New York State Court of Claims

New York State Court of Claims
BARNES v. THE STATE OF NEW YORK, # 2018-040-006, Claim No. 122625


Court finds that Claimant failed to establish by a preponderance of the credible evidence that he was assaulted by correction officers or that excessive force was used against him.

Case information

UID: 2018-040-006
Claimant short name: BARNES
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 122625
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Anthony Barnes, 07-A-4169, 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: January 23, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Pro se Claimant, Anthony Barnes, failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. The trial of this Claim was held by video conference on October 19, 2017, with the parties at Eastern NY Correctional Facility (hereinafter, "Eastern"), and the Judge at the Court of Claims in Albany, New York.

At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim and the State's Answer. Claimant submitted into evidence 46 documents (Exs. 1-42(1) ). The State did not submit any exhibits into evidence. Claimant testified on his own behalf, and Defendant offered the testimony of Correction Officer (hereinafter "CO") Wardynski and CO Flynn.

Claimant testified that, on September 4, 2012 at approximately 9:15 a.m., he was at the Eastern medical unit, when he was assaulted by several COs. He said that he was at the infirmary to get laboratory work done. He said that CO Wardynski told him that he had disrespected female CO Damian. Claimant testified that he did no such thing and, specifically, denied blowing kisses at her. He was then told that he needed to put his hands on the wall to be frisked so that he could be escorted to the Special Housing Unit (hereinafter, "SHU"). COs came to escort him and, while he had his hands on the wall being frisked, CO Waugh grabbed a finger on his left hand and pulled it backwards. Claimant stated that, in order to prevent his finger from breaking, he "came off the wall." He stated that several COs assaulted him by slamming his head into the wall and striking him in the back with a nightstick. He received injuries to his head and left hand (see Exs. 1, 2, 24-29; Court Ex. 1, 6).

Claimant further testified that he did not receive timely and adequate medical care for his injuries (see Court Ex. 1, 6). He asserted that the wound to his head was serious and not a superficial abrasion and/or laceration as was reported on Exhibits 1 and 2. Claimant also stated that x-rays of his left hand were not taken for several weeks and, thus, there was a delay in determining that his left hand was fractured and putting it in a cast (see Exs. 6, 9, 10). Claimant also stated that, once the cast was removed, x-rays that were taken in December 2012 showed that the bone in his left hand was still fractured (see Exs. 16, 17). Claimant concluded that this was a further sign of the improper medical care he received. On January 21, 2013, Claimant was admitted to Alice Hyde Medical Center in Malone, New York, "with a diagnosis of left fourth metacarpal nonunion" of the left hand and "on presurgical examination under fluoroscopy and under anesthesia, the fourth metacarpal fracture was found to be solidly united" (Ex. 22).

CO Wardynski testified that he is employed by the Department of Corrections and Community Supervision (hereinafter, "DOCCS") and is currently working at Ulster Correctional Facility and that, prior to that, he worked at Eastern for 11 years. He stated that he was working at Eastern in September 2012 and recalled the incident. At that time, his post was at the infirmary medication window, making sure that the inmates took the medications they were dispensed. He testified that, on September 4, 2012, he saw Claimant blow CO Damian a kiss. CO Damian directed Claimant to sit down, and he did so. The witness stated that he did not speak to Claimant regarding the incident. He further testified that a sergeant and an escort team came to the infirmary. At that point, CO Wardynski was in the hallway, as the medication window had closed. Claimant was in the "bullpen" at that time. The COs went into the bullpen, took Claimant out and told Claimant to put his hands on the wall, which he did. A pat frisk was performed but, when Claimant was told to put his left hand behind his back to be handcuffed, Claimant spun around and struck CO Waugh. The witness stated that he then went over to assist the two escort COs in subduing Claimant. He stated that Claimant was resisting, appeared to be throwing punches, and was flailing his arms. CO Wardynski put his hands on Claimant's chest to guide him back to the wall. The COs were able to get Claimant under control and get him in mechanical restraints (see Ex. 36 [Memorandum from CO Wardynski to Sergeant Connor, dated September 4, 2012]).

CO Flynn testified that he has been employed by DOCCS for 23 years and has worked at Eastern almost that entire period. He was working at Eastern on September 4, 2012. He stated that, on that date, he, another CO, and a sergeant were called to the Eastern hospital to escort Claimant. He performed a pat frisk of Claimant and then told Claimant to put his arm behind his back, but Claimant refused to put his left arm behind his back. Rather, he started throwing punches, striking CO Waugh and the witness. CO Flynn said that the COs finally were able to get Claimant under control and put mechanical restraints on him (see Ex. 37 [Memorandum from CO Flynn to Sergeant Connor, dated September 4, 2012]). The witness stated that he did not escort Claimant to SHU since he had been involved in the use of force against him.

The Court will address Claimant's assault cause of action first. "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" (Clark v State of New York, UID No. 2003-029-272 [Ct Cl, Mignano, J., Apr. 4, 2003]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]; 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 has considered the evidence, including a review of the exhibits, listening to the witnesses testify and observing their demeanor as they did so. The Court credits the testimony of the State's witnesses that, after being pat frisked, Claimant failed to comply with an order to remove one arm at a time from the wall to have mechanical restraints applied. Rather, Claimant took his left hand off the wall, spun around and attacked the COs. The Court also credits the misbehavior reports by CO Waugh and CO Flynn stating that CO Waugh placed his left hand on Claimant's left wrist to get Claimant to comply with CO Flynn's direct orders to place his hand behind his back, and that the only force the COs used was in an attempt to restrain Claimant and to get him under control after he attacked them (Exs. 34 and 35). The Court further credits the five memoranda sent to Sgt. Connor from the COs involved in the incident. Each document was prepared shortly after the incident occurred, reporting how the incident occurred and the COs' involvement in the incident (Exs. 36, 37, 38, 40, and 41). In addition, the Court credits the Use of Force Report and the memorandum from Sgt. Connor to Lt. Madison summarizing the incident at issue involving Claimant (Exs. 33 and 39). Based upon all of the foregoing, the Court concludes that Claimant was not assaulted by the COs. Rather, it was Claimant who assaulted the COs and that the COs used the force necessary to gain control of Claimant. The Court determines that the COs acted in compliance with DOCCS' regulation governing the use of physical force by its employees against an inmate (see 7 NYCRR 251-1.2). The Court further concludes that only that degree of force as was reasonably required under the circumstances was employed by the COs.

Therefore, based upon the foregoing, the Court concludes that Claimant failed to establish by a preponderance of the credible evidence that he was assaulted, or that excessive physical force was used against him, on September 4, 2012, and that cause of action is hereby dismissed.

The Court will now address Claimant's second cause of action, that he received inadequate and untimely medical care for the injuries he received as a result of the September 4, 2012 incident. 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]). In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, "a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice" (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons] or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).

In a medical malpractice claim, where such issues are not within the usual experience and knowledge possessed by laypersons, expert medical testimony is required in order for a claimant to meet the burden of proving that a defendant's alleged negligence constitutes a deviation or departure from accepted practice, and evidence must be provided that such deviation was the proximate cause of the injury asserted (Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).

The Court has considered all the evidence relating to the medical care issue, including a review of the exhibits and listening to Mr. Barnes testify, and observing his demeanor as he did so. Regarding the injury to his forehead, Claimant provided no evidence or expert medical testimony that the injury to his head was a serious injury and not just a superficial abrasion and/or laceration as was reported on Exhibits 1 and 2. With regard to Claimant's assertion that he did not receive timely and appropriate care for his broken hand, Claimant provided earnest and straightforward testimony concerning the deficiencies he perceives in the treatment he received. Mr. Barnes' sincerity notwithstanding, the Court finds that the acts or omissions of which Claimant complains cannot 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 for the broken bone in his left hand was not appropriate or adequate as the evidence established that Claimant made multiple visits to the orthopaedics' specialist and the evidence Claimant provided established that the broken bone in his left hand healed properly (see Ex. 22). Thus, that cause of action is dismissed.

All motions made at trial upon which the Court reserved decision are now denied.

The Chief Clerk is directed to enter judgment accordingly.

January 23, 2018

Albany, New York


Judge of the Court of Claims

1. Claimant's exhibits include Exs. 32A-32D, making the total 46.