Following trial, inmate's claim alleging the use of excessive force by correction officers was dismissed.
|Claimant short name:||JONES|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Law Offices of Devon M. Radlin
By: Devon M. Radlin, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Charles Lim, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 12, 2020|
|See also (multicaptioned case)|
Claimant, formerly an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for injuries allegedly sustained during the course of his incarceration on June 15, 2017. Claimant alleges he was "cut" by his cellmate and was the victim of the use of excessive force by correction staff (Claim, p. 2). Trial of this matter was bifurcated and this Decision relates to the issue of liability.
Claimant, age 28 at the time of trial, testified that prior to his incarceration he had "issues"(1) with the Bloods gang arising from a Bloods member's belief that claimant had provided incriminating information to the police (T7). Claimant testified that the Bloods member, a co-defendant in his then-pending criminal case, punched him in the face, which resulted in a severance of their criminal case and claimant's placement in protective custody at Rikers Island. Claimant, however, denies that he was affiliated with a gang at any time.
In May, 2017, claimant was transferred to Upstate Correctional Facility (Upstate) as the result of prison disciplinary charges. He testified that while en route to Upstate, he saw an acquaintance, also a Bloods member, on the bus who wanted to "cut" him and who attempted to do so with a razor following their arrival (T12). As a result of this incident, claimant attempted to flag down a correction officer but was ignored until he threatened suicide. Claimant testified that he was placed on suicide watch for a day or two before being transferred to Building 10, C-1 gallery, cell 19.(2) Claimant testified that he was alone in cell 19 for approximately one week before he was assigned a cellmate. After approximately a month, claimant learned that his cellmate was a member of the Bloods, which he stated made him nervous. Claimant testified at an examination before trial that his cellmate "started expanding his wings as a -- getting to be affiliated with his other members, and when he mentioned I was in the cell with him, they started talking -- talking bad, and I just got the feeling Okay. It's about to be bad. Let me get out of here now" (Exhibit 4, p. 44). Claimant testified at trial that he became concerned for his safety after his cellmate attempted to communicate with Mike Wayman, an inmate affiliated with the Bloods who the claimant grew up with in the Bronx and was housed on the third floor at Upstate. Claimant testified that in order to protect himself, he locked his cellmate in the recreation pen located outside the rear of the cell(3) and solicited the attention of Correction Officer Trombley to "ask him for mental health" (T20). Claimant testified that he asked Correction Officer Trombley to take him to mental health because he was "having a problem with this individual in my cell" (id.) who was a gang member. At his deposition, however, claimant testified that when the correction officer asked why he was suicidal, he responded "I don't fell (sic) [it is] necessary to be on this planet anymore" (Exhibit 4, p. 44). Claimant was removed from his cell and placed on suicide watch.
Claimant's medical records confirm that on June 14, 2017 he was admitted to the infirmary for a one-on-one suicide watch (Exhibit I, pp. 18, 49-50). A Progress Note written on June 14, 2017 quotes claimant as stating "I'm not crazy, I can't live in a cell with these gang members, I'm going to keep coming up here, I'm not looking for trouble, I just want out of here, I can't live with a man in my cell" (id. at p. 52). In the Suicide Watch notes the same nurse quoted claimant as stating "I can't live with an inmate" (Exhibit 10). Claimant was medically cleared for discharge from the infirmary the next day (id.). He testified that upon his release from suicide watch he refused to return to his assigned cell (cell 19) and informed Sergeant Dumas and two or three correction officers that he was going to get "cut" if he is put back in his cell (T23). At his deposition, claimant testified that Sergeant Dumas responded "[w]e don't care. You better beat your bunkie up or whatever. You're not going back to mental health" (Exhibit 4, p. 46). However, instead of returning claimant to cell 19, claimant testified that Sergeant Dumas informed him that he would be placed in cell 18, which was adjacent to his former cell, cell 19.(4) Claimant testified at trial that he told Sergeant Dumas that he could not go into that cell either because the inmate in cell 18 was also a Bloods member and he was going to get "cut" (T25). Claimant testified that he had heard inmates talking and that is how he knew that the inmate in cell 18 was a Bloods. At his deposition, claimant testified that when Sergeant Dumas told him he would be placed in cell 18, he said "[n]o. No. I don't want to go in that cell either, because that's his friends and they both gang members, so if I go in that cell, he can just pass the word right through the vent or through the window and I can still get cut" (Exhibit 4, p. 48). Claimant testified at trial that Sergeant Dumas and other correction officers nevertheless "dragged" him to cell 18 and "forcefully" placed him inside (T26). Claimant testified that when they arrived at cell 18, the correction officers entered the cell and threw him forward onto his chest where Officer Trombley punched him in the mouth and correction staff "stomped" on him for 10 to15 minutes (T69).(5) At his deposition, claimant described the incident as follows:
"I'm on the floor, on my chest, one officer's got his knee on my neck, hitting me in the face, [saying] 'stop resisting. I'm not resisting.' They trying to get the restraints off of me. And they got him locked in the rec pen, because that's the only way for a person to come into the cell, the other inmate in the cell has to lock himself in the rec pen until I'm secured in the cell" (Exhibit 4, p. 56).
Claimant testified that after his handcuffs were removed, the correction officers tied his hands and feet together with bed sheets and exited the cell. Claimant freed himself of the ties and testified that he started screaming to get out of the cell because he was going to get "cut" (T29). Once the cell door was closed the door to the attached recreation pen was "buzzed" open by the console operator, and his cellmate entered the cell to greet him before returning to the recreation pen to talk to other inmates (id.). Moments later the cellmate reentered the cell with what the claimant described as a scalpel which he used to cut claimant's face. The cellmate then returned to the recreation pen where he sent the weapon "on the line," according to the claimant's trial testimony (T31). Claimant testified that a line is used by inmates to transport contraband from inmate to inmate. After the assault, claimant testified that he waited at his cell door for approximately 10 minutes before Sergeant Dumas and a nurse arrived.(6) He estimated that approximately 30 minutes transpired between the time he informed Sergeant Dumas of the risk that he would be cut and the actual assault by his cellmate.
Claimant was removed from the cell and taken to the infirmary. His Ambulatory Health Record reflects a superficial five-inch laceration to the left side of his face as well as a laceration to his lower lip and abrasions to his right fourth digit, right knee, and left proximal clavicle (see Exhibit I, p. 16). The medical records reflect claimant was first seen in the infirmary at 10:38 a.m. on June 15, 2017 (id.). After the incident, claimant testified he was placed in a cell number 25, a cell for the disabled, where he continued to hear Inmate Wayman talking to him and saying "bad things" (T41). Claimant testified that he became so upset he made a noose with a shower curtain as Correction Officer Helms looked on, encouraging him to hang himself. Claimant testified that he tied the curtain material around his neck, attached one end to the upper bunk and jumped off the bunk. Claimant testified that correction officers immediately entered the cell and "blitzed me off the noose" (T42-T43). According to the claimant's trial testimony, the officers then began to beat him for 10 to 15 minutes, causing his five-inch facial laceration to re-open. After being struck by the shield used by Officer Helms, claimant testified he was punched in the face, head and ribs. Claimant was then seen by a nurse, who determined he needed sutures, and taken to an outside hospital where "strips" were applied to close the wound (T44).
DOCCS' Progress Notes confirm that claimant was brought back to the infirmary at 3:25 p.m. where it was again noted that he had a five-inch laceration, now with a two-inch open area on his left cheek for which he was taken by van to an outside hospital for treatment. The medical records from Alice Hyde Medical Center indicate that claimant suffered a 7 cm subcutaneous laceration to left cheek which was cleaned and "closed with thin layer Steri strips using simple sutures" (Exhibit I, p. 43). Claimant identified Exhibit 11 as a photograph taken after the second use-of-force incident.
Lieutenant Daniel Dumas testified on defendant's behalf at trial. At the time of the subject incident, Lieutenant Dumas was a Sergeant at Upstate responsible for supervising the claimant's housing unit from 6:00 a.m. to 2:00 p.m. Lieutenant Dumas testified that claimant was released from the infirmary at approximately 10:30 a.m. and, according to his Use-of-Force Report (Exhibit A), at approximately 10:38 a.m. claimant refused all staff direction to return to his cell from the infirmary and would not move as they were escorting him. As a result, body holds were used by three correction officers to force claimant through the C-gallery end gate. According to the report, claimant "turned aggressively and attempted to get away from staff" and claimant was forced face first into cell 18 (Exhibit A, p. 2). Lieutenant Dumas denied seeing anyone punch, kick or strike the claimant and testified that such force, if used, would have been noted in the report. Although Lieutenant Dumas could not recall claimant's complaints or the basis for his resistance, he testified that according to a memorandum he wrote to a superior, claimant stated in a post-incident interview that he wanted to go back to the infirmary (Exhibit A, p. 3). Lieutenant Dumas testified that once claimant was placed in cell 18, they used a bed sheet to tie his hands. Claimant's feet were not tied with the sheet, so far as Lieutenant Dumas could recall. Lieutenant Dumas stated that a bed sheet was used in this manner because inmates may not be left in their cells with restraints and the use of a sheet to wrap an inmate's hands provides staff the opportunity to exit the cell safely.
Lieutenant Dumas did not recall claimant expressing fear for his own safety and testified that if he did, he would not have been placed in that cell. According to Lieutenant Dumas' trial testimony, if an inmate expresses fear for his own safety during the course of being seen in the infirmary, prison protocol prohibits medical personnel from clearing the inmate for release to his cell. Rather, medical personnel are required to notify a Sergeant on duty of the inmate's concerns. Lieutenant Dumas testified he received no such notice regarding the claimant.
After claimant was placed in cell 18, Lieutenant Dumas testified that he could recall no shouts for help although claimant admittedly had a fresh injury when he spoke with him after the incident. Following a cell frisk, no weapon was found and, according to this witness, claimant never indicated that a weapon was used. Lieutenant Dumas also testified that he is aware of a process called "fishing" in which inmates tear-up bed sheets in order to pass contraband among themselves (T127-128).
Although Lieutenant Dumas' recollection of the incident was admittedly "hazy" (T87), he was able to identify the Inmate Misbehavior Reports he issued to both claimant and his cellmate following the cutting incident (Exhibit D) as well as the Fight Investigation Form he generated (Exhibit E). According to the Fight Investigation Form, Lieutenant Dumas was unaware of who the aggressor was or the reason for the fight, a weapon was not involved, claimant declined protective custody and sustained a superficial laceration to his left cheek for which medical attention was provided.
Sergeant Michael Albert responded after claimant tried to hang himself and completed a Use-of-Force Report. The report states the following:
"OMH Rogerson was talking to Inmate Jones 14-a-5088 in 10-c-24 cell because he made statements of self harm. When she stepped away from the cell door, Officer Helms witnessed Inmate Jones place the garrote around his neck. Officer Helms called for the shield and suicide prevention cut down tool. I gave Inmate several direct orders to come to the door which he refused. At this point force became necessary. I gave the order to open the cell door 10-c-24. Inmate Jones had a garrote around his neck tied to the upper bunk, attempting self harm. Officer Helms used the shield to strike inmate Jones, as we entered the cell he stood up and stepped toward the Officer in an aggressive manner. Officer Lavoie used the state suicide prevention cut down tool to cut the garrote. Officer [R]aville used both hands on inmate Jones left arm and Officer [A]shline used both hands on inmate [J]ones right arm. Raville and Ashline forced inmate Jones to the floor face first. Officer Lavoie applied the mechanical restraints and inmate Jones complied. Force ended." (Exhibit F).
Sergeant Albert testified at trial that the use of force lasted for approximately one minute, not 15 minutes as claimant testified. The witness identified Exhibit H as a photograph of the noose claimant tied around his neck. Sergeant Albert testified that although claimant was not on one-to-one suicide watch at the time of the incident, he ordered Correction Officer Helms to stand in front of his cell.(7) Sergeant Albert testified that Correction Officer Helms called for the shield at approximately 3:20 p.m. The witness testified that the noose was tied to the upper bunk, approximately five and one-half feet from the floor, and he recalled seeing claimant hit the floor when the noose was cut.
David Thaller, a Registered Nurse employed by DOCCS, was defendant's last witness. Although Mr. Thaller was not involved in the treatment of the claimant and had no personal knowledge of his injuries, he testified based upon his review of the claimant's medical records that there was no indication therein that claimant was punched in the head for 15 to 20 minutes. This concluded the trial testimony.
Claimant seeks damages for both negligent supervision arising from DOCCS' failure to prevent the assault upon him by a fellow inmate as well as for the alleged use of excessive force by correction officers. Addressing first claimant's allegations of negligent supervision, the law is settled that "[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York (99 NY2d 247, 252 ; see also Flaherty v State of New York, 296 NY 342 ). This duty does not require "unremitting surveillance in all circumstances," nor does it cast the State in the role of an insurer of inmate safety (Sanchez, 99 NY2d at 256). Rather, "defendant's duty is limited to providing reasonable care to protect inmates from risks of harm that are reasonably foreseeable, i.e., those that defendant knew or should have known" (Vasquez v State of New York, 68 AD3d 1275, 1276 ; see also Dickson v Putnam, 171 AD3d 1131 [2d Dept 2019]; Wassmann v County of Ulster, 144 AD3d 1470 [3d Dept 2016]; Anderson v State of New York, 125 AD3d 1273 [4th Dept 2015]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez, 99 NY2d at 256; Williams v State of New York, 125 AD3d 1472, 1472 [4th Dept 2015], lv denied 25 NY3d 907 ; Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012]).
Since his arrival at Upstate, claimant had twice been placed on a one-on-one suicide watch before being assaulted by his cellmate. Claimant's medical records from the first suicide watch (during the period May 2, 2017- May 4, 2017) reference only claimant's threats of self harm as the reason for the intensive supervision. No proof, testamentary or otherwise, indicates claimant conveyed his fears for his own safety to prison staff during the course of this first one-on-one suicide watch in early May. Nor do the records from his second suicide watch (June 14 - June 15, 2017) contain any explicit reference to concerns for his physical safety. A progress note dated June 14, 2017 quotes the claimant as stating:
"I'm not crazy, I can't live in a cell with these gang members, I'm going to keep coming up here, I'm not looking for trouble, I just want out of here, I can't live with a man in my cell" (Exhibit I, p. 52).
Similarly, claimant is recorded in the suicide watch notes as stating "I can't live with an inmate" (Exhibit 10, p. 1). Neither of the quoted statements provided the defendant's employees notice that the claimant was concerned for his safety or of the potential that he would be assaulted by his cellmate, or any other inmate.
Although Lieutenant Dumas denied that he was informed that the claimant was afraid of his cellmate, the Court does not credit this testimony for one obvious reason- during the course of escorting the claimant from the infirmary, Lieutenant Dumas directed that claimant be placed in cell 18 rather than cell 19 to which he was previously assigned. Lieutenant Dumas' conduct in directing that claimant be placed in a cell different than the one from which claimant was removed indicates that he was aware of claimant's concerns for his own safety. Nevertheless, the Court cannot conclude that the decision to place claimant in the adjacent cell was negligent. Claimant presented no evidence that his assailant in cell 18 was a Bloods member, that DOCCS was aware of his cellmate's gang affiliation, or that DOCCS knew or should have known of the need to protect claimant from all Bloods members or the inmate in cell 18 in particular.(8) While the claimant testified that he informed correction staff that he was at risk of an assault from the inmates in both cells 18 and 19, his fear arose from no more than the fact that the inmates in the adjacent cells were friends. Indeed, he testified at a deposition that after the two inmates started talking "I just got the feeling Okay. It's about to be bad" (Exhibit 4, p. 44). Considering the difficulties confronted by correction staff in maintaining order in a prison environment, liability arising from negligent supervision must be based on more than speculation. Having failed to provide such proof, the Court finds claimant failed to establish DOCCS' negligence by a preponderance of the credible evidence.
Claimant also contends that the force used to place him in cell 18 was excessive as was the force used to remove him from the noose. "Battery is the unjustified touching of another person, without that person's consent, with the intent to cause a bodily contact that a reasonable person would find offensive; '[a]ssault involves putting a person in fear of a battery' " (Rivera v State of New York, 34 NY3d 383, 389 , quoting Jeffreys v Griffin, 1 NY3d 34, 41 n 2 ; see also Silipo v Wiley, 138 AD3d 1178, 1182 [3d Dept 2016]; Bastein v Sotto, 299 AD2d 432, 433 [2d Dept 2002]). There is no requirement, however, that the contact be intended to cause harm (Relf v City of Troy, 169 AD3d 1223, 1226 [3d Dept 2019]). In a 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." 7 NYCRR 251-1.2 (d) allows the use of force where an employee reasonably believes force is required "for 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." 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 ).
The Court will first address the morning incident in which the claimant was allegedly dragged down the hall and thrown into a cell where he was beaten by correction officers. Claimant's credibility on this issue was impeached by inconsistencies in his examination before trial testimony and the video depiction of the escort. Claimant testified at trial that he was punched in the mouth and "stomped" by correction officers for 10 to 15 minutes whereas, during his deposition, he estimated the assault occurred over a period of 20 to 30 minutes (T69). The Court has also reviewed the video depicting the claimant being taken down the hall and placed in what is presumably cell 18. The video shows claimant being forced to the floor before being lifted up under the arms by two correction officers and dragged down the hall in mechanical restraints. Given claimant's admitted refusal to walk on his own, correction staff reasonably determined that some degree of force was necessary to secure him in a cell. Nothing in the manner in which DOCCS' staff facilitated claimant's movement bespeaks of abuse.
While the video does not show what transpired after claimant was placed inside the cell, the two officers who entered the cell exited approximately two minutes later. The medical records indicate that in addition to the five-inch laceration inflicted by claimant's cellmate, claimant sustained a cut lip and abrasions to his right fourth digit, right knee and left clavicle. While these injuries could be consistent with the use of excessive force, it is equally likely they were no more than an unintended consequence of the correction officer's efforts to move a recalcitrant inmate to his cell. Given claimant's undisputed resistance, the Court finds that claimant failed to demonstrate by a preponderance of the credible evidence that the force used to secure him was excessive.
Nor does the Court find the proof sufficient to establish that the force used to prevent claimant's suicide attempt on June 15, 2017 was excessive. Claimant acknowledged that he intended to commit suicide and that he tied a noose around his neck in furtherance of that purpose. The correction officers who responded were under a duty to intervene and the record as a whole provides no basis to conclude that the force used in entering claimant's cell and subduing him to prevent his suicide was excessive.
Based on the foregoing, the claim is dismissed.Let judgment be entered accordingly.
August 12, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Numbers preceded by the letter "T" are taken from the trial transcript.
2. DOCCS's medical records indicate that claimant was admitted to the infirmary for a one-on-one suicide watch on May 2, 2017 and released on May 4, 2017 (Exhibit I, p. 55-63).
3. Each cell at Upstate has an attached recreation pen that accommodates one inmate at the time.
4. The logbook entries for June 15, 2017 state "C19 Jones returns to block from infirmary, OMH Rogerson clears Inmate Jones 14A5088 to return to cell. Inmate Jones refusing to go back to cell. Force used to secure Inmate Jones in C18 cell" (Exhibit 8, p. 296).
5. At his deposition, claimant estimated a period of 20-30 minutes passed from the moment they tried to get him into the cell until the moment he was "hogtied" (Exhibit 4, p. 86).
6. A logbook entry for June 15, 2017 indicates that both claimant and his cellmate were taken to a holding pen at 11:33 a.m. (Exhibit 8, p. 296).
7. According to Sergeant Albert's report, the incident occurred at 3:20 p.m. An entry in claimant's Ambulatory Health Record Progress Note, made on June 15, 2017 at 3:10 p.m., indicates that a nurse had "[n]otified security to transfer inmate to infirmary for OMH 1:1 watch" (Exhibit I, p. 17).
8. While the claim alleges that "[c]laimant was court mandated as protective custody status due to the nature of his case and co-defendant's case" (Exhibit 1, Claim, ¶ 4), no such proof was presented at trial.