|Claimant(s):||ROBERT ADAMS III|
|Claimant short name:||ADAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||ROBERT ADAMS III, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Dorothy M. Keogh, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 31, 2020|
|See also (multicaptioned case)|
This is a claim by Robert Adams III (Adams or Claimant), an inmate appearing pro se, against the State of New York (Defendant or State) alleging that he is entitled to money damages for injuries and pain and suffering he experienced as a result of excessive force used against him by Defendant's agent Sergeant Tony Paroline while Claimant was incarcerated at the Sing Sing Correctional Facility (Sing Sing). A trial was held on September 24, 2019 at the Sing Sing Correctional Facility.
Recitation of the Testimony and Evidence
Claimant testified that on January 3, 2013, he exited the Sing Sing infirmary into a main hallway where he unintentionally stepped over a red line behind which he was required to wait before being escorted back to his cell. According to Adams, Correction Officer (CO) Curry who was on duty in the area, reprimanded him and told him to get back behind the line. Adams testified that he then apologized to CO Curry. At that point CO Carrabello appeared and Adams asked him to escort him back to his cell. Adams testified that CO Carrabello responded by exclaiming that he was "tired of this faggot shit" and pushed Adams up against a wall, while a group of inmates inside the caged waiting area outside the infirmary protested on Adams' behalf. CO Carabello then asked CO Henry to escort Adams back to his cell for keeplock. While walking, CO Henry asked "where do you lock faggot," which elicited a laugh from Adams. Henry then threatened Adams with a beating to his "little ass." Adams testified that he then turned, faced CO Henry and exclaimed that CO Henry was not going to touch him. Adams alleged that he then was thrown to the ground face down by CO Henry. CO Rodgers came upon the scene and assisted CO Henry by placing wrist restraints on Adams. CO Rodgers then walked Adams to the "pen" or holding area for the infirmary.
Adams testified at trial that CO Bennett and Sergeant Paroline then escorted him to an infirmary examining room. There, Sergeant Paroline pulled the privacy curtain closed. Adams asserted that while he still was handcuffed and with CO Bennett present, Sergeant Paroline punched him in the jaw from behind, landing him face down on the floor and rendering him unconscious. Adams also claimed that kicks administered by Sergeant Peroline then "woke him up" and that he experienced Paroline kicking his lower back. Paroline then allegedly left the room. CO Bennett assisted Adams to a chair and uncuffed him while Adams cried hysterically. Adams then was examined by a nurse and complained of back and jaw pain for which he was provided over the counter medications. Photos were taken of Adams and he was escorted to the Special Housing Unit (SHU). The photos and the medical records showed no visible injuries.
Adams was served with two misbehavior reports and, after a Tier 3 hearing, was found guilty of, inter alia, assault on staff, violation of direct orders, violent conduct, creating a disturbance, and harassment. He was sentenced to four months in the SHU and other punishment. Adams appealed, but the Tier 3 disposition was affirmed. Upon a discretionary review, the disposition was modified to 3 months and 16 days in the SHU. There is no record of a Supreme Court special proceeding to challenge this final administrative determination.
Adams claimed that there was blood in his stool after the kicking and that he has had persistent back pain and spasms resulting from the injuries he sustained on January 3, 2013. The medical records showed no evidence of such bleeding at the time of the alleged incident, but did indicate that Adams had been treated for that condition in the preceeding months. The records in evidence also indicated that Adams has been receiving medication and physical therapy treatments for back pain since the incident in question. However, the records also indicate that Adams was treated for back pain prior to the incident. Adams also testified that prior to this incident he had suffered from arthritis in his spine, which continued through to the date of the trial. He also testified that the back spasms he has been experiencing since the incident are unrelated to the arthritis. However, no medical evidence was submitted to establish that the spasms are unrelated to the arthritis. No other witnesses testified on Claimant's behalf at trial.
CO Henry testified credibly at trial that on January 3, 2013 he came upon the area outside the infirmary and observed Adams in an "argumentative state." He then began to escort Adams back to his block and while doing so Adams told CO Henry to "stop f***ing with me." CO Henry responded "be quiet." Adams proceeded up two steps and then turned around, swung at and hit CO Henry over the left eye and near the bridge of his nose. CO Henry testified that he then restrained Adams in a "bear hug" and brought him to the floor, but never struck him. He was assisted by CO Rodgers, who cuffed Adams and helped bring him to his feet. CO Henry left the scene to be treated for a bruise and a bloody nose. CO Henry directly denied making any of the derogatory statements Adams' testimony attributed to him.
Defendant's next witness, CO Rodgers, testified credibly that he assisted CO Henry, and that while Rodgers was bent over cuffing him, Adams "head butted" CO Rodgers causing slight swelling to his face. Since Department of Corrections and Community Supervision (DOCCS) policy requires an inmate involved in a use of force incident to be medically evaluated and to be escorted to the medical facility by an officer not involved in the altercation, Adams was then escorted to the infirmary by CO Maldonado.
Neither Sergeant Paroline nor CO Bennett testified at trial. According to the Assistant Attorney General, both had been present outside the hearing room, but left prior to the conclusion of the trial (which was after 6:30 p.m.); one because of mandatory work rules and the other, now retired, because he wanted to return to his home in Connecticut. The AAG did not indicate which one of the two left voluntarily to return to Connecticut. In any event, the parties stipulated to use the transcript of Sergeant Paroline's sworn testimony in the January 8, 2013 Tier 3 hearing in lieu of his testimony. There was no similar stipulation regarding CO Bennett (Claimant's exhibit 4).
Sergeant Paroline's Tier 3 hearing testimony was that when Adams was brought to the infirmary by CO Maldonado he was told that Adams had assaulted CO Henry and had "head butted" CO Rodgers. Sergeant Paroline testified that while he was the only one in the examining room with Adams he asked Adams whether "he was going to be a problem." (Claimant's Exhibit 4) When Adams said he wasn't going to be, Sergeant Paroline removed the hand cuffs at which time Adams "jerked his right elbow backwards toward me" (Id) as though he were going to strike him. Sergeant Paroline stated that he then "hit him 1 time knocking him to the ground" (Id.). He then put Adams' handcuffs back on whereupon CO Bennett came back into the room and helped Adams to a chair. Sergeant Paroline testified that he used no other force.
CO Bennett's testimony at the Tier 3 hearing (the transcript of which was in evidence) contradicted Sergeant Paroline's insofar as he stated that he was in the room when Sergeant Paroline struck Adams. After leading questioning by the Tier 3 hearing officer, Bennett recalled that Adams swung his elbow attempting to strike Sergeant Paroline. At that time CO Bennett did not recall Adams having been knocked to the ground.
However, according to the report by the Office of the Inspector General ("OSI") in evidence, CO Bennett's statements in his August 2013 OSI interview directly contradicted his Tier 3 testimony. In his report, the OSI investigator recounted that CO Bennett stated that he was standing outside the examination room, heard a commotion and when he entered the room he observed Adams on the floor and Sergeant Paroline applying mechanical restraints or handcuffs on Adams. The OSI report indicates that CO Bennett told the OSI investigator that he could remember nothing else about the incident. Notably, in neither the Tier 3 nor the OSI report interview did CO Bennett mention whether or not there was kicking.
Defendant's last witness was Lieutenant McMarrow, who has reviewed several hundred use of force reports over the past twelve years, including those concerning this incident. He testified that although he did not observe the events alleged, the recounts by the correction officers and Sergeant Paroline contained in the use of force reports he reviewed comported with DOCCS policies. He noted that because Sergeant Paroline had been told of Adams' prior assaults of CO Henry and CO Rodgers, it was reasonable for Paroline to presume that Adams was about to strike him when he jerked his elbow toward him.
Findings of Fact
The weight of the credible evidence was that Adams assaulted CO Henry and "head butted" CO Rodgers. The weight of the credible evidence was that having been told that Adams had assaulted CO Henry and CO Rodgers, Sergeant Paroline had a reasonable belief that Adams might assault him.
However, there is no credible testimony as to the alleged kicking by Paroline, which had it occurred, would support a legal conclusion of unreasonable force. Sergeant Paroline testified that the punch to Adams' jaw was the only force he used. CO Bennett's Tier 3 testimony as to what he observed or didn't observe is given no weight given his failure to testify at trial and his reportedly contradictory statements to the OSI investigator. However, the Court cannot find that Adams was kicked, because there were no bruises reported in the medical records or the photographs. Adams did not testify that bruises developed from the incident. Finally, given Adams' history of back problems, the weight of the credible evidence does not establish that he was kicked or that he suffered injuries from a kicking.
Conclusions of Law
In the 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." 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] [Ct Cl 2019]).
In view of the foregoing, the Court concludes that given Sergeant Paroline's reasonable belief that Adams was about to assault him, he acted in self defense and to enforce discipline when he punched Adams. Adams did not prove by the preponderance of the credible evidence that Sergeant Paroline kicked him and, therefore, used excessive force.
Accordingly, claim no.124215 is dismissed. Any and all other evidentiary rulings or motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
Let judgment be entered accordingly.
January 31, 2020
Hauppauge , New York
MAUREEN T. LICCIONE
Judge of the Court of Claims