New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2005-010-040, Claim No. 100171


Claimant failed to proof: 1) that the attack on him was foreseeable and 2) that defendant was negligent in providing for inmate safety.

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:
FALK & KLEBANOFFBy: Jeffrey P. Falk, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 24, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained during his incarceration at Sing Sing Correctional Facility (Sing Sing) when, on November 11, 1997, he was attacked in the A Block yard. It was approximately 7:45 p.m. and claimant was standing near the entrance to the yard waiting to return to his cell in A Block when a group of unidentified inmates stabbed claimant in the head, back, chest and stomach. Claimant contends that the attack was foreseeable because there had been another slashing in the yard two days previously on November 9, 1997. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that he did not know the identity of his assailants or where they had come from or why they had attacked him. Claimant described the weapons used as a homemade knife and a switchblade knife with a string. He identified the objects from a photograph of two knives recovered in a search of the yard after the incident (Ex. 9).
Claimant had been incarcerated at Sing Sing for five years prior to his attack. Claimant stated that during 1997 he had witnessed several inmate-on-inmate attacks in the yard. Nonetheless, he never feared being in the yard and routinely worked out in the weight area. Claimant also routinely returned on the early go back so that he could shower. Claimant further testified that he never had any problems with any inmates in the yard or in any other part of the facility.
On November 11, 1997,
claimant was en route to the yard with approximately 75 other inmates. They passed through a metal detector at 5 Building. However, according to claimant, some of the inmates were placed on the side and did not pass through the metal detector. Claimant did not observe what happened to those inmates. Claimant entered the yard at approximately 6:00 p.m. and worked out with weights until 7:45 p.m. When he heard the call for the early go back, he proceeded to the gate along with 50 to 60 other inmates. He had been waiting in line for eight to ten minutes when he was attacked. Claimant testified that the assault lasted approximately twenty seconds and no one did anything to stop it. When the gate was opened, the assailants dispersed in the yard. Claimant was transported in a van to the facility clinic.
Correction Officer Wayne McCants, who has been employed at Sing Sing since 1993, testified that, from September 1994 until November 11, 1997, he was assigned to the yard gate twice a week. He described the gate as a chain link fence that operated manually. McCants was responsible for opening and closing the gate and controlling the movement of inmates. He explained that the early go back was an opportunity for inmates to leave the yard before the end of the recreation program. After the announcement for the early go back, the inmates proceeded to the gate one or two at a time. A correction officer within the yard would call McCants for clearance and then McCants would open the gate.
On November 11, 1997, McCants arrived at the gate at 5:30 p.m. The inmates routinely arrived at 6:00 p.m. McCants testified that at 7:45 p.m. he was monitoring the early go back when he observed inmates fighting. He felt a vibration on the fence and saw a bunch of feet and legs on the ground. He then observed six or seven inmates running towards him, so he closed the gate and locked it. The inmates ran into the gate and McCants was injured in the process. He called for assistance. Within seconds, three or four correction officers, including Correction Officer Daniel Pauley, responded to the scene. McCants attended to claimant. The assailants ran back into the yard. McCants and Pauley then walked around the yard looking for the attackers.
McCants testified that it is important to have security measures in place to control the early go back because Sing Sing is a maximum security prison which houses dangerous felons who are prone to attacking each other and correction officers.
He testified that stabbings were a common occurrence in prison and a part of prison life.
Correction Officer Brian Riley, a correction officer at Sing Sing since November 1996, acknowledged that inmates could attack other inmates anywhere within the facility. According to a memorandum he prepared on November 11, 1997, a search of the yard was conducted after
claimant was attacked and two flat, steel weapons were recovered (Ex. 6). Photographs were taken of the weapons (Ex. 9). Riley testified that he had no independent recollection of November 11, 1997.
Sergeant Daniel Pauley testified that he has been a sergeant at Sing Sing since 1994 and has never witnessed an inmate-on-inmate attack in the yard.
On November 11, 1997, Pauley was the A Block Program Sergeant. He was responsible for assisting the block sergeant as well as correction officers in the program, mess and recreation areas. The security measures to prevent attacks in the yard included controlled movements of 75 inmates with escort officers; a minimum of three correction officers in the yard; and a correction officer positioned at the gate.
Pauley prepared a memorandum addressed to Lieutenant Timothy Miller regarding
claimant's assault (Ex. 3). He described the memorandum as the cover letter which became part of the Unusual Incident Report packet. Pauley had no independent recollection of the events. Referring to his memorandum, Pauley stated that by securing the gate, closing and locking it, other inmates would be kept out and those inside would be unable to leave. There was no other gate in the yard to prevent the inmates from dispersing.
Pauley testified that
security devices were utilized to prevent weapons from entering the yard, such as metal detectors, which were located at the 5 Building gate and the vocational shop. He also testified that random pat frisks were performed and correction officers were stationed along the route from the cell blocks to the yard. The fact that weapons were found in the yard indicated to Pauley that either the security devices were not foolproof or someone had bypassed them. Pauley explained that inmates often hid small objects in their body cavities and mouths and that weapons could be thrown over the fence into the yard from the neighboring Tappan Correctional Facility.
Pauley was questioned about the Employees' Manual which states that, "[w]hen inmates are passing from place to place in or about the facility employees shall not permit congregation or congestion but shall assure that such movement is expeditious" (Ex. 16, p. 22, §7.15). Pauley explained that this section does not apply to the go back, which consists of a large group of inmates
Finally, Pauley maintained that inmate-on-inmate attacks with weapons were always possible, although he could not say how often they had occurred. He explained that anytime a group of inmates is gathered, there is always a potential for an altercation because they are felons and they generally do not like one another.

Deputy Superintendent Terrance McElroy, who has been employed by the Department of Correctional Services (DOCS) for 33½ years, testified that on November 11, 1997, he was the Acting Deputy Superintendent of Security at Sing Sing. This was the highest ranking uniform officer for security. He explained that certain policies and procedures were followed with the goal of preventing inmate attacks. For example, he held morning meetings with supervisory personnel and conducted quality rounds which included making sure the supervisors were doing their rounds and that the correction officers were at their assigned stations. Quality rounds also included speaking to correction officers and determining the mood of the inmates; examining logbooks to determine if they were being filled out properly; and reviewing post orders. McElroy interpreted the Employees' Manual to require correction officers to be constantly alert while supervising inmates and to be aware of any inmate activities or movements that may be out of the ordinary.

The logbook entries for November 7, 1997 through November 11, 1997 indicated that the lower tunnel metal detector activated inconsistently (Ex. 18, p. 8).
McElroy explained that the entries meant that, when the metal detector was tested, it went off even if there was no metal passing through it (Ex. 18). He maintained, however, that even a malfunctioning metal detector still has a deterrent effect because the inmates would not know if it was malfunctioning. He further clarified that a notation of "inconsistent activation" or "activating inconsistently" did not mean that the device was not working at all. Under those circumstances, the entry would be "inoperable" and a work order would be submitted.
McElroy testified that he is now the Acting Superintendent at Bedford Hills Correctional Facility and has also served as the deputy Superintendent in charge of security at Fulton Correctional Facility. Based upon his 33 years of experience at various correctional facilities, he noted that all the yards are different and have different security concerns. Unlike other yards, the yard at issue was a half mile from the housing unit and inmates had to travel through extensive corridors to reach their destinations. McElroy testified that when
inmates moved en masse in the facility, there was a system of random pat frisking and metal detector scanning. If facility personnel attempted to search all inmates, they would not reach their programs in a timely fashion.
The security measures in place on the day of
claimant's attack included locked gates; appropriate staffing in the tunnels; electronic monitoring with handheld scanners and walk-through metal detectors. Supervisors were also briefed at a lineup and performed quality rounds. Correction officers were dispersed in the yard and staff monitored the gates. McElroy also recalled that correction officers searched the yard before the inmates arrived. When contraband was found in the yard, it signified to McElroy that somehow an inmate had circumvented the security procedures in place. McElroy stated that it happens despite the best efforts of security personnel. He also explained that weapons can also be made of plexiglass which does not activate the metal detector.
McElroy testified that when the early go back was called, the inmates gathered at the gate until the Officer-In-Charge determined that everyone who had planned to go back early had been assembled. McElroy also noted that the Employees' Manual reference to avoiding congregation and congestion is not related to a controlled, authorized, movement, like the go back.

McElroy testified that Sing Sing was accredited by the American Correctional Association. He explained that this was a private organization of independent auditors who examined all aspects of the facility, including security, to determine whether it met all standards and guidelines.

Robert DeRosa, who was employed by the New York City Department of Correction (NYCDOC) for 26 years, offered expert testimony on behalf of
claimant. DeRosa had served as warden of the Anna M. Kross Detention Center for Men at Rikers Island (Kross Center) and as compliance chief for the NYCDOC before his retirement from the agency in 1995.
In analyzing
claimant's case, DeRosa opined that the New York State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries (Commission Regulations), promulgated for local correctional institutions, are relevant in establishing a reasonable standard for the operation of any prison within the state (see 9 NYCRR 7000 et seg). Specifically, he maintained that Section 7003.4, referring to the standard of active supervision of inmates in activities outside the housing unit, should be applied to Sing Sing even though that section addresses only local facilities and does not apply to the State. In DeRosa's view, the standards are developed to provide a safe environment for all prisoners wherever they are incarcerated. As defined by Section 7003, "Active supervision" means that correction officers should be alert at all times and be available to respond immediately to a problem. Inmates should also have an uninterrupted ability to communicate with facility staff. According to DeRosa, these same standards for minimum security are actually incorporated in Sing Sing's Employees' Manual, which requires that its employees remain alert to prevent the introduction of contraband (Ex. 16, §§ 7.1; 7.2; 7.3; 7.21).
Based upon his experience at the Kross Center, DeRosa concluded that the administrative staff at Sing Sing could have predicted inmate-on-inmate attacks if they had properly analyzed previous incidents. He further testified that the following factors impact on whether an attack is predictable: supervision in an area; deployment of staff; searches of an area before inmates arrive; searches of inmates before entering an area; the condition of the electronic equipment; past incidents and the facility's response to those incidents. DeRosa opined that correction officers should have been in specific areas rather than have roving assignments. He advocated this position, despite acknowledging that inmates are adept at figuring out the officers' routines.

DeRosa maintained that when the metal detector near the yard tested "inconsistent activation" from November 7 to November 11, 1997, management should have taken action, particularly after an inmate-on-inmate slashing had occurred in the yard on November 9, 1997. Instead, according to DeRosa, personnel continued to handle all assaults as isolated occurrences without addressing the search procedures employed or the electronic devices utilized. DeRosa opined that the November 9, 1997 slashing in the yard indicated that the attack on
claimant was predictable and could have been prevented. Further, the fact that only McCants responded to claimant suggested to DeRosa that the other correction officers present were not alert and thus in violation of the standards set forth in the Employees' Manual. In DeRosa's opinion, the facility personnel departed from performing their duties in conformity with the Employees' Manual and the Commission Regulations requiring "active supervision" by: 1) failing to be alert and attentive; 2) failing to separate the combatants and; 3) failing to properly report the incident. DeRosa also maintained that the correction officer coverage scheme was insufficient, even though he acknowledged that McCants was only a short distance away from claimant at the time of the attack.
DeRosa testified that when he was warden at the Kross Center, he followed
rules based upon the Commission Regulations and he analyzed data from previous attacks. He conceded, however, that despite the best efforts of his administration, inmates found ways to do things they were not supposed to do and inmate-on-inmate assaults with weapons still occurred. DeRosa also conceded that the population at Rikers Island, which had 10 facilities of inmates awaiting trial, was different from the Sing Sing population. The inmates awaiting trial at Rikers were not convicted felons and some of the inmates were serving time for misdemeanors rather than felonies; by contrast, Sing Sing housed only convicted felons.
On cross-examination, DeRosa acknowledged that the Commission Regulations do not apply to Sing Sing and do not mandate handheld or walkthrough metal detectors. He was aware that Sing Sing has its own rules and regulations, promulgated pursuant to the Correction Law; yet DeRosa did not consider any of those rules in formulating his opinion. DeRosa also acknowledged, from his own personal experience, he knew
directives were important in running a facility; nonetheless he never referred to any DOCS directives in formulating his analysis. DeRosa's written report referred only to the Commission Regulations and did not discuss any departures from the applicable Employees' Manual. DeRosa also concluded in his report that security cameras should have been installed in the yard; however he never did a cost analysis as to the number of cameras necessary or the staff required to monitor such cameras. He also conceded that monitoring via cameras was not better than a correction officer's direct and watchful eye.
DeRosa never visited Sing Sing. Rather, he
relied upon a diagram of the facility from the book Newjack by Ted Conover (Ex. 25). DeRosa did not know the dimensions of the yard and the distance between McCants and claimant at the time of the assault. DeRosa testified that he had wanted the measurements, but he never obtained them.
Other than the one November 9, 1997 incident, DeRosa did not know the number of attacks that had occurred in the yard during the year prior to
claimant's attack. A comparison of the overall figures for the number of attacks at Sing Sing and the number of attacks at the Kross Center revealed that, in 1997, the percentage of assaults per inmate at Sing Sing was 4.8 percent, while the percentage for the Kross Center during the period when DeRosa was warden was 7.5. DeRosa conceded that, despite the best efforts of facility personnel at Sing Sing and Rikers Island, inmate-on-inmate attacks with weapons occur.
In assessing the foreseeability of the attack on
claimant, DeRosa placed emphasis on the November 9, 1997 attack in the yard. In DeRosa's opinion, this attack was critical to the predictability and foreseeability of the attack on claimant. Notably, however, the weapon used in the November 9 attack was never recovered, except for an empty cardboard sheath which was the type used to hold a razor blade. DeRosa criticized the effectiveness of the metal detector at the lower tunnel and testified that, when he was the warden at the Kross Center, if a metal detector was broken, he would have it fixed or have one moved in from another location. Thus, he maintained that, in light of the attack on November 9 in the yard, the malfunctioning metal detector should have been addressed. DeRosa, however, ignored the fact that the inmates also passed through a metal detector at 5 Building en route from the housing units to the yard.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks 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 [emphasis in original]). "[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, 679).
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. The Court does not find the testimony of claimant's expert persuasive and credits the testimony presented by the State regarding the security measures in place on the day of claimant's incident. Particularly distracting from the expert's credibility was the fact that he had never visited Sing Sing; he did not know the dimensions of the yard; or the number of attacks that had occurred in the yard during the year prior to claimant's attack. Additionally, in formulating his opinion, he relied upon regulations which he conceded were not applicable to Sing Sing. While he was admittedly aware that Sing Sing has its own rules and regulations promulgated pursuant to the Correction Law, he did not consider any of these rules and regulations in formulating his opinion. He acknowledged that from his own personal experience he knew directives were important in running a facility; nonetheless he never referred to any DOCS directives in formulating his analysis. His written report referred only to the Commission Regulations and did not discuss any departures from the applicable Employees' Manual. Accordingly, the expert's conclusion that the attack on claimant was foreseeable was unfounded.
efendant presented sufficient evidence to establish that significant security measures had been in place on the day of claimant's attack. Claimant had no known enemies and, during his five years of incarceration at Sing Sing, he never feared being in the yard and went there on a daily basis. There is no mandate that metal detectors be used and the mere presence of metal detectors acts as a deterrent because the inmates do not know whether or not they are functioning properly. Additionally, even without metal detectors, there were other security measures employed such as: correction officer supervision; random pat frisks; and a search of the yard prior to the inmates entering the yard. The testimony established, and indeed claimant's own expert conceded that, despite the best efforts of facility personnel, inmate-on-inmate attacks with weapons occur. The testimony established that inmates can circumvent security measures by throwing weapons over the fence, concealing weapons in body cavities, or making weapons out of undetectable materials.
In sum, the State is not an insurer of inmate safety. Here, despite the fact that an assault on
claimant occurred, there is insufficient evidence to establish that the attack was foreseeable and that defendant was negligent in providing for inmate safety. The Court finds that defendant acted reasonably under the circumstances as they existed.
defendant's motion to dismiss, upon which decision was reserved, is now GRANTED. All motions not heretofore ruled upon are DENIED.[1]

August 24, 2005
White Plains, New York

Judge of the Court of Claims

[1] Defendant is cautioned that this Court mandates a specific page limit on all post trial memoranda absent special circumstances warranting the Court's permission for a party to submit a document of excessive length. Such permission was neither requested by defendant nor granted by the Court in this matter.