New York State Court of Claims

New York State Court of Claims
REYNOLDS v. THE STATE OF NEW YORK, # 2018-053-004, Claim No. 126543

Synopsis

After a bifurcated trial on the issue of liability, the Court finds that claimant failed to establish that any correction officer used excessive force and his claim is dismissed.

Case information

UID: 2018-053-004
Claimant(s): ROY REYNOLDS, SR.
Claimant short name: REYNOLDS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : The Court has sua sponte amended the caption to reflect the properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126543
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: LIPSITZ GREEN SCIME CAMBRIA, LLP
BY: Gregory P. Krull, Esq.
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 8, 2018
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On August 5, 2013 at approximately 6:30 p.m., claimant was allegedly assaulted by correction officers at the defendant's Gowanda Correctional Facility (Gowanda) where he was incarcerated. As a result of the assault by correction officers, it is alleged that claimant suffered various personal injuries, including a fractured jaw. A notice of intention to file a claim was served on the Attorney General of the State of New York on September 26, 2013 and a claim was filed on August 4, 2015.

The trial of this claim was bifurcated and addressed the issue of liability only. The trial was held in Buffalo on February 21, 22 and 23, 2018. The claimant's proof included testimony from claimant and evidence consisting of an inmate grievance complaint and appeal, as well as numerous photographs. In defense of the claim, the State offered the testimony of Correction Officer Kurt Van Sickle (CO Van Sickle), Correction Officer Caine Luther (CO Luther), Sergeant Tim Delaney (Sgt. Delaney), Sergeant Thomas Happell (Sgt. Happell), Sergeant Christopher Marrocco (Sgt. Marrocco) and Captain Allen Strasser (Capt. Strasser). Among the exhibits received into evidence from the State were an unusual incident report, a use of force report, a misbehavior report concerning claimant, and injury reports regarding CO Luther and CO Van Sickle. Following the trial, the parties requested and were granted additional time to obtain and review the trial transcript and submit post-trial memoranda.

TESTIMONY OF ROY REYNOLDS, SR. Roy Reynolds testified that he was 58 years old on August 5, 2013, the day of the incident. He testified that he was incarcerated at Gowanda for a parole violation involving a beer that had allegedly been left on his bedroom dresser by a woman who had left his house when parole officers searched his home (TT: 15-17).(2) Claimant testified that he had about two months of parole remaining when he was placed in a correctional facility for violating the conditions of his parole (TT: 19-20).

On August 5, 2013, claimant arrived at Gowanda from Mid-State Correctional Facility. He was transferred to Gowanda as he was designated as a person who required a lower bunk due to a prior back surgery (TT: 21-22). Upon his arrival, claimant testified that he was given a housing assignment in D1 West, a building that housed sex offenders and those incarcerated for driving while intoxicated (TT: 25-26). Claimant identified several photographs depicting the door, stairwell and the rotunda room in the D1 West building, which were received into evidence as Exhibits 5A through 5J. Claimant testified that the rotunda room depicted in Exhibit 5A was dark when he entered the day of the incident. He also identified in that photo the doorway with the green mat as being the door leading to the stairwell and down to the door leading out of the D1 West building (TT: 31-32). Claimant testified that when he arrived in the rotunda room, he went to the correction officer seated "inside the bubble" and handed him his ID card. He stated that the officer then looked at his ID card and gave him a bed assignment and directed him where to go to find it (TT: 34-35).

Claimant testified that it was dark in the rotunda room and in the room that he was directed towards to find his bunk assignment. While doing so, he testified that he spoke to another inmate who told him that the D1 West building was for sex offenders. Claimant testified that he then went back to the officer in the rotunda room to ask for a sergeant to talk to about being placed in a sex offender building. He told the correction officer that he believed that a mistake had been made with his bunk assignment and the correction officer again asked for his ID card which he alleged he then placed on the counter ledge. Claimant testified that the correction officer looked at his ID card and then threw it on the floor and told claimant to "get on the (expletive) wall", which he understood to mean that the correction officer wanted to search him. Claimant testified that he got on the wall in a pat frisk position with his hands spread apart and his feet spread about four feet apart. Claimant testified that the rotunda room remained dark and that none of the lights were on as depicted in photo exhibit 5A (TT: 35-40). He denied that he ever threw his ID card at the correction officer. Claimant testified that when he got on the wall in pat frisk position, the correction officer took him by the back of his collar and slammed his face into the wall, stating "you (expletive) rape-o", then took and threw his glasses across the floor. Claimant testified that despite the correction officer's actions, he remained compliant with his request (TT: 42-43).

Claimant testified that he then became aware that the correction officer had activated his personal alarm system or PAS and shortly thereafter, other correction officers arrived. When the other correction officers arrived, claimant testified that his hands were still up against the wall and they grabbed his wrists and placed handcuffs on him with his hands behind his back. Claimant testified that throughout this time period, he was in complete compliance with the officer's requests (TT: 44-46). Claimant testified that "at least two" correction officers were behind him holding each arm and took him out the door with the green mat depicted in photo exhibit 5A (TT: 47-49).

Claimant was shown photo exhibit 5D and asked if this depicted the landing on the other side of the door from the rotunda room, to which claimant responded that it appeared to be but that it was so dark in the stairwell at that time that he couldn't see anything. Claimant insisted that it was dark at the stair landing and that there were no lights in the stairwell (TT: 49-50). Claimant testified that once they had him on the first step at the top of the landing, the correction officers holding him pushed him down the stairs. He denied making any sudden or violent movements to his left or right or using his feet to trip the officers prior to going down the stairs. Claimant also denied that the officers holding him fell down the stairs (TT: 51-52). He testified that he fell on his knees and tried to turn on his side and instead landed on his belly, face down at the bottom of the stairs. Claimant testified that once he was at the bottom of the stairs, the correction officers started kicking him in the face and all over his body, while shouting racial slurs (TT: 53-54). While he was allegedly being kicked, the door at the bottom of the stairs was closed, the lights were out and it was so dark that "you couldn't see the stairs." Claimant testified that the kicking lasted for two minutes (TT: 54-56). Claimant testified that when the kicking stopped, he could feel pain in his head and ear and as his hands were still cuffed behind him, he was unable to get up. He stated that the correction officers then stood him up and he was punched several times in the stomach. They then took him outside to go to the infirmary. Claimant testified that two officers dragged him to the infirmary as he was completely unable to walk (TT: 57-59).

Claimant identified photo exhibits 4A through 4G as the photographs taken of him following his fall while he was in the infirmary. He identified photo exhibit 4A and the areas of blood in his mouth as having been caused when the correction officer slammed his head against the wall in the rotunda room (TT: 60-65). It was during the time that claimant was in the infirmary that he related that he believed that his jaw was broken and eventually, he was taken to Erie County Medical Center for treatment of his injuries (TT: 65-66).

On cross-examination, claimant admitted that the assault conviction for which he had been previously incarcerated was for attacking his wife and striking her six times with a hatchet after an order of protection had been issued. He did not recall whether striking her with the hatchet had caused a collapsed lung, fractured ribs, fractured left shoulder blade, lacerated right ear, lacerated left thumb and two puncture wounds to her back (TT: 80-82). During questioning by Assistant Attorney General Morcio (AAG Morcio) about the circumstances of his parole hearing and how it had been determined that his parole should be revoked and his sentence extended an additional year, the Court witnessed claimant quickly become highly agitated and belligerent with AAG Morcio (TT: 83-90). And during the course of ruling on an objection by claimant's counsel on the admissibility of claimant's inmate disciplinary history, claimant continued to be agitated and had to be directed by me on several occasions to stop talking so that I could make a ruling (TT: 91-93). When AAG Morcio asked if he had been charged with 17 disciplinary violations while incarcerated over an eight year period, the Court again observed claimant became highly agitated and his response to the questions was in an argumentative and belligerent manner (TT: 93-94). When asked by AAG Morcio if he had received discipline for harassment, claimant again became agitated, argumentative and belligerent (TT: 98-100).

In response to further cross-examination, claimant testified that when he first entered the dormitory building, it was also dark, he couldn't see the stairs and he had no idea how many stairs he climbed. Claimant then testified that it was CO Van Sickle who threw his ID card on the floor and shouted the expletive at him to get on the wall. He testified that he was completely compliant with CO Van Sickle's request that he do so. Claimant then testified that the reason that CO Van Sickle activated his PAS was not because claimant was being belligerent or non-compliant but because he wanted claimant to be escorted out of the dormitory (TT: 102-104). He also denied that he was angry about his assignment to a dormitory housing sex offenders. He denied that he yelled at CO Van Sickle that he "shouldn't (expletive) be here" (TT: 104-105).

TESTIMONY OF KURT VAN SICKLE

CO Van Sickle has been employed as a correction officer by DOCCS since 2003. On the day of the incident, he was working a 3:00-11:00 p.m. shift and was assigned to building D1 West (TT: 118-121). Referencing photo exhibit 5A of the rotunda room, CO Van Sickle testified that the door leading to the stairwell is utilized both by correction officers transporting inmates to or from the building, as well as by inmates housed in D1 West (TT: 123-125). Referencing photo exhibit 5B, he testified that all of the doors depicted in that photograph are open and used by correction officers and inmates to access the dining room and recreation room, the counselor's area, the inmate bathroom and shower area, and the bunk room that is also referred to as the barn (TT: 125-127). CO Van Sickle testified contrary to claimant's testimony, stating that all of the lights depicted in photo Exhibit 5A are turned on daily around 7:30 a.m. and remain on until about midnight (TT: 127-128). CO Van Sickle testified that there were generally 50 to 60 inmates in D1 West with one correction officer assigned as the dorm officer and one rover officer who goes between D1 West and D1 East. He testified that he was assigned as the dorm officer on the day of the incident (TT: 128-129). CO Van Sickle was questioned about the use of the PAS, which he described as a radio on a separate channel that is utilized if a correction officer needs assistance. He testified that he had only used it on a few occasions during his seven years at DOCCS preceding this incident. CO Van Sickle testified that he "pulled the pin" on his PAS on the day of the incident because the claimant had become aggressive and had thrown his ID card at him. He testified that after he directed claimant to get to the wall in the pat frisk position, claimant raised his fists in a boxing stance at CO Van Sickle and he then pulled the pin on his PAS. CO Van Sickle testified that he believed claimant was going to attack him (TT: 130-131). In response to claimant's actions, CO Van Sickle testified that he blocked claimant's left arm with his and pushed him towards the wall. Throughout this time, he testified that claimant was yelling and screaming that he wasn't supposed to be in D1 West and directed profanities towards him and was irate and combative (TT: 132-133). CO Van Sickle also denied that the dorm area was dark when claimant arrived that day, indicating that even when the lights are out at night, there is still emergency lighting so that it is sufficient light to be able to see even in the middle of the night (TT: 134). He also denied throwing claimant's ID on the floor, testifying that claimant threw his ID at him and called him a profane name (TT: 137).

CO Van Sickle testified that CO Luther was the first to arrive to assist him, followed by CO Frederickson. He testified that as claimant was still resisting him, they decided to place handcuffs on claimant and remove him from D1 West in order to "quell the situation" and make certain that it didn't escalate to involve other inmates (TT: 138-139). CO Van Sickle testified that after CO Luther and Frederickson left with claimant, he locked the door leading to the stairwell behind him and then heard a commotion in the stairwell. He described the commotion as "some yelling and screaming" and then looked through the window in the door leading to the stairwell but could not see what was going on. However, he stated that he was focusing on the inmates who were coming into the rotunda room (TT: 140-142).

CO Van Sickle identified the inmate misbehavior report and the DOCCS "to/from memo" that he prepared that evening which was consistent with his trial testimony (TT: 143-147).(3) The information contained in the to/from memo was incorporated into a use of force report that was also received into evidence (TT: 148-149).(4) CO Van Sickle also filled out an employee accident report as a result of injuring his right shoulder in the confrontation with claimant. In this report, his description of the incident was consistent with his trial testimony (TT: 149-152).(5) CO Van Sickle denied claimant's allegation that he slammed his face or any other portion of his body into the wall of the rotunda room. He testified that he was pushing claimant with his right arm until he got claimant to the wall. Once CO Van Sickle got claimant to the wall, claimant was continually turning his head and CO Van Sickle kept directing him to face the wall (TT: 152-153).

On cross-examination, CO Van Sickle testified that sex offenders are not segregated from the general inmate population at Gowanda and that the reason they are assigned to buildings C and D is in order for them to attend classes and complete the sex offender program (TT: 154-160). He testified that he never got an opportunity to learn from claimant why he was so upset and aggressive with him (TT: 162). CO Van Sickle testified that he placed claimant's ID on the ledge or counter top of the bubble and that claimant thereafter threw it at him. He denied throwing claimant's ID card at him and reasserted that claimant threw the ID card at him (TT: 163-164). CO Van Sickle testified that claimant did not raise his fists at him until he approached him after coming from behind the bubble, stating that at this point he was yelling and screaming and acting very aggressive (TT: 164-165). He testified that claimant continued to be non-compliant as he first approached him in the middle of the rotunda room after he had ordered claimant to go to the wall. CO Van Sickle testified that when he came from around the bubble, claimant was focusing on him and was not being compliant with his order to move to the wall (TT: 169-170). He testified that when an inmate puts his fists up that he is expecting to be attacked. He agreed that claimant did not swing at him or hit him (TT: 170-171). Once on the wall, CO Van Sickle described claimant's resistance as pushing back at him and leaning into his right arm as he was trying to place him on the wall. He testified that he did not articulate this detail in his incident report or misbehavior report and agreed that this detail was not stated until his deposition in May 2017 (TT: 174-176). CO Van Sickle described the screaming and yelling that he heard from the stairwell as coming from claimant as the voice did not sound like it came from either of the correction officers. He testified that when he looked through the window in the door, there was light at the stairwell landing (TT: 180-183). CO Van Sickle then agreed that there were no cameras or video cameras in the rotunda room or hallway (TT: 189).

TESTIMONY OF CAINE LUTHER

CO Luther testified that he has been a correction officer for the past 11 years. He testified that on the day of the incident he was a resource officer working a 3:00-11:00 p.m. shift and assigned to work in buildings C and D. CO Luther described his work assignment as requiring him to patrol the walkway between the two buildings and be generally available as a first responder (TT: 195-197). He stated that the day of the incident was the first time that he had met claimant. He testified that when he received the PAS call, he was on the walkway in front of building D. CO Luther accessed building D1 West by the stairwell depicted in photo exhibit 5J. As he went through the door entering the rotunda room, he saw CO Van Sickle and claimant near the red firebox on the wall, which is depicted in photo exhibit 5A. He described hearing loud yelling of profanities even before he got through the door and once he entered the rotunda room, he could see that the yelling came from claimant (TT: 198-201). CO Luther also testified that he observed that claimant was not compliant with pat frisk procedures as he was turning his head and pulling his hands off the wall. CO Luther testified that he went around CO Van Sickle to claimant's left side to secure his left hand while CO Frederickson secured his right side. He and CO Frederickson then placed claimant's hands behind his back and cuffed him. CO Luther testified that throughout this time period, claimant continued to yell and scream (TT: 201-206).

CO Luther testified that he and CO Frederickson escorted claimant out of the rotunda room "in order to alleviate any disturbance" that might occur with other inmates as a result of claimant's actions. They took him towards the landing of the stairwell depicted in photo exhibit 5D. He testified that there is not much room there after you go through the door to the stair landing. As they got to the top of the stairs, claimant turned abruptly to his left and his feet got tangled with CO Frederickson's feet. CO Frederickson started falling forward, pulling claimant with him, which then caused CO Luther to fall forward. CO Luther recalled striking one stair with his body on the way down. He testified that at the bottom of the stairs, he saw that CO Frederickson was on the floor with his back against the wall, upside down with his feet in the air. CO Luther testified that he landed on top of claimant. He testified that photo exhibit 5J depicted the bottom of the stairs where the three landed (TT: 207-212). CO Luther testified that after the fall, claimant was still non-compliant and they eventually stood him up. He denied kicking or punching claimant. CO Luther testified that other correction officers then arrived and they took claimant to the infirmary (TT: 212-213). Following the incident, CO Luther testified that he prepared a use of force report and an inmate misbehavior report (TT: 214-218).(6) He also filed an employee accident injury report (TT: 220-223).(7) CO Luther testified at trial consistent with what was included in these reports.

On cross-examination, CO Luther testified that the landing and stairwell were lit, stating that the lights in that vicinity were located to the upper right of photo exhibit 5C. He agreed that none of the photographs provided to claimant's counsel depict the light fixtures existing in the hallway and stairwell (TT: 226-227). CO Luther testified that it was his and CO Frederickson's intent to walk claimant down the stairwell with claimant leading while CO Frederickson and CO Luther held claimant's arms from behind (TT: 228-231). He stated that it was claimant's body weight that pulled him forward down the stairwell. He testified that claimant made "a whipping, jerky motion" that precipitated the three of them falling down the stairs. CO Luther testified that he continued to hold onto claimant as he fell down the stairs (TT: 233-235). CO Luther testified that he didn't see any apparent injury to CO Frederickson's head when he got up and left but later heard that he went to the hospital for a possible concussion. CO Luther saw claimant when he got up and his face was injured and bloody (TT: 236-238).

On redirect, CO Luther testified that it was not proper procedure or protocol to permit claimant to walk down the stairs on his own with his hands cuffed behind him. Instead, he indicated that the proper procedure is for the correction officers to maintain control, which is what he and CO Frederickson were attempting to do by holding his left and right arms (TT: 246-247).

TESTIMONY OF TIM DELANEY

Sgt. Tim Delaney has been employed with DOCCS for the past 12 years and was promoted to sergeant in November 2015. On the day of the incident, he was working a 3:00-11:00 p.m. shift and was assigned as a control officer in building 66. When he received the PAS call, he was about 50 yards from the rotunda room. By the time that he arrived, claimant had been escorted from the rotunda room and he saw CO Van Sickle. He then opened the door to the stairwell and as he stood on the landing, he saw CO Frederickson on the ground at the bottom of the stairs, with claimant next to him and CO Luther standing next to them. Claimant was face down to the right of CO Frederickson. Sgt. Delaney then proceeded down the stairs to assist them (TT: 251-255). He testified that the lights were on in the stairwell. He testified that claimant was helped to his feet and within moments, Sgt. Happell arrived and the two of them escorted him to the infirmary. Sgt. Delaney did not observe anyone kicking or punching claimant and he did not do so (TT: 256-258). At the point that claimant was standing, he was not resistant. Sgt. Delaney denied that he and Sgt. Happell dragged the claimant to the infirmary, stating that he was able to walk slowly to the infirmary (TT: 259-261).

On cross-examination, Sgt. Delaney confirmed that when he was escorting claimant to the infirmary, he appeared as depicted in photo exhibits 4A and 4C. He did not recall him stooping as depicted in photo exhibits 4 and 4E. Sgt. Delaney recalled claimant stating to him as they walked to the infirmary words to the effect, "they broke my jaw." (TT: 262-263). He stated that by the time he arrived, he observed CO Frederickson at the bottom of the stairs either on his back or side and his feet were not then in the air. Sgt. Delaney observed CO Luther at the bottom of the stairs and observed him standing up. He testified that claimant was still lying on the ground when he first arrived (TT: 264-267). He did not observe claimant resisting or being non-compliant (TT: 270).

TESTIMONY OF THOMAS HAPPELL

At the time of the incident, Sgt. Happell had been a sergeant at Gowanda for approximately 10 years. When he heard the PAS call, he was in B tower approximately 75 to 80 yards from the rotunda room. Sgt. Happell identified the door that was open when he arrived to access the stairwell as the one depicted in photo exhibits 5G, 5J and 5I. He testified that when he first arrived, he observed two officers and an inmate at the bottom of the stairwell. All three were standing. He could not recall if he arrived before Sgt. Delaney (then CO Delaney) or not. Sgt. Happell assisted CO Delaney in taking claimant to the infirmary. He denied dragging claimant to the infirmary and stated that claimant was able to walk slowly (TT: 274-279). Sgt. Happell testified that the stairwell has lighting, even though it cannot be seen in the photo exhibits. He stated that claimant's face appeared as depicted in photo exhibits 4A and 4F (TT: 279-280). Sgt. Happell testified that he was in the room when these photographs were taken and explained that their purpose is to document injuries or the lack of injuries after any use of force has occurred. He was then questioned about the use of force report, Exhibit B, and testified that it is required that this report be prepared immediately after an incident. Sgt. Happell also testified that any injury reports from the officers involved or the inmate and any photographs are also included (TT: 280-281). Sgt. Happell's testimony on cross- examination was consistent with his direct testimony (TT: 288-298).

TESTIMONY OF CHRISTOPHER MARROCCO

Sgt. Marrocco has been employed by DOCCS for approximately 26 years. On the day of the incident, he was a sergeant working the 2:00-10:00 p.m. shift. As a sergeant, he testified that his primary duty was to supervise the correction officers. Among those officers was CO Van Sickle, Frederickson and Luther. Sgt. Marrocco identified the use of force report, Exhibit B, which bears his signature on the first three pages. He described its purpose as being to create a record of what took place during the incident (TT: 300-302). Sgt. Marrocco testified that he would utilize the to/from memos to prepare this report. He received the to/from memos from the three officers involved about 60 to 90 minutes following the incident. He also talked to the officers. Sgt. Marrocco testified that he also attempted to talk to claimant about the incident but he would not answer any questions (TT: 303-306).

Sgt. Marrocco first became aware of the incident when he heard the PAS alarm. At that time he was located in his office in C block. By the time that he got to D1 West, claimant had already left with the officers. He testified that he notified the watch commander because their procedures require that he be notified whenever there is a use of force and that an unusual incident report is then prepared (TT: 307-309).

On cross-examination, Sgt. Marrocco testified that he went to the infirmary after the incident, where he saw CO Luther and Frederickson, as well as claimant. He testified that he downloaded the photographs taken of claimant in the infirmary and that the photographs did not include any photos of the correction officers injuries (TT: 310-320). On redirect, Sgt. Marrocco testified that the wording of his report "inmate was seen by medical and was uncooperative" was included to record that claimant would not answer any of his questions (TT: 321-322).

TESTIMONY OF ALLEN STRASSER

Capt. Strasser, who began his career with DOCCS in 1989 was promoted to captain in January 2018. At the time of the incident, he was the day watch commander at Gowanda and held the rank of lieutenant. Capt. Strasser testified that as watch commander, he was responsible for the correction officers and to see that the inmates received their food, recreation and required programming. He was watch commander from June 2012 through January 2018 (TT: 327-329). Capt. Strasser testified that at the time of the incident, Gowanda had a sex offense program that was conducted in the C and D compounds in buildings 65 and 67. Inmates placed in this program were housed there for the convenience of the programming staff. However, inmates housed in these buildings were free to go to other parts of the Gowanda facility (TT: 329-331).

Capt. Strasser identified the unusual incident report that he prepared following the incident involving claimant.(8) He testified that this report is prepared in two formats. The first is the preliminary report, which is prepared the day of the incident and reported to the command center in Albany so that the command center and the officer of the day for the commissioner are aware of what was going on in jails across New York State. The preliminary report is to be prepared within one hour of the incident. It is prepared from the use of force memos and the misbehavior report. The second format is the final report. This report contains the rest of the information after his review of all of the documents and reports, including any medical report, property damage report, if any, and notifications to the inspector general or police, if any (TT: 332-335).

Capt. Strasser testified that he was also familiar with the use of force form, which has to be completed any time force is used on an inmate. The report is required to be prepared within an hour of an incident and is to be submitted to the watch commander. Use of force photos are also to be taken in conjunction with the report. He identified Exhibit D as the handwritten use of force form for the subject incident. Capt. Strasser testified that the superintendent reviews all use of force forms to decide whether or not the force was justified and/or authorized. If he determines that they were not, charges will be brought against the officers involved (TT: 336-339). He testified that the unusual incident report is also used for public disclosure when people have questions concerning an incident (TT: 351). Capt. Strasser testified that the information contained in the unusual incident report is derived from the forms submitted by the officers involved, which includes exhibits A, D, E and K1. He also identified the inmate injury report that was received into evidence as exhibit B (TT: 357-361).

On cross-examination, Capt. Strasser agreed that since his work shift ended at 3:00 p.m. and the incident did not occur until 6:30 p.m., that he was not an eyewitness. He disagreed that he was unable to determine if what was reported by the officers was true, stating that it has been his experience that when a lie is contained in the use of force form, it is readily apparent as significant facts are not included. He also disagreed with the testimony of Sgt. Marrocco that photos of any injury are to be taken, stating that the protocol is that only when the injury is severe is it required that photos of a correction officer be taken. However, he did admit that it was an error not to have taken photos of CO Frederickson at the infirmary before he left Gowanda to go to the hospital. He also admitted that there have been reports of correction officers using excessive force on inmates (TT: 362-365). Capt. Strasser did not know why the unusual incident report did not include a cover letter from Sgt. Marrocco. He testified that it was an error to submit the final report without including the inmate interview (TT: 366-371).

On redirect, Capt. Strasser testified that an officer does not have to wait for photographs of any injuries if he wishes to leave immediately to obtain outside medical treatment. He agreed that the unusual incident report, exhibit A, states that CO Frederickson was evaluated by facility medical and that he sustained swelling and bruising to his left ear, left forearm, left wrist, left hand and both knees were painful and swollen and that he then went to Lake Shore Hospital for further evaluation (TT: 378-379). Capt. Strasser agreed that since Sgt. Marrocco had attempted to speak with claimant and he was uncooperative and would not answer questions, that this satisfied the requirement to try and obtain the inmate's side of the story (TT: 381-382).

LAW

The State is not immune from liability for an assault and battery when a correction officer uses more force than is necessary to perform his or her duties (Arteaga v State of New York, 72 NY2d 212 [1988]). In the present claim, claimant alleges that CO Luther and Frederickson wrongfully, maliciously and unlawfully pushed claimant down the staircase in D1 West and thereafter punched and kicked him causing numerous injuries, including a broken jaw. In order to establish a claim for the common law cause of action for battery, claimant must prove 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]). In defense of the claim, the State alleges that the correction officers did not push claimant or kick or punch him but rather that claimant's actions caused him and the two correction officers to fall down the staircase. The State further alleges that claimant's conduct in the rotunda room of D1 West warranted CO Van Sickle's use of the PAS alarm and the subsequent decision to cuff claimant's arms behind his back and escort him from the building. They allege that the presence of the cuffs prevented claimant from using his hands to break his subsequent fall down the staircase which resulted in his ensuing injuries.

It has been recognized that in order to maintain order and security in correctional facilities and protect the safety of both inmates and employees, the Commissioner of DOCCS is granted broad discretion to formulate and implement policies relating to security and to the disciplining of inmates (Arteaga v State of New York, supra at 217). Correction Law 137 (5) provides that the use of force is specifically permitted "to maintain order, to enforce observation of discipline, to secure the persons of the offenders." In this regard, the Commissioner's regulation at 7 NYCRR 251-1.2 provides that "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used." The criteria to determine what degree of physical force is necessary requires consideration of the specific circumstances encountered by the correction officer at the time that force is 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 [2007]).

The claimant has the burden of proof to establish his case by a preponderance of the credible evidence. In determining whether claimant has met his burden, the Court, as a finder of fact, must weigh the evidence presented after assessing the credibility of the witnesses and their testimony and to resolve any conflicts in the evidence presented or to the inferences that may be drawn from that evidence (Zi Guang v State of New York, 263 AD2d 745, 746 [3d Dept 1999).

DISCUSSION

Upon review and consideration of the testimony and evidence presented at trial, it is the opinion of this Court that claimant has failed to establish by a preponderance of the credible evidence that any of the correction officers used excessive force. The Court finds after listening to claimant's testimony and observing his demeanor while testifying that he was not credible. The claimant's credibility first came into question from his direct testimony when he alleged that almost every room or area inside building D1 West was dark and unlit when he arrived early in the evening of August 5, 2013. No other witness corroborated this claim nor did the photographic evidence support his claim that lights did not exist or that they were not on while he was in D1 West. The Court did not find claimant's assertion credible and it made no sense that correction officers, who are charged with monitoring and supervising inmates in a building where the ratio between inmates and correction officers is 50 to 1, would endanger their personal safety, as well as that of the inmates by keeping the interior of D1 West building dark. The Court also observed claimant testify during cross- examination, which revealed his nature to be argumentative, volatile and quick to anger, much like he was described to be on the evening of the incident by CO Van Sickle. The claimant's belligerence towards defense counsel continued throughout her questioning and claimant demonstrated that he was both acrimonious and volatile, lending further credibility to the testimony of the correction officers involved in this incident.

The Court finds CO Van Sickle's testimony to be credible and that claimant was non-compliant and aggressive with him and that upon being directed to go to the wall and get in pat frisk position that claimant raised his fists in a fighting stance warranting CO Van Sickle initiating the PAS alarm. The Court also finds that claimant failed to comply with CO Van Sickle's requests to go up against the wall and that claimant continued to resist. The Court further finds that CO Van Sickle and Luther were justified in placing claimant in cuffs and to escort him with the assistance of CO Frederickson out of the building in order to maintain order and to prevent the situation from escalating or involving other inmates in building D1 West.

I also find that the testimony of CO Luther and Frederickson was credible and that neither utilized excessive force on claimant or that either CO Luther or Frederickson pushed claimant down the staircase and then kicked and punched him for approximately two minutes. Their testimony was corroborated by Sgt. Delaney, whose testimony I also find credible. Sgt. Delaney came to the stairwell outside the rotunda room in response to CO Van Sickle's PAS alarm and observed CO Frederickson on the floor at the bottom of the staircase with claimant next to him on the floor and CO Luther standing next to them.

Sgt. Delaney and Sgt. Happell testified consistently that they were the officers to escort claimant to the infirmary. Claimant alleged that they dragged him about 200 yards to the infirmary, which both Sgt. Delaney and Happell denied, stating that claimant was assisted by them and able to walk slowly. I find the testimony of Sgt. Delaney and Happell credible on these events.

Capt. Strasser, who was not an eyewitness to the incident, explained in his testimony the procedure at a DOCCS correctional facility following any use of force, which requires that the correction officers involved prepare a use of force memo within an hour of the incident that is then submitted to the watch commander. Capt. Strasser, who I also find to be a credible witness, testified that he reviewed the use of force memos when preparing the unusual incident report, which he then provided to the Commissioner of DOCCS. Capt. Strasser testified that the purpose of these reports is to notify the Commissioner of every incident of a use of force in order that the Commissioner may determine whether or not charges are warranted against any of the correction officers involved. Capt. Strasser testified that it was his conclusion that the events described by the correction officers involved were accurate and that the incident occurred in the manner they described. The Court has reviewed each of the use of force memos submitted by CO Van Sickle, Luther, and Marrocco, as well as the inmate misbehavior reports prepared by CO Van Sickle and Luther and conclude that these officers were credible and testified consistent with what they stated in these reports. Also, the fact that each of these reports was prepared and submitted within an hour of the incident further substantiates their accuracy and corroborate that no excessive force was utilized by any correction officer.

In turn, claimant failed to present any credible evidence to establish his contention that the correction officers lied during their testimony and in the use of force memos prepared by each in order to cover up that claimant was pushed down the staircase and subsequently beaten. The Court finds claimant's allegation to be highly speculative and unsupported by the evidence and testimony presented at trial. The Court also finds that the injuries suffered by claimant are consistent with him falling down the staircase with his hands cuffed behind him. In assessing the veracity and credibility of claimant, the Court also finds significant that the inmate injury report and use of force report addendum prepared by the registered nurse at Gowanda also notes that claimant was uncooperative throughout the examination, and as a result, she was unable to assess his neurologic status, or perform an EKG and claimant stated to her that he did not even know whether he was missing teeth prior to the incident.(9)

On the issue of liability, the Court finds that the State is not liable to claimant for his injuries. The Court further finds that claimant failed to establish by a preponderance of the evidence that his injuries resulted from the use of excessive force by the correction officers. In doing so, I find that claimant's injuries were the direct result of and caused by him turning abruptly to his left, causing his feet and those of CO Frederickson to entangle and for the two of them to lose their balance, causing claimant, CO Frederickson and CO Luther to fall forward down the staircase.

As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied. Claim no. 126543 is hereby dismissed.

Let judgment be entered accordingly.

August 8, 2018

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


2. All references to the trial transcript will be with "TT:", followed by the page number(s).

3. Exhibits K1 and D, respectively.

4. Exhibit B.

5. Exhibit J1.

6. Exhibit E and K2, respectively.

7. Exhibit J2.

8. Exhibit A.

9. Exhibit B.