Claimant testified that during the run he did not observe any of the 25 to 30
inmates walk through the metal detector (T:43, 51). He did see that some
inmates were pat frisked and scanned with the handheld device, while others were
let into the yard without being frisked or scanned (T:43,
Claimant testified that, during recreation on July 6, 2000, prior to the
assault, he had an encounter with Rodriguez in the basketball court area of the
Claimant testified that from the time
he arrived in the A block yard, until 9:15 p.m., he saw some correction officers
huddled near the O-I-C (Officer-In-Charge) booth but he only observed them once
or twice in the basketball court area (T:83). At approximately 9:15 p.m., as
the inmates were leaving the yard, Rodriguez stabbed claimant with a metal
The correction officers' testimony established that on July 6, 2000, inmates
assembled at the 5 Building gate from 6:00 p.m. to 6:45 p.m. for two runs to the
school and five runs to the housing block A yard. At 7:23 p.m., there was an
additional late run for mess hall workers. Each of the officers that escorted
the inmates on these runs detailed the facility's security procedures that were
followed in transporting inmates from one location to another. The inmates
passed through a metal detector and,
if the metal detector was activated, then the inmate was subjected to a pat
frisk and a body scanning with a handheld device. Additionally, all of the
inmates' personal property went through the metal detector and was hand
searched. As a further precaution, inmates were selected randomly for a pat
frisk and scanning. During a pat frisk, the inmate stood against a wall while a
correction officer performed a body check. A prototype of the scanner was
received into evidence (Ex. NN). En route to their destination, as the inmates
proceeded through the tunnel, they encountered three additional security guards.
Their posts were described as number 719 at the top of the school tunnel (Ex.
E); the middle school tunnel (Exs. F, G); and the lower school tunnel (Ex.
Correction Officer Remarde McCollin testified that she was employed by the
Department of Correctional Services (DOCS) from December 1997 to September 2000.
On July 6, 2000, she was on duty at Sing Sing for two shifts. From 3:00 p.m. to
11:00 p.m., McCollin was assigned as the officer in charge of the 5 Building
gate. At this station, she was responsible for observing inmates pass through
the metal detector as they walked from their cell blocks to their programs and
for conducting pat frisks and handheld scans as deemed necessary. She was also
responsible for maintaining a logbook for the post which was received into
evidence (Ex. PP).
When McCollin commenced a tour at the 5 Building gate, she tested the walk
through metal detector and handheld scanner. On July 6, 2000, she recorded in
the 5 Building gate logbook that the "metal detector is operable" (Ex. QQ).
Referring to the handheld scanner, she noted in her logbook that it too was
operable (Ex. PP). At approximately 6:05 p.m., four to five correction officers
were present with McCollin at the gate in preparation for the two school and
five yard runs that followed between 6:00 p.m. and 6:45 p.m. and the 7:30 p.m.
late run. McCollin observed all the inmates walk through the metal detector.
When the metal detector was activated, the inmate was pat frisked and the escort
correction officer used the handheld scanner. No weapons were found. After
each run, the
assigned escort officer accompanied the inmates through the tunnel to their
destination. Sergeant McClain and Correction Officer Bonita Knowles were also
at the gate during these runs. After the 5 Building gate, the inmates passed a
correction officer at the security booth at post 719. From where she stood,
McCollin could see post 719.
McCollin recorded in her log the exact number of inmates on each of the five
yard runs and then estimated the total number of inmates on the runs. The
number listed as a total did not correspond to the actual sum of the five runs.
McCollin attributed the error to her lack of a calculator.
Sergeant Arthur McClain testified that he has been employed by DOCS since 1978
and has been a sergeant since 1988. On July 6, 2000, he was assigned to the 5
Building gate to ensure that all inmates passed through the metal detector. He
further explained that when the metal detector is activated, procedure required
that an inmate must undergo a pat frisk and then a scan with a handheld metal
detector. One officer is assigned to maintain the logbook while an escort
officer and other officers at the gate check the inmates. The metal detector
and the scanner were tested daily. McClain supervised the runs on July 6, 2000
and observed that all of the inmates passed through the metal detector and the
standard procedure was followed. He estimated that it took five seconds for
each inmate to pass through the metal detector.
Additionally, random pat frisks were conducted because metal detectors cannot
detect non-metal items that may be used as weapons. No weapons were found on
the yard or school runs on July 6, 2000.
Correction Officer Bonita Knowles testified that on July 6, 2000, she was
assigned to assist McCollin at the 5 Building gate. She observed all of the
inmates pass through the metal detector and if the metal detector was activated,
the individual was pat frisked and subjected to handheld scanning. In addition,
pat frisks were conducted randomly. Knowles assisted with any necessary pat
Antonio Fonseca testified that he has been employed by DOCS for over four
years and was assigned as a school escort officer at Sing Sing on July 6, 2000
for the 2:00 p.m. to 10:00 p.m. tour. He had been trained at the academy in
Albany on the use of handheld metal scanners and trained on the job on the use
of overhead metal detectors.
Fonseca testified that at 6:00 p.m., he was at the 5 Building gate during the
school run before assuming his evening assignment. He escorted 54 housing block
from the gate to the school. All of them walked through the metal detector at
the gate. No weapons were found. According to both the facility's and
Fonseca's procedure, had the metal detector been activated, the inmate would
have been pat frisked and hand scanned. Personal property of inmates also went
through the metal detector and was searched manually if the metal detector
beeped. The inmates passed two other security officers en route to the yard.
At approximately 6:15 p.m., Fonseca arrived at his post in a booth in front of
the school building. He remained there until 8:30 p.m. monitoring inmate
movements in the lower tunnel.
Fonseca arrived in the yard at 9:00 p.m. where there were five correction
officers. Three correction officers were near the O-I-C booth approximately 50
feet from claimant. There were 350 to 400 inmates in the yard, which was the
usual ratio between inmates and correction officers. At 9:15 p.m., from a
distance of 40 feet, Fonseca observed claimant in the basketball area. The area
was illuminated by stadium type artificial lights on the buildings and posts
(Exs. L, N, Q, U, V, FF, GG, JJ).
Rodriguez punch claimant. In response, claimant raised his hands toward his
face while crouching down. Because he did not have his radio, Fonseca yelled
for help to four other correction officers within hearing range and directed
Correction Officer Martinez to grab Rodriguez.
Fonseca testified that correction officers are assigned to the O-I-C booth to
observe inmate activity and inspect the area for contraband. Between 9:00 p.m.
and 9:15 p.m., Martinez and Fonseca completed a security round. They walked the
entire yard. Fonseca observed Martinez look in cracks and known hiding places
in the showers, weight area and handball court. The officers were inspecting
for weapons, metal objects, drugs and money. The search was not fruitful.
Correction Officer Julio Gonzalez testified that at 6:00 p.m.
on July 6, 2000, he was an escort officer and reported to the 5 Building gate.
McCollin and several other correction officers were also present. Gonzalez
assumed a position near the metal detector and observed all of the inmates on
the school run, escorted by Fonseca, pass through the metal detector. Gonzalez
also observed all of the inmates on the first yard run pass through the metal
detector. This process took three to five minutes. He described the procedure
when the metal detector was activated as well as the random pat frisks and hand
scans. He knew that the hand scanner was operable because it could not have
been used otherwise. No weapons were found on his run. After Gonzalez escorted
the inmates to the yard, he reported to Travis, the O-I-C of the yard, that 56
inmates had been on the run. The same number that left the building had
reached the yard. Gonzalez relied upon the number given to him by McCollin. He
could not explain the discrepancy between the numbers recorded as leaving 5
Building and arriving at the yard.
The inmates scattered as Gonzalez started making rounds, walking around the
yard. He checked for security problems. During the course of the evening,
Gonzalez made several rounds. He did not find any problems and noted that the
lighting conditions were good. At 9:15 p.m., Gonzalez was positioned at the
O-I-C booth in preparation for closing the yard.
Correction Officer Michael Hinze testified that on July 6, 2000, he was the
escort officer for the second yard run from 5 Building to the housing block A
yard. He testified that he observed all of the inmates in the 6:09 p.m. school
run and the first and second yard runs, pass through the metal detector. He
further testified to the customary procedure for pat frisks and hand scanning
and noted that no weapons were found on these runs. Hinze arrived with his
inmates at 6:32 p.m. After checking in with the O-I-C, Hinze returned to his
post in A block.
Correction Officer Derek Martinez testified that
on July 6, 2000, he was assigned as an escort officer for the housing block A
yard. He arrived at the gate at approximately 5:45 p.m. He observed all of the
inmates from the 6:09 p.m. school run and the first three yard runs go through
the metal detector. He escorted the inmates on the third yard run to the yard.
He followed the inmates down a tunnel to the yard. En route, they passed a
correction officer at post 719 in the upper school tunnel (Ex. E), Correction
Officer Damon Padmore in the middle school tunnel (Exs. F, G) and Fonseca in the
lower school tunnel (Ex. I).
When the inmates left the 5 Building gate, a
verbal count of the inmates was given to Martinez by McCollin. Upon arrival in
the yard, Martinez reported the number to Travis. After reporting to Travis,
Martinez did security rounds checking the entire yard. He looked for any
security breaks, sharp objects, holes in the fence and observed the inmates. He
did not find any security problems or weapons. At 9:15 p.m., Martinez was
standing near the middle fence preparing for the final go back. Martinez aided
in apprehending Rodriguez at Fonseca's direction.
Correction Officer Robert Milanes testified that on July 6, 2000, he was an
escort officer for the housing block A yard. He observed all of the inmates
from the school and first four yard runs pass through the metal detector. The
standard procedures were followed. After the inmates from the fourth run passed
through the metal detector, Milanes followed the group to the yard. They
passed three correction officers en route. Although there was a discrepancy
between the number of inmates recorded for the fourth run that left from the
gate and the number that arrived in the yard, Milanes insisted that the actual
numbers had to be the same because there was no place for an inmate to go and
everything was locked between the two points
Correction Officer Celeste Johnson testified that, on July 6, 2000, she was an
escort officer for the late run at 7:23 p.m. She observed all of the inmates
pass through the metal detector. Johnson explained that, had any weapons been
found, it would have been recorded in the logbook and it was not indicated. She
was in the yard from 7:32 p.m. to 7:45 p.m. During that period, Johnson did not
observe any security problems.
Correction Officer Damon Padmore testified that on July 6, 2000, at
approximately 6:00 p.m., he assumed his post at the center of the school tunnel.
From his position to the yard was a two to three minute walk. All of the
inmates on the school and yard runs had passed him en route to their
destination. After the last run, he followed the inmates to the yard. When
Padmore arrived at the yard, he joined Gonzalez and Martinez in doing rounds.
Padmore looked for groups in excess of five inmates. He did not find any of
this size and did not observe any security problems. At 9:15 p.m., Padmore was
preparing to leave the yard for his post in the tunnel when he heard Fonseca
yell. Padmore responded to claimant and removed him from the area.
Correction Officer Tanor Travis testified that he was the O-I-C of the A block
yard on July 6, 2000. He was responsible for conditions in the yard and
maintaining the logbook. Before the yard opened, from 6:00 p.m. to 6:30 p.m.,
he checked the fence and searched for contraband. He dug up certain areas in
the yard looking for shanks. He testified that he did not locate any
During the five yard runs, Travis was in the O-I-C booth and received the inmate
count from the arriving escort officers after they entered the
After the runs were completed, Travis
and the other officers began making rounds and checking inmate behavior
throughout the entire yard. Travis recorded in the logbook that at 7:25 p.m. he
had made a security check and A recreation appeared secure and normal. At 7:10
p.m., Sergeant Hendry had made rounds as well (Ex. OO).
Travis was in the O-I-C booth at the time of the incident. He observed a
commotion on the basketball court. In response to Fonseca's direction, Travis
aided in apprehending Rodriguez. Travis described the lighting conditions as
good, like a stadium.
Lieutenant Michael Leghorn testified that he has been employed by DOCS for 21
years and has been a lieutenant since 1999. On the evening of July 6, 2000, he
was assigned as the field lieutenant. In this capacity, he was responsible for
rounds in the entire facility and supervised all of the sergeants and correction
officers. At approximately 9:00 p.m., Leghorn made rounds in the housing block
A yard. He noted that Travis was the O-I-C and there were four to five other
correction officers present (Ex. OO). Leghorn observed all of the officers
performing their duties and he did not see anything unusual regarding the inmate
population. The lighting was sufficient to observe the activities. Shortly
after Leghorn left the yard, he received a radio transmission about
claimant's attack. Leghorn called for an ambulance and notified the emergency
room to expect claimant.
At trial, Leghorn was asked to interpret an entry in the Watch Commander's
that indicated that Travis had discovered a razor blade in the yard at 6:10 p.m.
Leghorn explained that it was a late entry, meaning that it was written after
the fact. Leghorn also testified that discrepancies in the times recorded in
the logs happen because each officer relies on his/her own watch for posting
Sergeant Keith Hendry, testified that he has been employed by DOCS for more
than 20 years and has been a sergeant since February 2000. In July 2000, he
functioned as the vacation relief sergeant. On July 6, 2000, he was assigned
the post of Housing Block A Program Sergeant, a position he had assumed 12 to 15
times prior to that date. In this capacity, he was responsible when the inmates
engaged in mass movements like school and yard runs. Hendry testified that on
July 6, 2000, Rodriguez's program assignment was food service and he worked in
the A block mess hall.
The A block logbook reveals that Hendry made rounds at 7:10 p.m. (Ex.
He recalled going through the entire yard for this security check. From his
years of experience, Hendry assessed that there was nothing unusual concerning
the demeanor of the inmates. He also observed his security staff performing
their duties. Hendry remained in the yard for 20 to 24 minutes. He did not
observe any security problems during that period.
Deputy Superintendent of Security Services William J. Connolly testified that
he has been employed by DOCS for 25 years, the last seven in his current
position. He is responsible for the overall security at Sing Sing, a maximum
security facility housing 2200 inmates and employing 1000 individuals. Ninety
percent of the inmates are violent felony offenders. Connolly described a range
of measures taken to prevent weapons in the facility. These included random
searches of cells and common areas; use of metal detectors; pat frisks of
inmates; imposition of the disciplinary system; taking good time credits from
inmates; alternatives to violence programs; and inmate peace initiatives.
Connolly testified that, since he has been the Deputy Superintendent, all
inmates from housing block A had to walk through the metal detector at the 5
Building gate on their runs to the mess hall, yard and school. He explained
that the metal detector is checked daily by the officer at the gate,
reviewed periodically by a sergeant and maintained by an engineer. Connolly
noted that, in an average day, an inmate passes through a metal detector 11 to
13 times coming and going to the mess hall and programs. Additionally, random
searches of inmates were routine and strip searches were initiated on probable
cause. In order to keep weapons out of the yard, it was searched using the
observation skills of the officers and a handheld metal detector. Officers have
learned from experience the traditional hiding spots for weapons which were
sometimes buried in the ground. Despite all of these efforts, sometimes metal
gets into the yard. Fragments fall off trucks, maintenance personnel in the
vicinity leave items, and landfill sometimes contains metal. Connolly explained
that it is possible for an inmate to conceal a weapon in his body mass so that
the metal detector is not activated. Connolly emphasized that inmates are very
creative in their concealment of weapons and it is virtually impossible to
remove all weapons from a correction facility. Some ordinary items, such as a
pen, tie clip or baseball bat can become a weapon at the hands of an inmate.
Weapons are routinely found in prison and it would not have been unusual for a
correction officer, like Travis, to discover a razor blade in the yard.
Although such a finding was not communicated to Connolly on July 6, 2000, even
if it had been, he would not have closed the yard as long as a thorough search
had been conducted.
Connolly testified that on July 6, 2000, there were five correction officers
in the yard for 328 inmates, which was more than the department requires. He
stated that the sergeant and field lieutenant had also made rounds, even though
it is not required to be done by a field lieutenant.
Connolly also noted that the three tier disciplinary system is utilized to
emphasize that the administration has a zero tolerance for violence. At a three
tier disciplinary hearing, an inmate can lose his good time and thereby remain
incarcerated for a longer period.
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
, 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
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
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
In the instant case, the sole issue is whether
defendant breached its duty to provide reasonable protection in the yard.
Claimant argues that the security measures and supervision were so inadequate
that it was reasonably foreseeable that violence would occur in the yard.
Claimant further argues that the razor in the yard and the metal shank with
which claimant was assaulted clearly establishes that two metal objects were
permitted to be smuggled into the yard due to defendant's negligent supervision.
This Court does not agree and finds that to make such a finding under the facts
and circumstances of this case would be the equivalent of holding defendant to a
standard of an "insurer of inmate safety" which is clearly not the applicable
standard (see Sanchez v State of New York
Rather, the Court finds that upon consideration of all the evidence, including
listening to the witnesses testify and observing their demeanor as they did so,
there is a lack of evidence sufficient to meet claimant's burden of
claimant's contention, this Court finds that the evidence established that
defendant was not negligent in its supervision and the security measures
The Court does not credit
claimant's testimony that inmates were routinely permitted to walk around the
metal detector. The Court finds that on the date in issue, according to
defendant's security management procedures, the yard was searched, the inmates
were subjected to a metal detector scanning and were pat frisked when deemed
necessary, and the officers continued to make security rounds throughout
recreation time. Indeed, the testimony of the Deputy Superintendent of Security
Services emphasized that, despite defendant's continued efforts and adherence to
its security management procedures, it is virtually impossible to have a weapon
free environment in a correctional facility. He explained that inmates can
conceal weapons in their body mass so that the metal detector is not activated
and that ordinary non-metal items can be used as a weapon at the hands of an
inmate. Merely because an incident occurred involving a metal weapon does not
establish that defendant was negligent (see Sanchez v State of New
at 256). 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
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 103168.