New York State Court of Claims

New York State Court of Claims
PETERSON v. THE STATE OF NEW YORK, # 2021-053-004, Claim No. 120381

Synopsis

After a virtual trial on the issue of liability only, the Court determined that claimant failed to establish her causes of action for assault and battery and excessive force. Claimant, who was visiting her husband in a correctional facility, alleged that she was assaulted by a correction officer as she was leaving the visiting area.

Case information

UID: 2021-053-004
Claimant(s): KATIERIA PETERSON
Claimant short name: PETERSON
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 120381
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: FITZSIMMONS, NUNN & PLUKAS, LLP
BY: Mark S. Nunn, Esq.
Joseph R. Plukas, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
Third-party defendant's attorney:
Signature date: June 11, 2021
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Katieria Peterson alleges that she sustained serious personal injuries on June 8, 2011 as a result of the negligent actions of one or more correction officers employed by the State of New York who were acting within the scope of their employment and utilized excessive force without cause or provocation. On July 11, 2011, a Notice of Intention to File Claim was served upon the Office of the Attorney General of the State of New York. A claim was filed on September 22, 2011 with the Clerk of the Court of Claims alleging negligence, gross negligence carelessness, wantonness, recklessness, intentional conduct and the utilization of excessive force on claimant by Correction Office Latasha Johnson (CO Johnson), an agent, servant or employee of the State of New York (State). On November 2, 2011, the defendant filed a verified answer denying claimant's allegations.

On April 1, 2021, a virtual trial was conducted on the issue of liability only in Buffalo, New York, where the parties stipulated on the record that the trial would be conducted with no live testimony from the parties or any other witness and that instead, sworn interrogatories of claimant and deposition testimony of all other witnesses would be stipulated into the record as exhibits. The Court was previously advised by counsel that claimant was physically unable to participate in a deposition or trial as she suffered a stroke on March 19, 2014 unrelated to this claim. (See Exhibit 9 at para. 18). Both parties then agreed to and stipulated into evidence 45 exhibits, which included claimant's sworn answers to written interrogatories (Exhibit 9) and amended answers to interrogatories (Exhibit 22); sworn deposition testimony from CO Johnson of January 26, 2017 (Exhibit 10); sworn deposition testimony of Rahshina Hunt of January 26, 2017 (Exhibit 13); sworn deposition testimony of Dennis Minnick of June 9, 2017 (Exhibit 15); sworn deposition testimony of Diane Hicks of June 22, 2017 (Exhibit 19); sworn testimony of the second deposition of CO Johnson of March 12, 2019 (Exhibit 23); sworn testimony of the third deposition of CO Johnson of August 15, 2019 (Exhibit 27); and the transcript of a criminal trial of People v Katieria Peterson in the Alden Town Court (Exhibits 28A, 28B and 28C).

FACTS

On June 8, 2011, claimant was visiting her husband, Randall Peterson, who was then incarcerated at the Wende Correctional Facility (Wende) in Alden, New York. At approximately 1:15 p.m., claimant was in the process of leaving the Wende visiting area when she was allegedly approached and assaulted by CO Johnson in the hallway beside the exit gate to the visitor area. Claimant further alleges that CO Johnson struck her with a billy club and performed a leg whip that caused claimant to fall and fracture her left leg and sustain additional injuries. The claim alleges causes of action for negligence and excessive force.(1) Following the altercation, claimant was interviewed by New York State Trooper Brian Hennessy but states that she never saw or signed the statement he prepared for her signature (Exhibit 34A and Exhibit 9 at paras. 8 and 9). CO Johnson was also interviewed by Trooper Hennessy and she acknowledged that she signed her statement (Exhibit 11 and Exhibit 28B, pp. 126-129). Claimant identified CO Hicks and CO Hunt as witnesses to some or all of the altercation (Exhibit 9 at paragraph 11).

On March 27, 2013, a bench trial was conducted in a criminal action resulting from the altercation. A trial in The People of the State of New York v Katieria A. Peterson was held in the Alden Town Court before the Hon. Larry LaDuca. The transcript from that trial was received into evidence as Exhibits 28A, 28B and 28C. At the trial, New York State Police Investigator Daniel E. Strozyk was the first to testify and stated that he was called to Wende to investigate an incident involving CO Johnson and claimant. He stated that his involvement on June 8, 2011 was only by telephone as Trooper Hennessy was the one who responded to the incident and went to the hospital to speak with the claimant and CO Johnson (Exhibits 28A and 28B, pp. 64-96).

CO Johnson testified at the criminal trial that the initial incident with claimant occurred around 11:00 a.m. when claimant very aggressively bumped into CO Johnson's left arm as she walked past her near the vending machines. After this contact occurred, CO Johnson immediately went and reported it to the desk officer, CO Hicks (Exhibit 28B, pp. 98-105). CO Johnson testified that later that day at about 1:00 p.m., claimant came to the desk to CO Hicks to obtain a pass to leave the visitor room. Claimant was handed the paper pass and then came around the desk where CO Johnson was standing and pushed her left shoulder with an open hand. CO Johnson stated that claimant then left the visitor room and was in the hallway past the entrance gate. She also identified five photos that she stated fairly and accurately depicted the visit room, gate and hallway as it looked on June 8, 2011 (Exhibit 28B, pp. 106-109).

CO Johnson testified that she followed claimant into the hallway and told her not to put her hands on her anymore. CO Johnson stated that claimant verbally responded but could not recall what claimant stated and that she then took both of her hands and ripped CO Johnson's shirt.(2) In response, CO Johnson testified that she took one of her feet and swept claimant with her leg and they both fell to the ground.(3) She testified that the standard procedure for a correction officer to follow when a visitor of an inmate becomes physical is to defend yourself. CO Johnson testified that when they were both on the floor, claimant began to swing her arms and CO Johnson attempted to hold them down. CO Johnson stated that when the response team came to her assistance, she immediately got up and walked out of that area. CO Johnson testified that she then went to speak to the medical personnel at Wende and later spoke to the New York State Trooper (Exhibit 28B, pp. 110-114).

On cross-examination, CO Johnson testified that she met with Trooper Brian Hennessy following the incident and provided information about the incident for his report (Exhibit 11). She did not recall reviewing the report, but acknowledged her signature on it (Exhibit 28B, pp. 126-129). CO Johnson stated in her report to Trooper Hennessy that she could not recall what claimant said to her in response to her stating words to the effect, "let that be the last time you bump into me." CO Johnson testified that she could not recall claimant verbally threatening her but that she physically came after her. It was also pointed out that she did not state in her report that claimant had ripped her shirt, only that she grabbed her shirt with both hands. CO Johnson testified that the memorandum to CO Sticht was prepared after she spoke with Trooper Hennessy (Exhibit 12). The memorandum was prepared two hours after her interview with Trooper Hennessy and in neither instance did CO Johnson indicate that claimant ripped her shirt (Exhibit 28B, pp. 131-142). She also testified that claimant placing her hands on CO Johnson's shirt and pushing her shoulder was an attack (Exhibit 28B, pp. 149-150).

In the present action, CO Johnson was first deposed on January 26, 2017. She testified that she was first employed by the Department of Corrections and Community Supervision (DOCCS) in 2004. CO Johnson stated that she has an associates degree in psychology and does not have a degree in law enforcement. When first hired by DOCCS in January 2004, she attended DOCCS training academy for a period of two months (Exhibit 10 at pp. 7-13). She testified that she was assigned to Wende in late 2010 and that up to the date of the incident, she performed various duties as a correction officer. CO Johnson testified that when working in the visiting room, her duties were to observe the inmates and their visitors. In particular, she was to make certain that visitors were not smuggling drugs into the facility or having sexual relations and that they were adhering to various unspecified rules. Prior to June 8, 2011, CO Johnson testified that she had never taken down any visitor (Exhibit 10 at pp. 29-32).

CO Johnson stated that she first encountered claimant in the visit room about a week prior to the incident. She stated that she was seated next to another correction officer who observed that claimant had something concealed in her bra. The correction officer asked CO Johnson to go and find out what was hidden in her bra. CO Johnson testified that claimant was not happy about being approached by her and "displayed poor behavior." She stated that when asked, claimant then pulled something out of her bra but she could not recall what had been concealed. CO Johnson testified that later that same day, she observed claimant touching her husband in a manner inappropriate for the visiting room and was asked to stop. She stated that after claimant was told to stop, she then "displayed a horrible, horrible attitude." As a result, CO Johnson stated that the sergeant on duty, Sergeant Minnick, was called and spoke to claimant and told her to review the visiting room rules and that a written "warning" was then prepared. When asked to identify what had troubled her with claimant's attitude, CO Johnson stated that claimant challenged her, made comments and delayed before complying with her requests (Exhibit 10 at pp. 34-43).

CO Johnson testified that the next time that she saw claimant was on June 8, 2011, the date of the incident. She stated that she was assigned to the visitor room that day and the altercation with claimant occurred at about 1:25 p.m. Immediately prior to the incident, CO Johnson had let a visitor into a bathroom and when she turned around, claimant was staring directly at her in a way that made her feel uncomfortable. She stated that it was about 1:00 p.m. and as she walked back to her station near the vending machine, she was aware of claimant and was trying to avoid her but that claimant then looked directly at her and bumped her left shoulder as she walked past. CO Johnson then told CO Hicks what had just occurred. She testified that while claimant was sitting with her husband, she also observed inmate Peterson staring at her in a very threatening way. CO Johnson stated that about 25 minutes later, the claimant came up to the desk to obtain the form to be released from the visit room and then pushed on CO Johnson's shoulder. CO Johnson testified that so as not to make a scene, she then followed claimant out of the visit room, approached and told claimant to never place her hands on her again. CO Johnson testified that in response, claimant placed both hands on her, ripped her shirt and then "attacked" her. CO Johnson testified that in response, she took one of her feet and swept across claimant's legs, which caused both of them to fall. She stated that once on the ground, she held claimant until other correction officers arrived. After assistance arrived, CO Johnson got up and returned to the Visit Room and reported what had happened to CO Hicks. CO Johnson testified that she followed claimant out of the visit room because she had been assaulted by claimant pushing her left shoulder (Exhibit 10 at pp. 48-67).

CO Johnson testified that she gave a statement to Trooper Hennessy (Exhibit 11), which statement she stated was an accurate recitation of what occurred and upon which basis claimant was arrested. She testified that she followed claimant out so as not to create a scene and to talk to her privately without other people being around. CO Johnson testified that it was her intention to tell claimant that she was not to touch her. CO Johnson testified that after they were on the ground, claimant was on her back and CO Johnson was on top and held her there until assistance arrived. She did not believe that she was carrying a baton on the day of the incident. CO Johnson recalled that CO Hunt and one other correction officer came to her assistance. When CO Johnson was asked again why she had followed claimant out of the visit room, she responded that she needed to speak to claimant because she had not complied with the visit room rules (Exhibit 10, pp. 68-85). CO Johnson then identified a memorandum (Exhibit 12) that she prepared the day of the incident that was submitted to Deputy Sticht. In that statement, CO Johnson wrote that after claimant pushed her left shoulder, she followed her out and asked if there was a problem (Exhibit 10, pp. 91-92).

CO Johnson was deposed a second time on March 12, 2019, after an order was issued by the Court permitting claimant to obtain relevant documents from DOCCS concerning the training provided to CO Johnson at the academy and to question her regarding this training. In this deposition, CO Johnson agreed with a statement in her academy training relating to the use of force against inmates that "when possible, [the use of force] should be a carefully thought out process. Care must be exercised to avoid injury to inmates. Also, alternatives should be explored before using force." She also agreed with the definition of excessive force provided in her training, which states that it is "A, force used is greater than necessary. B, force is continued after subject complies or stops resisting" (Exhibit 23, pp. 8-12). CO Johnson also agreed with the statement in her training that "[a] correction officer's authority to use force ends when the inmate is no longer an immediate threat. Any force used after that time creates a potential risk of legal liability and/or department sanctions." CO Johnson testified that when claimant pushed her as she was about to leave visitor room A, claimant posed an immediate threat. After claimant left the visitor room, CO Johnson agreed that she was no longer an immediate threat (Exhibit 23, pp. 13-14). CO Johnson also agreed that she should discontinue the use of force when an inmate no longer presents an immediate threat to other inmates or to another officer (Exhibit 23, pp. 16-17). CO Johnson agreed with a statement in the employee manual stating that "[a]n employee shall not lay hands on or strike an inmate unless the employee reasonably believes that physical force to be used is reasonably necessary for Situation 1, self-defense or Situation 2, to prevent injury to other person." CO Johnson then agreed that when claimant was leaving the visitor room, she did not need to defend herself from any action by claimant (Exhibit 23, pp. 18-19). Finally, CO Johnson agreed with respect to Penal Law 35.15 regarding self-protection from imminent use of force against you, that claimant did not present a need for imminent use of force against her as she walked away (Exhibit 23, pp. 19-20).

CO Johnson was then referred to the DOCCS training academy manual and a section entitled "Introduction to Defensive Tactics" (Exhibit 25). CO Johnson testified that she agreed with the manual at Section 8.2, which states the rules governing the "use of force" (Exhibit 24) which states that "A, the greatest caution and conservative judgment shall be applied in determining whether physical force is necessary and the degree of such force that is necessary. Each employee is personally charged under law and the policies of the department with the responsibility of acting in good faith with reasonable care and upon probable cause. B, when it is necessary to use physical force, only such degree of force as is reasonably required shall be used." CO Johnson agreed that when claimant was leaving that day with her back to her as she walked away from the visitor's room that she did not pose an immediate danger at that time (Exhibit 23, pp. 20-23). CO Johnson also agreed that the training manual (Exhibit 25) states that a CO should not use physical force of any kind if an inmate strikes a CO and retreats to his cell and locks himself in as any kind of physical force would be in retaliation only (Exhibit 23, pp. 24-25).

On August 15, 2019, CO Johnson was deposed a third time. She testified on this occasion that she followed claimant out of visitor room A as there was no other alternative available to her. CO Johnson stated that she could not have remained in the visitor room when claimant left because "a situation needed to be taken care of and I was going to seek my supervisor to handle it." When CO Johnson was asked why she needed to follow claimant out, she responded "[b]ecause she posed a threat and I needed to get my supervisor immediately. She could have came back into the facility. I'm not for sure what her intent was so therefore I needed to get my supervisor involved with the situation" (Exhibit 27, pp. 4-7). CO Johnson testified that claimant engaged in a physical confrontation with her as she was attempting to go to her supervisor's office. CO Johnson stated that prior to the altercation, she spoke to claimant and told her not to put hands on her again (Exhibit 27, pp. 10-11). CO Johnson agreed that when claimant left the visitor room and she followed her out that she did not then have to physically defend herself against claimant (Exhibit 23, pp. 19-20).

CO Diane Hicks was deposed on June 22, 2017. She testified that she was first assigned to work at Wende in 1993 and worked there continuously until her retirement in 2012. At the time of her retirement, CO Hicks was the visiting room officer and had held that position for five or six years. She stated that she did not receive any training with respect to the appropriate use of force involving members of the public or with visitors in the Wende visitor room. CO Hicks indicated that her normal daily assignment was to work visitor room A. She stated that she had never restrained a visitor at Wende. CO Hicks identified the portion of the Wende visiting room logbook for May 2011 (Exhibit 16). The logbook indicated that claimant came to the visiting room on May 27, 2011. CO Hicks testified that on this occasion, she noticed that claimant was concealing something inside her bra. She reported it to the sergeant on duty, who spoke to claimant. CO Hicks did not know what it was that claimant had concealed and had no interaction with claimant. She stated that a visit warning was issued to claimant due to this incident. The second entry in the visitor log for May 27, 2011 also regarded claimant and was a warning about touching inmate Peterson in a sexual manner. CO Hicks testified that claimant was always being told to stop, that she was one of the problem visitors. She also testified that she did not observe CO Johnson having any interaction with claimant prior to the date of the altercation (Exhibit 19, pp. 17-31).

On the day of the incident, CO Hicks testified that she was assigned to be the visiting room officer and CO Johnson was the second officer. She stated that as second officer, where only one visiting room is open as it was that day, CO Johnson would remain in that room and assist CO Hicks. Prior to claimant leaving the visiting room, CO Hicks stated that she recalled that CO Johnson told her that something had occurred with claimant, the details of which she could not recall. CO Hicks testified that as she was seated at the desk, claimant came to get the visiting room paper to exit the visiting room and snatched the paper from her. She then observed claimant's left shoulder bump CO Johnson's left shoulder. CO Hicks testified that the bump rocked her and made her unstable and claimant continued on towards the exit. She stated that CO Johnson then said to her that she was going to get a supervisor, however, she stated that CO Johnson did not immediately follow claimant out as she had to wait for the gate to be reopened (Exhibit 19, pp. 31-37). CO Hicks identified her supporting deposition dated June 27, 2011 that was prepared by Investigator Strozyk and signed by CO Hicks (Exhibit 20). In the supporting deposition, CO Hicks described the incident with claimant's bra and that she had become irate or nasty when she had been asked to remove items from her bra. The statement also indicates that CO Johnson told CO Hicks that claimant had bumped her earlier that day prior to the altercation. The statement indicates that after claimant shouldered CO Johnson at the desk that CO Johnson said she was getting a sergeant and that claimant became upset and started getting loud, then "the next thing I knew, both were on the ground wrestling." CO Hicks admitted that there was no statement in the supporting deposition that claimant had left the visiting area after shouldering CO Johnson (Exhibit 19, pp. 37-46). CO Hicks identified Exhibit 21, a statement she prepared and submitted on June 8, 2011 to Sergeant Lewalski, who was the area supervisor. CO Hicks testified that it was not normal policy for a correction officer to follow a visitor out of the visiting area unless they were going out the gate at the same time. She testified that she did not see how claimant and CO Johnson got onto the floor. CO Hicks stated that Johnson's baton was in its holster. CO Hicks testified that the reason CO Johnson didn't wait until claimant had left the visiting gate area before leaving was that she told CO Hicks that she wanted to get a sergeant to talk to claimant before she left (Exhibit 19, pp. 46-56).

CO Hicks also testified in the Alden Town Court criminal matter. She testified that prior to the altercation between claimant and CO Johnson, she observed claimant coming to the desk in the visiting room where CO Hicks was seated and then gave her the paper to leave and "she rocked [CO] Johnson." In response, CO Hicks heard CO Johnson state that she was going to get the sergeant and observed claimant and CO Johnson in the hallway getting ready to go out to the gate. CO Hicks then heard scuffling about seven feet away and looked up from her desk to see claimant and CO Johnson both on the floor. CO Hicks testified that she observed claimant on the floor underneath CO Johnson who was on top and they were struggling. She testified that she did not see how they got to the ground nor did she hear anything that either said. CO Hicks also testified that she did not see CO Johnson use any weapon and said that her baton was still in its holder. On cross-examination, CO Hicks testified that CO Johnson did not follow claimant out of the visiting room as she was intending to get the sergeant (Exhibit 28C, pp. 180-187).

The final witness to testify for the prosecution at the Alden Town Court criminal trial was Frank Cartonia, who was a Federal Rehabilitation Coordinator at Wende at the time of the altercation between claimant and CO Johnson. Cartonia was leaving the guidance department and was waiting to go through the gate by the Arsenal when he observed the altercation. He testified that he was only 12 to 15 feet away and was able to observe claimant putting one hand on CO Johnson's chest area. Cartonia said that after claimant did so, "there was a tussle and [claimant] was taken to the ground." Once on the ground, Cartonia testified that CO Johnson was restraining her until other officers came to her assistance. He testified that CO Johnson did not use her baton or any other weapon on claimant, nor did any officer strike claimant. Cartonia did not hear any verbal threats being stated between claimant and CO Johnson and did not know what precipitated the altercation. Cartonia testified that it was about 10 seconds from the time that he first observed claimant standing at the gate with CO Johnson behind her until the time she turned around and grabbed onto CO Johnson's shirt (Exhibit 28C, pp. 194-201). Cartonia also prepared a memorandum on June 10, 2011 to his superior stating that "this counselor was approaching the gate outside of the arsenal, coming from the Guidance area. I observed a female visitor grab a female Correction Officer on the upper body area. A struggle ensued to attempt to take control of the visitor. The visitor and the two Correction Officers ended up on the ground when two additional officers arrived and removed the visitor to the Lobby area" (Exhibit 44).

In the defense of the Town of Alden criminal matter, John Cruz and claimant's husband, Randall Peterson were called as witnesses. Cruz was an inmate at Wende serving a sentence for murder for which he was first eligible for parole in 2018. He stated that he and Randall Peterson were neighbors in G block. Cruz was in the visiting room that day as his parents were visiting and alleged that he overheard CO Johnson state that "I'm going to get this bitch today." On cross-examination, Cruz admitted that from where he was seated that he was unable to see the altercation (Exhibit 28C, pp. 204-218).

Randall Peterson testified that prior to the altercation, he observed CO Johnson taunting his wife by calling out her name, calling her a bitch and making gestures towards the two of them. Peterson also testified that at no time did claimant bump into CO Johnson either at the vending machine or when she went to the desk to obtain the paper from CO Hicks to leave the visiting room. He stated that he observed his wife leaving the visiting room with CO Johnson walking behind her and then saw CO Johnson grab claimant by the back of the shirt to turn her around. Peterson stated that his wife was carrying a soda in one hand and chicken wings in the other hand, which she dropped. He then observed CO Johnson throw his wife back against the wall and then threw her to the floor. Peterson testified that at no time did claimant ever physically contact CO Johnson. He stated that after they were on the ground, CO Johnson was on top of claimant pinning her arms down, that claimant was attempting to pull her head up and CO Johnson was slamming her head against the floor (Exhibit 28C, pp. 219-224).

CO Rahshina Hunt testified on January 26, 2017. She is a correctional officer at Wende and was first assigned to work there in late 2005 or early 2006. On the date of the incident, CO Hunt was working in the front lobby when she testified that she heard a commotion in Visit Room A. She stated that the first thing she heard was a sound like a baton hitting the ground, which was an alert because batons should not be hitting the ground. CO Hunt then went to the gate and on the other side she saw CO Johnson and claimant on the floor. She testified that when she arrived the baton she had heard was still in its holster on CO Johnson's side. CO Hunt stated that claimant's hands were on CO Johnson's shirt and she grabbed claimant's left wrist and CO Humig grabbed her right wrist. They then escorted claimant to the front lobby. CO Hunt then identified a memorandum of this event (Exhibit 14) that she prepared to Sergeant Lewalski, who she identified as the supervisor of the correction officers (Exhibit 13, pp. 4-23).

Sergeant Dennis Minnick testified on June 9, 2017. He testified that he began his employment with DOCCS in 1993. Sgt. Minnick testified about his training at the DOCCS academy and that everything taught there was focused on the proper handling of the inmate population. He testified that a leg sweep was part of their physical training and that a baton is the only weapon that is carried in a corridor as a correction officer. Sergeant Minnick was transferred to Wende in 2010. He testified that he was the mega sergeant at Wende, in charge of the front entrance, lobby, two visiting rooms and several other areas (Exhibit 15, pp. 4-29). As of the date of the incident, Sergeant Minnick was in-charge of the entrance and visitor rooms but testified that he believed that he was not working on June 8, 2011. He identified the visiting room warning logbook (Exhibit 16), which he stated was utilized to substantiate that an inmate or visitor had received a verbal warning, a misbehavior report or that no ticket was written. He stated that Exhibit 16 is a copy of the logbook for May 27, 2011. Sergeant Minnick testified that he directed staff to put the warning in the logbook on that date. He recalled speaking to inmate Peterson on that date when the warning was taking place as it was one of his job duties. He testified that he was advised by CO Johnson and met with Peterson to advise him that he was going to put a warning in the logbook about his wife's conduct placing items in her bra. Sergeant Minnick had no further conversations with Peterson up until the date of the incident (Exhibit 15, pp. 30-43).

Sergeant Minnick testified that as the date of the incident was a weekday, there were three correction officers working in the visiting rooms. He stated that the person assigned as desk officer assigns visitors seating and is responsible for the count and overseeing rules and regulations in the visiting room. The other two officers work on the floor of the visiting room and are watching to see that inmates and their visitors follow the rules and regulations. Sergeant Minnick stated that a floor officer has some freedom to go outside the visiting room and leave their post since Visiting Room A is right in front of the door to Visiting Room B. He added that as the floor officer is an extra person in the visiting room, a floor officer may leave for a number of reasons and go to the Visiting Room B side or to the front lobby. Sergeant Minnick testified that there had been no prior instances in which CO Johnson used force to restrain a visitor prior to the subject incident (Exhibit 15, pp. 46-56). On cross-examination, Sergeant Minnick stated that there is no prohibition for a correction officer to follow a visitor out of the visiting room if there is an incident or a need to talk to the sergeant (Exhibit 15, pp. 67).

A memorandum dated June 8, 2011 from CO Humig, the second correction officer who came to assist CO Johnson, was received into evidence. In this memorandum, CO Humig stated that "[a]t approximately 1:25 while I was working in the front lobby I heard loud voices and the sound of a scuffle from the visiting room area. I approached the visit room gate and observed CO Johnson and a visitor (Peterson) on the floor. CO Johnson was attempting to take control of the visitor (Peterson). As the visitor (Peterson) had both hands attached to the front of her shirt, I took control of her right wrist and CO Hunt took control of her left wrist and we escorted the visitor (Peterson) from the visit room area to the lobby" (Exhibit 45).

The claimant and the State retained expert witnesses who previously provided affidavits that were relied upon by the parties in support of motions for summary judgment(4) and were stipulated to and received into evidence, including the expert witnesses curriculum vitae. Donald L. Leach II was retained by claimant.(5) Mr. Leach states that he has over 30 years experience in corrections, administering and managing a large detention facility and over 20 years experience consulting nationally on correctional management issues. He contends in his affidavit that applying the applicable and recognized standard of "objectively reasonable,"(6) the use of force, i.e., a leg sweep against claimant by CO Johnson was unnecessary and unreasonable. Applying the objectively reasonable standard, Mr. Leach concludes that once CO Johnson did not respond to being bumped into by claimant at the desk with CO Hicks and claimant left to exit the visiting room, claimant was no longer an objective threat and it was unreasonable and negligent for CO Johnson to follow her out into the hallway where the altercation ensued. It was his opinion that CO Johnson following claimant out of the visitor room and verbally confronting her was correctionally unreasonable and that she negligently then applied use of force techniques contrary to use of force training. Specifically, Mr. Leach contends that the leg sweep employed by CO Johnson is an extreme measure under these circumstances given the concrete floors, walls and steel bars and resulted in the high likelihood of injury to the parties involved. He also opined that alternatives available to CO Johnson included a reprimand to claimant or excluding her from conducting future visits with inmate Peterson.

The State utilized Stewart T. Eckert as an expert witness.(7) In his affidavit, Mr. Eckert states that he has been employed by DOCCS for over 37 years and is the Superintendent of Wende and responsible to supervise eight other superintendents of correctional facilities in the Wende Hub. Mr. Eckert opined that the acts of CO Johnson did not deviate from the statutes, rules or regulations applicable to DOCCS correction officers and that she did not use excessive force in violation of the objective reasonableness standard. He averred that correction officers, as Peace Officers, may use force in self defense and to apprehend persons for violations of the law, whether an inmate or a non-inmate. Mr. Eckert also opined that the use of force employed by CO Johnson with a leg sweep was not objectively unreasonable and did not constitute excessive force. In particular, he averred that as part of academy training for DOCCS, correction officers are taught that legs are listed as a vulnerable area of an attacker, i.e., areas of the body that can be struck or manipulated by an officer to gain compliance of an attacker and to protect the officer from harm. Mr. Eckert avers that CO Johnson violated no DOCCS regulation and was not found to be at fault for this incident upon its review by DOCCS. Finally, he avers at paragraph 15 of his affidavit that "the unaddressed presence of a combatant or assailant within a Correctional Facility is against the good order of the Correctional Facility. There is no obligation for a Corrections Officer to refrain from speaking or approaching any individual within a Correctional Facility nor to withdraw from the presence of any individual in a Correctional Facility."

ANALYSIS

The claim includes causes of action for negligence and the use of excessive force. The first cause of action for negligence alleges that CO Johnson negligently struck claimant with a billy club/baton, grabbed claimant and threw her to the floor causing her resulting injuries.(8) These allegations allege intentional physical contact directed at claimant. Battery is defined as the unjustified touching of another person, without their consent and with the intent to cause a bodily contact that a reasonable person would find offensive, while "[a]ssault involves putting a person in fear of a battery" (Rivera v State of New York, 34 NY3d 383, 389 [2019], quoting Jeffreys v Griffin, 1 NY3d 34, 41 n 2 [2003]). As such, the factual allegations in the first cause of action set forth the elements for a claim of assault and battery and not negligence or gross negligence (Mazzaferro v Albany Motel Enters., 127 AD2d 374 [3d Dept 1987]; see Trott v Merit Dept. Store, 106 AD2d 158, 160 [1st Dept 1985]). It has been held that the State is not immune from liability for an assault and battery when a correction officer uses more force than is necessary to perform his or her duties (Arteaga v State of New York, 72 NY2d 212 [1988]).

In DOCCS correctional facilities, an inmate visitation program has been established to provide inmates in custody with an opportunity to maintain friendships with family members and friends during the time period of their incarceration (7 NYCRR 201.1). Inmates and visitors are expected to abide by visiting rules and regulations promulgated consistent with this purpose and that failure to do so may result in the denial or termination of a visit, including indefinite suspension of future visits (7 NYCRR 201.4).(9) The mere fact that an altercation occurred between claimant and a correction officer in which force was used and the claimant sustained an injury is not sufficient in and of itself to establish liability (Harriger v State of New York, UID No. 2018-031-512 [Ct Cl Minarik, J., Nov. 28, 2018]; Pedroza v State of New York, UID No. 2016-044-002 [Ct Cl Schaewe, J., Apr. 11, 2016]). In a prison facility, a correction officer is authorized to "use all suitable means to defend themselves, to maintain order, to enforce observation of discipline" (Correction Law 137 [5]). Physical force may be used by a correction officer where she 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." Where the use of physical force is necessary, a correction officer is only to use the degree of force that is reasonably required (7 NYCRR 251-1.2 [d]).

The State may be held liable for injuries where a correction officer uses excessive force in effectuating an arrest (see Jones v State of New York, 33 NY2d 275, 279-280 [1973]; Arnold v State of New York, 108 AD2d 1021 [3d Dept 1985], appeal dismissed 65 NY2d 723 [1985]. The Court's evaluation of such a claim is to be "analyzed under the 4th Amendment [of the U.S. Constitution] and its standard of objective reasonableness" (Passino v State of New York, 260 AD2d 915, 916 [3d Dept 1999], lv denied 93 NY2d 814 [1999]; see Graham v Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 [1989]). And the Court's determination of whether excessive force was utilized in this altercation is determined by an assessment of the weight of the evidence and the credibility of the claimant's and witnesses testimony (see Shirvanion v State of New York, 64 AD3d 1113 [3d Dept 2009]; Wester v State of New York, 247 AD2d 468 [2d Dept 1998]).

In assessing the proof at trial, the Court was not presented with any live testimony and the sole source of testimony was from the transcripts of deposition testimony that took place during the course of pretrial discovery, as well as the transcript of the criminal trial in the Town of Alden Court. The sworn answers to interrogatories by claimant and CO Johnson's deposition testimony presented conflicting versions of what transpired immediately prior to the altercation. Claimant's version of the facts was that she was approached and assaulted with a baton by CO Johnson in the hallway next to the exit gate to the visitor area, and that CO Johnson then utilized a leg whip that caused her to fall and fracture her left leg and sustain other injuries. Although there were inconsistencies in CO Johnson's testimony in the criminal action when compared to the three depositions in the civil action, I find that the key facts as to what precipitated the altercation and what took place immediately before and during the altercation were consistent and corroborated by other witnesses. The Court does not find claimant's version of the facts credible in that no other witness to the altercation corroborated that CO Johnson initiated the altercation or that she used her baton to strike claimant.

The claimant identified several witnesses in her Amended Responses to Interrogatories (Exhibit 22), including Jessica Mobley (who did not testify), inmate Randall Peterson (claimant's husband), CO Hicks, and CO Hunt. Although inmate John Cruz testified at the Town of Alden criminal trial on March 27, 2013, he was not identified by claimant as a witness in the amended interrogatories and his testimony at the criminal trial indicated that he did not observe the altercation. I did not find the testimony of Randall Peterson to be credible. He alleged in his testimony that he saw CO Johnson grab claimant by the back of the shirt to turn her around and that he then observed CO Johnson throw his wife back against the wall and then to the floor. Peterson also testified that at no time did claimant ever physically contact CO Johnson. CO Hicks and CO Hunt did not corroborate claimant's sworn answers to interrogatories or any portion of Mr. Peterson's testimony.

CO Hicks testified that she observed claimant shouldering CO Johnson, that it "rocked her" and that CO Johnson then stated that she was going to get the sergeant. She observed claimant and CO Johnson in the hallway getting ready to go out to the gate, then heard scuffling about seven feet away and looked up from her desk to see claimant and CO Johnson both on the floor. CO Hicks testified that she did not see how they got to the ground or hear anything spoken between them. In addition, CO Hicks testified that CO Johnson did not use any weapon on claimant and that her baton was still in its holder.

CO Hunt testified that she saw CO Johnson and claimant on the floor and that when she arrived, CO Johnson's baton was still in its holster. She also testified that she observed claimant's hands on CO Johnson's shirt and that she grabbed claimant's left wrist and CO Humig grabbed her right wrist. CO Humig did not testify but a memorandum he prepared following the altercation was received in evidence confirming that he assisted by securing claimant's right wrist. (Exhibit 45).

Additional testimony that the Court found credible included the testimony of Frank Cartonia. Cartonia testified that he was only 12 to 15 feet away from claimant and CO Johnson. He observed claimant standing at the gate with CO Johnson standing behind her when claimant turned around and grabbed onto CO Johnson's shirt. Cartonia testified that there was then a tussle between them before they ended up on the ground. He then observed CO Johnson restraining claimant until other officers came to her assistance. Cartonia's testimony was consistent with other witnesses in stating that CO Johnson did not use her baton or any other weapon on claimant and that no correction officer struck claimant.

Sergeant Minnick, who was the duty sergeant in-charge of the visit room testified that it was consistent with DOCCS procedures for CO Johnson to leave the visiting room to report an incident or to talk to the sergeant. He stated that as a floor officer, CO Johnson had freedom to go outside the visit room as the floor officer is an extra person in the visit room. The State's expert witness, Mr. Eckert opined in his affidavit that CO Johnson did not deviate from the statutes, rules or regulations applicable to DOCCS correction officers and that she did not use excessive force in violation of the objective reasonableness standard. Mr. Eckert also opined that the use of force employed by CO Johnson with a leg sweep was not objectively unreasonable and did not constitute excessive force.

Claimant's expert, Mr. Leach, whose affidavit I did not find convincing, focused his attention on the fact that after shouldering CO Johnson and leaving for the gate to exit, claimant was no longer an objective threat and it was therefore unreasonable and negligent for CO Johnson to do anything further after that point. The Court rejects Mr. Leach's opinion as I find that it is inconsistent with the DOCCS procedures and policies that were explained by Sergeant Minnick and Mr. Eckert.

It is the finding of this Court that it was consistent with DOCCS procedures and appropriate for CO Johnson to leave the visit room to inform the sergeant on duty that claimant had violated visitation rules by physically contacting, i.e., shouldering CO Johnson as she was preparing to leave the visit room. Although CO Johnson could have waited for claimant to exit before proceeding to speak to the sergeant on duty, she was not required to wait and that did not give claimant license to physically assault CO Johnson grabbing her shirt. Once claimant initiated physical contact with CO Johnson, CO Johnson was justified in utilizing a leg sweep to neutralize claimant in order to maintain order in the visit room and prevent any escalation of violence that could have involved Mr. Peterson or other inmates present.

Upon review and consideration of the sworn statements of claimant, the testimony of CO Johnson and the other witnesses, it is the finding of this Court that claimant has failed to establish by a preponderance of the evidence the assault and battery cause of action. I also find that claimant did not establish the excessive force cause of action. I find that the evidence at trial demonstrated that claimant initiated the altercation and that CO Johnson's use of force in response to claimant's actions was unprovoked, reasonable and in self-defense. I also find that CO Johnson's actions to restrain claimant were not "unreasonable or excessive under the circumstances or in violation of any policy or procedure of defendant" (Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]; see also Correction Law 137[5] and 7 NYCRR 251-1.2[d]). As such, I do not find that excessive force was utilized by CO Johnson in response to claimant's actions. Furthermore, as the claimant initiated the physical altercation, she also assumed the risk of injury that could result from it (Ruggerio v Board of Educ. Of City of Jamestown, 31 AD2d 884 [4th Dept 1969], affd 26 NY2d 849 [1970]; Lomedico v Cassillo, 56 AD3d 1271 [4th Dept 2008]). Accordingly, claim no. 120381 is hereby dismissed.

Let judgment be entered accordingly.

June 11, 2021

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


1. The claim also asserted a third cause of action for negligent hiring, training and supervision which was dismissed by the Court in a Decision and Order dated October 13, 2020. (Peterson v State of New York, UID No. 2020-053-538 [Ct Cl, Sampson J., Oct. 13, 2020]).

2. A photo of the ripped shirt was shown to CO Johnson and admitted into evidence in the criminal trial but was not offered to the Court in this civil trial.

3. In the supporting deposition (Exhibit 11), CO Johnson stated that she took her right foot and swept one of claimant's feet and they then both fell to the ground.

4. The Court denied both the State's and claimant's motions for summary judgment finding numerous questions of fact as set forth in the decision and order in Peterson v State of New York, UID No. 2020-053-538 [Ct Cl, Sampson, J., Oct. 13, 2020],

5. The affidavit and curriculum vitae of Donald L. Leach II was stipulated to and received into evidence as Exhibits 29 and 30, respectively.

6. The decision by the United States Supreme Court in Graham v Connor, 490 U.S. 386 (1989) sets forth the recognized standard for the use of force in a correctional facility to be applied to a non-inmate or member of the public as what would be viewed as "objectively reasonable".

7. The affidavit and curriculum vitae of Stewart T. Eckert was stipulated to and received in evidence as Exhibits 32 and 33, respectively.

8. In the Notice of Intention, claimant alleges that her injuries occurred when she was struck from behind by a correction officer with a club or baton.

9. These regulations set forth procedures for inmate visitation (7 NYCRR 201.2); the guidelines, including rules and regulations during visitation (7 NYCRR 201.3); grounds for suspension or termination of visitor or inmate visiting privileges and procedures for an administrative process relating to suspension or termination of visitation rights (7 NYCRR 201.4).