Opinion
# 2014-049-103 Claim No. 114692
09-29-2014
SAMUEL DAVIS v. THE STATE OF NEW YORK
Samuel Davis, Pro Se Eric T. Schneiderman, New York State Attorney General By: Aaron J. Marcus, Assistant Attorney General
Synopsis
Inmate's use of force claim dismissed. Claimant failed to prove correction officers used unreasonable or excessive force under the circumstances. Inmate's various other claims arising out the incident were also dismissed.
Case information
| UID: | 2014-049-103 |
| Claimant(s): | SAMUEL DAVIS |
| Claimant short name: | DAVIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 114692 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Samuel Davis, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 29, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This decision follows a trial on the claim of Samuel Davis, an inmate proceeding pro se, which was conducted via videoconference from Elmira Correctional Facility ("Elmira") on December 6, 2013 and March 7, 2014. Davis' claim was filed on January 10, 2008, and alleged causes of action for assault and battery, property loss, and various constitutional violations, in regard to events that took place while he was incarcerated at Southport Correctional Facility ("Southport"). Specifically, the claim alleges that: (1) Davis was placed in an observation room against his will on October 18, 2007; (2) he was assaulted by a number of correction officers in that room, on October 22, 2007; (3) various items of his property were taken from his cell, and lost or destroyed; and (4) he was improperly subjected to various deprivation orders. Davis seeks damages for his lost property, as well as for the injuries he alleges he suffered at the hands of the correction officers, including bruises, long-term back pain, mental anguish, and various side effects of medications he was prescribed.
Prior to trial, Davis moved for subpoenas to compel the testimony of several witnesses, including two inmates whom he alleged had witnessed the events of October 22: Chad Rodriguez and Jeffrey Hanno. Davis alleged that Rodriguez was located in an observation room across from the room where Davis was placed, heard Davis scream "get off me," and saw the officers tackle him. He also claims that Hanno was in the medical unit, and witnessed the same events. Defendant, however, indicated in its response to Davis' application that claimant had previously sought Hanno's testimony at his disciplinary hearing, but Hanno had refused on the ground that he had not seen or heard anything.
I granted Davis' motion as to Rodriguez, and directed that the Department of Corrections and Community Supervision ("DOCCS") make him available on the date of the hearing (see Davis v State of New York, UID No. 2013-049-034 [Ct Cl, Weinstein, J., June 28, 2013]). I denied the motion without prejudice as to Hanno, on the ground that his testimony would be duplicative. Prior to trial, however, defendant informed the Court that Rodriguez was no longer incarcerated. I notified the parties of such by letter dated November 6, 2013, and asked claimant to indicate to the Court if he believed that further relief would be warranted. Davis responded by seeking various alternative relief, including the hiring of a private investigator to locate Rodriguez. By letter, I informed the parties that I would address this issue on the day of trial.
On the initial trial date of December 6, 2013, prior to the commencement of testimony, Davis again stated that he wanted Rodriguez to testify. He confirmed, however, that while Rodriguez saw Davis enter the Room with the officers, and heard Davis tell the officers to get off of him, tackle him to the ground, and bring him out of the room - he did not witness anything that took place in the observation room itself, including the alleged beating. For its part, the State presented the notes of an interview Rodriguez had given in preparation for the disciplinary hearing, along with the notes of the Hanno interview. Those notes largely dovetail with Davis' representations, as they indicate that Rodriguez saw the officers tackle Davis, but could not see them during the time when they are alleged to have been hitting Davis - although he said that it sounded like that was what they were doing (Cl. Ex. 21). In light of the unavailability of Rodriguez, I allowed the interview notes into evidence, but denied any further application by Davis to the extent he sought Rodriguez' presence as a witness, on the ground that Davis had not suggested any available means to secure his testimony at trial.
As to Hanno, his interview notes stated that he neither saw nor heard anything. Davis does not dispute the veracity of such notes, but said Hanno might have made such statement under pressure. On the basis of the notes, I reconsidered Davis' earlier motion for Hanno's testimony, but reaffirmed my earlier denial, in light of the absence of any evidence that his testimony would be relevant. Claimant then proceeded to present his case.
Davis introduced his claim as an exhibit at trial, and gave testimony on his own behalf that essentially reiterated the allegations stated in that document. His account was as follows: On October 18, 2007, Davis met at Southport with a Doctor Haluska. The doctor became angry at him because Davis complained about his "medical being violated." Ultimately, Dr. Haluska placed claimant in an observation room against his will, and without access to toiletries, legal papers, reading materials, or a change of clothes. His requests to be released from the room were denied.
Indeed, it appeared that Davis read much of his testimony directly from his pleading.
According to defendant, the claim was served upon the Attorney General 92 days after that date. At the close of claimant's evidence, defendant moved to amend its answer to raise the untimeliness of the claim as it related to the events of October 18, 2007, which, had not been clearly presented in the State's initial answer. The State subsequently withdrew the motion.
Claimant introduced into evidence a copy of the DOCCS Patient Bill of Rights, which permits a patient in a New York State Correctional Facility Health Unit to "refuse treatment to the extent permitted by law" (Cl. Ex. 1). He also entered as an exhibit a grievance concerning his placement in isolation on October 18, charging that such placement seemed "retaliatory" for his prior filing of a lawsuit against Southport medical personnel, and that Dr. Haluska laughed at him, and made sarcastic comments (Cl. Ex. 2). In response to the grievance, he was advised that the doctor was "the only authority able to evaluate the condition and recommend further observation and infirmary confinement," and that "no one is confined to the infirmary against their will who does not require immediate medical observation or attention, and when their condition is no longer deemed dangerous or hazardous, then they would be released" (id.). The response further indicates that Davis was placed in the infirmary as a result of a blood pressure test, and in his testimony Davis acknowledged having a history of high blood pressure, and that his blood pressure was reduced during his time in observation.
The grievance indicates that it was "granted in part," although it does not state that any relief was actually given.
Davis remained in the infirmary until October 22. On that day, according to Davis, he was handcuffed by an Officer Hibbard and was then surrounded by a group of correction officers: Sergeant Chapman, and Officers Hibbard, Weaver and Marshall. Chapman took from claimant a stack of grievances he was carrying, and complained to him about the numerous grievances he submitted. Chapman then grabbed Davis' throat and punched him three times. Davis tried to run out of the room, but was attacked by the correction officers, and beaten and kicked about the head, face, back and legs. He was then dragged into a cell at the back of the hospital, where the beating continued. According to Davis' testimony, he was punched in the face and ribs multiple times, and his face was pushed into a wall.
Following the assault, claimant says he was taken to be seen by a nurse Gorg, who noted (in Davis' account) that he suffered from bruises in the face, soreness inside his mouth, and pains in his back, ribs, hands, legs and head. Davis was then taken for use of force photographs, after which he was escorted to his cell. He acknowledged that, before entering his cell, he struck Officer Sean Davis ("SD") in the head with his hands, which were still in handcuffs, stating that he had been "provoked" into this act. Claimant's testimony on the nature of the provocation varied. First, he said he was "provoked with fear," as he feared for his life and future retaliation. Later, however, he said the provocation had been that Officer SD had punched him in the ribs in the infirmary.
Subsequent to the trial, Davis moved to introduce into evidence a videotape showing the taking of use of force photographs, as well as the escort of Davis to his cell and his assault of SD. Defendant raised no objection, and the video was received into evidence as Claimant's Exhibit 28 (see Davis v State of New York, UID No. 2014-049-031 [Ct Cl, Weinstein, J., May 28, 2014]). The tape shows that as Davis' two escorting officers were removing his waist chain so he could enter his cell, he hit one of the officers (SD) with his handcuffs, causing a laceration in the officer's forehead. The remaining officers then entered the cell, held Davis down and restrained him. The video appears to show that the confrontation was entirely initiated by Davis, and reveals no provocation or excessive force by the officers.
Claimant also introduced into evidence a memorandum from correction officer Weaver to Superintendent Napoli, dated October 22, 2007, concerning the incident at Davis' cell door. In the memo, Weaver states that he responded to a disturbance while escorting officers were placing Davis in his cell. According to the memo, Weaver "took control of the inmate[']s legs and reapplied the leg restraints" (Cl. Ex. 26).
Davis testified that, in the aftermath of the incidents on October 22 described in his testimony, correction officers engaged in various forms of retaliation against him. In particular, he asserted that Officer Marshall sought to cover up the officers' assault by writing a false misbehavior report, which resulted in the issuance of deprivation orders against Davis, including loss of shower, exercise and property (id. ¶¶ 30-31). In support of this contention, he introduced into evidence a set of deprivation orders covering the period from October 22 through November 25 (Cl . Ex. 6), and a grievance challenging those orders (Cl. Ex. 18). The orders referenced both the physical confrontation at the infirmary - which it characterized as an assault by Davis on staff - as well as his striking of SD outside his cell (Cl. Ex. 6).
Claimant's grievance was denied, on the ground that it was the subject of disciplinary proceedings. Davis conceded that he was ultimately found guilty of various disciplinary violations arising out of the incidents, after two separate hearings.
The transcript of one of Davis' disciplinary hearings was introduced into evidence (Cl. Ex. 25). In his testimony at that hearing, Davis gave a more detailed account of the events leading up to the alleged assault in the infirmary. He stated that on October 22, 2007, he was scheduled to go back to his cell and was placed in handcuffs for that purpose. He tried to walk by Sergeant Chapman, when the Sergeant "put his elbow out and pushed [Davis] back" (id. at 9). Chapman expressed dislike for Davis, and asked why he filed so many grievances. Chapman then slapped a stack of grievances that Davis was carrying, and the two began a verbal exchange. At this point, Chapman began to choke and strike Davis, who tried to run out of the room. The officers then launched their assault (id. at 10).
Specifically, Davis said that after Chapman's remarks about the grievances: "I stepped back, I was like, dang man, all this is uncalled for. He started, you know, saying little words and I fed into it, I said something back and he grabbed me by my collar . . ." (id. at 10).
Portions of Davis' ambulatory health record for October 23, 2007 were also received into evidence. They indicate that he had a two-centimeter abrasion under his right eye, and was moving in his cell "with difficulty" (Cl. Ex. 10). A note two days later states that claimant suffered from "slight swelling" on the right side of his face, and was given motrin. The exhibit also includes a medical addendum to the use of force report dated October 22, and photographs taken that morning. The report says that claimant had a 1/4 inch long "superficial" scratch under his right eye, and a one inch long "abrasion" on his right cheekbone.
Davis also testified that the officers lost or stole various items of his property in retaliation for the October 22 events. Specifically, when his possessions were packed away as part of his disciplinary sanction, various items were lost including (as stated in his pleading) "7 copyright song lyrics, 5 copyright poetry/song lyrics, copyright movie script, 9 soaps, 1 deodorant [and] 20 stamps" (Claim ¶ 36). Claimant submitted an institutional claim for this property, which estimated its value as $190.75 (Cl. Ex. 7). In response, Davis was offered $2.55 for the deodorant and nine soaps. Davis rejected the money offered, as inadequate to compensate him for his loss (see id.). In particular, Davis testified that the compensation was inadequate in regard to the copyrights, since acquiring them entailed significant expense, including a forty dollar search fee for each, as well as additional hourly fees.
During cross-examination, claimant said that he had brought the stamps with him to Southport, but defendant pointed out that they were not listed on any of the I-64 forms reflecting his property upon arrival (see Def. Ex. F). Further, although Davis' administrative claim granted him compensation only for the lost soap and deodorant, there is no indication on his claim form that he appealed this determination (see Cl. Ex. 7).
For its part, defendant presented the testimony of Southport Nurse Administrator John von Hagn. He stated that Davis had been placed in the prison infirmary for poor compliance with blood pressure medication, and due to an "alarming" reading in his blood pressure which put him at risk of stroke, heart attack, and liver and kidney damage. According to von Hagn, claimant was kept in the infirmary so he could be under observation by the greatest number of medical personnel, until his blood pressure became more reasonable. He also said that he saw no harassment of claimant in the infirmary.
Defendant then presented the testimony of seven correction officers.
Officer John Marshall testified that he was serving as the medical escort officer on October 22, 2007, and was tasked with taking Davis back to his cell following a use of force by correction personnel in the infirmary. Marshall initially identified Officer Hibbard as the other escorting officer, but when shown prior statements to the contrary on cross-examination, acknowledged that Officer Weaver had accompanied him, although Hibbard had also been present at the infirmary.
At Davis' disciplinary hearing, Hibbard also said that she had escorted Davis out of the infirmary, but denied at trial that this had been the case (Cl. Ex. 25 at 35).
Marshall said that the scuffle with Davis began when claimant "rammed" Marshall into the wall with his shoulder. Marshall and his partner then took Davis down to the floor. Davis continued to struggle, and other officers came by to help secure him. Marshall denied that he ever struck or assaulted Davis, or saw any other officer do so. Marshall said that he himself suffered injury to his right shoulder.
Officer Hibbard testified that she was in the infirmary on the day in question, and saw Davis shove Marshall into the wall while the latter was escorting him. She also said that Davis was taken down to the floor, and she assisted in gaining control over him by grabbing his arm. According to Hibbard, she saw no other use of force against Davis that day. She acknowledged that, at the time of the confrontation, Davis' hands were cuffed.
Officer Ford testified that on October 22, 2007, he was taking an inmate to the dental clinic when he heard a noise, and saw Davis on the floor, with officers Hibbard, Root, Marshall, and Herbert trying to secure him. Ford retrieved leg irons from a lock box, and put them on Davis. He saw no one strike Davis, or otherwise use force except for holding claimant down.
Officer Kenneth Rupp also testified that he was present in the infirmary that day. He said that other officers had tackled Davis to the floor, and it appeared that he was trying to get away. He put his hands on Davis' legs in an effort to control him. He saw no one strike Davis, and opined that the force used was reasonable.
Officer SD stated that he was the resource officer on October 22, 2007, essentially serving as a floater. Along with Officer Herbert, he was responsible for escorting inmate Davis back to his cell after the incident in the infirmary, because those actually involved in the struggle had been relieved. According to SD, the use of force at the infirmary had ended by the time he arrived.
After use of force photographs were taken, SD said that he and Officer Herbert brought Davis to his cell. When he arrived at the entrance, and was removing Davis' waist chain, Davis struck him and he suffered a cut on the head. Officer SD denied that he used any force on Davis prior to that point, or in any way provoked Davis.
Officer Herbert gave a similar account of the assault on SD. He was working the hospital lobby on October 22, when he was told to escort Davis to his cellblock. Again, he denied there was any use of force on Davis, or any provocation, during the time he was taken to his cell. After Davis struck SD, Herbert pushed claimant into his cell. Otherwise, he stated that he did not use, nor see others use, force on Davis.
The State's final witness was Sergeant Daniel Chapman. On the day in question, he was the D-Block/infirmary sergeant, and was the supervisor during the confrontation. According to Chapman, the incident at the infirmary began when claimant had been discharged, and was about to be escorted back to his cell. Davis then became upset, and put his shoulder into Marshall, and pushed him into the wall. The officers on the scene responded by taking Davis down to the floor, and placing leg irons on him. Chapman stated that no officer struck Davis, or used unreasonable force on him. Nor, he testified, was Davis subject to any verbal harassment. Although Davis was in handcuffs, Chapman opined that he could still pose a danger, by biting, kicking or hitting officers with his cuffs.
Chapman further recounted the events that took place thereafter, along the lines stated by defendant's other witnesses and reflected in the video. Specifically, Davis was taken for use of force photos in C-Block, escorted by officers who had not been involved in the use of force at the infirmary. Davis was then brought to his cell, where he struck SD. The officers responded by taking the inmate into his cell, where the staff got him under control with body holds and arm bars, and put restraints back on him. Further use of force photographs were taken, to reflect this second incident.
Discussion
I. Witness Issues
As discussed above, Davis vociferously sought before trial to have the Court secure for him the testimony of Chad Rodriguez, whom I had ordered DOCCS to make available as a witness for trial, but who was released from DOCCS' custody prior to that proceeding.
I denied that application at trial, and memorialize my reasons for doing so here. I note in particular that while Davis asked that Rodriguez be subpoenaed, he provided no address or other contact information for him, nor did he seek such through discovery. He neither submitted a legally valid subpoena, nor does he have the information necessary to prepare or serve one in accordance with article 23 of the CPLR.
Significant security concerns would be raised by any request by an inmate for a former inmate's home address. I need not consider that issue in this case, though, since Davis never sought such information through the discovery devices set forth in the CPLR.
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Davis instead sought other means to secure this witness' testimony. By letter to the Court received prior to trial, he asked that if Rodriguez could not be compelled to attend the trial, that "a Court appointed attorney/investigator locate C Rodriguez and videotape his testimony under oath with [Davis'] questions to [Rodriguez] and have [the] videotape recording submitted in court . . ." The Court has no authority to take these steps, nor has Davis suggested any other appropriate measure to secure Rodriguez' presence.
Finally, I have allowed into evidence and considered the record of Rodriguez' interview during Davis' disciplinary proceedings. As discussed below, the proffered testimony provides at most only limited support to Davis' version of events.
II. Excessive Force
By statute, a correction officer may not "inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection" (Correction Law § 137[5]). When, however, "any inmate . . . shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape" (id.; see also 7 NYCRR § 251-1.2[d] [a correction officer "shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: 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"]).
When force is needed, "only such degree of force as is reasonably required shall be used," (7 NYCRR § 251-1.2[b]) and "[t]he greatest caution and conservative judgment" must be exercised in making such determination (7 NYCRR § 251-1.2[a]). The State may be held liable where the particular use of force is unreasonable or excessive under the circumstances (see e.g. Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]).
Excessive force cases are highly fact-specific, and hinge heavily on the witnesses' credibility (see e.g. McDonald v State of New York, UID No. 2011-041-505 [Ct Cl, Milano, J., May 3, 2011]; Merced v State of New York, UID No. 2010-015-513 [Ct Cl, Collins J., Sept. 17, 2010]). Claimant has the burden of proving his claim by a preponderance of the evidence (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]; Cooper v State of New York, UID No. 2010-037-512 [Ct Cl, Moriarty, J., Nov. 1, 2010]).
Claimant has failed to meet his burden of proof in this case. Officers Marshall and Hibbard, and Sergeant Chapman, all gave consistent and credible testimony that the confrontation at the infirmary was triggered when Davis knocked into Marshall with his shoulder, and only then they employed the force necessary to take Davis down to the floor, and to secure him there. Davis' visible injuries, which primarily consist of a cut under his eye, are also more consistent with the testimony of defendant's witnesses than with his own description of being punched and kicked repeatedly by multiple correction officers over an extended period. There are, moreover, inconsistencies in Davis' account. In particular, at his disciplinary hearing Davis described a verbal exchange in the infirmary that he "fed into," which preceded Chapman's alleged assault. His account at trial did not include this detail, and instead portrayed Chapman as launching an attack out of the blue after commenting on claimant's numerous grievances.
I note, as well, that the second assault, and Davis' account of it, further undermines his credibility. While Davis asserted that he was "provoked" into his later assault, the extended video of the events leading up to it do not support that assertion. Rather, the video shows that shortly after the events at the infirmary, Davis attacked a correction officer on his own initiative, and the officers responded with a restrained and relatively limited use of force sufficient to hold claimant down and secure him in his cell.
Rodriguez' statement to prison investigators (which is consistent with Davis' own proffer regarding his statement) does not call this conclusion into question. Rodriguez says that he saw the officers tackle Davis to the ground (an event that all the witnesses acknowledge to have occurred). But he did not see the alleged assault on Davis; rather, he said that it sounded like the officers were hitting claimant in another room. Such an account by a party that did not actually view the alleged assault is not sufficient, when coupled with the other evidence set forth above and the problems with Davis' account, to sustain claimant's burden.
In any event, it is Davis that must prove his case. Given that the evidence is at best conflicting, and such evidence as there is regarding credibility tends to support defendant, I cannot find that he has met his burden to show that the officers intentionally assaulted him, or otherwise used excessive force.
III. Other Claims
Davis' claim is not altogether clear as to what causes of action he is asserting in addition to those arising out of the alleged assault on October 22, 2007. As best as can be divined from the claim and his testimony at trial, Davis appears to allege wrongful confinement (in the prison infirmary from October 18 to 22), due process violations from the deprivation orders that followed the October 22 incident, and loss of property. I address these in turn below.
In regard to his wrongful confinement claim, that cause of action requires that Davis show: "(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975]). Assuming without deciding that placement in a prison medical facility to address a medical condition is properly considered "confinement" for purposes of such a claim, Davis has produced no evidence to rebut defendant's testimony that his placement in the infirmary was medically warranted. He has therefore failed to show that such conduct was not privileged (see Brown v State of New York, UID No. 2012-049-109 [Ct Cl, Weinstein, J., Aug. 6, 2012][no wrongful confinement claim when claimant's "placement in the observation cell was clearly necessary to serve the legitimate penological objective of protecting [his] health"]; Matter of Rossi v Portuondo, 277 AD2d 526, 527 [3d Dept 2000] [upholding placement of prisoner in medical keeplock for refusal to take tuberculosis test]).
In regard to the deprivation orders, claimant is essentially "seeking a review by the Court of Claims of an administrative determination" - which this Court has no jurisdiction to entertain (see Carver v State of New York, 79 AD3d 1393, 1394 [3d Dept 2010] [citations omitted]). Moreover, Davis has presented no evidence of any flaws in the disciplinary process that led to the imposition of these orders. Absent any showing of procedural infirmities that led to the imposition of disciplinary sanction, defendant is immune from suit for any harm to claimant that resulted (see Arteaga v State of New York, 72 NY2d 212, 219-20 [1988]).
Finally, Davis seeks damages from the loss or taking by prison officials of certain items of his property. In his pleading, claimant identifies the items as "7 copyright song lyrics, 5 copyright poetry/song lyrics, copyright movie script, 9 soaps, a deodorant [and] 20 stamps" (Claim ¶ 36).
Davis has not demonstrated, however, that any of his artistic productions have market value, which is the measure of damages in an action for lost property (see e.g. Johnson v State of New York, UID No. 2013-048-530 [Ct Cl, Bruening, J., July 23, 2013] [citations omitted]; Turner v State of New York, UID No. 2013-041-508 [Ct Cl, Milano, J., Apr. 19, 2013] [citations omitted]). As to the stamps, they are not listed on any of the I-64 forms reflecting the property that Davis brought with him when he arrived at Southport (Def. Ex. F).
That leaves the loss of the soaps and deodorant. Davis has offered no testimony at trial as to the market value of these items, and the damages at issue are in any case de minimis. For those reasons, he is not entitled to any monetary award on his property claim.
Accordingly, claim no. 114692 is dismissed in its entirety.
All objections or motions that have not yet been ruled upon are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
September 29, 2014
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims