Inmate Larry Martin ("claimant") brought this claim against defendant State of
New York ("defendant" or "the State") to recover damages for pain and suffering
on account of injuries that he sustained when he was assaulted and stabbed by
another inmate with a knife-like weapon ("shank" or "metal shank") on April 26,
1999 at Great Meadow Correctional Facility ("Great Meadow") (claim, dated May 14
and filed May 24, 1999 [Court's Exh. 2]). Great Meadow is classified as a
maximum security facility (7 NYCRR 100.40 [c]).
Claimant alleges that on the day of the attack, the State negligently failed to
follow its usual policy of utilizing a hand-held metal detector to screen
inmates attending keeplock recreation, which allowed his assailant to smuggle
the metal shank into the keeplock recreation area (Court's Exh. 2). The
pleadings allege that claimant suffered from a "badly bruised eye," stitches to
his head, headaches
and mental anguish as a result of the attack (claim, ¶¶
8-9). I. Testimony A. Claimant's testimony at
At the time of the assault, claimant was serving a 36-month
period of keeplock confinement for marijuana use. He summarized the procedure
followed at Great Meadow to transfer inmates serving such long-term keeplock
from their cells to the outside keeplock recreation
First, a list is compiled of those inmates wishing to participate in
recreation, who are released from their cells and formed into a line. These
inmates are required to place their clothing on their cell bars for inspection
before exiting their cells and forming the line. Claimant stated that sometimes
this clothing is searched by hand, while on other occasions the inmates are
simply instructed to get dressed.
Once in line, the inmates travel through three checkpoints, which claimant
referred to as "lines." The inmates stop at each line and await direction to
proceed to the next line on the way from their cells on the third floor down
through the ground floor and, ultimately, outside. At the last line--line
one--a correction officer checks the inmates for weapons and contraband with a
hand-held metal detector or scanner before allowing them to proceed to the
recreation cages outside.
In practice, an inmate waits at line two while the inmate directly ahead of him
proceeds to line one to be scanned. When an inmate is cleared to proceed from
line one to recreation after having been scanned uneventfully, the inmate
waiting at line two, approximately 15 feet away, proceeds to line one to be
At line one, there are two footprints outlined on the floor to indicate where
an inmate is to place his feet and stand with his arms spread out. Once an
inmate reaches this spot, the correction officer runs the metal detector around
all areas of his body. The scanning process, claimant testified, takes
approximately 45 seconds. Claimant added that in his experience, this procedure
was not always followed; for example, when he first arrived at Great Meadow he
was always scanned, but as the correction officers get to know an inmate,
scanning becomes more random.
On the day claimant was assaulted, inmate Alex Black ("Black"), who had moved
into the cell to the left of claimant's about two weeks earlier, was directly
ahead of him in line. James Cooper ("Cooper") was in line just behind claimant.
Cooper was assigned to the cell to the immediate right of claimant's.
While the correction officer was scanning Black on line one, the metal detector
signaled an alarm, and Black was taken to the side where the correction officer
continued to check him. Claimant stated that while this was going on, he was
waved through line one by the correction officer without being scanned, and so
proceeded immediately outside to the recreation cage, with Cooper following
close behind. On cross-examination, claimant acknowledged that he did not
witness Cooper being waved through line one, but he reasoned that this must have
happened since Cooper entered the cage at virtually the same time as he did.
Claimant then described the assault. He testified that he was in the corner of
a portion of the recreation cage doing calisthenics when he was attacked by
Cooper with the metal shank.
He was hit in the head a number of times, and was stabbed in the hand and chest
as he tried to defend himself. The assault was broken up by correction
The metal shank was recovered by C. O. Michael Perry ("Perry") from the
recreation cage after the assault (Claimant's Exh. 1 [Deposition Testimony of
Michael Perry], pp. 24-25) and admitted into evidence at trial (Claimant's Exh.
8). The shank is a formidable weapon, a sharpened piece of metal somewhat
thicker than a dinner knife's blade, measuring roughly five and one-half inches
long and one-half inch wide.
On cross-examination, claimant testified that he and Black were both from the
Rochester area, but he did not meet Black until they were both incarcerated at
Great Meadow. Nor was claimant particularly friendly with Black after the
attack. Black volunteered to claimant what he had witnessed after having being
pulled aside from line one on the day of the assault.
B. Black's testimony at trial
Black testified that he first met claimant when he transferred to Great Meadow
in March 1999. He then recounted the events of April 26, 1999, essentially
corroborating claimant's story. According to Black, the metal detector sounded
an alarm as he was being scanned at line one to go out for recreation. He was
then made to stand aside, roughly two feet away from the scanning area (the
footprints) of line one, and was immediately handcuffed as a sergeant was
notified. Black testified that from his vantage point he witnessed both
claimant and Cooper come through the gallery and proceed to recreation without
being scanned by the metal detector. Rather, they were waved through line one.
Black was eventually taken to an interior room for a strip frisk, which turned
up no weapons or items of contraband (
, Claimant's Exh. 2 [Strip Search Report dated April 26, 1999]).
C. Perry's deposition testimony
Perry, a correction officer at Great Meadow for 17 years, manned the gates to
the recreation cage and was responsible for searching the cage prior to its use
by the inmates on April 26, 1999 (Court's Exh. 1, pp. 8-10). He insisted that
there was "no doubt in [his] mind" that he would have found the approximately
five and one-half inch shank if it had been concealed in the yard prior to the
inmates' use of the area (Court's Exh. 1, p. 11).
D. Testimony of C. O. Paul Montanye ("Montanye") at
Montanye, a correction officer at Great Meadow for seventeen years and a
keeplock exercise correction officer for thirteen of those years, was in charge
of the metal detector, an Adams Hand Held Metal Scanner, on April 26, 1999. He
testified that this device had been in service at Great Meadow for roughly five
to six years prior to that date.
Although he was not aware of any specific directive, Montanye testified that it
was facility policy to scan each and every inmate going to keeplock recreation
with the hand-held metal detector; and that an order reflecting this policy had
been issued by the facility Deputy Superintendent (
, Claimant's Exh. 1, ¶ 4 [Great Meadow inter-departmental
communication evidencing this facility rule]). He also acknowledged that
failure to follow this order could lead to disciplinary charges as well as
endanger facility staff. When asked on direct examination if he had scanned
claimant on the day of the assault, Montanye replied "Yes, I
His answer regarding whether he had
scanned Cooper was more equivocal; specifically, he testified that "if he
[Cooper] came out to rec (sic) . . . yes." When asked if he neglected to scan
any inmate that day, Montanye replied "No."
On cross-examination, Montanye conceded that the specifications accompanying
the hand-held metal detector stated that it was capable of detecting metal
hidden internally; however, he added, in his experience the scanner might miss a
small piece of metal if it were sufficiently covered up. Upon being shown the
five and one-half inch metal shank (Claimant's Exh. 8) with which claimant was
attacked and asked if the hand-held scanner was designed to detect this type of
item on or in an inmate's person, Montanye replied that he "would like to think
it would . . . but I don't know." Montanye did not remember getting a false
alarm with the metal detector when he scanned Black on the day of the assault,
but stated that this must have happened in view of claimant's Exhibit 2 (report
of strip frisk).
The State "has a duty to use reasonable care to protect its inmates from
foreseeable risks of harm, including risks of attacks by other prisoners"
Colon v State of New York
, 209 AD2d 842, 843). Nonetheless, the State is
not the absolute insurer of an inmate's safety and, consequently, the mere
happening of an incident without further evidence of a lack of reasonable care
will not give rise to an inference of negligence (see
, Pierrelouis v
State of New York
, 255 AD2d 824, quoting Casella v State of New York
121 AD2d 495, 495-496).
There was no evidence here that the State had any reason to believe that Cooper
posed any particular threat or danger to claimant (
, Sebastiano v State of New York
, 112 AD2d 562). Claimant
testified that he had denied Cooper the use of his television on two occasions,
but otherwise could think of no motive for the attack; and that there was no
history of animosity between Cooper and him. Nor was there any evidence to
support a finding of liability premised upon Cooper's being known as an
especially dangerous inmate such that the State was required to take proper
precautions to isolate him from others (see
, Littlejohn v State of New
, 218 AD2d 833).
Liability, however, may also flow from the failure to prevent an assault that
was avoidable with proper supervision and compliance with facility policy
see, Huertas v State of New York
, 84 AD2d 650; Blake v State of New
, Ct Cl, Marin J., UID # 2001-016-218 [liability predicated on violation
of policy that feed-up hatch be locked at all times, which was not followed and
allowed stabbing]; Miller v State of New York
, Ct Cl, Patti, J., UID #
2001-013-513 [where policy of isolating keeplock inmates from general population
inmates was inadvertently violated due to assailant jamming cell lock, assault
upon claimant resulted in liability]). This case, then, essentially turns on
whose version of the facts is believed, as defendant's counsel argued during
opening and closing statements.
Here, claimant testified that he was not scanned and that Cooper could not have
been scanned given their virtually simultaneous entry into the recreation cage.
Black testified that he witnessed both claimant and Cooper being waved into the
recreation cage without having first been scanned.
There is no evidence that claimant and Black knew each other before Black's
arrival at Great Meadow in March 1999. Nor is there any evidence that they were
friends either before or after the incident. Black stated during
cross-examination that he really did not know claimant, he was just locked up in
a cell next to him. Claimant stated "I don't talk much" after saying that he
only occasionally spoke to Black. The Court sees no incentive for Black to lie.
Simply put, Black had nothing obvious to gain by fabricating a story favoring
Next, Montanye acknowledged the possibility of disciplinary charges if he
failed to follow the Deputy Superintendent's order or, as brought out by
claimant's counsel on cross-examination, if he admitted at trial that he had
failed to do so. While the Court does not attribute any purposeful
misrepresentation to Montanye, his less than clear memory of events became
evident during his testimony. For instance, he testified to a specific memory
of having scanned claimant on the day of the assault, but had no similarly
specific memory of having scanned Cooper. Nor did he recall that the metal
detector's alarm had sounded when an inmate (Black) was on his way to recreation
just ahead of claimant, which may have distracted him.
Although defendant's counsel elicited some vague testimony from Montanye to
the effect that the hand-held scanner is not foolproof (and--its manufacturer's
puffery [Claimant's Exhs. 5 and 6] to the contrary notwithstanding--this is
undoubtedly true), the shank is a substantial piece of metal. It is hard to
picture how this metal shank might have been secreted in Cooper's body or on his
person without causing the hand-held metal detector's alarm to signal; or how
Perry might have missed finding it when he searched the recreation area prior to
the inmates' use of it on April 26, 1999. The State presented no evidence to
explain how the metal detector might have malfunctioned, and the scanner seems
to have been adjusted for high sensitivity detection, having produced a "false
positive" alarm when Black was scanned just minutes before the assault on
After weighing the conflicting testimony and the other evidence, the Court
finds that claimant and Cooper, the next two inmates in line after Black, were
negligently allowed to enter the recreation cage on April 26, 1999 without first
being scanned for weapons and contraband, which was contrary to facility policy.
Although the proper scanning of Cooper might not have prevented him from
assaulting claimant, it very likely would have detected the shank, thus
preventing the use of this weapon in the attack and reducing the severity of
Based on the foregoing, the Court finds that claimant has proven the State's
negligence by a fair preponderance of the credible evidence. The Chief Clerk is
directed to enter interlocutory judgment accordingly; a trial on damages will be
scheduled as soon as practicable. Any motions on which the Court previously
reserved judgment or which were not previously decided, including claimant's
post-trial motion for poor person status (M-64327), are denied as moot (
, Civil Rights Law § 79