Opinion
# 2015-040-061 Claim No. 119317
12-02-2015
WOODROW FLEMMING and his wife, RUTHIE FLEMMING, Power of Attorney v. STATE OF NEW YORK
Woodrow Flemming, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Court finds Claimant failed to establish by a preponderance of the credible evidence his claims for assault and excessive force by correction officers.
Case information
| UID: | 2015-040-061 |
| Claimant(s): | WOODROW FLEMMING and his wife, RUTHIE FLEMMING, Power of Attorney |
| Claimant short name: | FLEMMING |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119317 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Woodrow Flemming, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 2, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se Claimant, Woodrow Flemming, failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. Nearly the entirety of the Claim previously was dismissed in 2011, with the exception of allegations of assault and use of excessive force relating to an event on November 26, 2010 (see Flemming v State of New York, UID No. 2011-018-227 [Ct Cl, Fitzpatrick, J., Aug. 17, 2011]). The trial with respect to liability issues only, and solely in connection with those allegations, was held on October 21, 2015 at the Court of Claims in Utica, New York.
At trial, Claimant submitted two exhibits into evidence. The Court reserved its decision upon the State's objections to three other documents offered by Claimant. The State submitted five exhibits into evidence. There were five witnesses: Claimant; Correction Officer (hereinafter, "CO") James Healy; CO Charles Champagne; Correction Sergeant Paul Duvall; and Heath Baker, RN.
The basic facts of this Claim are not in material dispute. On November 26, 2010, Claimant was moved by CO Healy and CO Champagne from one cell to another one within Upstate Correctional Facility (hereinafter, "Upstate") in Malone, New York. Claimant refused to enter the new cell until his property, including his legal papers, were placed in the cell. Claimant was given a number of direct orders to enter the cell, but would not comply. Sergeant Duvall was called to the scene and Mr. Flemming again refused to comply with a direct order to enter the cell, whereupon the COs used physical force to put Claimant into the cell.
The only question raised by this Claim is whether or not the amount of force used to put Claimant into the cell was excessive.
Claimant agreed that he did not enter the cell willingly. At the same time, he stressed that he did not fight or resist the officers. He asserts that, while he was standing against the wall outside the new cell, CO Healy and CO Champagne "grabbed me for no reason," "dragged me inside the cell and put my head against the wall [even though] they knew my medical condition." Mr. Flemming alleges that the COs hit him in the left arm and put him inside the cell "with force." Claimant said that he requested to see the medical staff later that same day and told RN Baker that his head and his side hurt. He also said that he removed his shirt so that pictures could be taken. Mr. Flemming said that he was, and continues to be, denied medical treatment for his injuries. Exhibit 15 consists of six photographs of Claimant, in five of which he is bare-chested. A film roll card that is part of the exhibit indicates that those photographs were taken by Sergeant Duvall at 10:45 a.m. on the date of the incident. However, the pictures are of a poor quality such that it is impossible to determine if Mr. Flemming has any bruises or other injuries to his head and/or torso. CO Healy and CO Champagne have been employed by DOCCS for nearly 18 and 21 years, respectively, and each has worked at Upstate since it opened in 1999. Their testimony, as well as that of Sergeant Duvall, was in substantial accord. Claimant refused CO Healy's repeated, direct orders to enter the cell. Sergeant Duvall also instructed Claimant to enter the cell and advised him that, if he failed to do so, the officers would be directed to use physical force to put him into the cell. Claimant again refused to comply, after which Sergeant Duvall gave the order and the COs executed it. The COs agreed that Mr. Flemming did not offer resistence, except insofar as he refused to comply with the direct orders, although, as noted below, Sergeant Duvall said that Claimant did resist being put into the cell after the use of force was initiated.
All quotations not otherwise attributed are taken from the electronic recording of the trial and/or the Court's notes.
CO Healy described the force used against Mr. Flemming, saying that he "grasped Mr. Flemming by the shoulder and forearm, or upper arm, and my partner [CO Champagne] did the same on his opposite side. We spun him around, walked him across the hallway (i.e., the gallery), and held him inside the cell door, standing." Each of the officer's wrote a memorandum to Sergeant Duvall, dated the day of the incident (see Ex. C [CO Healy] and Ex. D [CO Champagne]), which clarify that CO Healy was at Claimant's right side and CO Champagne was to his left and, further, that the officers pushed Claimant into the cell and held him there until the cell door closed (see also Ex. A [use of force report]). Sergeant Duvall testified that Claimant tried to push his way back out of the cell before the door shut.
CO Healy denied at trial that he hit Claimant, laid hands on the inmate's head or any other part of his body (other than his shoulder and arm as described above), took Claimant down to the ground, or forced any part of Mr. Flemming's body against a wall. CO Champagne said that he did not physically go into the cell, but could not recall if he pushed Claimant against a wall.
Sergeant Duvall wrote a use of force report the same day as the incident (see Ex. A), which reports, he testified, are generated whenever an officer puts hands upon an inmate for reasons other than incidental contact, such as the application of handcuffs. The Sergeant stated that physical force is authorized to gain compliance when an inmate refuses to follow a direct order.
Exhibit F is a video of the incident, the contents of which, to the Court's mind, support the testimony of the three officers. It depicts three camera angles of a single prison gallery. A title on one camera feed indicates that the film depicts building 11. The video is dated November 26, 2010 and the time is recorded throughout the video. Audio accompanies the video, but it is impossible to hear clearly what is being said owing to a great deal of ambient noise, as well as an echo in the hallway. At about 10:44:15, two COs in blue shirts can be seen escorting an inmate who is pushing a cart. At 10:44:35, they arrive in front of a cell. One CO briefly enters the cell, then comes back out into the hallway and gestures for the inmate to go into the cell. The inmate does not move and continues to stand in the hallway. The same CO gestures a number of times (ten or more) for the inmate to enter the cell. The inmate does not move. After about a minute, at 10:45:40, the same CO reaches into his pocket and appears to be speaking on a phone or radio device. Then, at 10:46:25, an officer in a white shirt arrives. As he does so, he gestures to the inmate, who turns around and faces the wall opposite the cell door with the palms of his hands placed upon the wall. Beginning around 10:46:50, the officer appears to speak with the inmate for about one minute. At 10:47:47, and apparently upon the direction of the officer in the white shirt, the two COs, who now are on either side of the inmate, take hold of him by his elbows and forearms, turn him around to face the cell door and move him into the cell. That is the first time there is any physical contact between the officers and the inmate. By 10:47:50, or three seconds later, the inmate is inside the cell. Neither CO appears to enter the cell. At 10:47:54, however, they can be seen pushing against the cell entrance, as if to keep the inmate from leaving the cell (although the inmate is no longer visible at this point), and, at 10:48:04, the cell door is closed. At 10:48:30, the officers leave the area. While the cameras are at some distance from the actors, they nevertheless provide a clear picture of the events that occur.
All times are approximate.
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CO Champagne did not recall if Mr. Flemming complained of injuries after he was put into the cell, but Sergeant Duvall said that medical staff came to Claimant's cell after the incident. He further stated that the standard practice is to photograph inmates and have them seen by medical staff after each such incident in which officers use force against an inmate. RN Baker testified that he had no independent recollection of the incident, however, he confirmed that documents he was shown by Defense counsel prior to trial were in his handwriting. On the day of the incident, he prepared the physical examination/treatment report portion of the use of force report which relates that: he viewed Claimant in his cell pursuant to a request from the security staff; the inmate refused to strip so that a medical assessment could be made; and that, although the inmate complained that both of his arms hurt, nevertheless he had full range of motion and strength, and that no obvious injuries could be found at that time (see Ex. A, pp. 2-3). Exhibit F also shows that, at 10:51:57, a stocky man in a short-sleeved brown or tan top arrives and appears to look into the cell through a window. He departs at 10:52:30.
"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" (Clark v State of New York, UID No. 2003-029-272 [Ct Cl, Mignano, J., April 4, 2003]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]; 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 found the testimony of the three officers to be more persuasive than that of Claimant. The officers' testimony, moreover, comports with the events recorded by the video that is Exhibit F, while a number of Mr. Flemming's allegations find no support in that exhibit. Based upon all of the foregoing, the Court concludes that there was no physical contact between the officers and Claimant until hands were laid upon Mr. Flemming in order to move him into his cell. No weapons were used. To the Court's mind, Exhibit F shows that the COs were not rushed or hurried in their movements as they put the inmate into the cell. They were not running. They did not seem to be exerting any great force upon the inmate as they did so. They did seem to be exercising some greater effort while pushing at the cell entrance just before the door is closed. The Court rejects Claimant's assertions that the COs grabbed him without cause, that they dragged him into the cell, hit his left arm, or that they banged his head against a wall.
To the contrary, the Court determines that the officers acted in a measured and precise manner and in full compliance with DOCCS' regulation governing the use of physical force by its employees against an inmate (see 7 NYCRR §251-1.2). Force was used to gain Mr. Flemming's compliance only after he refused to comply with repeated, direct orders. Both the decision to use force, as well as the direction to do so, came from a supervisory officer, Sergeant Duvall, whom the COs called to the scene after a number of failed attempts to gain Mr. Flemming's acquiescence. Most importantly, the Court concludes that only that degree of force as was reasonably required under the circumstances was employed by the officers to put Claimant into his cell.
Therefore, based upon the foregoing, the Court concludes that Claimant failed to establish by a preponderance of the credible evidence that he was assaulted or that excessive physical force was used against him on November 26, 2010 and the Claim is hereby dismissed.
All motions made at trial upon which the Court reserved decision are hereby denied.
All objections upon which the Court reserved decision at trial are hereby overruled.
The Chief Clerk is directed to enter judgment accordingly.
December 2, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims