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New York State Court of Claims

New York State Court of Claims
VALENTIN v. THE STATE OF NEW YORK (1), # 2018-038-108, Claim No. 127111

Synopsis

If it was found after trial that correction officers assaulted claimant without provocation or need to maintain institutional order, proof did not demonstrate that they were acting within the scope of their employment, and thus, defendant was not liable to claimant under the doctrine of respondent superior.

Case information

UID: 2018-038-108
Claimant(s): CHANLIE VALENTIN
Claimant short name: VALENTIN
Footnote (claimant name) : The caption of the claim has been amended sua sponte to reflect the State of New York as the only proper defendant on this claim.
Defendant(s): THE STATE OF NEW YORK(2)
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127111
Motion number(s):
Cross-motion number(s):
Judge: W BROOKS DeBOW
Claimant's attorney: LAW OFFICES OF DEVON WILT
By: Devon Wilt, Esq.
Defendant's attorney: BARBARA D. UNDERWOOD, ATTORNEY GENERAL
OF THE STATE OF NEW YORK
By: Christina Calabrese, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 13, 2018
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that he sustained injuries when he was assaulted by correction officers at Greene Correctional Facility (CF). The trial of liability on this claim was conducted on May 22, 2018 in Albany, New York. Claimant, whose native language is Spanish, testified through a duly sworn interpreter. Defendant presented the testimony of Department of Corrections and Community Supervision (DOCCS) Correction Officer (CO) Jerome Gales and Sergeant Bruce Chamberlain, whose testimony was translated from English into Spanish by the interpreter. Six exhibits, including photographs taken of claimant after the alleged assault, offered by claimant were received into evidence, as were two exhibits offered by defendant. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence, all of the other evidence, the applicable law, and the parties' arguments at trial, the Court concludes that defendant is not liable to claimant for his injuries because the actions of defendant's agents were outside the scope of their employment.

FACTS

On Tuesday, September 8, 2015, claimant, an inmate serving a term of imprisonment for attempted murder and attempted rape, was incarcerated at Greene CF, a medium security facility. He was assigned to bed 26 in a cubicle in the E-1 dorm, and he testified that he had resided in E-1 dorm for four months and did not have any issues with any of the other inmates in his dorm during that time. Claimant's native language is Spanish, but he has limited proficiency in the English language and could interact in English. A DOCCS logbook reflects that CO Loughman was the E-1 dorm officer on duty for the 11:00 p.m. to 7:00 a.m. shift from September 7 to September 8, 2015 and that there were 54 inmates housed on the dorm on that date (see Claimant's Exhibit 8 [11-7 logbook]). On September 8, 2015, CO Jerome Gales relieved CO Loughman at 6:50 a.m. on September 8, 2015 and was scheduled to work the 7:00 a.m. to 3:00 p.m. shift.

Claimant testified that he went to "chow"(3) the morning of September 8, 2015 without incident. CO Gales' logbook reflects that he called chow at 7:00 a.m. and that 15 inmates responded (see id. [7-3 logbook]). Claimant testified that he went to lunch between 11:45 a.m. and 12 noon after chow was called in his dorm. Claimant testified that after lunch he returned to his E-1 dorm at approximately 12:15 p.m. by walking on an outdoor path. Claimant testified that on the way back to the dorm he lit up a cigarette and that he stopped at the porch in front of the E-1 dorm and continued to smoke his cigarette with four other inmates. Claimant testified that as he was finishing his cigarette, he noticed CO Gales, who was seated inside the dorm, look toward the door, get up out of his seat and walk toward the door. Claimant testified that the other four inmates proceeded to go into the dorm and that CO Gales approached him on the porch and asked him, "What the hell are you doing here?" Claimant testified that he told CO Gales that he was smoking a cigarette, and that CO Gales replied, "I didn't give you any damn permission to smoke your [expletive] cigarette." Claimant testified that he asked CO Gales why he did not tell that to the four other inmates that were just smoking and that he had insulted him, to which CO Gales told claimant, "Shut your [expletive] mouth up and go to your cubicle." Claimant testified that he extinguished his cigarette in the ashtray on the porch and that as he walked by CO Gales into the dorm, Gales hit claimant with an open hand to the side and back of his head and said to claimant "You don't like following instructions." Claimant testified that he told CO Gales that he had no problem following instructions and asked him why he hit him, to which CO Gales said "Shut your [expletive] mouth up and go to your cubicle."

Claimant testified that three minutes after he was in his cubicle, CO Gales came over and told him that he was going to "burn" his commissary, to which claimant replied that he was fine with that because he did not have much money in his account. Claimant testified that the phone rang and CO Gales went to answer the phone and thereafter called for two groups to go to the commissary, including claimant's group. Claimant testified that he got his identification (ID) card and walked to the "bubble" where CO Gales was stationed and placed his ID card and proceeded to walk toward the bathroom when CO Gales asked him, "What the hell are you doing?" Claimant testified that he told CO Gales that he was going to the bathroom and CO Gales said "I didn't tell you to move from your damn cubicle," and hit claimant again with his left hand, which claimant unsuccessfully tried to block. Claimant testified that CO Gales told him, "Go to your damn cubicle," and that claimant asked him why he was abusing him and treating him like that because he was not disrespecting him. Claimant testified that CO Gales said, "Shut your [expletive] mouth up," and claimant told him that he was going to file a grievance against him, to which CO Gales replied, "Go to your [expletive] cubicle." Claimant testified that as he was walking away, CO Gales said, "You know what, I have a better surprise for you," and went into the bubble and picked up the phone and began talking. Claimant testified that CO Gales called him to the bubble four or five minutes later and gave him a pass and told him to go to the Sergeant's Office.

Claimant testified that he walked by himself to the Sergeant's Office at approximately 1:30 p.m. or 1:40 p.m., knocked on the door, and went into the office when told to enter. Claimant testified that the Sergeant's Office was very small and contained four desks with computers and filing cabinets, and that there were four correction officers in the office, including Sgt. Bruce Chamberlain, two other sergeants at two other desks, and a lieutenant who was leaning up against a desk, and that another CO arrived after he entered the office. Claimant testified that he sat down on a chair in the middle of the room and put his hands in his lap, but immediately complied with an order to place his hands behind him under his buttocks. Claimant testified that Sgt. Chamberlain asked him who he fought with, to which claimant replied, "I don't know what you're talking about," and that when Sgt. Chamberlain repeated the question, claimant replied, "I thought [CO Gales] told you what happened." Claimant testified that Sgt. Chamberlain said that CO Gales told him that claimant had been fighting with another inmate, to which claimant replied that it was CO Gales. Sgt. Chamberlain responded, saying "Oh, it was [CO Gales]? You know, I'm not stupid. Who did you fight with? Why is your face all red?" Claimant testified that he repeated that CO Gales had hit him, that Sgt. Chamberlain touched his own face as though he was "all stressed out" and said to him, "I'm going to ask you one last time, who did you fight with?" Claimant testified that he restated that he had been struck by CO Gales. Claimant testified that Sgt. Chamberlain then looked at the other officers and said "I think we're going to have to do this the hard way because he does not understand."

Claimant testified that Sgt. Chamberlain started to move to claimant's left and as claimant turned his head, Sgt. Chamberlain said "No, keep your head looking straight," and that Sgt. Chamberlain then moved into his peripheral vision and said "I'm going to give you another opportunity . . . Who did you fight with?" Claimant testified that he responded "I didn't fight," and claimant's left eye was immediately struck and "everything just turned off" and he lost consciousness for a few seconds. Although claimant could not state definitively that Sgt. Chamberlain hit him, he testified that Sgt. Chamberlain was the closest officer to him when he got hit. Claimant testified that when he regained consciousness he was on the floor bleeding from his nose and the side of his left eye, and felt like he had been hit on the back of his head and heard the sound of the correction officers laughing. Claimant testified that he asked, "What happened?" and Sgt. Chamberlain replied, "I told you we were going to do this the hard way." Claimant testified that Sgt. Chamberlain looked off at another sergeant and asked, "Who are the ones who have the most problems in his dorm?" and the sergeant looked at a computer for two minutes, wrote something down on a piece of paper and handed it to Sgt. Chamberlain. Claimant testified that Sgt. Chamberlain then took a seat at a desk, opened a drawer and picked out a big three-ring binder that contained photographs of inmates from E-1 dorm and threw it to claimant who was still on the floor and told him to look for names that he was going to tell him and that he was going to write a report that he was attacked by three other inmates. Claimant testified that he told Sgt. Chamberlain that he would not write the report and Sgt. Chamberlain replied that he would not lose his programs and that he would be fine. Claimant testified that he again told Sgt. Chamberlain that he would not write the report and another officer told claimant to do as Sgt. Chamberlain requested or it was going to be worse. Claimant testified that Sgt. Chamberlain told him, "Look, don't worry, sign the papers and I'll take care of the rest," but claimant replied that he would not sign the papers. Claimant testified that he was then kicked in the left elbow by a "terrible blow" that caused him to start crying in pain. Claimant testified that he signed a document that Sgt. Chamberlain asked him to sign because he was "so scared."

The Court received into evidence a "Free Will Statement" that was purportedly made by claimant and witnessed by Sgt. Chamberlain that states:

"Yesterday after coun 3 inmake jump me in the bathroom I tried to hit back bu I can inmake hith me and tol me focki rape I not want you in mi house. I wey to the next day because an scare to my life. This happen 12:45 AM on 9/8/15.

The tree guy hit me

is

1. Dawkins Oraine - 10B2783

2. Sounders Kevin - 14 R1870

3. Johnson Michael - 14 R2919

Today I cover my face whe the she for the C.O. can see me becaube I scare to the inmake do something eals."

(Defendant's Exhibit B [spelling, grammatical and punctuation errors unedited]; Claimant's Exhibit 6, p.4). Claimant testified that he recognized the signature as his own, that the written statement was not in his handwriting and that this document must have been the document that he signed while on the floor in the Sergeant's Office. Claimant testified that he could not read and write English on September 8, 2015, although he was able to read the pass that CO Gales gave to him that directed him to go to the Sergeant's Office on September 8, 2015. Claimant testified that other inmates in E-1 dorm within his "circle" knew that he had been convicted of attempted rape.

Claimant testified that after he signed the document, the lieutenant stated "OK, that's enough. Take him to the clinic." Claimant testified that he was taken to the Greene CF clinic by Sgt. Chamberlain and that the nurse said, "My God, what happened to him," to which Sgt. Chamberlain replied, "Just write what I'm going to tell you. He has no comment. This was a fight he had with another inmate." Claimant testified that while he was at the clinic he just completed the paperwork, and the nurse did not examine or evaluate his injuries. Claimant testified that after his injuries were photographed at the clinic, he was placed in an ambulance and transported to Albany Medical Center (AMC) accompanied by two COs. Photographs of claimant clearly depict that his left eye is very badly bruised (see Claimant's Exhibit 4).

Claimant testified that he had no direct communication with any doctor or nurse at AMC and that COs were present with him at all times at AMC and told him to "shut [his expletive] mouth." Claimant's AMC medical records reflect that he was admitted to the AMC Emergency Department at 2:33 p.m. on September 8, 2015 and discharged at 12:40 a.m. on September 9, 2015 (Defendant's Exhibit A, p.10). An entry in claimant's AMC records reflects that claimant was "able to speak some english [sic] and convey needs" (id., p.12). Another entry notes:

"[Claimant] reports that he was attacked by 3 other prisoners earlier today [9/8/15]. He immediately dropped to the ground, and had a brief [loss of consciousness]. However, he recalls being kicked in the head and all over his body. He was also punched in the face. His associated symptoms include broken nose, [left] eye bruising, [left upper extremity] numbness and pain"

(Defendant's Exhibit A, at p.15). Claimant was diagnosed with "Closed Fracture of orbital floor (blow-out), Closed Fracture of Nasal Bones, Contusion of Forearm" (id., p.10).(4) Claimant was given morphine while at AMC on September 8, 2015 (id., p.44), and continued to receive doses of percocet at the Greene CF infirmary through September 15, 2015 (see Claimant's Exhibit 7 [DOCCS Progress Notes]). Claimant underwent surgery to repair the orbital and nasal fractures on September 15, 2015, and a perioperative note stated that claimant "speaks Spanish, does understand most english [sic]" (Claimant's Exhibit 3 [9/15/15 AMC Perioperative Plan] [emphasis in original]).

CO Gales testified that on September 8, 2015 he first observed claimant when he made his 11:00 a.m. rounds, that claimant was in his bed completely covered up and that he went over to claimant's cubicle and that when he called out to claimant to get his attention, claimant moved and said that he was all right. CO Gales testified that he was unable to observe claimant's face or body, with the exception of the top of his head since he was completely covered up. CO Gales' log book reflects that at 12:22 p.m., 1:00 p.m. and 1:40 p.m. CO Gales made rounds (Claimant's Exhibit 8 [7-3 logbook]). CO Gales testified that rounds are supposed to be made every hour at irregular times and that when he makes rounds he walks around the dorm and observes. CO Gales testified that inmates were not required to leave their ID card at the CO desk before using the bathroom during the 7:00 a.m. to 3:00 p.m. shift, but that they were required to do so during the overnight shift and that no more than two inmates at the same time could use the bathroom during that shift. CO Gales' logbook reflects that he called lunch chow at 11:25 a.m. and that eight inmates responded (id.). CO Gales testified that claimant did not go to lunch because if he had done so, he would have noticed claimant's injuries.

CO Gales testified that at 1:40 p.m. it was brought to his attention by someone at the commissary that claimant did not show up for his commissary, so he called claimant over to his desk. CO Gales testified that claimant wore sunglasses when he came to his desk, which was unusual, and in Gales' experience that indicated that claimant was attempting to hide facial injuries. CO Gales testified that he told claimant to take his sunglasses off and that when he did Gales observed that claimant had two black eyes. When Gales asked claimant what had happened, claimant did not answer, shrugged his shoulders and said he did not know. CO Gales testified that he noticed that something was wrong with claimant's arm and that his elbow was "clearly out of socket." CO Gales testified that he notified the sergeant on duty, who told him to send claimant to the Sergeant's Office and that claimant was then likely escorted by another CO to the Sergeant's Office. CO Gales' logbook contains the following entry after the 1:40 p.m. entry noting that rounds were made: "NOTE: During rounds discovered [claimant] had injuries consistant [sic] w/ a fight. Area supervisor was notified and [claimant] was sent to the Sgt's Office" (Claimant's Exhibit 8 [7-3]). The entry about claimant's injuries was the last entry in CO Gales' logbook notwithstanding that CO Gales' shift did not end until 80 minutes later at 3:00 p.m. CO Gales testified that on September 8, 2015 he did not curse at or have any physical interaction with claimant, and CO Gales categorically denied assaulting claimant.

CO Gales prepared two "To/From" memoranda to Sgt. Chamberlain on September 8, 2015. One To/From memorandum states:

"On [September 8, 2015] @ approx 11AM while conducting count rounds in E-1 dorm I had to wake [claimant] out of his sleep. Once [claimant] sat up in his bed and I saw he was alive and breathing I continued making my count rounds. At this time I did not notice any physical injuries to [claimant]. At approx 1:40 PM during security rounds I decided to question [claimant] because he had not left his cube during my tour of duty. At this time I discovered [claimant] had a black and blue left eye. Area supervisor was immediately notified."

(Claimant's Exhibit 6 [9/8/15 Memorandum on DOCCS Letterhead]). The second To/From memorandum states:

"On [September 8, 2015] at approximately 1:40 PM while conducting security rounds, as the E-1 dorm officer Tour II 7-3 shift. [sic] I decided to question [claimant] because he had not moved from his bed 26 - cube during my tour of duty. At this time I discovered [claimant] had a black and blue left eye. [Claimant] also stated that [indecipherable]. I immediately [indecipherable] my area supervisor, and then sent [claimant] to the Sgt's Office upon Sgt. Chamberlain's request."

(id. [9/8/15 Memorandum with "Def C" Sticker]).

Sgt. Chamberlain testified that at approximately 1:45 p.m. on September 8, 2015 he received a call from CO Gales who reported that claimant had injuries that were consistent with fighting, namely a black and blue left eye, and that he complained that he may have a broken left arm. Sgt. Chamberlain testified that he instructed CO Gales to send claimant to the Sergeant's Office because he wanted to ascertain how he sustained such injuries. Sgt. Chamberlain testified that he was not at the Sergeant's Office at the time of the call and that by the time that he got to the Sergeant's Office claimant, who was not escorted to the Sergeant's Office, was waiting for him on a bench outside the office. Sgt. Chamberlain testified that the Sergeant's Office was unoccupied at the time and he asked claimant to come into the office, that they entered the office and he attempted to interview claimant. Sgt. Chamberlain testified that claimant did not indicate to him that he did not understand English and that claimant spoke English. Sgt. Chamberlain testified that claimant's left eye was swollen with a "severe bruise" that was about the size of a softball, and that he noticed that claimant was favoring his left arm, so he asked claimant to raise up the sleeve on his sweatshirt and observed swelling in his left forearm. Sgt. Chamberlain testified that claimant's injuries were "a little more significant than what [he] expected to see," so he and CO Gilligan escorted claimant to the medical department. Sgt. Chamberlain testified that claimant was assessed and evaluated at the infirmary by medical staff, including Dr. Smith, who determined that claimant needed to be transported to AMC for further evaluation. Sgt. Chamberlain testified that he did not prevent claimant from having any candid conversations with medical staff.

On direct examination, Sgt. Chamberlain testified that claimant told him in the emergency department of the infirmary that he had been "jumped" by three inmates and assaulted in the inmate bathroom at 12:45 a.m. that day and the assailants told him that he could not live in their dorm because he was a rapist. Sgt. Chamberlain testified that he spoke to CO Loughman who indicated that there was no incident during the night shift. Sgt. Chamberlain testified that only two inmates may use the bathroom at one time during the night shift, and that inmates are supposed to leave their ID cards with the CO on duty. CO Loughman's logbook indicates that it was "lights out in dorm" at 11:00 p.m., that the count was taken at 12:01 a.m., and that rounds were made at 11:20 p.m., 12:40 a.m. and 1:30 a.m. (see Claimant's Exhibit 8 [11-7 logbook]). Sgt. Chamberlain testified that claimant had admitted to him that he had covered his body with a sheet and wore sunglasses in the dorm to hide his injuries from staff. Sgt. Chamberlain testified that CO Gales should have asked claimant to stand and uncover himself during the 11:00 a.m. rounds, and that inmates are allowed to wear sunglasses indoors only if they have a medical permit. Sgt. Chamberlain testified that claimant identified three inmates who assaulted him by identifying their bed numbers and confirming their identities through photographs of the inmates that were in a book that was provided to him. During cross-examination, Sgt. Chamberlain's recollection of whether claimant had told him about the alleged assault while they were in the Sergeant's Office or in the infirmary was uncertain, but that he remembered having showed him the photographs in the infirmary. Sgt. Chamberlain testified that CO Gilligan took photographs of claimant's injuries at his direction, and that claimant wrote the statement contained in the "Free Will Statement" in the infirmary (see Defendant's Exhibit B). Sgt. Chamberlain testified that claimant never told him that CO Gales assaulted him, that he did not assault claimant, and that he did not witness anyone assault claimant.

Sgt. Chamberlain testified that he "thought it best" to do an "upper body check" of all the inmates in the E-1 dorm, which includes examining inmates' hands, arms and upper torso for injuries consistent with fighting. Sgt. Chamberlain testified that an upper body check of the E-1 dorm that was done at 3:25 p.m. on September 8, 2015 yielded no inmates who had any such injuries. Sgt. Chamberlain testified that inmates sometimes wear gloves and additional clothing to prevent injuries associated with fighting. Sgt. Chamberlain testified that he interviewed the three inmates that were identified by claimant, and another seven inmates at random from E-1 dorm about the alleged altercation, and that the inmates either believed or had been told that claimant had been involved in a fight or was struck on the south walkway one to two days before. Sgt. Chamberlain testified that the walkways between dorms are supervised by staff during major inmate movements and that there are times when the walkways go unsupervised.

Sgt. Chamberlain authored a memorandum to Lt. Ferrier dated September 8, 2015 that was consistent with his testimony: "[Claimant] stated that yesterday after the count three inmates 'jumped' him in the inmate bathroom. [Claimant] stated he fought back to defend himself. [Claimant] stated the inmates hit him and said they didn't want him in the dorm because he was a rapist. [Claimant] stated this occurred at approximately 12:45am on 9-8-15 . . . [Claimant] stated that today he covered his face on the dorm with a sheet to hide it from staff and because he was scared the inmates would do something else."

(Claimant's Exhibit 6 [9/8/15 Chamberlain Memo]). The memorandum further states that Sgt. Chamberlain conducted interviews of nine inmates who gave verbal and written statements that vary in substance, but that seven of the nine gave statements indicating that claimant was assaulted on a walkway in the days preceding the assault. Sgt. Chamberlain concluded "based on [his] investigation" that claimant "was involved in a fight with un-named inmate(s)" and that he was "unable to determine where the fight took place" (id.).

Sgt. Chamberlain issued an inmate misbehavior report (IMR) charging claimant with fighting, violent conduct and failing to report his injuries (see id. [9/8/15 IMR]). Sgt. Chamberlain did not issue IMRs to the three inmates that were named by claimant in the "Free Will Statement" because based upon his investigation he had "no idea what happened." Claimant testified that he attempted to file a grievance against CO Gales, but that whenever the document left his cell it was torn up by correction officials.

DISCUSSION

Claimant alleges that he was the victim of an unprovoked battery by CO Gales, Sgt. Chamberlain and other correction personnel at Greene CF on September 8, 2015 (see e.g. Manley v State of New York, UID No. 2009-030-008 [Ct Cl, Scuccimarra, J., Mar. 30, 2009]). "To recover damages for battery, a [claimant] must prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the [claimant's] consent" (Bastein v Sotto, 299 AD2d 432, 433 [2d Dept 2002]). It is claimant's burden to prove his claim by a preponderance of the credible evidence (see Tomaino v State of New York, 22 Misc 3d 1013, 1019 [Ct Cl 2008]; Kosinski v State of New York, UID No. 2000-028-0012 [Ct Cl, Sise J., Nov. 30, 2000]), and the credibility of the witnesses at trial is a critical factor in the determination of whether claimant has met that burden (see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Medina v State of New York, UID No. 2007-028-010 [Ct Cl, Sise, P.J., Mar. 2, 2007]). At the conclusion of claimant's case, defendant moved to dismiss the claim on the grounds that claimant had failed to establish prima facie that he was the subject of a battery. In the alternative, defendant argued that if the Court finds that claimant had been assaulted as alleged, then defendant should not be found liable because the officers were acting outside the scope of their employment. Claimant opposed the motion, arguing that there was ample evidence that claimant was subjected to a battery, and that defendant had notice of the activities of its employees and failed to stop the assault and battery.

Two drastically different and irreconcilable versions of the events of September 8, 2015 were presented at trial, leaving the Court to credit one and reject the other, or reject them both. Claimant's case presented an unprovoked assault and battery by CO Gales, Sgt. Chamberlain and others, while defendant presented proof that claimant had been assaulted not by staff, but allegedly by three inmates. If the Court were to credit defendant's version of the events, the claim of assault by defendant's employees would be dismissed for failure to establish a prima facie case. On the other hand, if the Court were to fully credit claimant's version and find that he had been assaulted by defendant's employees as he testified, defendant would not be found liable to claimant for the acts of its employees because the preponderance of the credible evidence fails to demonstrate that the correction officers were acting within the scope of their employment when they viciously assaulted him without provocation.

Employees of DOCCS are authorized to use a limited degree of physical force when it is reasonably necessary to enforce an inmate's compliance with a lawful directive (see Correction Law 137 [5]); 7 NYCRR 251-1.2 [b] [d]; see also Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]). When a State employee uses a degree of force that is excessive under the circumstances, the State may be held liable for any injuries that are sustained by an inmate as a result of that use of excessive force (see Jones v State of New York, 33 NY2d 275 [1973]; Stein v State of New York, 53 AD2d 988 [3d Dept 1976]; Kosinski v State of New York, UID No. 2000-028-0012 [Ct Cl, Sise, J., Nov. 30, 2000], citing Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Brown v State of New York, 24 Misc 2d 358 [Ct Cl 1960]). The State may be held liable under the doctrine of respondeat superior for an assault and battery committed by its employees if the assault and battery was "committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002] see also Jones v State of New York, 33 NY2d 275, 279-280 [1973]). However, [i]f . . . an employee for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]).

There was no evidence adduced at trial that claimant engaged in any behavior that would have led to an authorized use of force. Indeed, claimant's testimony was that he was fully compliant with instructions and there was no other persuasive evidence adduced that he engaged in conduct that would have prompted an authorized use of force. Thus, if claimant's version is believed, he was subjected to an unwarranted assault by CO Gales and an unjustified and vicious assault in the Sergeant's Office due to his refusal to admit to a falsehood and not because he was disobedient or posed a physical threat. Thus, the Court finds that the actions of the officers on September 8, 2015 would have materially deviated from their duty as correction officials in maintaining custody and control of claimant, and constituted a clear departure from the scope of their employment such that defendant cannot be held liable for their actions (see Matter of Sharrow v State of New York, 216 AD2d 844 [3d Dept 1995] [COs acted outside scope of employment in use of force where the assault was unprovoked and the inmate did not resist]; Vargas v Correa, 416 F.Supp. 266, 272 [SDNY 1976] [COs assault of inmate over disagreement over a television show fell outside scope of employment]; Shurdhani v State of New York, UID No. 2012-032-009 [Ct Cl, Hard, J., Jan.11, 2013] [Youth Division Aide's slap to the back of the head after an insulting gesture did not fall within scope of employment]). Thus, under the facts of this case as presented at trial, the State cannot be held liable for the acts of its employees under the doctrine of respondeat superior, as his remedies may reside against other defendants in other judicial fora.

Finally, to the extent that claimant argues that defendant had notice of the activities of its employees and failed to stop the assault and battery, that argument supports a cause of action sounding in negligent training, supervision and retention, which could lead to that employer's liability for acts committed by its employees outside of the scope of employment. To the extent that this claim generally asserts negligence, there was no evidence adduced on claimant's case, or on defendant's case for that matter, that defendant "knew or should have known of the employee's propensity for the conduct which caused the injury" (State Farm Ins. Co. v Central Parking Sys., Inc., 18 AD3d 859, 860 [2d Dept 2005]).CONCLUSION

Claimant has failed to prove by a preponderance of the credible evidence that he was subjected to an assault and battery by defendant's agents while acting within the scope of their employment or that defendant was aware of the propensity of its agents to perpetrate such an assault. Accordingly, claim number 127111 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.

The Chief Clerk is directed to enter judgment accordingly.

June 13, 2018

Saratoga Springs, New York

W BROOKS DeBOW

Judge of the Court of Claims


2. The caption of the claim has been amended sua sponte to reflect the State of New York as the only proper defendant on this claim.

3. Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.

4. Although claimant was admitted with a "left arm deformity" (id., p.18), x-rays revealed no fracture or dislocation to his left shoulder, elbow or forearm (id., p.54).