Court finds Claimant failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim that he was assaulted by numerous Correction Officers.
|Claimant(s):||In the Matter of the Claim of JOSE MATUL (93-A-8995)|
|Claimant short name:||MATUL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||LAW OFFICE OF CARL SANDERS
By: Carl Sanders, Esq.
|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:||May 3, 2018|
|See also (multicaptioned case)|
Claimant, Jose Matul, failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. A bifurcated trial, addressing liability issues only, was held on July 27, 2017, at the Court of Claims in Albany, New York. There were seven witnesses: Claimant(1)
; Jacqueline Stetz, RN (a nurse at Coxsackie Correctional Facility [hereinafter, "Coxsackie"] where Claimant was incarcerated); Correction Officer (hereinafter, "CO") Christina King; CO Kevin Donnelly; CO Scott Mellett; CO James McKeown; and CO Peter Stetz). At trial, Claimant submitted Exhibits 1-4, and Defendant submitted Exhibits A-X, all of which were admitted without objection. Thereafter, the parties requested and were granted additional time to order a transcript and then to submit post-trial memoranda.
The parties agree on this much. Claimant was involved in a use of force incident with several COs at Coxsackie on January 2, 2013 during his return from lunch. Beyond those spare facts, two widely divergent versions of the incident are offered.
Claimant testified that he arrived at Coxsackie in August 2012, where he had near daily interaction with CO King and CO Donnelly, the officers in charge of his housing unit. Mr. Matul said that he had no problems or incidents with any of the COs or other inmates at Coxsackie prior to January 2, 2013. On that day, however, as he returned to his housing block from the dining hall after lunch, CO Donnelly and CO King directed him to stand aside and wait in the day room while the other inmates returned to their cells. CO Donnelly, CO King, and a third officer, then told Claimant to place his hands against the wall, and mechanical restraints were applied, with his arms cuffed behind his back.
Mr. Matul said that CO Donnelly then hit him with a closed fist, striking Claimant in the face on his left cheek. Mr. Matul fell and CO Donnelly grabbed him by the head and struck him "many more times in the same area" (Tr., p. 46). About 20 other officers arrived. Claimant said that officers grabbed his arms and legs and tried to break them, although only some of the officers kicked him. They kicked him in the ribs, back, and head, more than 50 times in total. The last blow landed directly between Claimant's two eyes. "I was getting kicked on all sides" (id.). At that point, Mr. Matul passed out. Claimant said that the attack was unprovoked.
When Claimant awoke, a Sergeant (hereinafter, "Sgt.") Rae was cleaning blood off of Mr. Matul's face and off of the floor. Claimant said that "there was a lot of blood coming out of my nose and my mouth" (Tr., p. 47). Mr. Matul also said that Sgt. Rae threatened him, saying that Claimant should keep quiet about the incident, "otherwise, it would be worse" (id., p. 48). Mr. Matul then was walked to Coxsackie's infirmary. Claimant said that there were about 10 officers present in the infirmary. Sgt. Rae again threatened Mr. Matul, warning him that "all these officers … they're killers and they're going to kill you if you tell what happened here" (id., p. 50).
Sgt. Rae continued to clean blood off of Mr. Matul, Claimant's clothes were removed, and, only then, was the nurse called to examine him. The officers were present during the examination. Sgt. Rae's threats notwithstanding, Claimant said that he did tell the nurse what had happened, and that she wrote something down, after which he was photographed (see Ex. X, unnumbered p. 1 [Inmate Injury Report]; Exs. F-M [Photographs]). He said that, the next day, the red marks visible in the photographic exhibits turned black and blue, and that he sustained an internal fracture to his nose (Tr., pp. 72, 80).
After Claimant was taken to the infirmary and photographed, he was brought to Coxsackie's Special Housing Unit (hereinafter, "SHU") where, he said, he had a second incident, this time with CO McKeown. During the frisk procedure as part of the SHU admission process, Mr. Matul said he was standing against the wall and the officer asked him a question that Claimant did not understand. Mr. Matul turned around a little bit and was pushed back against the wall (Tr., pp. 99-100).
Claimant testified that he sustained injuries to his left cheek, lower left ribs, and his back, and that he was denied medical treatment. Later, however, he agreed that Albany Medical Center (hereinafter, "AMC") took x-rays of him by electronic means while he was at Coxsackie (Tr., pp. 80, 82-83). A January 7, 2013 x-ray of Claimant's head revealed no fracture, with the orbits appearing to be "intact," and the paranasal sinuses "unremarkable" (Ex. 3). Mr. Matul agreed that no one ever told him that he had any fractured facial bones (Tr., p. 89). A January 28, 2013 x-ray of Claimant's left shoulder evidenced some mild degenerative osteoarthritis, but otherwise was "unremarkable" (Ex. 2). Finally, a January 31, 2013 x-ray determined that Claimant had fractures of his left 8th and 9th ribs, but that the left lung was clear (Ex. 1).
By contrast, the composite testimony of Defendant's witnesses (each of whom is a CO, with the exception of one nurse, and each of whom played some role in the incident) described a very different incident. Their credible narratives differed only as to minor details, which the Court finds to be expected given the nature of the sudden use of force incident they described.
CO King was one of the officers in charge of Claimant's cellblock. She testified that, in addition to routine interactions with Mr. Matul, she had one occasion to counsel him verbally a few weeks before January 2, 2013, when Claimant was "gawking" at her, "looking me up and down in like, a sexually demeaning way" (Tr., pp. 124, 126, 148). CO King told Mr. Matul that it was inappropriate behavior and "to keep his eyes somewhere else" (id., p. 127). CO Donnelly and CO Stetz did not recall having had any past dealings with Mr. Matul.
On the date of the incident, the inmates were coming back from lunch. CO King was supervising inmates on the first floor of the cellblock, and CO Donnelly was responsible for inmates on the second floor. As the inmates entered the cellblock, CO King instructed Claimant to stand aside while she locked the other inmates in her charge into their cells. Then, she approached Mr. Matul in the recreation room to counsel him again for gawking at her, and, this time, also for encroaching on her personnel space (which she described as being within arm's reach). CO Donnelly had just returned to the first floor and was standing in the recreation room, perhaps, 15 feet away, as CO King attempted to counsel Mr. Matul. CO Stetz also was present, standing in the doorway to the recreation room, some 15-30 feet away.
CO King said that Claimant grabbed her right forearm, in contravention of prison rules against inmates having physical contact with officers, and started pulling CO King towards him. He refused direct orders to let go of the officer's arm (Tr., pp. 131-132; see Ex. P [Inmate Misbehavior Report issued by CO King to Mr. Matul]; Ex. Q [memorandum to Sgt. Morse from CO King]; Ex. R [memorandum to Sgt. Morse from CO Donnelly]). CO Donnelly saw what transpired and responded to assist CO King.
A struggle ensued. CO Donnelly, who was behind CO King, administered several closed fist blows with both of his hands that were directed at Mr. Matul's head, because it was the only part of Claimant's body that was not blocked by CO King's body (Tr., pp. 172-174; Ex. R). When CO Stetz saw the tussle, he activated his personal alarm for assistance (Ex. S [memorandum to Sgt. Morse from CO Stetz]). CO King performed a leg sweep maneuver to knock Claimant's legs out from under him in an attempt to get her arm free of his grasp (Tr., pp. 134-135; Ex. Q). CO King, CO Donnelly, and Claimant all fell to the ground, with Mr. Matul landing face or chest first, and the officers on either side of the inmate (Tr., pp. 136, 175, 191-192). CO Donnelly hit Claimant in the face and body area, including, possibly, the ribs, several more times after they hit the ground. He did so because he believed Mr. Matul had yet to relinquish his hold on CO King (Tr., pp. 176-177, 187, 192-193, 198; Ex. R). COs King, Donnelly, and Stetz then restrained Claimant until he was compliant (Tr., pp. 136, 177-178, 205; Exs. Q, R & S). CO King estimated that, from the time Claimant grabbed her, until they were on the ground, only took a matter of seconds (Tr., p. 139). CO Mellett and CO Kane arrived. CO Stetz and CO Mellett each estimated that perhaps five or six officers were involved in restraining Claimant. CO King said that at no time were there as many as 20 officers present (Tr., pp. 140, 180, 209).
The officers denied kicking Mr. Matul, nor did they see any other COs do so (Tr., pp. 141 [CO King], 180, 190 [CO Donnelly], 208 [CO Stetz], 225 [CO Mellett]). CO King did not beat him, nor did she see anyone else do so (Tr., p. 161). CO Stetz did not strike him in any way during the use of force (Tr., p. 208). CO Stetz and CO Mellett did not see anyone punch Mr. Matul (Tr., pp. 215, 225). The officers did not see any blood on the floor (Tr., pp. 142 [CO King], 180 [CO Donnelly], 209 [CO Stetz], 225 [CO Mellett]). CO Stetz said that Claimant was not bleeding, and CO King did not see anything out of the ordinary on Mr. Matul's face (Tr., pp. 143, 210). CO King noted that the Department of Corrections and Community Supervision (hereinafter, "DOCCS") has protocols to deal with blood spills, including a special team of inmates trained to clean up in order to avoid blood borne pathogens (Tr., p. 144).
Finally, Claimant was mechanically restrained, helped to his feet, and taken to the infirmary (Tr., pp. 141, 179, 207, 223; Ex. T [memorandum to Sgt. Morse from CO Mellett]) where he was examined by Nurse Stetz. The nurse did not recall Claimant and had little recollection of the examination she performed. Nurse Stetz' records, however, state that Mr. Matul was awake, alert, and oriented, ambulating without difficulty, with full range of motion, able to bend at the waist, and able to move his jaw and speak freely (Tr., pp. 246-247; Ex. X, unnumbered p. 2 [Use of Force Report, dated January 2, 2013 at 11:45 a.m.]).
She observed Mr. Matul in his boxer shorts and noted bruising around Claimant's left eye, but without major swelling and the skin was intact, bruising in the area of his left ear, reddened superficial scratches in the middle of his back, and reddened indentations of the skin around both of his wrists (Tr., pp. 252-254; Ex. X, unnumbered p. 3 [Use of Force Report Addendum]; see Exs. F-M [photographs of Claimant in the infirmary showing bruises/scratches noted by nurse]). Nurse Stetz' records did not indicate any bleeding wounds or injuries (Tr., p. 250). She testified that, sometimes, a rib fracture may be evident upon physical examination, such as when a rib is displaced, or if a lung is punctured. However, she said that Mr. Matul did not present as having broken a rib (Tr., pp. 254-255). She did not recall if she applied pressure to Claimant's rib cage, but agreed that a person with a broken rib most likely would feel pain if she had done so (Tr., p. 260). She also agreed that, sometimes, pain from soft tissue injuries does not manifest itself for a day or two after the trauma has occurred (Tr., p. 264). Mr. Matul's Ambulatory Health Records, however, document three visits by him to Coxsackie's infirmary during the two weeks following the use of force event which indicate that, while he complained of generalized pain, he was determined not to be in acute distress, was able to bend at the waist, had full range of motion to all extremities, and no difficulty walking (see Ex. 4, p. 3 [entries dated January 9, 14, and 16, 2013]).
CO McKeown testified about the incident involving the strip frisk at the SHU. The officer explained that, when Claimant bent over at the hips to spread his buttock cheeks as part of the search, it appeared that there was toilet paper up his buttocks. Mr. Matul was directed to put his hands against the wall and then pull the toilet paper out using his left hand. At that point, Claimant started to turn around in what CO McKeown thought was an aggressive manner, which the officer perceived as a threat against his safety because he was not sure if Mr. Matul had hidden something in his rectal area. Claimant was pushed back against the wall forcibly until Mr. Matul's compliance was obtained, the frisk proceeded, and no contraband was found (Tr., pp. 229-232, 235; Ex. U [memorandum to Sgt. Marshall from CO McKeown regarding the use of force incident in the SHU]; Ex. V [CO McKeown's Use of Force Report]; Ex. W [Inmate Misbehavior Report issued to Claimant by CO McKeown]).
Mr. Matul was brought back to the infirmary for examination. The Use of Force Report generated by Nurse Stetz at about 12:30 p.m. again states that she viewed Claimant in his boxer shorts, that he was awake, alert, oriented, with full range of motion, and was able to speak without difficulty. No changes or new injuries were noted upon examination and Mr. Matul denied any new injuries when asked (see Ex. O, unnumbered p. 2 [Use of Force Report, dated January 2, 2013 at 12:30 p.m.).
"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., April 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 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 utterly rejects Claimant's assertion that he was the victim of a vicious and unprovoked attack by the COs. Rather, the Court credits the testimony of the State's witnesses and their version of events. The Court finds that Claimant grabbed CO King and refused several direct orders to desist. He continued to hold her as CO King and CO Donnelly brought him to the ground. He continued to resist as CO Stetz joined the other officers in attempting to gain Mr. Matul's compliance, and did not submit until after the response team arrived on the scene.
The photographs and medical records demonstrate, to the Court's satisfaction, that only that degree of force which was necessary under the circumstances was applied by the officers in this instance. Those records belie Mr. Matul's contention that he was kicked 50 times, including once between the eyes, and the Court finds those claims to be unworthy of credit. The photos evidence only bruises and scratches consistent with the use of force described by the officers, rather than the repeated punches and kicks Claimant reported.
Claimant's counsel suggested that bruising and pain could have manifested themselves during the next several days. However, the Ambulatory Health Records for the next two weeks show Mr. Matul complaining of generalized pain, but with no acute distress, and otherwise able to ambulate and move freely.
Claimant was not denied medical treatment as he initially insisted. The x-rays show that there were no fractures to his head, and his shoulder was unremarkable. He did have two fractured ribs, but that finding is not inconsistent with the use of force described by the officers. Nurse Stetz explained why she might not have been able to observe them when she examined Claimant.
The Court rejects Claimant's narrative about Sgt. Rae cleaning blood off of him in the recreation room, and again in the infirmary. The COs saw no blood on the recreation room floor. CO King explained DOCCS' protocols for cleaning blood spills to avoid blood borne pathogens. The Court does not credit Mr. Matul's assertion that Sgt. Rae violated those protocols, risking blood exposure to himself and others, by casually mopping the blood from Claimant's body in not one, but two locations.
Finally, the Court finds that the altercation when Claimant was being admitted to SHU was entirely justified and that CO McKeown also exercised only that degree of force which was necessary under the circumstances. Additionally, Nurse Stetz' examination found that Mr. Matul had no new injuries after the second incident.
Therefore, based upon the foregoing, the Court concludes that Claimant failed to establish his Claim by a preponderance of the credible evidence, and it is hereby dismissed.
All motions made at trial upon which the Court reserved decision are now denied.
The Chief Clerk is directed to enter judgment accordingly.
May 3, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
1. Claimant, who was born in Guatemala and is most comfortable speaking in Spanish, testified with the assistance of Laura Kuhne, a certified translator for the New York State Office of Court Administration.