Claim alleging that correction officers used excessive force on claimant during cell search is dismissed after trial where claimant's testimony alleging a series of severe beatings by the officers was belied by contemporaneous medical records and photographs of claimant and the credible testimony of defendant's trial witnesses demonstrated that the use of force upon claimant was authorized and appropriate under the circumstances.
|Claimant short name:||THOMPSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||LOUIS ROSADO, ESQ.|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Christina Calabrese, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 26, 2019|
|See also (multicaptioned case)|
Craig Thompson (claimant) alleges that, while incarcerated at Clinton Correctional Facility (Clinton), he was subjected to the use of excessive force by a number of corrections officers on July 20, 2012.
Trial of the claim was conducted on March 18, 2019. Claimant was his only trial witness. Defendant called Corrections Officer (CO) Timothy Neverett, the individual primarily accused by claimant of using excessive force, and Sergeant (Sgt.) Ronald Wood, who was less involved with the events of July 20, 2012.
Claimant testified that at approximately 7:45 p.m., on July 20, 2012, he and his cellmate, inmate White, were ordered out of their cell by CO Neverett, for the purpose of a cell search. Claimant alleges that upon exiting the cell, without provocation, CO Neverett, among "about three" corrections officers, punched and kicked claimant, hit his head to the floor, punched him to the head with fists and beat him with batons.
Claimant further described being beaten with kicks to the back and ribs, being "stomped" and, between his trial testimony and his pre-trial deposition testimony, asserted that he was punched in the stomach more than 10 times. He further testified to being beaten a second time after having been brought to the infirmary, and, between his trial and deposition testimony, testified to being beaten there in the presence of 15 corrections officers, being punched in the ribs more than 15 times, being punched in the stomach more than 20 times and being punched in the face more than 5 times.
Claimant testified that the beating at his cell, in the presence of inmate White, lasted for "about 10 minutes," and that the infirmary beating lasted for between 5 and 10 minutes. Claimant asserted that all of the involved officers were complete strangers to him and that he had had no prior contact, ever, with them.
The beatings described by claimant are belied by his medical records (Exhibit D) which contemporaneously memorialized his injuries, and photographs (Exhibit C) taken of claimant the evening of July 20, 2012. The only injuries visible in the photographs are a small 1/4 inch laceration immediately below claimant's left eyebrow and a small abrasion by claimant's left earlobe.
Claimant's account of the events of July 20, 2012 was further contradicted by the credible trial testimony of CO Neverett and of Sgt. Wood.
Corrections Officer Neverett testified that claimant ignored two direct orders to exit the cell, that claimant lunged at him as claimant exited the cell, and that he observed claimant take an unknown object from his pocket and throw it to the unoccupied tier below. A package, later tested to be positive for marijuana, was recovered in the tier below (see Exhibit C). Officer Neverett testified that he sidestepped the lunging claimant and pressed the struggling claimant, from behind, into cell bars, before placing claimant in mechanical restraints. Officer Neverett denied the use of any force upon claimant which involved punching or kicking and denied ever unholstering his baton. Officer Neverett was thereafter relieved, per protocol, as other officers escorted claimant to the infirmary.
Sgt. Wood, part of that escort, observed no assault upon claimant during the escort or while claimant remained in the infirmary, which, by claimant's own testimony, lasted a total of 30 minutes.
The use of physical force against an inmate is governed by statute, regulation and case law. Correction Law 137 (5) provides as follows:
"No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection. When any inmate, or group of inmates, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape."
Corrections officers may use physical force to maintain order and discipline in correctional facilities, but "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2[b]).
The limited circumstances in which use of force is permitted by corrections officers are set forth at 7 NYCRR 251-1.2[d]:
"[F]or self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape."
In claims involving inmate allegations of excessive force by corrections officers, the credibility of the witnesses is generally the dispositive factor (Davis v State of New York, 203 AD2d 234 [2d Dept 1994]). To determine whether the use of force was necessary and, if so, whether the force used was excessive or unreasonable, a court must examine the specific circumstances confronting the officers (see Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Quillen v State of New York, 191 AD2d 31 [3d Dept 1993]; Arnold v State of New York, 108 AD2d 1021 [3d Dept 1985], appeal dismissed 65 NY2d 723 ).
The Court further notes that "[u]nder the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of 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 Riviello v Waldron, 47 NY2d 297, 302 ). An employer cannot be held liable where the employee's tortious act was "a clear departure from the scope of employment, having been committed for wholly personal motives" (Cabrini, 97 NY2d at 251; see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ).
There are a number of salient points that serve to discredit claimant's account of events. These include:
1) The photographs and medical records of claimant are wholly inconsistent with his trial testimony regarding the type, amount and length of force he described being used upon him, and they document only the most modest of injuries;
2) Claimant denied the need for protective custody (see Exhibit A);
3) Claimant filed no administrative grievances regarding the events of July 20, 2012 (see Exhibit B);
4) Claimant was issued administrative misbehavior reports, was found guilty and sentenced to 90 days in special housing; and,
5) Contemporaneously created "TO/FROM" memos (Exhibits E and F) corroborate the trial testimony of defendant's trial witnesses and other trial evidence.
The claimant's trial testimony, for all of the reasons discussed, was simply not credible. The claimant failed to prove his claim of excessive force by a preponderance of the credible evidence. On the contrary, the credible testimony of defendant's trial witnesses demonstrated the use of authorized and appropriate force upon claimant on July 20, 2012.
Beyond finding there was use of authorized force, claimant's account of a series of unprovoked assaults, even if credited, would have to fail. In the absence of any allegations or evidence of negligent hiring, training or supervision of corrections officers, of which there are no such allegations or proof, defendant would not be liable for the actions of any corrections officers that are beyond the scope and duties of his/her employment (Cabrini, 97 NY2d at 251).
For all of the reasons set forth above, Claim No. 122788 is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
March 26, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims