On remittal, claim for assault and battery dismissed. The Court credited claimant's trial testimony that he was subjected to a premeditated and unprovoked attack by multiple correction officers and found that claimant thus had failed to prove by a preponderance of the credible evidence that defendant's employees were acting within the scope of their employment at that time.
|Claimant short name:||GALLOWAY|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||THE DRATCH LAW FIRM, P.C.
By: Brian M. Dratch, Esq.
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Belinda A. Wagner, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 8, 2021|
|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 Clinton Correctional Facility (CF) on March 27, 2016. The trial of liability on this claim was conducted on March 5, 2019, in Albany, New York. Claimant testified on his own behalf. Defendant presented the testimony of Department of Corrections and Community Supervision (DOCCS) Sergeants Ronald Wood and Matthew Liberty, and Correction Officers (COs) Brian Poupore, Richard Young, and Christopher Lagree. Claimant did not offer any exhibits into evidence; twenty-two exhibits offered by defendant were received into evidence. In a Decision dated September 4, 2019, the Court found in favor of defendant, finding that claimant had failed to prove by a preponderance of the credible evidence that he was subjected to an assault and battery by defendant's agents while acting within the scope of their employment (see Galloway v State of New York, UID No. 2019-038-111 [Ct Cl, DeBow, J., Sep. 4, 2019]). Claimant appealed the Court's September 4, 2019 Decision to the Appellate Division, Third Department, which reversed the decision on the ground that although this Court "did not state as much," it had "applied the standard used to resolve a motion pursuant to CPLR 4401 for judgment as a matter of law," that this Court should have denied that motion and "rendered a verdict in its capacity as trier of fact," and remitted the claim to this Court for further proceedings not inconsistent with the Third Department's decision (Galloway v State of New York, 194 AD3d 1151, 1152-1153 [3d Dept 2021]). Upon remittal, the parties submitted supplemental briefing at the Court's request. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence, all of the other evidence, the applicable law, and the parties' arguments at trial and in their post-appellate submissions, on remittal, the Court finds in its capacity as finder of fact that defendant's agents were not acting within the scope of their employment in assaulting claimant and therefore concludes that defendant cannot be held liable under the doctrine of respondeat superior to claimant for his injuries.
Claimant testified that on February 11, 2016, as he was returning to his cell from his masonry program, he entered Upper H Block in Clinton CF and was ordered by CO Brian Poupore to close a door behind him. Claimant testified that he refused to close the door, telling CO Poupore that there were other incarcerated persons behind him. Claimant testified that CO Poupore ordered claimant to stop and conducted a pat frisk of him, during which CO Poupore intentionally squeezed claimant's testicles. Claimant testified that he jumped when CO Poupore squeezed his testicles, but he did not say anything to CO Poupore about his actions. Claimant testified that after the pat frisk, he returned to his cell and he made a written Prison Rape Elimination Act (PREA) complaint against CO Poupore, which he sent to the Clinton CF Superintendent through the facility's mail system. Claimant testified that he was at his masonry program on February 19, 2016, when he was escorted by Sergeant (Sgt.) Ronald Wood to the infirmary. Claimant testified that the nurse asked him at the infirmary if he was in any pain, to which he responded in the negative, remarking that he was no longer in pain because "it took so long to get [him] down to the hospital" following CO Poupore's sexual assault (T:23).(2) Claimant testified that the nurse did not examine him and that he was escorted back to Upper H Block by Sgt. Wood, who did not interview claimant or otherwise speak to him about the incident. An entry in claimant's Ambulatory Health Record reflects that he was seen on February 19, 2016, that he claimed at that time that "he was sexually molested by a CO pat frisking him on 2-11-16" but "denie[d] any present pain or uro[logical] dysfunction," and that his vital signs were taken (Defendant's Exhibit R, p. 2 [2/19/16 AHR entry]).
Sgt. Wood testified that he was assigned to investigate claimant's PREA complaint and that on February 19, 2016, he escorted claimant to the infirmary and interviewed him as part of his investigation. Sgt. Wood testified that he checked the Upper H Block logbook as part of his "precursor investigation" (T:72) and discovered that CO Poupore was not working on February 11, 2016, the day that claimant alleged that CO Poupore sexually assaulted him (see Defendant's Exhibit O; T:75). Sgt. Wood concluded that claimant had lied about the incident and determined that the allegation was unfounded, which he testified he memorialized in a memorandum dated February 19, 2016 (see Defendant's Exhibit P; see also T:75, 80). CO Poupore testified that Sgt. Wood told him about claimant's PREA complaint "[s]ometime in February" (T:139), that he checked his "regular days off book" and discovered that he was not at work on February 11, 2016 (T:123), and that he did not squeeze claimant's testicles. CO Poupore testified that he wrote a "To/From" memorandum to Sgt. Wood dated February 27, 2016, eight days after Sgt. Wood had completed his PREA investigation, stating that he was not working on February 11, 2016, and that "[a]t no time did [he] grab [claimant's] penis nor did [he] even conduct a pat frisk on [claimant]" (Defendant's Exhibit V). CO Poupore testified that February 27, 2016, "could have been" the date that Sgt. Wood told him about claimant's PREA complaint, but he did not recall (T:141). CO Poupore testified that claimant's PREA complaint was the only PREA complaint that had been lodged against him in his career.
Claimant testified that he was in his cell in Upper H Block on March 27, 2016, when he heard over the public address (PA) system that he had a call out for an interview, although he was not previously informed that he would be interviewed that day and did not know why he was being interviewed. Claimant testified that as he walked down the gallery to the interview on the tier below, he was told by another incarcerated person in his company not to "go downstairs, [because] it looked funny, there's a few officers down there," to which claimant replied that he was going down for an interview because he was ordered to go (T:30). Claimant testified that as he went down the stairs to the tier below, he noticed Sgt. Wood and seven to nine COs, who were wearing gloves and holding batons, waiting on the landing below. Claimant testified that when he got to the landing where the COs were standing, CO Poupore stepped out and told claimant to put his hands high on the stairwell bars and spread his legs for a pat frisk, and that he complied. Claimant testified that CO Poupore, who was 5 feet 11 inches tall,(3) then repeatedly told claimant, who was 6 feet 7 inches tall, to "come back" (T:34), i.e. move his legs back, so that CO Poupore could frisk him properly, and that claimant complied with the order. Claimant testified that CO Poupore suddenly punched the left side of claimant's face and that "[t]he next thing you know, [he] was pulled back, . . . on the floor, and as [he] was on the floor, [he] was being beaten, punched, kicked, stomped and hit with the baton" (T:36). Claimant testified that he covered his face and curled up to protect himself, but his right leg was pulled away from his body and his right ankle was "beaten and hit numerous times with the baton" (id.). Claimant testified that the beating lasted for between four to six minutes, after which he was handcuffed and escorted to the infirmary. Claimant was interviewed by Lieutenant Snow on March 28, 2016, and stated that he was attacked by "at least nine [COs]" in Upper H Block after being "called out for an interview," and that he could not identify any of his alleged attackers except CO Poupore and could not name any witnesses to the assault (Defendant's Exhibit S). DOCCS records reflect that claimant sustained a fracture of the right ankle; abrasions to his left knee, both elbows and forehead; a swollen left cheek; and pain in the palm of his right hand (see Defendant's Exhibits N, U).
Sgt. Wood testified that on March 27, 2016, he went to Upper H Block to interview claimant about a grievance he had filed and that he told the first officer on Upper H Block to make an announcement over the PA to have claimant get ready and come down for the interview. Sgt. Wood testified that he asked CO Poupore, who was the second officer on Upper H Block on duty at that time, to pat frisk claimant before he was led into the sergeant's office for the interview. CO Poupore testified that Sgt. Wood approached him and told him that he had "an [incarcerated person] coming down for an interview, [and] could [he] pat-frisk him and then send him in [to the sergeant's office]?" (T:126). CO Poupore testified that he was "[j]ust waiting at the bottom of the stairs" when claimant came down for his interview (id.), and he was alone at that time (see T:150). Sgt. Wood testified that only he and CO Poupore were present during claimant's pat frisk and that claimant "came off the wall [during the pat frisk] and said, [expletive] you, Poupore," and hit [CO] Poupore in the face" (T:83). CO Poupore testified that after he started his pat frisk, claimant stated "[expletive] you, Poupore, and he spins off to the left and comes around with his right fist and punches me in the left cheek" (T:128). Sgt. Wood testified that a fight ensued between claimant and CO Poupore and that he called for a Level II response - a request for all available COs to respond - over his radio. CO Poupore testified that he needed to defend himself once claimant punched him, and that he punched claimant in the facial area and continued to struggle with claimant until other COs responded to the Level II.
Sgt. Liberty(4) testified that he was in Upper H Block when the Level II was called, that he was the first CO to respond to the scene, and that when he arrived he witnessed claimant and CO Poupore engaged in a fight. Sgt. Liberty testified that claimant elbowed him in the head when he tried to get his hands around claimant in a body hold, but he was eventually able to pull claimant off CO Poupore and bring him to the ground on his second attempt at a body hold. Sgt. Liberty testified that claimant was a "big man" who was "hard to control" and was "kicking and flailing around" (T:162). CO Young testified that he was doing a fire inspection in Upper H Block when the Level II was called, and he first secured the company and then ran to the scene. CO Young testified that when he arrived, he saw CO Poupore and Sgt. Liberty on the ground with claimant, who was violently kicking and punching the officers. CO Young testified that he pulled out his baton and aimed for claimant's calf and struck until claimant stopped kicking, at which time he grabbed claimant's legs until help came and claimant was put into mechanical restraints. CO Young testified that he did not recall how many times he struck claimant with his baton, that claimant's legs were moving, and that although he aimed for claimant's calf, he struck him in the ankle. Sgt. Wood testified that COs are authorized to use batons "[w]hen an [incarcerated person] is putting up a struggle and still resisting and not going into compliance with any staff direction" and that batons are to be used on "[s]oft tissue, calves, thighs, [and] shoulders" (T:86). Sgt. Wood confirmed that claimant was "[i]nadvertently" hit in the ankle with a baton when a CO attempted to strike his calf to stop him from kicking (id.). Sgt. Wood testified that only three COs - CO Poupore, Sgt. Liberty and CO Young - were involved in the use of force against claimant. DOCCS records reflect that CO Poupore sustained a swollen left cheek and left rib pain and Sgt. Liberty suffered a swollen forehead.
Claimant, for his part, denied at trial that he came off the wall, shouted an expletive at CO Poupore, or punched CO Poupore or any of the other officers, and he testified that he did not fight back and was on the floor trying to cover up the entire time he was being beaten.
As part of the Use of Force investigation, Sgts. Wood and Liberty and COs Poupore and Young completed To/From memoranda containing statements about the March 27, 2016 incident that were consistent with their trial testimony (see Defendant's Exhibit L). On March 27, 2016, CO Poupore and Sgt. Liberty issued two separate misbehavior reports charging claimant with four DOCCS rules violations for fighting, assaulting staff, violent conduct, and creating a disturbance (see Defendant's Exhibits J, K). On April 22, 2016, claimant was found guilty of all the charges in the misbehavior reports following a Tier III hearing and was assessed a penalty of 365 days in the Special Housing Unit (SHU), loss of recreation, packages, commissary, and phone privileges, as well as the recommended loss of 12 months of good time (see Defendant's Exhibit H, p. 5; Defendant's Exhibit I, p. 1). Claimant filed a grievance dated April 6, 2016, that was consistent with his trial testimony regarding the March 27, 2016 incident (see Defendant's Exhibit T, pp.4-7). Claimant's grievance was denied on May 16, 2016 (see id., p. 3).
On remittal, claimant argues that he was the victim of an unprovoked battery by CO Poupore and other correction personnel at Clinton CF on March 27, 2016, in retaliation for his PREA complaint against CO Poupore, and that the Third Department's reversal of this Court's September 4, 2019 Decision mandates that this Court now find that defendant's agents were acting within the scope of their duties when they assaulted claimant on March 27, 2016. Defendant argues that if claimant's testimony that he was subjected to a brutal and unprovoked attack is credited, the evidence does not support a finding that defendant's agents were acting within the scope of their duties, but rather were acting in furtherance of their own purposes.
"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]). Employees of DOCCS are authorized to use a limited degree of physical force when it is reasonably necessary in self-defense, to prevent injury to any person, to enforce an incarcerated person's compliance with a lawful directive, or to quell a disturbance (see Correction Law § 137 ; 7 NYCRR 251-1.2 [b], [d]; see also Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]; Bazil v State of New York, 63 Misc 3d 1216[A], 2019 NY Slip Op 50548[U], *4 [Ct Cl 2019]), but when a State employee uses a degree of force that is excessive under the circumstances, the State may be held liable for any injuries to an incarcerated person resulting from that use of excessive force (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]).
The State may be held liable under the doctrine of respondeat superior for an assault and battery committed by its employees if the assault and battery was "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) "so long as the tortious conduct [was] generally foreseeable and a natural incident of the employment" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ). As the Court of Appeals has explained, the doctrine of respondeat superior is "clearly intended to cover an act undertaken at the explicit direction of the employer" and "also encompasses the far more elastic idea of liability for any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act" (Riviello v Waldron, 47 NY2d 297, 303  [internal quotation marks omitted]). When "an employee for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable" (Judith M., 93 NY2d at 933 [internal quotation marks omitted]; see Siriani v State of New York, 72 Misc 3d 1211 [A], 2021 NY Slip Op 50696[U] *6 [Ct Cl 2021] ["where an employee's actions are taken for wholly personal reasons unrelated to his or her job, they fall outside the scope of employment"]). "[B]ecause the determination of whether a particular act was within the scope of the servant's employment is so heavily dependent on factual considerations, the question is ordinarily one for the [finder of fact]" (Riviello, 47 NY2d at 303; see Rivera v State of New York, 34 NY3d 383, 390  ["Whether an employee acted within the scope of employment is a fact-based inquiry"]), and in making that determination, the trier of fact must consider a number of factors, including,
"the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated"
(Riviello, 47 NY2d at 303). It is claimant's burden to prove his claim by a preponderance of the credible evidence (see Tomaino v State of New York, 22 Misc 3d 1013, 1019 [Ct Cl 2008]; Kosinski, supra), and the credibility of the witnesses at trial is a critical factor in the determination of whether claimant has met that burden (see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Wester v State of New York, 247 AD2d 468, 468 [2d Dept 1998]; Medina v State of New York, UID No. 2007-028-010 [Ct Cl, Sise, P.J., Mar. 2, 2007]).
Claimant's credible testimony establishes that he was summoned out of his cell on March 27, 2016, and ordered into the frisk position by CO Poupore, the same individual against whom claimant had lodged a PREA complaint the previous month. Claimant credibly testified that he complied with CO Poupore's directions to assume the pat frisk position, that he was struck without provocation by CO Poupore, and that he did not in any way resist or fight back. It is clear to the Court from claimant's credible testimony that CO Poupore's attack was premeditated and in retaliation for claimant's PREA complaint. Even assuming that the call-out for the interview was not wholly pretextual and that CO Poupore was acting within the scope of his duties when he ordered claimant into the pat frisk position, the credible evidence clearly establishes that CO Poupore's ensuing battery was not in response to any action taken by claimant who, as noted above, was completely compliant in responding to CO Poupore's direction. The fact that an authorized pat frisk order preceded CO Poupore's unprovoked and vicious attack did not operate to render the ensuing battery within the scope of a correction officer's duties inasmuch as claimant was completely compliant in responding to CO Poupore's order and did not otherwise pose a threat. In other words, notwithstanding that the assault was committed following CO Poupore's pat frisk order, which fell within a correction officer's regular duties, the evidence clearly establishes that the battery was personally motivated and in no way furthered the State's business, and thus fell outside the scope of the correction officers' employment (see e.g. Rivera, 34 NY2d at 390 ["(t)he brutal beating . . . was not in furtherance of any employer-related goal whatsoever," although the correction officers were at their place of employment and on duty at the time]; N.X., 97 NY2d at 252 [sexual assault of patient by doctor in the guise of an internal pelvic examination was "egregious conduct . . . that in no way advanced the business of the hospital"]; Judith M., 93 NY2d at 933 [hospital orderly was not acting within scope of duties when he sexually abused a patient while bathing her as part of his assigned duties]). CO Poupore's wholly unjustified actions in attacking claimant without provocation and in furtherance of his own personal motives was sufficiently and utterly divorced from the pat frisk to preclude a finding that his assault was committed in furtherance of defendant's interests or within the scope of CO Poupore's duties.(5)
To be sure, the Court does not disagree with the Third Department that "given the evidence demonstrating that Poupore was aware that claimant had recently lodged a complaint against him under the [PREA], Poupore's alleged tortious actions could have reasonably been anticipated" (Galloway, 194 AD3d at 1154). Certainly defendant could have reasonably foreseen that CO Poupore may have harbored resentment against claimant for filing the PREA complaint and that some sort of dispute between the two could have arisen. However, as discussed above, the foreseeability of the assault and battery is only one factor to be considered by the trier of fact, and the Court does not find that factor dispositive in view of its finding, based upon the credible evidence presented at trial, that the violent assault of claimant was based solely on CO Poupore's personal motives, specifically, as retribution for the false PREA complaint filed against him.
Claimant's credible testimony also establishes that after having been struck by CO Poupore, claimant was pulled off of the wall and thrown to the floor, where he was brutally beaten by a number of correction officers, and that he did not at any point resist or fight back against his assailants during the premeditated and retributive attack. The subsequent battery by the other COs likewise was not within the scope of those officers' duties inasmuch as the evidence establishes that claimant did not resist or otherwise fight back during the attack and thus the situation gave those officers no license to use force against him (see Correction Law § 137 ; 7 NYCRR 251-1.2 [b], [d]).
Crediting claimant's testimony that he was subjected to a premeditated and unprovoked assault and battery by CO Poupore and other COs in Upper H Block on March 27, 2016, the officers engaged in a "gratuitous and utterly unauthorized use of force [that] was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer" and "a malicious attack completely divorced from the employer's interests" (Rivera, 34 NY3d at 391), and thus, defendant cannot be held liable under respondeat superior for the intentional torts of assault and battery.
Finally, the Court is unpersuaded by claimant's argument that the decision of the Appellate Division, Third Department, reversing this Court's September 4, 2019 Decision mandates a finding of liability because it ruled that the COs were acting within the scope of their employment (see Claimant's Post-Appellate Brief, at pg. 3; Galloway, 194 AD3d at 1153-1154). To the contrary, the Third Department merely found that if claimant's testimony were credited, the assault was not so divorced from the COs' duties that a finding as a matter of law (for purposes of CPLR 4401) that CO Poupore and the other COs were acting within the scope of their employment would not be precluded (see Galloway, 194 AD3d at 1154). Nowhere in its decision did the Third Department conclude that CO Poupore and the other COs were acting within the scope of their employment in assaulting claimant. Rather, the Third Department remitted the matter to this Court as the finder of fact to make that determination. As discussed above, the Court, as the finder of fact, credited claimant's testimony that he was subjected to an unprovoked and unwarranted attack in retribution for his filing of a PREA complaint against CO Poupore and therefore concluded that the attack was utterly divorced from the duties of the COs.
Accordingly, defendant may not be held liable under respondeat superior for the intentional torts of assault and battery committed by its COs on March 27, 2016.
Claimant has failed to prove by a preponderance of the credible evidence that defendant's agents were acting within the scope of their employment when they assaulted claimant and thus defendant cannot be held liable under the doctrine of respondeat superior. Accordingly, claim number 128472 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
September 8, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claimant, who testified at trial that he was a victim of a sexual assault offense, waived the confidentiality protections of Civil Rights Law § 50-b in writing following trial (see Civil Rights Law § 50-b  [c]).
2. All references to the trial transcript are designated by "T".
3. CO Poupore testified that he is 5 feet 11 inches tall (see T:127).
4. Although Sgt. Liberty held the rank of CO at the time, this decision will refer to him by his rank at the time of trial.
5. The Court agrees with the Third Department that not only could the assault have been reasonably anticipated, but that CO Poupore "should not have been the officer directed to conduct claimant's pat frisk" (Galloway, 194 AD3d at 1154). Indeed, the fact that CO Poupore should not have been assigned to conduct the pat frisk in view of the history between the two provides further support for the Court's conclusion that Poupore was acting outside the scope of his employment when he attacked claimant without provocation based upon his own personal motives. Moreover, claimant could have asserted a cause of action alleging that defendant's agents were negligent in permitting CO Poupore to pat frisk claimant in view of their prior history (see e.g. Sebastiano v State of New York , 112 AD2d 562, 564 [3d Dept 1985] [State has duty of care to incarcerated persons to provide "reasonable protection against foreseeable risks of attack"]; see also Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004] [history of conflict between claimant and assailant constitutes foreseeable risk of harm]).