New York State Court of Claims

New York State Court of Claims

MATTHEWS v. THE STATE OF NEW YORK, #2003-010-039, Claim No. 103168


Synopsis


Case Information

UID:
2003-010-039
Claimant(s):
LEE MATTHEWS
Claimant short name:
MATTHEWS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103168
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
ARLEN S. YALKUT AND KENNETH D. LAW, ESQS.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 10, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for injuries he sustained on July 6, 2000 during his incarceration at Sing Sing Correctional Facility (Sing Sing) when Orlando Rodriguez, another inmate in the A block recreation yard, stabbed claimant in the head with a six inch metal shank. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Procedural History
Defendant moved for summary judgment dismissing the claim on the grounds that
claimant could not establish that defendant had notice that either: claimant was a known risk; Rodriguez was particularly prone to violence; or that defendant had notice and an opportunity to intervene, but failed to take reasonable measures to prevent the attack. Claimant opposed defendant's motion and cross-moved for summary judgment on the theory that defendant was negligent in its failure to detect the metal shank prior to the attack.
By Decision and Order filed July 15, 2002, this Court determined that it had been sufficiently established that: 1)
claimant was not a known risk; 2) Rodriguez was not known to be prone to assaultive conduct; and 3) defendant did not have notice and an opportunity to intervene to prevent the attack. The Court found, however, that an issue of fact remained as to what security measures were in place on the date of the assault and whether defendant failed to provide adequate supervision in the yard.
Accordingly,
defendant's motion and claimant's cross-motion were denied and the matter was tried on the issue of liability based solely upon whether defendant breached its duty to provide reasonable protection in the yard.
The Trial
O
n July 6, 2000 at approximately 6:00 p.m., claimant left his cell on A block and proceeded to recreation in the A block yard. The process of inmates moving in groups from one location to another was referred to at trial as a run. Claimant testified that he never passed through a metal detector, but was scanned by a handheld wand type metal detector. Claimant stated that there were four to five correction officers near the metal detector at 5 Building, but that they were all engaged in pat frisking and scanning the inmates with the handheld device.
Claimant initially testified that, although he had been incarcerated in A block for nine months prior to the assault and had gone to recreation nine or ten times, he never noticed the metal detector until July 6, 2000. He later testified that he observed the metal detector on the last four occasions when he passed the gate, but that he had walked around it. He stated that:
"I'm not saying that I didn't know if it was there or not. I'm saying that when I did take a notice that it was there, it's almost like it's not there because you're allowed to walk around it if you want"
(T:37).[1]
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, 49).
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 yard.[2] 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 shank.
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. I).
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 frisks.

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 A inmates
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).[3] Fonseca saw 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 weapons.[4]
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 yard.[5] 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 Log[6]
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 times.
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. OO).[7]
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.
Discussion
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).
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, supra at 256). 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 proof.
Contrary to
claimant's contention, this Court finds that the evidence established that defendant was not negligent in its supervision and the security measures employed.[8] 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 York, supra 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 GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 103168.

December 10, 2003
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims





[1] References to the trial transcript will be preceded by the letter "T."
[2] This encounter and the circumstances of the assault are not at issue. However, it is noted that after claimant's attorney questioned claimant on direct examination regarding these circumstances, claimant's credibility was effectively attacked on cross-examination when a number of inconsistencies between claimant's trial testimony and his deposition testimony were revealed.
[3] Exhibits 14 and 15 were Polaroid copies of Polaroid photographs which did not accurately reflect the lighting in the field. The original photographs are no longer available at Sing Sing.
[4]The Watch Commander's Logbook noted that Travis discovered a razor blade; however Travis had no recollection of such finding (Ex. 26).
[5] The number of inmates arriving deviated from the number that passed through the gate.
[6] The Watch Commander is responsible for the entire facility. He handles reports and maintains a log.
[7] Although the logbook entry reads 7:10 a.m., its chronological placement indicates that the notation was obviously made in the evening.
[8] As noted in Martin v State of New York, Ct Cl, March 11, 2002, Read, P.J., Claim No. 100426 [UID 2002-001-502], upon which claimant relies, "[t]his case, then, essentially turns on whose version of the facts is believed." (This decision is available at
The discrepancies in the officers' testimony regarding the numbers of inmates escorted and the time accorded to frisking and scanning the inmates was noted and considered by the Court, but did not effectively detract from the credibility of the officers.