New York State Court of Claims

New York State Court of Claims

STOVER v. STATE OF NEW YORK, #2007-018-566, Claim No. 103856


The claim is dismissed. Claimant has failed to prove that the State knew or should have known that Johnson was a danger to other inmates.

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):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 29, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Mid-State Correctional Facility (hereinafter referred to as MSCF),

was injured on December 1, 2000, when he was struck in the head with a bocce ball. He claims that the State negligently allowed another inmate, Raymond Johnson, to remain in the general population despite his violent propensities. The trial was bifurcated and this Decision relates solely to liability. On December 1, 2000, Claimant was in the yard at MSCF talking to other inmates when Raymond Johnson (hereinafter Johnson) approached him. Johnson was carrying a bocce ball in a net laundry bag. Johnson spoke to Claimant about something Claimant allegedly said about Johnson’s hair and black eyes. Claimant didn’t know what Johnson was talking about. Claimant testified that Johnson became very angry and started yelling. As Claimant turned, he was hit in the head near his left temple and he awoke in the infirmary. When questioned by correction officers, Claimant told Sergeant Joseph Moran that Raymond Johnson hit him. Other inmates saw Johnson hit Claimant in the head with the bocce ball he carried in a net bag. Claimant was then placed in involuntary protective custody.

Prior to his incarceration at MSCF, Claimant testified that he and inmate Johnson had served time together in Auburn Correctional Facility. Claimant said he knew about Johnson. He testified that Johnson was known for being a “little crazy” [1] and “he hated white people.” Claimant also testified that Johnson was known as a “bootie bandit” because he engaged in sexual relations with homosexual men.

About one week before the alleged assault, Johnson’s “lover,” Andrew Shulman, went to see Claimant and told him that he was afraid of Johnson and wanted to get away from him. Mr. Shulman said Johnson was physically and sexually abusive. Claimant testified that he told Mr. Shulman that he should go to the “PC” (protective custody) room and talk to an officer about his concerns. It was Claimant’s testimony that although Shulman never asked or indicated that he wanted Claimant’s protection, Claimant thought that Shulman was trying to get his protection.

On cross-examination, Claimant acknowledged that prior to this incident he had been incarcerated for seven years, serving two years at MSCF. During that time, Claimant had never been in a fight with any other inmates, and he had never sought or been placed in protective custody. Claimant knew and described the procedure for obtaining protective custody. He said an inmate would have to tell an officer that his safety was threatened and by whom he was threatened. Claimant had known Johnson for the entire two years at MSCF before Johnson hit him, but did not believe prior to this incident, that Raymond Johnson was a threat to him. He testified that he had no reason to believe he was at risk and didn’t feel that he needed protective custody. If he had felt threatened, he would have sought protective custody but he would not lie to get it.

Claimant called Mary P. Cichon to testify. She was a Correctional Counselor at MSCF during the time in question. Ms. Cichon, in addition to her duties as a counselor, was responsible for changes in classifications and transfers of inmates in the Special Housing Unit (hereinafter SHU). On occasion, when she interviews an inmate, she receives information about the safety of other inmates. She can then recommend involuntary protective custody for an inmate who may be in danger pending an investigation. She met with Andrew Shulman, Raymond Johnson’s lover, in late 2000 regarding the problems Shulman was having at the time. Mr. Shulman was a homosexual, and he told Ms. Cichon that Raymond Johnson had been his protector because he needed protection to survive in the general population. Ms. Cichon testified that Shulman was trying to break off his relationship and distance himself from Johnson. Shulman complained about Raymond Johnson’s attempts to control him. Ms. Cichon testified that from her conversation with Shulman, he seemed annoyed at Johnson but did not fear for his safety. Ms. Cichon noted that Shulman was transferred to a different housing unit to separate him from Johnson.

Mr. Shulman’s transfer record reflects Ms. Cichon indicated that in mid-December Mr. Shulman found someone else to have a relationship with or be his protector.[2] This information came either from Mr. Shulman or the security staff at the facility. Reviews of various records indicate that Mr. Shulman met with Ms. Cichon on November 29, 2000, and told her that he had found another protector “and Johnson threat [sic] him with harm.”[3] She transmitted the information obtained, when she spoke with Shulman on November 29, 2000, to Albany in December 2000. After Claimant was assaulted, Ms. Cichon recommended Shulman be placed in involuntary protective custody and, after a hearing, he was transferred to another facility. Ms. Cichon testified at trial that she had no knowledge of Claimant until after he was assaulted; nor did she know whether or not any other staff members had reason to believe that Claimant was in any danger from Mr. Johnson or anyone else. When asked at trial, she was unaware of an alleged assault on Shulman by Johnson using a can of fish in a net bag a few days prior to his assault on Claimant. She questioned why Shulman did not report the incident. When questioned why she did not do more to find out who Shulman’s new protector was or place both Shulman and Claimant in protective custody before December 1, 2000, Ms. Cichon indicated that Shulman did not present as concerned or fearful for his safety, and she would not inquire as to the name of his new protector. Although inmate Johnson had the reputation for being a “max” prisoner who knew how to not get pushed around, Ms. Cichon did not, prior to the assault on Claimant, consider him to be a particular threat to Shulman or anyone else. She noted that although Johnson was serving a life sentence for murder, his disciplinary history in prison had been sparse. A few inmates had requested protection from Johnson in the past; however, nothing, in Ms. Cichon’s opinion, raised the level of concern for the safety of Shulman or Claimant.

Mr. Johnson was called to testify and was given his Miranda warnings. He did not provide any information relevant to this case.

Andrew Shulman’s testimony by deposition transcript was stipulated into evidence.[4] Mr. Shulman’s testimony was taken at a non-State facility in Queens County. At the time of his deposition testimony, Mr. Shulman was on numerous medications and his memory on several points was vague. He testified that he was hit in the head by Johnson and went to the infirmary for treatment. He was not clear on when this happened. He told someone at the infirmary, whose name he could not recall, what had happened to him and named Johnson as his assailant. He also thought he made a written statement, although he wasn’t sure. When he returned to his housing unit from the infirmary, Mr. Shulman testified that he thought that Johnson should have been placed in the Special Housing Unit (“the box”) but he wasn’t. Shulman was moved to another housing unit away from Johnson. He testified that he was asked, after he was injured, if he wanted protective custody but declined. Mr. Shulman testified that he met with Ms. Cichon but he couldn’t really recall what he told her. He did testify, however, that Claimant was not his protector because he denied even knowing Claimant prior to the December 1 incident. Shulman testified that another inmate, whom he named in the transcript, was his new protector. He testified that prior to December 1, 2000, he never requested protective custody at MSCF, although he was familiar with the request process. He also testified that before Johnson hit him with a can, he did not feel threatened with physical harm.

The Claimant also called Correction Officer Joseph Moran, who assisted in transporting Claimant to the infirmary after he was injured. Claimant was bleeding and semiconscious. Correction Officer Moran investigated the assault. He questioned Raymond Johnson after the assault. Mr. Johnson had already packed his belongings, anticipating his removal to the SHU. Johnson was found guilty of the assault after an administrative hearing. Johnson was not criminally prosecuted; records indicate one of the witnesses who could identify Johnson had an outstanding warrant and failed to appear at the Oneida County Grand Jury.

Correction Officer Moran said that he knew Raymond Johnson’s reputation as a homosexual chaser but had never heard of him being violent. Before the assault, he had no reason to believe that Mr. Johnson would become violent and assault Claimant. Correction Officer Moran had not received any information about Mr. Johnson threatening Claimant, Mr. Shulman, or the safety of anyone else.

Also called to testify on behalf of Claimant was Tyrone Drayton, an inmate, who witnessed the assault. He was approximately 20 feet away from Claimant and could not hear what was said, but could tell by Raymond Johnson’s gestures that he and Claimant were having words. When Claimant turned, Mr. Johnson hit him in the head with a bocce ball he carried in a net bag. Johnson then tossed the ball against the fence and went into the dorm. Claimant was taken to the infirmary by the correction officers.

Mr. Drayton also saw Raymond Johnson assault Andrew Shulman two days before. Raymond Johnson hit Shulman with a can in a net bag. Drayton believed Shulman went into protective custody at that time.

To be placed in protective custody, an inmate must tell a correction officer or counselor that his safety has been threatened and by whom. According to the State employees who testified, the inmate is placed in the SHU immediately while the threat is investigated. Drayton maintained that Shulman was in protective custody before Claimant was attacked.

Lt. Kevin Casey, the hearing officer in charge of the SHU, also testified. He was the hearing officer for Andrew Shulman’s involuntary protective custody placement on December 18, 2000. Lt. Casey heard about Johnson hitting Shulman with something but did not know about it until after Johnson assaulted Claimant.

On cross-examination, Lt. Casey noted that involuntary protective custody was recommended for Andrew Shulman by Ms. Cichon. The process began on December 5, 2000. He did not think Shulman was in protective custody before he held the hearing. Lt. Casey placed Shulman in protective custody because Shulman could not survive in general population without protection from other inmates. The lieutenant then explained the procedures for protective custody and administrative segregation of inmates. He also testified that he had no reason to believe that Claimant was at risk of harm from Raymond Johnson or anyone else before the assault. Although Raymond Johnson had a frightening demeanor and was in prison for murder, those factors were not enough to remove Johnson from the general population.

John Glasheen was called by the State. He was the Assistant Director of Inmate Classification and Movement. As such, he testified about the procedure used to classify or reclassify inmates affecting the security level of their housing (maximum, medium, or minimum). Some of the factors affecting the score by which inmates are classified are: Time until parole eligibility, misbehavior findings, violence while in custody, and escape attempts. In reviewing Mr. Johnson’s assignment to a medium security facility, Mr. Glasheen found it a valid classification.

Mr. Glasheen was questioned about Mr. Johnson’s institutional history on cross-examination. Seven other complaints had been made about Johnson in the prior decade. Mr. Glasheen pointed out that other inmates’ complaints about receiving threats from or being afraid of Johnson could be generated in order to obtain protective custody or for other purposes. Unless these concerns are substantiated after an investigation or a hearing, they do not affect an inmate’s classification score. Although these scores are computer-generated on a regular basis, they are reviewed by Department of Correctional Services’ personnel who have discretion in determining the appropriate score.

The Law
“Having assumed physical custody of inmates...[the State] owes a duty of care to safeguard inmates, even from attacks by fellow inmates” (Sanchez v State of New York, 99 NY2d 247, 252-253; Dizak v State of New York, 124 AD2d 329, 346). Yet, the State does not insure the safety of its inmates. The State’s duty requires only that it protect inmates from the risks of harm that are reasonably foreseeable (Sanchez, 99 NY2d at 255). The Court of Appeals addressed the foreseeable risk issue in Sanchez, 99 NY2d at 254 saying:

What the State actually knew plainly falls within the ambit

of foreseeability. But the Appellate Division 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).

To be successful, Claimant must prove that Defendant knew or should have known of the risk of the assault either because Claimant was a foreseeable victim or Johnson was a foreseeable perpetrator. This, however, does not require the foreseeability of this particular assault. The State may still be found liable if this assault was foreseeable based upon the State’s knowledge from its prior experience as an operator of a penal institution. The State’s knowledge may stem from the known risks to a class of inmates or its failure to follow its own policies or procedures to address such risks (Sanchez, 99 NY2d at 254).
It is Claimant’s position that the State is liable for his injuries caused by inmate Johnson’s assault. Claimant argues that Raymond Johnson, a convicted murderer, with a history as a violent, aggressive inmate, based upon seven requests for keep-separate orders between 1990 and 2000, was improperly reclassified and moved from a maximum security facility to a medium security facility. He assaulted inmate Shulman after being told that he was no longer Shulman’s protector, only two days before his assault upon Claimant, placing the State on notice of Johnson’s potential for violent behavior. Yet, Johnson was not removed from the general population and placed in the SHU after that incident. Additionally, based upon Shulman advising Johnson that he had found a new protector, the State failed to inquire into the identity of the new protector in order to provide the necessary protection for Claimant from what should have been an anticipated attack from Johnson, bearing a “grudge” of displacement.

Despite Claimant’s theory of Johnson’s motivation as the jealous, displaced protector, the reason Claimant was assaulted is, here, left to speculation. Whether Claimant was Shulman’s new protector is not established by the proof. Claimant, himself, indicated that Shulman never asked him to be his new protector, although he thought he wanted him to be. Shulman testified that he didn’t even know Claimant prior to December 1, and that his new protector was another named inmate. Even assuming[5] Shulman told Ms. Cichon before December 1, 2000, that he had broken off his relationship with Johnson and sought Claimant as his new “protector,” there is no proof, based upon that information, she should have known that Claimant was at risk of being assaulted by Johnson. Ms. Cichon testified that Mr. Shulman was annoyed with Mr. Johnson, not fearful of him, just before Claimant was assaulted. Mr. Shulman never requested protective custody, and he did not indicate that Claimant or anyone else was in danger as a result of his affiliation with Claimant. The proof did not establish that the State had reason to know that Claimant was at risk of being assaulted by Johnson. There was no prior hostility between Johnson and Claimant. Claimant, himself, said he had no reason to believe his safety was jeopardized by Johnson or anyone else.

The question turns to whether the State should have had constructive notice of the risk of this assault. Claimant questioned the witnesses regarding Johnson’s Separation System History Display during trial to prove that the State should have been aware that Johnson was prone to committing such an assault and the State failed to take proper precautions. Several inmates had requested separation from Mr. Johnson. Mr. Glasheen, the facility’s Assistant Director of Inmate Classification and Movement, was asked about these complaints by other inmates over the ten years preceding the assault on Claimant. He said consideration must be given to the motivation of the complaining inmates in assessing the information for purposes of inmate classifications. Only meritorious complaints are used. Sometimes, one inmate will allege threats by another, with permission from the offending inmate, in order for the first inmate to get protective custody. Generally, only the results of Tier 1 or Tier 2 Disciplinary Hearings affect inmate classification. Inmates’ feelings or opinions are not considered. In Mr. Glasheen’s undisputed opinion, Mr. Johnson’s assignment to a medium security facility comported with DOCS’ classification policies and was valid.

Based upon Mr. Johnson’s “track record” while in custody, the correction officers who testified that Johnson was not known to be violent or overly aggressive, and Mr. Glasheen’s testimony, Mr. Johnson’s classification from a maximum to a medium security facility was proper. The reality is that there is always some risk of violent behavior that cannot be removed in the context of a prison setting; many, if not the majority of these inmates, have some historical propensity for violence. The question becomes, was there something more here than just a “max” prisoner, was there something about Johnson or Claimant that should have alerted the State of the risk of assault?

Claimant points to Mr. Johnson’s assault on Shulman, just two days before his assault on Claimant, as that notice which should have alerted the facility of Johnson’s propensity for assaultive behavior. Defendant maintains that the State did not find out about the Shulman assault until after the assault on Claimant. The transcript from the Involuntary Protective Custody Hearing[6] for Mr. Shulman indicated a need for protective custody because he was homosexual, not because of an attack by Johnson. This supports Ms. Cichon’s testimony that she did not know about the Shulman attack prior to the assault upon Claimant. Shulman indicated in his deposition testimony[7] that he reported it to someone in the infirmary when he went in for treatment following the assault. Defendant argues that Shulman’s testimony is unreliable due to his medicated condition and less than clear memory. Although the Court cannot fully appreciate Shulman’s demeanor from the words on paper and recognizes that there were many inconsistencies in his testimony, Mr. Shulman’s testimony regarding Johnson’s assault upon him and that he went to the infirmary thereafter was consistent. Reporting to the infirmary for a head injury, in itself, should demand some inquiry into the cause of the wounds. Although there is nothing in evidence that would have alerted the State that Claimant would be the next victim, this was some notice that Johnson could be violent. However, there is also evidence that the State was aware that Shulman and Johnson had an ongoing relationship which Shulman was attempting to end. Thus, the attack upon Shulman potentially motivated by his rejection of Johnson, does not equate with notice that other uninvolved inmates were at risk of assault by Johnson, particularly given the lack of evidence that Johnson was involved in other prior assaults. Although an argument can be made that Johnson should have been placed in the SHU for the attack upon Shulman, the Court must give deference to the State’s control and operation of its penal institutions, when, without the benefit of hindsight, there was no reason to believe that there was an unreasonable risk of attack to other inmates from the knowledge available on November 29, 2000 (Arteaga v State of New York, 72 NY2d 212). Claimant was not previously involved in violent encounters either as an assailant or a victim, and Johnson, although certainly a tough inmate, had no history of violent behavior in prison. Both Claimant and Johnson had been incarcerated at the same facility for a number of years without incident. Even assuming the State knew, or at least should have known about the assault on Shulman, there was no reason to foresee the risk of further assaults (compare Ellison v State of New York, Ct Cl, Hard, J., signed March 14, 2006, Cl. No. 105508, UID# 2006-032-502 [assaultive inmate had three prior citations for disciplinary problems, not enough in a prison filled with problematic inmates]; Commisso v State of New York, Ct Cl, Ruderman, J., signed April 21, 2006, Cl. No. 100981, UID# 2006-010-010 [assault not foreseeable despite two prior assaults in same yard within 9 months]). The Claimant has failed to prove that the State knew or should have known that Johnson was a danger to other inmates.

Therefore, the Claimant has failed to meet his burden of proof and the claim is hereby DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

March 29, 2007
Syracuse, New York

Judge of the Court of Claims

[1]. All quotes are from the trial transcripts or the Court’s notes unless otherwise indicated.
[2].See Exhibit I, document described as “Section IV Transfer Review.”
[3].Exhibit H, Separation System, History Display.
[4]. Exhibit 4.
[5].It is unclear from the testimony whether or not Ms. Cichon knew Shulman’s new protector by name until after Claimant was assaulted.
[6].Exhibit I.
[7].Exhibit 4.