Opinion
# 2016-032-507 Claim No. 122485
09-27-2016
MALEEK COLLINS v. THE STATE OF NEW YORK
Andrew F. Plasse & Associates, LLC By: David Rynkowski, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel
Synopsis
Following a trial, claimant failed to establish the elements of an assault claim.
Case information
| UID: | 2016-032-507 |
| Claimant(s): | MALEEK COLLINS |
| Claimant short name: | COLLINS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122485 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Andrew F. Plasse & Associates, LLC By: David Rynkowski, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | September 27, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS), filed the instant claim on March 12, 2013, sounding in assault and battery against certain correction officers at Great Meadow Correctional Facility. Following joinder of issue, the matter proceeded to trial on February 4, 2016. Taking into account the trial testimony, including the demeanor and credibility of claimant and defendant's witnesses, and upon reviewing the Exhibits received into evidence, the Court finds that claimant has failed to establish the elements of his claim.
FACTS
According to claimant's testimony, on March 14, 2012, while waiting in line for dinner in the mess hall, he allowed another inmate to go ahead of him on line. Because the inmates' seating is determined by their placement in line, by allowing the inmate to go ahead of him, claimant and the other inmate were not seated at the proper table. The next day, claimant was on line waiting to go to lunch when he was pulled out of line for a pat frisk by Correction Officer Charles Pereira. Claimant testified that, when Pereira pulled him out of line, he asked claimant "who [he] thought [he] was to be switching tables at the mess hall" (T: 11). Claimant stated that he was told to place his hands on the wall, and a pat down frisk ensued, at which point Pereira smacked him and three other correction officers also started hitting and kicking him. The alleged assault lasted approximately 5 minutes, and claimant sustained injuries to his face. Claimant was then handcuffed, placed in shackles, and escorted to the infirmary. A spit mask was placed on him because he was spitting. Claimant testified that he spat because he was bleeding from the mouth and that he did not intend to spit on anyone. From the infirmary, claimant was taken to the Special Housing Unit (SHU). Photographs were taken of claimant while he was in SHU which show that claimant's face was bruised and swollen (Exhibits 1-3). Upon cross-examination, it was elicited from claimant that he received a disciplinary ticket for violent conduct, assault on staff, refusing a direct order, refusing a frisk, and an unhygienic act (i.e., spitting). Claimant was the only witness to testify in support of his case.
Defendant called Pereira as its first witness, who stated that he has been a correction officer for the past 11 years. Pereira testified that he had not met claimant prior to the incident in question. During his testimony, Pereira read from a "TO/FROM" memorandum that he wrote regarding the incident (Exhibit A). In the memorandum, Pereira stated that on the date in question, he conducted a random pat frisk upon claimant and that claimant struck him in the face as the pat frisk was conducted in claimant's groin/thigh area. Pereira then delivered three closed hand strikes to the inmate's face, grabbed him in a body hold, and forced claimant to the floor where he remained until staff responded. According to Pereira, claimant was not in handcuffs or shackles at that time. Pereira testified that he did not make a verbal request for claimant to stop hitting him because he had to respond with the force necessary to protect himself. Upon cross-examination, Pereira testified that he did not gain complete control of claimant until the other officers arrived because claimant was still kicking and punching. When the other officers arrived, claimant was handcuffed and shackled. Once claimant was subdued, he and Pereira went to the infirmary. Exhibit J contains photographs of Pereira after the incident, which show red marks on his face. Exhibit H is a copy of the Misbehavior Report that he wrote for claimant.
A "TO/FROM" is a colloquialism used within DOCCS to refer to a report submitted by correction officers regarding the use of force on an inmate. --------
Correction Officer Colleen Russell was called as defendant's second witness. She also wrote a "TO/FROM" memorandum indicating that she came to Pereira's aid that day by holding claimant's left and right legs down on the floor with her right knee until leg restraints could be applied (Exhibit B).
Sergeant Daniel Mulligan testified as a third witness for defendant. He was a correction officer at the time of the incident and was assigned as a hospital escort officer. He also responded to the incident and wrote a "TO/FROM" memorandum, in which he stated, "Upon my arrival, I observed staff struggling to gain control of Inmate Collins. . . . The inmate was on his stomach and was violently struggling with staff and was kicking and flailing" (Exhibit C). Mulligan maintained control of claimant's left arm as restraints were applied.
Lieutenant Peter Depalo was called as defendant's fourth and final witness. At the time of the incident, Depalo was a Correctional Sergeant at the facility. Depalo defined the term "progression of force" as "a standard where [one uses] the minimal amount of force that is necessary to stop a situation" (T: 123-124). The progression would typically begin with a direct order and progress to physical force (body holds or strikes), use of a defensive weapon (batons or chemical agents), and deadly physical force, in that order. All correction officers are given a seven-hour annual training in the use of force. They are allowed to use a progression of force to defend themselves and/or a third party. In the case of an inmate-on-staff assault, the officers are not required to first use a verbal request. Any use of force must be documented by the end of the day that it occurred. Correction officers are not allowed to use force absent a provocation by an inmate. He identified Exhibit D as the memorandum he wrote regarding the strip frisk of claimant conducted in SHU pursuant to which no contraband was found. The memorandum also explained why the spit net was used on claimant as he was spitting phlegm on the walls and floor of the main corridor in the prison during the escort to the infirmary, and spitting on the walls of the exam room. A cell shield was also authorized for his cell in SHU to prevent the throwing of food or feces out of the cell. Depalo claimed that the inmate stated that he would assault staff as soon as the handcuffs came off as well as during the escort to SHU.
LAW
As relevant here, Correction Law § 137 (5) provides that "no officer or other employee of [DOCCS] 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." Further, "[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]). "Where 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 fact that an altercation between [an inmate] and a correction officer occurred, in which force was used and [the inmate] was injured, is not in and of itself a basis for liability" (Patterson v State of New York, UID No. 2002-031-015 [Ct Cl, Minarik, J., April 23, 2002]). Rather, a "[c]laimant must also demonstrate that the force used was unreasonable in light of the circumstances surrounding the altercation" (Patterson v State of New York, UID No. 2002-031-015 [Ct Cl, Minarik, J., April 23, 2002]; see Thomas v State of New York, UID No. 2001-013-517 [Ct Cl, Patti J., December, 2001]). 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 e.g. Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]). Thus, "the credibility of the witnesses is generally the dispositive factor" (McDonald v State of New York, UID No. 2011-041-505 [Ct Cl, Milano, J., May 3, 2011]; 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" (Lamage v State of New York, UID No. 2015-044-003 [Ct Cl, Schaewe, J., April 22, 2015]; see Wester v State of New York, 247 AD2d 468 [2d Dept 1998]).
ANALYSIS
The Court finds that claimant has failed to meet his burden of proof establishing an excessive use of force in this case. The Court credits the testimony of Pereira, who appeared forthright and sincere, that claimant struck him first, thereby triggering his response of closed fist blows to claimant. The Court also credits Pereira's testimony that he had never met claimant before the incident and finds claimant's attempt to link the event to an incident in the mess hall the previous day incredible (see Bush v State of New York, 57 AD3d at 1067). Further, the Court finds that, because claimant struck Pereira first, a body hold and/or a strike by the officer was a reasonable action to take in lieu of a direct verbal order, as it was the minimal amount of force to be taken to stop claimant from striking him again (see Lamage v State of New York, UID No. 2015-044-003 [Ct Cl, Schaewe, J., April 22, 2015]). It is also clear from Russell and Mulligan's testimonies that claimant was kicking and flailing in response to their attempt to subdue him, and their actions to hold him while restraints were applied were therefore reasonable (see id.). The Court further finds that the use of the spit net and the strip search were necessary and reasonable given the circumstances (see McDonald v State of New York, UID No. 2011-041-505 [Ct Cl, Milano, J., May 3, 2011]).
Upon review of the documentary evidence, the oral testimony of claimant and the defendant's witnesses, the Court finds that claimant failed to prove his claim by a preponderance of the credible evidence. The claim is, therefore, dismissed.
Let judgment be entered accordingly.
September 27, 2016
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims