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
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
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
He testified that stabbings were a common occurrence in prison and a part of
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.
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
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
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.
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
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
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
DeRosa never visited Sing Sing. Rather, he
relied upon a diagram of the facility from the book Newjack
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
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
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
, 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 [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
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,
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
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
defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.
All motions not heretofore ruled upon are
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 100171.