New York State Court of Claims

New York State Court of Claims

SHEARIN v. THE STATE OF NEW YORK, #2007-028-011, Claim No. 108798


Claim arising from inmate-on-inmate assault is dismissed after trial as Claimant failed to prove that the State knew or should have known that Claimant was at risk of being assaulted but failed to provide Claimant with reasonable protection.

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:
BY: JOSEPH F. ROMANI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


By this action, Claimant Cainion Shearin seeks compensation for personal injuries suffered when he was attacked by other inmates at Elmira Correctional Facility (hereinafter “Elmira”) in December 2001 and January 2002.[1]

Both attacks occurred in Elmira’s gym yard during a period when the inmates were free for recreation; the first attack occurred on December 12, 2001, at the time, Claimant was housed in C Block, a housing unit that holds over 200 inmates in six to eight galleries. He had just entered the yard, having come from the facility barbershop, and was standing near the correction officer’s observation “bubble” when either one or two people lunged at his back. He was able to take one or two steps but then fell to his knees. He attempted to get up and to turn to see who was attacking him, but was unable to do so. He knew that he was being punched but wasn’t aware at the time that he had also been stabbed. The fight lasted about five minutes, during which time a crowd gathered and the officer inside the bubble flashed his light. As the officer arrived at the fight location, about five other officers arrived also. They broke the combatants apart and someone observed, “One of them is bleeding.” It was at that point that Claimant realized he had been stabbed. Up until that point, he had been unaware of his more serious injury, possibly because he was “pumped up” on adrenaline and relieved that the fight was over.[2]

Claimant was taken to the infirmary where his wounds were treated, and about an hour later he was interviewed by a correction officer investigating the incident. He was unable to tell this officer the identity of his assailants, and when he later learned that they were an Inmate Smith and Inmate Douglas, he realized that he had not known either one previously. Claimant was unaware whether a weapon had been located by prison officials. He told the officer that he had not had any weapons and consented to a search which revealed no weapons.

Although Claimant steadfastly asserted that he had been the victim and was assaulted by the others, a misbehavior ticket was issued charging him with fighting and disobeying a direct order. Claimant stated (and his statement was later supported by correction officers who testified) that even an innocent party involved in a fight will automatically be charged with fighting. Claimant was ultimately found guilty of both counts and sentenced to 30 days keeplock, with loss of phone, packages and commissary.

The officer interviewing Claimant also told him that he would not be going back to his cellblock but instead would be assigned to involuntary protective custody. Claimant testified that he wanted the protection this would give him but, as he informed the officer at the time, he had just been denied parole by the Parole Board and needed to meet certain program requirements in order to ever be paroled. At the time, Claimant was on the waiting list for those programs. His understanding of protective custody at that time was that he would be isolated from the general population, confined to a cell for 23 hours, and then given one hour recreation, which would take place in a “cage” with other PC inmates, all of which would make him unable to participate in programs. Consequently, he had to weigh the safety afforded by protective custody against his desire to satisfy the Parole Board requirements and perhaps qualify for parole. Claimant testified that he told the officer about his parole dilemma but never said “I don’t want to go to IPC.” When given a protective custody waiver form (Exhibit B), he signed because he knew by then he was going into involuntary protective custody in any event, and he didn’t want to appear to be a “softy” by asking for the protection.

Claimant was transferred to protective custody and stayed there until January 24, 2002. During this time he was unable to participate in any programs, although he could go out to receive medical treatment and to attend the hearing on his misbehavior report. On January 24, an IPC hearing was held which resulted in Claimant being released from protective custody. Claimant testified that he had asked to be returned to general population at that time. Claimant was returned to C Block, although this time he was assigned to a different company or gallery.

On the day after his return to general population, January 25, 2002, Claimant went to evening recreation, in the same yard where he had been assaulted previously, and was once again attacked shortly after he entered the yard. This time, he testified, there were three or four inmates, one of whom he later learned was the same Inmate Douglas. This attack occurred in essentially the same location, in front of the bubble, and happened while he was standing talking to another inmate. This time he realized that a shank (a pointed, knife-like weapon made by inmates from various materials) was being used, as he felt those cuts, on his neck, face and head, in addition to receiving blows to his head and upper body. When he was examined after the fight they found four or five puncture wounds caused by a shank. As the fight continued, Claimant fell to the floor, where he was kicked and punched. After about five minutes, he estimated, correction officers interceded and Claimant was once again escorted to the infirmary, where he received stitches in two of his wounds. Emotionally, he stated, he was in shock.

On cross-examination, Claimant acknowledged that during his time in incarceration, before the events giving rise to the claim, he had been involved in 24 disciplinary hearings, including several for weapons possession (Exhibit F). Claimant confirmed that when he entered Elmira, he informed officials that he had no known enemies, and he repeated that he had not known Douglas prior to the first assault.

Testifying for defense was Correction Officer Brian Shutt, who stated that on December 12, 2001 he was assigned to the mosque, which was located about 70 yards from the gym yard. When he received a radio report about fighting in the yard, it took him 30 to 40 seconds to get there. When he arrived, he saw three inmates rolling around, fighting and hitting one another. Other officers also appeared and Shutt grabbed Claimant, putting him in a body hold to break up the fight, while other officers took the other two inmates into custody. Shutt then observed a 5 inch plexiglass shank on the ground under where the inmates had been fighting, and he stated at trial that it could conceivably have come from any of the three inmates. The following day, he received a tip that a second shank had been thrown into an adjacent area and when he checked he found it.

Shutt, who had been the officer to handcuff Claimant, observed blood on him but he did not observe any on the other two inmates. He also confirmed that any inmate involved in a fight would be written up for misbehavior, whether or not they were the aggressor. Shutt stated that he had no involvement in the decision to place Claimant in protective custody and had no personal knowledge of the December 2001 incident.

Correction Officer David Richards, Jr. testified that he had been assigned to the shower area of the gym on January 25, 2002, on the 3:00 to 11:00 p.m. shift. There were approximately 80 to 90 inmates out for recreation that evening, and 9 to 10 correction officers were in the general area. He was called when the fight broke out, and when he arrived at the scene, he observed two inmates striking each other about their faces with closed fists. As far as he could tell, the only people fighting were Claimant and the person who proved to be Inmate Douglas, and neither of them appeared to have any weapons. A third inmate, Devonish, who was standing behind the two combatants, was holding a 5 inch long, 1.5 inch wide plexiglass shank. He was not at that point involved in the fight, and when another correction officer told him to drop it, he did. Richards stated that after the fight was broken up, another plexiglass shank – 5 inch long, 3/4 inch wide – was recovered from the floor near the fight scene.

When the two combatants were given a direct order to stop fighting, they complied. Claimant was out of breath, and C. O. Richards was able to observe wounds to the back of his head: a puncture wound and two lacerations. Douglas, he said, was not bleeding. Both inmates were pat-frisked and escorted to the infirmary. Richards, who had had no contact with either Claimant or Douglas prior to this event, completed a misbehavior report (Exhibit 8) following the incident that charged Claimant with fighting. Richards also spoke with the investigating officer after this event and was aware that as a result of that investigation, it was concluded that Inmate Douglas had possessed a shank and was, most likely, the aggressor (Exhibit 18).

Lt. Christopher Pinker, a 21-year employee of DOCS, served as a sergeant at Elmira Correctional Facility during the time period in question. He testified that he was familiar with both of the incidents involving Claimant. Prior to the first one, the December 2001 incident, he had no knowledge of any problem between Claimant and Douglas. He did not witness that incident but was aware that afterwards, Claimant was put into protective custody. Inmate Douglas was not placed on Claimant’s “enemies list” and there was nothing to suggest that Claimant had requested he be listed as an enemy. If he had been so listed, they would be placed in different housing blocks, but where there is simply a fight between two previously unrelated inmates, they are not automatically considered to be “enemies”.

With respect to protective custody, Lt. Pinker stated that each designation of protective custody status is reviewed every 30 days. The population of Elmira at the time in question was approximately 1,700 inmates. For this number there were approximately 60 protective custody cells available. Because there were only a limited number of protective custody spaces available, a situation has to be extremely grave before correction officers will place someone in involuntary protective custody.

Lt. Pinker was more involved with the January 2002 incident. He was called to the fight scene, and by the time he arrived, there were only two inmates, Claimant and Inmate Douglas, fighting. When the fight was stopped, no weapon was found on either inmate, but there was a shank, with blood on it, on the ground between the two of them. Douglas was not hurt but Lt. Pinker had observed blood on his hands and shirt; Claimant had several cuts and was bleeding. Lt. Pinker noted that Claimant did not choose to cooperate with the investigation of this incident and would not name his assailant. Nevertheless, the investigation revealed that it was Douglas who had been the aggressor in the fight and that he had attacked Claimant while armed with a shank (Exhibit 9). This led Pinker to conclude that Douglas had also been the assailant of the December 2001 incident (Exhibits 18, 19). Following the January fight, Claimant was again placed in protective custody (Exhibit 14).
It is well settled that the State, which has "assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can,” owes a duty of care to safeguard the inmates in its penal institutions, even from attacks by fellow inmates. That duty does not, however, render the State an insurer of inmate safety. Rather, “the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable" (Sanchez v State of New York, 99 NY2d 247 [2002]). To establish liability in an inmate assault case, a claimant must prove one of the following: (1) that 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) that 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) that the State had ample notice and opportunity to intervene but did not act (id.).

There was no evidence presented to indicate that Douglas had a known history of violence against other inmates, and there is no dispute that correction officials acted promptly when they became aware that a fight was underway. Consequently, for the State to be liable in this situation, Claimant must prove that correction officials knew or should have known that he was at particular risk of being assaulted but failed to provide him with reasonable protection.

The primary argument of Claimant’s counsel is based on the assumption that Claimant wanted to stay in protective custody at the hearing held on January 24, 2002. At trial, however, the impression left by Claimant’s testimony, on direct examination by his attorney, is that he had in fact requested that he be released from protective custody.[3]
Q: Did you also following [disciplinary hearing] have a hearing relating to your placement in protective custody?

A: Yes

Q: And what was result of that hearing for your placement in protective custody?

A: They released me.
Q: So the outcome or determination was that they didn’t find you qualified for protective custody and put you back into general population?

A: And I asked for it.

Although there were no follow-up questions to specify what it was that Claimant asked for, his tone and syntax as well as context, leave the clear implication that what he asked for was to be returned to the general population.

Even if Claimant had requested but been denied protective custody, such denial would not inevitably lead to a finding that the State was liable for harm he suffered upon being returned to the general population (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). It is not negligence on the part of prison officials to deny protective custody status where an inmate claimed that an earlier incident was an accident and that he had no known enemies (Priester v State of New York, 2002 WL 1396036 [Ct Cl 2002]), or where an inmate was injured in an “unprovoked, unexplained attack by a fellow inmate who did not have a history of violence and with whom claimant had no prior contact or difficulties” (Roudette v State of New York, 224 AD2d 808 [3d Dept 1996]), Claimant was, in fact, given protective custody following an attack very similar to that described in Roudette. For the State to be liable in this situation, it would be necessary to find that the decision to allow Claimant to return to general population thirty days later was unreasonable, and the Court perceives no basis for reaching such a conclusion.

At the conclusion of Claimant’s case, the State moved to dismiss the Claim for failure to set forth a prima facie cause of action. At that time, the Court reserved but now grants the motion, and Claim No. 108798 is hereby dismissed. The Chief Clerk is directed to enter judgment accordingly

May 8, 2007
Albany, New York
Judge of the Court of Claims

[1].To the extent that paragraphs 25 and 26 of the Claim can be read to assert a cause of action for negligent medical care, the Court notes that there was no evidence presented to support these assertions.
[2]. Unless otherwise indicated, all quotations are taken from the audio recording of the trial proceedings.
[3]. Audiotape, 11:07.