Opinion
# 2016-038-105 Claim No. 123949
03-21-2016
DAVID MEDINA v. STATE OF NEW YORK
HELD & HINES, LLP By: James K. Hargrove, Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael C. Rizzo, Assistant Attorney General
Synopsis
Claimant, an individual incarcerated in a State correctional facility, did not prove by a preponderance of the credible evidence that a correction officer was unauthorized to use force, that he did not reasonably believe that the use of force was necessary under the circumstances, or that the degree of force used by him was unreasonable. The Court did not credit claimant's version of the event, and the fact that the CO was a younger and larger man than claimant does not necessarily mean that the use of force was excessive.
Case information
| UID: | 2016-038-105 |
| Claimant(s): | DAVID MEDINA |
| Claimant short name: | MEDINA |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The court has sua sponte amended the caption to reflect the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123949 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | HELD & HINES, LLP By: James K. Hargrove, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael C. Rizzo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 21, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, seeks to recover damages for injuries he sustained as the result of the use of force by a correction officer at Great Meadow Correctional Facility (GMCF) on April 5, 2013. The trial of liability was conducted on July 9, 2015 in Albany, New York. Claimant presented his testimony and that of New York State Department of Corrections and Community Supervision (DOCCS) Correction Officer (CO) Raymond Bardin and Sergeant Jeffrey Nitsche, and Fisher Nesmith, a physician's assistant (PA) formerly employed by DOCCS. Defendant also called Nesmith as a witness. The examination before trial (EBT) transcripts of CO Bardin and Sgt. Nitsche were offered by claimant and are received into evidence, without objection, as Claimant's Exhibits 16 and 17, respectively. Numerous photographic and documentary exhibits were received into evidence, including a DVD recording of video footage of claimant after the incident. After listening to the witnesses testify at trial and observing their demeanor as they did so, and upon consideration of the testimonial evidence and all of the other admitted evidence, the parties' post-trial submissions and the applicable law, the Court concludes that defendant is not liable to claimant.
When the Court held open the record for the post-trial submissions of EBTs, defendant intended to offer claimant's EBT into evidence but has since decided otherwise (see Rizzo Correspondence, dated February 19, 2016).
FACTS
At approximately 9:15 a.m. on April 5, 2013, claimant was incarcerated at GMCF when he went to pick up a package at the package room window. CO Raymond Bardin was the CO assigned to the package room that morning, and the visit room frisk officer Sgt. Jeffrey Nitsche was posted at a desk in the corridor in close proximity to the package room window. Claimant presented his "callout slip" and identification to CO Bardin at the package room window (T:18-19), after which a dispute arose. Sgt. Nitsche used force against claimant in reaction to the dispute, and claimant sustained the injuries that gave rise to this claim. The necessity for the use of force and the degree of the force used is sharply disputed.
At the time of the incident that is the subject of this claim, Sgt. Nitsche was a CO, but was thereafter promoted to the rank of sergeant. He will be referred to as Sgt. Nitsche throughout this Decision.
All references to the trial transcript are designated by "T."
CO Bardin testified that as the package room officer, he opens and inspects packages that are sent to inmates, separates items that are deemed contraband, issues callout slips, and distributes packages to inmates when they report to the package room window. The package room is a secure area from which inmates are prohibited because the room contains box cutters, scissors and other tools that could be used as weapons. The package room window was set within a one-foot thick brick wall that separated the corridor and the package room. The window opening had a hinged door that could be closed from inside the package room. CO Bardin testified that a table that was approximately 16 inches in depth was against the wall directly below the window in the package room, behind which the package officer stood when attending to inmates. CO Bardin testified that the package room window opening was approximately 18 inches wide and between 24 and 32 inches in height. Sgt. Nitsche, who had never been assigned as the package room officer, testified that the table was approximately 30 inches in depth, and that the window opening was 3 foot square. The bottom of the window was approximately 4 feet above the corridor floor, or "about waist height" (Claimant's Exhibit 16, at 53), and below the window in the corridor was a radiator. A pen was attached to a string at the window for inmates to use to sign paperwork. A brick wall ran from the right of the window for approximately five feet, terminating at a set of bars across the corridor. The visit room frisk officer's desk was several feet to the left of the window.
Claimant testified that on April 5, 2013, he was 5 feet 8 inches tall and weighed approximately 140 pounds. He is right handed and was 64 years old on that date. Claimant testified that the package that he went to pick up on that date contained two pairs of sneakers, "munchies," and cosmetics (see T:114), and that when he presented his identification and callout slip to CO Bardin, his package was already on the table. Claimant testified that CO Bardin told him that the package contained only one pair of sneakers, and that claimant was not allowed to have them, along with several other items from the package, because they were not permitted by DOCCS Directive 4911, which governed the types of items inmates could receive. Claimant testified that he had checked Directive 4911 prior to arranging for the shipping of the items to him, and that he responded to CO Bardin:
"[L]et me get this straight, in other words, you're telling me I can't have all the stuff here, but [Directive] 4911 states I can have it. In other words, you're dictating your own policy. Albany went through all the trouble of spending all this money to put Directive 4911 together, and distribute it out throughout the State of New York, so you can dictate your own policies?"
(T:117). Claimant acknowledged that he was unhappy and disagreed with CO Bardin's interpretation of Directive 4911, but testified that he did not raise his voice, that he "was talking to him normally . . . like one man talks to another man" (T:125). Claimant testified that CO Bardin then "went ballistics [sic]" and that "[h]e cursed at me, he called me a dirty [ethnic slur]," told claimant "you don't come here to tell me how to do my job" (T:117), and he "threw his [eye] glasses at me" (id.,) "[striking] me in the chest" (T:133; see also T:132). Claimant testified that in response to CO Bardin's actions "I didn't say nothing. I backed up, and says [']yo, what the hell is wrong . . . what's wrong with you?[']" (T: 126).
Claimant testified that Sgt. Nitsche then "came from behind, punched me in the back of the head, and knocked me down to the ground" and that "when I came to, because I was in a daze, he was smashing my face up against the concrete floor [resulting in a forehead laceration], he smashed my nose, [and] he ripped my [right] arm out of the socket" (T:117-118). On cross-examination, claimant testified that during the alleged beating, Sgt. Nitsche punched him in the rib cage and "all over" and that he "tried to break his [right] knee [and left ankle] by stomping on [them]" (T:143-144). Claimant testified that Sgt. Nitsche "sat on top of me" and handcuffed him so tightly that "I couldn't even feel my fingertips" (T:143). Claimant testified that he had been at GMCF for three months prior to the incident, and that he did not know CO Bardin or Sgt. Nitsche and had no prior disputes with or animosity towards them.
Claimant testified that after the incident he was forced to walk to the infirmary. On cross-examination, he testified that the DVD recording of his escort to and treatment within the GMCF infirmary immediately after the incident would show that he had to be assisted part of the way because he could not use his leg or right ankle, and that the video would further demonstrate that his handcuffs were never taken off in the infirmary, even when his face was being sutured. Claimant testified that he could not lift his right arm as a result of the alleged beating, and that he complied with an order to place his raised hands on the infirmary wall, even though his shoulder was hurting. Claimant testified that he reported all of his medical complaints to the medical staff, and that when he was in the infirmary, "I was confused, I was in pain, and I was - well, you know, I mean, I just got through getting the crap beat out of me, you know" (T:151).
CO Bardin, who stands 5 feet 10 inches tall, testified that when he retrieved claimant's package from the shelf where it was located, a pair of sneakers was separated from the package. Those sneakers were disallowed under Directive 4911 because the inside liners were not sewn closed, thus creating a pocket in which contraband could be secreted.
CO Bardin testified that when claimant first approached the window, his demeanor was "fine," (see T:19), but his attitude changed when he realized that he was not going to get the sneakers. CO Bardin testified that when he tried to explain to claimant that the sneakers did not meet Directive 4911 and described some administrative remedies, claimant's tone escalated and "[h]e just kept hollering, he was going to talk to his attorney, he was going to have his attorney call, and his voice kept getting louder and louder, and more belligerent" (T:20). CO Bardin testified that claimant became very agitated and that he came through the window lunging and swinging his left hand, "knocking my [reading] glasses off [my face] as I sprung backwards" (id.). CO Bardin testified that Sgt. Nitsche pulled claimant from the window, after which CO Bardin lost sight of claimant and Sgt. Nitsche. CO Bardin then heard Sgt. Nitsche order claimant to stop resisting and to put his hands behind his back, but he did not visually observe the use of force by Sgt. Nitsche. CO Bardin testified that he had never seen claimant prior to that day and had no prior disputes with him, and he denied having thrown his glasses at claimant.
On the day of the incident, Sgt. Nitsche was 6 feet 2 inches tall and weighed approximately 235 pounds. Sgt. Nitsche testified that he had been the visit room frisk officer for approximately three years prior to April 5, 2013. While sitting at the visit room frisk officer desk that morning, Sgt. Nitsche observed claimant get into a verbal disagreement with CO Bardin, much like many disagreements between inmates and package room officers he had witnessed on other occasions. Sgt. Nitsche testified that claimant's "loud tone" caused him to stand up from his chair and come around to the front of his desk, approximately five feet from claimant (T:65; 92). Claimant "became very agitated . . . and as he was signing a piece of paper, he became very irate, and all in one motion, leaped or lunged into the package room window with his left hand" (T:65). Sgt. Nitsche testified at his EBT that he saw claimant's head go approximately six inches past the window entry into the package room, but that he did not see claimant's right shoulder pass the point of entry of the window (see Claimant's Exhibit 17, at 128-129). Sgt. Nitsche testified that claimant was "yell[ing] something about his lawyer" immediately prior to lunging into the package room window (T:92).
Sgt. Nitsche testified that he did not see claimant strike CO Bardin, but he assumed that claimant was trying to assault CO Bardin. Sgt. Nitsche did not "know what [claimant's] intentions [were], but if [claimant] gets inside that package room window, and there's box cutters, scissors, there's another door in the back, where he could possibly get past the four gate, we have problems" and that he was "the only officer between letting an inmate try to go through that window. There's no bars on it. It's an open hole" (T:93). Sgt. Nitsche further testified that he assumed that claimant was holding a pen that could be used as a weapon.
Sgt. Nitsche testified that he thought that claimant was trying to assault CO Bardin and that claimant was an immediate danger to the facility, and he immediately pulled claimant from the window by grabbing him by the back of his shirt behind the shirt collar (see T:67; Claimant's Exhibit 17, at 152). Sgt. Nitsche testified that he forced claimant to the right of the window and that claimant's face came into contact with the bars. He then ordered claimant to show his hands because he thought he still had a pen in his hand, but claimant did not comply and was yelling and screaming about his lawyer, so he took claimant to the floor face first. Sgt. Nitsche testified that while he was on claimant's back, he ordered claimant to put his hands behind his back and claimant finally complied. Sgt. Nitsche applied wrist restraints and claimant then became quiet and calm, and he lifted claimant by his shoulders and rolled him over to a sitting position to avoid positional asphyxia from a prone position. Sgt. Nitsche unequivocally denied striking claimant with his hands or fists, and denied kicking or stomping on him. Sgt. Nitsche testified that he was equipped with a baton but did not use it during the incident that day. Sgt. Nitsche testified that he did not recover a pen from claimant.
DOCCS Directive 4944 provides in pertinent part that "[t]he greatest caution and conservative judgment shall be applied in determining . . . whether physical force is necessary . . . and . . . the degree of such force that is necessary" (Claimant's Exhibit 13, at III [A]). Directive 4944 further provides that "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used" and 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: 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" (id., at III [B];[E]). Sgt. Nitsche testified that he had received classroom training regarding the authorized and permissible use of force, and that while he was generally aware of DOCCS Directive 4944:
"[a]s a correction officer for 20 years, as you['re] walking the beat and something happens, you automatically know how to react, what you can and can't do, because of the training that we do annually, classroom style. So, I mean, for me, I don't pull out my directive and read it every day before I go to work. I have enough experience in dealing with use of force, and unruly inmates that I know what I can do and what I can't do when I act"
(T:62-63). Sgt. Nitsche testified that his actions on April 5, 2013 were based upon his experience as a CO and not consciously based upon his classroom instruction (see T:63). CO Bardin testified that following the incident, he and Sgt. Nitsche agreed that claimant was coming through the package room window, and he thanked Sgt. Nitsche for intervening. Sgt. Nitsche testified that CO Bardin brought to his attention that claimant had knocked the glasses off his face. The inmate misbehavior report written by CO Bardin (see Claimant's Exhibit 2) and the Use of Force Report completed by Sgt. Nitsche (see Claimant's Exhibit 3) are both consistent with their later testimony on this claim. An Unusual Incident (UI) Report completed by Lt. R. Birrell gives a similarly consistent description of the incident, and notes that during the incident, "[CO] Bardin[']s glasses were bent beyond repair and will need to be replaced" (Claimant's Exhibit 11).
Claimant was seen in the GMCF infirmary by PA Fisher Nesmith immediately following the incident. According to the Inmate Injury Report and an entry in claimant's Ambulatory Health Record (AHR), claimant suffered one-inch lacerations on his forehead and nose, abrasions and contusions (bruises) on his right elbow and right thumb, minor contusions on the front of his neck and shoulder, his upper chest and upper back, and indentations of the skin on both wrists from the wrist restraints (see Claimant's Exhibit 12; Defendant's Exhibit A). No complaints or injuries of claimant's lower extremities, the back of claimant's head, his ribs, or any right shoulder dislocation were noted. The AHR entry indicates that claimant did not lose consciousness, and that a neurological screening was done and claimant was alert and oriented as to time, place and person. PA Nesmith testified that the records lack any indication that claimant was dazed or confused when he presented on April 5, 2013. X-rays were taken of claimant's face, nose, right hand and elbow, and the lacerations on his forehead and nose were sutured and he was admitted to the infirmary for observation following the incident. It was noted at 11:00 a.m. that he was ambulating independently without difficulty, was in no distress and had no complaints, and that he was alert and oriented as to time, place and person (see Defendant's Exhibit B). It was noted at 1:00 p.m. that claimant had "been up [and out of bed] ambulating [without] difficulty [and had] no complaints" (id.).
The DVD recording offered into evidence by claimant shows him complaining of pain in his head, face, forehead and nose, and that his "whole body" hurt (see Claimant's Exhibit 1, at 9:38:30), and that his back and right hand were also painful. Claimant can be seen ambulating to the infirmary, to the x-ray room, and up stairs without any limp or any other apparent problems in gait. The recording shows claimant repeatedly placing his right hand on the infirmary wall and leaning against the wall while being frisked in the infirmary, and taking off and putting on his socks, all without any apparent pain or distress while doing so. At no time on the recording does claimant specifically complain about pain to his right shoulder or his lower extremities, not even when PA Nesmith put a blood pressure cuff on claimant's right arm or when he rolled over on the x-ray table.
Claimant can be heard on the recording stating "that officer struck me and the other guy hit me from behind and he slapped my face on the floor" (Claimant's Exhibit 1, at 9:40:00 [emphasis added]). When confronted about that statement during cross-examination, claimant testified that he meant that CO Bardin "struck" him by throwing his glasses at him. Upon his arrival at the infirmary, claimant's wrist restraints were removed and remained off except for a brief time during which the restraints were replaced for his trip to the x-ray room. While at the infirmary, claimant was required to remove his shirt, revealing that he had a muscular build and appeared to be in excellent physical condition for his age. Claimant did not seem to be dazed or confused on the recording, rather, he appeared extremely coherent, with a mental state that can best be described as angry and indignant.
DISCUSSION
Employees of DOCCS are permitted to use physical force when an inmate is violent to another, attempts to injure another person, or resists or disobeys a lawful direction of a DOCCS employee (see Correction Law § 137 [5]). Physical force may not be used unless the employee believes that the use of such force is reasonably necessary for self-defense, to prevent personal or property injury, to enforce compliance with a lawful directive, or to quell a disturbance (see 7 NYCRR 251-1.2 [d]). Such a use of force is limited to only the degree of force that is reasonably necessary (see 7 NYCRR 251-1.2 [b]; see also Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]). These precepts on the use of force by DOCCS employees are incorporated in DOCCS Directive 4944 (Claimant's Exhibit 13).
When a State employee uses a degree of force that is not reasonably necessary or is greater than is reasonably necessary, the State may be held liable for any injuries that are sustained by an inmate as a result of that use of excessive force (see Jones v State of New York, 33 NY2d 275 [1973]; Stein v State of New York, 53 AD2d 988 [3d Dept 1976]). "To determine whether use of force was necessary in a specific situation and, if so, whether the force used was excessive or unreasonable, a Court must examine the particular factual background and the circumstances confronting the officers or guards" (Kosinski v State of New York, UID No. 2000-028-0012 [Ct Cl, Sise, J., Nov. 30, 2000], citing Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Quillen v State of New York, 191 AD2d 31 [3d Dept 1993]; Brown v State of New York, 24 Misc 2d 358 [Ct Cl 1960]). It is claimant's burden to prove his claim by a preponderance of the credible evidence (see Tomaino v State of New York, 22 Misc 3d 1013, 1019 [Ct Cl 2008]; Kosinski v State of New York, supra), and the credibility of the witnesses at trial will be a central factor in determining whether excessive force was employed (see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Harvey v State of New York, UID No. 2014-038-102 [Ct Cl, DeBow, J., Mar. 11, 2014]).
To prevail on this claim, it is claimant's burden to demonstrate by a preponderance of the credible evidence that Sgt. Nitsche did not reasonably believe that force was necessary, or if he did, that he employed an unreasonable degree of force. Claimant argues in his post-trial brief that he did not engage in any conduct that would have justified any use of force. He asserts that he was an elderly and vulnerable man of small stature who, although "agitated" by the denial of his sneakers, remained reasonable and unthreatening throughout a conversation with CO Bardin. He argues that the evidence demonstrates that it was physically impossible for him to have assaulted CO Bardin through the package room window, and that he never posed a threat to the security of the facility. He contends that Sgt. Nitsche, who was a significantly larger man than claimant, was either unfamiliar with or disregarded DOCCS Directive 4944 and that he utilized force that was unnecessary and excessive, and he further asserts that the unfamiliarity of defendant's employees with Directive 4944 supports a claim for negligent training and supervision. Defendant argues that claimant's version of events is inconsistent with many other aspects of the evidence adduced at trial and that claimant is not credible, and that the Court should credit the testimony of CO Bardin and Sgt. Nitsche to determine that Sgt. Nitsche's use of force was reasonably necessary and not excessive.
Claimant's post-trial submission includes a diagram of the package room window, the desk behind it, with the height of claimant and CO Bardin purportedly drawn to scale. Defendant objects to the Court's consideration of the diagram on the grounds that it was not offered or received as evidence at trial. Claimant argues that a blackboard may be used during summations and that there was no blackboard present in the courtroom. In reply, defendant concedes that claimant could have used a blackboard during summation, but that claimant did not request to use a blackboard and the diagram should not be used during deliberations. Whether to permit the use of a blackboard or other graphic aids that are not in evidence in support of arguments is a matter of judicial discretion (see 58 NY Jur 2d, Evidence and Witnesses § 436; Johnston v Colvin, 145 AD2d 846, 848 [3d Dept 1988]; Carroll v Roman Catholic Diocese of Rockville Centre, 26 AD2d 552, 553 [2d Dept 1966]). The diagram that claimant has submitted has more of the appearance of evidence than an aid to claimant's summation. Moreover, claimant seeks to use the diagram to demonstrate, that it was not possible for claimant to have hit CO Bardin. This argument is easily made and understood without resort to a diagram, and accordingly, the diagram will not be considered.
At trial, two very different versions of the incident were presented. Claimant testified that he had a mere verbal dispute with CO Bardin, who became enraged and threw his glasses at claimant, who was thereafter brutally beaten by Sgt. Nitsche. CO Bardin and Sgt. Nitsche testified that claimant became irate after not receiving his package and attempted to assault CO Bardin by lunging through the package room window, and that Sgt. Nitsche responded with a use of force to gain control of and subdue claimant. For the reasons that follow, the Court does not credit claimant's version of the events.
Claimant's testimony that CO Bardin became so angry, despite claimant's claimed relatively calm demeanor, that he took off his own glasses and threw them at claimant defies comprehension, and appears to have been concocted to counter defendant's evidence that claimant dislodged CO Bardin's glasses. Secondly, claimant's testimony that Sgt. Nitsche, an officer whom he had not previously met, punched him in the back of the head and brutally assaulted him in the context of a mere verbal dispute strains credulity. In other words, claimant's testimony that depicts himself as a relatively mild individual to whom Sgt. Nitsche reacted in an unwarranted and violent manner is not credible. Moreover, claimant's effort to portray himself as calm and civil is not compelling to the Court, who at trial observed claimant display an assertive, excitable and confrontational temperament.
Even if the Court were inclined to credit claimant's testimony regarding the COs' actions, his testimony about the injuries he sustained, his experience in the infirmary and his mental state following the beating is contradicted by the documentary and video evidence. In the recording, claimant makes specific complaints about his forehead and nose, and makes only vague references to other injuries over his "whole body" (Claimant's Exhibit 1, at 9:38:30). Claimant testified that he was punched in the back of the head and ribs and that Sgt. Nitsche intentionally stomped on his right knee and left ankle, but no complaints by claimant of any such injuries were made to PA Nesmith during the DVD recording, and no evidence of such injuries appears in claimant's AHR or in the video recording or still photographs of him. Claimant's testimony that he was assisted in walking to the infirmary because of injuries to his legs is directly contradicted by the video recording, in which claimant ambulates without assistance and without obvious difficulty or pain, and by the medical records that showed that he ambulated without difficulty. Similarly, claimant's testimony that his arm was ripped out of its socket is not supported by the video recording, in which claimant showed no apparent distress when moving or using his right arm in numerous situations including lifting his arms to place and keep his hands against the infirmary wall. Claimant's testimony that he was constantly in wrist restraints when he was in the infirmary is directly contradicted by the video recording. The arguments that seek to portray claimant as a weak and elderly man are contradicted by the photographic and video evidence, which reveals claimant to be muscular and remarkably fit for his age. All of these glaring inconsistencies between claimant's testimony and the objective evidence severely undermines claimant's overall credibility.
Finally, claimant's testimony during trial seemed exaggerated and contrived. Because of the many deficiencies noted above, claimant's testimony that he was merely having a "man-to-man" conversation with CO Bardin and did not raise his voice is extremely difficult to credit, especially in view of his demeanor at trial. In sum, the Court finds that claimant was not a believable witness, and does not credit his version of the incident.
Claimant's contention that there was no "incident" justifying the use of force because the evidence of the layout and dimensions of the package window, the wall and the table demonstrate that claimant could not have leapt through the package room window and hit CO Bardin's glasses (Claimant's Post-trial Brief, at 16-17) is unpersuasive because it rests upon selective and incomplete evidence. Specifically, claimant argues that the table inside the package room between CO Bardin and the package room window was 30 inches in depth and the wall was 12 inches thick, so claimant would have had to extend his arm a minimum of 42 inches to reach CO Bardin, which was highly unlikely considering claimant's "diminutive" stature (Claimant's Post-trial Brief, at 10). Claimant further argues that the officers' version is impossible to believe in light of CO Bardin's testimony that he sprang backward when claimant lunged, thus increasing the distance between the two men, and also that claimant swung with his left hand even though he is right handed.
Claimant's argument relies on Sgt. Nitsche's estimate that the depth of the table was the 30 inches, but ignores CO Bardin's estimate of 16 inches, which the Court finds to be more reliable considering that he was the package room officer who was stationed behind the table in the package room while Sgt. Nitsche had never worked in the package room. Thus, the minimum distance between claimant and CO Bardin is found to have been only 28 inches, not 42 inches. Further, other than CO Bardin's location at a position in the package room that allowed him to interact with claimant, there was no evidence adduced as to where CO Bardin was standing during the incident, so the width of the table is not necessarily probative of the distance between claimant and CO Bardin. To illustrate, it is indeed possible that CO Bardin was standing up against the table and leaning over it, and it is conversely possible that CO Bardin was standing a distance behind the table and/or leaning back. Claimant's contention that his "diminutive" height of 5 foot 8 inches made it extremely unlikely that he could have knocked the glasses off of CO Bardin, who measured five feet 10 inches tall, is mere speculation because claimant has offered no evidence relative to other considerations, such as the length of claimant's left arm, and ignores the evidence that claimant lunged into the package room window. Claimant further asserts that the COs' testimony that he struck with his left hand is not credible because he is right handed, but that argument ignores the credible testimony that claimant was signing paperwork and had a pen in his right hand during the incident, and more importantly, there was no proof of any inability to swing with his left hand. Finally, and most importantly, CO Bardin and Sgt. Nitsche testified with the demeanor of credible witnesses, and their versions were for the most part consistent with each other's testimony and the documentary and photographic evidence, and the Court specifically credits their testimony that claimant lunged into the package room window.
In sum, the preponderance of the credible evidence does not demonstrate that claimant's conduct could not have been perceived as a threat by Sgt. Nitsche. Rather, the credible evidence preponderates in favor of the finding that claimant, upset over what he viewed as improper denial of his sneakers and CO Bardin allegedly ignoring Directive 4911, and perhaps CO Bardin's verbal response to him, allowed his anger to escalate to the point where he lunged into the package room window. Observing this, Sgt. Nitsche had ample reason to believe that claimant was attempting to assault CO Bardin and was a threat to institutional security. Thus, the Court finds that Sgt. Nitsche reasonably believed force was necessary, and was therefore authorized to use force on claimant to subdue and restrain him.
Turning to whether Sgt. Nitsche's use of force was reasonable, the Court credits Sgt. Nitsche's testimony that he forced claimant from the window and face first into the bars, that claimant continued to resist, that Sgt. Nitsche believed that claimant may have had a pen that could be used as a weapon and that he ignored an instruction to show his hands, and that Sgt. Nitsche took claimant to the floor in an effort to attempt to control and restrain him. The lacerations to claimant's nose and forehead and the bruising noted on his upper torso are consistent with Sgt. Nitsche's account of the manner and degree of force to which he testified. Under the circumstances presented, the preponderance of the credible evidence demonstrates that the force used by Sgt. Nitsche was reasonable inasmuch as he reasonably believed claimant had a pen that could be used as a weapon and claimant would not show his hands, and it does not support a finding of excessive use of force.
Claimant's argument that the force was excessive because Sgt. Nitsche was younger, six inches taller and 100 pounds heavier than the 64 year-old claimant is unpersuasive. Whether a CO used excessive force cannot be determined simply by the comparative size of the CO and the inmate, but rather upon whether all of the circumstances attendant to the incident permit the conclusions that the degree of force was reasonable. Claimant's further argument that Sgt. Nitsche violated DOCCS policy because he reacted immediately to the perceived threat without any exercise of considered judgment about the use of force does not necessarily establish non-compliance with Directive 4944, because that directive does not require a CO to pause and ponder the scope of the Directive before using force in the context of rapidly unfolding events. Rather, all that is required is that the force that is used is shown to have been reasonable and necessary considering the circumstances, which is the case here.
Finally, to the extent that claimant argues that defendant should be found liable for the negligent training and supervision of its employees because Sgt. Nitsche and CO Bardin were unfamiliar with DOCCS policy governing the use of force, the preponderance of the credible evidence establishes that the officers were generally familiar with the policy, although they could not cite it chapter and verse. Even if they were insufficiently familiar with the policy, however, claimant has not demonstrated defendant's liability upon this theory because there was no proof adduced that either officer was acting outside the scope of his employment, that DOCCS knew or reasonably should have known of their propensity to engage in the conduct that caused claimant's injuries, or that the alleged negligent training and supervision was a proximate cause of claimant's injuries (see Gray v Schenectady City School Dist., 86 AD3d 771, 773-774 [3d Dept 2011]).
Any other causes of action that are asserted in the claim were unsupported by evidence or argument at trial or in claimant's post-trial brief, and accordingly, they will not be addressed. --------
CONCLUSION
Claimant did not prove by a preponderance of the credible evidence that Sgt. Nitsche was unauthorized to use force, that he did not reasonably believe that the use of force was necessary under the circumstances, or that the degree of force used by him was unreasonable. Accordingly, defendant is not liable to claimant, and claim number 123949 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
March 21, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims