Opinion
# 2019-041-503 Claim No. 123345
07-09-2019
RICHARD JONES v. THE STATE OF NEW YORK
FRANZBLAU DRATCH, PC By: Brian M. Dratch, Esq. HON. LETITIA JAMES New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General
Synopsis
Inmate claim alleging assault by multiple correction officers is dismissed after trial where claimant's testimony alleging a coordinated, premeditated, unprovoked, retaliatory, and targeted assault involving a vicious, several-minute session of punching, kicking and stomping lacked credibility in view of claimant's injuries and prior inconsistent descriptions of the assault and in view of credible contradictory testimony and documentary evidence offered by defendant.
Case information
| UID: | 2019-041-503 |
| Claimant(s): | RICHARD JONES |
| Claimant short name: | JONES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123345 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | FRANZBLAU DRATCH, PC By: Brian M. Dratch, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 9, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Richard Jones (claimant) alleges that, while incarcerated at Great Meadow Correctional Facility (Great Meadow), he was assaulted by a number of correction officers on July 16, 2013. In his filed Claim, claimant asserts, "officer J. Ashline punched me in the right side of my face, head and side and then officer John Rosati and the (unknown officer) punched me in the left side of my face and I went down to the floor where I was stomped, kicked and punched repeatedly for at least three to five minutes. Officer John Rosati and the (unknown officer) stomped on my left lower shin repeatedly and officer J. Phillips stomped on my right ankle and leg and officer J. Ashline kicked and stomped on my back and neck and head."
Trial of the claim was conducted October 24, 2018. Two witnesses testified at trial: claimant and Correction Officer (CO) Jeffrey Phillips. Claimant, with fellow C Company inmates, exited his cell for the lunchtime mess hall run on July 16, 2013. At that time, he was directed to a nearby stairwell where, claimant testified, he was physically attacked without provocation by COs Ashline, Phillips, Meehan and Rosati, was "punched in the ribs, punched . . . in the right side of my face . . . punched by Officer Meehan in the left side of my face . . . punched five times from behind in the jaw . . . and got kicked probably it felt like ten minutes, but it probably more realtime was about two minutes" (See Trial Transcript, hereafter "TT," pp 37-38). He was eventually handcuffed, and testified that an unknown officer then pressed a weapon, a tape wrapped razor blade, into his hand.
Claimant denied possessing the weapon, denied knowledge of where the weapon came from, and denied ever removing his hands from the wall as the officers had instructed him and as they began to undertake a pat frisk.
Claimant testified that on July 11, 2013 he had witnessed a physical confrontation between CO Ely and inmate Polk, and that he was assaulted on July 16, 2013 because he had expressed a willingness to speak to the "Inspector General" he claimed was, that day, interviewing possible witnesses to the incident of five days previous.
After the physical encounter with the officers, claimant was transported to the facility's medical unit and photographs of his injuries were taken (See Exhibits 1, 2 and 3). Claimant testified to having endured a number of injuries to various body parts, including a facial laceration and a number of other abrasions and contusions to other areas of his body. These injuries, and the most serious injury claimant suffered, a fracture of the right ankle, are noted at page 3 of Exhibit A (the defendant's twenty nine page Unusual Incident/Use of Force Report), detailing defendant's physical examination and medical treatment of claimant on July 16, 2013 and July 17, 2013.
Officer Phillips testified that as the C Company inmates exited their cells for the lunch-time mess hall run on July 16, 2013, he observed claimant take something from his mouth and place it in his pocket. He then ordered claimant to a nearby stairwell for a pat frisk, stating "I didn't want an audience" (TT, p 98).
As he undertook the pat frisk, CO Phillips testified he felt an object in claimant's front pocket, and when he attempted to retrieve it, claimant pushed off the wall. After ordering claimant to stop resisting, CO Phillips placed claimant in a two-arm bear hug and brought him to the ground face first. CO Phillips, at the time, stood 6' 3" and weighed approximately 275 pounds. Claimant is a much smaller individual. Claimant was kicking his feet. Alone with claimant up until that point, CO Phillips was now joined by CO Rosati.
Officers Phillips and Rosati eventually subdued claimant, and placed him in handcuffs. Other officers then responded, apparently in response to a radio call. CO Phillips specifically denied that COs Meehan, Pereira or Ashline were present at any time force was applied to claimant. CO Phillips testified to recovering a one to two inch taped razor blade, a photograph of which was admitted as Trial Exhibit 10.
Claimant was then escorted to the medical unit and given treatment.
Subsequent to the incident, on the same day of the incident, COs Phillips and Rosati either authored or assisted in the preparation of a "To/From" memo and a Use of Force Report, and CO Phillips issued claimant a Misbehavior Report charging claimant with, among other charges, disobeying a direct order, violent conduct, physical interference and possession of a weapon (all set forth in documents contained in Exhibit A). No officers, other than COs Phillips and Rosati, are identified in Exhibit A as having been involved in the use of force upon claimant.
After the conduct of an administrative disciplinary hearing, claimant was found guilty of each charge levied in CO Phillips' misbehavior report (See last page of Exhibit 9). Other than claimant's otherwise unsupported testimonial denial regarding one charge, violent conduct, there is no evidence that any findings of guilt made by administrative disciplinary determination were overturned, either administratively or otherwise.
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 [2d 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 [2d 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]).
Claimant's trial testimony, as it described the identity of the officers involved in the events of July 16, 2013 and as it described the conduct/actions of specific officers that day, was inconsistent with and/or contradicted by previous representations he had made.
For example, in his Notice of Intention, claimant indicates a CO Ramos escorted prisoners to the Inspector General on July 16, 2013, not CO Pereira, as claimant testified at trial. In the Notice of Intention (created by claimant on July 30, 2013, fourteen days after the incident), claimant identifies CO Phillips as the officer who ordered him to place his hands in his pockets and move to the stairwell, not CO Ashline, as testified to at trial. In claimant's Notice of Intention, CO Ramos is identified as taking part in the assault, and in the filed Claim, CO Meehan is unmentioned. At trial, the assaulting officers were identified as Ashline, Phillips, Meehan and Rosati. Claimant's grievance of October 31, 2013, states CO John Rosati pressed a weapon into claimant's right hand, while at trial, claimant was unable to report which officer pressed the weapon into his hand. These discrepancies, other than the failure to mention CO Meehan in the Claim, are noted at TT, pp 75-80.
Further, claimant's description of being assaulted in a vicious, several-minute session of punching, kicking and stomping is a remarkably specific and precise attribution of specific conduct to specifically identified officers, observations made by the claimant as he lay on the ground no less. Also, it is difficult to reconcile the injuries that claimant did in fact sustain, with the viciousness, type and length of the physical force employed by correction officers, as described by claimant, a beating it could be easily imagined would have more likely resulted in his death or near-death than in his documented injuries.
The Court declines to credit claimant's account of the manner and extent of force used upon him on July 16, 2013, and further declines to credit his description of the number of correction officers involved in the application of that force.
Based upon a review of the trial testimony, and of the documentary evidence of the admitted trial exhibits, the Court finds that claimant has failed to prove his claim by a preponderance of the credible evidence.
Finally, and conversely, were the claimant's allegations as set forth in his trial testimony fully credited, several correction officers engaged in a coordinated, premeditated, unprovoked, retaliatory, and targeted assault upon claimant by reason of his willingness to discuss another officer's use of force upon another inmate on an earlier occasion. Absent allegations or proof, of which none were either pled or proven at trial, of defendant's negligent training or supervision of facility staff, such a claim would nevertheless fail. (Matter of Sharrow v State of New York, 216 AD2d 844 [3d Dept 1995]).
Claimant has failed to prove his claim by a preponderance of the credible evidence. Accordingly, Claim No. 123345 is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
July 9, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims