Opinion
# 2017-054-015 Claim No. 124219
11-20-2017
BOBBY LANGO v. THE STATE OF NEW YORK
BOBBY LANGO Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Douglas R. Kemp, Assistant Attorney General
Synopsis
Excessive force by correction officer, no medical evidence.
Case information
| UID: | 2017-054-015 |
| Claimant(s): | BOBBY LANGO |
| Claimant short name: | LANGO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124219 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | BOBBY LANGO Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 20, 2017 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The trial of this matter was heard on November 6, 2017 via video conferencing technology.
Claimant testified to the following facts that he alleges occurred during his incarceration at Eastern NY Correctional Facility. On March 18, 2014, claimant had a verbal exchange with Correction Officer Helmich. Helmich then grabbed claimant by the arm, took him into the porter room, and told claimant that he had a big mouth. Claimant turned his head and Helmich punched claimant on the left side of his face. Claimant fell to the floor. As claimant lay on the floor, Helmich continued to punch claimant in the head "10 times, give or take." Correction Officers Landon and Santiago responded to the porter room and had to pull Helmich off claimant. Landon then assisted claimant to his feet and Helmich radioed for backup.
All quotations are to the trial audio recording unless otherwise indicated. --------
Helmich bent claimant's left wrist back as he was handcuffed and the cuffs "cut into" claimant's wrist. Helmich then took claimant out of the porter room and Landon left the area. In response to Helmich's call for backup, Sergeant DiCairano responded to the scene. While in the Sergeant's presence, claimant informed Helmich that he was going to break claimant's wrist and Helmich responded, "[t]hat's not all I'm going to break. I'm going to crack your head." At that point, the Sergeant escorted claimant to the medical unit.
Claimant testified that Helmich's act of bending claimant's left wrist caused claimant to have wrist surgery on August 17, 2014.
Claimant reported to Nurse Barnes that he had been punched on the left side of his face (Ex. 3). Barnes noted in claimant's Ambulatory Health Record that claimant denied pain in his jaw and that medical intervention was not needed (id.). A full body assessment of claimant was done in his boxers and Barnes noted "no visible injuries" (id.).
Sergeant DiCairano completed an Inmate Injury Report on March 18, 2014, which included a Facility Health Service Report completed by Nurse Barnes (Ex. 2). Barnes noted "slight swelling" to claimant's left jaw area, range of movement to claimant's jaw was not limited and claimant had no complaint of pain to his left jaw (id.). Regarding the full body assessment, it was noted, "all skin intact" (id.). No medical intervention was needed. Barnes also completed a Use of Force Report on March 18, 2014, which was consistent with the details of the Inmate Injury Report (Ex. 1).
Following the incident, claimant was issued a Misbehavior Report for failing to follow a direct order, assault on staff, violent conduct, creating a disturbance, and refusing a frisk (Ex. 4). The Misbehavior Report detailed that, during a pat frisk in the porter room, claimant spun off the locker and attempted to punch Correction Officer Helmich. In response, Helmich pushed claimant in the chest area to avoid being hit. Claimant continued to swing his arms in the direction of Helmich as he and Correction Officer Landon tried to gain control of claimant's hands. Landon and Helmich gained control of claimant's wrists and placed claimant face forward against the locker as Helmich handcuffed claimant. Claimant continued to struggle, yelling and screaming while being escorted from the porter room (Ex. 4). Claimant was found guilty of all charges (Ex. E). While claimant testified that the details set forth in the Misbehavior Report were not completely accurate, he did not specify which details of the report were inaccurate.
Photographs of claimant taken on March 18, 2014, including claimant's face and wrists, were received into evidence (Ex. 6).
Correction Officer Helmich testified that while claimant was in a position against the lockers for a pat frisk, claimant suddenly turned from the lockers and swung a closed fist at Helmich. Helmich pushed his hands against claimant's chest to avoid being hit by claimant. Claimant and Helmich then fell over mop buckets and into the slop sink area. Claimant continued to be combative as Correction Officers Helmich and Landon attempted to gain control of claimant. Landon held claimant against the lockers as Helmich handcuffed claimant.
Helmich testified that he used only the force necessary to keep claimant from assaulting him. Helmich denied ever punching claimant or seeing anyone else punch claimant. After the incident, claimant was immediately taken to the medical unit. At the Court's direction, Helmich read into the record the memorandum that he had prepared on March 18, 2014, detailing the incident (Ex. B). The memorandum stated that Helmich never punched claimant or told claimant that he was going to crack his head.
Correction Officer Landon testified that he observed Correction Officer Helmich escorting claimant into the porter room. He proceeded into the porter room behind them and observed Helmich direct claimant to put his hands on the locker for a pat frisk. As soon as claimant put his hands on the locker, claimant spun to his left with a right clenched fist in an attempt to punch Helmich. Helmich responded by placing his hands on claimant's chest and pushing him away. Helmich and claimant fell over mop buckets, into the slop sink area, and onto the floor. Landon then grabbed claimant from the floor and held him against the lockers as Helmich handcuffed claimant. Landon testified that claimant continued to struggle after the handcuffs were applied by trying to pull away from Helmich. Landon never observed Helmich punch claimant or use any force other than pushing claimant against his chest. Helmich and Landon escorted claimant from the porter room.
At the Court's direction, Landon read into the record the memorandum that he had prepared detailing the incident (Ex. C). The memorandum stated that Helmich never punched claimant and there was no need to pull Helmich off claimant. Analysis
Correction officers may, under certain circumstances, use physical force where the officer "reasonably believes that the physical force to be used is reasonably necessary . . . to enforce compliance with a lawful direction" (7 NYCRR 251-1.2 [d]); however "only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]). The Court's determination of whether the use of force was excessive is in large measure determined by the credibility of the witnesses (see Shirvanion v State of New York, 64 AD3d 1113 [3d Dept 2009] [deference accorded to trial court's findings of excessive force where determination was based largely on credibility]; (Wester v State of New York, 247 AD2d 468 [2d Dept 1998] [great weight should be accorded trial Court's determinations where issue of excessive force rests upon resolution of issues of credibility and assessment of weight of evidence]).
Upon review of all the evidence presented at trial, including listening to the witnesses testify and observing their demeanor as they did so, the Court makes the following findings. In assessing the witnesses' credibility, the Court notes that Correction Officer Helmich displayed an arrogant demeanor while also avoiding eye contact and that he conducted himself in a manner indicative of a defensive posture. Additionally, Helmich's testimony was given in a curt and rapid manner, which necessitated the Court's direction that he speak more slowly and provide a more responsive answer to the question posed. Helmich's demeanor and the manner in which he testified detracted from his credibility. Correction Officer Landon, on the other hand, was forthright and credible in his description of the incident and the details regarding how the matter had unfolded.
Claimant testified that he was punched in the face with such force that he fell to the floor and that as he lay on the floor, Helmich continued to punch claimant in the face approximately 10 times until Landon and Santiago arrived at the scene and pulled Helmich off claimant. Claimant's version of the facts, however, are not supported by the photographs of claimant and the records in evidence which were prepared on the date of the incident.
While claimant's Ambulatory Health Record notes that claimant stated that he was punched on the left side of his face, the record is devoid of any mention of the numerous additional punches that claimant purportedly sustained while on the floor (Ex. 3). Further, despite the amount of force described by claimant in his testimony, the Ambulatory Health Record (id.), the Inmate Injury Report (Ex. 2) and the Use of Force Report (Ex. 1) indicate that immediately after the incident, claimant had only "slight swelling" to his left jaw, that claimant denied any pain in his jaw, and that claimant's full body assessment showed "no visible injuries" and his skin was intact.
Additionally, it is significant to the Court's determination of claimant's credibility that there is no notation that claimant ever complained of wrist pain when he was examined by Nurse Barnes immediately following the incident (Ex. 3). The Inmate Injury Report (Ex. 2) and the Use of Force Report (Ex. 1) are devoid of any mention of claimant's complaint of wrist pain or any injury to claimant's wrists on March 18, 2014. Furthermore, the photographs do not show any apparent wrist injury consistent with claimant's testimony that the handcuffs had cut into his wrist; nor was there any indication of any swelling to claimant's wrist consistent with claimant's testimony of the intense pressure applied with the handcuffs (Ex. 6).
Most significantly, there is a lack of any medical evidence establishing a causal connection between claimant's wrist surgery on August 17, 2014 and a use of force applied to claimant's wrist when he was handcuffed on March 18, 2014. Absent evidence from either a treating physician or a medical expert, claimant's unsubstantiated assertions and speculations are insufficient to meet claimant's burden of establishing that an excessive use of force caused or contributed to claimant's need for wrist surgery five months after the incident (see Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]).
Accordingly, the Court finds that claimant failed to meet his burden of proving by a preponderance of the credible evidence that Correction Officer Helmich used excessive force.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 124219.
November 20, 2017
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims