|Claimant(s):||MR. BENITO GUMBS|
|Claimant short name:||GUMBS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||BENITO GUMBS, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Stephen Barry, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 27, 2019|
|See also (multicaptioned case)|
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 Green Haven Correctional Facility (CF) on September 16, 2014. The claim also seeks compensation for lost legal papers and personal property. The trial of this claim was conducted by videoconference on July 25, 2019, with the parties appearing at Green Haven CF in Stormville, New York and the Court sitting in Albany, New York. Claimant presented his own testimony; defendant called Department of Corrections and Community Supervision (DOCCS) Sergeant Duane Malark.(1) Claimant offered four exhibits that were received into evidence.(2) Defendant offered two exhibits that were received into evidence. After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of that evidence and all the other evidence received at trial, the applicable law, and the arguments of the parties at trial, the Court concludes that defendant is not liable to claimant.
FACTS Claimant testified that on September 16, 2014, he was locked in his cell at Green Haven CF during a facility frisk when he witnessed two groups of ten correction officers (COs), who were members of the Correction Emergency Response Team (CERT), march down the gallery past his cell.(3) Claimant testified that upon seeing the CERT officers, he exclaimed in an unpleasant tone, "Is this part of the [expletive] army?"(4) Claimant testified that the CERT captain stopped in response to claimant's exclamation, and the captain and the CERT officers marched to claimant's cell. Claimant testified that the captain directed his cell to be opened. Claimant testified that the captain ordered claimant to face the wall and place his hands on it and that as he faced the wall, he was assaulted by as many as six CERT officers who choked, punched, and kicked him in the face, ribs, and stomach. Claimant testified that he was verbally harassed and called names by the CERT officers during the assault and that he had never experienced such hate, rage, and animosity before. Claimant testified that in order to justify the assault, COs issued him a "ticket" - i.e. an inmate misbehavior report - alleging that claimant had put something in his mouth. Claimant testified that after the assault he was kneed in the face by a CERT officer who escorted him to a room where he was stripped naked and told to urinate and defecate in a bucket. Claimant testified that his feces was checked by COs for contraband over the course of a "couple of days," but the COs did not find anything in his feces.
An entry in claimant's Ambulatory Health Record (AHR) dated September 16, 2014 notes that claimant was admitted to Involuntary Protective Custody (IPC) "on watch," that he was being seen after an altercation, that he complained of bilateral rib pain, and that he had an abrasion to his right cheek and had tenderness to his left cheek and ribs (see Claimant's Exhibit 2 [9/16/14 AHR entry]). A Green Haven CF medical record reflects that claimant was admitted to IPC on September 16, 2014 following a use of force and was placed on "special watch" or "drug watch" and that he was discharged to the Special Housing Unit (SHU) on September 19, 2014 (see Claimant's Exhibit 2 [Infirmary 24 Hour Admission & Observation Short Form (8 pages)]).
A DOCCS Use of Force (UOF) Report states that a CERT officer identified as "16-26" directed claimant "to stand and remove his clothes as part of the strip frisk procedure during a facility frisk" and that claimant "stood up and as the cell gate was opened, he reached into his right front pocket and put an unknown object into his mouth" (Defendant's Exhibit B [UOF Report, p. 1.01]). The UOF Report further states that "[a]s [CO] 16-26 entered the cell, [claimant] squared off to the officer in an aggressive manner with raised clenched fists," which necessitated the use of force "to control [claimant] and avoid injury to staff" (id.). The UOF Report described the use of force as follows:
"[CERT Officer] 16-26 entered the cell lowering his left shoulder, striking [claimant] with his left shoulder in [claimant's] chest area. The force knocked [claimant] rearward and face first down onto his bed. [Claimant] continued to struggle on the bed. Several direct orders were given for [claimant] to comply with staff direction. [CERT Officer] 16-26 maintained control of [claimant's ] back area using both hands on his back. At this time [CERT Officer] 16-20 entered the cell and assisted by pulling [claimant's] left hand behind his back, using both hands, [CERT Officer] 16-26 then applied the flex-cuff onto the inmate's left wrist. [CERT Officer] 16-20 then grabbed [claimant's] right wrist, with both hands, and forced the right arm behind his back where [CERT Officer] 16-26 applied the flex-cuff on to [claimant's] right wrist. At this time [claimant] complied with staff direction and all force ceased."
Claimant testified that "numerous" and "a lot" of legal documents, including transcripts that he was using for federal habeas corpus and Criminal Procedure Law Article 440 motions, were taken from his cell following the assault. Claimant testified that the District Court for the Southern District of New York returned his motions as untimely because he did not have access to the missing documents. Claimant filed an administrative claim seeking compensation for the missing legal documents that valued the loss at $2,000, but the claim did not state how many pages of documents were lost (see Claimant's Exhibit 3). The administrative claim was disapproved on November 13, 2014 (see id.).(5)
DOCCS employees 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 ; 7 NYCRR 251-1.2 [b], [d]; see also Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]; Bazil v State of New York, 63 Misc 3d 1216[A], 2019 NY Slip Op 50548[U], *4 [Ct Cl 2019]), and the State may be held liable for any injuries sustained by an inmate when a State employee uses a degree of force that is excessive under the circumstances (see Jones v State of New York, 33 NY2d 275, 279-280 , rearg dismissed 55 NY2d 878 ; 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]). Under the doctrine of respondeat superior, the State may be held liable for an assault and battery committed by its employees "only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 ; see also Jones, 33 NY2d at 279-280).
"It is well settled that conduct which occurs during the course of employment will not be considered to have occurred within the scope of employment if, for purely personal reasons unrelated to the employer's interests, the employee engages in conduct which is a substantial departure from the normal methods of performing his duties"
(Gore v Kuhlman, 217 AD2d 890, 891 [3d Dept 1995]). The State cannot be held liable under the doctrine of respondeat superior when the conduct of its employees so departs from the scope of their duties so as to "constitute an abandonment of [their] service" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ).
"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]). "The use of excessive force by a correction officer performing his lawful duties constitutes a battery and renders [d]efendant liable under the doctrine of respondeat superior" (Vogler v State of New York, 2002 NY Slip Op 50604[U], *4 [Ct Cl 2002]). On the other hand, where there is "no reasonable connection between [a correction officer's] actions and duties customarily performed by correction officers" the State cannot be held liable for the battery (Rivera v State of New York, 59 Misc 3d 1233[A] [Ct Cl 2017], NY Slip Op 52002[U], *5, affd 162 AD3d 1571 , lv granted 32 NY3d 902 ).
It is claimant's position that he was the victim of an unprovoked battery by CERT team members at Green Haven CF on September 16, 2014 (see e.g. Manley v State of New York, UID No. 2009-030-008 [Ct Cl, Scuccimarra, J., Mar. 30, 2009]).(6) Claimant testified at trial that he did not engage in any behavior that would have led to an authorized use of force and was fully compliant with the instructions of the CERT team members. Thus, if claimant's version of events is to be believed, he was subjected to a unwarranted and unprovoked battery by COs on the CERT team on September 16, 2014. Because the actions of the officers that day materially deviated from their duty as correction officials in maintaining custody and control of claimant, those actions constituted a clear departure from the scope of their employment such that defendant cannot be held liable under the doctrine of respondeat superior for their behavior (see Matter of Sharrow v State of New York, 216 AD2d 844, 846 [3d Dept 1995], lv denied 87 NY2d 801  [COs acted outside the scope of their employment in use of force where the assault was unprovoked and the inmate did not resist]; Rivera, 59 Misc 3d at *5 [CO acted outside the scope of his employment where the 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 constituted unreasonable force and thus did not fall within the 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 different judicial fora. Inasmuch as claimant has argued solely that he was the subject of an unprovoked and unwarranted battery, and none of the CERT officers involved in the use of force testified as to level and degree of force that was allegedly employed that day, 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.
To the extent that claimant seeks to recover for a violation of his rights under the Eighth Amendment of the United States Constitution to be free from cruel and unusual punishment for the actions of the CERT officers (see Claim No. 125351, first and third unenumerated paragraphs), "the Court of Claims has no jurisdiction over claims alleging violations of the US Constitution" (Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 ). In the event claimant seeks to recover for a violation of his state constitutional right to be free from cruel and unusual punishment (see NY Const, art I, § 5), the Court of Appeals has held generally that the jurisdiction of the Court of Claims "is not limited to common-law tort causes of action and that damage claims against the State based upon violations of the State Constitution come within the jurisdiction of the Court of Claims" (Brown v State of New York, 89 NY2d 172, 183 ). The Court of Appeals later clarified that "the tort remedy is not boundless," and "[c]laimants must establish grounds that entitle them to a damages remedy, in addition to proving that their constitutional rights have been violated" (Martinez v City of Schenectady, 97 NY2d 78, 83 ). This Court finds no appellate authority recognizing a state constitutional tort sounding in cruel and unusual punishment. However, several decisions of the Court of Claims have discussed the potential viability of such a cause of action, without expressly concluding that it is maintainable (see e.g. Boggs v State of New York, 51 Misc 3d 376 [Ct Cl 2015]; Zulu v State of New York, 2001 NY Slip Op 40047[U] [Ct Cl 2001]; De La Rosa v State of New York, 173 Misc 2d 1007 [Ct Cl 1997]).
Assuming, therefore, that such a cause of action may be stated, and further assuming that the evaluation of such a cause of action would mirror the analysis employed upon alleged violations of the parallel federal right to be free of cruel and unusual punishment, this claim fails as a matter of law. It is by now well established that the state constitutional tort is a narrow remedy that may be pursued only when no other remedy is available to enforce the claimed constitutional right (see Martinez, 97 NY2d at 83-84; Brown, 89 NY2d at 189; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]). Inasmuch as a private right of action exists for violations of the parallel federal constitutional right pursuant to 42 USC § 1983 (see e.g. Helling v McKinney, 509 US 25, 35 ; Scott v Smith, 104 AD3d 1029 [3d Dept 2013], lv denied 21 NY3d 860 ), a state constitutional tort is not necessary to redress the alleged constitutional violation (see Thomas v State of New York, 10 Misc 3d 1072 [A], 2005 NY Slip Op 52230[U], *3 [Ct Cl 2005]; but see Boggs, 51 Misc 3d at 382).
Finally, claimant will not be awarded compensation for his lost legal documents, for the reasons that follow. First, although the administrative claim form that was received into evidence as Claimant's Exhibit 3 demonstrates that the administrative claim was disapproved on November 13, 2014, it bears no indicia that claimant appealed the disapproval within five working days as required by DOCCS regulations (see 7 NYCRR 1700.4 [d]). Moreover, the claim was verified on November 4, 2014, nine days before the administrative claim was denied (see Claim No. 125351, verified Nov. 4, 2014). Thus, claimant has failed to prove that he exhausted his administrative remedies as required by Court of Claims Act § 10 (9), and the Court lacks subject matter jurisdiction over the claim (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007] [failure to exhaust administrative remedies deprives Court of subject matter jurisdiction]). Second, even assuming that claimant had exhausted his administrative remedies, and further assuming that he had proven a claim for negligent bailment, the Court could not award damages because claimant failed to identify the number of pages that were missing or the fair market value of the documents (cf. Lopez v State of New York, UID No. 2018-038-106 [Ct Cl, DeBow, J., Apr. 11, 2018] [Court awarded damages for 255 pages of missing legal work for pending legal matters]). To the extent that claimant is seeking compensation for any denial of his right of access to the courts resulting from his legal documents being taken by COs, such a claim must be addressed in a federal action pursuant to 42 USC § 1983, over which this Court lacks jurisdiction (see Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Campbell v State of New York, UID No. 2014-038-101 [Ct Cl, DeBow, J., Feb. 7, 2014]; Gillard v State of New York, UID No. 2012-049-101 [Ct Cl, Weinstein, J., Feb. 17, 2012]).
Claimant has failed to prove by a preponderance of the credible evidence that he was subjected to a battery by defendant's agents while acting within the scope of their employment, and claimant's constitutional tort claim fails as a matter of law. Further, the Court lacks subject matter jurisdiction over claimant's lost property claim, and even assuming that the Court has jurisdiction to entertain such a claim, claimant has failed to prove his damages by a preponderance of the credible evidence. Accordingly, claim number 125351 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
Let judgment be entered accordingly.
September 27, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Sgt. Malark testified that he had no personal knowledge of the events alleged in the claim. His testimony consisted solely of information about DOCCS practices and procedures and DOCCS documentation generated as a result of the alleged use of force that is the subject of this claim.
2. At trial, claimant sought to introduce a "Verified Reply and Affirmation and Supplemental Claim," an unsworn and undated document that makes legal argument, and that is appended with Exhibit A containing photographs and documents. Although the Verified Reply and Affirmation and its exhibit were received in chambers on April 29, 2019, they were not copied to the Office of the Attorney General. The Court transmitted a copy to defendant after trial and directed that any response to the Verified Reply and Affirmation and Supplemental Claim or objections to the receipt into evidence of any of the photographs and documents contained within Exhibit A were to be served no later than August 8, 2019 (see "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated July 26, 2019). Inasmuch as defendant did not object to the receipt into evidence of the photographs and documents contained within Exhibit A by August 8, 2019, they were received into evidence as Claimant's Exhibit 4 by operation of the Court's July 26, 2019 "So Ordered" correspondence. Further, the Court will consider the Verified Reply and Affirmation solely as argument in support of the claim (see Gumbs v State of New York, UID No. 2019-038-587 [DeBow, J., Sep. 18, 2019]).
3. A facility frisk is a systematic search of a correctional facility, including housing blocks, for contraband. CERT was designated to complete the facility frisk at Green Haven CF on September 16, 2014.
4. Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.
5. Part 4 of the Inmate Claim Form where claimant would have appealed the administrative disapproval of his administrative claim is left blank (see Claimant's Exhibit 3).
6. To be sure, claimant testified at trial that his remark "Is this part of the [expletive] army?" caused the CERT captain to stop and approach his cell. However, "[i]t has been held that no provocative act, conduct, insult or word, if unaccompanied by an overt act of hostility, will justify an assault, no matter how offensive or exasperating it may be" (Brown v State of New York, 24 Misc 2d 358, 365 [Ct Cl, 1960]), and it cannot be used as a basis to justify the assault as an authorized use of force during the course of the COs' lawful duties.