New York State Court of Claims

New York State Court of Claims

AYERS v. THE STATE OF NEW YORK, #2000-004-003, Claim No. 94024


Synopsis


Inmate on inmate assault allegedly caused by DOCS negligence. Claim dismissed.

Case Information

UID:
2000-004-003
Claimant(s):
STERLING AYERS
Claimant short name:
AYERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94024
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
JOHN D.B. LEWIS, Esq.
Defendant's attorney:
HON. ELIOT SPITZER,
Attorney General
BY: Earl F. Gialanella Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 5, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The trial of this Claim was bifurcated by Order of the Court. This Decision addresses the

issue of liability.


The Claim alleges, in pertinent part:

3. The claim arose on Dec. 29, 1995, at 8:00 to 8:30 p.m., at the Elmira Correctional Facility. Claimant was lawfully in the Cell Block 7 and 8 Galleries. A group of individuals, whose names are presently unknown, stabbed, sliced, slashed, and cut him, necessitating medical treatment.

4. There were no Corrections Officers on duty or at their posts as required. There were inadequate numbers of Correction Officers on duty at Cell Block 7 and 8 Galleries. If Correction Officers were at the Cell Block 7 and 8 Galleries, they were not properly supervised. On information and belief the assailants were other inmates and the assault was accomplished with sharp instruments, which are contraband and the possession of which is a crime. By institutional rule and custom, inmates must be frisked and must pass through a metal detector before they enter Cell Block 7 and 8 Galleries. On information and belief, the assailants were not so frisked or searched. Certain gates, which should have been locked, were not secured. The assailants had the opportunity to assault claimant because institutional rules and custom were violated.

***

SECOND CAUSE OF ACTION

6. Claimant repeats by reference paragraphs 2, 3, 5 and 6 [sic], supra, with the same force and effect as if restated in full.

7. Claimant was compelled by defendant's officers, agents, and employees to work at Elmira Correctional Facility.

8. At the time and place claimant was assaulted, he was discharging his duties as an employee of defendant, to wit, a feed-up man.


Claimant was housed in, and the events which give rise to this Claim occurred in, Cell Block "G" at the Elmira Correctional Facility (E.C.F.). Cell Block "G" is a four level cell block aligned in an east/west direction. Each side of each level, lengthwise, was lined with cells. There was a central open area between the cells on each side which extended from the first floor, referred to at the trial as the "flats", upward through, and including, the fourth floor. Each floor of Cell Block "G" was approximately 300 feet long. The cells on one side of a floor were referred to at the trial as a gallery.




Gallery 1, located on the north side of the flats consisted of cells 1-1 through 1-38. Gallery 2, on the south side of the flats consisted of cells 1-101 through 1-138. Gallery 3, on the north side of the second floor consisted of cells 2-1 through 2-38 and on the south side, in Gallery 4, cells 2-101 through 2-138. Cells on Gallery 5, on the north side of the third floor, consisted of cells 3-1 through 3-38 and in Gallery 6 on the south side, cells 3-101 through 3-138. Gallery 7, on the fourth floor, the scene of the actual assault, consisted of cells 4-1 through 4-38 and Gallery 8, on the south side of the fourth floor, consisted of cells 4-101 through 4-138.[1]
There were gates on each floor of Cell Block "G" at each end of each floor, which controlled access to the stairwells at each end of the floors. In other words, there were gates between the cells on each floor and the stairwells.

The trial of this Claim took place on October 20th and October 21st, 1999 at the Elmira Correctional Facility. The Court has been furnished with a copy of the transcript of the trial. What follows are excerpts from the transcript, all verbatim, including specific excerpts from direct, cross and re-direct arranged to provide Claimant's chronological perspective of events. The transcript is in two volumes. References thereto will be by volume number and pages, e.g., 1V, 121 or 2V, 108-109.


Before actually moving to the testimony, excerpts from the transcript of statements by Claimant's counsel, State's counsel and the Court which occurred at the beginning of the trial, also verbatim; are hereinafter set forth.
MR. LEWIS: There's just one other matter, Your Honor, which I need to take up with you at this time....

And it leads me to the unhappy pass of asking for, one: an adjournment. Or B: a change of venue. And let me give you the supporting facts for this.

A week ago today, I received a telephone call from an inmate who celled near Mr. Ayers at Clinton. And he advised me that Mr. Ayers had become concerned that Clinton's COs, who had come to know about this trial, were extremely angry at him.

***

MR. LEWIS: ...From speaking with Mr. Ayers at considerable length yesterday, I have learned the following:

He arrived at Elmira Correctional Facility on Thursday morning....

Elmira, as Your Honor of course is aware, is the sight of the attack against Mr. Ayers on December 29, 1995....

Upon Mr. Ayers' arrival at Elmira six days ago, he stayed the first night in A block. And that night, a number of COs made it very clear to him that they didn't want him there.

...They proceeded to embark on a campaign of harassment and intimidation and threats. He was -- the following day, he asked for a shower, to which he's entitled.

He asked for a telephone call, to which he's entitled. He asked for such basic amenities as toilet paper and toothpaste.

He was denied all of these things. And he was told, "You're getting nothing until you leave. You don't like it, file a law suit."

Alternatively, he was told that -- it was very clear to him (long pause) -- it was very clear to him that some officers even said, "The next law suit you file will be from your graveyard."

(1V, 10-13

***

...There was no shower. There was no rec. There was no toilet paper. There was no toothpaste.

(1V, 15)

***

So, this is what is presented...I have a concern for my client's safety. I have a concern for my client's physical well being, and his welfare.

***

But beyond that, I am extremely concerned that defendant's employees have created a massive chilling effect, not only in terms of this law suit, but in terms of any law suit that an inmate would dare to bring in connection with an issue of failure to protect, which is what underlies this law suit.

But very plainly, when -- apparently, when officers feel that their career or their reputation or their advancement is placed on the line by allegations of negligence, they're willing to come forward and to make these kinds of statements.

(1V,20)

***

...But under the circumstances, I think that Your Honor has to very seriously consider having this trial conducted in an entirely separate physical location, and/or adjourning it.

***

MR. GIALANELLA: Judge, these allegations or revelations by Mr. Lewis, I'm hearing for the first time, as you are, this morning.

***

As far as these allegations by Mr. Ayers and the treatment that he's received, and the allegations about how this is affecting his presentation of his law suit, some of them are very serious.

And some of them, I believe, would need to be addressed by docs personnel at some point in time. But I would submit that the trial still go forward.

***

And docs does have a procedure where they're investigated. And maybe at some point in time, they should be. But I still feel the trial should go forward.

(1V, 22-24)

***

THE COURT: ...Well...this situation, in my experience, is somewhat unique in this sense. I have no doubt in my mind that DOCS employees resent the fact that this Court is available for inmates to sue the state for money damages, for any number of possible incidents.

I personally have heard hundreds of claims. Perhaps over a hundred claims such as this, where an inmate on inmate assault has occurred, and the theory of liability is the lack of supervision.

This, however, is the first time I have ever been presented with a -- this level of threats.

***

...the fact of the matter is, adjourning the trial will, I'm not exactly sure do what, unless Mr. Ayers is scheduled to be released from prison tomorrow. He will still be in the system.

And the problems that he raised through you, and obviously I can't rule on them, because there's another side of the coin, can really basically be only addressed in an administrative process, which is in existence in the Court system.

In terms of a change of venue, well, I'm not exactly sure what that would accomplish. We could change the venue to another prison. We could change the venue to an outside courtroom, but then claimant would return to the prison....

(1V, 27-29)

***

So, there is no point in either adjourning the trial, nor...would there be any point in changing the venue, since zero would be accomplished.

(1V, 29)

The trial was not adjourned, nor the venue changed.


What follows are excerpts from Claimant's testimony:
Q When were you in Elmira Correctional Facility?

A The year of ‘91.

***

Q Okay. And how long did you remain at Elmira?

A I remained in Elmira until 1997. May 30th.

(1V, 101)

***

Q Okay. And can you tell us the time that you were in G block within Elmira Correctional Facility?

A I was in G block from 1992 all the way up till ‘95, with a span in between where I had went to the SHU box, special housing unit for dirty urine.

***

Q Okay. And when did you, in fact, leave G block in 1995?

A December 29th.

(1V, 102)

***

Q Okay. Now, let me direct your attention to your time in G block, and specifically, to the kind of work that you were doing when you were in G block. When did you get your first job in G block as a porter?

A It was in 1992.

(1V, 104)

***

Q And did you begin doing work as a feed up worker also, at the same time?

A No sir.

Q That was a little bit later?

A Yes, sir.

Q Okay. And your clerk duties, was that also a little bit later?

A Yes, sir.

Q Would you please describe your duties as a porter for the Court?

A ... And the first I was hired, I did odd jobs. Wasn't necessarily a porter. I just got out like as an extra worker. I had worked in reception for a number of months. And the officers at reception recommended me to the officer in G block at the time.

...And he just had me out doing extra work, like painting the bars, washing walls, stuff like that there. And then, when he did get an opening, he officially hired me through the program committee.

Q Now, when you say he, can -- do you remember the name of that officer?

A Officer Germain.

***

Q ...what were your duties as a regular porter on G block?

A My duties was, I came out at 6:00 in the morning. I handed out the water. Swept and mopped the flats first thing that morning. That's how we used to do it when we first started. And I'd help with the feed ups, if necessary.

***

Q Okay. Now, you also did some...work in your cell, even before 6:00 in the morning. Didn't you?

A Yes. Well, you can call it a job. I don't call it a job. It's just something I did as something between me and the officers I did.
Q Well, tell us what you did.

A I made coffee in the morning. They let me out at 6:00. So, I would get up at about five in the morning. And the officers gave me a coffee pot. I think it's the 20 or 30 cup pot. And I would make the coffee.

(1V, 105-107)

***

Q Okay. Now, when you were doing feed up duties, did you have occasion to carry trays to men on the flats?

A Well, when I first got the job... My galleries were three and four.

Q You were on the second floor at that time?

A No. I was living on the flats. But my -- working on the feed up, I had to feed three or four galleries.

***

Q Now, subsequently, did your assigned job change?

A Yes.

Q And tell us how it changed.

A I think it changed through transfers. Inmates getting transferred out. The feed up men that were there before me eventually got transferred out, and I moved up into lead feed up man position.

Q And as the lead feed up man, what did you have to do?

A ...When I first come out of my cell in the morning.... And I make out a list for the mess hall, how many feed up trays we needed for the block.

Q And am I correct in saying that there might be keep lock prisoners on any gallery, on any floor?

A Throughout G block, yes.

Q Okay. And you would then take the trays to those men, wherever they might be keep locked.

A Yes...

Q Okay. Now, let me return to your duties as a porter. Did there come a time in the evening when there was evening mopping or cleaning up?

A Yes, sir.

Q And about what time was that?

A ...anywhere between I would say 5:30 and 6:00....

Q Okay. And at 5:30 and 6:00...let's just say 6:00...What did you do as a porter at that time, beginning at 6:00?

A ...first thing I would do is, we would pass out water. An officer would go down in the back and unlock the gates. The in gates, so that we could get in the back and get water.

Q Those in gates had been locked during the day?

A Yes.

***

Q Okay. And after the -- and would that be Officer Cunningham? The gentlemen who is in the courtroom today? Is he the one who would open up the flat rear gates?

A In the evening?

Q Yes.

A Yes.

Q Okay. And he would do that at about 6:00 for the evening clean up?

A Yes.

Q ...And you would be down there, and you would have a mop and a bucket and all of the other equipment. Is that correct?

A Yes.

Q And after Officer Cunningham opened up the rear gates, what would you do?

A ...I would take and get the mop, bucket....fill the water buckets up and mop pails up, and commence to cleaning the flats. Sweeping them up.

(1V, 108-112)

***

Q And during the time that you were doing the work of sweeping and mopping, did you have occasion to have to go back into the slop sink area to get, for instance, fresh water?

A Yes, sir.

Q Okay. And when you did that, did you go to Mr.Cunningham, or some other officer, to open up the rear gate area?

A No, sir...

Q ...Why not?

A It was left open.

Q It was left open. Was it left open during the entire time of the cleaning period?

A Yes, sir.

(1V, 121)

***

Q ...directing your attention to the 7:55 late kitchen worker go back, is that the one that you were referring to when you said the porters had to have finished their job by a certain time?

A Yes...

Q It's around 8:00.

A ...Yes, sir.

(1V, 131)

***

Q Okay. So, when the call out workers return, or the early go back people or the late go back people, when they return, they're coming in through the front gates. Correct?

A Yes, sir.

Q And obviously, the front gates have to be open to admit them.

A Yes, sir.

(1V, 132)

***

Q Can you tell the Court how it's unsafe to have the gates open simultaneously, front and rear?

A It's unsafe because you only have one officer working the front gate of the company. And with the rear gates open...the officer cannot see into the gallery, and he can't see if the inmate goes in the back of seven or eight....

(1V, 133)

***

Q ...Now, looking to the front end of the flats, can you tell us how many gates there are?

***

A ...Gates? It would be two -- there would be four in gates. There would be one in front of one gallery, one in the back of one gallery, one in the front of two gallery, one in the back of two gallery. And there would also be center gates, which would be two more.

***

Q There are a total of six gates.

A Yes.

Q On the flats. Correct?

A Yes.

(1V, 134)

***

Q How many gates are in the front of the second, third and fourth floors of G Block?

A Six.

(1V, 135)

***

Q ...Tell us what you did as a clerk. An acting clerk in G block.

A At the time I had to do the clerk's job, mainly my main thing was the count....for the block.

Q And what does that mean...the block?

A ...I had to do each count sheet for each gallery. I had to note by each cell location if the individual was not there, or he was there. There was eight galleries, so I had eight slips.

(1V, 138)

***

Q Okay. Now, did you ever have occasion, Mr. Ayers, to be asked to pack up an inmate's cell?

A Yes, sir.

Q Can you explain to the Court what pack up an inmate's cell mean [sic]?

(1V, 140)

***

...Meaning all his personal items, state items, whatever is in his cell has to be packed up. At times -- many times over the years, they don't have an officer available to do that.

And they had so much trust in me, that they would give me the paperwork. I would go to the inmate's cell, pack up his food, personal clothes, pictures, whatever was in there.

***

Over the years, I never had anybody say something was missing out of the bags that I packed up.

(1V, 141)

***

Q What would happen, Mr. Ayers, if in the course of packing up an inmate's cell, you came across some contraband property?...

A The contraband? Nine times out of ten, I would let the officer know. I have had that happen.

***

Q Okay, so -- but I was just curious why you said nine out of ten, instead of ten.

A ...I say nine times out of ten, because nine times out of ten, I would give it to the officer....there might be a bunch of marijuana or something. I might grab a joint or two and smoke it. I ain't gonna tell no lie. You know? Something like that.

(1V, 142)

Q Now, Mr. Ayers, let's go now to December 29, 1995....Just resting in your cell.

A Yeah...I had went to my cell.

***

Q Okay. And did something happen at that time?...

A I was being called repeatedly.

Q Okay. And if you know, who was calling you?

A There was one guy on eight gallery that was persistent in calling me....it was a night that there was...no recreation for G block that night, on the 29th.

And the majority of the inmates were in their cells. So it was

extremely noisy. You got about 300 inmates in a cell. So, you can imagine how noisy it is with them hollering back and forth to each other. And they're always calling me.

I'm being called at least a hundred times a day. They call me for everything.

Q What kind of things do they call you for?

A Well, they call me if somebody's sick. They call me if somebody's cutting up. They call me if somebody's hanging up. They call me if somebody needed emergency phone call....anything that required having to go through an officer, or something that they know I could get done for ‘em. They would do it.

Because...what happened was, I get right to the point. Instead of the officer telling ‘em, yeah, wait a minute. Or we're busy. Officers will never come. But they know they call me, I'll be there.

Q And did you also sometimes deliver things that an inmate wanted or needed upstairs?

A Working, yes. That was my job.

Q Okay. What kind of things might you bring to an inmate in a cell?

***

A Oh, I very seldom brought something to anybody in their cell personally, unless somebody wanted me to pass a pack of cigarettes or something like that....

Q Uh huh. Toilet paper? Items like that?

A Things like that.

Q Now, on this night, this one inmate was calling you from eight gallery. And that's on the top floor. Correct?

A Yes, sir.

Q Okay. What did you do in response to him calling you?

A Well, he had been calling me, I'd say, since about 7:00. And I kept telling him, "I'll be there. I'll be there." I remember it was a cold night. I had a little touch of the flu, so I wasn't feeling very well at all, and I really didn't want to go up there.

It had been a busy day, and I was like -- I was kind of tired. And there was a lot of people calling me. And there always is. I can't walk down the gallery without five or six different people calling me.

Q So on this night, you finally went upstairs?

A I finally went upstairs...

Q ...Tell us how you went upstairs.

A Came out of my cell and proceeded through the in gate on one company....

Q ...was the in gate open?

A Yes, sir.

Q Okay. And who was the number one officer at that time?

A Officer Cunningham.

(1V, 145-148)

***

Q Okay. And did you have any conversation with Officer Cunningham on your way upstairs?

A No, sir.

Q Did he see you?

A He looked up. He (inaudible) up as I walked by.

Q Okay, he didn't say stop to you, did he or anything?

A No, sir.

Q ...Would you just normally walk through the gate like that, with Officer Cunningham there?

A Yes, sir.

Q Why would you do that?

A Do that with Officer Cunningham or any other officer.

Q ...Why was it not necessary for you to speak to Officer Cunningham when you went through his open gate?

A Because the job I had...the officers had the type of trust in me that I could go anywhere in the block without being questioned. Whereas they could see a porter from three gallery, say, up on five gallery, and they might say, "Hey, you got permission to be up here?"

Whereas if they would see me, they would just wave or (inaudible). They would never, ever question me about being up on a gallery.

Q ...If you had spoke to Officer Cunningham, and you said, "I gotta go up to eight. They're calling me on eight." What would he have said to you?

A I have done that many times.

***

Q But what would he have said to you?

A I had -- he didn't care. Just had the -- let the officers -- up to the officer who's in charge of the gallery that I was going on. He would never -- Officer Cunningham -- I could go to Officer Cunningham, Sergeant Cunningham. I could go up there to so and so's cell on four gallery.

And I could tell him, no matter how important it is, he's not going to let me go. He's going to tell me to see the officer assigned to that gallery.

Q ...when you get to the stairwell that's in the front of G block, you can take that stairwell and go from one to two, two to three and three to four, without going through any other gates. Correct?

A Yes, sir.

Q Okay. Now, when you get up to five six, which is the third floor, did you see any correction officer there?

A I seen Officer Brown sitting in the office, reading in a newspaper.

Q And did you have any conversation with Officer Brown?

A Hand motions.

Q When you say hand motion, that's not conversation. Did you have any conversation?

A No.

Q Now, tell us, what kind of hand motions did you have with Officer Brown.

A ...I waived to him, and he waved to me. I pointed that I was going up.

***

Q Okay. Now, can you tell us what you found when you got to the fourth floor of G block that night?

A I got to the top of -- it was seven and eight company at the top of the stairs. The seven gallery.

Q ...Is the first gallery that you see seven gallery at the stairs?

A It's seven gallery. Yes.

Q Okay. And what did you see on seven gallery?

A The front gate was open. I looked down, and the back gate was open in the back of seven....I didn't see the officers, so I walked over to the eight gallery, and looked down there, thinking an officer was down there.

Q Was the eight gallery gate open?

A Yes.

Q Okay. And did you see the officer down eight gallery?

A No, I didn't.

Q Did you see anyone down eight gallery?

A Yes, I did.

Q Who did you see?

A I seen a number of inmates down there, around the end of the gallery, around 32 cell. Somewhere around in there.

Q Okay. And --

A (Interposing) And I seen an inmate that was calling me. He was standing there too.

(1V, 149-153)

***

Q You saw the inmate that was calling you from eight gallery?

A Yes.

***

Q Okay. What did you do then?

A I looked for the officer. I didn't see the officer behind him, so I didn't know if the officer was in his cell, somebody was sick, or what the case was. But I wasn't going down the gallery, so -- without seeing the officer.

So, I came back down to seven and walked down seven gallery.

Q ...Why were you walking down seven gallery?

A Because the rear gate was open. And a number of times, I went to see an officer on the gallery. And he was in the back of the gallery with the porters. So, I automatically thought that Officer Cardi was in the back with the porters back there.

(1V-154)

***

Q ...Tell us what happened as you went down the gallery.

A As I went down the seven gallery...I believe I was around maybe 22 cell or 23 cell. And like I said, there was a lot of inmates in that cell that night, because there was no rec. And an inmate in -- a black inmate in 22 cell stopped me as I walked past. He called me.

...and he said that he had some problem, emergency. He needed a phone call. His wife was sick or something.

And as he was telling me that, I was looking around for the officers. So I told the inmate that I would be back. But as I was telling him this, I noticed an inmate -- Spanish inmate coming down the front of seven.

Q When you say down the front of seven, you mean he was coming back from the front gate area of seven toward the back gate area?

A Yes, sir.

***

Q ...And did you notice anything about that Spanish inmate?

A He had something in his hand. He had a towel. A green towel. And it had something wrapped up in it. But I couldn't tell from a distance what it really was.

Q Okay. What did you do then?

A I told the inmate that was trying to get -- tell me about his problems, that I'd talk to him. I'd be back to see him. Because I wanted to see the officer. So, I proceeded towards the back of seven gallery.

As I was going back there, I noticed all the rest of the inmates had disappeared, that were on the other side at 32 cell.

Q Referring to the eight gallery?

A Yes, the eight gallery.

Q Okay.

A The one that had called me, and all the rest of them. Everybody just suddenly disappeared. I looked over there, and I didn't see them.

Q Okay.

A And I looked back, and the Spanish inmate was coming towards me. And so I turned around and started walking back off of seven gallery. And he turned around and started to leave. So, I said to myself, it must not be nothing. So I (indiscernible) -- I just had a bad vibe.

...I went down (inaudible) in the back to find the officer...

By then, this other inmate had turned around and started coming towards me. And --

Q Coming towards you a second time now.

A A second time. Yes.

Q Okay.

A And by this time, he was, I would say maybe two or three cells from me now. Because I had walked back up some.

Q Uh huh.

A And I turned around, and I was coming back. And I was taking my time walking, because I was trying to look for the officer to see what's going on, at the same time.

As I approached the rear of seven gallery, I figured the officer was in the back at the slop sink, because I found officers back there a number of times when I was looking for them. They was back there with the porters doing something.

And as I made the turn, I noticed the inmate was right upon me. And at that point, I felt him stab me in the back with a sharp object in my back, right next to my spine.

Q Okay. Now, without going through all the details of the subsequent fight, there came a time when you were able to get out from the rear of seven and eight galleries. Right?

A Yes.

***

Q But now you're on seven gallery. You've just been stabbed. You've just been slashed, and you just escaped from the rear of seven and eight gallery.

A Exactly.

Q Okay. Tell us what you did then.

A ...I went directly downstairs. Went down to five and six. I turned to go down. As I was going down, I believe it was three and four, I met Officer Brown coming up.

***

Q Where you bleeding a lot at this point?

A Yeah, I was bleeding very heavily. I was covered with blood.

Q Okay.

A But it hadn't soaked through at that point.

Q Okay. And you passed Brown on the stairs. Did you have any conversation with him?

A ...I had put my hoody [phonetic spelling] on, on the way up downstairs coming off the gallery....

***

Q ...And is that like part of the top of the sweat shirt --

A ...Top of it.

Q -- that goes over the top of the head?

A Yes.

Q Okay. I know what that is.

A I was -- I had a lot of clothing on that night. I was sick. I was cold. The block was cold that night.

Q Okay.

A But anyway, I passed Officer Brown. I remember passing him. And he says, "Hey, Abdul, how you doing?" And I said, all right....I kept going. I never stopped. We just passed each other.

Q Okay. And you're rushing downstairs at that point.

A I'm rushing downstairs, yeah.

Q Okay. And who is the next officer that you see?

A Well, I come all the way down to the flats. I pass Officer Cunningham. He's sitting at the desk, but he doesn't know there's a problem. He looks up and see me, but you know, he's he doesn't know I'm wounded or I've been assaulted. I don't say nothing.

I go right through the gate. Officer Brown is right behind me and he tells Officer Cunningham that I was cut or something. And I proceeded all the way to my cell.

***

Q Ok. And then what happened then?

A I went my cell. I looked -- to get my mirror and a towel, to see if I could stop the bleeding. And Officer Cunningham and Officer Brown were standing outside my door.

And Officer Cunningham told me to come out of the cell. And so I just came out of the cell.

(1V,155-162)

***


Cross-examination excerpts follow:


Q When inmates in prison are planning or anticipating a fight or getting in a fight, isn't it true that they dress heavy or in layers?

A At times, yeah.

Q And when we say in layers, you mean the green suit like you have on, and as many layers under that. Correct?

A Yes.

Q And that could include a sweat shirt in addition to that. Right?

A Exactly.

Q And on this particular day, when you walked upstairs, you were dressed in several layers. Correct?

A Yes, I was.

Q Tell me what layers you were dressed in. You mentioned you had a sweat shirt on. What else did you have on?

A I had a long sleeved undershirt on. I had a regular green state shirt on. And I had a pull over hood on....

Q And when you walked upstairs, did you have the hood on and up?

A Yes. When I walked upstairs, I had -- I had it on all night. Because I had a cold.

(1V, 170-171)

***

Q What porter were you? Or what area were you assigned to?

A At that time, I wasn't assigned to any particular area.

Q You're saying on that particular evening, you were not assigned outside any particular area?

***

A On 12/29, if you look at the -- my payroll, it would say porter or feed up. But at that time...I had escalated to the lead feed up man. I mean the lead porter in the block. I didn't have an exact signed job, so to speak. I did some of everything.

(1V, 172-173)

***

Q Isn't it true, though...when you're assigned to a gallery as a porter, you're pretty much restricted to that gallery. Correct?

A It's not necessarily true.

***

Q Isn't it true that porters, when they're assigned to a particular gallery, would have -- it would be very seldom that they would go to other galleries. Excuse me. Other floors or galleries on other floors?

A Only time they would have a problem with that, if the work's not done.

(1V,174 through 175)

***
(What follows is an excerpt from Claimant's examination before trial

read into the record on cross-examination.)

Q ...Question by me: Would there be occasions or would there be times where porters from one gallery would have to go to another gallery?

Answer: I've seen it happen only on rare occasions, such as a cell flood or something of that nature. Some type of emergency.


(The excerpt ends here.)


...Do you remember giving that testimony?

A Yes, sir. Getting the work out. That's what was – pertaining to work.

Q Isn't it true that for you to move around that block, whether it be from one gallery to another, you needed permission from the corrections officers. Correct?

A Not exactly. No.

(1V, 176)

***


(What follows is an except from Claimant's examination before trial read into

the record on cross-examination.)

Q...Question: ...if you as a porter wanted to go to the seven or eight gallery, how would you do it? What would you do?

Answer: with permission from the officers?

Question: With permission.

Answer: I would just go up to the stairs.

Question: ...Is there other gates you have to go through?

Answer: ...say I wanted to get on three gallery, I'd come off one, go upstairs, I'd come to the gate on one. I'd go up the stairs to three. And I would have to get the officer to let me in gate.

Question: To go into the three gallery?

Answer: Yes, sir, because the gallery would be locked. The gate.

Question: ...if you were at the flats on one, and you wanted to go to seven and eight. How would you -- how would you do that?

Answer: If the officer permitted me, I would go from one to seven with no problem. But I wouldn't be able to get on the galleries....


(The excerpt from the examination before trial ends here.)

***

Q ...cell block G would have three officers assigned to it. Correct?

A Yes, sir.

Q And isn't it also true that on December 29th of 1995, you knew that the three -- of the three officers, one would be at the front desk near gallery one. Correct?

A Yes, sir.

Q One officer would be for the second floor, which would be galleries three or four. Correct?

A I knew they'd be up there somewhere. What galleries, I wasn't sure.


(1V,177-179)

***

Q So, it's around 8:30. And you said you hear someone calling you from upstairs. Right?

A They had been calling me...

Q And they had been calling you for about an hour.

A Yes, or more.

Q And I believe it was your testimony that you said you went up there because you thought what they needed was important. Correct?

A Exactly.

(1V, 180)

***

Q You just thought someone was cut or sick.

A Not necessarily. I just knew it was something important. Anytime somebody wants something, if they call the officer, the officer is going to tell them to call me. So that's why they always call me.

(What follows is an excerpt from the Claimant's examination before trial read into the record on cross-examination.)
Q Question: So this inmate says it's important to come up. He didn't mention to you like -- at that time, anyway, something specifically related to a porter duty. No. He was saying something, but I couldn't understand what he was saying. He was pointing over to seven. He was on eight. And so I just figured I'd go up there and see what he wanted.

(1V, 182)

(The excerpt from the examination before trial ends here.)

Q So you were concerned that someone could have been bodily injured or needed immediate help. Right?

A Exactly.

Q And it was your testimony that when you walked out of your cell, you walked through the open gate at the end of the one gallery. Right?

Q Yes, sir.

Q And Officer Cunningham is sitting there. Correct?

A Yes, sir.

Q And I believe it was your testimony that you had no verbal communication with him whatsoever. You just walked by him. Right?

A Yes, sir.

Q And prior to that time, you had testified that there was several times where you had been in a similar situation. You had talked with Cunningham, and he said, "Yeah, you can go upstairs, but make sure you ask the COs who are up there." Right?

A Yes, sir.

Q But this time, you didn't do that. Correct?

A I stopped doing that a long time ago.

Q Okay. You stopped doing it. And you also testified that Cunningham and you had eye contact?

A Yes.

Q Do you remember if he –

A (Interposing) Well, maybe not so much eye contact. You can't walk by Officer Cunningham without him looking up. He's not slow. He's sharp. You're not going to just walk by him without him seeing you.

Q Well, do you remember testifying in your deposition, or in your deposition testimony that when you walked by Cunningham on that particular evening, that he was writing in his log book?

A Yes, I remember he was writing in his log book, or writing something.

(1V,183-184)

***

Q So, you go by Cunningham and you go up the stairs. Right?

A Yes, sir.

Q So, the second floor is the three and four gallery. So you walk through there. Correct?

A Yes, sir.

Q You didn't see any corrections officer at that time?

A No, sir.

Q See any porters working out on the landing? Anything of that sort?

A Nobody. Completely deserted.

Q And then you get up to the next floor, which is five and six. And that's when you describe this eye contact, or this contact you made with Officer Brown. Correct?

A Yes, sir.

Q And when you went by Officer Brown, were any porters working on the gallery landing with him, then?

A Didn't see no porters nowhere.

Q So...you go up to the fourth floor, which is seven and eight. And then, when you get up there, isn't it true that you -- you look down eight, and you don't go down eight, because you saw a lot of inmates on that gallery?

A Yes, sir. I didn't see an officer.

***

Q And at this particular time, the front gates are open. Correct?

A Yes, sir.

Q And isn't it true that when you looked down the gallery and you saw a bunch of inmates on eight, you became worried at that time. Did you not?

A No. I was concerned with what was going on. ...I didn't know if somebody was sick, and the officer was in his cell looking at him, or what the case was. I just couldn't figure out what was going on.

Q Did you recall testifying in the deposition, and your words were: something was up. I thought something was up.

A Yeah. I knew something was up. I just didn't know what.

Q Yeah. Didn't you think that that something was up -- didn't you mean that maybe you were being set up, or you were in a little bit of trouble?

A If I had any idea, I would have never went down that company.

Q So, you go down eight. Or you look down eight. You see inmates there.

A Yes, sir.

Q And it makes you feel uncomfortable. Right?

A Yeah. I didn't want to go down there without the officer seeing (inaudible). That's what makes me uncomfortable.

Q And at this time when you were up there, you said you looked down and you saw the rear gates open. Right?

A Yes, sir.

Q And when the rear gates are open, you know that inmates who are on seven have to access to eight correct?

A Yes, sir.

Q And vice versa. Right?

A Yes, sir.

(1V, 186-188)

***

Q And don't you also recall testifying in your deposition that before you had walked on any gallery, you were told that you have to get permission to walk on a gallery?

A Not necessarily to walk on a gallery. That's being kind of technical about it. When I said -- when I have to get permission to go on any gallery, which there have been many a time, and I've walked on that gallery, and told the officer I was going on the gallery for something.

When I say not going on the gallery, I don't mean I don't go in the gallery at all. I may go down the gallery looking for the officer. Because many times, the officers are in the back. At that hour.

(1V,189-190)

***

Q ...So, you get up on seven gallery. You walk down seven gallery. ...the reason why you walk down seven gallery, was so you could find a CO to let him know you're on that gallery, and you're up there for this problem. Right?

A Exactly.

Q So, you get halfway down the gallery or cell block to -- I believe it was cell 720 something. Right? You mentioned?

A 22. Somewhere around there.

Q And this inmate stops you and says, "Hey. I've got to tell you about a phone call I've got to make." Right?

A Correct.

Q So at that time, you don't tell him, "Wait here. I'll be right back. I've got to see if any officer is in the back of the gallery, or the back of the unit here." You stop and you talk with that -- you begin to talk with that inmate. Right?

A No.

Q That's not what happens?

A That's not what happened. What happened was, the inmate stopped me and tried to tell me what the problem was. And I told him to hold up. I'll be back to see you. I've got to see the officers. Those were my exact words.

(1V, 191-192)

***

Q Okay. So you're there talking with this inmate. It's 722. And then, you see this Spanish inmate come from the front of seven. Correct?

A Yes, sir.

Q And at that time, isn't it true that you, instead of going back to the gallery to look for this corrections officer, you turn and walk towards this inmate that was walking towards you, to find out what he wanted. Isn't that true?

A Exactly.

Q So, you walk towards him to find out what this inmate wanted, and he disappears. Correct?

A No. He turns around and starts back walking the other way.

(1V, 194-195)

***

Q ...isn't it true that after he gets closer to you, when you went back and you stopped to talk to this inmate the second time, then you started to walk towards the back of the gallery.

A Yes, sir.

Q And that was in the same direction...where these other inmates would have been, that made you feel uncomfortable when you first went up on seven and eight, Correct?

A Yes, but they were gone.

(1V, 198-199)

***

Q So, the incident takes place, and you walk fast down seven. Right? That was your testimony?

A Yes, sir.

Q And it's your testimony that at that time, you had your hood up.

A Yes, sir.

Q And you see Officer Brown. And Officer Brown says to you, "How you doing, Abdoul?" Something like that?

A Something like that.

Q Did he say stop? What's wrong with you? Anything like that?

A No.

(1V, 200-201)

***
(The following is from Claimant's re-direct examination.)
Q Now, when you said, "I stopped doing that a long time ago," what did you meant to convey by that?

A What I meant by that was, every time that I would leave the flats to go to one of the upper galleries, I would go straight to Mr. -- Officer Cunningham. And he would tell me, "Listen, I don't care. As long as it's all right with the officers up there." So, I didn't have to ask him anymore.

(1V, 205)

***

(The following is an excerpt from Claimant's examination before trial read into the record, during re-direct.)
Q ...Question: What happened then?

Answer: I told the other inmate I'd be back in a minute. And I went to the back of seven. I looked over at eight gallery first, and I didn't see anyone. All the inmates had just totally disappeared.

(1V, 208)

***

Q ...And this guy was coming down towards me. He had something wrapped in a towel. So, I walked down in the back of seven, and I was at 22 cell. So, by the time I got to the end of the gallery, he was right up on me, but I was aware he was behind me.

And as I made the turn in the back of seven gallery, he hit me in the back with an ice pick made out of a plunger or something. You know, a stick about three feet long with a nail on the end of it. He hit me in the back with that.

(1V-210)

The foregoing are what the Court finds are the relevant excerpts from the Claimant's testimony at the trial.


The second day of trial of this Claim began with a return to the subject initially addressed on the first day of the trial, that is claimed harassment of the Claimant. What follows are verbatim excerpts from the transcript with regard thereto.
THE COURT: Go ahead.

MR. LEWIS: Your Honor, my application, which is based on my understanding of what you are going to do with respect to this application, which is to date nothing at all, is to give me 30 minutes to discuss with the superintendent, the threats that have been made on Mr. Ayers.

(2V, 3)

***

[A Corrections Officer] started this morning by telling Ayers that you ran G block, but you're not running nothing over here. And he said that he was going to get him. And he took him into the showers, and he was going to fight him in the showers, according to Mr. Ayers.

***

[A Corrections Officer] apparently somehow diffused that situation. But I can tell you that Mr. Ayers feels extremely threatened. I feel extremely concerned for him.

...And Ayers' feeling, with which I concur, is that he needs immediate assistance. And specifically -- and the Court's help, if the Court will render it.

***

There is no way that inmate, in a situation like that, obviously can protect himself. And I just think things are far too out of control here.

I think that what's required is for the Court to give me leave to go to the Superintendent's office immediately, and to report this in the detail that I have reported it to this Court.

***

There's not a great deal more I can do. If Your Honor is inclined, once again, not to be involved, then I ask you to give me an adjournment. Or really, simply a delay in the proceedings, to enable me to walk over to the Superintendent's office.

And I will make it crystal clear to him that insofar as he is the official who runs this institution, it will be on his head if anything occurs that is inappropriate with respect to Mr. Ayers.

***

MR. GIALANELLA: Judge, briefly, I guess my comments in relation to that would just mirror what I had said yesterday. Obviously, if that is true, as to what this one officer is telling the claimant, it's improper conduct.

And at this point in time, obviously, we're only hearing one side of the story.

***

But obviously, all the Superintendent's office could do would be to commence an investigation and go talk with this officer in relation to the allegation.

(2V, 3-7)

***

MR. LEWIS: I'm not interested, frankly, in having Mr. Gialanella intercede on my behalf with the Superintendent. I am very capable of speaking on behalf of my client with the Superintendent, and perhaps more so, given the fact that I am outside of this system, than Mr. Gialanella.

***

THE COURT: Okay. Well, you began these comments by saying that -- as I understand it, there was not much point in making them, because I would do nothing, as I did nothing yesterday.

And I explained that this Court can do nothing. Of course you're suggesting today is to do something different (sic), which is allow you to talk to the Superintendent.

I don't allow you to talk to the Superintendent. But I do delay the trial, so that you can go talk to the Superintendent. As I told you yesterday, I've never had this experience before.

***

THE COURT: I would estimate that I have entertained and had before me 500 prisoner claims. This is the first time this has happened.

Of the 500 prisoner claims, many are negligence claims, such as this one. But many are claims where the inmate will sue, alleging that he was assaulted by correction officers.

In my mind, that would produce the reaction that Mr. Ayers has said he's experienced, far more likely than suing the state because of negligence.

***

MR. LEWIS:...He is someone now who is beset, who is threatened, who is frightened, and who is at risk. I think this Court has an obligation to do something. And if this Court doesn't want to, then it should enable me to do it. Not keep me here so that we can finish this trial in some schedule.

THE COURT: Well, we'll stop the trial now, and you can go talk to the...Superintendent.

***

Mr. Gialanella, will you accompany Mr. Lewis? I don't even know where these offices are. But accompany Mr. Lewis...

MR. GIALANELLA: Sure.

***

MR. LEWIS: Yeah. Let the record reflect that Mr. Gialanella and I have been gone for about 35, 40 minutes. We went over to meet with the Superintendent, Floyd Bennett, and had about a 15 to 20 minute meeting with him, which Mr. Gialanella gave some background, and then I presented him with the situation that my client, Sterling Ayers had presented me with earlier today.

And while Superintendent Bennett indicated that his officers, of course, would never assault an inmate, he would see to it that Mr. Ayers was interviewed by a superior officer....

And that Mr. Ayers would be placed in protective custody, if he wanted to be. And I assured him that he did. That he had raised that explicitly with me.

***

THE COURT: All right. ...so as I understand it, then we will proceed with the trial, and the claimant will be placed in protective custody here, until he's transferred to Clinton.

MR. GIALANELLA: No, Judge....that's not entirely true. I think that the Superintendent said was that he would send down a supervisor.

...interview the Claimant...make a determination as to whether or not he should be placed in protective custody.

***

MR. LEWIS: Well, Judge, let me just respond to that briefly....We participated in the same conversation, and we come out with two quite different impressions.

And let me say, I'm not saying that his is necessarily wrong. I'm really struck by the fact that some of the things that he says seem to be consistent with mine.

But obviously, the bottom line is not. My understanding in terms of that "bottom line," was that at one point, Superintendent Bennett said -- and this is virtually a direct quote: "I'm not putting him in PC because I'm concerned. Or I won't put him in PC because I'm concerned that my officers will assault him."

And I said to him, "Superintendent Bennett, will you please put him in PC because I am concerned that that might happen."

And to that, he answered yes.

(2V, 10-21)

***

THE COURT: Well, I think I can see what happened there. And you should talk to Mr. Ayers about any prior experience he's had with this [Correction Officer]. I mean, he had nothing to do with this- - why we're here today.

...and ask him if he has any idea why this guy is willing to fight him....has he known him before?...But you should discuss that with Ayers, because it doesn't appear to be related to this law suit.

***

MR. LEWIS: I don't know how Your Honor can say that. There could be an infinite number of reasons that neither you nor I has any glint of -- any glimmer of an idea of.

THE COURT: Well, there are a million possibilities. And one of them is this law suit.

MR. LEWIS: Of course there is.

THE COURT: But it's not...one of the correction officers that were involved in this negligence claim.

MR. LEWIS: That doesn't matter. It could be someone who's acting on their behalf....

THE COURT: ...Well, then you agree with me. It makes sense to talk to Ayers to see if he knows anything about this guy.

You know, as I understand it, from what you say, this correction officer is trying to get Ayers to fight with him, physically fight with him, shortly before Ayers is going to come to the courtroom where we would all observe him and the results of the fight.

So, that suggests a level of rage with regard to that particular correction officer that's amazing, and beyond all bounds. And suggests that he's got some strong, strong feeling with regard to your client.

MR. LEWIS: He may have.

***

THE COURT:...Now, I want you to both go back and clear this up, right now....because you don't have a final answer to this. Go get one....

***

THE COURT: Mr. Lewis, what did we find out this time?

MR. LEWIS: Well, the clarification is that Superintendent Bennett is delegating the task of interviewing Mr. Ayers to a lieutenant. The lieutenant will make the determination after this discussion with Mr. Ayers, whether Mr. Ayers will be taken into protective custody.

Superintendent Bennett made the point that he is now in a keep lock situation, which I take it he meant to indicate confers a degree of protection upon him that he otherwise would not have.

(2V, 24-28)

***

The trial then continued.
What follows are excerpts of the testimony of Correction Officer (CO) Brown presented the second day of trial on the State's direct case.
Q Prior to December 29th of 1995, could you tell us about what job you did in G block?

A ...I worked in G block as a rec officer. That's about it. Like twice, I believe, before that.

Q ...What does rec officer mean?

A Take a gallery to rec.

***

Q Directing your attention to the afternoon of December 29th of 1995, beginning at 3:00 p.m., were you assigned to G block?

A Yes, I was.

***

Q Could you tell the Court briefly about when you're assigned to the G number two post, what your responsibilities were and what areas of the cell block you were -- that meant you were assigned to cover?

A Galleries five through eight. And job curtails working with the porters. And doing that crack house and let ins for chow and pro ramps (?).

Q When you say galleries five through eight, could you be more specific...

A That would be the third and fourth floor. Galleries five and six are on the third. Seven and eight are on the fourth.

***

Q Focusing your attention back to approximately 3:00 p.m., could you take the Court through -- let's 3:00 p.m. and 6:00 p.m., generally what your duties would be on that post?

A From 3:00 p.m., starting off, you'd let the inmates back in as they came back from their programs. Hand out the mail after everybody was in. Count -- and you do the crack out (?) for chow. You would do the let in from chow. Then, you would run the programs.

Then, after that, you would get the porters out to do their jobs.

Q Let's talk about that for a minute. Letting the porters out to do their jobs. Could you explain what you mean?

A Approximately there's one or two porters on every gallery. Let ‘em out to clean, sweep, mop the landings, the gallery, the trash.

***

Q In the process of letting the porters out for their duties, approximately what time would you do that?

A Approximately around 6:40, 6:45.

Q Is there any procedure you go through as far as the back gates in allowing the porters to do their duties?

A As far as the back gates, to my knowledge now, the back gates stay open for the porters to...get water from the back for mopping, cleaning.

***

Q That was my next question concerning inmates or inmate movement within the block in this time period be -- from 6:40. Could you tell us about that? What kind of inmate movement there would be, if any.

A You have call outs. Inmates would call out. They have different programs. You have to let them out. And you have inmates returning from program. You have to let them in.

Q When these inmates come back from programs, call outs, do they come back one at a time? Do they come back in groups?....

A Sometimes they'll be staggered. They come back in groups of maybe or six. And then, you might have five or six more.

Q ...There's been testimony by inmate Ayers that the front gates on galleries seven and eight were open at approximately 8:30, at the time of this assault.

Officer Brown, based on your experience in that cell block and your experience as a CO, could you tell us any reason or reasons why the front gates would be open at that time?

A They could have been open for the porters that were cleaning the landing. Sweeping and mopping. They could have been open for the go back. Inmates coming back from the programs. You had to run -- you had to go from floor to floor letting inmates back in their cells.

***

Q Directing your attention to approximately 8:30 p.m., could you tell us what you observed, or what your first observations were of the claimant, Sterling Ayers?

A I was in the office area, and out of the corner of my eye, I seen the claimant coming down the stairs with his hood tied up around his head, and blood dripping. Like I called him...to come over to me. And he proceeded to run down the stairs.

***

Q You said you were in the office. Where were you in the office?

A At the desk in the office.

Q Where? What floor? What tier?

A Five and six.

***

Q Prior to seeing Ayers run down the stairs, had you given him permission to go up on the seven and eight gallery?

A No, I didn't.

Q Mr. Ayers testified yesterday that before he went up on to seven and eight, when he was walking up the stairs, he had made eye contact with you. And that he pointed upstairs, and you nodded yes. Or you nodded in a manner which would indicate to him, yes. What is your recollection of that?

A I never remembered doing that. And no, I didn't give permission to go upstairs.

Q Hypothetically, if you had seen inmate Ayers going up the stairs on that particular day, at that time, what actions would you have taken?

A I would have ordered him to return down -- to go back downstairs.

Q Why is that?

A Out of place.

(2V, 35-43)

***

What follows are excerpts from C.O. Brown's cross-examination.
Q Okay. Now...but based on your experience, you testified that front gates could have been opened for porters to clean landings. Correct?

A Correct.

Q Or for go backs.

A Correct.

(2V, 45)

***

Q Okay. And your porters on seven and eight were still working, apparently?

A (No response heard.)

Q At 8:30 at night?

A I can't remember. I can't remember if they were working or not.

Q But the rear gates were open, weren't they? On seven or eight.

A The rear gates?

Q On seven and eight were open.

A Right.

Q Why were they open?

A The open up the gates for the water, so that porters can get water.

Q So the porters were still working on seven and eight.

A They had the -- right. If the gates were still open.

(2V, 52-53)

***

Q And although you were sitting in the office...with respect to the time you spent in five/six, looking out on the gallery, you never saw Sterling Ayers when he went up to the stairs to go into seven and eight galleries? Is that right?

A Correct. He had to sneak by me to get up there.

(2V, 55)

***

What follows are excerpts from the testimony of Sergeant Santiago presented the second day of trial on the State's direct case.

Q Focusing your attention on December 29th of 1995 for the afternoon shift, were you a housing sergeant in one of those capacities?

A Yes, I was.

***

Q When you say you had the south block, could you be more descriptive...

A Well, that covers basically the south side of the jail, which would be F block, G block, H block, PC, SHU...

***

Q And generally, how many porters are there per gallery in cell block G?

A Usually, there's one porter per gallery.

***

Q Were there any porter positions for the evening in G block entitled or described as lead porters for the block?

A No such thing.

***

Q Would that gallery one porter be responsible for investigating any emergencies up on seven or eight gallery, or to see if an inmate was sick or cut?

A (inaudible) No, sir.

Q ...why is that?

A Well, he's a porter. He's an inmate. You know, we have staff that deal with those kind of emergencies.

***

Q Did there come a time at approximately 8:30 p.m. on December 29th of 1995, that you found out about an inmate assault that took place in the block?

A Yeah. I was notified of an inmate being assaulted, and I proceeded to G block.

Q Tell us....What you saw, if anything.

A Well, when I arrived at G block, as I entered the block, I saw Abdul there with the nurse. Abdul was bleeding from the head...

Q When you say Abdul, who are you talking about?

A Mr. Ayers.

(2V, 64-68)

***

Q Were any porters up on the seven and gallery keep locked after this? Or immediately after?

A Yeah. I believe I locked down the porters that were assigned that were out at the time.

Q Back to this hospital conversation with Ayers, or whenever you did talk to him, what did you talk with him about?

A Again, I can't remember particulars. But the invest -- we would have talked about what happened to him and a host --

MR. LEWIS: (Interposing) Objection as to what he would have talked about.

THE COURT: Sustained.

Q Tell us what you asked him and what he told you.

A Again, I'm trying to recall. He mentioned that he had gone upstairs. That some inmates wanted to see him. They had called him upstairs. He went upstairs to see what they wanted. He walked down seven gallery. Didn't like the looks of it. Attempted to leave.

Another inmate that had passed him had turned around and came back. They proceeded to get into a fight. Other inmates came from around the corner and also jumped in the fight, and he managed to get away.

***

Q Well, what did he tell you?...

A Again...he went upstairs. They kept calling him. He went upstairs and...they thought he had snitched out a guy or told on a guy that had home made booze and had got written up for that. And he went upstairs, I guess, to straighten it out.

Q Did he say who he was fighting with?

A No, he said the porter. And...we locked up -- like I said, we locked down the porters that were there. And it says here that he was fighting with Vargas....

***

Q There is -- there's been testimony in this trial, sergeant, that the back gates were open on galleries seven and eight, and even five and six, for porter duties.

...based on your experience as a sergeant and your knowledge of that cell block, why are the back gates open for the porters?

A Well, they have what they call the slop sink back there....And that's where the inmates get buckets of water to pass out, to mop, to clean up.

***

Q ...and there's been testimony in this trial that at the time that he was assaulted, at approximately 8:30 p.m., that the front gates on galleries seven and eight were open....for what reasons would the front gates be open at that time?

A Well, again, based on what was going on back in ‘95, you'd have turn-ins. They got a lot of turn-ins coming and going. That is, inmates returning to the block from various parts of the facility that have to be locked in their cells.

So, you open the gate and you send them down. The officer in the front cracks the cells open, and the inmates go and lock in.

Q ...when this is happening, or if it's happening, why aren't the front gates locked, and why don't you let the inmates accumulate on the landing before they go in?

A Well, that's the problem. If you get 60 or 70 inmates returning at one time, that's a lot of inmates on the landing waiting for you to come down to go to the next landing or the next gallery over.

So, a lot of officers open the in gate and send them down the galleries to disburse the inmates, so you don't have a large crowd of them (inaudible) - - standing on the landing.

(2V, 69-75)

***

What follows are excerpts from Sgt. Santiago's cross-examination,
Q Okay. Now, in terms of your reference to Abdul as compared to Mr. Ayers, you knew Mr. Ayers.

A Yeah. He was one of the porters in G block.

Q And you had known him for a considerable period of time.

A Yeah. He had been in G block for quite a while.

Q And he had been a porter there for a long time.

A Yeah.

Q And he was considered a reliable, good worker, wasn't he?

A Yeah, he did his job.

Q And did you know, Sergeant Santiago, that he also sometimes helped with the feed up and performed the acting clerk function? Things of that nature?

A Yeah. Most porters will do as they're directed...

Q Now, did you notice in the course of, for instance, his feed up responsibility, Mr. Ayers will often go to galleries other than his own to perform those chores?

A Again, he may take trays up to the gallery. Porters will be on the gallery to actually pass them out.

(2V, 89-90)

***

What follows are excerpts from the testimony of CO Cunningham presented on the

second day of trial on the State's direct case.
Q When you say first officer in G block, what areas were you assigned to cover, and what areas would that cover?

A Basically, the responsibility of the entire block falls on the officer in charge of the area. I have two officers assigned to the area, to cover the upper galleries.

***

Q Approximately what time would you go out on duty?

A 2:55 p.m.

Q ...were you familiar with the claimant in this case, Starling Ayers?

A Yes, sir.

Q ...generally how you were familiar with him, how you knew him?

A He was a resident in G block, and he was a volunteer feed up porter in the evening shift.

***

Q What areas of the cell block was he assigned to?

A His initial assignment would be to do whatever was directed by the staff.

Q What area, though?...

A ...The main area of concern would be one and two galleries.

Q When you say one and two on that particular day, why is that? Where did he lock in?

A He locked in one gallery, 25 cell.

***

Q What's your understanding as to whether or not someone was a lead porter, or was he a lead porter?

A Well, that term does not exist in our block. The term lead porter was probably assumed by the complaintant as opposed to the seniority route on the status of volunteer basis.

***

Q Could you tell us...during the evening, what his duties were?

A Well, depending on what time we're speculating here to, his evening duties would consist of doing, of course, the feed up for the galleries. And once they were completed, he'd be returned to his cell for the master count.

And for the evening program, he would be locked out of his cell approximately 6:30 to 6:45 for lock out and general maintenance of the galleries, as far as cleaning and whatever else might be needed. Disbursement of water.

Q As the night porter or the evening porter for one gallery, would he have any reason to go up on the upper floors or galleries?

A No, sir.

Q What if he believed someone was sick or cut or needed immediate attention?

A He would have directed that to staff.

Q On December 29th of 1995, did you have any agreement or understanding with Ayers that he could go off gallery one onto the upper floors without asking you, because he could just ask the officers' permission who would be on the upper floors?

A On that particular day, there was no conversation as to any reasoning for him to go upstairs. In the past, if any of the residents of the block, porters or any other residents, wanted to obtain entry to any gallery or any other inmate's area, they would be advised to ask the permission of the security on the floor.

Q What about on this particular day?

A He never approached me, and no permission was gained by me.

Q Did you have an agreement with him that he could walk by you and just go on to the upper galleries?

A No, sir. I make no agreements with inmates in that fashion.

Q There was testimony by Ayes that at the time of his assault, or approximate time of assault, 8:30 p.m. or thereabouts, that he had walked through gallery one door, which he said was open. Was it open at that time?

A Yes, sir.

Q Why is the gallery one door kept open?

A I leave my one gallery gate open because it's approximately eight or nine feet proximity from my office. And I probably put one to 200 inmates through there at any given two hour period. Medical reasons and such and on (sic).

Q Prior to the Ayers assault, did you make eye contact with him, or see him walk off the gallery?

A The time directly before the assault?

Q Correct.

A No, sir. I didn't observe him.

***

Q Approximately what time would they be let out to start their porter duties or chores?

A Well, every other night would be different, as far as the time they would be released from their cell. On the nights that we do not have evening recreation, the porters are let out of their cell once a program lock out is complete, which is anywhere between 6:35 and 6:45 p.m.

On the nights that we have the evening recreation, the porters are locked out between the hours of 7:20 and 7:30 p.m. in the evening.

Q So, assuming this was a night where there was not rec...

***

A There was no evening rec that evening.

Q ...when the porters are let out, as far as opening up the back gates, could you tell us what you did insofar as that's concerned?

A Well, once we clear our evening program, turn out our call outs, as we call them, my third officer goes to the back of the block and opens up the back end gates to every gallery, and re-secures the stairwell upon his leaving the block, going to his next duty assignment.

Q And Ayers had testified yesterday that he believed that the back gates were always re-locked by 8:00. Do you recall that testimony?

A Yes, I do.

Q ...or during the night where there would not be rec, or on this particular night, which I believe was a Friday night, what was the practice as far as when the back gates would be closed, or the porters would be done with their duties?

A The back gates on the galleries are secured at 8:45 every evening.

(2V, 116-123)

***

Q Directing your attention now to approximately 8:30 p.m., how did you become aware that inmate Ayers was assaulted?

A I had footsteps and key noise on my stairwell. And I observed inmate Ayers coming down the stairs...

***

Q ...how was he dressed?

A He was dressed heavily in garments.

Q When you say heavily, could be more specific?

A He had on a field jacket, a hooded sweatshirt up over his head, with a towel around his neck, and a knit cap on.

***

Q In the ten or 15 minutes before the assault, you don't remember him coming by your desk?

A No, sir.

(2V, 125-127)

***

Q Okay. So the answer is, that he was able to move about on the bottom floor, with permission. Am I correct?

A He did not need permission to move around on the bottom floor. That was his work area.

Q Okay. So, he could move about at will on the bottom floor.

A Yes, sir.

Q Now, are you aware that he oftentimes had duties and tasks which took him to other floors?

A If so directed, yes.

Q Okay. Might be directed by you. Might be directed by another officer.

A On different occasions, it may.

Q And it might also go into the basement. Correct?

A Yes, sir.

***

Q Well, if you say he would have been sent by permission, I understand you to be saying that you allowed him to go upstairs.

A I allowed him to go to the next officer.

Q And he went up to the next officer, according to you, as I understand it, unescorted. Correct?

A Yes, sir.

Q ...And he also went into the basement, on occasion, unescorted. Didn't he?

A Yes, sir.

(2V, 133-134)

***

Q Okay. Now, when you testified back in May of 1998, you talked about block policy. And specifically, this block policy was to open both gates before starting on a round. Do you recall that testimony?

A I believe I mentioned it, yes.

Q And when you mentioned block policy, where is the block policy that a CO opens both gates before starting on a round? Where is that policy set forth?

A I don't believe it's set forth anywhere. It was a common sense decision on the staff.

Q So you're saying really that it was block practice.

A I would say then it would be termed as a practice, yes.

(2V-144)

There are a number of documents introduced into evidence by Claimant which were generated at the E.C.F. and which set forth certain procedures which, Claimant contends, were violated by the Correction Officers on December 29, 1995, thereby violating a duty to him. Three of the exhibits are entitled "INDIVIDUAL SECURITY POST DESCRIPTION", the earliest dated December 1, 1995 (Cl. Ex. 5), the second dated February 14, 1996 (Cl. Ex. 6), and the third dated April 1, 1991 with a "REVIEW DATE" of July 30, 1996 (Cl. Ex. 7). All three make reference to G Block, Claimant's Exhibit 5 with regard to "#1" followed by "OFFICER IN CHARGE", Claimant's Exhibit 6 with regard to "G BLOCK #2" and Claimant's Exhibit 7 with regard to "G BLOCK #3". Clearly, the references to "#1", "#2" and "#3" are to Officers 1, 2 and 3. While the provisions of these three exhibits are quite similar, (there are some differences that are not relevant to this Claim), all provide in exactly the same language:
Make frequent, irregular Rounds maintaining security of Entrance Gates and to insure that Gallery Doors are also closed and locked. Routinely inspect the Block, checking on all Inmates remaining in the Block, and to insure only authorized Personnel, Inmates and Articles are in the Block.

***

Must remain alert and monitor Inmates' Behavior to prevent escapes and to prevent or stop assaults on Staff, Officials, Inmates...You will not leave Assigned Post or Area without proper relief or authorization from a Supervisor (except as normally scheduled).

Claimant's Exhibit 21, dated January 27, 1997, after the date of the assault upon Claimant, is entitled "HOUSING UNIT PROCEDURES - GENERAL POPULATION INMATES (B)". It contains the following provisions:
V. POLICY

It is the policy at Elmira Correctional Facility for housing officers to monitor inmate movement from housing locations to appropriate assigned areas and to physically observe and control inmates who are maintained in the housing units.

VI. PROCEDURES

A
. Housing Units

***

2.
Housing Unit Officers are assigned to posts which are either on or immediately adjacent to the housing units. They are not to leave these posts unless so instructed by facility procedure or with the specific permission of their supervisors.

***

4.
Housing Unit Officers are to patrol their areas of responsibility in a manner that maximizes their ability to see, hear and respond to emergencies or situations....

Claimant's Exhibit 14 is a copy of a DOCS "EMPLOYEE MANUAL" which was "Revised 12/97 "which is after the subject assault. Under "
GENERAL RULES FOR FACILITY EMPLOYEES" the following appear:
6.17 An employee shall report to his assigned post in a timely manner and shall not leave his assigned post or duties unless properly relieved or unless authorization to leave the post is received from the employee's supervisor.

6.18 Each employee properly relieved by another employee shall deliver to the relieving employee all equipment and information required by the relieving employee for the performance of his duties. He shall provide the relieving employee a summary of any special orders he may have received or conditions requiring note. He shall turn in to the responsible employee all keys and property of the State. If the employee is not relieved, all keys, weapons, and other property of the State shall be turned over to the arsenal or other designated place. An employee shall not carry out of the facility any keys, records, orders, documents, or any other article not belonging to him unless permitted by the superintendent nor knowingly allow any other person to carry out such article for him.

Robert J. DeRosa, who characterized himself as a "correction expert" at the trial testified that he had served as a Correction Officer for 10 years and ultimately attained the position of warden in the New York City Department of Corrections.

DeRosa, called as an expert witness of the Claimant, was asked a number of lengthy hypothetical questions to which he supplied answers in the form of opinions based in great part on the foregoing documents. What follows are what the Court finds to be pertinent excerpts from his testimony.
Q ... Now, I'd like to ask you a series of hypothetical questions, and I want you to assume certain facts with respect to these...

***

Claimant, Sterling Ayers, was employed by NYSE DOCS as a porter, feed up worker and acting clerk....

(1V, 223)

***

On account of his duties, claimant's cell was unlocked from 6:00 in the morning until 10:00 at night. During those 16 hours, claimant was often ordered by G block COs to go, unescorted by COs to the basement or any floor in G block.

***

In addition, inmates on other floors frequently ask claimant to deliver needed items, such a soap or toilet paper. And these were requests that the G block COs knew about, and expect claimant to comply with.

My hypothetical question in view of these facts I'm asking you to assume, are: Was the practice of allowing claimant access to the floors in the cell block, contrary to the reasonable application of generally accepted principles of penology?

A. Yes, it was - - those actions were contrary to basic principles of penology.

Q ...give the Court the basis for your conclusion or (inaudible)?

A ...I drew that conclusion based on a review, first of Elmira's policy and procedure relative to inmate movement, which is policy procedure 018.

***

The way I would interpret that is that once an inmate is dispatched to another area, that there is a communication...that upon his dispatch, someone knows he's on his way to that location. And then upon his arrival, there's a verification that he did arrive.

***

Q ...Now, I'm going to ask you to assume now some further facts. At 8:30 in the evening, on Friday, December 29, 1995, Claimant was in his cell on the first floor.

G block practice permitted claimant, if he needed to go to another floor to carry out an officer's order, or to respond to an inmate's need. He could leave his own floor without speaking to the CO assigned to the first floor, and go to that other floor, where he would tell the assigned CO on that floor why he was there.

In other words, that he was carrying out an order or a task. The question is, was the practice of allowing claimant to leave his own floor unsupervised and unescorted, contrary to reasonable application of generally accepted principles of penology?

A Again, I found that the - - that this practice was contrary to, again, the principles - - the basic principles of penology and Elmira's own facility operating procedures - - policies.

Q ...would you please give us the basis for your opinion....

A. ...in this case, the prisoner was allowed out of the span of control of an officer....

...This, again, contradicts Elmira's own policies on controlling and supervising movement of prisoners. He was allowed to leave, based on what I've read.

When we get to the basic principles of penology, again, we can go back to what I said originally. That we have to verify the movement from the time he leaves until the time he arrives.

Q ...Now, let me ask you these further facts. On that evening, December 29, 1995, the front gate to claimant's own gallery was open, and that allowed him access to the stairs and the upper floors.

***

And he walked up the cell block to the upper floors. Now, the G block third officer, who was assigned to the second floor of the block, was not at his assigned post, having gone to another cell block to relieve himself.

Based on the foregoing facts and the exhibits that you have in front of you, do you have an opinion regarding whether the third officer's leaving his assigned post, without securing a relief officer, was contrary to generally acceptable principles of penology?

A Again, these practices were contrary to Elmira's own policies and procedures...which are consistent with the basic principles of penology....

***

Q So, for whatever period of time Officer Cardi was off his post, it was in essence, an unsupervised absence. Correct?

A According to the documents I looked at, yes.

(1V, 223-230)

***

Q Now, in terms of the question of a correction officer's absence from his post, does Roman VI, two and four address itself to that issue Mr. DeRosa?

A Number two does, and specifically - - and I'd like to read it.

Q Please.

A Paragraph two, about the third line down, reads that they are not to leave their post - - these posts, unless so instructed by facility procedure or with the specific permission of their supervisors.

...I have to say that the policies are adequate in every way, prescribing how the housing units should be run.

Specifically, here on leaving a post, it becomes abandonment of a post. There's no other way to look at it. I've never seen it any other way. Either you're on post or we know you're not there.

***

Q Does arabic four address itself also to that?...

A ...Well again, along the same lines, arabic four - - we're talking about the ability, when you're on patrol, to maximize your ability to see, hear and respond to emergencies and situations.

So therefore, if you're not on post, you cannot comply with that requirement.

Q ...On that date, the second officer was assigned to the third and fourth floors. Mr. Ayers, after passing the third floor, reached the fourth floor and found that its front gates...

***

Those front gates were open. Claimant saw at least five inmates standing in one location on eight gallery. And he could also see that the rear gate on seven gallery...was open.

Believing that the assigned CO was at the rear of that gallery, claimant started walking down seven gallery. Based on these facts and the exhibits that you have in front of you, do you have an opinion regarding whether the second officers' leaving front and rear gates open on the fourth floor, for up to 30 minutes, was contrary to general accepted principles of penology?

A Again, I find that the - - that practice is inconsistent or contrary to Elmira's own policies and procedures relative to gate control, and to, of course, principles of penology...

When a gate is open...let me refer to you the Housing Unit and Procedures again, regarding locked boxes. It says that cages - - cage areas and galleries, gates and telephone boxes are locked at all times when not in use, or under supervision of an officer.

And supervision of an officer requires that the officer is standing there with a key to either open it to allow someone to pass through it (sic). You cannot supervise it if you're not there.

***

Q Now, there's been testimony...that the proper way to perform a round on your assigned floor, was to open both gates - - both front gates, from the lock box. And then, to do that round.

...Do you have a view as to whether or not opening up the two front gates is contrary to the accepted and reasonable practices in modern penology?

A All right. Well, the policy is very clear....My own opinion now on this practice? In referring to the officers' EBTs, they made statements as to - - that this was basically an extra method of egress in case of emergency. That was their reason for leaving it open.

They say that the gates - - it's convenient...There's no way you can justify those gates being open.

If you need to go down one side, you open it....

There's no way they can possibly lock it behind them, because of the – the design I understand it to be. So therefore, going down one side with the gate open, they have no option, because of the design and the staffing levels.

However, to open both sides and to leave them open, the way it's - - the way I understand it, is there's just no reason for it. It's unacceptable, and it's contrary to Elmira's own written policy, again.

Q ...There has been testimony that porters commenced their work in the vicinity of 6:00. And their work consisted of using buckets and mops to sweep and clean the galleries.

And there's been testimony that the practice was to open the gates at the beginning of the porters' work schedule, and to keep them open throughout the work schedule.

And this is referenced to the two rear gates. Is the practice of opening those gates and leaving them open for a two hour period - - is that contrary to the reasonable application of generally accepted principles of penology?

A ...From personal experience of supervising inmates or prisoners who have to do that kind of work, the policy is that you allow them to get their tools. Their mops, their brooms, their shovels and their bucket of water.

***

...There's no reason to leave gates open, once you've got the equipment.

***

Q ...what happens when the inmate is, let's say, halfway through his work, but the water in his - - in that large bucket that they bring down has just become filthy, and they can't possibly clean at that point. What happens then?

A Prisoners have no problem waiting for me to come back, or the officer to come back and allow him to get clean water. It doesn't take a few minutes. So, that's not an issue.

Or, give him two buckets, if the first - - if that's the issue, then give him two buckets when you open up, and let him out.

(1V, 235-243)

***

Q ...let me just refer you to the employee's manual...

***

Q ...And what does 6.17 tell an employee?

A An employee shall report to his assigned post in a timely manner, and shall not leave his assigned post or duties unless properly relieve, or unless authorization to leave the post is received from the employee's supervisor.

Q Now, how do you understand the phrase "employee's supervisor?"

A Okay. Officers don't supervise officers. They may help them and direct them, but they don't supervise them. The first supervisory rank in the state system is sergeant. And to me, that's all it could possibly mean.

Q So, in the situation where - - by his own testimony, an officer has left his post to relieve himself in an adjacent cell block, and there is no indication in the log book that there was authorization, what do you conclude from that?

A It was without authorization.

(1V, 247-248)

***

What follows are excerpts from DeRosa's cross-examination.
Q You testified that corrections officer Cardi was off his post without authorization?

A Yes.

Q And the reason why you're saying that, are you saying that on that basis because there's nothing in the log book to say that he has permission to go to the bathroom?

A That's one of the reasons, but not the only reason.

***

Q ...so it's your testimony then, according to correct penological standards, that anytime an officer has to go to the bathroom, a sergeant should be called?

A Anytime the officer has to leave his post, his area of responsibility, he must get authorization. It's not my - - that's the policy procedure of Elmira, that he have permission to leave the post.

Q Again, the question I had though, is at any time a corrections officer needs to go to the bathroom, it was your testimony that a supervisor or a sergeant should be called. Correct?

A That's correct.

***

Q Are you aware that officer, Cardi, who was assigned to the three and four gallery is not even assigned to that gallery for the whole eight hours?

A No, I was not aware of that. No.

Q That he goes to other parts of the prison, and has other duties in other parts?

A No. Well, I would assume that, but I didn't know that for a fact.

***

Q Are you aware of the size of this cell block in the gallery?

A Yes. We estimated it - - the footage. It was, I think 300 - - did we say 300 lunear feet?

Q So it's your testimony that anytime a porter is doing his work, the CO should take that porter individually down to the slop sink in the rear of it - - rear of the gallery, unlock the gate. Correct?

A Yes.

***

Q So he would stand there when he is filling it, relock the gate or lock the gate, let him do his work. Then, go to another gallery and go through the same thing. Correct?

A Yes.

Q And you're aware that on this particular shift, and I believe for all shifts, that there is one corrections officer that covers two floors? Are you aware of that?

A ...Yes....

Q And so you - - under your theory or your proposal, that corrections officer would actually - - after an inmate dirties his water for one bucket, then you believe it would be proper procedure for that inmate, porter, whoever it is, then to somehow notify that corrections officer that they need a new bucket of water.

And then, the corrections officer would actually have to go on to that particular gallery again, walk that inmate back down to the - - back down to the slop sink, unlock the rear gate, watch him empty it, fill up the water, relock the gate, and then come back onto the gallery.

A That is what is prescribed by their own policies and procedures. The Elmira's policies and procedures.

(1V, 251-255)[2]


What follows are excerpts from Cunningham's testimony wherein he was asked about the

testimony of DeRosa.
Q Sergeant, yesterday, there was testimony offered that the Elmira Correctional facility's policy and procedures are violated if one of the G block officers goes to the bathroom without first getting permission from a supervisor, like a sergeant, and then recording that in the block log book.

Do you have an opinion on that?

A Yes. That's not done. It's not procedure....and in the G block in particular, the officers' bathroom is just outside the block.

***

Q There was also a testimony that when porters are out during the evening hours, from a security standpoint, the back gates should be left locked, and the porters should not have free access to the slop sinks every time they need more water.

And that they should ask the corrections officers assigned to that area whenever they need more water, instead of leaving the gates open. From your experiences and knowledge in working in that block, why isn't a policy like that implemented?

A Well, it wouldn't be practical. The officers in the block have other duties besides running the porters to get hot water. They have turn ins, turn outs. They have rounds to make.

They have -- depending on what may be going on, they may have to go frisk the cell. There's just different things going on. You try to have one officer for four porters upstairs running back and forth, just to get a bucket of water, he wouldn't have time to do anything else.

(2V, 75-78)

***

Q What's your understanding as far as the procedures and the policies if officers number two and three want to go to the bathroom?

A Well, generally -- most generally, they tell the officer in charge, he or she, that they're stepping across the hall to use the bathroom...

Q On this particular evening -- I know it's almost four years ago, do you recall whether or not Officer Cardi asked you?

A No, I do not.

(2V, 127-128)

Lawrence Toole, an inmate called to testify on behalf of the Claimant, was the first witness to testify at the trial of this Claim. The Court has placed excerpts of his testimony at this point because he addressed a subject that Claimant did not, that is, why Claimant was assaulted.
Q ...And how long have you known the claimant in this case, Sterling Ayers?

A Since 1994

Q Okay. How did you come to know him in 1994?

A ...He was a porter at the time. He would bring my meals to my cell, and that' how we got to know one another.

Q Okay. And did you - - sir, did you subsequent become a porter in G block yourself?

A Yes....

***

Q ...Now, you indicated that you locked in on two gallery?

A Yes....

***

Q ...Now, when you were a porter there, can you tell the Court that your duties consisted of?...

A My duties consisted of sweeping, mopping. I handed out the food. Gave out the supplies on the weekend.

Q And when you say you handed out the food, is that the same as a feed up man?

A Yes, it's the same. It's the same thing. You're still a porter...

***

Q There were some people who ate in their cells in G block?

A Well, there was guys that were keep lock on different galleries. And we would have to feed them...

***

Q ...And what floors did you give out the trays on?

A Whoever guys were keep lock got ‘em.

Q Does that mean that you gave out trays on the upper floors?

A Oh, of course.

***

Q ...When did your work day begin in G block?

A I get up at 5:30 in the morning and I give out hot water. And I be out from then until it's lock in time at night.

Q ...And that would be about 10:00?

A Yeah. Whenever is lock in time.

***

Q ...as a G block porter, did you have any special liberties or privileges or benefits?

A Besides eating and besides being able to eat, you know, you get extra trays, and stuff like that. You be able to move around more than anybody else. It's a privileged job, because you're allowed to move around the block as opposed to other guys that's locked in.

They're not allowed to move around like you do. So, everybody wants that position that you have. So, it automatically brings problems to you. You know what I'm saying? Because once you're allowed to go from downstairs to upstairs, and then go downstairs in the basement, you automatically get the name of being a snitch, because guys see you as being all right with the police

You understand what I'm saying?...

***

Q And did Mr. Ayers enjoy the similar kinds of privileges and liberties and you've just been discussing?

A ...Mr. Ayers...he had more seniority than anybody, because he had been there longer than anybody. So, likewise, if he wanted to do something or so have you, he would have the privilege to do it without asking, as opposed to I would give the respect and ask. He wouldn't, because he's been there. And that's the way it usually is in a prison. You know?

Q ...Now...was part of your work routine that evening mopping of the gallery?...

***

Q ...Was the slop sink area normally kept locked?

A No.

Q Well, during the day was it normally kept locked?

A Not that I can recall, sir.

Q ...When you went back to get the water to do your mopping up, obviously a CO - - if it was locked, a CO would have had to have opened it. Right?

A Yes, sir.

Q Now, during the time that you were working on the floor doing the mopping, was the slop sink area locked or was it open?

A No, it was open.

Q It was open during that time?

A Yes, sir.

Q When you finished your work was it locked at that time?

A No. It was open.

Q It was just kept open generally?

A Yes, sir.

(1V, 44-51)

***

As has been seen (
see supra, p 15) Claimant was not asked to go through "all of the details of the subsequent fight" during the course of his testimony. Indeed, he was asked nothing about a fight at the trial. As noted (supra, p 32) Sgt. Santiago, in the course of his investigation of the incident talked to Claimant at a hospital and he described his recollection of the gist of that conversation. Sgt. Santiago prepared a "Memorandum" on December 29, 1995, the date of the incident, which was directed to a Lieutenant. It is in evidence, without objection, as State's Exhibit C. It reads, verbatim and in pertinent part:
At approx. 8:35 p.m. I was notified that inmate Ayers had been cut. When I arrived in G-block, R.N. DeBruin was already in the block treating Ayers. R.N. DeBruin ordered Ayers to be placed on a stretcher to be taken to the facility hospital.

***

I spoke with Officer Cunningham to find out what had happened. Officer Cunningham stated that he heard someone running down the stairs. When he looked to see who was running, he saw Ayers and noticed that Ayers was bleeding....

***

I also spoke with Officer Brown who stated that he was on 5 & 6 gallery landing when he saw Ayers coming down the stairs....

...I went to the hospital and spoke with Ayers. He stated that he was having a one on one fight with the 8 gallery porter (Vargas #89A2972) when the other porters jumped into the fight. Ayers stated that the other porters believed that he told on an inmate that was found with home made booze in his cell.

Ayers received 3 slash cut and 4 stab wounds to his person....


Claimant did not take the stand on rebuttal. In other words, he did not take the stand to counter in any way the contents of State's Exhibit C.


State's Exhibit B in evidence without objection, is a statement signed by CO Brown dated December 29, 1995. It reads, verbatim and in pertinent part: "While working G-Blk as the 2
nd officer I was on 5-6 gallery in the office, the porters from 5-6 were cleaning the landing. When I saw Inmate Ayer's, Sterling 91-B-2552 run down the stirs from 7-8 gallery with his hood up on his sweat hood...."

The following are pertinent verbatim excerpts from the G Block Log[3]
for December 29, 1995. (Cl. Ex. 16)
255 Tour III 12-29-95 Officers Cunningham, C Brown & Cardi on duty -

X verbal count 316

305 Mosque go back - cleared & secured @ 324 pm

315 Program turn in

315 D Martin, LT.RD

400 Rounds made - mail passed out.

431 F.H. rec go back

448 Chow called 146 inmates respond

519 Chow returns

540 Count taken total 316 In 252 Out 64

X 59 food service, 2 state shop, 1 commissary, 1 hospital, 1 MHU.

556 ...

626 messhall workers go back

637 facility count is correct - VIA ECF base

638 Callouts locked out

6 9 Rds Sgt. Santiago

***

Tour III 12-29-95 Continued

700 Rounds made

755 Late kitchen workers go back

800 Rounds made

820 Arrival phone calls completed - 7-1B, 5-1T, & 2-1T made contact. 4-1B & 3-1T Disciplinary hold

*830 G-1-25 was assaulted & slashed - rushed to facility hospital w/RN Debruin & strecher (Ayers X 91B2552)

900 Rounds made

925 Callouts return

1000 Rounds made

1030 Count taken Total 316 In 314 Out 2 1 hospital 1 cage gate 1-25 cell
***


The handwritten time when Sgt. Santiago apparently made rounds is not completely legible, but since it was between 6:38 p.m. and 6:50 p.m., one can safely assume that it occurred at or between these times.


The filed Claim (see supra, pp 1-2) was not signed by the Claimant, nor was it verified by the Claimant or anyone else. Attached thereto is an attorney's verification which recites in part:
The undersigned an attorney admitted to practice in the courts of this state affirms:

-x[sic] that affiant is of counsel to John D.B. Lewis, the attorney of record for the claimant in the within action;

***

affiant has read the foregoing notice of claim and knows the contents thereof; the same is true to affiant's own knowledge, except as to matters therein stated to be alleged on information and belief, and that those matters affiant believes to be true...

The grounds of affiant's belief as to matters not stated upon affiant's knowledge are as follows:

the attorney's file

records of defendant

communications with the aforesaid party


As can be seen (
see supra, pp 2-3), the Claim alleges "on information and belief" that Claimant's assailants were other inmates using sharp instruments, which were contraband, and that the assailants should have been frisked or searched. Why the allegation that the assailants were other inmates was made upon information and belief is unknown. In any event, Claimant did not pursue the theory of recovery that inmates were not frisked or passed through a metal detector and that the State violated a duty to the Claimant because he was assaulted with sharp instruments. Nor did Claimant take the position at trial that he was "compelled" to work at the E.C.F. (see, Claim ¶ 7)

There are very few factual issues that must be resolved with regard to this Claim - - and those that must be resolved are easily resolved.


After carefully reviewing the proof the Court finds as follows:


Claimant, a long time resident of the ECF, far from being compelled to work as a porter, actively sought out a porter's job, and upon the recommendation of a Correction Officer, attained that status. Claimant performed well as a porter over the years and gradually earned the trust of the Correction Officers under whose supervision he worked.[4]
That Claimant had earned a position of trust with the Correction Officers is further demonstrated by the fact that they called him by nicknames, i.e., Abdul or Abdullah. Because he was trusted, Claimant was authorized to go to the basement, unescorted, to obtain supplies and was also authorized to go to all four floors of G Block, unescorted, to perform various tasks, including checking on the needs of inmates housed in G Block. In connection with his movement from the flats, where he was housed, to the upper three floors, the Court finds that he had achieved a position of sufficient trust so that he did not have to invariably get the permission of the Correction Officer stationed on the flats, but would have to seek out a Correction Officer on the floor(s) above in connection with the purpose of his visit.

The Court further finds that on December 29, 1995, prior to his journey to the fourth floor, Claimant was not called for over an hour by an inmate on the fourth floor to come to the fourth floor. As Claimant points out, there were hundreds of inmates in G Block at the time. No doubt the din of their activities and the movement of inmates to and from programs, the kitchen and other areas would have effectively prevented that form of communication. Notably, there is no evidence of this incessant calling for over an hour anywhere but Claimant's say so. The Court finds that the Claimant was not ill or under the weather during the evening of December 29, 1995. Nowhere did he testify that he did not perform his normal activities during that day, such as mopping the flats, and nowhere is there any indication that he asked to be relieved from work because he felt ill. Nor is there any indication that he sought medical attention because of his belief that he had "a little touch of the flu". (
see supra, p 12) Rather, he went to the fourth floor of G Block, layered in clothing, to settle a score with an inmate named Vargas who, possibly among others, had accused him of being a snitch. Whether Vargas was the "Spanish" inmate that Claimant implicated in the back stab is unclear, but that Vargas had a phalanx of other porters on his side, all of whom attacked Claimant, there can be little doubt. Claimant understandably did have "bad vibes" while he was on the fourth floor of G Block, immediately prior to the assault, because it no doubt dawned on him that he was not going to have a simple one on one fight with Vargas. He did not. He was attacked by a number of porters, (one of whom, it is safe to infer, was Vargas) who inflicted three slash cuts and four stab wounds to Claimant's body. The Court finds that when Claimant descended the stairwells in G Block, passing Brown and Cunningham, he did not tell them what had happened, nor did he ask for medical aid at that point, because he did not want them to know what had transpired. Ultimately, in his cell, when he realized the seriousness of his injuries, he came out and cooperated.

The Court further finds that, immediately prior to and at the time of the assault on the Claimant, there were no inmates out of their cells on G Block, other than porters, and that there were some inmates who housed in G Block who were elsewhere in the institution at that time. Claimant did not testify otherwise, nor is there anything in the documents before the Court that suggest that that was not the case. On the contrary, the G Block log (Cl. Ex. 16) clearly indicates that "call outs" returned to G Block at 9:25 p.m., after the incident, so clearly there were some inmates, non-porters, who were not in their cells but also not in G Block. Further, the Court finds that Claimant did tell Sgt. Santiago that he was assaulted by porters and that Sgt. Santiago "locked down the porters that were assigned that were out at the time". (supra, p 32) As noted, (supra, p 50) C.O. Brown recorded, shortly after the incident, that Claimant ran down the stairs at a time when "porters from 5-6 were cleaning the landing". Since C.O. Brown would have to be prescient to anticipate that Claimant would sue the State for injuries sustained in the assault by arguing that all porter work should have been done by the time of the assault, one can safely conclude that porters were properly out of their cells cleaning the landing immediately after the assault occurred.


There is absolutely no evidence that the assault upon Claimant was anticipated by any E.C.F. employee, or Claimant. Claimant planned a one on one fight with Vargas, but nothing else. In this connection, Toole's testimony is thought provoking. Toole's suggestion, that there is an inverse ratio between the level of trust a Porter engenders in Correction Officers and fellow inmates - that is, the higher the level of trust among Correction Officers, the lower the level of trust among the inmates - almost certainly is true to some degree. Nonetheless, if we believe Claimant in this regard, he had completely surmounted the problem. The Correction Officers trusted him beyond all others and the inmates trusted him to such a degree that he was called upon by them "at least a hundred times a day". (see supra, p 11) In any event, whatever the level of trust on both sides, the record in this Claim is completely devoid of any suggestion that the Correction Officers had any reason to believe that Claimant might be the victim of an assault, let alone that he would intentionally rendezvous in the cell block for a one on one fight.


Stripped to its essence, the gravamen of this Claim is that Claimant, through years of service as a porter, well performed, earned the trust of Correction Officers who, in turn, gave Claimant some freedom of movement within Cell Block G; that Claimant betrayed that trust by arranging a clandestine fight with another inmate in the cell block; that the fight unexpectedly involved a number of opponents, not one; and that, therefore, the State should respond in damages. The duties the State owed to the Claimant, which the State allegedly violated and which were allegedly the proximate cause of Claimant's injuries were (1) failure to lock gates which, had they been locked, would have prevented Claimant from arriving at the scene of an altercation, previously arranged by him and (2) that a Correction Officer left the cell block to go to the bathroom which, in Claimant's expert's view, "becomes abandonment of a post". (supra, p 42)


With regard to the gates, a literal reading of the language found in Claimant's Exhibits 5-7 (see supra, p 38) would mean that the gates and gallery doors would always be closed and locked except when a Correction Officer was performing rounds (a circumstance that would accommodate Claimant's expert's absurd two bucket suggestion). Since that does not make sense, the rules and regulations must mean that the gates should be closed and locked when not being used for passage. Obviously, one would expect the gates to be open when inmate porters are cleaning the stairs. Otherwise, the inmate porters would be locked out of the cell block on the stairwell. One notes again that the only inmates that appear to have been in the cell block, but not in their cells at the time of the assault, were porters, all of whom, one can infer, had gained some level of trust. This, when added to the fact that at 7:55 p.m., kitchen workers moved through the cell block and that at 9:20 p.m. inmates returned to the cell block, in between which a Correction Officer made rounds (Cl. Ex. 16, see supra, p 52)), clearly demonstrates that the gate policy found in Exhibits 5, 6 and 7 was, of necessity, subject to some flexibility.


With regard to the call of nature argument and Claimant's expert view that when a Correction Officer goes to the bathroom he abandons his post, one must look more carefully at the regulations. Claimant's Exhibit 14 recites that an "employee...shall not leave his assigned post or duties unless properly relieved or unless authorization to leave the post is received from the employee's supervisor". (
see supra, p 39) In Claimant's expert's view, "officers don't supervise officers". It will be recalled that Claimant's Exhibits 5, 6 and 7 are the individual security post descriptions for G Block for the three Officers that work there. One Officer, obviously in this instance C.O. Cunningham, is described on Claimant's Exhibit 5 as the "Officer in Charge". In the Court's view, that would give him latrine power. In any event, C.O. Cunningham was a sergeant and sergeants do supervise Correction Officers. At the trial, C.O. Cunningham could not remember whether C.O. Cardi had asked permission to go to the bathroom. Assuming Cardi did not, what would have happened if he had asked permission? Would permission have been refused? Was there a special latrine response squad centrally located at the ECF which would dispatch replacement Correction Officers to a given area so that an officer could go to the bathroom without abandoning his post? The answer is actually found in Claimant's Exhibit 14. (see, p 40) When an employee is "properly relieved" that employee is supposed to deliver "all equipment and information" to the relieving employee so that the relieving employee can perform his duties. Thus, the employee going to the bathroom would have to turn "all keys and property of the State" over to the relieving employee. As can be seen, at least in the Claimant's expert's view, going to the bathroom in a prison setting is a complicated procedure.

The Court finds that the State violated no duty to the Claimant which was a proximate cause of the assault on Claimant and the injuries that he sustained.


Beyond the issue of duty, an injured party may not recover for injuries which directly result from his knowing participation in a criminal act. (
see, Reno v D'Javid, 55 AD2d 876, affd 42 NY2d 1040; Riggs v Palmer, 115 NY 506) While one could argue that Claimant's arranged fight in the prison setting was not a criminal act, it is very closely akin thereto. (cf., Barker v Kallash, 91 AD2d 372) In the Court's view this rule of law applies.

The Court has heard nothing more with regard to the harassment allegations. (
supra, pp 3-5 and 24-28)

The Claim is dismissed.


ENTER JUDGMENT.


June 5, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
Claimant's Exhibits 8 through 11 are schematic diagrams of the four floors and the cell locations in Cell Block "G".
[2]
According to Claimant's "EXPERT NOTICE" filed September 26, 1997, DeRosa "will testify" "3. NYSDOCS employees failed to properly implement the procedures for the discovery of razors and similar weapons;...5. NYSDOCS employees failed to prevent unauthorized inmates from entering a cell block; and 6. NYSDOCS employees failed to properly identify inmates entering "G" block, 7 and 8 galleries, at the T/P/O:. He did not address these topics at the trial.
[3]
All time entries from the log are followed by a p.m., except the entries for "3
15
D Martin, LT.RD" and "6 9 Rds Sgt. Santiago".
[4]
The Court finds that, having earned the trust of the Correction Officers, Claimant was allowed to inventory the personal belongings of other inmates and that, on occasion, he pilfered marijuana cigarettes from inmates' belongings. Relatively speaking, and considering the institutional environment, Claimant's performance overall, in this regard, probably should be viewed as stellar. In any event, it is highly unlikely that any inmate whose belongings were so inventoried and who discovered the loss of some marijuana cigarettes would file a formal complaint.