Opinion
Claim No. 137110
02-22-2023
Bernard P., Claimant, v. The State of New York, Defendant.
For Claimant: Bernard P., Pro Se. For Defendant: Hon. Letitia James, Attorney General of the State of New York (By: Janel Kaufman, Esq., Assistant Attorney General).
Unpublished Opinion
For Claimant: Bernard P., Pro Se.
For Defendant: Hon. Letitia James, Attorney General of the State of New York (By: Janel Kaufman, Esq., Assistant Attorney General).
Hon. JAVIER E. VARGAS Judge of the Court of Claims.
This Court, having presided over the instant trial on December 20, 2022, heard the testifying witnesses, read the pending motion, examined the pleadings and exhibits in evidence, and listened to the arguments raised during trial, hereby makes these findings of fact and reaches the following conclusions of law.
By Verified Claim filed on October 18, 2021, Claimant Bernard P. (hereinafter "Claimant"), an incarcerated person currently housed at Five Points Correctional Facility, commenced the instant action against Defendant State of New York (hereinafter "State"), seeking damages for personal injuries allegedly inflicted upon him by the excessive use of force, assault and battery by correction officers employed by the New York State Department of Corrections and Community Supervision (hereinafter "DOCCS") at the Sullivan Correctional Facility (hereinafter "Sullivan") in Fallsburg. Particularly, Claimant alleges that on April 30, 2021 at approximately 9:45 p.m., while at Sullivan's infirmary, he was trying to get his coat when, without provocation, correction officers punched him in the face with their keys, sprayed him in the face with pepper spray, and repeatedly assaulted him and hit him about the face and the back of his head (Claim at 1-2, ¶ 3, 4). "Claimant was then taken to be seen by a nurse who[ ] determined that [he] needed stitches to close the wound in his eyebrow [and] was then rushed to an outside hospital, where he received six stitches in his eyebrow" (id. at 2, ¶ 5). The Claim seeks recovery in the sum of $10,000 for the intentional torts of assault and battery (id. at 4).
The medical records reveal that, after the incident, Claimant suffered a two-inch long "right eyebrow laceration, 1/4" wide by 1/4" deep," which was "cleansed with NS, Bacitracin applied, steri[le]-strips applied. Covered with dry dressing" (M-98485 Affirmation in Response, Unusual Incident Report, Use of Force Report, Exh. C). After refusing use of force photographs, Claimant was transported to Garnet Health Care Center where he received "five stitches" for his eyebrow laceration (id.). Upon his return to the Facility, Claimant was admitted to the Mental Health Unit ("MHU") where he was kept under keeplock for several days apparently pending the disposition of his disciplinary hearing (id.).
On May 12, 2021, Claimant was found guilty after a Tier II disciplinary hearing of creating a disturbance, refusing a direct order and engaging in violent conduct at the Correctional Facility. He was sanctioned by losing certain privileges and was imposed 15 days of solitary confinement at the Special Housing Unit ("SHU"). He filed an appeal of the Tier II Hearing decision claiming, inter alia, that he is hearing impaired with two hearing aids and did not hear or respond to the direct orders by the officer, who attacked him unprovokedly (M-98485 Motion for Summary Judgement, Exh. E). On May 13, 2021, the DOCCS Superintendent modified the determination, dismissing the charge of refusing a direct order, but upholding the other charges and "no change to sanctions" (id.). The instant Claim ensued.
By Verified Answer dated November 17, 2021, the State denied the allegations raised by Claimant in the Claim, and interposed six Affirmative Defenses, including that the State agents and employees are immune from liability to Claimant because they "took actions which were privileged as being discretionary determinations made... within the scope of their duties as public officials," and that Claimant was culpable, contributorily negligent and/or assumed the risk in causing his injuries (Verified Answer at 2, ¶¶ 6, 8).
On June 30, 2022, following the retirement of the Hon. Faviola A. Soto, all matters and motions currently pending before her were assigned to the undersigned. By correspondence dated October 12, 2022, the parties were notified of the virtual trial to be conducted using the Microsoft TEAMS platform on December 20, 2022, with Claimant and the State appearing virtually before the undersigned in Manhattan.
By Motion filed August 31, 2022, Claimant moves for partial summary judgment on liability against the State, pursuant to CPLR 3212, arguing that the unwarranted and unprovoked assault by the correction officers clearly established the State's liability for his injuries and there are no material issues of fact to be tried, entitling him to judgment as a matter of law. He claims that, as a hearing-impaired individual, he didn't hear the directions or orders by the officers, who "purposefully, willfully and maliciously intentionally assaulted [him] acting outside the scope of their employment," and contradicted themselves and falsified their use-of-force reports to justify their actions without explaining how Claimant sustained his injuries.
By Affirmation in Response filed October 17, 2022, the State opposes summary judgment, arguing that there are numerous triable issues of fact and credibility determinations in this claim alleging the use of excessive force against an incarcerated person. Specifically, the State maintains that there are triable issues as to whether it was necessary for the officers to use force against Claimant and, if so, whether the force used was excessive or reasonable under the circumstances. In Reply, Claimant argues that the officers downplayed and falsely documented their use of force against him on their statements by affirming that he was belligerent, in need of mental health intervention and attempted self-harm. He points out that nothing about self-harm or the need for a mental health evaluation was reported on their initial use of force memoranda.
Because there clearly were triable issues of fact in this us of force scenario, the Court denied Claimant's Motion (M-98485) on the record and proceeded to trial to assess liability and the credibility of the witnesses involved in the incident (see Diaz v State of New York, 144 A.D.3d 1220, 1222 [3d Dept. 2016]; Shirvanion v State of New York, 64 A.D.3d 1113 [3d Dept 2009]). At trial on December 20, 2022, Claimant appeared via video from Sullivan and the State's Assistant Attorney General appeared by video link from Binghamton, New York. After a conference with my Principal Law Clerk, Claimant's Exhibits 1 to 9 were marked and entered into evidence, on consent, as well as Defendant's Exhibit A. Faced with a self-represented Claimant, the Court carefully explained to the parties the rules and procedures for the unified trial. Both parties waived opening statements at the beginning of the trial.
The first witness to testify was Claimant, who testified that on April 30, 2021, he was taken to Sullivan's infirmary after being hospitalized for ten days for "respiratory problems" and "asked for a meal" upon his arrival. After being denied a meal, he asked "to be returned to housing, but the C[orrection] O[fficer] told him that he cannot return to his cell" because he had to be medically released from the infirmary. Claimant testified that he "became angry" and informed the officer "that he had mental health issues". The officer told him that he "had to be seen by the Office of Mental Health, and mental health was called and spoke to" Claimant (id.). According to Claimant, the mental health nurse "was angry because he was on his way home" following the long workday and told him: "damn, [P.], I was out the door". After the consultation, Claimant testified that the nurse spoke to the officers and he "was pacing back and forth" out of frustration.
Unless otherwise indicated, matters on quotation marks are to the Court's own trial notes.
According to Claimant, Officer Anderson then came into the infirmary dorm and tried to reach his left wrist to place him in handcuffs to take him to the Mental Health Unit ("MHU"), and then Officer "Spath punched [Claimant] in his eyebrow and [he] began to bleed profusely. [He] was being subdued." Claimant explained that the Officer used his keys to hit him and cut his eyebrow with the forceful blow. He stated that Sgt. Milisauskas then came in and "sprayed [pepper spray] in his face while" he was being restrained on the floor. After the assault, Claimant explained that he was sent to an outside hospital wherein he received six stitches in his eyebrow.
On cross-examination by the State, Claimant stated that, upon arriving back to Sullivan, he was in pain and wanted to get a meal and his pain medication, which were denied to him by Officer Anderson. Claimant again acknowledged that he was "angry," "upset" and "pacing back and forth" prior to the incident, and said to the Officer that he "can harm [him]self" and showed his wrists to the Officers. He doesn't "recall the Officer telling him to put his hand behind the back prior to the incident or sit on the bed," not even them entering the room. However, the Officer then tried to "grab his arm" to apply mechanical restraints or handcuffs, but he continued walking after the Officer grabbed his wrist to "reach to get his coat" in his net bag. He further testified that the Officer tried to handcuff him but "couldn't grab his right hand because I was moving... wasn't still." He "was first hit above the right eyebrow with the keys by [Officer] Spath" and "hit several times... like three times" in his eyebrow and the back of his head while his hands were in handcuffs, and was then "wrenched off the chair and thrown to the floor face first," "forcefully." After being pepper sprayed, he felt that he "was going to die" because he "was on Prednisone and was gasping for air." And, later on, he was "shoved into the back wall of the elevator." "To [his] knowledge, nothing prompted this assault," and he said "it wasn't supposed to end like that."
After the incident, Claimant explained that he was charged with an Inmate Misbehavior Report for failure to obey a "direct order, creating a disturbance and violent conduct." He had a Tier II hearing, found guilty and received 15 days of confinement in SHU. Upon his appeal, DOCCS modified the determination by reversing the direct order charge, because he is hard of hearing and "couldn't hear the direct order." However, Claimant acknowledged that they kept the creating a disturbance and violent conduct charges, and did not modify the sanctions. He also conceded that he was conversing with Officer Anderson prior to the incident about "having a meal, going to the housing unit, calling a supervisor and harming himself," but couldn't hear the direct order. At the close of his testimony, Claimant rested his case without calling any other witness or providing additional evidence as to his personal injuries and alleged mental anguish or damages.
The first witness to testify for the State was Correction Officer B. Anderson, a 25-year veteran correction officer assigned to the Sullivan infirmary, who responds to medical emergencies, escorts the nurse and assists with the care, custody and control of incarcerated persons at the infirmary. He testified that, on April 30, 2021 after hours at approximately 6:00 p.m., Claimant was returned to Sullivan and was given "a regular tray of food" because he was hungry, and went to watch television at the tv room. After Claimant spoke to the nurse in charge, Anderson testified that Claimant "became agitated" and was returned to the infirmary dorm area. Both Officer Spath and he then heard Claimant loudly banging on the glass and "yelling about wanting to hurt himself" and showed Anderson his wrists. They summoned a nurse from MHU to interview Claimant, and determined that he needed to be admitted for observation to the MHU.
Anderson then testified that Sergeant S. Milisauskas came also to the infirmary to assist with the escort, and he then entered the dorm along with Officer Spath and Milisauskas. Claimant "was pacing back and forth and Sgt. Milisauskas told him to sit on the chair or bed and he complied with that order." "I asked [Claimant] to stand up and put his hands behind his back to put restraints"on as he was being escorted to MHU. However, Officer Anderson testified that Claimant started to run "to grab his stuff in the other side of the room, to get his net bag." The Officer stated that he was forced along with Officer Spath to run after Claimant and applied an upper body hold upon claimant driving them all to the wall as he reached for the net bag. According to the Officer, Claimant continued to resist, "struggle" and "kept trying to speed away from them. Claimant "was not hitting them, but trying to escape from them." The Officer then used another body hold to his shoulder and neck to drive him forcefully to the floor because he kept struggling. Sgt. Milisauskas applied pepper spray and Claimant ultimately became complaint.
Officer Anderson credibly maintained that nobody hit, assaulted or struck Claimant, and he opined that he used reasonable force because he was concerned that Claimant was furtively trying to reach his bag and that "he had something in the bag" with which to hurt them. He then noticed that Claimant was injured during the incident and "had blood in the face." Claimant was then placed in mechanical restraints and escorted to medical for evaluation. The Officer stated that he had "never had an issue with Claimant prior to this incident, but that he remembers him being in the infirmary before." Claimant declined to cross-examine Officer Anderson.
Next to testify for the State was Sgt. Stephen Milisauskas, a Correction Officer for 16 years-seven of those as a Sergeant at Sullivan, who supervises other correction officers and ensures that policies and initiatives are taken care of. He testified that on the date in question he received a call of an incarcerated person "very agitated" and repeatedly "banging on the glass windows," and he responded to the infirmary where he observed Claimant being evaluated by a nurse, who deemed a mental health evaluation "for suicide watch" necessary. As Officers Anderson, Spath and he entered the dorm, he testified that Claimant "stood up from the bed and took off to the other side of the dorm" attempting to retrieve something from his property in the net bag. He observed as Officers Anderson and Spath ran after Claimant and used upper body holds to force him to the wall, but Claimant "wouldn't comply [and] told him to put his hands in the back four times." Upon continuing to resist, he administered one full application of pepper spray to Claimant's face on the floor and Claimant became compliant. They applied mechanical restraints and he was escorted to medical for decontamination and examination. The Sergeant explained that it was "dangerous to have Claimant moving and not restrained because he could hurt himself or others... he had no way of knowing what was inside [his] bag." He denied that he or either of the officers struck, kicked or used any other force that was not reasonable under the circumstances. No cross-examination was had.
The State then called Correction Officer J. Spath to testify on its behalf. Officer Spath, a Correction Officer at Sullivan for the last 22 years, testified that he was assigned to work in the infirmary because he had experience with a medical place. He testified that there was no prior interaction with Claimant on the day in question, but that Claimant started banging on the windows and causing a commotion, and he went to call the MHU. After the nurse interviewed Claimant, she "said that he had to be transferred to MHU and he sat on the bed upon command". As Officer Anderson tried to reach Claimant's left hand, he testified that Claimant "ran to[wards] his net bag, like 10-15 feet away and then both ran after him". They "all ended up in the other wall and hit the wall at the same time." He testified that Claimant "wouldn't listen and wouldn't comply" with their commands, and "they all fell to the floor trying to get their arms around him". "He was struggling, resisting, he was trying to get" his bag, "fighting them, not complying with verbal directions."
Officer Spath explained that an incarcerated individual "struggling is bad because he could strike them or use the bag as a weapon or take something out" of the bag to hurt them. Like the other officers, he denied that he ever struck Claimant with his keys, assaulted, or kicked him, or used any other force that was not reasonable to control him. Although Claimant also declined to cross-examine Officer Spath despite the Court inviting him to do so, the Court elicited clarifying information describing the "net bag," which the Officer testified is made of plastic mesh measuring two feet by four feet and that you can see through it. However, he explained that one "couldn't see all the contents in the [Claimant's] net bag."
After both parties rested their cases, the State argued in summation that correction officers are permitted to use reasonable and necessary force to prevent any injury to themselves, others and the incarcerated person himself. According to the State, the officers never struck, kicked or assaulted Claimant, but instead used reasonable force in the form of body holds under the circumstances as Claimant acted in an unruly, angry and agitated manner and his injuries-"one small cut to his right eyebrow"-were a direct result of his actions and his own fault. Based on those reasons, the State orally moved for a dismissal of the case. On the other hand, Claimant maintained that the State arguments are "ludicrous because there is a difference between use of force and excessive force," which they unprovokedly employed on him and he received "six" stitches which is "no small cut." He concluded his summation by asking for damages for the battery and assault. After examining all the trial evidence, this Court agrees with the State.
"Battery is the unjustified touching of another person, without that person's consent, with the intent to cause a bodily contact that a reasonable person would find offensive; '[a]ssault involves putting a person in fear of a battery'" (Rivera v State of New York, 34 N.Y.3d at 389 [internal citations omitted]; see Silipo v Wiley, 138 A.D.3d 1178, 1182 [3rd Dept 2016]; Bastein v Sotto, 299 A.D.2d 432, 433 [2nd Dept 2002])
"Correction officers are tasked with the formidable and critical responsibility of protecting the safety of [incarcerated individuals] and coworkers while maintaining order in correctional facilities (Arteaga v State of New York, 72 N.Y.2d 212, 217 [1988]). When that obligation is breached, the State may be directly liable for injuries suffered by an [incarcerated person] if it acted negligently,... or vicariously liable if a culpable employee intentionally or negligently caused the injuries while acting in the scope of employment" (Rivera v State of New York, 34 N.Y.3d 383, 385 [2019]). 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[5]). 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" (see Arteaga, 72 N.Y.2d at 218). 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 A.D.3d 1220, 1222 [3rd Dept 2016]; Shirvanion v State of New York, 64 A.D.3d 1113 [3rd Dept 2009]; Koeiman v City of New York, 36 A.D.3d 451 [1st Dept 2007], lv denied 8 N.Y.3d 814 [2007]). The State is not immune from liability for an assault and battery when an officer uses more force than is necessary to perform his or her duty (see Arteaga v State of New York, 72 N.Y.2d at 220-221; Jones v State of New York, 33 N.Y.2d 275 [1973], rearg dismissed 55 N.Y.2d 878 [1982]; Barnes v State of New York, 89 A.D.3d 1382 [4th Dept. 2011], lv denied 92 A.D.3d 1267 [4th Dept 2012], lv dismissed 19 N.Y.3d 949 [2012]).
Applying these principles to the matter at bar, the State has established by a fair preponderance of the evidence that the Claim must be dismissed. The testimony and other proof at trial presented a classic case of conflicting narratives. On the one hand, Claimant testified he was unprovokedly and savagely assaulted by Correction Officers Anderson and Spath at the infirmary after not complying with a direct order he didn't hear. On the other hand, Officers Anderson, Milisauskas and Spath testified that Claimant was causing a disturbance, angry, agitated and heard threatening self-harm. The divergent proof presented requires a close examination of issues pertaining to the credibility of the testimony provided. While Claimant claimed that the officers assaulted him without reason or provocation, the officers provided a more credible and plausible explanation for the incident and the necessity of their use of force.
Specifically, the officers credibly testified-and Claimant acknowledged-that he was "pacing up and down," "upset and angry" upon his arrival to the infirmary and threatened to harm himself, thereby creating the need for an MHU evaluation. Claimant was then evaluated by the nurse who told the officers to transfer him to the MHU. After the officers entered Claimant's dorm to escort him to MHU and gave him a direct order to place his hands behind his back, this Court believes that Claimant ran across the dorm ostensibly to reach his net bag for a coat. Although Officer Anderson applied a body hold to restrain Claimant, he attempted to turn and break free from the body hold. Claimant thereafter continued to resist the officers by spinning his body and slip away while they were attempting to gain control of him. Faced with that uncompliant and unruly behavior, both officers then used another body hold which drove all of them forcefully to the floor. Since it was necessary to use physical force, the officers appear to have used "only such degree of force as is reasonably required" (7 NYCRR § 251-1.2[b]). Under the extant circumstances, this Court finds that the officers appropriately attempted to maintain order and reasonably believed that Claimant had to be restrained by force from reaching his bag-or whatever was in his bag-as a means of self-defense.
Claimant's testimony was inconsistent and not as credible as the officers' testimony, which was further supported by their demeanor in court and corroborated by their Unusual Incident and Use of Force Reports, admitted in evidence. They consistently denied striking, kicking or assaulting Claimant, but candidly admitted using the body holds and the pepper spray. If the Officers were to have battered and assaulted Claimant as he testified, it is reasonable to infer that he would have sustained more serious injuries throughout his face, head and body other than only the cut to his eyebrow (see Barnes v State of New York, 89 A.D.3d at 1382; cf. Bazil v State of New York, 63 Misc.3d 1216 [A] [Ct Cl, 2019]). Indeed, Claimant provided no visual proof of his injuries, or evidence of the sequella or consequences emanating from that injury. Besides, Claimant gave no reason for trying to reach his coat so desperately as there was no testimony of him being taken outside or even it being cold outside in April 2021. Contrary to Claimant's testimony, this Court finds that Claimant's injuries appeared to have been precipitated by his own actions and fault, not by the justified actions of the State employees.
Given Claimant's persistent efforts to evade the correction officers by "moving" and "not [being] still," which clearly posed a threat to the safety of those Officers and others, and given his continued refusal to cooperate and comply with orders as the officers attempted to restrain him, the Court concludes by a fair preponderance of the evidence that the officers did not use any force "unreasonable or excessive under the circumstances or in violation of any policy or procedure of [the State]" (Bush v State of New York, 57 A.D.3d 1066 [3rd Dept 2008]; see Shirvanion v State of New York, 64 A.D.3d at 1115).
Accordingly, it is ORDERED that Claimant's Motion for Summary Judgment (M-98485) is denied, the State's oral motion after trial for the dismissal of the Claim is granted, and the Claim is hereby dismissed. Let judgment enter.