Opinion
# 2021-041-501 Claim No. 130208
04-29-2021
WILLIAM APHOLZ v. THE STATE OF NEW YORK
SIVIN, MILLER & ROCHE, LLP By: Andrew Weiss, Esq. HON. LETITIA JAMES New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Defendant is found 100% liable after trial due to supervisory correction officer's use of excessive force causing injuries to inmate. Evidence showed that the use of force was employed to further the penological objective of maintaining order and discipline in correctional facility rather than for correction officer's personal bias or other wholly personal motive and the use of force was employed within the scope of the officer's duties and employment.
Case information
| UID: | 2021-041-501 |
| Claimant(s): | WILLIAM APHOLZ |
| Claimant short name: | APHOLZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130208 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | SIVIN, MILLER & ROCHE, LLP By: Andrew Weiss, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 29, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
William Apholz (claimant) was an inmate at Bare Hill Correctional Facility (Bare Hill) on January 1, 2017. At about 7:30 that morning, after a verbal altercation with a fellow inmate, claimant was ordered by Correction Officer (CO) Jason Vincent to pack his belongings in anticipation of being moved to another dorm at Bare Hill. Claimant argued with CO Vincent about this ordered move.
Officer Vincent called his supervisor on duty, then Sergeant Dale DuBrey (DuBrey), and DuBrey arrived to claimant's dorm, D-1 Dorm, with CO William Wright (an escort officer), to address the argumentative and reluctant claimant. Officer Wright was to escort claimant to his newly assigned dorm.
As a result of subsequent events that morning, claimant filed a claim on September 1, 2017 alleging that on January 1, 2017 DuBrey "physically assaulted and battered" him in the presence of "other corrections officers who failed to intervene." The "other" officers were subsequently identified as COs Vincent and Wright.
The use of physical force against an inmate is governed by statute, regulation and case law. Correction Law 137 (5) provides as follows:
"No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection. When any inmate, or group of inmates, 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."
Correction officers may use physical force to maintain order and discipline in correctional facilities, but "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2[b]).
The limited circumstances in which use of force is permitted by correction officers are set forth at 7 NYCRR 251-1.2[d]:
"[F]or 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."
In claims involving inmate allegations of excessive force by correction officers, the credibility of the witnesses is generally the dispositive factor (Davis v State of New York, 203 AD2d 234 [2nd Dept 1994]). To determine whether the use of force was necessary and, if so, whether the force used was excessive or unreasonable, a court must examine the specific circumstances confronting the officers (see Wester v State of New York, 247 AD2d 468 [2nd Dept 1998]; Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Quillen v State of New York, 191 AD2d 31 [3d Dept 1993]; Arnold v State of New York, 108 AD2d 1021 [3d Dept 1985], appeal dismissed 65 NY2d 723 [1985]).
A bifurcated trial of the claim was conducted virtually on December 16 and 17, 2020, by consent of the parties, with the Court presiding at the Court of Claims in Albany, New York, and the legal representatives, claimant and trial witnesses appearing remotely via video technology. The trial proceeded and was concluded smoothly and without problem or technological incident.
Claimant alleges that after DuBrey and CO Wright arrived to D-1 Dorm on the morning of January 1, 2017, claimant was placed in a small vestibule area just off the D-1 Dorm day room, ordered to a pat frisk position, and then slapped repeatedly and hard about the face by DuBrey, forcefully punched in the chest and ribs several times by DuBrey, strangled about the windpipe for about one minute to the brink of unconsciousness by DuBrey, and kneed twice in the ribs (without much force) by CO Wright. Officer Wright was to claimant's left and DuBrey was to his right. Claimant also alleges CO Vincent was present behind him in the vestibule and observed all of the foregoing instances of alleged force to which claimant was subjected.
Claimant alleges he suffered a swollen, puffy, red face, marks on his throat and found it hard to swallow or talk.
The Court has reviewed and considered the trial evidence of this claim. The Court has heard and considered the trial testimony of claimant William Apholz, DuBrey, CO Jason Vincent, and has heard and considered certain deposition testimony of CO Wright and CO Vincent. The Court has reviewed and considered the admitted exhibits. Insofar as the Court reserved decision during trial on the defendant's objection to the admission into evidence of Exhibit 12, the Court now sustains the defendant's objection in part and overrules it in part. Those statements and/or information in Exhibit 12 attributed to correction officers are admitted. Those statements and/or information in Exhibit 12 attributed to inmates and to non-employees of the defendant, including but not limited to a medical doctor, are not admitted and will not be considered by the Court.
After review of and due consideration to all of the foregoing, the Court makes the following findings of fact and draws the following conclusions of law.
FINDINGS OF FACT
1. Claimant, William Apholz, was an incarcerated inmate at Bare Hill Correctional Facility on January 1, 2017, and was under the care and custody of defendant.
2. On that date, January 1, 2017, claimant was subjected to the use of force by DuBrey, an employee of defendant, in the D-1 Dorm of Bare Hill Correctional Facility at some point in time between 7:00 a.m. and 9:00 a.m.
3. By admission of the defendant, at that date, time and location, DuBrey used unjustified and unnecessary force against claimant.
4. By reason of defendant's admission, the Court finds DuBrey used excessive force against claimant at that date, time and place.
5. On January 1, 2017, DuBrey was on departmental probation, for a probationary term of six months, due to defendant's determination that DuBrey, in an unrelated matter, had previously used excessive force against another inmate.
6. As of January 1, 2017, claimant had been incarcerated at Bare Hill Correctional Facility for approximately seven weeks, and had been a resident of D-1 Dorm for approximately two weeks.
7. Prior to January 1, 2017, claimant and DuBrey had never before met, and claimant had never before seen or interacted with DuBrey.
8. Subsequent to January 1, 2017, claimant and DuBrey never again interacted.
9. DuBrey was summoned to D-1 Dorm by CO Vincent to address an argumentative, agitated, boisterous and resistant claimant, after claimant was informed he was being moved from D-1 Dorm.
10. The Court substantially credits the trial testimony of claimant, and to the extent the Court declines to entirely credit claimant's testimony, the Court finds those portions immaterial to the dispositive issues of the claim.
11. At trial, both DuBrey and CO Vincent denied using any force upon claimant on January 1, 2017 and further denied seeing any other officer use force upon claimant on January 1, 2017. The Court finds the trial testimony of DuBrey and CO Vincent to be utterly incredible.
12. Claimant's credible trial testimony revealed that after DuBrey's use of force upon claimant in a vestibule of D-1 Dorm, DuBrey, claimant and the two other COs entered the day room and DuBrey "made a very loud and verbal announcement for [the D-1 Dorm residents in the day room of the dorm] to look at me [claimant] and pay attention, that he didn't care what color or race anybody was. And that he would treat everybody exactly the same, if they were not to follow his orders." In so doing, DuBrey conveyed to the D-1 Dorm residents that he would control behavior and maintain security in D-1 Dorm.
13. The Court finds, as a matter of fact, based upon the credible evidence, that DuBrey's use of force upon claimant was not borne of personal animosity toward claimant, nor was it utilized for wholly personal motives.
14. On the contrary, the Court finds that based upon the credible evidence, the purpose of the use of force by DuBrey upon claimant was to demonstrate to all of the residents of D-1 Dorm that he would utilize physical force to maintain order and discipline in the dorm, and that those inmates choosing to interfere with or disrupt that order and discipline would be dealt with in a forceful and physical manner.
15. DuBrey, responding to D-1 Dorm on the morning of January 1, 2017 in response to a call placed to him by CO Vincent, was acting in a supervisory capacity and was discharging his supervisory duties.
CONCLUSIONS OF LAW
1. "Correction officers are tasked with the formidable and critical responsibility of protecting the safety of inmates and coworkers while maintaining order in correctional facilities" (Rivera v State of New York, 34 NY3d 383, 385 [2019]; see Arteaga v State of New York, 72 NY2d 212, 217 [1988]).
2. It is well-settled that "[u]nder the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]; see Riviello v Waldron, 47 NY2d 297, 302 [1979]).
3. In determining whether an employee's acts are committed in furtherance of the employer's business and within the scope of employment, Riviello, at 303, explains that:
"Among the factors to be weighed are: the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated."
4. An employer cannot be held liable where the employee's tortious act was "a clear departure from the scope of employment, having been committed for wholly personal motives" (Cabrini, 97 NY2d at 251; see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]).
5. However, Riviello further explains (47 NY2d at 302) that:
"[N]o longer is an employer necessarily excused merely because his employees, acting in furtherance of his interests, exhibit human failings and perform negligently or otherwise than in an authorized manner. Instead, the test has come to be 'whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions"' (Jones v Weigand, 134 App Div 644, 645, quoted in Baker v Allen & Arnink Auto Renting Co., 231 NY 8, 12-13 [Pound, J.])."
A particularly instructive footnote in this regard is found in the dissent of Judge Wilson in Matter of Krug v City of Buffalo (34 NY3d 1094, 1102 [2019]):
"Under Riviello, an officer's use of excessive force does not establish that the officer was acting outside the scope of employment. Many courts have found officers using excessive force have acted within the scope of employment. Where a plaintiff claimed that police officers "kicked and punched him in the face and back while he was on the ground," resulting in fractures, abrasions, and cuts, the court found that, "even though the officers may have departed from the normal methods of making an arrest by using excessive force," a jury could "only find that [the] defendants were acting in the scope of their employment" (Dorsey v City of Albany Police Dept., 2016 WL 11605138 [ND NY 2016]). Even off-duty officers using excessive force may be found to have acted within the scope of their employment (see Beauchamp v City of New York, 3 AD3d 465 [2d Dept 2004] [triable issue as to whether off-duty police officers acted within the scope of employment when they assaulted two civilians and threatened them with a gun]). Similarly, the Third Department held that although correction officers may have used excessive force against inmates, it could "not be said that [the corrections officers'] conduct was outside the scope of their employment" (Cepeda v Coughlin, 128 AD2d 995, 997 [3d Dept 1987]). And, where a correction officer "without any cause, justification or legitimate provocation, viciously punched [the] plaintiff in the face, threw him to the ground and kicked him about the body, requiring [the] plaintiff to seek medical attention," a court found that a jury could determine that, "even if involving excessive force," the incident could be within the scope of the officer's duties (Mathis v State of New York, 140 Misc 2d 333, 334, 341 [Sup Ct, Albany County 1988])."
6. Defendant's reliance on Rivera v State of New York (34 NY3d 383 [2019]), is misplaced. The court in Rivera found, at 390-91, as follows:
"The brutal beating [in Rivera] can be characterized neither as an 'irregular[]' performance of duty nor a mere 'disregard of instructions'--the attack was not in furtherance of any employer-related goal whatsoever (Riviello, 47 NY2d at 302) . . .
To be sure, correction officers at times use excessive force. Such conduct will not fall outside the scope of employment merely because it violates department rules or policies or crosses the line of sanctioned conduct. Under our multi-factored common-law test for determining respondeat superior liability, an employee's deviation from directions or governing standards is only one consideration in the analysis. Here, the gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law. This was a malicious attack completely divorced from the employer's interests."
Unlike Rivera, the Court has determined that DuBrey's use of force upon claimant was not borne of personal animosity toward claimant, nor was it utilized for wholly personal motives. The purpose of the use of force by DuBrey upon claimant was to demonstrate to all of the residents of D-1 Dorm that DuBrey would utilize physical force to maintain order and discipline in the dorm, and that those inmates choosing to interfere with or disrupt that order and discipline would be dealt with in a forceful and physical manner.
DISCUSSION
The Court concludes that DuBrey's use of force upon claimant was employed to further the penological objective of maintaining order and discipline in D-1 Dorm on January 1, 2017, and further, to impress upon its residents, that the use of physical force would be used in the future, if necessary, to ensure continuing order and discipline. Further, DuBrey's use of force that day was employed in the discharge of his supervisory duties. As such, the Court finds that DuBrey was acting within the scope of his employment.
DuBrey was not acting out of personal animosity toward claimant or for wholly personal reasons.
Accordingly, DuBrey's actions were not beyond the scope of his employment.
Moreover, the Court finds DuBrey used excessive force upon claimant on January 1, 2017.
Given the foregoing, the Court finds that claimant has proven his claim by a preponderance of the credible evidence, and assigns defendant 100% culpability for the acts and omissions of its employees and claimant's resultant injuries.
All motions not previously decided are hereby denied.
Let interlocutory judgment be entered accordingly.
A trial on damages will be scheduled as soon as practicable.
April 29, 2021
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims