Opinion
# 2014-039-407 Claim No. 114178
05-12-2014
LESTER RUIZ v. STATE OF NEW YORK
Lester Ruiz, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York By: Douglas R. Kemp Assistant Attorney General
Synopsis
Following a trial on the issue of damages, the Court awards $3,000.00 for past pain and suffering arising from the intentional use of excessive force against claimant, an inmate, by a correction officer.
Case information
| UID: | 2014-039-407 |
| Claimant(s): | LESTER RUIZ |
| Claimant short name: | RUIZ |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 114178 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Lester Ruiz, pro se |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Douglas R. Kemp Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 12, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Lester Ruiz filed this claim with the Clerk of the Court of Claims on September 4, 2007, alleging that he had been assaulted by a correction officer on May 2, 2007, while claimant was an inmate at the Coxsackie Correctional Facility. The claim alleged the use of excessive and/or unreasonable force by a correction officer who struck claimant with a baton after claimant refused to end a phone call (see Claim, ¶ 7). Following a trial on the issue of liability, held on January 29, 2013, this Court concluded that claimant established by a preponderance of the credible evidence his excessive force claim against defendant arising from the altercation on May 2, 2007, and found defendant solely responsible (see Ruiz v State of New York, UID No. 2013-039-373 [Ct Cl, Ferreira, J., June 28, 2013]). A trial on the issue of damages was held on January 8, 2014. Claimant testified in support of his claim. Defendant called no witnesses.
At the damages trial, the Court received into evidence without objection the exhibits admitted into evidence during the liability trial. References herein are to those exhibits.
As set forth in the Court's decision on liability, the following underlying facts have been established. On May 2, 2007, claimant arrived at the Coxsackie Correctional Facility, a New York State Department of Corrections and Community Supervision (hereinafter DOCCS) facility. Claimant had never previously been housed at this facility and, upon arriving, was informed he could make a new arrival phone call. Claimant elected to phone his brother and, during the call with his brother, claimant was directed by correction officer Kevin Pecore to end the call. Claimant did not comply and the correction officer then struck claimant repeatedly on the left shoulder, left forearm, and left hand with another officer's baton. Claimant was examined that day by medical staff at the facility infirmary for his injuries. Photographs of claimant's injuries taken after the incident revealed a skin abrasion with redness on claimant's left shoulder, redness on the back of his upper left arm, and another abrasion or cut on his left hand between his thumb and left forefinger (see claimant's exhibit 3). A Physical Examination/Treatment Report contained within the Use of Force Report was completed the same day by a DOCCS registered nurse who examined claimant (see defendant's exhibit B). Her report noted a 1 to 1 ½ inch mark on claimant's left arm with swelling and discoloration, some marks on his left wrist from the handcuffs, a small ½ inch scrape on his left hand above the knuckle, and bruising and swelling, along with reduced range of motion, to two fingers on claimant's left hand (see id.). The report indicates that ibuprofen was given to claimant for pain (see id.).
At the damages trial, claimant, age 42, stated that, following the incident, he was examined at the facility clinic and then placed in the Special Housing Unit. A week or two later, he was transferred to Eastern Correctional Facility. Following his incarceration at Eastern, he was transferred to Attica Correctional Facility and then to Wyoming Correctional Facility, where he was housed until his release on August 21, 2009.
In describing the May 2007 incident, claimant stated that he "suffered a beat-down by the hands of a correction officer." Claimant stated that he is nervous talking about the incident and that "to this day I still think about it." He stated that he did not deserve that kind of treatment by the officer and that he is here today "to see justice". He testified that he thinks about the altercation when he sees "cops or uniforms" and stated that he gets mad because he was unable to defend himself. He acknowledged that his damages demand of "1.3 [million]" is "an outrageous sum" but stated that, while he did not suffer any fractures from the altercation, "what he broke from me was more than bones" and that "mentally he really, really put a dent in me." He stated that "money can't [compensate] the pain that I went through." He stated that he did not see any doctors after the incident, but that a week or two later, he was transferred to Eastern Correctional Facility, where he saw a psychiatrist "a couple of times" to discuss the incident. Claimant stated that he did not see the psychiatrist at Eastern other than those two or three occasions and decided to "deal with it [him]self." He added that he has not seen any psychiatrists about the incident other than the one he spoke with at Eastern.
Unless otherwise indicated, all quotations are from the electronic audio recording of the damages trial.
As for medical visits, claimant stated that he went to the Coxsackie facility clinic after the altercation occurred. Claimant stated that the photographs depicted in claimant's exhibit 3 were taken at the clinic "right after the incident" and that the photocopies show "skin discoloration in my left shoulder, a big bruise" on the left side of his body, and bruises "on my arm, my hand." He stated that he is left-handed and that "to this day" he has pain in three fingers of his left hand and does not have "100% movement of [his] hand - that's from the blow of the baton." He received ibuprofen for his injuries but did not receive any other medicine. Claimant recalled being taken to Albany Medical Center for an examination because "I had [a] problem with the movement of my hand."
At trial, the Court reserved on defendant's objection to claimant's testimony that pain he experiences today in his left hand is causally related to the May 2, 2007 incident in the absence of medical proof. Upon further review, the Court overrules the objection and will consider the testimony giving it the probative value, if any, it may have in the absence of objective medical proof.
Documents received into evidence indicate that claimant's left hand and left forearm were examined by doctors at an outside hospital after the incident. X-rays were taken of claimant at Albany Medical Center on May 16, 2007 and May 29, 2007 and an electromyogram (EMG) was performed on or about June 4, 2007.
Claimant testified that, following his release from DOCCS custody in November 2009, he worked as a butcher at Nojaims Supermarket in Syracuse, New York. He worked there until May 2012, when he changed employment and began work as an apprentice plumber at DBR Plumbing in Syracuse. In this position, which he currently holds, he performs a variety of tasks. A typical day involves helping other plumbers with cleaning and sweeping and passing them equipment like primer and glue. Claimant is married and a stepfather to four children, all of whom reside with him and his wife. Claimant has a ninth grade education and considers himself "self-taught."
When asked how he was feeling physically the day of the damages trial, claimant testified that he felt "nervous, a little confused, but all in all I feel great." As to the allegations in his claim that his injuries are permanent, claimant stated that the damage he suffered, beside the physical injuries he described, was "more mental" and that "the damage is more emotional" because "I always stand up for myself" and could not do so here and "did not provoke it." Claimant stated that he continues to "get emotional" about the incident and sometimes loses his breath, cries and becomes sad when he thinks about it. As for lingering physical pain, he states that he continues to have pain that "comes and goes" in his left hand and that he avoids "heavy duty work" or "extreme physical labor" when working because such work hurts his left hand.
During cross-examination, claimant repeated that, after his release from Wyoming Correctional Facility, he settled in Syracuse and found work at Nojaims Supermarket. In May 2012, he began work as an apprentice plumber at DBR Plumbing, a company that performs commercial and residential plumbing work. In his position, he works 40 hours per week on various tasks including assisting plumbers at commercial work sites and fixing clogged toilets at residential work sites. Claimant's career goal is to move from an apprentice plumber to a journeyman plumber and eventually become a master plumber. He and his wife own a house and maintain it themselves. His children help with chores like shoveling snow and mowing the lawn.
It is well established that in awarding damages for pain and suffering "the conclusion of the fact finder [is] entitled to 'considerable deference' " (Auer v State of New York, 289 AD2d 626, 629 [3d Dept 2001], quoting Levine v East Ramapo Cent. School Dist., 192 AD2d 1025, 1025-1026 [3d Dept 1993]). At the same time, an award may not stand where it "deviates materially from what would be reasonable compensation" (Rappold v Snorac, Inc., 289 AD2d 1044, 1047 [4th Dept 2001], lv dismissed 98 NY2d 671 [2002], lv denied 98 NY2d 614 [2002]; accord Hensley v Lawrence, 40 AD3d 1375, 1376 [3d Dept 2007]; CPLR 5501[c]). Determining an award for pain and suffering "is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact for the [factfinder]" (Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [2007]; accord Upsher v State of New York, UID No. 2014-040-002 [Ct Cl, McCarthy, J., Jan. 31, 2014]). One proven method of assessing an award of damages for pain and suffering is by reviewing comparable cases (see Sumpter v State of New York, UID No. 2012-030-025 [Ct Cl, Scuccimarra, J., Aug. 30 2012; Pickell v State of New York, UID No. 2009-015-526 [Ct Cl, Collins, J., Nov. 19, 2009]; see also Albanese v Przybylowicz, 116 AD3d 1216, 1217 [3d Dept 2014]; Kahl v MHZ Operating Corp., 270 AD2d 623, 624 [3d Dept 2000] ["[b]ecause personal injury awards, especially those for pain and suffering, are not subject to precise quantification,. . . courts [] look to comparable cases to determine at what point an award 'deviates materially' from what is considered reasonable compensation"]; accord Huff v Rodriquez, 45 AD3d 1430, 1433 [4th Dept 2007]). "[F]actors to be considered in evaluating such awards include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]; see Albanese v Przybylowicz, 116 AD3d at 1217).
Upon a review of the record, the Court finds that claimant suffered abrasions, cuts and soreness on his left hand, left arm and left shoulder as a result of the blows from the baton (see claimant's exhibit 3). Reports prepared the day of the incident include findings of marks, swelling and discoloration at the top of claimant's left shoulder, scrapes on the left hand above the knuckles, and bruising, swelling and reduced range of motion in claimant's fourth and fifth left fingers (see defendant's exhibit B). DOCCS medical records received into evidence reveal consistent and numerous complaints from claimant about soreness, pain and/or numbness in his left hand, left wrist, and left forearm in the several months following the incident (see e.g. defendant's exhibit C, Ambulatory Health Record Progress Notes, dated 8/21/07, 7/25/07, 7/16/07, 6/5/07, 5/29/07, 5/17/07, 5/11/07, 5/3/07; Albany Medical Center report, dated 6/4/07). Claimant's testimony, while self-serving, was not exaggerated or rehearsed, and the Court found claimant to be a credible and forthright witness. Claimant's descriptions of his injuries from the baton and the resulting pain, numbness and soreness, were candid and consistent with the DOCCS reports prepared following the incident. Moreover, no evidence was introduced during the damages trial contradicting claimant's testimony as to the source of the abrasions, bruises and redness.
X-rays taken after the incident, however, showed no evidence of fractures or dislocations (see defendant's exhibit C, Albany Medical Center report, dated 5/16/07; defendant's exhibit D, Albany Medical Center report, dated 5/29/07), and an EMG of claimant's left finger, wrist and elbow was normal (see defendant's exhibit C, Albany Medical Center report, dated 6/4/07). In addition, no proof of scarring or disfigurement was offered. As to claimant's complaints about pain in his left shoulder, the records also reveal that claimant appears to have suffered a left shoulder fracture prior to the incident in question and has an arthritic and/or mild degenerative condition in his left shoulder (see e.g. defendant's exhibit C, DOCCS radiologist report, dated 8/21/07). Absent any objective medical proof such as expert testimony explaining whether his shoulder pain is related to the fracture, arthritis or the baton strikes, the Court is unable to attribute the left shoulder pain solely to the altercation. Additionally, other than claimant's testimony describing left hand pain that "comes and goes" and his statements that he still does not possess "100% movement" of his left hand and has difficulty with "heavy duty work" requiring the use of his left hand, there was no medical proof that any of claimant's injuries resulting from the May 2007 incident are permanent or causing long-term impairment (compare Simmons v Dendis Constr., 270 AD2d 919, 920 [4th Dept 2000]; Reed v Harter Chair Corp., 185 AD2d 547, 548-549 [3d Dept 1992]). Indeed, when asked at trial about his current physical condition, claimant responded that he felt "great."
Based upon the relevant legal principles, including an examination of comparable cases, and their application to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and the testimony and demeanor of the claimant, the Court awards claimant $3,000.00 for past pain and suffering arising from the intentional use of excessive force against claimant by the correction officer (see e.g. Carter v State of New York, UID No. 2010-030-025 [Ct Cl, Scuccimarra, J., July 22, 2010]; Manley v State of New York, UID No. 2009-030-008 [Ct Cl, Scuccimarra, J., Mar. 30, 2009]; Crenshaw v State of New York, UID No. 2005-019-010 [Ct Cl, Lebous, J., May 23, 2005]).
The Court finds unpersuasive defendant's argument in its post-trial submission that Reid v State of New York (UID No. 2010-031-504 [Ct Cl, Minarik, J., Feb. 26, 2010]) and Rice v State of New York (UID No. 2003-031-513 [Ct Cl, Minarik, J., June 6, 2003]) are comparable cases. Reid involved an award of $150.00 for a mild knee sprain incurred after the claimant was climbing to an assigned upper bunk when he had a permit for a lower bunk. Rice concerned an award of $200.00 for a slip and fall by an inmate stepping out of a shower onto a cell floor; there, the inmate allegedly injured his back and forearm although no evidence of swelling, abrasions or loss of range of motion was offered. Neither of those cases involved, as here, the intentional use of excessive force by a correction officer against an inmate, or presented the type of documentary proof corroborating claimant's injury complaints received into evidence in the instant case.
As for an award of compensation for future pain and suffering, the evidence at trial is insufficient to demonstrate that claimant is entitled to such an award.
Claimant's testimony describing "emotional" harm resulting from the correction officer's conduct is not compensable under these circumstances. The record contains "no competent evidence attesting to the severity and consequences of any mental anguish that [claimant] may have experienced" (Herrera v Braunstein, 10 Misc 3d 104, 106 [App Term, 1st Dept 2006], affd as modified 47 AD3d 474 [2008]; compare Rodriguez v Valentine, 20 AD3d 558, 559 [2d Dept 2005] [award of compensatory damages for mental anguish "was properly premised upon the testimony of the plaintiff herself, as corroborated by other witnesses, regarding the emotional injuries she suffered as a result of the incident"]). Claimant's testimony that his injuries included "emotional" and "mental" harm and that he visited a DOCCS psychiatrist at Eastern on two or three occasions following the battery is insufficient. No corroborating testimony on this point was elicited from medical professionals or other witnesses, and no records substantiating such examination were offered. In addition, claimant acknowledged that, other than those appointments at Eastern, he sought no other counseling or professional help for his alleged mental anguish.
The Court notes that claimant did not plead lost earnings as a consequences of the battery. Even assuming the claim could be construed to raise such damages, neither documentary evidence nor testimony was presented as to his wages, and no credible medical proof was offered linking his subjective complaints of intermittent hand pain with an ability to work (see Coleman v City of New York, 87 AD3d 401, 401 [1st Dept 2011]; Ramirez v City of New York, 279 AD2d 563 [2d Dept 2001]; Papa v City of New York, 194 AD2d 527, 531 [2d Dept 1993], lv dismissed 82 NY2d 918 [1994]). Additionally, since no evidence was received demonstrating that claimant owed any past medical expenses arising from the incident or would incur future medical costs, the Court also does not make any award for past or future medical expenses.
In light of the foregoing, the Court awards damages to claimant in the amount of $3,000.00, which represents compensation to claimant for past pain and suffering that he incurred as a result of the battery described herein. The amount awarded shall carry interest at the interest rate of 9% per year from the date of the determination of liability, June 28, 2013. In addition, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). Any motions on which the Court may have previously reserved or which were not previously determined are hereby denied.
Let judgment be entered accordingly.
May 12, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims