Opinion
# 2015-044-003 Claim No. 115850
04-22-2015
EDWIN LAMAGE v. THE STATE OF NEW YORK
EDWIN LAMAGE, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Pro se inmate claimant's claim for excessive use of force by correction officers dismissed by the Court after trial.
Case information
| UID: | 2015-044-003 |
| Claimant(s): | EDWIN LAMAGE |
| Claimant short name: | LAMAGE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 115850 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | EDWIN LAMAGE, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 22, 2015 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover for personal injuries allegedly received as the result of an assault by correction officers employed at Elmira Correctional Facility. Defendant State of New York (defendant) answered and asserted two affirmative defenses: that defendant took discretionary actions which are privileged, and that claimant's injuries resulted in part from his culpable conduct. A trial was conducted by video conference on April 15, 2015, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.
Claimant thereafter filed and served an "Amend-Supplement Claim" adding a cause of action for wrongful confinement. The Court previously dismissed that cause of action (Lamage v State of New York, UID No. 2009-044-527 [Ct Cl, Schaewe, J., June 1, 2009]), leaving only the cause of action for use of excessive force to be tried in this claim. The Court also denied claimant's motion for summary judgment on the excessive force cause of action (Lamage v State of New York, Ct Cl, Dec. 17, 2009, Schaewe, J., Claim No. 115850, Motion No. M-76950) and his subsequent motion to renew (Lamage v State of New York, Ct Cl, Nov. 5, 2010, Schaewe, J., Claim No. 115850, Motion No. M-78685).
Claimant testified that on July 26, 2008, he was located in the mess hall kitchen when Correction Officer (CO) D. Otto punched him on the right side of his face and then CO Otto and two other officers wrestled claimant to the floor. Claimant stated that he had a visible injury to his right arm, but acknowledged on cross-examination that there was no documentary evidence of any injury to his face. Claimant stated that he was treated for his injuries and photographs were taken. However, he noted that no use of force report was completed. Claimant's submissions in support of his claim included an Inmate Injury Report (Claimant's Exhibit 1), photographs of his alleged injuries (Claimant's Exhibit 2), a grievance package containing investigative memos regarding the matter (Claimant's Exhibit 3), and various regulations regarding the use of force by correction officers on inmates (Claimant's Exhibits 4 and 5). Claimant contended that he suffered physical injuries to his face and arm, and requested damages of $1,500. Claimant rested his case at the close of his testimony. Defendant moved to dismiss the claim for failure to establish a prima facie cause of action. The Court reserved decision on the motion.
CO Otto testified on defendant's behalf. He stated that he did write a misbehavior report regarding claimant on July 26, 2008. However, he denied striking claimant.
Sergeant Rathbun testified for defendant as well. He stated that he conducted an investigation of the incident, and wrote a memorandum regarding it (Defendant's Exhibit A at 6). He said that, as noted in his report, during his interview with claimant regarding the incident he did not notice any visible injury to claimant's face. He further described the injury to claimant's arm as an old scratch. His conclusion as a result of the investigation was that there was a verbal altercation between claimant and the officers, but that no physical altercation took place.
During Rathbun's testimony, defendant attempted to introduce into evidence a portion of claimant's medical records relevant to the injuries alleged in the claim. Claimant objected on the ground that he had not authorized release of those records from the Department of Corrections and Community Supervision (DOCCS) to the Office of the Attorney General (OAG) pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Defendant's counsel was unaware of whether any such authorization had been obtained.
The OAG is required to attempt to obtain an inmate's authorization for release of medical records in compliance with HIPAA regulations (Bastian v State of New York, UID No. 2009-044-565 [Ct Cl, Schaewe, J., Nov. 4, 2009]). However, claimant has put his medical condition into question through the allegations in the claim, and the OAG would have been entitled to discovery of the pertinent medical records if claimant had refused to authorize their release (id.). Moreover, no private cause of action exists under HIPAA for an unauthorized release (id.). Accordingly, the records are admitted as Defendant's Exhibit B. Nevertheless, both the OAG and DOCCS are again advised to comply with HIPAA in the future.
Defendant rested its case at the close of Rathbun's testimony, and renewed its motion to dismiss. The Court again reserved decision on the motion.
The Inmate Injury Report indicates that claimant stated he had been punched in the right side of his face. Claimant's Ambulatory Health Record states in pertinent part: "[a]lleged [a]ltercation Noted: Minor abrasions underside [of left] forearm, [patient] alleges he was hit on [right] side of face, [no] bruises or swelling noted on exam. Abrasion cleaned [with] hydrogen peroxide [and] triple antibiotic [ointment] applied" (Defendant's Exhibit B at 3).
It is well-settled that correction officers may use physical force to maintain order and discipline in correctional facilities, but "only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]; see e.g. Johnson v State of New York, UID No. 2005-037-507 [Ct Cl, Moriarty III, J., Sept. 26, 2005]). The limited circumstances in which an officer may employ the use of force are set forth in 7 NYCRR 251-1.2, which states in pertinent part:
[a]n employee 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 (7 NYCRR 251-1.2 [d]).
The mere fact that an altercation occurred (in which force was used and the claimant was injured) between a claimant and a correction officer is not sufficient in and of itself to establish liability (Patterson v State of New York, UID No. 2002-031-015 [Ct Cl, Minarik, J., Apr. 23, 2002]; Thomas v State of New York, UID No. 2001-013-517 [Ct Cl, Patti, J., Dec. 2001]). The "[c]laimant must also demonstrate that the force used was unreasonable in light of the circumstances surrounding the altercation" (Patterson, UID No. 2002-031-015). The credibility of the witnesses is often the dispositive factor in cases of alleged excessive force (see Davis v State of New York, 203 AD2d 234 [2d Dept 1994]). The Court must assess the witnesses' testimony and determine whether it was necessary for the correction officers to use force against claimant, and if so, whether the force used was excessive or unreasonable under the circumstances (see Wester v State of New York, 247 AD2d 468 [2d Dept 1998]).
The Court finds CO Otto to be a credible witness. He testified that he did not hit claimant, and the medical records support his version of the event. Further, the Court finds Sergeant Rathbun to be credible in his description of the abrasion on claimant's arm as an old injury. To the extent that any force was used at all, the Court finds that it was not excessive in light of claimant's lack of apparent injuries. Claimant, on the other hand, was not credible, and the Court does not give any weight to his testimony. Claimant has failed to establish by a preponderance of the credible evidence that any use of force even took place, or that whatever force was used was unreasonable under the circumstances.
Accordingly, Claim No. 115850 is dismissed on the merits. Any motions not previously determined are hereby denied. Let judgment be entered accordingly.
Specifically, claimant's motion to admit the answers to interrogatories directed to Nurse DeMichele as Claimant's Exhibit 6 is denied. Although interrogatories may be used to the same extent as depositions of a party (CPLR 3131), claimant did not attempt to secure DeMichele's attendance nor has he provided any other evidence that she was unavailable to testify (CPLR 3117 [a] [3]). Accordingly, Claimant's Exhibit 6 is not admitted into evidence.
April 22, 2015
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims