Opinion
# 2012-049-105 Claim No. 113598
05-30-2012
VALLADE v. THE STATE OF NEW YORK
Synopsis
Following a unified trail, defendant found liable for excessive force used against inmate claimant. Claimant awarded $750 in damages. Case information
UID: 2012-049-105 Claimant(s): MESHACH VALLADE Claimant short name: VALLADE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 113598 Motion number(s): Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Meshach Vallade, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: May 30, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This decision follows the trial of the claim of Meshach Vallade,which was conducted via videoconference from Elmira Correctional Facility on March 23, 2012.
Various prison records in evidence use the spelling "Mesach" for claimant's first name and "Valladi" for his last name. This decision uses the spelling employed in the caption.
Vallade commenced this action by claim filed April 17, 2007, after serving a notice of intention to file such claim on August 2, 2006. The claim alleges that on May 11, 2006 at 8:30 a.m., claimant was subject to a "brutal and physical assault" by two correction officers, Worle and Baldwin, while handcuffed and shackled. During the attack, the officers punched him with closed fists "in the face and upper body," and kicked him in the legs and lower back, among other places (Claim ¶¶ 5-6). The claim further alleges that the assault was "without just cause or provocation," and resulted in injuries to Vallade's "back, lower back, spine and right knee," from which he continues to suffer pain (Id. ¶ 8).
The first names of these officers is not disclosed in the record.
At trial, Vallade testified that on the day in question, he was called out of his cell to see a dentist by Officers Baldwin and Worle. He was fully shackled, with a waist chain connected to the shackles, and thus had only a limited range of movement. According to claimant, the officers and he were awaiting another inmate, when Officer Worle said: "I hate this nigger."Worle then told Vallade, who was facing him, to turn around. Vallade testified that immediately thereafter, Worle swung and hit him in the face and Baldwin then rushed him, brought him to the floor, and beat him as well. Vallade maintains that he did not resist. Following the incident, claimant was brought to the shower, where he was examined by a nurse, and photographs were taken of him.
It is unclear from the testimony if Vallade alleges that this statement was made about him, or about the other prisoner.
Vallade was unable to point to a specific motive that would have driven either of the officers to assault him. He said only that, prior to the alleged beating, Worle would always say "little slick things" to him. On cross-examination, Vallade denied that he refused an order, or turned violently towards one of the correction officers prior to being grabbed.
Photographs taken of Vallade on May 11, 2006, a nurse's report prepared on that date, and claimant's ambulatory health records for the weeks surrounding the incident, were admitted into evidence as Claimant's Exhibits 1, 2 and 3, respectively. Exhibit 1 shows what appears to be a scrape on the side of claimant's right knee. No other injuries are apparent, although the pictures were taken from a distance, such that it is possible that some additional injury is not visible. Exhibit 2 indicates that Vallade had a "3 cm x 3 cm abrasion" on the side of his knee. The area was "cleansed with [an] iodine pad and bacitracin applied." The provider who prepared the document, Registered Nurse Gorg, reports that she did a "full body assessment," and found no other injuries.
Vallade's ambulatory health record indicates that, the day following the incident, there was a "slight swelling" in his right knee, as well as a "slight swelling" in the "lower lumbar area" (i.e., the lower back). Over the next couple of weeks, medical staff continued to record their observation of swelling in the knee. Thus, according to a note in claimant's record for May 18, the right knee was "mildly swollen," and notes dated May 20 and 23 indicate that the knee remained "slightly swollen." The health record also reflects repeated complaints by Vallade after May 11 of pain to his lower back and knee, along with his oft-repeated assertion that the medications he was prescribed to address such pain were of no help. The medical records in Exhibit 3 also indicate that Vallade's complaints regarding his back predate the May 11 incident; in particular, a note dated May 2, 2006 indicates that Vallade stated to prison health services on that day that he was suffering from back pain.
On May 13, 2006, Vallade signed an authorization for an x-ray of his knee and lower back, but the results of such procedure - if it was conducted - are not contained in any exhibit in evidence. Vallade's health record does not reflect any objective evidence of injury to Vallade's back or knee injury after May 23.
Vallade testified that he suffered severe and lasting harm as a result of the May 11 incident. Specifically, he stated that he has continued to suffer pain to his lower back and right knee, to the present day. Such pain, he said, required years of physical therapy, and Vallade still has problems with his lower back which limit his ability to work out and "move around" as he would wish.Further, he asserted that he suffered emotional harm from the officers' use of force, including nightmares and difficulty sleeping.
In his claim, Vallade alleges that the injuries limit his ability to participate in "sports and exercise freely" (Claim ¶ 16).
The State presented no witnesses. It sought to introduce one exhibit, a Use of Force report with various addenda, including a physical examination/treatment detail; a memorandum from Sergeant Furman, who arrived on the scene when Worle and Vallade were on the floor; five memoranda regarding the taking of photographs after the use of force; an inmate misbehavior report signed by Worle; deprivation and restraint orders issued against Vallade by Worle after the incident; and post-incident photographs. All of these documents were prepared on the date of the incident. The exhibit is accompanied by a certification from Diane C. Noyes, Inmate Records Coordinator at Southport, stating that the exhibit is a true and exact copy of the original, and the original was "made in the regular course of business of the New York State Department of Corrections and Community Supervision, and it was in the regular course of such business to make it at or near the time of the event being recorded." Vallade objected to the introduction of the record on the ground that it was not accurate, and the Court reserved decision on its admission.
Vallade's objection appears addressed to the veracity, not the admissibility, of these reports. In light of his unrepresented status, however, I will construe it as a challenge on hearsay grounds, the only apparent legal basis for objection available to him. Even when so construed, however, the objection is denied, as the record falls within the "business record" exception to the hearsay rule.
A state report is admissible when authenticated by certification of a records officer, so long as such certification is made in accordance with CPLR 4518(c), and sets forth the requisite elements for admissibility as a business record under CPLR 4518(a) (see Matter of Pamela WW. v Ervin XX., 191 AD2d 796 [3d Dept 1993] [record admitted when certification satisfies elements of section 4518(a) and (c)]; Commerce & Indus. Ins. Co. v Sciales, 132 AD2d 516, 516-17 [2d Dept 1987] [records admissible under section 4518, notwithstanding that person who compiled them did not testify]). Section 4518(a) conditions admissibility on a finding that the record "was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter." Since the certification at issue demonstrates that the memoranda at issue meet those elements, the use of force report and its attachments constitute business records under CPLR § 4518, and are admitted as Defendant's Exhibit A (see Rodriguez v New York City Tr. Auth., 81 AD3d 804 [2d Dept 2011] [accident report admissible as business record under section 4518]; Kozlowski v City of Amsterdam, 111 AD2d 476, 478 [3d Dept 1985] [memoranda of State Commission of Corrections admissible as business record under section 4518]).
In the Use of Force Report, Worle states that Vallade "refused numerous direct orders to turn and face the wall." According to Worle, he then "placed [his] right hand on the inmate[']s left arm and [his] left hand on his right arm, to turn the inmate around." Vallade responded by "turn[ing] in a violent manner" towards Worle, at which point the latter "used both arms in a bear hug, around the inmate[']s upper torso, forcing him to the floor."
In the misbehavior report, Worle says that he and Baldwin were escorting inmates to the infirmary. He gave Vallade a "direct order" to face the wall. When Vallade "ignored" the directive, Worle repeated it, and Vallade responded by stating: "What the fuck you talking about this wall shit." According to Worle:
"At this point force was required to make Inmate Vallade comply with my direction. At this point the inmate struggled in a violent manner turning towards me. I then escorted inmate to C-1-2 shower, where he was secured per Sgt. Furman."
The report indicates that Vallade was charged with violent conduct and disobeying an order, but does not reflect the outcome of this charge. Worle recommended that Vallade be subject to deprivation and restraint orders, although neither such proposed order in the record contains the requisite authorization signature. The restraint order characterizes Vallade as "turn[ing] aggressively" after he was grabbed.
Sergeant Furman's report essentially echoes the narrative in the Use of Force report, and appears largely based on Worle's account - since Furman writes that he arrived when Worle was on the floor with his arms wrapped around claimant. Furman also indicates that he spoke to Vallade, who asserted that he did not hear Worle give him any orders to turn, and that he had not purposely resisted. Furman's report makes no mention of any oral response by Vallade to the directive that he face the wall.
The evidentiary record does not contain an account of the May 11 incident from Officer Baldwin, or indicate that one was ever prepared.
Discussion
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]).
There is no dispute that, in the present case, force was used by correction officers against Vallade, although the parties differ as to the amount of force used, and the motive therefor. In regard to the former, Vallade claims that he was pummeled and kicked repeatedly, and tackled to the ground. Moreover, he alleges that Baldwin participated in this assault. In contrast, Worle (in his reports) states that he grabbed Vallade's arms in an effort to turn him around, and when Vallade turned aggressively towards him in response, brought him to the ground in a bear hug.
In regard to the trigger for the use of force, both Vallade's and Worle's accounts agree that Worle directed Vallade to turn around, although Vallade contends he was attacked before he had a chance to comply, and that the directive was not motivated by any apparent legitimate purpose. For his part, Worle's reports assert that he did not use force until Vallade first ignored his order, and his misbehavior report states that Vallade also responded with an obscenity. Defendant has offered no evidence as to the reason Worle needed Vallade to face the wall.
There is much in Vallade's account that I cannot credit - in particular his assertion that the incident constituted a sustained and unprovoked attack upon him, including repeated punches and kicks to his head and body. That claim is problematic for several reasons. First, I do not find it credible that Vallade was set upon, pummeled and tackled by two correction officers, without any apparent motive for doing so. Second, although Vallade asserts that Baldwin grabbed him, none of the reports indicate that Baldwin played any role in the incident, and there is no apparent reason why both Worle and Furman would write that Worle was the party who brought Vallade to the ground, if it was Baldwin who did so. Third, the injuries reflected in the incident medical report and claimant's health record do not remotely match Vallade's claims. He asserts that he was repeatedly punched in the head, yet there is no evidence that he suffered any injuries to his upper body, and his own description of the pain he suffered after the event references only his knee and back. Fourth, while claimant now alleges that Worle used a racial epithet before the assault, there was no mention of this in his claim, although such detail would seem of significant importance.
Nonetheless, I find based on the undisputed evidence that Officer Worle grabbed Vallade's arms and then brought him to the ground in a bear hug. As a result, I must consider whether such use of force was reasonable under the circumstances. Upon consideration of the evidentiary record as a whole, and in the absence of any live testimony on this question by the defendant, I find that it was not.
Excessive force cases are highly fact-specific, and hinge heavily on credibility determinations (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]). While the use of force reports and its appendices are properly in evidence before the Court, an important part of assessing credibility is "observing the behavior and demeanor of witnesses as they testify" (Zeleke v State of New York, UID No. 2010-030-017 [Ct Cl, Scuccimarra J., June 3, 2010]), which cannot be done in regard to the correction officers in the present case. Further, Worle had strong reason to write self-serving accounts in his reports, and these documents must be evaluated against that backdrop - particularly when the writer was not subject to cross-examination.
Claimant has the burden of proving his claim by a preponderance of the evidence, and the State is not required to put on any evidence at all (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]). Nonetheless, the lack of any witness testimony is highly problematic for the defense here, because (1) it is not disputed that force was used and that injury resulted therefrom; (2) the State's defense therefore hinges on a finding that such force was reasonable; and (3) the only record evidence regarding the justification for such use of force, the Use of Force report and its addenda, presents little detail, and what it sets forth, I cannot (for reasons set forth below) fully credit.
In particular, Worle's reports indicate that it was essential to physically compel Vallade to face the wall when he refused to act as directed. But the reports do not disclose why this order was given, or what exigencies required force to be used before other means (such as threatening or imposing disciplinary sanction) were employed, nor do they provide any indication that Vallade was not under control at the time he was grabbed (see Lewis v State of New York, 223 AD2d 800, 801 [3d Dept 1996] [take-down maneuver against detainee in juvenile facility constituted excessive force, despite detainee's refusal to obey directive, use of profanity, and pushing of aide, when detainee was "sufficiently under control" at time of incident]). There was no testimony or other evidence that additional inmates were present, or that any disturbance was threatened by Vallade's lack of response; indeed, he was in full mechanical restraints at the time (see Merced, supra [noting, in finding force to be excessive, that inmate was in full mechanical restraints at time]).
Further, one of the most important details of Worle's account - that the claimant responded to Worle's directive with an obscenity-laced challenge - is mentioned only in the misbehavior report. In contrast, the deprivation order says only that Vallade "ignored" Worle's directive, while Furman's report also states that the inmate "ignored" the first order, and mentions no response to the second. Furman also notes Vallade's denial that he had heard the order, but does not give any indication that this was contradicted by Worle's description of what occurred. Given that the deprivation order is essentially a charging document - as to which there is ample incentive for the author to couch the description of an inmate's misconduct as strongly as possible - and in the absence of any explanation for the disparate narratives regarding Vallade's response, I do not credit the account of Vallade's oral response described in the deprivation order. Consequently, I find his only response to Worle's direction was a failure to comply.
In light of the foregoing, and in particular given the minimal evidence to justify the use of force contained in the record, I am compelled to find the State liable for excessive force in its actions against Vallade on May 11, 2006. I do so despite finding that Vallade has greatly overstated the level of force used against him. But the evidence before me nonetheless does not support the claim that the officers were compelled to grab hold of Vallade, nor does it show that prison staff had no option but to tackle claimant to the ground because the shackled prisoner made a "violent" or "aggressive" turn once he was so held.
This is not to say that use of force is never justified when an inmate disobeys an order like that at issue. Rather, the question of whether a particular use of force is appropriate is highly fact-specific, and the record before me simply does not provide a basis for the actions taken against Vallade, under the circumstances of this case.
In regard to damages, Vallade's medical records indicate that he received a scrape to the side of his knee, which was swollen for nearly two weeks afterward. Further, he had a slight swelling in his lower back, although he complained of pain in that area shortly before the incident. On the basis of this evidence, I find that Vallade suffered an abrasion and swelling to his knee, and suffered some pain in his knee and lower back, as a result of the use of force.
I do not find, though, that Vallade has proven that he suffered long-term impairment or injury as a result of the events at issue. There is no medical evidence in the record that would indicate that Vallade suffered injuries of a significant magnitude on May 11, 2006, such that they would restrict his activities years later, nor is there any medical evidence that supports claimant's testimony as to such limitations. In any case, the issue of whether there is a connection between those injuries and any present disability or pain, is a matter outside the ordinary experience of lay persons. Claimant cannot prove such causation without expert testimony (see e.g. Brown v County of Albany, 271 AD2d 819, 821 [3d Dept 2000]), and no such testimony was presented at trial. Moreover, as noted, there is evidence in the record that claimant's back pains pre-date May 11, 2006.
Similarly, claimant has not met his burden to show he suffered any emotional or psychological damages as a result of the incident. He has introduced only generalized testimony on this issue, without adequate proof (or expert testimony) as to causation.
In light of the foregoing findings on damages, I award Vallade the sum of $750. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).
All motions on which the Court may have reserved decision or which were not previously determined are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 30, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims