New York State Court of Claims

New York State Court of Claims

DONAHUE v. THE STATE OF NEW YORK, #2007-044-014, Claim No. 107794


Claimant, an inmate, failed to establish that the State could reasonably foresee that he would be attacked by another inmate. Claimant's testimony that he had advised prison officials of his concern of impending danger was not credible, and was contradicted by claimant's own statements at the time of the assault

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate, brings this claim against defendant State of New York (defendant), alleging that he was assaulted on May 16, 2001 by a fellow inmate, Stephen Fox, due to defendant's failure to adequately protect him while he was incarcerated at Elmira Correctional Facility (Elmira).[1] Trial of the matter was bifurcated and held in the Binghamton District on February 27, 2007. This decision addresses only the issue of liability.

At trial, claimant testified that he was sitting in a classroom in the schoolhouse area at Elmira, preparing for class, when he was unexpectedly assaulted by Fox. Claimant said he had written a letter to Elmira's Deputy Superintendent of Security (DSS) Doane on May 5, 2001, prior to the assault, indicating that he believed he was in danger from Fox. Claimant and Fox had apparently both been incarcerated in Attica Correctional Facility (Attica) during the same period in 1997. Claimant said that Fox had wanted him to carry weapons into the prison yard to assist a gang, but that claimant had refused. Fox's cell was searched the night of the request and weapons were found. According to claimant, Fox thought that claimant had reported him to the correction officers. Claimant said Fox was put in long-term keeplock at Attica, where he would frequently yell out his cell window that claimant was a “snitch.”

Claimant was transferred to Elmira in January 2001. He testified that when he was being brought into the facility, he had a problem with a bag containing his personal belongings. He stated that Sgt. Erickson was the correction officer in the bag room at the time, and that Erickson “interviewed him in an unfriendly manner.”[2] Claimant also said that Fox was not incarcerated at Elmira when claimant first arrived, but arrived sometime in late April 2001. According to claimant, he was not aware that Fox was at the facility until other inmates told him Fox was saying claimant was a snitch. Claimant testified that he subsequently saw Fox in the mess area, where Fox threatened him.

Claimant stated that he became concerned for his safety, and spoke to Sgt. Erickson to express those concerns. He said Erickson told him he could not be put into protective custody unless he was willing to testify against other inmates with regard to drug possession and trafficking. He also said that Erickson said he would look into the matter. At that time, claimant allegedly wrote to DSS Doane expressing his fear for his safety. At trial, claimant produced a photocopy of a carbon copy of the letter that he claimed he wrote to DSS Doane on May 5, 2001. He said that he received a written response that his complaint would be investigated, but that the response was later destroyed by correction officers. Claimant said that he heard nothing regarding this letter to DSS Doane after that point.

Claimant stated that he encountered Fox again at lunch in the mess hall on May 16, 2001, the day of the assault. He said that Fox threatened him once again and yelled at him. Claimant testified he then went to Sgt. Erickson again, after leaving the mess hall, to express concern about his safety. He said Erickson told him there wouldn't be a problem, since the two inmates resided in separate cellblocks. Erickson allegedly told claimant to go to class, and said that Fox was not involved in any program activities that afternoon. Claimant proceeded to his classroom, where he was later attacked by Fox.

Claimant also submitted into evidence a copy of an inmate grievance form that he claimed he filed on May 28, 2001, complaining that his letter to DSS Doane of May 5, 2001 had been ignored, and also stating that he had expressed his concerns to Sgt. Erickson without result. Claimant said that he did not receive a response to this grievance. He further testified that he had submitted five other inmate grievances while at Elmira which also had not been acknowledged.[3] He also filed a grievance concerning the alleged lack of response to these grievances. Defendant submitted the response to the last grievance, which indicated that Elmira's Inmate Grievance Program Supervisor reported that she never received the previous grievances.

On cross-examination, claimant acknowledged that he had not complained about Fox while he was at Attica, nor was Fox on his enemies or separatees list, either at Attica or at Elmira. Claimant also admitted that he waived the opportunity to be placed in protective custody after the assault; he explained that since Fox was in SHU, he (claimant) was no longer in danger and therefore protective custody was not necessary.

In support of his claim that defendant was negligent, claimant also elicited testimony from Ms. Amidon, the teacher in whose classroom claimant was assaulted. She witnessed the attack and called for help. She also testified that the inmates had a colored sticker on the back of their identification cards which showed which programs the inmate participated in, and therefore was also some indication of where an inmate should be at a given time. Amidon testified that she had heard inmates discuss trading these stickers. Claimant sought to imply through his testimony that Fox would have had a sticker on his identification card indicating that he did not participate in program activities that afternoon, which would mean he would have no reason to be in the schoolhouse area, and that defendant was negligent in allowing him to enter that area.

Correction Officer Scheepsma testified on behalf of defendant. He responded when Ms. Amidon called for help during the assault, and stated that he heard Fox acknowledge that Fox had attacked claimant. He also testified that in order to access the schoolhouse area, inmates had to pass through a central gate area. He said that 500-600 inmates passed through that area after lunch, and that it was not practical to try to examine the stickers on each of their identification cards.

Sgt. Cristofaro also testified for defendant. He stated that Fox could legitimately have passed through the center gate area even though he had no participation in program activities, because he would be entitled to go to the field house - located beyond the center gate - every other day for recreation. Cristofaro further testified that he responded to the incident, but did not arrive in Ms. Amidon's classroom until claimant and Fox had been separated. He interviewed both claimant and Fox after the fight. Although he had no specific recollection of his conversations with them, his report regarding the interviews and his summary provides in pertinent part:
This incident appears to be due to inmate Donahue pointing his finger and talking about inmate Fox. Inmate Donahue states he has no knowledge of this inmate and does not know why he was assaulted.

Inmate Fox stated that inmate Donahue has been “running his mouth” and pointing his finger at him while talking to other inmates. Inmate Fox stated, “He was tired of it.”

Interestingly, claimant testified on cross-examination that he did not make that statement to Sgt. Cristofaro.

The Inmate Injury Report was also introduced into evidence. The “Inmate's Statement” section of that report provides: “was sitting in class (Mrs. Amidon) and an unknown inmate punched and kicked me in the face and head.” Claimant's signature appears underneath that statement.

DSS Doane also testified. He stated that he did not recall ever receiving the May 5, 2001 letter from claimant. He said that the normal procedure where an inmate expresses concern for his safety is that the complaint would be date-stamped and filed and a response would be sent to the inmate acknowledging the complaint and indicating who would investigate the situation. The investigator would thereafter submit a written report and appropriate action would be taken. DSS Doane testified that inmates' concerns about their safety were taken very seriously. He did not recall any complaints or safety concerns relating to claimant, whether with Fox or anyone else.

Finally, Sgt. Erickson testified on behalf of defendant. Erickson had no independent recollection of claimant or any complaints that claimant might have made concerning his safety. Defendant moved to dismiss the claim, at the close of both claimant's case and its own, on the ground that claimant had not established that the assault was reasonably foreseeable, nor was it established that defendant was negligent by allowing Fox through the center gate area despite his “idle” status.

The State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [1999]). Despite this obligation, however, 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 (Sebastiano v State of New York, 112 AD2d 562 [1985]). In order to establish that the State is liable for such an assault, 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 which 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]).

Claimant's counsel made much of the indisputable fact that an inmate's testimony is not presumptively false simply because he has been convicted of a crime. While that is certainly the case, in this instance claimant's testimony that he advised facility officials of his concern of impending danger is contradicted by numerous factors. Most notable among the items contradicting claimant's testimony is Cristofaro's report, written immediately after the incident, in which he sets forth claimant's statement that he did not know who attacked him, or why. At trial, Cristofaro presented as a credible and straightforward witness, and no basis was presented to suggest that he might have had any motivation to submit an inaccurate report. Further, notwithstanding claimant's testimony at trial, the Inmate Injury Report, which was made essentially contemporaneously with the assault and signed by claimant himself, also indicates that claimant did not know the identity of his assailant.

Additionally, while it is certainly conceivable that some documents might be misplaced or lost in a prison setting, it is highly unlikely that so many documents would be missing, all of which apparently tend to support claimant's story regarding the incident. These documents - the alleged letter of May 5, 2001 to Doane, the May 28, 2001 grievance concerning the May 5th letter, and the five grievances in August 2003 - were all self-serving, and the Court simply does not credit the unlikely series of coincidences that all of these documents were submitted to prison officials by claimant and were lost by the Department of Correctional Services’ system.

In short, the disposition of this claim comes down to the issue of claimant's credibility. Upon observation of claimant's demeanor and testimony, together with the other evidence and testimony submitted at trial, the Court finds that claimant was not a credible witness with regard to his contention that he advised prison officials of his concern for his safety (Di Donato v State of New York, 25 AD3d 944, 945 [2006]; Williams v State of New York, 291 AD2d 586 [2002]). Consequently, there was no basis by which defendant knew or should have known that there was a risk of harm to claimant, or that the assault was reasonably foreseeable.

Accordingly, the claim is dismissed on the merits. Any motions not previously determined, including defendant's motion to dismiss, are hereby denied. Let judgment be entered accordingly.

April 24, 2007
Binghamton, New York

Judge of the Court of Claims

[1].The Claim also alleged causes of action for medical malpractice and medical negligence. Those causes of action were withdrawn by claimant prior to trial.
[2]. All quotes taken from the Court's trial notes or recording, unless otherwise indicated.
[3]. These five grievances were all alleged to have been filed in August 2003, no doubt only coincidentally a short time after defendant's answer was filed in this claim. Claimant filed other grievances which were processed without incident.