After a trial of this pro se claim alleging a cause of action for assault and battery and the use of excessive force by a correction officer, the Court dismissed the claim as claimant failed to establish that he was assaulted or that excessive force was used. In addition, claimant failed to establish that he suffered any injury as a result of the incident.
|Claimant(s):||DONALD MACK BENNETT|
|Claimant short name:||BENNETT|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||DONALD MACK BENNETT, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 12, 2020|
|See also (multicaptioned case)|
Claimant Donald Mack Bennett alleges that he was the victim of an assault by a correction officer on January 23, 2012 while incarcerated at the Lakeview Correctional Facility (Lakeview). By a prior order of the Hon. Jeremiah J. Moriarty III filed March 27, 2013, the Notice of Claim served by claimant on February 6, 2012 was held to constitute a Notice of Intention to File a Claim. The claimant thereafter served a Claim and an Amended Claim on June 12, 2012 in which he alleged a cause of action for assault and battery. On June 28, 2012, the State of New York (State) filed an answer denying the allegations in the claim.
On December 9, 2019, a trial was held in Buffalo, New York, where testimony in support of the claim was received from claimant. In defense of the claim, the State provided testimony from Correction Officer Richard Kosinski (CO Kosinski). Following the trial, the parties requested an opportunity to submit post-trial memoranda, which was agreed upon for March 6, 2020. Claimant thereafter requested a brief extension from the Court, which was granted so that he could submit his memorandum by March 13, 2020. The Court received a timely submission from the State, however, no post-trial memorandum was ever received from claimant.
The claimant testified that on the day of the incident, January 23, 2012, he was being housed in the Special Housing Unit (SHU) at Lakeview. He stated that he was scheduled for a disciplinary hearing that was conducted in two parts. Claimant testified that CO Kosinski was returning him to his cell from the disciplinary hearing and after opening the cell door CO Kosinski pushed him towards the steel frame bunk bed and he struck his head and right elbow. Claimant alleged that as a result of CO Kosinski's actions, he suffered a concussion and contusions to his knees. Following the incident, claimant testified that he was dizzy and then fell asleep. He stated that he did not request to go to the infirmary until the following day. Claimant testified that he subsequently filed a grievance against CO Kosinski but was unable to produce a copy at trial to support this allegation. On cross-examination, claimant was referred to his Notice of Intention to File a Claim, where he averred that his injuries were caused by CO Kosinski pushing him hard into a brick wall after he failed to comply with an order to reenter his cell and that the notice of intention makes no mention of being pushed into the steel frame bunk bed. In response, claimant testified that he did strike his head against the brick wall but that this did not cause him any injury and that the lump on his forehead was caused by striking the steel frame of the bed. Claimant was then shown an Inmate Misbehavior Report (Exhibit A) from the incident dated January 23, 2012, and he admitted that he was found guilty of the rules violations cited in this report. He also admitted that there was nothing contained in this report that stated that he was pushed into a steel frame bunk bed.
CO Richard Kosinski testified that he has been a correctional officer with DOCCS for 14 years and been assigned to Lakeview for the past 10 years. He described the procedure to take an inmate to a disciplinary hearing and had no independent recollection other than the Misbehavior Report (Exhibit A) as to what had occurred on that date. CO Kosinski testified that claimant did not comply with his order and took his hands off the wall while he and the other correctional officer with him were performing a pat frisk. Since claimant did not comply, he testified that the escort they were to perform to take claimant back to the disciplinary hearing was cancelled and he was ordered to go back into his cell. CO Kosinski testified that claimant did not comply with his direct order to go back into his cell and then became irate, spewing the profanities detailed in the Misbehavior Report. He indicated that DOCCS procedure requires that they guide the inmate towards the wall in his cell and typically his head will be mere inches from the wall. CO Kosinski denied that he ever pushed claimant into the steel frame of the bunk bed. He testified that no use of force report was necessary following the incident as it was not necessary to use force against claimant to get him into his cell. CO Kosinski also stated that no injury report was necessary as claimant did not indicate to him that any injury had resulted from placing him back in his cell. Finally, he testified that claimant was found guilty of the rules violations listed in the Misbehavior Report.
On cross-examination by claimant, CO Kosinski agreed that he had not previously had any problems with claimant. CO Kosinski described the aggressive stance that he had previously testified to as claimant taking a stance facing him with his fists balled and verbally threatening him with violence. He testified that he could not recall why he was unable to handcuff claimant on the day of the incident.
LAW AND ANALYSIS
The claim sets forth a cause of action for assault and battery and alleges the use of excessive force by the involved correction officer. In a prison or correctional facility, it is recognized that the use of force is specifically permitted under certain circumstances, including "self defense, or to suppress a revolt or insurrection [and] . . . to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape" (Correction Law § 137 )(1) . It is also set forth in 7 NYCRR 251-1.2 [b], that "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used," and at 7 NYCRR 251-1.2 [d] that a correction officer shall not lay hands on or strike an inmate "unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape." In order to assess what degree of force was necessary at the time of the incident, this Court is to consider the particular circumstances that confronted the correction officer at the time that the force was applied (Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]; Koeiman v City of New York, 36 AD3d 451 [1st Dept 2007], lv denied 8 NY3d 814 ). In assessing whether excessive force occurred in this instance, the trial court's findings are entitled to great deference in that the court was in a position to observe the witnesses and view the evidence firsthand (Barnes v State of New York, 89 AD3d 1382 [4th Dept 2011]).
Upon consideration of the testimony of claimant and CO Kosinski and observing their demeanor while testifying, as well as examining the Misbehavior Report received at trial, it is the finding of this Court that claimant failed to establish by a preponderance of the credible evidence that CO Kosinski assaulted him or used excessive force in the manner in which the claimant was restrained during the January 23, 2012 incident. In arriving at this determination, I assessed the testimony of the claimant and concluded that he was not credible. In doing so, I found it significant that he described the incident differently from what he had written on June 4, 2012 as contained in his claim that was later determined to be his notice of intention. When confronted with this on cross-examination, claimant testified that he did strike his head on the brick wall but that this did not cause the bump on his forehead or any other injury. Significantly, there is nothing in the notice of intention or the claim in which it is alleged by claimant that he was assaulted when pushed into the steel frame of the bunk bed by CO Kosinski.
On the other hand, I found the testimony of CO Kosinski to be credible and that his testimony was supported by and consistent with the contemporaneously written Misbehavior Report. As such, I conclude that claimant failed to comply with the reasonable orders of a correction officer, that he was found guilty of the rules violations contained in that report, which included failure to follow a direct order, threats, threats of violence towards a correction officer and failure to follow facility regulations and staff directions.
I also find that claimant failed to establish by a preponderance of the evidence that the use of force exercised by the correction officers when ordering him back into his cell caused him any injury. In this regard, I find that claimant presented no evidence to support his allegation that he suffered a concussion or any other injury. As testified to by CO Kosinski, no inmate injury report was ever prepared and although claimant testified that he went to the infirmary the following day, no report from the infirmary detailing his injuries was ever presented at trial. As such, I find that claimant failed to establish that he suffered any injury from this incident.
Accordingly, claim no. 120970 is dismissed. Any and all other evidentiary rulings or motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
Let judgment be entered accordingly.
May 12, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
1. Correction Law §137 (5) provides: "No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection. When any inmate, or group of inmates, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape."