New York State Court of Claims

New York State Court of Claims
BROWN v. THE STATE OF NEW YORK, # 2018-040-007, Claim No. 123750

Synopsis

Following trial, Claim dismissed as time barred by one-year statute of limitations. Additionally, 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: 2018-040-007
Claimant(s): DENNIS BROWN, DIN# 96-A-3118
Claimant short name: BROWN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123750
Motion number(s):
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Dennis Brown, 96-A-3118, 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
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Pro se Claimant, Dennis Brown, failed to timely serve and file his Claim prior to expiration of the one year statute of limitations (CPLR 215[3]) and 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 seven exhibits (Ex. 1-7) and the State submitted into evidence one document, a copy of the facility disciplinary packet for Claimant regarding this incident (Ex. A). Claimant testified on his own behalf, and Defendant offered the testimony of Correction Officer (hereinafter, "CO") James Coburn and CO Gary Clearwater.

Claimant testified that, on October 28, 2012, he was going back to his cell from the mess hall when CO Friedman followed him and told him to put his hands on the wall for a pat frisk. He stated that he put his hands on the wall, was frisked, and was escorted to his cell. Later that evening, COs came to his cell, he was placed on the wall again, and then the COs assaulted him after he was handcuffed, by slamming his head into the wall and then kicking him after he fell to the floor.

CO Coburn testified that he has been employed by the Department of Corrections and Community Supervision (hereinafter, "DOCCS") for approximately seven years and is currently working at Attica Correctional Facility, and that, prior to that, he worked at Eastern for about three years. He stated that he was working at Eastern on October 28, 2012 and recalls the incident. The witness identified Ex. A, page 18, as the Misbehavior Report he issued to Claimant on October 28, 2012 (see also Ex. 4) and Ex. A, page 20, as the memorandum he wrote to Sergeant Smithem regarding the use of force applied against Claimant on October 28, 2012. CO Coburn stated that he was escorting Claimant, who had mechanical restraints on his hands, which were behind his back, to SHU. When they were near the laundry room, Claimant lunged forward and fell face first to the floor. At that point, Claimant started kicking backward at the witness in what the CO described as a "donkey kick." The CO testified that he gave Claimant several direct orders to stop kicking him and Claimant refused. CO Coburn was able to get Claimant to his feet and get him "on the wall." Other COs arrived to assist him at that time. He testified that his job was to escort Claimant to SHU and he had no prior issues with Claimant.

CO Clearwater testified that he has been employed by DOCCS for 17 and one-half years. He is currently working at Ulster Correctional Facility and, prior to that, he worked at Eastern. He stated he was working at Eastern on October 28, 2012 and recalls the incident. He stated that he witnessed Claimant throw himself to the floor and start kicking CO Coburn. He saw CO Coburn pick Claimant up from the floor and place Claimant against the wall. He went over to Claimant and CO Coburn. He testified that he finished the escort of Claimant to SHU, but that they went to the infirmary first to have Claimant examined (see Exs. 1, 2). He further stated that he did not see CO Coburn kick, strike, or hit Claimant in any way.

At the conclusion of the State's case, Defendant made an oral motion to dismiss the Claim on the basis that the statute of limitations had expired prior to the Claim being served and filed. According to CPLR 215(3), an action for assault or battery, which are intentional torts, must be commenced within one year of accrual (see also Court of Claims Act 10[3-b] [claim for personal injuries caused by the intentional tort of a State employee shall be served and filed within one year of accrual, provided that a notice of intention is served on the Attorney General within 90 days of accrual]). Here, Claimant alleges he was assaulted on October 28, 2012. He asserts that he served a Notice of Intention upon Defendant on January 18, 2013 (see Court Exhibit 1, 8), however, he did not file his Claim with the office of the Clerk of the Court until January 6, 2014 and the Claim was not received by Defendant until January 8, 2014. Thus, the Claim was filed and served a little more than two months after the statute of limitations expired. As the State raised the defense of expiration of the statute of limitations in its Answer as its fourth defense (see Court Ex. 2, 5), the defense was preserved. The Court, therefore, dismisses the Claim as barred by the one-year statute of limitations.

Assuming, arguendo, the Claim had been timely served and filed, the Claim would still be dismissed. "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: Claimant caused himself to fall to the floor and began kicking CO Coburn; Claimant failed to comply with an order to get up from the floor and stand against the wall; and CO Coburn used the force necessary to get Claimant under control. The Court also credits the misbehavior report of CO Coburn and his memorandum to Sergeant Smithem regarding the use of force used against Claimant on October 28, 2012 (Ex. A, pp. 18 and 20). Based upon all of the foregoing, the Court concludes that Claimant was not assaulted by any COs. Rather, it was Claimant who assaulted CO Coburn and that the COs used the force necessary to gain control of Claimant. The Court determines that the officers 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 October 28, 2012, and the Claim 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.

January 23, 2018

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims