Opinion
# 2015-051-504 Claim No. 120718 Motion No. M-87097
12-10-2015
PATRICK GORDON v. STATE OF NEW YORK
PATRICK GORDON, PRO SE HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: AARON J. MARCUS, ESQ. Assistant Attorney General
Synopsis
Claim for excessive force/assault dismissed after trial because claimant failed to sustain his burden of proving that correction officers' use of force was not privileged, reasonable or justified under the circumstances. Evidence including credible testimony of correction officers who either supervised or participated in the cell extraction, video recording of the cell extraction, and claimant's medical records demonstrated that the use of force was necessary to remove claimant from his cell, and that the amount of force used was reasonable under the circumstances.
Case information
| UID: | 2015-051-504 |
| Claimant(s): | PATRICK GORDON |
| Claimant short name: | GORDON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120718 |
| Motion number(s): | M-87097 |
| Cross-motion number(s): | |
| Judge: | DEBRA A. MARTIN |
| Claimant's attorney: | PATRICK GORDON, PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: AARON J. MARCUS, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 10, 2015 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This decision follows a trial of the assault and battery and excessive use of force claim of Patrick Gordon, an inmate proceeding pro se, which was conducted by video conference on October 21, 2015, with the parties appearing at Elmira Correctional Facility in Elmira, New York and the Court sitting in Rochester, New York. Claimant filed his claim on December 23, 2011 seeking monetary compensation for injuries he allegedly sustained when he was forcibly extracted from his cell at Southport Correctional Facility after refusing repeated orders to exit it. Claimant offered his own testimony and two exhibits consisting of his claim and medical records which were received into evidence. Defendant presented six witnesses and offered 12 exhibits including video, photos, reports and medical records which were received into evidence.
The Court first addressed claimant's pending motion for a trial preference (M-87097). The defendant filed an affirmation in opposition to claimant's motion. In light of the commencement of the trial, the Court denied claimant's motion as moot.
It is undisputed that on the morning of March 22, 2011, the claimant was experiencing mental duress at having to vacate his level two cell in order to move to a level one cell (Exhibit 1) . This was evidenced by claimant's repeatedly superficially cutting his arms and his requests to see a mental health worker (Exhibits 1, A and B). In response, starting at approximately 8:15 on the morning of March 22, 2011, the defendant caused claimant to be visited by mental health worker Colgan, Iman Afify, Counselor Piecuch, and Crisis Intervention Officer Hughes (Exhibits A and L). Each official unsuccessfully attempted to calm the claimant and secure his cooperation to exit his cell. After these repeated attempts to secure claimant's cooperation failed and after claimant refused several orders to exit his cell, the defendant, following protocol, proceeded to the use of a chemical agent. Although claimant testified to the contrary, the defendant produced an Ambulatory Health Record Progress Note confirming prior medical clearance to use a chemical agent upon claimant (Exhibit J). The defendant also secured the required approval from the Superintendent. (Exhibits A and D.) When this method of extraction failed and after claimant refused defendant's final order to exit the cell, an extraction team was utilized to remove the recalcitrant claimant from the cell in order to carry out the cell reassignment order. Although the picture quality of the cell extraction video is poor given the lighting and the number of correction officers inside the small cell, the video does depict that it took correction officers approximately four and a half minutes to extract the claimant from the cell and that he didn't cooperate or comply with the officers' orders to stop resisting. Claimant testified that his eye was poked when he was standing but bent over a desk. In the video, one can vaguely see the claimant standing up and hear him say "ouch," but no particular movement by an officer is discernable. It is also undisputed that the claimant sustained injuries as a result of the cell extraction including 1/2 inch laceration and abrasion above left eye, 1/8 inch abrasion beside left eye, both eyes were bloodshot, a swollen right pinky, and a complaint that he was unable to see out of his right eye (Exhibits A, B, C, D). These injuries are consistent with a cell extraction where the inmate is not cooperative. Claimant had both head and maxillofacial CTs and an x-ray of his right hand between March 22 and 23, 2011 which were all negative (Exhibit F). Claimant also sustained eye irritation and was given drops to be taken for a week. Exhibits submitted by claimant further document that he had a subjective impairment to this right eye and was subsequently diagnosed with scotoma in his right eye and photophobia. However, the reports do not confirm that claimant is blind in his right eye as testified by the claimant. Further, the reports also do not establish the cause of the diminishment of claimant's field of vision in his right eye, other than to mention the claimant's description of the March 22, 2011 incident (Exhibit 2). In addition, although claimant testified that he had 20/20 vision prior to the March 22, 2011 incident, the defendant provided certified evidence that claimant did not have perfect vision as of the date of the accident and had previously experienced difficulty with his field of vision in his right eye.
Claimant admitted that he had a pre-existing diagnosis of impulse control disorder and antisocial disorder.
Claimant was being moved because he threatened a correction officer. Claimant admitted that he was subsequently found guilty of this charge and the disciplinary charges arising from his behavior before and during the cell extraction. The guilty findings were upheld on appeal and became final after claimant did not pursue an Article 78 review.
It is further noted that claimant didn't claim or testify to any difficulties in breathing as a result of the use of the chemical agents, nor did the video of the cell extraction reveal such.
See NYS DOCCS Ambulatory Health Record Progress Note dated October 13, 2010 (Exhibit G) indicating that claimant's vision on that date was 20/30 in his left eye and 20/80 in his right eye. Exhibit G further documented that claimant sought treatment because he was experiencing alleged black spots in visual field of right eye. Moreover, claimant had previously complained about his field of vision in right eye on September 21, 2010 (Exhibit H).
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(Exhibits G and H). New York State Correction Law § 137 sets forth a limited exception to the general rule that a correction officer may not use physical force against an inmate. Physical force, which would otherwise constitute assault and battery, is justified under the law, in part: "When any inmate, . . . shall . . . 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 are further charged with being cautious and conservative in determining when physical force should be deployed and acting in good faith and using reasonable care. (See 7 NYCRR § 251-1.2, entitled Use of physical force.) This regulation imparts a reasonableness standard providing that:
"[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 . . . to enforce compliance with a lawful direction . . ."
Accordingly, the State will only be held liable where the particular use of force is unreasonable or excessive under the circumstances (see Davis v State of New York, UID No. 2013-029-009 [Ct Cl, Mignano, J., Apr. 24, 2013]). To determine if the force was necessary, or whether the amount of force used was reasonable, "[c]ourts look at what circumstances confronted the officers at the time. The credibility of those who testify before the court is a critical factor in these assessments." (Tirado v State of New York, UID No. 2010-030-023 [Ct Cl, Scuccimarra, J., July 19, 2010] [citations omitted].) In excessive force cases, claimant has the burden of proving his claim by a preponderance of the evidence. (Devers v State of New York, UID No. 2013-049-101 [Ct Cl, Weinstein, J., Feb. 7, 2013] [citations omitted].) Thus, in order for claimant to prevail on this claim, he must demonstrate by a preponderance of the credible evidence that: (1) the correction officers' actions were not authorized because claimant's conduct did not fall within the conduct identified in Correction Law § 137 [5], or (2) the correction officers who used force to extricate the claimant from his cell did not reasonably believe that force was necessary, or (3) the degree of force employed by the correction officers was not reasonable. (Harvey v State of New York, UID No. 2014-038-102 [Ct Cl, DeBow, J., Mar. 11, 2014].)
The undisputed evidence is that claimant was repeatedly ordered to exit his cell and that he repeatedly refused to do so. There was no evidence adduced that any of these orders were improper or impermissible. The evidence demonstrates that the staff members were patient and took several graduated steps to secure the claimant's compliance in order to avoid the use of force to carry out the cell reassignment order. These included: summoning a mental health worker, a religious representative, claimant's counselor, and a crisis intervention officer to intervene with claimant and to mediate his compliance with the order to exit the cell; using a chemical agent; and providing a final order and warning to claimant. Moreover, claimant repeatedly testified that he didn't know if the officers' actions, resulting in his injuries, were intentional or accidental.
At the close of the trial, the defendant moved to dismiss the claim for failure to make a prima facie case of use of excessive force. After considering the claimant's testimony, all the documentary evidence received at trial, and the applicable law, the Court now grants that motion, dismissing the claim. I find that claimant was failing and refusing to comply with the lawful directives of defendant's correction officers. When they entered his cell, the extraction team used only that force that was reasonably necessary to immobilize claimant so that the officers could place restraints on his limbs without endangering their own safety. The officers were justified in entering the cell and in applying limb restraints because of claimant's continued defiance of their lawful directions. Their actions were therefore privileged and defendant cannot be held vicariously liable for any injuries claimant sustained during the cell extraction. I further find that claimant failed to establish by a fair preponderance of credible evidence that the injuries he sustained resulted from the use of excessive force or any wrongful conduct on the part of the defendant.
Accordingly, in light of the above; claimant's motion for a trial preference (M-87097) is denied as moot, and defendant's posttrial motion to dismiss is granted and claim (120718) is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 10, 2015
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims