New York State Court of Claims

New York State Court of Claims

COMMISSO v. THE STATE OF NEW YORK, #2006-010-010, Claim No. 100981


Inmate-on-inmate attack claim dismissed. The Court found that the security in place was sufficient and that the attack was not foreseeable.

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: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 21, 2006
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 August 8, 1998, he was attacked by another inmate in the A block yard. Claimant did not have any known enemies nor did he know his assailant. Claimant, however, contends that the attack was foreseeable because there had been two prior slashing incidents in the yard. Claimant also maintains that defendant was lax in adhering to its security measures. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that he arrived at Sing Sing on August 5, 1998 and was quarantined in his cell in 5 building. After 72 hours, on August 7, 1998, a sergeant interviewed claimant as to his known enemies. Claimant advised that he had none and was released to general population. At 6:15 p.m., he left his cell and proceeded to the A block yard. He passed through a metal detector in 5 building; however he observed several other inmates walk around the device. Claimant also observed a correction officer randomly stop inmates and scan them with a handheld metal detector. Claimant estimated that two to three hundred inmates were en route to the yard and an equal number of inmates were already in the yard.
When claimant arrived at the yard, there were three correction officers at the Officer-in-Charge (O-I-C) booth. Claimant proceeded to the phone area, which was approximately 20 yards from the booth. The phone area was approximately 20 feet long and five feet wide and was enclosed by a chainlink fence with a five foot wide opening at one end. Inside the phone area, nine phones hung on the wall of a building.
Claimant made a brief telephone call and then spent the next one and a half hours walking around the yard before returning to the phone area. He observed the three correction officers at the O-I-C booth engaged in conversation. The O-I-C booth was higher than the phone area and there was nothing obstructing claimant’s view of the officers. Claimant placed a telephone call. Two to three minutes later, while claimant was on the phone, he was slashed by an unknown inmate. Claimant dropped the phone and attempted to flee; however he was tripped and again slashed. Claimant ran towards the correction officers and reported that he had been cut. A correction officer escorted claimant back to the area in an attempt to locate the assailant. Claimant could not identify his attacker. Claimant was transported to the facility’s emergency room.
Claimant subsequently identified his attacker, Raymond Copeland, from photographs and a videotape. Claimant did not know Copeland and had no history of problems with anyone in the yard; nor did claimant ever feel threatened by any other inmate.
Claimant maintains that this attack was foreseeable because there were two prior incidents in the yard. On November 9, 1997, Correction Officer Stephen Fallon had observed inmates Evans and Ramirez fighting near the phone area and Evans was slashed in the encounter (Ex. 31, p. 32, l. 24; p. 33, l. 4; p. 36, l. 19; p. 37, l. 24; Ex. 16). Two days thereafter, on November 11, 1997, Correction Officer Wayne McCants observed an inmate leaving the yard who had been stabbed in the yard.
On August 7, 1998 Correction Officer Nancy Sielaff was assigned to the 7:00 a.m. shift at the gate to the yard. There was a metal detector ten feet from the gate and it was her responsibility to record the machine’s operational status. At 7:05 a.m. on August 7, 1998, Sielaff noted in a logbook “inconsistent activation” (Ex. 23). Sielaff testified this meant that the metal detector was not working properly and was either too sensitive or too insensitive. Her duties did not include a responsibility to pat frisk all inmates as they proceeded to the yard (T-01/15, p 27).
She explained that any officer, no matter where that officer was stationed in Sing Sing, could detain an inmate at random for a pat frisk (id.).
Lieutenant Thomas Fitzgerald, the relief sergeant in August 1998, testified that he was aware that there had been prior inmate-on-inmate attacks with weapons in the phone area. He testified that there was a tower wall post from which the phone area was visible.
Lieutenant Donald Quinn, an A block Program Sergeant, testified that he interviewed claimant in the emergency room. Quinn noted in his memorandum that claimant reportedly did not know his assailant; had no known enemies; had no affiliations with any known gangs; and had not had any problems since his arrival at Sing Sing.
Captain James Cavaleri testified that, as the field lieutenant on the date of the incident, he responded to the yard and was present during a search for weapons. None were recovered.
Correction Officer Tanor Travis testified that on August 7, 1998 he was assigned to the O-I-C booth in the yard. Before the inmates entered the yard, he searched the entire yard for contraband. He looked for holes along the fence and freshly dug up dirt. He inspected the bleachers, the handball court, the basketball court, the phone area, the weight area, the television area, and the showers and bathrooms. Nothing suspicious was found.
At 6:15 p.m., inmates began arriving at the yard. Travis estimated that, between 6:15 p.m. and 8:50 p.m., approximately 250 inmates and three correction officers, including himself, were in the yard. He characterized the number of inmates as moderate and dispersed throughout the yard. He explained that correction officers do not have posted positions; rather they continue to make rounds of the yard. As the O-I-C, Travis was responsible for ensuring that the officers were performing their duties. Travis was also responsible for filling out the logbook, making rounds and observing the inmates.
Travis testified that the assistant watch commander determined the number of correction officers assigned to the yard and the need for additional staffing was determined by the program sergeant in A block. Travis could also request additional staffing as the need arose. Travis did not recall making any such requests on August 7, 1998.
Travis explained that use of the telephones was self-regulated. Only nine inmates were permitted in the area and, if a greater number of inmates surrounded the phones, then a correction officer would be dispatched to limit phone usage to 10 minutes. Travis did not recall a large number of inmates gathering on August 7, 1998.
Travis testified that all areas of the prison were dangerous and he did not consider the yard to be particularly problematic. He conceded that he and other correction officers had discussed the need for a wall tower in the yard to better observe the television area, the basketball court and the weight area, which were not as readily visible as the phone area. Travis explained that, contrary to the other Sing Sing yards which were visible from wall towers, the A yard was not so situated.
Travis recalled that at 8:50 p.m. on August 7, 1998, he was at the O-I-C booth when he observed a commotion at the phone area. It appeared that claimant had tripped on his way out of the phone area (T-01/20, pp 36-37). As claimant proceeded toward Travis, at a distance of approximately 10 yards, Travis could see claimant had been cut on his face (T-01/20, p 41). It took claimant approximately three seconds to walk from the phone area to the O-I-C booth (T-01/20, pp 38, 40).
Claimant’s post-trial memorandum summarizing Travis’ trial testimony is somewhat incomplete and taken out of context; therefore the Court has quoted fuller portions of Travis’ trial testimony:
Q: When you say it looked like somebody was walking out of the phone area and tripped, did you actually see the [gentleman] or the person trip?
A: I’ve seen him stumble, yes.
Q: And did you see what caused him to stumble?
A: No.
Q: Did you have a clear unimpeded view of this person?
A: Well, there’s a fence that surrounds the phone area so, no.
Q: Okay. Was there anything else obstructing your view of this inmate other than the fence that you just told us about?
A: No.

(T-01/20, p 37). Travis and his partner then proceeded toward the phone area with claimant in an attempt to locate claimant’s attacker; he was not found. Claimant was then taken to the emergency room. Travis testified regarding his responsibilities as the O-I-C on August 7, 1998:
Q: Whose responsibility is it to determine where the officers go in the A Yard during [the officer’s] shift on or prior to August 7, 1998?

A: It’s nobody’s responsibility.

Q: What is the officer[-]in[-]charge[’]s responsibility with regard to the disbursement of manpower in the A Yard during his shift watch?

A: Just to make sure everybody is making rounds.

Q: Now did there come a point in time that you observed the number of inmates in the phone area that evening at approximately 8:50 P.M.?

A: No, there wasn’t a lot of inmates around the phone area that day so I didn’t pay any particular attention to it.

Q: So you weren’t paying any particular attention to the phone area, is that what my understanding of your testimony is, or you weren’t paying particular attention to the number of inmates in the phone are[a]?
Mr. Healey: Objection.
A: To the number of inmates.

The Court: Overruled.

Q: Did there come a point in time when you made an assessment as to the number of inmates that were in the phone area on or about 8:50 P.M. that evening?

A: No.

(T-01/20, pp 35-36).

Q: And to the best of your recollection, Officer Travis, where were the other two CO’s at approximately 8:50 P.M.?
A: One was standing next to me. I’m not sure where the other one was.
Q: Were you conversing with him?
A: Yes.
Q: While you were conversing with him, where were you looking?
A: In the yard, all over the yard.
Q: Did you and this other officer ever make eye contact during the course of these discussions that you were having at approximately 8:50 P.M.?
A: Yes.
Q: Okay. For how long was your eye contact?
A: I don’t know.
Q: How long prior to the incident was your eye contact?
A: I don’t know.

(T-01/20, pp 32-33).

Q: When was the last time you remember seeing the other officer that evening prior to the incident?

A: I don’t even remember who the other officer was. I mean, this was a long time ago. I’m not sure.

(T-01/20, p 34).
Upon listening to Travis testify and observing his demeanor as he did so, the Court finds that Travis was candid and forthright and testified to the best of his recollection. Claimant’s summary of Travis’ testimony set forth in the post-trial memorandum infers more than what was conveyed. Specifically, the Court does not find, as claimant argues, that Travis was so engrossed in conversation that he was not maintaining a watchful eye on the inmates, the phone area, and the rest of the yard.
William J. Connolly, Deputy Superintendent of Security at Sing Sing, testified that he has been employed by the New York State Department of Correctional Services (DOCS) since 1978 and has held his current position since December 1997. He is responsible for the overall security at the facility which is characterized as a maximum security prison housing 2,200 to 2,400 violent felony offenders. Recognizing the violent nature of the inmate population, Connolly testified that his goal was to keep Sing Sing as safe as possible for the inmates, the staff and the volunteers. He explained that in maximum security facilities there are always security issues and a major focus is the search for weapons.
Connolly detailed the numerous procedures used for checking inmate contraband prior to reaching the gates of 5 building. First, all metal in the facility is controlled. Second, cells are randomly searched and inmates are subjected to random pat frisks and correction officers use handheld metal detectors and ion scanning. Third, when an inmate is found with a weapon, he faces a Tier III disciplinary system. Fourth, the penalties imposed on an inmate are publicized throughout the prison to further deter such activity. Fifth, some inmates are targeted for closer inspection as part of a central monitoring system. Sixth, correction officers are trained to observe inmates with an altered gait who may be concealing weapons. Seventh, it is noted when and with whom particular inmates congregate. Based upon his 27 years of experience with DOCS, Connolly testified that the procedures he described were standard in any correctional facility in New York State.
Connolly described the route inmates traveled from A block to the yard. They proceeded along aboveground corridors to 5 building and then down additional corridors, passing the school area, before reaching the yard. They walked through one metal detector at 5 building and another near the school. Connolly characterized the metal detector in the school corridor as a poor location because it was subject to climatic changes. However, he did not consider this second detector a priority because the inmates would have already passed through the 5 building metal detector.
Connolly described the phone area as congested and potentially problematic. To address overcrowding, time on the phone is limited and the correction officers maintain a watchful eye of the area. Connolly testified that according to the plot plan, generally three correction officers are assigned to the yard.
The number of officers assigned is adjusted based upon various factors which include: information obtained from confidential informants; the mood of the facility; and the number of inmates present.
From the time Connolly arrived at Sing Sing in December 1997 through August 1998, there were numerous layers of security in place to prevent slashings in addition to Sing Sing’s zero tolerance to drugs and stiff penalties imposed when they are found. He stressed the importance of enforcing the inmate rule book with its consequences for misbehavior. Slashings, he explained, were addressed through a Tier III Hearing System which can result in increasingly higher levels of penalties, including the reduction of good time credits. This system is explained to inmates at their initial orientation to the facility. Correction officers are trained to search cells, conduct pat searches, and other searches of the facility. Additionally, the officers are trained to educate inmates as to alternatives to violence. Connolly also tries to encourage the seasoned inmates to warn the newer inmates that sanctions will be imposed. Criminal prosecutions are also pursued against perpetrators of attacks, the Special Housing Units are used as punitive measures, and mentally disturbed inmates are treated differently. According to Connolly, by placing inmates caught with weapons in the Special Housing Unit, other inmates are deterred from such behavior. Confidential informants are also used to discover weapons.
Connolly testified that all of these efforts have been standard operating procedure at Sing Sing. He explained that more than 500 standards must be met for accreditation and if there is a failure in any one area, the facility will not be accredited. Despite its accreditation and security measures, Connolly conceded that incidents continue to occur. He explained that of the 70 correctional facilities in New York State, only five are maximum security institutions and Sing Sing’s population includes the most violent inmates who are serving long sentences. The goal is to prevent all attacks. However, Connolly noted that inmates fashion weapons out of ordinary items, such as paper clips and Bic pens. Thus, he reasoned that, it is virtually impossible to prevent all attacks in a maximum security prison, short of locking all the inmates in solitary confinement.
Sergeant Marc Armstrong testified that commencing in September 1997 and continuing through the date of the incident, he was a correction officer at Sing Sing assigned to the lower school tunnel. As part of his duties, he was responsible for testing the walk-through metal detector in the lower tunnel and recording its operational status in a logbook. The metal detector logbook revealed that on January 2, 1998 Armstrong noted, “inconsistent activation” (Ex. 23). He explained that “inconsistent activation” meant that the machine was either too sensitive or did not detect the presence of metal. On January 8, 1998, a work order had been placed for the repair of the device. On January 9, 1998, Armstrong wrote that the alarm would not reset and he unplugged the unit. The logbook further indicates that the metal detector was not operating properly from January 10 through January 18, 1998 and from January 20 through August 7, 1998 with the exception of January 19, 30; April 14, 15, 20, 21; May 22; June 5, 16-20, 22, 23, 30; and July 20, 1998. Armstrong testified that he advised his area supervisor of the problem. Armstrong made no inquiries concerning the status of the outstanding work order because his duty was only to report the malfunction.
Armstrong emphasized that the metal detector was only one of the tools employed to detect weapons. Hand scanners, pat frisks and area searches were also utilized. He further stated that he never recalled any occasion when the hand scanner was not functioning.
Robert DeRosa, who was employed by the New York City Department of Correctional Services (NYC DOCS) 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 and as compliance chief for the NYC DOCS before 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 seq). Specifically, he maintained that Section 7003.4 of the Commission Regulations, referring to “active supervision” of inmates in activities outside the housing unit, should apply to Sing Sing even though that section addresses local rather than State facilities. In his view, the prisoners that come through the New York City system are the same as those in the State system. As defined by Section 7003, active supervision means that facility staff should be available to respond immediately to a problem; inmates should have an uninterrupted ability to communicate with staff; and correction officers should be alert at all times. DeRosa maintains that Sing Sing did not employ active supervision on the day of claimant’s attack.
In DeRosa’s view, in a maximum security prison, like Sing Sing, it was reasonably foreseeable that assaults with weapons would occur in areas where large numbers of inmates gathered, particularly if inmates think they are not under constant supervision. Consequently, correction officers must thoroughly report and investigate every incident. He reasoned that, if the administration fails to emphasize the correction officers’ duties, the officers will not feel responsible for safeguarding the security of inmates and attacks will continue. He maintained that inadequate reporting gives inmates the sense that they will not be identified or reprimanded if they attack another inmate. He also maintained that, if metal detectors are not working properly, correction officers will conclude that they are not important and inmates will believe security is not a concern.
From reading the reports of claimant’s assault and the examinations before trial of personnel involved, DeRosa opined that the administrative staff had a general malaise or acceptance of the inevitability of inmate-on-inmate assaults. He noted that correction officers were left to their own discretion in patrolling the yard, rather than being positioned at fixed posts, and that the officer-in-charge did not know the locations of the patrolling officers in the yard. DeRosa concluded that defendant’s supervision and control in the yard was contrary to penalogical standards as reflected in the Commission Regulations as well as in the requirements set forth in Sing Sing’s own employee manual (Ex. 17). According to DeRosa, the correction officers on duty on August 7, 1998, allowed their attention to be diverted and failed to prepare comprehensive written reports of the incident (Ex. 17, ¶¶ 7.1, 7.6, 9.5).
DeRosa also noted that there had been a prior assault on an inmate in the telephone area on November 9, 1997 (Ex. 16). DeRosa opined that claimant’s attack could have been avoided if the administration had responded to this previous incident and had repaired the metal detectors. Even after the November attack, there was no response to repair the metal detector; enhance pat frisking, or increase the level of supervision in the yard. Instead, DeRosa maintained, the correction officers relied upon ineffective pat frisks which permitted weapons to be brought into the yard undetected. DeRosa stated that administrative personnel should have designed a plan to post correction officers in specific zones within the yard, particularly near the phone area.
In preparing his report, DeRosa never visited Sing Sing and did not know the number of wall towers from which A block yard could be monitored. Rather, he erroneously assumed that the expressed need for a wall tower to monitor the A block yard meant that there were no wall towers with a view of that yard. DeRosa testified that the facilities on Rikers Island are subject to the Commission Regulations and he considered them to be relevant to Sing Sing. He conceded that, despite adherence to such regulations, in 1990 there was a riot at Rikers and weapons were also recovered when he was warden at the Anna M. Kross Center. The weapons were mostly metal and some plexiglass. He acknowledged that, regardless of the standards and regulations imposed, inmates can make weapons out of anything, such as sharpening pieces of metal from their beds or from pieces of the building. Virtually every part of construction, whether metal or not, is a potential weapon that may be used by an inmate and might not be detected by a metal detector or handheld scanner.
DeRosa criticized Travis’ failure to intervene in the attack. DeRosa reached this conclusion without knowing how far away Travis was from claimant, the duration of the attack, or if there were any correction officers within 30 yards of claimant. DeRosa conceded that under the Commission Regulations, neither a minimum distance nor constant supervision was mandated, nor was there a requirement that a correction officer watch every inmate at every moment. Further, there are no instructions in the Commission Regulations specifying the use of metal detectors. In his analysis, DeRosa quoted Deputy Superintendent Connolly as characterizing the entire yard as problematic; however Connolly’s examination before trial testimony referred only to the phone area as problematic. DeRosa refused to draw a distinction between the yard and the phone area because he stated DOCS combines the two areas in their statistics regarding violence.
In DeRosa’s view, Sing Sing’s management committee should have considered the adequacy of the electronic equipment, staffing levels, search procedures, post assignments and the overall security plan in the facility. The fact that a weapon was introduced into the yard on August 7, 1998 indicated to him that the level of vigilance was not sufficient to prevent an attack. DeRosa conceded that no New York State security directive was violated on August 7, 1998.
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 risks of harm include 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]). 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).
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. Significantly, DeRosa did not visit Sing Sing and his unfamiliarity with the facility and the security measures employed detracted from the reliability of his analysis; thus rendering his conclusions unsubstantiated. Rather, the Court finds that defendant presented sufficient evidence to establish that the State had employed numerous layers of security on the day of claimant’s attack. Notably, claimant had no prior encounters with his attacker, nor did claimant have any reason to believe he would be the subject of an attack. Connolly, the Deputy Superintendent of Security, testified at great length as to the particular measures taken to maintain the facility’s safety. This is no mandate that metal detectors be used and inmates are capable of fashioning weapons from ordinary non-metal objects. Claimant focuses on the inconsistent activation of the metal detector located before the gate to the yard; however that was the second metal detector en route to the yard and there was no evidence of any malfunction of the first metal detector. Moreover, the mere presence of a metal detector, whether functioning or not, would presumably deter metal weapons because the inmates would not know if the detectors were in fact functioning properly. In any event, there was no evidence that claimant was slashed with a metal object. Indeed, claimant’s own expert conceded that, despite the best efforts of facility personnel, inmate-on-inmate attacks with weapons occur. Claimant’s expert further conceded that no New York State security directives were violated on August 7, 1998.
“[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). The Court finds that the security measures and supervision of the inmates in the yard was not negligent and that defendant acted reasonably under the circumstances as they existed. Contrary to claimant’s argument, two prior incidents in the yard within nine months, does not, under the circumstances of this case, render the phone area prone to attack. Claimant had no known enemies and no reason to believe he would be the subject of an attack. Additionally, contrary to claimant’s presentation in his post-trial memorandum of Travis’ trial testimony, the Court finds that Travis maintained a watchful eye over the phone area and the yard was sufficiently patrolled and monitored by the other officers. Thus, the Court finds the incident was not foreseeable (see Silvera v State of New York, 306 AD2d 269).
Accordingly, defendant’s motion to dismiss, upon which decision was reserved, is now GRANTED. All other motions not ruled upon are DENIED.

April 21, 2006
White Plains, New York

Judge of the Court of Claims

[1]. References to the pages of the trial transcript are preceded by the letter “T” and the date.
[2]. The plot plan is a diagram of staffing patterns for the facility generated by the central office.
[3]. The Court permitted DeRosa to testify as an expert over defendant’s objection.