New York State Court of Claims

New York State Court of Claims

SAVOCA v. THE STATE OF NEW YORK, #2003-010-037, Claim No. 98982


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 3, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained during his incarceration within the State correctional system. On February 24, 1998, claimant was transferred from Clinton Correctional Facility (Clinton) to Sing Sing Correctional Facility (Sing Sing) for a trial scheduled at Sing Sing on February 25, 1998 regarding Claim No. 90136.[1] On March 2, 1998, while claimant was a holdover[2] at Sing Sing, he was assaulted by several inmates who slashed claimant in the face with a sharp object. Claimant alleges that his attackers were members of the Latin Kings gang and that defendant should be held liable for the attack because it was foreseeable and defendant had refused claimant's purported request to remain in keeplock and not to be placed into general population at Sing Sing. Claimant further contends that defendant was negligent in its failure to maintain its metal detector in proper working order. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claim No. 90136
Claimant testified that he learned from the trial of his Claim No. 90136, which was heard on February 25, 1998 at Sing Sing, that it was his responsibility to notify the New York State Department of Correctional Services (DOCS) of any enemies he had and to request protective custody because DOCS would not be held liable for any unforeseen attacks. Claimant focuses on his cross-examination by defense counsel as the basis for his new found knowledge. The sum and substance of the cross-examination was as follows:
Defense counsel: "Mr. Savoca, you did state, did you not, during an involuntary protective custody hearing, that you did not have a fight, but you fell off the stairs?"

Claimant: "Yes, I did."

Defense counsel: "And, did you ever notify any Department of Corrections employees in writing that you did have any [enemies in the system]?"

Claimant: "They were notified by other people. I didn't notify them. *** The answer is, no."
(Ex. 14, p 15). Claimant maintains this line of questioning led him to notify DOCS verbally on February 27, 1998 and in writing on February 28, 1998, regarding Claim No. 98982, that he feared the Latin Kings at Sing Sing and to request that he remain in keeplock.
Claim No. 98982
Claimant testified that, when he arrived at Sing Sing on February 24, 1998, he was afraid for his safety because of his problems with the Latin Kings (T:35).[3] He testified that he was placed in a cell and not asked about his enemies (T:33). He did not volunteer any information regarding his enemies because, "[t]hey knew *** it should be right in my files" after all, as claimant pointed out, he was housed at Sing Sing for a negligence claim regarding an assault by the Latin Kings (T:39). He further testified that he could not identify any specific enemies, but he knew he had a problem with the Latin Kings gang. He conceded that he did not ask for protective custody at Clinton or "Comstock" even though the Latin Kings were present in those facilities because claimant maintained that those facilities were "tightly ran [sic] places" as compared to Sing Sing, which was very different and ran "much loosely" (T:59). Claimant did not request protective custody at Sing Sing even though he knew it was available to him. He assumed that he would remain in keeplock (T:39).
Claimant testified that on February 24, 1998, he was housed as a holdover at Sing Sing and placed in keeplock until February 26, 1998. On Friday, February 27, 1998, claimant learned that he was to be transferred from keeplock to general population. Claimant testified that he did not want to be in general population because he believed that the Latin Kings had a "contract out on [him]" and he feared for his safety (T:18). Claimant further testified that he communicated his concerns to Sergeant Knight and asked to remain in keeplock (T:18-19). Claimant did not recall if he specifically mentioned the Latin Kings to Knight. Additionally, claimant testified that, the next morning, he wrote a letter to Superintendent Charles Greiner. The letter purportedly explained that claimant wished to remain in keeplock because of problems with the Latin Kings. Claimant allegedly posted the letter in an intrafacility mailbox that day.
Claimant was not restored to keeplock. On Sunday, March 1, 1998, claimant went to the yard for an hour (T:23). He thought that, because of the cold weather, most of the inmates would stay indoors and therefore he would be safer in the yard. There was a metal detector between the tunnel and the yard.
On the afternoon of March 2, 1998, claimant again went to the yard (T:23). Prior to March 2, 1998, claimant had not seen anyone whom he believed to be a member of the Latin Kings; however, on March 2, 1998, he saw some inmates wearing the colors associated with the gang (T:24). Claimant decided to return to his cell on the early go-back (id.). As he reached the top of the stairs in the tunnel, claimant was attacked and slashed in the face by three or four inmates wearing yellow hoods, the color associated with the Latin Kings.
After the attack, correction officers found a razor blade in the center of the tunnel. Inmates from the housing units would reach this location before passing through the metal detector. A metal can lid was also found near the school building, which was between the metal detector and the yard. After school ended, this area was not accessible to inmates. Claimant maintains that the metal detector between the yard and the top of the stairs was inoperable. There was no testimony linking the items found to claimant's attack.
Claimant was taken to the facility emergency room and then transported by ambulance to St. Agnes Hospital. Before leaving Sing Sing, while claimant was bleeding and in the ambulance, he signed a Refusal of Admission to Protective Custody (Ex. B). Claimant maintains that he was tricked into signing the form by a correction officer who said it was an ambulance release form (T:37).
Sergeant Joseph A. Belcher, who had been employed at Sing Sing for approximately 10 years, was permitted to testify over
claimant's objections. Belcher stated that he would never tell an inmate that a "refusal for P.C." was an ambulance release form. If the inmate could not read the form, Belcher would read it to the inmate.
Robert DeRosa, who was employed by the New York City Department of Correctional Services for 26 years, offered expert testimony on behalf of
claimant regarding the administration, management and security of correctional facilities. DeRosa has served as Warden of a Correctional Facility on Rikers Island and as Commanding Officer of the Training Academy for new correction officers. DeRosa testified that he dealt with gang violence at Rikers Island and was aware that black and yellow were the colors associated with the Latin Kings.
DeRosa explained that a name-based computer search to identify an inmate's enemies would not reveal threats from a gang because one may fear a gang but not be aware of the identity of its members.

When confronted with Sing Sing's Directive and Policy Procedure regarding housing and placement of holdover inmates (Exs. 1, 2), DeRosa conceded that Sing Sing did not fail to follow its own directives. DeRosa further conceded that it is not necessary to house all
holdover inmates in keeplock and that every inmate with a documented problem with the Latin Kings could not be kept in protective custody. However, DeRosa maintained that, due to claimant's prior assault and complaint, he should have remained in keeplock.
DeRosa testified that the logs of the metal detector which noted "inconsistent activation" indicated to him that the detector was not working properly (Ex. 5). He also testified that inmates use non-metal items, like glass, as weapons and that these items do not activate the metal detector (T:113).

Superintendent Charles Greiner, who had been employed by DOCS for 35 years, testified that all letters received are logged in by his secretary then an investigation is conducted and any information obtained from the investigation would be related to the superintendent and forwarded to either the inmate's service unit file or legal file (T:267). At Greiner's direction,
claimant's files were pulled from the archives and a search was made for the letter from claimant to Greiner requesting continued keeplock status in February 1998. No letter was found (T:268). When asked by the Court if the logs had been reviewed to determine if the letter had been received by Greiner's secretary, Greiner conceded that the logs had not been checked.
Greiner explained that DOCS uses a computer program to record inmate information including, inter alia, an inmate's criminal history, educational background, disciplinary history, an enemies list, and the names of any inmates that should not be incarcerated in the same institution due to a prior incident or a real concern. Gang affiliation is not part of the information maintained. Inmates are not categorized by gang membership and are viewed as individuals. According to Greiner, there would be no way to determine gang affiliation. Inmates are separated from other specifically identified inmates; they are not separated from gangs or groups. Even if correction officers knew that a particular inmate had an encounter with a gang, it was not DOCS policy to place the inmate in protective custody. An allegation by an inmate that he had problems with the Latin Kings would not justify retaining him in keeplock indefinitely.
Greiner testified that he believed that "inconsistent activation" of a metal detector meant that it could go off prematurely or not at all.

Correction Officer Thomas Knight testified he has been employed by DOCS for over 21 years and had been at Sing Sing for approximately 14 years. In February and March 1998, Knight was the supervising sergeant in housing block 5 assigned to the 7:00 a.m. to 3:00 p.m. shift. His duties included conducting security clearance interviews for holdover inmates to ascertain an individual's enemies and completing a security clearance interview form. Knight testified that he would record anything relevant on the security clearance interview form and then check the computer for any further relevant information, which would also be noted on the form. The computer system does not identify inmates by gang affiliation.
If an inmate indicated that he did not want to be placed in general population or made any other comments regarding gangs and security, that would also be included on the form. The completed form was then submitted to Knight's supervising captain. The form indicated that Knight used the DOCS computer system and discovered that claimant had enemies, but they were not housed at Sing Sing (Ex. A).
Knight testified that if
claimant had requested to remain in keeplock, it would have been documented on the form. Knight had no independent recollection of his interview of claimant. He maintained that anything an inmate stated regarding security concerns or if he feared that there was a contract out on him, or any fear of the Latin Kings would have been noted. While claimant objected to the admissibility of Knight's testimony regarding his custom practice of specific questions he asked inmates when interviewing them, the Court did not accord any weight to the specifics as testified to by Knight. Rather, the Court accepted only that testimony regarding Knight's duties in completing the form and the information contained on the form as reflective of Knight's interview of claimant.
Correction Officer Phillip Jenkins testified that he has been employed at Sing Sing for 14 years and has been assigned to the school building and tunnel for 12 years. He was stationed at Post 920 in the tunnel which was located near the metal detector and school building. Jenkins recalled that on March 2, 1998, he responded to a commotion in the tunnel and observed that
claimant had been injured. After school is recessed at 3:15 p.m., the gate entering that area is secured. Jenkins recalled that the school go-back had ended before claimant was attacked. The yard go-back was scheduled to take place after the school go-back, to minimize the number of inmates in the tunnel at any one time. After school finishes, the school gate is locked, blocking entry into the school before the inmates from the yard go through the area.
Jenkins testified that "inconsistent activation" in the metal detector log meant that the detector was very sensitive. He stated that on occasions when the detector was not functioning, inmates walked through without stopping. Jenkins was not aware that the detector had been out of order for an extended period of time during January through March of 1998.

Jenkins, who worked the 3:00 p.m. to 11:00 p.m. shift, looked for weapons at the school building when it was closed. A correction officer on the 7:00 a.m. to 3:00 p.m. shift was responsible for checking the area in the morning.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risk of harm includes the risk of attack by other prisoners (see Littlejohn v State of New York, 218 AD2d 833). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The State's duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see Padgett v State of New York, 163 AD2d 914). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually knew, but also "what the State reasonably should have known – for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez v State of New York, supra at 254). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see Colon v State of New York, 209 AD2d 842, 844). "[T]he State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. *** The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, supra at 256).
To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that
the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (Id.). "The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Wilson v State of New York, 303 AD2d 678).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
claimant's testimony is not worthy of belief and there is a lack of evidence sufficient to meet claimant's burden of proof. Specifically, the Court rejects claimant's testimony that he learned from his cross-examination by defense counsel in the trial of Claim No. 90136 that claimant had a duty to notify defendant of his enemies and to request protective custody in order to prevail on his claim and that this new found knowledge led him to notify defendant verbally, two days later, and in writing, three days later regarding the instant claim. The Court finds that claimant did not provide defendant with any information that would have or should have led defendant to reasonably believe that an attack on claimant was foreseeable. Notably, claimant did not request protective custody, even though he knew it was available to him, and the Court does not credit claimant's testimony that he was tricked into signing a Refusal of Admission to Protective Custody. Claimant also testified that he had not requested protective custody at two other correctional facilities even though he knew the Latin Kings were present in those facilities. Claimant's attempt to distinguish the management at Sing Sing from those facilities was not persuasive. Also detracting from claimant's credibility is the fact that, despite claimant's purported fear that there was a contract out on him, he went to the yard day after day.
laimant's own expert conceded that defendant did not violate its own directive and policy procedure regarding housing and placement of holdover inmates. The testimony of Superintendent Greiner, who has been employed by DOCS for 35 years, established that the State's policies and practices designed to address the risks of inmate violence were based upon the facility's expertise and prior experience. Greiner explained that DOCS does not categorize inmates by their gang affiliations because it is not always discernable and inmates are viewed as individuals. Accordingly, inmates are separated from other specifically identified inmates; they are not separated from gangs or groups. Claimant's expert also conceded that every inmate with a documented problem with the Latin Kings could not be kept in protective custody. Merely because claimant feared the Latin Kings and had been the victim of a previous attack by that gang does not establish foreseeability or a duty to provide protective custody to every inmate that either fears or has been assaulted by a gang member.
Finally, the evidence was insufficient to establish that
defendant was negligent in its maintenance of the metal detector and that such negligence was a proximate cause of claimant's assault. Indeed, there is no requirement or mandate that facilities be equipped with metal detectors. The razor blade was found in the center of the tunnel and the can lid was found in the school area. Inmates could walk through both of these areas before passing through the metal detector and neither the razor blade nor the can lid were linked to claimant's attack. Additionally, claimant's own expert testified that inmates make weapons, from items such as glass, which cannot be picked up by a metal detector. Thus, under the circumstances of this case, even if the detector was not functioning, it does not establish that any negligence attributable to defendant was a proximate cause of claimant's attack.
In sum, the Court finds that the actions taken by
defendant to secure claimant's safety were reasonable under the circumstances; therefore defendant is entitled to deference in managing the safety and order of its facility (see Arteaga v State of New York, 72 NY2d 212, 216).
defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

December 3, 2003
White Plains, New York

Judge of the Court of Claims

[1] In Claim No. 90136, claimant alleged that he was attacked by an inmate who was a member of the Latin Kings gang.
[2] An inmate temporarily housed in a facility for his trial appearance is considered to be on holdover status (Ex. 1).
[3] All references to the trial transcript of Claim No. 98982 are preceded by the letter "T."