THOMAS H. SCUCCIMARRA THOMAS H. SCUCCIMARRA

Synopsis

State not liable for inmate claimant's sudden assault by unknown general population inmates, while held with others in a facility gymnasium under limited supervision during power outage and fire emergency. The court found that while hindsight would show that some of the choices made by State personnel might have been better, the facility was dealing with competing emergent situations, and acted reasonably under the circumstances in following its procedures, and in prioritizing. Immunity also discussed.

Case information

Decision

This claim arises from circumstances surrounding an early morning fire at Sing Sing Correctional Facility on April 18, 2011. Norman Small, an inmate housed on A Block at the time, was evacuated from his cell, and directed to the A Block gym with "several hundred other inmates." [Claim No. 120344]. The claim asserts that there was no lighting and no security personnel present, but for one correction officer by the gym door, resulting in his assault by a group of inmates. When the correction officer observed the "condition [claimant] was in," he "pulled [claimant] to safety" and referred him for medical treatment. [Ibid.]. This decision relates only to liability, after a bifurcated trial of the matter and submission of post-trial memoranda of law.

In addition to his own testimony, claimant offered the deposition testimony of Lieutenant Anthony Theriault, and two documentary exhibits, namely, memoranda from Sergeant Richard Moss and Sergeant Alfonso Orrico to Lieutenant Theriault concerning the evacuation of the inmates during the emergency. [Exhibits 1, 2, 3]. Defendant cross-examined Mr. Small and, after moving to dismiss for failure to establish a prima facie case, presented the testimony of Sergeant Moss, Sergeant Orrico, Correction Officer Daniel Hausrath, and Fire and Safety Officer Noel Morris, as well as several documentary exhibits. [Exhibits A - I].

Mr. Small testified that he had been housed in several different housing blocks at Sing Sing since he arrived there in July 2009. He was housed in A Block, November Gallery, Cell 36 - on the second floor - and had been so housed for over one year ("maybe 17 months") on April 18, 2011. It was a single cell. He explained that there were four floors in A Block ("you have M Gallery, November Gallery, O Gallery, P Gallery" [T-24]), and that there were 88 cells on his gallery, 44 on each side.

At the time of this incident, he had been to the A Block gym to work out or play basketball "maybe a hundred" times. [T-19]. He had also been present at night on a few occasions, and found the lighting generally adequate during the daylight and evening hours.

Prior to April 18, 2011 he was not aware that he had any enemies at Sing Sing, and had never been in protective custody, nor did he seek it after this incident.

On April 18, 2011 between 3:00 and 3:30 a.m. he was awakened when he heard people yelling and smelled smoke. He got up, and got dressed and "30, 40 minutes later, officers began to come" and manually opened his cell. [T-26]. There was dark smoke in the air and there were no lights. Officers were using flashlights to guide people. Mr. Small had a rag over his face to avoid breathing the smoke. Once his cell door was opened, he proceeded to the right out of his cell, walking to the end of the second floor gallery. There were 5 or 6 inmates in front of him and "plenty" behind him. [T-28]. It was "very loud," with "other inmates on different tiers yelling, saying, let them out" and the like. [T-28-29].

An officer at the end of the gallery collected his identification, and told him to proceed downstairs into the A Block gymnasium. There was no lighting on the stairs. At the bottom of the stairway, he said it was "roughly 15, 20 feet" to the gym. [T-30]. One officer's flashlight illuminated the hallway between the stairway and the entry to the gym. When he entered the gym, he "basically felt [his] way around and proceeded to the gym floor, left corner of the gym." [T-31]. There were others behind him, but he was not following anybody. There were no officers inside the gym, no lights inside the gym, and there was no light emanating from any high windows in the gym that he noticed. He thought he was one of four or five people who first entered the gym.

As he stood in the left corner of the gym where he had made his way, it began to get crowded. More inmates kept entering the gym. There was some smoke in the gym, but he could not say whether it was from other inmates smoking or from the fire. He estimated that he had been standing in the gym for "maybe 45 minutes" [T-33] when the assault occurred. He said he was trying to stay to himself in the crowd of "well over 300" inmates, when the "next thing [he] knew, [he] just got hit in the face." [T-34]. Before the assault, during the 45 minutes he estimated that he had been standing in the gym, he heard the sounds of "every-day prison life," namely, "your usual laughter, people talking." [T-35].

As Mr. Small stood, he said "my back was against the corner, and . . . out of nowheres, I just got punched in the face. Me and this individual began to fight, maybe two to three seconds. Then out of nowhere, I feel like, four or five people on me now, so I ran." [T-35]. He heard his assailants say "Let's get him. Hold him." [T-35]. When he ran, he ran "smack dab into a table" and fell. [T-36]. His assailants caught up to him. "One was trying to hold one leg, another was trying to hold another leg. They was trying to pin me to the floor, and . . . that's when somebody cut me on my pupil." [T-36]. Mr. Small was calling out, telling them to "get off of me" but no officers appeared until "Officer Asrack" saw claimant come out of the gym. [T-37]. When Officer Hausrath saw claimant, "[the officer] jumped, called for help, and a Lieutenant Mejia came down." [T-38]. Claimant was escorted out for medical attention.

On cross-examination claimant confirmed that he did not know then, nor could he now identify, his assailants. To his knowledge, he had no enemies. He also agreed that he was unaware of how many officers are on duty at night, because he was usually sleeping, and that after his safe evacuation to the gym, there was at least one officer at the door with a flashlight.

In his deposition testimony, Lieutenant Anthony Theriault indicated he was the assigned watch commander working the 11:00 p.m. to 7:00 a.m. shift from April 17, 2011 to April 18, 2011. [Exhibit 3]. As watch commander, he was the senior ranking official at the facility responsible for the overall running of the facility.

In the early morning hours of April 18, 2011 the lights went out in Lieutenant Theriault's office in Building 8. He and his sergeant called around the facility to try to determine the extent of the power outage, and learned of power outages in "several buildings." [Exhibit 3]. Shortly thereafter, a report of smoke in the special housing unit [SHU] came in from the SHU officer. Sergeant Orrico and Lieutenant Theriault responded to the SHU. They tried to find the source of the fire, discovering in the process that there was a secondary tunnel underneath the housing area. When they gained access to the basement, they saw the smoke conditions, and called for an outside fire response. The SHU and protective custody inmates were evacuated from HBC (the housing unit they shared).

When the Ossining Fire Chief arrived, he recommended that inmates from A Block be evacuated as well. Lieutenant Theriault gave the order for evacuation, and the inmates were relocated to the A Block gym, and an area outside the A and B Block yards, as well as an overflow area for the hospital. Additional officers were requested, and provided from State housing at the facility. Another officer started calling in people from home as well.

Lieutenant Theriault did not know whether there was emergency lighting operating in A Block at the time of the A Block inmates' evacuation, did not know if there was lighting in the A Block gym, and did not recall how many officers were assigned to the gym after the evacuation. The facility generally had an evacuation plan, and copies of such evacuation plans were posted throughout the block, all indicating that the primary location for evacuation is into the A Block gym. The gym is accessed through the back of A Block, with "six stairs" before the entry. [Exhibit 3]. There is "an area with a table and officers stand, and just past there there was a basketball court, a large open area." [Ibid.]. Lieutenant Theriault did not know how many of the 600 inmates housed in A Block were placed inside the gym during the evacuation, and did not know how many officers were posted at the officers' station. He said the power was restored at 10:32 a.m., "went out again" was restored at 11:03 a.m., lost again at 12:03 p.m., until "it was finally restored at 12:10 p.m." [Exhibit 3].

In a memorandum from Sergeant Moss to Lieutenant Theriault, dated April 18, 2011, regarding the power disruption and fire, the sergeant writes that at 3:00 a.m. he was directed by the lieutenant to call the Ossining Fire Department, because of the fire in SHU. [Exhibit 1]. Sergeant Moss describes his activities, mentions Chief Reddy's recommendation that A Block be evacuated, and Lieutenant Theriault's direction that the sergeant "immediately evacuate all inmates from their cells due to smoke." [Exhibit 1]. Sergeant Moss writes: "With the assistance of approximately eleven HBA Officers, we evacuated all galleries starting with K gallery. We secured the inmates within the Gym until capacity and then utilized HBA keeplock yard." [Ibid].

Sergeant Orrico's memorandum to Lieutenant Theriault from the same date, specifically concerns the SHU activity which started with the earlier power outage, and notes that the power went out "at approximately 2:20 am" in Building 8. [Exhibit 2]. He describes calling all the security areas to "assess how wide spread the outage was." [Ibid.]. He states that the power "outage was confined to SHU, HBA, HB7 and the infirmary," and describes instructing the officers to be ready to operate locking ports manually. [Ibid.]. At 2:55 a.m. the sergeant received a call reporting the "smell of smoke in SHU." [Ibid.]. He went to the area with Lieutenant Theriault and made the rounds to try to locate and extinguish the fire. When they discovered the fire in the basement, the outside fire department was contacted and the inmates in SHU were evacuated to the recreation pens in the outside SHU. The Ossining Fire Department arrived around 3:45 a.m., and began their assessment. "The fire was extinguished at approximately 5:30 a.m." [Ibid.].

Claimant did not present any other witnesses or any other evidence on his direct case.

Sergeant Richard Moss, a 22 year employee at Sing Sing, was on duty on April 18, 2011 on a 10:30 p.m. to 6:30 a.m. shift. He said he was assigned as "the chart sergeant" and also assistant watch commander responsible for staffing the facility for Tour 1, the 11:00 p.m. to 7:00 a.m. shift. He said that approximately 45 correction officers are assigned to that shift. Other shifts are staffed differently. Tour 2, consisting of a 7:00 a.m. to 3:00 p.m. and 6:00 a.m. to 2:00 p.m. time frame, contains 300 correction officers, and Tour 3 consists of 150 to 200 officers. In the early morning hours of April 18, 2011 there were four officers assigned to A Block, the usual number assigned during the Tour 1 shift.

With regard to the events as they unfolded on April 18, 2011, Sergeant Moss testified essentially as set forth in his memorandum to Lieutenant Theriault. [See Exhibit 1]. When the lieutenant called him from SHU to warn him about the fire, and to direct him to call the Ossining Fire Department, he did so. While the SHU evacuation was proceeding, Sergeant Moss and the fire chief checked A Block, noticing smoke there as well, when they walked up the steps to the fourth floor and made their way down to the first floor. The fire chief recommended that A Block be evacuated as well.

Once the determination was made to evacuate A Block, the four officers on the block were instructed to come with Sergeant Moss, to manually start opening up cells and escort the inmates to the gym, the designated evacuation area. Sergeant Moss estimated that "approximately 682" inmates were evacuated that night. [T-59]. Two galleries had already been evacuated by the time the second floor galleries - where claimant resided - were evacuated. When the gym was full, Sergeant Moss directed evacuation of the rest of the inmates outside to a small yard.

Sergeant Moss indicated that there are policies and procedures in place at Sing Sing for the evacuation of inmates from A Block during an emergency situation. The policy calls for evacuation to the gym, and then outside. He had four officers to work with, and there were no lights because of the power outage. He said he was able to place one additional officer, Correction Officer Hausrath, who had been pulled from State housing, in the gym door, while others manually opened cells with the sergeant. Based upon the fire and the fact that smoke rises, the chief had recommended that they start at the top floor. The sergeant's goal was "[t]o save the lives of the inmates first, and then the officers." [T-64-65].

Sergeant Moss learned of Mr. Small's complaint of assault later in the morning. He thought he heard that one other inmate asserted he was assaulted in the gym after claimant's complaint was made.

Sergeant Alfonso Orrico, a 19 year Sing Sing employee, indicated he was the Tour 1 field sergeant on April 18, 2011 when this incident occurred. He had completed his first round checking the wall towers and the fencing, when he returned to the watch commander's office and all the power went out. He then called up all areas of the facility to determine what other areas had been affected by the outage, and learned that A Block, Building 7, the SHU and the infirmary had been affected. He went to A Block first, to make sure the manual system was working. There were four officers on A Block, one on each gallery. Because the lights were out, he "pulled an officer from 5 building, and . . . had [his] roundsman come with [him]." [T-86]. About 25 minutes after that, he received a call from the SHU saying there was smoke in the housing unit. He left one officer at A Block, took "the roundsman" [Officer Davis] with him, and reported to the watch commander that there was smoke in the SHU. [T-86].

When the lieutenant, Officer Davis, and Sergeant Orrico arrived at SHU they saw that there was a "considerable amount of smoke" in the SHU, and they tried to locate the source. [T-86]. They ultimately determined that the fire was in the basement. The door to the SHU basement was secured, and they determined to call the outside fire department, and evacuate SHU.

After completing the SHU evacuation, and extinguishment of the fire, and accounting for all inmates, he was called out of SHU by the Superintendent, and reported to A Block. He was told there were a large number of inmates in the A Block gym, and "to go in there to make sure everything was okay." [T-89].

When Sergeant Orrico arrived at the A Block gym sometime before 5:30 a.m. the incident with Mr. Small had already occurred. The evacuation had been completed and Correction Officer Hausrath was stationed inside the gym. Sergeant Orrico recalled that there was "a minimal amount of smoke in the gym" - "most of the smoke had dissipated" - when he arrived. [T-91].

To his knowledge, A Block was fully staffed for the Tour 1 shift. He said "it is a skeleton crew. We're at the bare minimum when it comes to officers, because, obviously, there's no inmate movement . . . So we only had four officers, and there were probably 680 inmates in that block." [T-91]. During that shift, no officer is generally assigned to the gym.

He confirmed that in his view the three officers supervising the disciplinary inmates from SHU could not be moved from their posts, to assist with the A Block evacuation. Sergeant Orrico said he did not know when the assault on the claimant is alleged to have occurred, and only heard about it later. He was not aware of any other assault incident that day.

Sergeant Orrico and other officers received commendations for their work that morning.

Correction Officer Daniel Hausrath was not scheduled to work in the early morning hours of April 18, 2011, but had been called out from State housing, to assist in the emergency fire evacuation. He was immediately assigned to the gym door when he arrived. He had a flashlight, and the door remained open. As he kept his post at the door outside the gym, the claimant ran out of the gym. Mr. Small did not say anything, but rather "ran right into me." [T-105]. The officer "grabbed him, put him on the wall and asked to . . . get him out." [T-105-106]. Officer Hausrath did not recall any conversation between him and Mr. Small. There was another officer present, and "they got him out right away." [T-106]. When Mr. Small had emerged, more inmates were still being evacuated into the gym, but none followed him out. No other incidents occurred. At some point, after the evacuation was complete, Officer Hausrath went inside the gym. Shortly thereafter, Sergeant Orrico entered the gym as well.

Noel Morris, the fire and safety officer at Sing Sing and a 47 year employee of the facility, testified briefly. He conducted fire drills with officers, and trained them in evacuation of inmates during fire or other emergency situations. Prior to April 18, 2011 there had been many, regular, fire drills conducted on A Block. [Exhibit D].

There are also New York State Department of Corrections and Community Supervision [DOCCS] directives applicable to fire emergencies, including DOCCS Directive 4902 [Exhibit H] concerning policy and procedures on evacuations. In DOCCS Directive 4902, the acronym RACE is defined, which provides a guideline for priorities in a fire emergency. [Ibid.]. Officer Morris said that it meant "rescue, activate [fire alarm for evacuation], control [by closing doors and windows] and extinguishment of the fire." [T-115-116]. If a fire cannot be extinguished or controlled internally, an outside fire department is called in, here the Ossining Fire Department. The primary goal in a fire or other emergency situation would be evacuation of the people in the area.

To Officer Morris' knowledge, the A Block evacuation was conducted in accordance with the policies and procedures followed at Sing Sing. The A block gym is one of the designated areas for evacuating inmates. Evacuation from the top floor down was in accordance with policy. [Exhibit E].

Investigation of the fire revealed that it was caused by a power unit in the HBC basement, where a transformer had caught on fire. All the lights went off. The emergency lighting was activated, but Officer Morris said that it lasts approximately 1 ½ hours and then "shuts out." [T-119]. Emergency generators brought in ultimately helped the facility to keep the power on consistently after noon.

Mr. Morris - who lives 33 miles from the prison - got a telephone call about the fire at "about four in the morning" and arrived at Sing Sing "[m]aybe 4:30, five, 4:40, somewhere around there." [T-122-123]. The power was out when he arrived, and there was "just complete darkness in the hallways and everything else." [T-123].

An unusual incident report describes what occurred and who was involved in the power outage and fire emergency, and essentially confirms the witnesses' testimony. [Exhibit C]. Indeed, the facts are not really in dispute here.

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). The Court must look to see if the actions taken by the State were reasonable under the circumstances.

The mere fact that a correction officer is not present at the precise time and place of an assault, for example, does not give rise to an inference of negligence absent a showing that officials had notice of a foreseeable 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.

While actual knowledge with respect to the foreseeability of a given assault "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 . . . what the State reasonably should have known - for example, from its knowledge of risks to a class of inmates based on the institutions's expertise or prior experience, or from its own policies and practices designed to address such risks . . . (citations omitted)" may also be established. Sanchez v State of New York, supra, at 254.

As part of their general obligations, correctional facilities are required to "provide for such measures as . . . deem[ed] necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein." Correction Law §137(2). Courts generally defer to prison authorities in matters of internal prison security [see Matter of Blake v Selsky, 10 AD3d 774, 775 (3d Dept 2004) (administrative segregation)], including the methodologies chosen to assure the safety and security of inmates such as frisk procedures. See e.g. Matter of Shabazz v Portuondo, 260 AD2d 733 (3d Dept 1999), lv denied 94 NY2d 756. The Court's concern here is assessing whether the actions taken by defendant to secure the safety of the inmates were reasonable given the information available at the time, and in consideration of the deference owed to State personnel responsible for managing the safety and order of the facility. See Arteaga v State of New York, 72 NY2d 212, 216 (1988).

The mixed factual scenario presented also touches on the immunity enjoyed by officials for their governmental functions in the provision of fire protection, among the "classic governmental, rather than proprietary, function[s]" [see Valdez v City of New York, 18 NY3d 69, 75 (2011)] requiring that an injured claimant establish that he is owed a special duty born of a special relationship between the governmental entity and the claimant. See also Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 (2013); Estate of Gail Radvin v City of New York, 119 AD3d 730 (2d Dept 2014).

In the early morning hours of April 18, 2011 DOCCS officials were addressing two emergent situations - a power outage of altering dimension and a fire of uncertain severity - while also addressing the fact of a volatile prison population potentially endangered by smoke and/or fire, with the reduced resources available during the overnight shift. Under this viewpoint, claimant would be required to establish the existence of a special duty owed to him, separate and apart from that owed to the prison population at large during this emergent event. See e.g. Miserendino v City of Mount Vernon, 96 AD3d 810 (2d Dept 2012); Rodriguez v Town of Clarkstown Police Dept., 123 AD3d 690 (2d Dept 2014). Claimant has neither alleged the existence of such duty, or established it on the facts of this case.

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 any injury. Based upon a preponderance of the credible evidence, the claimant has failed to establish the elements of his claim. 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 are not reasonably foreseeable.

In this case, there has been no showing that the claimant was known to be at risk either generally, or that his attackers were known or should have been known for violent propensities. Nothing alerted personnel to the altercation, indeed, Mr. Small testified that for the 45 minute period prior to the assault the normal sounds of everyday prison life in general population prevailed. No SHU or other potentially more dangerous inmates were evacuated to the same location. While it is unfortunate that Mr. Small suffered an assault, not every assault occurring while an inmate is under State supervision is a result of negligence. The State's determination to evacuate the inmates promptly was the paramount concern at the time of claimant's assault. While hindsight suggests that a large group of inmates held in an area with poor lighting and limited supervision might erupt into a violent act or acts, on the evidence presented here the officers acted in accordance with procedure and acted reasonably under the circumstances to prevent harm, prioritizing the dangers associated with smoke inhalation and fire.

Accordingly, claimant has failed to establish any basis for State liability, and Claim Number 120344 is in all respects dismissed.

Let Judgment be entered accordingly.

June 25, 2015

White Plains, New York

THOMAS H. SCUCCIMARRA

Judge of the Court of Claims