Claim alleging that inmate/claimants suffered frostbite to fingers caused by defendant's correction officers negligently forcing them to endure extended outdoor pat frisk search in frigid temperature is dismissed after trial where claimants' testimony as to circumstances of alleged search was "manifestly incredible" and in contradiction to the testimony of five correction officers and where no medical testimony or contemporaneous medical records supported claimants' alleged injuries.
|Claimant(s):||GILBERT MARTIN AND PAUL PIERCE|
|Claimant short name:||MARTIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||128181, 128182|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||LAW OFFICES OF ELMER ROBERT KEACH, III
By: Elmer Robert Keach, III, Esq.
Maria K. Dyson, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Michael C. Rizzo, Esq.
|Third-party defendant's attorney:|
|Signature date:||January 7, 2020|
|See also (multicaptioned case)|
The claimants, Gilbert Martin (Claim No. 128181) and Paul Pierce (Claim No. 128182), each filed negligence claims arising while they were incarcerated at Bare Hill Correctional Facility (Bare Hill). Claimants allege that they each sustained frostbite injuries to their fingers and hands on February 5, 2013 as they were pat frisked during an extended outdoor search on a bitterly cold and windy evening in sub-freezing temperatures. During the pat frisk, conducted in the aftermath of a possible fight between other inmates, the claimants were allegedly required by correction officers to grasp a metal chain-link fence bare handed.
Claimants are subject to the custody and control of the State of New York while incarcerated and defendant is charged with a duty of reasonable care and supervision while exercising its power of custody and control. Specifically, the State owes " 'a duty to use reasonable care to protect its inmates from foreseeable risks of harm' " (Leibach v State of New York, 215 AD2d 978, 979 [3d Dept 1995], quoting Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).
However, "[t]his does not mean that the State is thereby an insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident" (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001]).
As highlighted at trial of their claims, Claimants Martin and Pierce make allegations that are remarkably similar to allegations contained in unrelated claims brought, and since adjudicated, by eleven other Bare Hill inmates regarding an incident that occurred two days after the date identified by Martin and Pierce as the date of their mistreatment, February 5, 2013.
The eleven unrelated claimants asserted that on February 7, 2013, while incarcerated at Bare Hill, after an inmate was knifed by an unknown fellow inmate, they were negligently treated during an outdoor pat frisk in the early evening in bitterly cold and windy conditions, while being made by correction officers to grasp, bare handed, a metal chain-link fence, and that each endured frostbite injuries to his fingers and hands as a result.
After trial of those eleven joined claims before this Court, the Court made findings of fact, found defendant negligent and awarded ten of the claimants an aggregate total of $775,000 in damages in a Decision filed September 17, 2018 (see Gordon et al v State of New York, UID No. 2018-041-504, Claim Nos. 122585, 122682, 122683, 123003, 125536, 125734, 126025, 126026, 126047, 126049 and 126137). Claimants Martin and Pierce were not parties to that proceeding.
As an aside, claimants' post-trial submission contained several assertions of fact that inaccurately conflated the events of February 5, 2013 and February 7, 2013. These assertions of fact were, in fact, untrue, unsupported by the trial record and unsupported by the submission's cited references (see, for example, claimants' Post-Trial Brief, footnotes 22, 25 and 43(1) ).
Trial of the claims of claimants Martin and Pierce was conducted May 7, May 8, May 9 and June 18, 2019. At the outset of trial, by stipulation of the parties, the two claims were joined. At trial, each claimant asserted that during an outdoor pat frisk search, he had been made to grasp a metal chain-link fence, bare handed, in bitter sub-freezing and windy weather during the early evening of February 5, 2013. Each testified to being detained and searched in such a fashion for reasons which were then unknown to them.
Mr. Martin claimed the described search lasted "15 minutes at the least, maybe longer" (Trial Transcript, hereafter "TT", p 164), while Mr. Pierce asserted he was searched in such a fashion for between 35 and 40 minutes.
Mr. Martin estimated that between 15 and 20 inmates were detained after dinner on February 5, 2013, and that the inmates were directed by the officers to drop their hats and gloves to the ground and made to grab a metal fence bare handed. Describing the situation, Mr. Martin testified, "[a]fter like, three or four minutes, it felt like my hands were on fire. They were burning" (TT, p 157.) The inmates were required to grab the fence during the entire time all of the detained inmates were pat frisked. Mr. Martin indicated several fingers developed burn blisters over the next few days, over which he placed scotch tape.
A number of events subsequent to February 5, 2013 contradict Mr. Martin's direct trial testimony and render it difficult to believe. Notwithstanding describing the searing, burning pain he endured on February 5, 2013, Mr. Martin visited the facility's medical unit for the first time thereafter on February 7, 2013, a date that a number of the inmates enduring frostbite on February 7, 2013 were visiting the medical unit, and he made complaints of chronic neck pain. The Ambulatory Health Record (AHR) of Mr. Martin for February 7, 2013 (Exhibit 17) demonstrates that Mr. Martin made no complaint of hand or finger pain that day. In fact, Mr. Martin never claimed any issue with his fingers until February 11, 2013, six days after the alleged incident, when he signed an administrative grievance (Exhibit 13), and he never sought medical treatment for his hands or fingers until that date. This, despite his grievance stating, "[e]very minute of the day, my fingers are in agony." Further, despite describing ongoing discomfort due to frostbite, subsequent to February 11, 2013, Mr. Martin never again requested medical treatment for his fingers or hands, either while in defendant's custody (despite medical visits and treatments for other conditions while incarcerated) or upon his release from custody.
Upon cross-examination, Mr. Martin conceded that he had previously reported information which contradicted his direct trial testimony, acknowledging that his grievance (Exhibit 13) indicates his hands were placed on a "shack," that it made no reference to being forced to grasp a metal fence and that it stated the pat frisk lasted "about 30 minutes."
Particularly problematic to Mr. Martin's credibility is Exhibit D. Exhibit D is Mr. Martin's sworn and signed affidavit in support of his application to file a late claim, an application that this Court granted. The affidavit is signed and dated September 12, 2014. Exhibit D recounts events of February 7, 2013 involving the eleven unrelated claims since adjudicated by this Court, and bears no relation to the events alleged to have happened to Mr. Martin on February 5, 2013. It describes circumstances, facts and individuals entirely unrelated to the events of February 5, 2013. Upon cross-examination, Mr. Martin acknowledged the numerous contradictions between his trial testimony and his affidavit (see TT, pp 197-201).
Mr. Pierce testified that between 30 and 40 inmates were lined along the metal fence on February 5, 2013 and directed by the officers to remove their hats and gloves. He indicated that the inmates were against the fence for 25 to 30 minutes prior to the pat frisk search and remained on the fence for approximately 10 minutes more during the conduct of the pat frisk itself.
Mr. Pierce's direct testimony regarding the circumstances and consequences of the events of February 5, 2013 suffers many of the same infirmities as that of Mr. Martin.
As with Mr. Martin, although Mr. Pierce visited the facility's medical unit on February 7, 2013, he made no complaint about pain to his fingers and hands (see TT, pp 122-123 and Exhibit 23 - - Mr. Pierce's AHR of February 7, 2013), that despite being in "persistent pain" in eight of his fingers, he made no complaint of it on February 7, 2013 during his visit to the medical unit (see TT, p 125), and that he first sought medical treatment for his hands on February 11, 2013, six days after the alleged incident. As with Mr. Martin, after Mr. Pierce sought medical treatment for his hands on February 11, 2013 and visited the medical unit on February 19, 2013, he never again sought or received medical treatment for his hands and never received prescribed pain medication for such, either while remaining in defendant's custody or after his release from custody (see TT, pp 126-127).
Next, Mr. Pierce's AHR of February 11, 2013 (Exhibit 23) indicates that Mr. Pierce stated that he was involved with the "group who were frisked + left on gate for extended time last Thursday." The previous Thursday was February 7, 2013, not February 5, 2013 (See Exhibit 8).
Lastly, as with Mr. Martin, Mr. Pierce's affidavit in support of his application to file a late claim, signed by and sworn to by Mr. Pierce on August 5, 2014 (Exhibit F), sets forth events described as occurring on February 7, 2013, not February 5, 2013. Further, Mr. Pierce had a document denominated as "Claim" sent to the New York State Office of the Attorney General, Claims Bureau on March 2, 2015 (Exhibit G). Exhibit G, verified, signed and sworn to by Mr. Pierce on August 8, 2014, identically sets forth the allegations of the eleven unrelated claimants concerning the events of February 7, 2013, not the events of February 5, 2013 to which he testified at trial. Mr. Pierce acknowledged several such contradictions at trial, claiming mistake in other discrepancies (see TT, pp 116-122).
Charlene Volpe, a resident nurse at Bare Hill since 2010, credibly testified about medical care she provided to the claimants during the time in question. Nurse Volpe saw Mr. Pierce on February 11, 2013. She testified that Mr. Pierce told her that he was part of the group suffering cold weather exposure injuries to fingers and hands "last Thursday," which was February 7, 2013 (see Exhibit 23 and TT, pp 415-417).
Nurse Volpe also credibly testified that in her examinations of Mr. Martin and Mr. Pierce on February 11, 2013, she saw no objective manifestations of cold weather exposure injuries to the hands and fingers of either man (see TT, pp 427-430).
Nurse Volpe also testified that on February 5, 2013, between the hours of 2:00 p.m. and 10:00 p.m., no inmates reported for emergency sick call (see Exhibit H and TT, pp 433-435), notwithstanding trial testimony that upwards of 40 inmates were searched in bitter, freezing temperatures while being made to grasp a metal chain-link fence, bare handed, for as long as 40 minutes.
As to the respective claimants' trial testimony, there was no corroborating evidence, either in testimonial or documentary form, to establish that an outdoor pat frisk search ever took place on February 5, 2013 under the circumstances each described.
Five officers, Sgt. Gregory Ellsworth and correction officers Matthew Clarke, Alan Deon, Lee Tremblay and Patrick Thompson, all present during the incident in question, testified at trial. The officers uniformly denied that an outdoor search as described by claimants ever took place. Several of the officers testified that the detained inmates were processed through a metal detector within an enclosed, heated guard shack to check inmates' hands and faces for any injuries consistent with a fight and to search for any possible secreted weapons. No memorandum or reports detailing the events of February 5, 2013 reference inmates being subjected to an outdoor search under the conditions and circumstances described by the claimants, and indeed, several documents expressly dispute the assertions of Mr. Pierce and Mr. Martin.
Claimant's medical expert, Dr. Christopher Van Tilburg, never physically examined either claimant, nor did he ever speak with either man. He conceded that no medical record of either claimant ever documented objective observations of cold weather exposure injuries to either man's fingers or hands (see TT, pp 54-57). Also, he never explained why he concluded, or the basis of his conclusion, that Mr. Pierce and Mr. Martin suffered frostbite (see TT, pp 43-45). As such, his expressed opinion is without value.
Dr. Daniel DiChristina, defendant's medical expert, physically examined both men. He found no objective evidence that either man had endured frostbite or cold weather exposure injuries to their fingers or hands. Having found no objective evidence of frostbite, Dr. DiChristina credibly testified that his diagnosis of resolved frostbite for each man was based upon the previously expressed subjective assertions and complaints of each claimant (see Exhibit B, p 30 for Mr. Pierce and Exhibit B, pp 42-43 for Mr. Martin).
Based upon all of the foregoing, the Court finds the trial testimony of Mr. Pierce and Mr. Martin to be manifestly incredible. The Court expressly rejects their testimony and declines to, in any respect, credit it, including, but not limited to, that they were ever detained and searched while made to grasp the metal chain-link fence or that either ever sustained frostbite.
The Court finds that the events of February 5, 2013 did not transpire as described by either claimant. Far more likely in the Court's estimation, is that the trial testimony provided by claimants was given to mimic the experiences of and consequences to the eleven unrelated claimants regarding the events of February 7, 2013, and bore no accurate relationship to the actual events of February 5, 2013.
The claimants have, in all respects, failed to prove their claims by a preponderance of the credible evidence.
The claims are dismissed.
All motions not previously decided are hereby denied.
Let judgments be entered accordingly.
January 7, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Deserving of its own footnote, footnote 43 of claimants' Post-Trial Brief strikingly misstates this Court's findings of fact that were set forth in the Court's written trial decision of the unrelated claims involving the events of February 7, 2013.