Following video trial, Court found pro se inmate failed to establish either the use of excessive force or medical malpractice or negligence.
|Claimant short name:||RAMOS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||127041-A, 128018|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||John Ramos, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Shadi Masri, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 10, 2019|
|See also (multicaptioned case)|
In claim number 127041-A the pro se claimant, John Ramos, alleges causes of action for assault and battery, medical negligence or malpractice, wrongful confinement and discrimination. In claim number 128018 claimant alleges causes of action for assault and battery and medical negligence or malpractice. Both claims arise from an incident at Great Meadow Correctional facility on June 24, 2015, and were tried together by video conference on September 17, 2019.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), was allegedly injured by correction staff while they were in the course of forcefully removing him from his cell. According to the claimant's testimony at trial, the events culminating in the incident began on June 23, 2015 when his identification card was allegedly confiscated by a correction officer. Claimant testified that he picked up his medication in the mental health unit and was returning to his cell when two correction officers asked him why he had made a sexual advance toward one of his medical providers and attempted to engage him in a "vulgar, bizarre"(1) conversation. After claimant attempted to end the conversation by telling the correction officers "I had enough", one of the correction officers confiscated his identification card and told him "he was going to pay him a visit", which, according to the claimant, is code for giving him a beating. Claimant testified that without his identification card he could not move around the prison and therefore could not pick up his medication the following day. Claimant testified that he is prescribed Seroquel to treat his mental illness. Without his medication, claimant hears voices, suffers from paranoid delusions and is unable to sleep at night.
The next day, June 24, 2015, claimant unsuccessfully attempted to have his identification card returned to him. By that evening, still without his identification card and medication, claimant started having paranoid delusions. Claimant testified that he barricaded himself in his cell by tying clothing and bed sheets to the cell bars and propping the bed against the cell door. Several correction officers responded, including Sergeant Berry and Correction Officers Yule and Guyette. Claimant testified that he did not respond to their questions or comments except to say "I want my medication, I want my ID card." Notwithstanding Sergeant Berry's contrary statement in the Misbehavior Report (Exhibit 3), claimant testified that he made no threats of self harm. Eventually, Correction Officer Yule entered the cell and knocked down the barricade, causing claimant to fall to the right side of the cell floor where, according to the claimant's trial testimony, he was punched and kicked by correction officers. Claimant testified that Officer Yule grabbed him by the throat and the back of his head, dragged him over to the left side of the cell, and banged his head three times on the toilet. Exhibit 1 is a color copy of a use-of-force photograph taken after the incident. Once claimant was finally removed from his cell he was taken to an isolation cell in the Mental Health Unit (MHU) where he remained for several days.
On cross-examination, claimant testified that he received his identification card after his release from an observation cell several days following the incident. He also agreed that his Medication Treatment Record (Exhibit A) reflects a nurse's initials indicating he had been dispensed medication each day from June 13, 2015 through June 24, 2015.
Defendant called as its only witness Correction Officer Gregory Yule. Officer Yule testified that he has been a Correction Officer for 32 years and has performed between 70 to 80 cell extractions in this time. On the date of the incident, Officer Yule was working the 4:00 p.m. to 12:00 a.m shift. He recalled being summoned to B3 company to assist in extracting claimant from his cell. Upon his arrival, correction officers were cutting clothing off the cell bars and Sergeant Berry was trying to talk the claimant into coming out of his cell. A steel bed had been stood up on its end against the cell gate and claimant was sitting on his locker directly behind the bed. When Sergeant Berry directed the correction officers to enter the cell, Officer Yule pushed the bed back and to the right, causing claimant to fall backwards from his locker. Officer Yule ordered claimant to stay down and, as he continued to get up, Officer Guyette pushed him back down to the floor where claimant continued to resist. According to Officer Yule, force was necessary to gain claimant's compliance.
On cross-examination, Officer Yule testified that a cell extraction is generally performed with the use of chemical agents and agreed that security staff will normally call a chaplain or nurse from the MHU before performing such a procedure. Officer Yule explained, however, that at the time this incident occurred, 11:30 p.m., minimal staff were available to assist. Although Officer Yule conceded that staff from the MHU are present in the facility 24 hours per day, he had "no clue" as to why they were not called in this case, stating only that it was above his pay grade. Officer Yule again testified that the claimant was sitting on his locker directly behind the bed when he was pushed toward the back of the cell. Officer Yule was uncertain whether claimant struck his head on the toilet, which was located to the left of the cell approximately five feet away, but agreed that there was no mention of claimant striking his head on the toilet in his Use-Of-Force Report (part of Exhibit 2 [A]). He explained that such reports are intended to explain the officers' actions, not what happens to the inmates. In addition, claimant noted Correction Officer Yule's statement in his memorandum that "I forced the bed to the rear right side of the cell, . . . [which] knocked Ramos off his locker and onto the cell floor" (id.).
"To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact" (Bastein v Sotto, 299 AD2d 432, 433 [2d Dept 2002]). To sustain 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 (Diaz v State of New York, 144 AD3d 1220, 1222 [3d Dept 2016]; Shirvanion v State of New York, 64 AD3d 1113 [3d Dept 2009]; 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]; Bazil v State of New York, 63 Misc 3d 1216 [A], *3 [Ct Cl, 2019]). 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 ).
Claimant alleges his facility identification card was taken from him on June 23, 2015 by an unidentified correction officer. Without his identification he was unable to travel to the infirmary to receive his daily medication. At approximately 11:30 p.m. the following evening claimant, suffering from paranoid delusions in the absence of his medication, barricaded himself in his cell. Correction officers and a sergeant responded and spoke to the claimant who testified "I did not respond to any of their questions or any of their comments." Eventually the correction officers entered claimant's cell, forcibly pushing the bedframe which had been blocking the cell door to the rear of the cell. Claimant alleges he was kicked and punched by the correction officers following their entry, and that Officer Yule dragged him to the far side of his cell and slammed his head against a toilet three times.
Conversely, the use of force report prepared by Sergeant Berry indicates claimant was non-responsive to his questioning and "would not comply with my orders to exit the cell" (Exhibit 2 [A]). As described by Sergeant Berry in his report and as Correction Officer Yule testified at trial, Officer Yule entered the cell when directed by Sergeant Berry, pushing the bed which was blocking the cell door back and toward the right rear portion of the cell. According to Sergeant Berry's Use Of Force Report, in so doing claimant was caused to fall from the state issued locker he was sitting on, "striking his head on the toilet" (.id). Force was then used to restrain the claimant who failed to comply with orders directing him to remain on the floor and stop resisting.
The Court accepts the version of events related in the documentary evidence such as use of force reports and "to/from" reports, and as testified to by Correction Officer Yule. The act of barricading himself in his cell and refusing Sergeant Berry's direct order to exit his cell justified the claimant's forcible extraction. Claimant testified he was punched and kicked, and then dragged across his cell where Officer Yule violently slammed his head against the cell toilet. The medical proof is, however, in the Court's view, inconsistent with the claimant's description of events. The claimant's physical examination following the incident revealed a two and one-half inch bruise on his right posterior shoulder, a "small bloody nose" and a one and one-half inch by one and one-half inch area of swelling on his right temple (Exhibit B). Such injuries are consistent with those which would be expected during a forcible cell extraction and much less consistent with the more substantial injuries, especially to the claimant's head, which one would reasonably expect to result from the repeated, violent striking of claimant's head on the cell toilet as described in his testimony.
The Court finds upon the proof offered at trial that the force used to extract the claimant from his cell was reasonable under the circumstances presented, and rejects claimant's assertion he was assaulted and purposely injured by Correction Officer Yule during the course of the extraction. Thus the Court finds claimant failed to establish the merit of his claim by a preponderance of the credible evidence.
The same result is reached with respect to claimant's causes of action for medical negligence or malpractice, wrongful confinement and discrimination. The medical negligence/malpractice cause of action must be dismissed as a matter of law because whether the claim sounds in medical malpractice or ordinary negligence " '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required' to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries" (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ). Here, no expert medical evidence was proffered to establish that the failure to provide claimant his prescribed medication for one day caused him pain, suffering or injury. As a result, the cause of action for medical negligence/malpractice must be dismissed.
The cause of action for wrongful confinement is also lacking in merit.(2) While the Hearing Officer's findings of guilt were reversed, claimant failed to identify the violation of any due process safeguard. Although the Court of Appeals in Arteaga v State of New York (72 NY2d 212, 221 ) made clear that the State is not immune from liability for confining inmates "without granting a hearing or other required due process safeguard (see 7 NYCRR 251-5.1; parts 252-254)," here, claimant failed to allege or otherwise establish the violation of a due process safeguard. This cause of action must therefore be dismissed as a matter of law.
Lastly, to the extent the claim alleges a cause of action for discrimination, claimant failed to allege or otherwise establish in what manner he was discriminated against or how he was treated differently than others similarly situated (see generally Forrest v Jewish Guild for the Blind, 3 NY3d 295 ; Matter of Medina v New York State Dept. of Corr. Servs., 104 AD3d 976 [3d Dept 2013], lv denied 21 NY3d 859 ; see also Matter of Whitfield v New York State Div. of Human Rights, 137 AD3d 709 [1st Dept 2016] [claims under the Americans with Disabilities Act are governed by the same legal standards as disability discrimination claims under the State Human Rights Law]).
Thus, claim numbers 127041-A and 128018 are dismissed.
All motions on which the Court may have previously reserved decision or which were not determined are hereby denied.Let judgments be entered accordingly.
October 10, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Quotations are taken from the audio recording of the trial.
2. Unaware that claim number 127041-A was pending, claimant's motion for permission to file and serve a late clam was granted with respect to his proposed causes of action for assault and battery and medical negligence. Claim number 128018 was thereafter filed. These same causes of action are alleged as a basis for claim number 127041-A, which additionally alleges causes of action for wrongful confinement and discrimination. Inasmuch as defendant has not moved for dismissal based on the timeliness of claim 127041-A, the Court will address the additional causes of action for wrongful confinement and discrimination that were included in that claim but not 128018.