New York State Court of Claims

New York State Court of Claims
COLON v. THE STATE OF NEW YORK, # 2010-030-035, Claim No. 113780


No liability after trial, where inmate claimant alleged defendant's failure to protect him from an assault by a fellow inmate. Claimant established only that the correctional facility is a dangerous place, and that some inmate-on-inmate assaults had occurred previously in the corridor to the school building, and in classrooms. State established that there were security measures in place, certified by a national organization as adequate. Claimant did not offer contrary credible testimony by an expert on penological standards of care.

Case information

UID: 2010-030-035
Claimant(s): ANTHONY COLON
Claimant short name: COLON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113780
Motion number(s):
Cross-motion number(s):
Claimant's attorney: ANTHONY Q. FLETCHER, P.C.
Third-party defendant's attorney:
Signature date: November 4, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Anthony Colon alleges in his claim that defendant's agents at Sing Sing Correctional Facility [Sing Sing] negligently failed to protect him from an assault by a fellow inmate on March 8, 2007. More specifically, he alleges that while attending a class in the school building, he was assaulted because personnel, although on constructive notice of the potential danger in such classroom, did not maintain adequate staffing and security, and that such negligent supervision allowed such unprovoked assault and resulting serious injuries. This decision relates only to liability after a bifurcated trial on the matter and submission of posttrial memoranda of law.

Anthony Colon testified as set forth in his claim that on March 8, 2007 he was attending the second day of an orientation program at Sing Sing, known as Phase I, in the school building. He had been in prison before and at that point, had been at Sing Sing since February 12, 2007. Although he never reported it to correction personnel, he claimed to also have been assaulted on the A-Block yard on February 18, 2007. He said he reported it only to his girlfriend (by telephone on the yard) and to his "bunkie."[T-39].(1) He also claimed to have talked to an unidentified correction counselor about this prior assault.

On March 8, 2007, he recalled going through two metal detectors on the way to the classroom building from his housing unit. The second one was unmanned he said, as was often the case. He had frequently observed inmates getting weapons past metal detectors, saying "you see it all the time." [T-22]. He said the inmates "put tape around [a weapon]. When you put tape around it, it doesn't make the metal detector go off." [T-22]. On occasion when the metal detector sounded, Mr. Colon's observation was that the correction officer then instructed the inmate to take off his State boots and walk through again. If the alarm went off again, the inmate was then searched with a hand wand.

Claimant estimated that approximately 100 inmates left the housing block and walked through the outside tunnel to the school building. Once in the school building, there were approximately "150 to 200" inmates being escorted by "maybe two" correction officers. [T-24].

Mr. Colon recalled that classroom number 106, where the Phase I program was held, had tables and chairs all lined up against a wall. Windows covered with blinds were on the outside of the room, and there was a small window looking in from the hallway into the classroom, he said. Unlike any of the other witnesses, he remembered there being only one window looking in from the hallway into the classroom. The civilian instructor, later identified as Ms. Tomasina Riddick, Correctional Counselor was in the classroom "for about two minutes," and then left after collecting identification cards of the attendees. [T-27].

Correction Officer Clyde Hall was the officer in charge that morning on the first floor. Mr. Colon recalled the officer coming in to the class room, "talking about himself," and then departing. [T-27]. The inmate facilitator, Rivera, started the movie "Blow" (played on a television), turned off the lights, and left the room. Mr. Colon said it was "dark enough to see the movie good." [T-30].

After watching the movie for approximately 45 minutes, during which time it is asserted that no correction officers, no civilian instructor, and no inmate facilitator was present inside the classroom, Mr. Colon rose to go to the bathroom. As he reached the doorknob of the class door, "somebody ran behind [him]" [T-32] and he was cut by an unidentified attacker, from approximately his right ear to his mouth, requiring stitches and resulting in scarring. Although he turned around in an attempt to identify his assailant, all he could see were a number of inmates walking past him. In a Report of Inmate Injury form he signed, he is reported as saying "I was getting ready to leave the class and somebody ran behind me I felt a punch to my cheek then he pulled [from] front to back." [Exhibit 6].

Thereafter, he emerged from the classroom, was seen by Correction Officer Hall at the "front desk that's by the exit" [T-33]. Photographs taken show a laceration on his right cheek from his mouth to his right ear. [Exhibit 7]. Claimant was escorted away for medical treatment [Exhibit 5], ultimately being treated at an outside hospital with stitches for the six-inch-long laceration, while correction officers sealed the classroom and searched for weapons. None were recovered. [Exhibit A]. After the assault, claimant was placed in involuntary protective custody, having refused voluntary protective custody. [Ibid.].

On cross-examination, Mr. Colon affirmed that he had not advised anyone during intake procedures both at Downstate Correctional Facility reception, and at Sing Sing, that he had any enemies. Despite passing by at least one correction officer on his way through the yard, and an additional four to five officers as he returned to his housing block on February 18, 2007, he told no one that he had just been assaulted. He acknowledged receiving the New York State Department of Correctional Services [DOCS] Standard of Inmate Behavior booklet, but said he was not familiar with protective custody options, or the inmate obligation, contained in such booklet, to report an assault on his person. He said he was afraid of being cast as a "snitch" were he to have reported the February 18 incident. [T-66].

Tomasina Riddick did not have a specific recall of working on March 8, 2007, nor did she know anything about the incident involving Mr. Colon until she was noticed for deposition regarding this claim. She had been working at Sing Sing since March 2003, and had worked as a correctional counselor for 19 years at the time of trial. Accordingly, she testified only as to her general practices, noting that she frequently did not remain in a classroom the entire time a program was being presented, but moved around from classroom to classroom, and to her own office. She noted her role as a correction counselor was to give individual counseling, and group lessons, but not to supervise the security of the inmates. She would walk past the classroom and look in if it was not a session she was directly teaching, or she might sit in and allow the inmate facilitator to lead, saying they liked to use the inmate facilitators to conduct the sessions because of their rapport with the men. The use of inmate facilitators is part of the program approved by DOCS. "At any given point," however, she would come into the classroom.

Ms. Riddick remarked that Phase I "transitional service is a classroom that is potentially dangerous in that the men come from the street, they come from various facilities, they may have issues with one another." [T-87]. She said that violent incidents were "not very frequent" in the school building. [T-88]. During her tenure, she recalled that such incidents could occur anywhere, and had occurred in the hallway, in the tunnel between the main building and the school building, the mess halls, and in transitional services classrooms too. She recalled "at least one or two" incidents where an inmate was cut in the Phase I classroom, and in the cases of assault she remembered, an inmate facilitator was present. [T-109-110].

Shown a photograph of the hallway outside room 106, Ms. Riddick pointed out the door to the classroom, as well as the three large windows providing a view of the inside of the classroom. [Exhibit G]. The door to the classroom itself contains a large window pane as well, toward the "middle of the door" that is oversized as well. [T-99, 111]. Ms. Riddick said that from outside the classroom, there is a clear view in from these windows, even with the lights turned off in the classroom. She said: "You can see clearly. If you can't, you would go inside."[T-99].

Correction Officer Clyde Hall, now retired, but a 21-year employee of DOCS, specifically at Sing Sing, testified concerning his involvement on March 8, 2007, and general procedures as well. As the "officer in charge of the school first floor" he said he is primarily responsible for the care and custody and safety of the inmates, but also has a second officer and another officer working the area. Often, the housing escort officers remain as well.

On March 8, 2007 he was working the 8 to 4 shift. He said there is an electric panel near his desk, which is the first desk in the hallway as inmates enter, and his first task had been to turn on the lights for the building using his keys. There are no functional light switches in the classrooms he said, and all lights need to be turned on (or off) by him. Significantly, he said that even with the lights out "You can see. Even if the lights are dim, you can see." [T-155].

He identified a photograph taken from inside the classroom out to the hallway, showing the large windows described. [Exhibit J]. The photograph also shows that the windows are unobstructed, as stated by the witness,(2) and there are no blinds covering these windows. [See id.].

Officer Hall stated he made the rounds randomly, in no "set pattern", in order to avoid what his experience taught him would be the eventual monitoring by the inmates of a set route or time frame to his rounds. [T-119]. Although he also might sit at his desk, most of the time he would "constantly be moving." [T-119]. Sometimes he would enter the classroom or poke his head through the door, other times he would simply look through the windows. He could not say if there was any facility rule violation invoked should both the facilitator and the counselor be out of the classroom at the same time, but knew he was not required to be inside the classroom at all times.

The second officer on March 8, 2007 was Correction Officer Shona Traylor, whose responsibility was also to "monitor the hallways" [T-244] and to make rounds in a seemingly random fashion to secure the safety of inmates. On the date of the assault she had been working for nine years in the school building. She said she would enter the classrooms "[p]eriodically . . . you don't need to [enter] because the windows to the classrooms are so big, so you could just look in without going in the rooms." [T-246]. In addition to Officer Hall, Officer Kahegis was also there that day, but "wasn't in the area at the time." [T-246].

Asked to describe Officer Hall's performance of his duties, Officer Traylor said "he goes into all the classrooms whether you need - - have to or not, and he likes to talk to the new inmates mostly." [T-247]. She confirmed that Ms. Riddick was "usually going from classroom to classroom because her office was in the room . . . she's all over the first floor. She's in and out of each classroom." [T-252].

Officer Traylor also said that when the classroom lights are turned off, "[y]ou could still see pretty much of whatever is going on. The [reason for turning off] lights isn't so much to make [the room] dark like a movie theater, it's to take . . . the glare off the television. It's not so much to make it cozy as, you know, they're watching a movie." [T-254]. She explained that while she would not be able to see what was written on a blackboard she could see that there was a blackboard, and that people could be seen clearly.

Officer Traylor said she was "by the employee's bathroom" (near Officer Hall's desk in the hallway) when Mr. Colon emerged, injured, from the classroom, but she had not been stationary there for any discernable period of time as suggested by claimant's counsel. She said there are 12 rooms, not all of them classrooms, on the first floor. Asked by counsel for the defendant whether she would stay in one spot for more than 20 minutes, she said "not really." [T-259]. She explained that her desk is at one end of the hallway, and Officer Hall's desk is at the other. She repeated: "I walk up and down the hallway. I may stop at the classroom and lean on the wall or I sit at my desk. It depends on what I feel is going on." [T-259-260].

Lieutenant James Wilson, then a Sergeant, was the "Security Supervisor in the program area of the jail, school, the yard and Tappan area," on March 8, 2007, supervising the officers in those areas. [T-169]. At the time of trial, he was a 26-year DOCS employee. He wrote a memorandum to the watch commander, Lieutenant Ingenito, regarding the incident [Exhibit 2, Exhibit A], and confirmed that both the inmate facilitator and Ms. Riddick were not in the classroom. The memorandum indicates that during the writer's interview with claimant, Mr. Colon "was unable and or unwilling to identify his assailant, however, he did state that during the time of his last incarceration he was a member of the Blood gang, but was no longer participating in the unauthorized group's activities." [See ibid.]. Lieutenant Wilson also confirmed that inmates were able to get weapons through metal detectors, and that the optimal amount of supervision for 75 inmates would be "75 officers" but that (obviously) was not possible. [T-178].

He reiterated the description given by Officers Hall and Traylor of the "infrequent frequent rounds" the assigned officers (Hall, Traylor and Kahegis and others) would make, noted that escort officers would also remain, and that he himself would make random visits. [T-198].

Correction officers are not assigned to remain inside the classrooms for "a lot of reasons" he said. "One would be just simply money. We couldn't afford to put an officer in every classroom. [Also], sometimes in the classrooms, there were discussions that inmates wouldn't be forthright with if they knew a security member was in the room." [T-199].

Lieutenant Wilson confirmed that the Phase I program is one approved by DOCS run by Sing Sing, which was an accredited facility in 2007, pursuant to "standards set by the American Correctional Association. " [T-201]. He confirmed that there is no requirement that the correctional counselor remain in the classroom at all times during the program, and that maintaining security is the primary obligation of the correction officers (as opposed to the inmate facilitators or the correctional counselors). Lieutenant Wilson also said that even with the lights off in the classrooms, there is clear visibility.

Finally, the Lieutenant said that had Mr. Colon reported the prior assault he indicated occurred on February 18, 2007, after investigation he would likely have been recommended for involuntary protective custody if he did not voluntarily accept protective custody.

Captain Neil J. Ingenito, stationed for 26 years at Sing Sing, testified briefly as well. He indicated that he presently oversees the "overall operations of the facility" supervising "12 Lieutenants, 44 Sergeants, [and] 630 correction officers . . . [and] answer[s] directly to the Deputy Superintendent of Security and the Superintendent." [T-263]. One week every month and a half for a week-long period he would take over as "officer of the day" meaning he had "overall charge of the facility," "[taking] all reports in from the Watch Commander, [monitoring] all activities in the facility, and . . . on call 24/7." [T-263-264]. He was watch commander at the time of the assault on claimant.

Asked to describe the accreditation process for Sing Sing by the American Correctional

Association - as a "Max A" facility housing violent felony offenders - he first explained that the

"American Correctional Association is basically a non-profit organization.

It's comprised of former State Commissioners from throughout the United States,

former Deputy Warden[s], Wardens, [and] Administrators of [Sheriffs'] Departments throughout the State. . . [T]he accreditation process takes place every three years

. . . criteria is set up for standards of safe operations of the facility. It's comprised

of what we call 600 mandates that have to be met to be fully accredited by this

organization." [T-264-265].

He confirmed that Sing Sing was so accredited in 2007, and that its most recent accreditation had been two weeks before trial.

Additionally, the Phase I program, including the use of inmate program assistants, is accredited by the American Correctional Association and approved by DOCS.

Based upon his role at the facility, he said that he is familiar with every location there, and every correction officer's station or post, and the duties of same. He said that in 2007, as at present, there were 780 inmates housed at Sing Sing on average, and that staffing remains at "629, 630." [T-266]. Such staffing level is "fully staffed." [Id.].

Captain Ingenito was a Lieutenant serving as Watch Commander on March 8, 2007, reporting directly to the Captain. As the Watch Commander, he ran the facility. "All reporting goes to the Watch Commander. He oversees its normal operations, and the unusual incidents, he's responsible to have investigated and [reports] his findings not only to the superintendent, Captains and [Officers of the Day], but also the Central Office." [T-267].

Captain Ingenito said that on March 8, 2007 there were "two . . . eight-to-four [shift] officers assigned to the first floor" of the school building. [T-268]. The second and third floors also had three more assigned officers, and, "[i]n addition to them, there are four escort officers, two from A-Block, two from B-Block that escort the school rundown. There's also a Sergeant assigned to that area, and there's also a gate officer. " [Id.]. He confirmed that the duties of the first-floor officers were as described previously by Officers Hall and Traylor, to monitor the classrooms and to make periodic rounds, and that officers are not assigned to remain inside the classrooms.

Additionally, "maybe every two weeks" as a watch commander and "weekly" as a Captain he visited the school area where the Phase I program is taught. [T-284]. He observed the "irregular rounds" the staff made, and noted that correction officers are "required to make them at least hourly, and at irregular intervals." [T-284-285]. While not required to enter the classroom, "[t]hey have free access to the whole area, but sometimes they do [enter rooms]. Sometimes they make their rounds and view right through the windows." [T-285].

Captain Ingenito prepared the unusual incident report [UI] regarding Mr. Colon [Exhibit 3], and was generally responsible for the preparation and dissemination of UI reports to the central office in Albany. It was he who authorized an involuntary protective custody recommendation made by then Sergeant Wilson after this incident. [Exhibit 4].

He said that during the three years prior to March 8, 2007 he recalled "four or five" unusual incidents in the nature of inmate assaults "in the general vicinity [of] the school," and further recalled that one incident took place during the Phase I program. [T- 271-272]. Interpreting a UI report for an incident occurring on July 30, 2004, Captain Ingenito said that it appeared to involve a fight between inmates in an unspecified classroom, which started as a fist fight , and then one inmate used a pencil, and that officers entered the room (meaning they were not in the room) when the fight broke out. [Exhibit 13]. Captain Ingenito thought that relative to the rest of Sing Sing, four or five inmate assaults in the school area for a three year period was "a low number" [T-274] reflecting its status as a "low incident" area. [T-275].

Captain Ingenito also confirmed that during the two-step inmate reception at Downstate Correctional Facility and at Sing Sing, inmates are assessed, including whether they have any known enemies. Mr. Colon did not indicate that he had any enemies according to his classification at intake, first at Downstate and again at Sing Sing. The witness confirmed that all inmates are given and sign for the "Standards of Inmate Behaviors Rule Book" at reception, including recidivists such as Mr. Colon.

He confirmed that there is no indication that there was an assault on claimant in the yard at Sing Sing on February 18, 2007, and had there been, in accordance with the staffing of the A-Block recreation yard, it should have been observed and recorded. Five correction officers were on the yard, "plus a Gun Tower [officer] and a gate officer." [T-279]. Additionally, two surveillance cameras overlook the yard and are monitored by the Arsenal Officer during recreation. The tapes would not be reviewed absent a report of an incident however.

The inmate was required to report the incident, which would have resulted in removal from the area and an investigation. Indeed, had the alleged incident been reported as required by the inmate rule book, he would have been segregated and offered protective custody.

Finally, inmates need to surrender an identification card to a correction officer in order to use the telephones on the recreation yard. In order to return to the housing unit, in addition to the five yard officers, Mr. Colon would need to pass by the gate officer on the A-block yard, three more gate officers on the tunnel, "the 5 building gate frisk area . . . the . . . Bypass officer . . . the A-Block entrance gate officer, and ultimately past his Gallery officer, [to] return into his housing unit. So that's eight [officers] I counted." [T-281-282].

On cross-examination Captain Ingenito again confirmed that "the [inmate] facilitator isn't there to watch the inmates. The facilitator is there to teach the class. Who watches the inmates is the staff that make periodic security rounds up and down the hallway." [T-290].

Prior inmate-on-inmate assaults in the school area recorded in UI reports were submitted. [Exhibits 8, 9, 10, 12, 13]. On December 19, 2005, in room 102C, a correction officer observed a fight and broke it up. [Exhibit 12]. On March 15, 2006, an inmate claimed to have fallen off his seat in room 104, but officers observed that he had a "razor-type laceration [approximately] 5" long on the right side of his face." [Exhibit 10]. On July 6, 2006, an inmate reported he had been cut in the school corridor, preceded by an earlier confrontation or threat the day before in the recreation yard. [Exhibit 9]. On August 4, 2006, one of the teachers observed through the classroom window one inmate punching another in room 105 while inmates were watching a movie. [Exhibit 8].

No other witnesses testified.

While the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence. Blake v State of New York, 259 AD2d 878 (3d Dept 1999); Sebastiano v State of New York, 112 AD2d 562 (3d Dept 1985).

More broadly, in order to establish liability on the State's part, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253 (2002); see also Flaherty v State of New York, 296 NY 342, 347 (1947). The Court must look to see if the actions taken by the State were reasonable under the circumstances. The fact that an inmate was able to smuggle some type of a weapon into the school building does not alone provide an adequate basis to find culpable conduct by defendant. See e.g. Colon v State of New York, UID # 2006-029-550, Claim No.102180 (Mignano, J., January 11, 2006). Nor does the mere fact that a correction officer is not present at the precise time and place of an assault give rise to an inference of negligence absent a showing that officials had notice of a foreseeably dangerous situation. Colon v State of New York, 209 AD2d 842 (3d Dept 1994); Padgett v State of New York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711 (1990). "[U]nremitting supervision" is not required. Colon v State of New York, supra at 844.

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent and that such alleged negligence was a proximate cause of his sudden assault by a fellow inmate and his injury. The claimant has simply failed to establish the elements of his claim.(3)

Claimant argues that the facility had constructive knowledge of the foreseeabilty of an assault in his classroom and failed to act reasonably to prevent it. Under the facts presented here, however, claimant asks the Court to find that the State is an insurer of inmate safety, which it cannot be. In this regard, defendant presented sufficient evidence to establish that reasonable security measures had been in place on the day of claimant's attack, while claimant established only that Sing Sing is a dangerous place, and that some inmate-on-inmate assaults had occurred in the corridor to the school building, and in classrooms, previously.

"While [specific knowledge for foreseeability] offers a bright-line test, that line redefines the traditional standard of reasonableness that has long been the touchstone of the law of negligence, and it cuts off consideration of other factors that have previously been found relevant to foreseeability.

What the State actually knew plainly falls within the ambit of foreseeability. But the . . . actual notice test precludes additional consideration of the State's constructive notice -- 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 . . . (citations omitted). Claimant's testimony that the attack came as a complete surprise to him cannot be the measure of the duty of the State, as his custodian, to safeguard and protect him from the harms it should reasonably foresee based on its knowledge derived from operation of a maximum security prison." (emphasis in original) Sanchez v State of New York, supra at 254.

Notably, when Sanchez was tried on remand,

"it was dismissed on the merits, notwithstanding expert testimony that the level of supervision provided in the school building at Elmira Correctional Facility (one officer for over 100 inmates in the maximum security facility) was inadequate and not withstanding proof of the frequency of inmate assaults at the facility. The dismissal was affirmed by the Third Department, [36 AD3d 1065, 1067 (3d Dept 2007)] with the court noting the principle that absent a showing of dangerousness, unremitting supervision is unnecessary, and observing that the claimant's statistics as to the frequency of inmate assaults 'prove only that such facilities are dangerous places where the possibility of inmate-on-inmate assaults exists. Such general proof is insufficient to establish that a reasonable probability existed that this claimant would be attacked at this time and place. In the absence of either actual or constructive notice, defendant is not liable.' " Smart v State of New York, UID # 2007-029-053, Claim No. 98024 (Mignano, J., December 21, 2007) affd 65 AD3d 1218 (2d Dept 2009).

In this case, there has been no showing that Mr. Colon was known to be at risk either generally (as a disclosed current or former member of a gang, or a victim of same [for example see e.g. Di Donato v State of New York, 25 AD3d 944, 945 (3d Dept 2006); Verges v State of New York, UID # 2009-009-208, Claim No. 107755 (Midey, J., December 21, 2009)], or as a victim of a prior assault), or that his attacker was known for violent propensities (indeed an attacker was never identified or found). There has been no showing that the searches conducted that day were inadequate, and in this regard the court does not credit claimant's assertion that one of the metal detectors was unmanned.

Significantly, claimant did not establish that the staffing in the school building or the manner in which the correction officers were utilized to supervise the inmates, was against penological standards of care. Indeed, the very opposite is set forth in the record, in the absence of contrary credible testimony by an expert on penological standards of care in New York State correctional facilities, by the credible and informed testimony of Captain Ingenito and Lieutenant Wilson. The evidence showed that the specific school program was approved for the use of inmate facilitators and civilian instructors, who had no security responsibilities and were not trained for same. The duty of correction officers to maintain the safety and security of inmates was acknowledged unflinchingly. Of greater significance, however, is that according to the witnesses, Sing Sing itself is a correctional facility certified by a national organization that evaluates penological standards of care, including staffing ratios and programs for inmate education. Such accreditation has been acknowledged as part of a basis for finding that penological standards of care are met. See e.g. Vasquez v State of New York, 68 AD3d 1275, 1277 (3d Dept 2009);(4) see also Lamm v State of New York, UID # 2005-032-500, Claim No. 99321 (Hard, J., February 28, 2005).

The relatively low incidence of inmate-on-inmate assaults in the school building, the credited assessment that it is an area of low impact that is adequately staffed, suggests that a reasonably adequate scheme is in place for maintaining inmate safety. Metal detectors, searches, random visits, and observant personnel whose irregular routines had been found to be the optimal method for avoiding creating opportunities for inmate versus inmate conflict are reasonably adequate measures. More generally, the inherent risk of violent activity in a correctional facility housing dangerous individuals does not mandate imposition of liability for inmate-on-inmate assaults that may occur if they are not reasonably foreseeable. Claimant has not sustained his burden of establishing by a preponderance of the credible evidence that the State had actual or constructive notice of the harm that befell him

Based on the foregoing, Claim number 113780 is hereby dismissed in its entirety.

Let Judgment be entered accordingly.

November 4, 2010

White Plains, New York


Judge of the Court of Claims

1. Quotations are to the trial transcript, [T - x], unless otherwise indicated.

2. Except for what appears to be a letter size (8" x 11") piece of paper taped to one of the three windows depicted, which does not restrict the view in any event.

3. The Court notes that 9 NYCRR Part 7000, a regulatory scheme suggested by claimant in posttrial memoranda as a guide for supervisory standards, sets forth "Minimum Standards and Regulations for Management of County Jails and Penitentiaries", and is not applicable to facilities maintained by DOCS.

4. "[C]laimant produced no evidence of any statute, regulation, rule or policy that mandated that the interior of the recreation yard bathroom be subjected to personal or electronic surveillance. To the contrary, the proof demonstrated that the bathroom was accredited by the American Correctional Association and in compliance with all relevant codes and regulations."