In a claim by pro se inmate alleging excessive force, Court found that the degree of force used was reasonable under the circumstances.
|Claimant(s):||RASHAWN C. HANESWORTH|
|Claimant short name:||HANESWORTH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Rashawn C. Hanesworth, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Douglas R. Kemp, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 20, 2018|
|See also (multicaptioned case)|
The claim alleges the claimant was the victim of an assault and battery by correction officers at Great Meadow Correctional Facility (Great Meadow) on August 10, 2013. Trial of this matter was held by video conference on June 5, 2018.
Claimant testified at trial that on August 10, 2013, he was one of two inmates leading his company to the facility mess hall when Correction Officer Meehan pulled the claimant out of line for a pat frisk. Correction Officer Charles Pereira was present and directed the claimant to place his hands on the wall and began to frisk him in what the claimant described as a very "aggressive"(1) manner. The claimant's company proceeded to the mess hall as the pat frisk continued and the claimant testified that, behind him, he heard the sound of the ruffling of a plastic bag emanating from where the two correction officers were positioned. As Correction Officer Pereira continued the pat frisk he suddenly reached between the claimant's legs and squeezed his penis and testicles "incredibly hard". Claimant continued to maintain his hands on the wall until the pain became unbearable. The claimant then removed his hands from the wall as Pereira continued to squeeze his testicles and, at that time, Correction Officer Meehan yelled "weapon". The claimant testified that Correction Officer Pereira then punched him and threw him to the floor where he and Correction Officer Meehan allegedly punched, kneed and kicked him about his face, arms and legs. Shortly thereafter, a response team arrived and also began to punch and kick the claimant. At this time the claimant was curled in a ball on the floor and the response team was shouting to him to stop resisting. The claimant was eventually handcuffed and placed in a corner where he observed, in a mirror, Correction Officer Pereira approach him and then punch him in the face. Claimant was taken to the facility infirmary where he was examined by a nurse who reported that his only injury was a knot on the forehead. He testified that, in fact, he had suffered swelling of his face, eyes and lips, as well as extensive bruising which was not visible due to his dark skin tone.
The defendant called Charles Pereira who testified that in August 2013 he was a correction officer employed at Great Meadow. Officer Pereira testified that on August 10, 2013, he was performing random pat frisks of inmates in the rotunda area. He testified that he pulled the claimant out of line and placed him "on the wall" in order to perform a pat frisk, during which he found what he described as a "lump" in the front of his pants. The witness testified that when he asked the claimant "what's this" he, the claimant, removed an arm from the wall and struck the officer's right forearm. Officer Pereira testified that he then grabbed the claimant and took him to the floor. He continued to struggle with the claimant, who he described as combative and continuing to resist, as other correction officers responded to the scene. The claimant was eventually placed in handcuffs.
The witness denied squeezing claimant's testicles and penis, as well as the allegation that he planted a weapon. He further denied that he or any other correction officer punched or kicked the claimant either while he was on the ground or while he was handcuffed.
Correction Officer Pereira testified that he received instruction regarding the use of force, including appropriate levels of force, while at the Correction Officer Academy. He explained that correction officers involved in the use of force must prepare a use of force report in the form of a "to/from memorandum", and that supervisors then prepare an Unusual Incident Report based upon information they collect. He identified page 13 within Exhibit A as a use of force report regarding his interaction with the claimant on August 10, 2013. He further identified page 16 of Exhibit A as a misbehavior report he prepared following the incident involving the claimant.
On cross-examination the witness acknowledged that he had used physical force in confrontations with inmates prior to August 10, 2013. While he testified on direct examination that he was the individual who pulled claimant from line, he acknowledged on cross-examination that it was possible Correction Officer Meehan had indicated the claimant should be pulled from the line due to suspicious activity, as indicated in the unusual incident report received as part of Exhibit A. Officer Pereira confirmed he stated in the unusual incident report that he "felt an abnormality in the inmates [sic] frontal groin area". He also confirmed that the report further states that a one-inch by eight-inch weapon was found in the inmate's "frontal waistband area". At trial the witness testified that the weapon, in fact, was found in the claimant's groin area and that as he reached to investigate the matter the claimant reached out and struck his right, lower forearm and wrist. On redirect examination, the witness testified that Department of Corrections and Community Supervision (DOCCS) procedures for pat frisks are the same whether the frisk is random or based upon particular suspicion. He testified that he followed DOCCS procedures in performing the frisk of the claimant on August 10, 2013.
To recover under a common law cause of action for battery, it must be proved "that there was bodily contact, that the contact was offensive, that is, wrongful under all the circumstances, and that [the] defendant intended to make the contact" (Silipo v Wiley, 138 AD3d 1178, 1182 [3d Dept 2016] [internal quotation marks and citations omitted]). In the prison environment, the use of force is specifically permitted "in 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 ). As set forth in 7 NYCRR § 251-1.2 [b], "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used." Assessment of the degree of necessary force requires consideration of the particular circumstances confronting officers at the time 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 ; Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Hinton v City of New York, 13 AD2d 475 [1st Dept 1961]). The State is not immune from liability for an assault and battery when an officer uses more force than is necessary to perform his or her duty (Arteaga v State of New York, 72 NY2d 212, 220-221 ; Jones v State of New York, 33 NY2d 275 , rearg dismissed 55 NY2d 878 ; Barnes v State of New York, 89 AD3d 1382 [4th Dept 2011], lv denied 92 AD3d 1267 [4th Dept 2012], lv dismissed 19 NY3d 949 ).
Upon the evidence adduced at trial, the Court finds the claimant failed to establish the use of excessive force by a preponderance of the credible evidence. Correction Officer Pereira credibly testified that when he asked the claimant what was in his pants, the claimant removed his arm from the wall and struck his right forearm thereby necessitating the use of force to gain control of the claimant. The Court does not credit claimant's account of the incident to the extent he indicated that Officer Pereira painfully squeezed his testicles, thus causing him to remove his hand from the wall, or that he was thrown to the floor where he was punched, kneed and kicked about his face, arms and legs by correction officers. The medical report completed following the use of force reflects only an abrasion on the claimant's forehead and no other physical injuries are visible in the photographs (see Exhibits 6-A and 6-B). Weighing the evidence presented at trial and assessing the credibility of the witnesses as they testified, the Court finds that the degree of force used by correction officers was reasonably necessary under the circumstances. Accordingly, the claim is dismissed.
Let judgment be entered accordingly.
August 20, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. All quotes are taken from the audio recording of the trial unless otherwise noted.