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New York State Court of Claims

New York State Court of Claims
GALLOWAY v. STATE OF NEW YORK, # 2019-038-111, Claim No. 128472

Synopsis

Claim for assault and battery dismissed after trial. Claimant 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 withing the scope of their employment.

Case information

UID: 2019-038-111
Claimant(s): ANTOINE GALLOWAY(1)
Claimant short name: GALLOWAY
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128472
Motion number(s):
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: FLANZBLAU DRATCH, P.C.
By: Brian M. Dratch, Esq.
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Belinda A. Wagner, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 4, 2019
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 Clinton Correctional Facility (CF) on March 27, 2016. The trial of liability on this claim was conducted on March 5, 2019 in Albany, New York. Claimant testified on his own behalf. Defendant presented the testimony of Department of Corrections and Community Supervision (DOCCS) Sergeants Ronald Wood and Matthew Liberty, and Correction Officers (COs) Brian Poupore, Richard Young, and Christopher Lagree. Claimant did not offer any exhibits into evidence; twenty-two exhibits offered by defendant were received into evidence. 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 according to the theory of liability pursued by claimant.

FACTS

Claimant testified that on February 11, 2016, as he was returning to his cell from his masonry program, he entered Upper H Block in Clinton CF and was ordered by CO Brian Poupore to close a door behind him. Claimant testified that he refused to close the door, telling CO Poupore that there were other inmates behind him. Claimant testified that CO Poupore ordered claimant to stop and conducted a pat frisk of him, during which CO Poupore intentionally squeezed claimant's testicles. Claimant testified that he jumped when CO Poupore squeezed his testicles, but he did not say anything to CO Poupore about his actions. Claimant testified that after the pat frisk he returned to his cell and he made a written Prison Rape Elimination Act (PREA) complaint against CO Poupore, which he sent to the Clinton CF Superintendent through the facility's mail system. Claimant testified that he was at his masonry program on February 19, 2016 when he was escorted by Sergeant Ronald Wood to the infirmary. Claimant testified that the nurse asked him at the infirmary if he was in any pain, to which he responded in the negative, remarking that he was no longer in pain because "it took so long to get [him] down to the hospital" following CO Poupore's sexual assault (T:23).(2) Claimant testified that the nurse did not examine him and that he was escorted back to Upper H Block by Sgt. Wood, who did not interview claimant or otherwise speak to him about the incident. An entry in claimant's Ambulatory Health Record reflects that he was seen on February 19, 2016 and claimed that "he was sexually molested by a CO pat frisking him on 2-11-16" but "denied[d] any present pain or uro[logical] dysfunction," and that is vital signs were taken (Defendant's Exhibit R, p.2 [2/19/16 AHR entry]).

Sgt. Wood testified that he was assigned to investigate claimant's PREA complaint and that on February 19, 2016 he escorted claimant to the infirmary and interviewed him as part of his investigation. Sgt. Wood testified that he checked the Upper H Block log book as part of his "precursor investigation" (T:72) and discovered that CO Poupore was not working on February 11, 2016, the day that claimant alleged that CO Poupore sexually assaulted him (see Defendant's Exhibit O; T:75). Sgt. Wood concluded that claimant lied about the incident and determined that the allegation was unfounded, which he testified he memorialized in a memorandum dated February 19, 2016 (see Defendant's Exhibit P; see also T:75, 80). CO Poupore testified that Sgt. Wood told him about claimant's PREA complaint "[s]ometime in February" (T:139), that he checked his "regular days off book" and discovered that he was not at work on February 11, 2016 (T:123), and that he did not squeeze claimant's testicles. CO Poupore testified that he wrote a "To/From" memorandum to Sgt. Wood dated February 27, 2016, eight days after Sgt. Wood had completed his PREA investigation, stating that he was not working on February 11, 2016 and that "[a]t no time did [he] grab [claimant's] penis nor did [he] even conduct a pat frisk on [claimant]" (Defendant's Exhibit V). CO Poupore testified that February 27, 2016 "could have been" the date that Sgt Wood told him about claimant's PREA complaint, but he did not recall (T:141). CO Poupore testified that claimant's PREA complaint was the only PREA complaint that had been lodged against him in his career.

Claimant testified that he was in his cell in Upper H Block on March 27, 2016 when he heard over the public address (PA) system that he had a call out for an interview, although he was not previously informed that he would be interviewed that day and did not know why he was being interviewed. Claimant testified that as he walked down the gallery to the interview on the tier below, he was told by another inmate in his company not to "go downstairs, [because] it looked funny, there's a few officers down there," to which claimant replied that he was going down to interview because he was ordered to go (T:30). Claimant testified that as he went down the stairs to the tier below, he noticed Sgt. Wood and seven to nine COs, who were wearing gloves and holding batons, waiting on the landing below. Claimant testified that when he got to the landing where the COs were standing, CO Poupore stepped out and told claimant to put his hands high on the stairwell bars and spread his legs for a pat frisk and that he complied. Claimant testified that CO Poupore, who was 5 feet 11 inches tall,(3) then repeatedly told claimant, who was 6 feet 7 inches tall, to "come back" (T:34), i.e. move his legs back, so that CO Poupore could frisk him properly, and that claimant complied with the order. Claimant testified CO Poupore suddenly punched the left side of claimant's face and that "[t]he next thing you know, [he] was pulled back, . . . on the floor, and as [he] was on the floor, [he] was being beaten, punched, kicked, stomped and hit with the baton" (T:36). Claimant testified that covered his face and curled up to protect himself, but his right leg was pulled away from his body and his right ankle was "beaten and hit numerous times with the baton" (id.). Claimant testified that the beating lasted for between four to six minutes, after which he was handcuffed and escorted to the infirmary. Claimant was interviewed by Lieutenant Snow on March 28, 2016 and stated that he was attacked by "at least nine [COs]" in Upper H Block after being "called out for an interview," and that he could not identify any of his alleged attackers except CO Poupore and could not name any witnesses to the assault (Defendant's Exhibit S). DOCCS records reflect that claimant sustained a fracture of the right ankle; abrasions to his left knee, both elbows and forehead; a swollen left cheek; and pain in the palm of his right hand (see Defendant's Exhibit N, U).

Sgt. Wood testified that on March 27, 2016, he went to Upper H Block to interview claimant about a grievance he had filed and that he told the first officer on Upper H Block to make an announcement over the PA to have claimant get ready and come down for the interview. Sgt. Wood testified that he asked CO Poupore, who was the second officer on Upper H Block on duty at that time, to pat frisk claimant before he was led into the sergeant's office for the interview. CO Poupore testified that Sgt. Wood approached him and told him that he had "an inmate coming down for an interview, [and] could [he] pat-frisk him and then send him in [to the sergeant's office]?" (T:126). CO Poupore testified that he was "[j]ust waiting at the bottom of the stairs" when claimant came down for his interview (id.), and he was alone at that time (see T:150). Sgt. Wood testified that only he and CO Poupore were present during claimant's pat frisk and that claimant "came off the wall [during the pat frisk] and said, [expletive] you, Poupore," and hit [CO] Poupore in the face" (T:83). CO Poupore testified that after he started his pat frisk, claimant stated "[expletive] you, Poupore, and he spins off to the left and comes around with his right fist and punches me in the cheek" (T:128). Sgt. Wood testified that a fight ensued between claimant and CO Poupore and that he called for a Level II response - a request for all available COs to respond - over his radio. CO Poupore testified that once claimant punched him he needed to defend himself, and he punched claimant in the facial area and continued to struggle with claimant until other COs responded to the Level II.

Sgt. Liberty(4) testified that he was in Upper H Block when the Level II was called and was the first CO to respond to the scene, and that when he arrived he witnessed claimant and CO Poupore engaged in a fight. Sgt. Liberty testified that claimant elbowed him in the head when he tried to get his hands around claimant in a body hold, but he was eventually able to pull claimant off CO Poupore and bring him to the ground on his second attempt at a body hold. Sgt. Liberty testified that claimant was a "big man," who was "hard to control" and was "kicking and flailing around" (T:162). CO Young testified that he was doing a fire inspection in Upper H Block when the Level II was called, and he first secured the company and then ran to the scene. CO Young testified that when he arrived, he saw CO Poupore and Sgt. Liberty on the ground with claimant, who was violently kicking and punching the officers. CO Young testified that he pulled out his baton and aimed for claimant's calf and struck until claimant stopped kicking, at which time he grabbed claimant's legs until help came and claimant was put into mechanical restraints. CO Young testified that he did not recall how many times he struck claimant with his baton, that claimant's legs were moving, and that although he aimed for claimant's calf, he struck him in the ankle. Sgt. Wood testified that COs are authorized to use batons "[w]hen an inmate is putting up a struggle and still resisting and not going into compliance with any staff direction" and that batons are to be used on "[s]oft tissue, calves, thighs, [and] shoulders" (T:86). Sgt. Wood confirmed that claimant was "[i]nadvertently" hit in the ankle with a baton when a CO attempted to strike his calf to stop him from kicking (id.). Sgt. Wood testified that only three COs - CO Poupore, Sgt. Liberty and CO Young - were involved in the use of force against claimant. DOCCS records reflect that CO Poupore sustained a swollen left cheek and left rib pain and Sgt. Liberty suffered a swollen forehead.

Claimant, for his part, denied at trial that he came off the wall, shouted an expletive at CO Poupore, or punched CO Poupore or any of the other officers, and he testified that he did not fight back and was on the floor trying to cover up the entire time he was being beaten.

As part of the Use of Force investigation, Sgts. Wood and Liberty and COs Poupore and Young completed To/From memoranda containing statements about the March 27, 2016 incident that were consistent with their trial testimony (see Defendant's Exhibit L). On March 27, 2016, CO Poupore and Sgt. Liberty issued two separate inmate misbehavior reports (IMRs) charging claimant with four DOCCS rules violations for fighting, assaulting staff, violent conduct and creating a disturbance (see Defendant's Exhibit J, K). On April 22, 2016, claimant was found guilty of all the charges in the IMRs following a Tier III hearing and was assessed a penalty of 365 days in the Special Housing Unit (SHU), loss of recreation, packages, commissary and phone privileges, as well as the recommended loss of 12 months of good time (see Defendant's Exhibit H, p.5; Defendant's Exhibit I, p.1). Claimant filed a grievance dated April 6, 2016 that was consistent with his trial testimony regarding the March 27, 2016 incident (see Defendant's Exhibit T, pp.4-7). Claimant's grievance was denied on May 16, 2016 (see id., p.3).

DISCUSSION

At the conclusion of claimant's case, defendant moved to dismiss the claim on the ground that claimant had failed to proffer any evidence that the correction officers were acting in the scope of their employment when they allegedly perpetrated the assault on claimant. Claimant opposed the motion, arguing that the Court of Claims Act expressly permits defendant to be liable for the intentional torts of its employees and that the correction officers were acting in the scope of their employment in conducting the pat frisk when claimant was injured. Defendant renewed its motion to dismiss at the conclusion of its own case. The Court reserved decision on the motions.

Claimant alleges and argues that he was the victim of an unprovoked battery by CO Poupore and other correction personnel at Clinton CF on March 27, 2016 (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]). Employees of DOCCS, however, 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]; Bazil v State of New York, 63 Misc 3d 1216[A], 2019 NY Slip Op 50548[U], *4 [Ct Cl 2019]). 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], rearg dismissed 55 NY2d 878 [1982]; Stein v State of New York, 53 AD2d 988, 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]). 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, 33 NY2d at 279-280). 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] [internal quotation marks omitted]).

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]).

Claimant testified that he did not engage in any behavior that would have led to an authorized use of force, inasmuch as his testimony was that he was fully compliant with instructions and did not engage in conduct that would have prompted an authorized use of force. Thus, if claimant's version is believed, he was subjected to an unwarranted and premeditated assault and battery by CO Poupore and other COs in Upper H Block on March 27, 2016. Thus, the actions of the officers that day 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], lv denied 87 NY2d 801 [1995] [COs acted outside scope of employment in use of force where the assault was unprovoked and the inmate did not resist]; Rivera v State of New York, 59 Misc 3d 1233 [a], 2017 Slip Op 52002 [U], 5 [Ct Cl 2017], affd 162 AD3d 1571 [2018], lv granted 32 NY3d 902 [2018] [CO acted outside scope of employment where attack was unprovoked and personally motivated]; 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, according to claimant's version of the facts and his asserted theory of liability, the State cannot be held liable for the acts of its employees under the doctrine of respondeat superior, and claimant's remedies may reside against other defendants in other judicial fora. Inasmuch as claimant has solely argued that he was the subject of an unprovoked and unwarranted assault and battery, the Court declines to make any finding regarding whether defendant's agents were authorized to use force or whether the force used was reasonable or necessary under the circumstances.

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. Accordingly, claim number 128472 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.

The Chief Clerk is directed to enter judgment accordingly.

September 4, 2019

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims


1. Claimant, who testified at trial that he was a victim of a sexual assault offense, waived the confidentiality protections of Civil Rights Law 50-b in writing following trial (see Civil Rights Law 50-b [2] [c]).

2. All references to the trial transcript are designated by "T".

3. CO Poupore testified that he is 5 feet 11 inches tall (see T:127).

4. Although Sgt. Liberty held the rank of CO at the time, this decision will refer to him by his rank at the time of trial.