Opinion
# 2016-040-016 Claim No. 123610
02-24-2016
MARLO CARTER 08B2716 v. THE STATE OF NEW YORK
Marlo Carter, 14B1032, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG
Synopsis
Following Trial, Court dismissed Claim alleging assault and use of excessive force by COs.
Case information
| UID: | 2016-040-016 |
| Claimant(s): | MARLO CARTER 08B2716 |
| Claimant short name: | CARTER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123610 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Marlo Carter, 14B1032, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 24, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se Claimant, Marlo Carter, failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. The trial of this Claim was held by video conference on December 3, 2015, with the parties at Coxsackie Correctional Facility in Coxsackie, New York, and the Judge at the Court of Claims in Albany, New York.
At trial, Claimant submitted into evidence, without objection, one document, his Claim (Ex. 1). Claimant stated at trial that he wished to submit his medical records into evidence, however, he did not have the records with him. The Court kept the record open to allow Claimant to send the medical records to the Court and Defense counsel. Claimant submitted the records and the State submitted its objection to the medical records in writing. Upon due consideration, the Court overrules the State's objection and admits the medical records as Exhibit 2. The State also submitted four exhibits into evidence (Exs. A-D). Claimant testified on his own behalf and Defendant called three witnesses to testify: Correction Officer (hereinafter, "CO") Tomas Poventud, CO Kevin Chambers and Lieutenant (hereinafter, "Lt.") John Caputo, who at the time of the incident was a Sergeant.
Claimant testified that, on September 27, 2013, he was incarcerated at Greene Correctional Facility located in Coxsackie, New York (hereinafter, "Greene"). He stated that, between 9:30 and 9:45 that evening on F1 dormitory, he witnessed COs beating another inmate named Foster; that he called out to the officers that what they were doing was wrong. He was told to sit down and shut up, so he did. He stated that the officers continued to assault Foster, so he again spoke up and told them to stop. Mr. Carter said that a CO then told him to put his hands behind his back and they took him outside the doors to the porch area of F block and verbally abused him and physically assaulted him. He was then put in a van to be transported to the Special Housing Unit (hereinafter, "SHU") and he was again assaulted by several COs. He testified that he was brought to the small SHU room and was once again assaulted. He reported that he suffered injuries to his right leg, right ear, ribs and his right pinkie finger and requested medical attention. He stated that medical attention was denied that evening and he did not receive medical treatment until the following day. He said that most of his injuries have healed except that he has some hearing loss in his right ear and his right pinkie is now deformed.
Lt. Caputo testified that, on September 27, 2013, he was a sergeant employed by the Department of Corrections and Community Supervision (hereinafter, "DOCCS") and was working at Greene. He stated that, during the evening of September 27, 2013, there was an emergency situation in the F1 dormitory, as Inmate Foster assaulted an officer on the front porch. He further stated that, inside the dorm, Claimant was inciting other inmates to be disruptive. The witness identified Exhibit A as a Misbehavior Report regarding this incident issued to Claimant by CO Smith, who is now retired. Exhibit A indicates that Claimant was escorted from the unit without further incident. It further indicates that no physical force was used. Lt. Caputo identified Exhibit B as another Misbehavior Report issued to Claimant the same night, regarding having an altered metal can top with a sharp edge, which is considered a weapon (see Ex. C [photograph of weapon described in Exhibit B]). Exhibit D was identified by the witness as a memorandum he prepared and sent to Lt. Van Erp regarding the incidents involving Claimant on September 27, 2013. The memo reports that Claimant was admitted to SHU without incident.
Lt. Caputo also testified that he interviewed Claimant after the incident in the draft area directly outside the small SHU room and Claimant was in mechanical restraints. At that time, the witness did not observe any injuries on Claimant's person and Claimant did not say that he was injured. Lt. Caputo stated that SHU policy is to have medical staff examine inmates within 24 hours of their admission to SHU, including a body scan looking for injuries.
CO Poventud testified that, on the date of this incident, he was working as a CO at Greene. At the time of the emergency situation, the witness was in the lobby of the facility preparing to leave as his shift had ended. He responded to the situation in F1 block. He testified that Claimant was yelling and screaming profanities inside the dorm and inciting the other inmates to take over the dorm. The witness stated that Claimant was placed in handcuffs and resisted having the handcuffs put on. He stated that Claimant was upright when he was escorted out of the F1 dorm and Claimant did not have any injuries. CO Poventud testified that he did not witness any COs assault Claimant.
CO Kevin Chambers testified that, at the time of trial, he had worked as a CO for DOCCS for almost 10 years and that he had worked at Greene for nine-and-one-half years. On September 27, 2013, he was assigned to the small SHU room, which he described as an individual cell SHU unit where inmates are sent after an altercation and before issuance of a misbehavior report. He stated that he did not twist Claimant's fingers or hands and did not punch or assault Claimant. He did not observe any DOCCS' staff assault Claimant. He also did not observe any bruises on Claimant when he was strip-searched.
"In situations involving inmate allegations of excessive force by a [CO], such as here, the credibility of the respective witnesses is often the dispositive factor" (Bolden v State of New York, UID No. 2013-040-033 [Ct Cl, McCarthy, J., May 23, 2013], quoting Clark v State of New York, UID No. 2003-029-272 [Ct Cl, Mignano, J., April 4, 2003]; see Davis v State of New York, 203 AD2d 234 [2d Dept 1994]; see also Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]).
The Court has considered the evidence, including a review of the exhibits, listening to the witnesses testify and observing their demeanor as they did so. The Court credits the testimony of the State's witnesses that they did not strike Claimant, nor did they witness anyone else strike Claimant. The Court also credits Exhibit A, the misbehavior report by CO Smith, wherein he states that Claimant was escorted from the unit without incident, and Exhibit D, the memoranda from then-Sergeant Caputo to Lt. Van Erp stating that Claimant was admitted to SHU without incident. Each document was made shortly after the incident occurred, reporting that there was no incident regarding Claimant. In addition, the Court has reviewed Claimant's medical records (Ex. 2). The Ambulatory Health Record (hereinafter, "AHR" ) dated September 27, 2013 at 9:25 p.m. is indecipherable to the Court without testimony from a medical professional. The AHR dated September 28, 2013 reports that Claimant was "viewed" after he was admitted to SHU. It records that Claimant was complaining of pain in his ear, thigh, finger and ribs. The note records no drainage, redness, swelling, or bruising to Claimant's right ear. There was swelling in the area of the right thigh, but no bruising or deformity. The AHR entry also recites that there was swelling and bruising to the right pinkie finger, that Mr. Carter complained of sharp pain on his left side when taking deep breaths, but that no bruising or redness was observed in that area, and that Claimant's breathing otherwise was even, unlabored and regular. While the AHR establishes that Claimant did have a couple of injuries on the day after the incident, Claimant failed to establish by a preponderance of the credible evidence that those injuries were the result of an assault by State employees.
Therefore, based upon the foregoing, the Court concludes that Claimant failed to establish by a preponderance of the credible evidence that he was assaulted on September 27, 2013, and the Claim is hereby dismissed.
All motions made at trial upon which the Court reserved decision are now denied.
The Chief Clerk is directed to enter judgment accordingly.
February 24, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims