Claimant alleges negligent hiring, retention, and supervision and seeks damages
for injuries he sustained during his incarceration at Downstate Correctional
Facility (Downstate). Downstate is primarily a reception facility where inmates
are temporarily housed until they are classified and transferred to a more
permanent location. Claimant had been at Downstate for four or five days when,
according to claimant, on October 31, 2002, Correction Officer Rodney Gladden,
the officer assigned to housing unit 3A, had sexual contact with claimant on
four occasions during Gladden’s 7:00 a.m. to 3:00 p.m. shift. The housing
unit had 36 cells and only one correction officer was assigned to the unit. The
trial of this claim was bifurcated and this Decision pertains solely to the
issue of liability.
Claimant testified that he encountered Gladden for the first time on October
31, 2002 when the officers’ shift assignment changed and he was assigned
to claimant’s housing unit. Claimant went to the officer’s station
early in the day to get a pass. The officer’s station was also referred
to as the bubble because of its plate glass windows surrounding the upper
portion of the area. Claimant stated that he went to the side door of the
bubble and Gladden fondled claimant’s penis and buttocks and they kissed.
Thereafter, claimant proceeded with an escort officer to a meeting with a
correction counselor. Claimant, however, did not report the incident to his
counselor or to the escort officer.
Later that day, claimant purportedly had a second encounter with Gladden in
the slop sink area. According to claimant, Gladden followed claimant to the
slop sink and then kissed claimant and performed oral sex on him. Claimant then
returned to his cell. Claimant did not report this second incident. Claimant
could not recall the details of his alleged third encounter with Gladden.
According to claimant, the fourth encounter occurred between 2:00 p.m. and 2:45
p.m. and lasted approximately 15 to 20 minutes in the slop sink area where
claimant performed anal sex on Gladden. Claimant did not report this incident.
However, at approximately 8:00 p.m. that evening, claimant was interviewed by
Sergeant Mason. At that time, claimant reported the incidents with Gladden.
Claimant also indicated that he had wiped his penis and groin with a paper towel
and had saved the paper towel because it contained Gladden’s DNA and
evidenced his sexual contact with claimant. Claimant requested to speak to
someone from the Investigator General’s Office.
Claimant was immediately reassigned to the special housing unit. The next
morning, he was interviewed by Investigator Elizabeth Ceballos from the
Inspector General’s Office. Later that day, he was transferred to
Sullivan Correctional Facility. Claimant was never issued a misbehavior
James Mason testified that on October 31, 2002, he was the sergeant in charge
of housing 3 complex for the 3:00 p.m. to 11:00 p.m.
In making his rounds, a correction
officer gave Mason a sexually explicit letter written by claimant. The letter
referred to the slop sink area and claimant’s preference to engage in
sexual activity in his cell with the unidentified intended recipient of the
). Mason immediately began an investigation of the matter and
interviewed claimant. Claimant was initially reluctant to discuss the letter,
but eventually revealed that it was intended for Gladden and that Gladden was
the individual with whom he had had the sexual encounters. Claimant reported
that he had something hidden in his cell. Mason secured claimant’s cell
and the slop sink and notified the watch commander.
Mason was not aware of any prior inmate complaints regarding Gladden. He also
testified that it was standard procedure for one officer to be assigned to a 36
cell housing unit with an escort officer for every two cell blocks and that the
staffing had not posed any security problems in the past.
Sergeant Steven Sassi testified that he has been employed by DOCS for 26 years
and has been a sergeant for the last five of those years. He has been assigned
to Downstate for his entire career. On October 31, 2002, Sassi was the area
supervisor for housing units 3A through 3H during the 7:00 a.m. to 3:00 p.m.
tour. He explained that each block had 36 cells with one correction officer
assigned to each block. There was also an escort officer assigned to every two
blocks. He maintained that this was customary staffing. Sassi also testified
that on October 31, 2002, as noted in the logbook, he was on housing unit 3A
making rounds (Ex. 1). The logbook also revealed that Correction Officer Perry
had escorted inmates on that day (id.).
Investigator Elizabeth Ceballos testified that she has been employed by the
New York State Department of Correctional Services (DOCS) for 24 years and has
been assigned to the Inspector General’s Office for 11 years. Her
responsibilities included investigating allegations of sexual conduct between
inmates and staff. She was assigned to investigate claimant’s
In the early morning hours of November 1, 2002, Ceballos reported to Downstate
and interviewed claimant. At that time, claimant told Ceballos that he had had
sexual contact with Gladden. Claimant conceded that he had not complained to
any correction officers or staff before reporting the incident to Sergeant
Mason. Ceballos secured claimant’s cell and retrieved paper towels which,
when tested, revealed the presence of DNA from both claimant and Gladden (Ex.
2). She also reviewed facility logbooks, cellbooks and Gladden’s
personnel folder. There were no prior complaints about Gladden regarding sexual
conduct or inmate abuse. Ceballos did not question Gladden because, inter alia,
he was not on duty. Gladden was placed on administrative leave and resigned
from DOCS in February 2003.
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). In the instant case, there has been no showing that defendant knew
or should have known that Gladden might engage in inappropriate sexual conduct.
There had been no prior complaints regarding Gladden and there was no reason to
believe that he posed any risk of engaging in such conduct. Accordingly, there
is no basis for holding defendant vicariously liable for Gladden’s conduct
on the theory of respondeat superior as Gladden’s conduct was not
foreseeable or a natural incident of his employment (see Judith M. v
Sisters of Charity Hosp., 93 NY2d 932; State Farm Ins. Co. v Central
Parking Sys., Inc., 18 AD3d 859). Rather, Gladden’s conduct was
clearly a departure from the scope of his employment and committed for wholly
personal motives (see N.X. v Cabrini Med. Ctr., 97 NY2d 247
[sexual assault by hospital employee was not in furtherance of hospital business
and was committed wholly for personal motives; therefore hospital was not
vicariously liable]). Further, there was no evidence that Gladden’s
conduct was condoned, instigated, or authorized by defendant (see
Yeboah v Snapple, Inc., 286 AD2d 204 [assault by employee was neither
condoned, instigated nor authorized by employer; therefore employer could not be
held vicariously liable]). Rather, the evidence established that, once
defendant learned of the complained of conduct, defendant responded in a timely
and appropriate manner (see Martinez v Triangle Maintenance Corp.,
293 AD2d 721, 722).
Additionally, on the evidence presented, defendant cannot be held liable under
the theories of negligent hiring or negligent supervision (see State
Farm Ins. Co. v Central Parking Sys., Inc., supra; Well v Yeshiva
Rambam, 300 AD2d 580). There has been no showing that the level of
supervision and staffing in the facility was less than adequate or contributed
to the likelihood that such activity would occur under the circumstances
(see Sanchez v State of New York, 99 NY2d 247). Indeed, Sergeant
Sassi testified that he spent his 26 year career at Downstate and the staffing
employed on October 31, 2002 was customary for the number of inmates in the
area. Lieutenant Mason also testified that the staffing on that day was
standard and had not posed any security problems in the past. Accordingly,
claimant had failed to meet his burden regarding the claim of negligent
supervision (see Judith M. v Sisters of Charity Hosp.,
supra [defendant hospital established it acted with reasonable care in
hiring, retaining, and supervising its employees]).
In sum, upon consideration of all the evidence, including listening to the
witnesses testify and observing their demeanor as they did so, the Court finds
that claimant failed to establish any basis for holding defendant responsible
for Gladden’s inappropriate conduct (see Doe v State of New
York, 267 AD2d 913 [State not liable for alleged rape by state
Accordingly, defendant’s motion to dismiss, upon which decision was
reserved, is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 108458.