New York State Court of Claims

New York State Court of Claims
DAVY v. THE STATE OF NEW YORK, # 2017-040-154, Claim No. 118687, 118960


Following Trial, Court dismissed Claims alleging assault and use of excessive force by COs and failure to provide appropriate medical care.

Case information

UID: 2017-040-154
Claimant short name: DAVY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 118687, 118960
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Christopher Davy, Pro Se
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Thomas R. Monjeau, Esq., AAG
Third-party defendant's attorney:
Signature date: December 20, 2017
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Pro se Claimant, Christopher Davy, failed to establish by a preponderance of the credible evidence his two Claims: (1) that he was assaulted at Bare Hill Correctional Facility (hereinafter, "Bare Hill") on November 16, 2009 by certain named correction officers, and that the State was negligent in its training and supervision of its staff (Claim No. 118687): and (2) that he was denied appropriate medical care at Clinton Correctional Facility (hereinafter, "Clinton") in connection with the treatment of injuries he sustained in connection with the assault (Claim No. 118960). The trial of this Claim was held on September 19, 2017 at the Court of Claims in Albany, New York. The two Claims were joined for trial, although they were not consolidated and remain separate claims.

At trial, Claimant did not submit any exhibits. The State submitted 15 exhibits into evidence (Exs. A-E, F-1-F-3, G-1-G-2, H-1-H-2, I-1- I-3). At trial, the Court also had marked, as Court Exhibits 1 and 2, respectively, the Claimant's filed Claim and the State's Answer in connection with Claim No. 118687, and as Court Exhibits 3 and 4, respectively, Claimant's filed Claim and the State's Answer in connection with Claim No. 118960. Claimant testified on his own behalf and Defendant called three witnesses to testify: Correction Officer (hereinafter, "CO") Mark Miner, CO Scott Hough, and Sergeant (hereinafter, "Sgt.") Mark LaGrow.

Claimant testified that, on November 16, 2009, he was incarcerated in Bare Hill's Special Housing Unit (hereinafter, "SHU"). He stated that he was "in a bad place, mentally, spiritually, emotionally and wasn't in his right mind, I cracked." Mr. Davy said that the SHU staff taunted, teased, ridiculed and jeered him. He decided to kill himself, removed his clothing, and covered his face with toothpaste so that he might look less gruesome after he died (see Court Ex. 1[Claim No. 118687], 6; Exs. B, F-1, and F-2 [photos showing toothpaste on face]). Mr. Davy attempted to hang himself by tying one end of a bed sheet to the light fixture in his cell and the other end around his neck. He said that, as he did so, CO Miner came by his cell and angrily ordered him to stop. He said that the CO was angry because it was near the officers' shift change and CO Miner did not want to have to do additional paperwork that would be required if Mr. Davy attempted to harm himself. Claimant jumped anyway, but his first attempt failed because the bed sheet did not hold. On the second attempt, the sheet held, but the cell door opened at nearly the same time and CO Miner interrupted Mr. Davy's suicide attempt, grabbing Claimant by the feet and tackling him onto the bed and then to the ground. Claimant said that CO Miner was joined by CO Hough and CO James Meagher. Sgt. LaGrow also was summoned (see Ex. A [Unusual Incident Report]).

Claimant said that COs Miner, Meagher and perhaps one other, began to punch and kick him repeatedly in his head, right eye, and left ear (see also Court Ex. 1, 7).(1) At trial, Mr. Davy testified that he was hit so hard that he involuntarily released his bladder. He also blacked out. As he was doing so, he remembers a sergeant arrived, who yelled "Jimmy, that's enough! Jimmy that's enough! Jimmy!" Claimant said that he never had any problems with staff at Bare Hill prior to the incident.

The composite recollections of the officers who testified at trial, the Use of Force Report, and Unusual Incident Report, cast the incident in a different light. As he made rounds, CO Miner(2) saw Mr. Davy standing on his bed in his cell with a noose around his neck. CO Miner shouted several direct orders for Claimant to stop. CO Hough(3) heard CO Miner's yell, and joined him. CO Hough left the cell area briefly to admit the response team onto the gallery, whom the officer in the bubble already had called. CO Hough then rejoined CO Miner at the still-locked cell. Mr. Davy ignored CO Miner's orders to desist, and, instead jumped off his bed twice. CO Miner shouted to the officer in the bubble to open Mr. Davy's cell and then entered, followed by CO Hough.

CO Miner gained control of Mr. Davy's legs and said that the two of them fell onto the bed. CO Hough secured Claimant in a body hold and helped wrestle Mr. Davy onto the bed. CO Hough then secured Claimant's right arm behind his back. Sgt. LaGrow and CO Meagher from the response team arrived shortly after the cell door was opened. The Use of Force Report states that CO Meagher used both hands to grab Mr. Davy's left arm so that handcuffs could be applied by CO Miner (see Ex. A [Use of Force Report]). Once the officers gained control over Mr. Davy, CO Hough cut the noose from around his neck. The response team then assumed control over Mr. Davy and took him to be photographed and for medical attention. COs Miner and Hough then went to seek medical attention for themselves.

CO Miner testified that he received suicide prevention training and that his take down of Claimant was consistent with the goal of preventing Claimant from harming himself further. He also said that Mr. Davy was aggressive, agitated, combative, and resisted the officers attempts to gain control over him. CO Hough, likewise, said that Claimant was struggling, crying, thrashing, kicking, resisting, and yelling "I should be dead!"

CO Miner and CO Hough each denied ever punching, kicking, or kneeing Claimant at any time during the incident, nor did they observe any other officer strike Mr. Davy in any way. CO Hough said that they used the minimal force necessary to quell the situation. CO Miner did not recall telling Claimant that he would hurt him in retaliation for having to do paperwork if Mr. Davy attempted to commit suicide, nor did he recall a sergeant saying "Jimmy. That's enough!" Sgt. LaGrow, similarly, did not recall saying that. Moreover, Sgt. LaGrow did not see any CO, including, specifically, CO Meagher, use any force against Claimant.

After Claimant was handcuffed, Sgt. LaGrow took the photographs of Mr. Davy, which he said were fair and accurate depictions of Claimant at that time (see Exs. B-D, F-1- F-3). Then, Claimant was evaluated by a nurse while still on the gallery. The Nurse noted no injuries, recorded vital signs as stable, and that no treatment was required (Ex. A [Unusual Incident Report]). Sgt. LaGrow was present and said that Mr. Davy did not indicate that he had any injuries or problems while he was examined by medical staff. The Sergeant did not observe a red, swollen eye, neck injury from the noose, or any other injuries to Mr. Davy. Claimant was put on one-on-one special suicide watch within the SHU (see also Court Ex. 1, 8; Ex. A [Unusual Incident Report]).

Later that same day, Mr. Davy said that he was transferred to Clinton Correctional Facility (hereinafter, "Clinton") where he received treatment. Claimant said that he: sustained a burst blood vessel in his right eye; lost hearing in his left ear; and suffers from migraine headaches (see Ex. F-2 [Claimant asserted that some swelling in his right eye is visible in the photo taken after the incident, and that the condition was more visible after the toothpaste was removed from his face at Clinton]) (see also Court Ex. 1, 9-10; Court Ex. 3 [Claim No. 118960]).

The Court has considered the evidence, including a review of the exhibits, listening to the witnesses testify and observing their demeanor as they did so.

"In situations involving inmate allegations of excessive force by a [CO], such as here, the credibility of the respective witnesses is often the dispositive factor" (Bolden v State of New York, UID No. 2013-040-033 [Ct Cl, McCarthy, J., May 23, 2013], quoting Clark v State of New York, UID No. 2003-029-272 [Ct Cl, Mignano, J., Apr. 4, 2003]; see Davis v State of New York, 203 AD2d 234 [2d Dept 1994]; see also Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]).

The Court credits the testimony of the State's witnesses that they did not strike Claimant, nor did they witness anyone else strike Claimant, and that they used only the minimum degree of force necessary under the circumstances. While Claimant offered sincere and earnest testimony as to his perception of the incident, to the Court's mind his interpretation of events is not corroborated by the record. Mr. Davy himself said that he was in a distraught frame of mind at the time. Sgt. LaGrow's photographs, taken just after the incident, do not document the sort of welts and bruises to Mr. Davy's face as might be expected after the fierce attack Claimant described. Mr. Davy pointed to some possible swelling on his right eyelid, but that minor injury also is entirely consistent with the officers' account of having to gain control of an agitated and uncooperative inmate who was attempting to harm himself. CO Miner testified credibly that he received proper training in suicide prevention techniques and applied them in this instance.

Turning to Mr. Davy's Claim alleging improper medical care and treatment, when the State engages in a proprietary function, such as providing medical care, it is held to the same duty of care as private actors engaging in similar functions (Schrempf v State of New York, 66 NY2d 289, 294 [1985]; see Sebastian v State of New York, 93 NY2d 790, 793 [1999]). Thus, it is "fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990].

Here, Claimant offered only his own testimony that he sustained a burst blood vessel in his right eye, lost hearing in his left ear and suffers from migraine headaches. Mr. Davy did not submit any medical records to corroborate those injuries. Moreover, the Unusual Incident Report and Sgt. LaGrow's testimony, both of which the Court finds to be credible, state the contrary, that Claimant did not sustain any injuries in connection with this incident.

Moreover, in the absence of Mr. Davy's medical records, the Court cannot determine that the acts or omissions of which Claimant complains can be assessed by the trier of fact on the basis of its common, everyday experience. Thus, in the absence of any testimony from a medical expert that the medical treatment Claimant received was improper, the Court determines and concludes that Claimant has failed to establish, by a preponderance of the credible evidence, that the medical care provided to him was not appropriate or adequate.

Therefore, based upon the foregoing, the Court concludes that Claimant failed to establish by a preponderance of the credible evidence both his Claim No. 118687, that he was assaulted by COs on November 16, 2009 and that the State was negligent in its training and supervision of its staff, and his Claim No. 118960 that he was denied appropriate medical care at Clinton in connection with the treatment of injuries he sustained in connection with the assault. Accordingly, each Claim is hereby dismissed.

All motions made at trial upon which the Court reserved decision are now denied. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.

The Clerk of the Court is directed to enter judgment dismissing each of the Claims.

December 20, 2017

Albany, New York


Judge of the Court of Claims

1. Mr. Davy also noted that most of the injuries sustained by the CO s were to their hands, knuckles, and knees (see also Ex. A [Unusual Incident Report]; Exs. H-2 [photo of hand. CO Miner identified CO Hough as the officer shown in the photo that is Ex. H-1, and CO Hough said that he received a minor injury to his hand]; I-2, I-3 [photos of knees. CO Miner identified CO Meagher as the officer shown in the photo that is Ex. I-1]).

2. CO Miner retired in 2014 after working for the Department of Corrections and Community Supervision (hereinafter, "DOCCS") for over 25 years.

3. CO Hough has been employed by DOCCS for over 23 years.