another correction officer the keys to the gate and pulled the pin of his radio to call for additional assistance while he ran to breakup the fight.[FN1] There were two other correction officers in the yard. Within 30 seconds, Martinez reached the two inmates. He ordered them to stop fighting and they complied. Martinez observed that claimant was bleeding and escorted him to a van for transport to the facility's emergency room. Obtaining medical attention for the injured inmate was Martinez's top priority.

Martinez further testified that prior to November 9, 1997, he had worked in various other security positions from the 5 Building Gate to the Yard and was familiar with the duties of the different posts. He has also been assigned to Watchtower Post 4, from which the phone area was visible. Martinez reviewed the logbook for the 5 Building Gate Metal Detector. It indicated that the device had been functioning on November 9, 1997 (Ex. C, p. 49). Martinez stated that inmates with weapons were a threat and the detection of weapons impacted inmate safety as well as his own safety.

Sergeant James Minde testified that he has been employed by the New York State Department of Correctional Services (DOCS) for 10 years and was assigned to Sing Sing from December 1994 to November 1997. On November 9, 1997 at 9:15 a.m., Minde was escorting a group of inmates from A block to the yard. En route, he observed three metal detectors, including one at the 5 Building gate. When they reached the yard gate, he became aware that two inmates were fighting in the phone area, which was visible from the yard gate. He proceeded to the altercation and ordered the inmates to separate. They complied. Minde escorted claimant, who was bleeding, to a bus for transportation to the infirmary.

Minde explained that the specific measures in place for security in the phone area included rounds conducted by correction officers, observation from the wall tower and a van driving around the perimeter of the facility. According to Minde, if all the phones were occupied, inmates waited in line outside the fence. A 10 minute limit for calls was enforced by a correction officer.

Lieutenant Michael Leghorn testified that on November 9, 1997, he was a sergeant [*3]at Tappan Correctional Facility, a medium security facility on the grounds of Sing Sing. His office was approximately 150 to 200 yards from the entrance to the yard and he also responded to the fight. Later, he prepared a memorandum identifying the 40 inmates that were in the yard at the time of the attack (Ex. 14).

Sergeant John McNamara testified that on November 9, 1997, he was the A Block Housing Sergeant. According to McNamara, inmates waiting to use the telephone lined up single file. A correction officer enforced a ten minute limit for each call. In McNamara's view, the phone area was not a location where inmate-on-inmate attacks were likely because the area was open and corrections officers had an unimpeded view from most points in the yard.

McNamara, as the supervisor of the A Block Staff and Housing, prepared a memorandum to the field lieutenant on duty. McNamara noted therein that a frisk of Ramirez uncovered "an object that appears to be a homemade sheath' for a box-cutter type razorblade" (Ex. 9). Based on the information gathered, McNamara concluded that this "appears to be an isolated incident brought about by some possible conflict between these inmates at either Downstate C. F. Or Rikers Island during court trips" (Ex. 9).

Sergeant Marc Armstrong testified that beginning in September 1997, he was assigned to the metal detector in the lower tunnel near the school. Armstrong explained that, before his tour of duty, he would test the operational status of the machine. Area supervisors inspected the metal detectors weekly and noted in the logbook whether the device was operable. Armstrong testified that on November 9, 1997, the metal detector was inconsistent and thus, a nonreliable source to detect metal objects. When he discovered inconsistent activation, Armstrong relayed the information to his area supervisor and assumed there would be a work order for a repair.

Deputy Superintendent Terrance McElroy testified that he has been employed by DOCS for 33 years. In November 1997, he was the Acting Deputy Superintendent of Security at Sing Sing. In this position, he was the highest ranking security officer at the facility and, as such, responsible for the custody, care and control of the inmates and insuring that staff acted in a proper, safe matter. In order to perform these duties, McElroy held morning briefings with his supervisory staff, enforced uniform inspections, checked time cards and made sure that programs ran on time. At the supervisory meetings, he reviewed security issues and at the morning briefings advised personnel of happenings from the previous night.

McElroy also described the efforts undertaken to protect inmates in the yard from attacks by other inmates. These measures included enforcing normal security procedures throughout the facility; conducting random pat frisks of inmates; using handheld and walk-through metal detectors; searching common areas, such as the yard and gallery; ensuring that the inmates were in proper attire and maintaining proper movement of inmates so that they reach their programs in a timely fashion.

McElroy kept himself apprised of staff and inmate activity by spot checking areas, making rounds during the movement of inmates and reading logbooks to determine if correction officers were performing their jobs. When asked at trial to review the logbook for the lower tunnel walk-through metal detector, he conceded that based upon the notation on November 9, 1997 "activating inconsistently" the device was not working properly (Ex. 19). McElroy described the security system at Sing Sing as preventative. Correction officers are posted throughout the facility, areas are searched prior to inmates movements, random pat frisks are conducted and inmate [*4]movement is restricted. Although various measures were in place that should protect inmates, McElroy conceded attacks still happen.

Robert DeRosa, who was employed by the New York City Department of Correctional Services (NYC DOCS) for 26 years, offered expert testimony on behalf of claimant. DeRosa had served as warden of the Anna M. Kross Detention Center for Men at Rikers Island and as compliance chief for the NYC DOCS before retirement from the agency in 1995.

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 seq). Specifically, he maintained that Section 7003.4 of the Commission Regulations, referring to "active supervision" of inmates in activities outside the housing unit, should apply to Sing Sing even though that section addresses local rather than State facilities. In his view, the prisoners that come through the New York City system are the same as those in the State system. 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 maintains that Sing Sing did not employ active supervision on the day of claimant's attack.

In DeRosa's view, in a maximum security prison like Sing Sing, it was reasonably foreseeable that assaults with weapons would occur in areas where large numbers of inmates gathered such as yards, mess halls and gyms. To avoid these attacks, several measures must be taken. Specifically, the yard should be searched prior to the inmates' entry into the area. Inmates en route to the yard should be thoroughly searched. In the yard itself, supervision must be adequate to deter and intervene. Inmates should not be permitted to congregate at the phones. DeRosa maintained that correction officers should have been assigned to specific zones within the yard. Instead, correction officers were left on their own to cover the area and there were no correction officers near the phone area.

DeRosa concluded that defendant's supervision and control in the yard was contrary to penalogical standards as reflected in the Commission Regulations as well as the requirements set forth in Sing Sing's own employee manual. According to DeRosa, in violation of the mandates of the manual, the correction officers failed to prepare comprehensive written reports of the incident. Additionally, from September 18, 1997 to the day of the incident, the walk-through metal detector was only operable on September 30 and October 1, 1997 (Ex. 19), thereby increasing the likelihood that metal weapons would pass undetected. In his view, prisoners were aware that they could conceal metal weapons and bring them into the yard.

DeRosa opined that a number of deficiencies at Sing Sing permitted claimant's attack, such as: the ineffectiveness of the pat searches; the inoperable metal detector; the number and deployment of the correction officers in the yard and the inadequate reporting. DeRosa, however, did concede on cross-examination that inadequate incident reports logically could not be a cause of attack because better reporting could not have made this attack foreseeable.

In reaching his conclusions, DeRosa relied upon the standards set forth in the security section of the Commission Regulations which, on its face, does not apply to Sing Sing. He was aware that DOCS has its own directives and that each State correctional facility has its own internal [*5]policies; however, he did not consider any of the applicable directives and policies in formulating his opinion.

In preparing his report, DeRosa never visited Sing Sing and was not familiar with the pertinent layout. He erroneously assumed that Housing Block A and Five Building were the same; they are not (Ex. 27).[FN2] He erroneously assumed that claimant's route from his housing unit to the yard had only two walk-through metal detectors; there were three. In determining that security was inadequate, DeRosa assumed that the lower tunnel was an enclosed solid structure which was not visible by a correction officer in an outside guard post. In fact, the tunnel had open sides with a fence on the upper half which was clearly visible by the posted correction officer.

DeRosa analyzed this incident without knowing the number of correction officers in the yard, how long it took each one to reach claimant and whether they had intervened and stopped the fight. DeRosa did not consider that there was a correction officer patrolling in a van along the perimeter of the facility and another correction officer in the watchtower. DeRosa assumed that there was no tower from which a correction officer could observe the yard.

DeRosa acknowledged that the weapon was never recovered and, consequently, he did not know whether it was metal and could have been detected by a metal detector. Nonetheless in his report, he concluded that metal was the weapon of choice at Sing Sing. He based this assumption on his own experience at Rikers Island and the DOCS Annual Report of Violence, a compilation of unusual incidents at the State's correctional facilities. He did not know, however, how many facilities were in the State system, which prisons were included in the report or whether Sing Sing was one of them. He conceded that he has had no direct experience with prisoners since 1990 and that inmates could have changed their weapon of choice in the past fourteen years and might have been deterred from using metal due to the presence of metal detectors. He had no information regarding prior assaults with weapons in the yard.

DeRosa admitted that inmate-on-inmate violence occurs even when a facility complies with all regulations to protect inmates and that it is almost impossible to keep all weapons out of a facility. DeRosa opined that, because a weapon was used to assault claimant in the yard, this evidenced that defendant had been negligent.

It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks 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 risks of harm include 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 [*6]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 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 the testimony of claimant's expert persuasive and credits the testimony presented by the State regarding the security measures taken on the day of claimant's attack. Significantly, DeRosa did not visit Sing Sing and his unfamiliarity with the facility and the security measures employed detracted from the reliability of his analysis; thus rendering his conclusions unsubstantiated. Accordingly, the Court finds that the security measures and supervision of the inmates in the yard was not negligent and was effective in addressing the altercation between the two inmates most expeditiously. The Court finds that defendant acted reasonably under the circumstances as they existed. Contrary to claimant's argument, the Court finds the incident was not foreseeable (see Silvera v State of New York, 306 AD2d 269). Notably, claimant had no prior encounters with his attacker, nor did he have any reason to believe he would be the subject of an attack and the area was not known to be susceptible to inmate -on-inmate attack. Moreover, the area was less prone to such altercation because of its visibility by all correction officers on duty who actively patrolled the area.

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

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 100170.

Appendices: Footnotes

Footnote 1: Martinez explained that while he was supposed to stay at his post, the other correction officer was new and a woman. Martinez believed that he would be better suited to respond to the fight.

Footnote 2: A diagram of Sing Sing shows two different structures.