From Casetext: Smarter Legal Research

Romance v. State

New York State Court of Claims
Mar 18, 2015
# 2015-038-103 (N.Y. Ct. Cl. Mar. 18, 2015)

Opinion

# 2015-038-103 Claim No. 117475 Motion No. M-85801

03-18-2015

RAVON ROMANCE v. THE STATE OF NEW YORK

RAVON ROMANCE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General


Synopsis

Case information


UID:

2015-038-103

Claimant(s):

RAVON ROMANCE

Claimant short name:

ROMANCE

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

117475

Motion number(s):

M-85801

Cross-motion number(s):

Judge:

W. BROOKS DeBow

Claimant's attorney:

RAVON ROMANCE, Pro se

Defendant's attorney:

ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General

Third-party defendant's attorney:

Signature date:

March 18, 2015

City:

Saratoga Springs

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that he was assaulted by four correction officers in a room at the infirmary at Upstate Correctional Facility (CF) on March 17, 2009. The trial of this claim was conducted by videoconference on July 17 and July 22, 2014, with the parties appearing at Upstate CF in Malone, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony, as well as that of Office of Mental Health (OMH) employee Timothy Kemp and Department of Corrections and Community Supervision (DOCCS) Correction Officers (COs) Wallace Jock, Jason Monacelli, Brian Marsh, Richard Bond and Sergeant Ted Howard. Defendant presented the testimony of CO George Martin and DOCCS Registered Nurse Rodney Cook. Fifteen of the eighteen exhibits that were offered by claimant were received into evidence, all five of the exhibits offered by defendant were received into evidence, and the parties were given a schedule for post-trial submissions. After listening to all of the testimony, and observing the witnesses as they testified, considering the testimonial evidence, the admitted documentary evidence, the parties' oral arguments, and their post-trial submissions, the Court concludes that, although claimant sustained injuries in some manner, he has not proven by a preponderance of the credible evidence that he was the victim of a prolonged and brutal gang attack.

Defendant's objections to Claimant's Exhibits 10 and 12, upon which the Court reserved decision at trial, are hereby overruled and those exhibits are received into evidence.
Claimant made a posttrial motion (M85801) seeking reconsideration of a trial ruling and preclusion of consideration of defendant's posttrial submission. For the reasons that follow, the motion is denied in its entirety.
At the close of trial, the Court required posttrial submissions, and directed that each brief be served and filed by dates certain. Claimant's first submission was timely received. Defendant's counsel thereafter requested a three week extension of the remainder of the posttrial schedule, which request was granted. Claimant made the instant motion on September 24, 2014, two days before the original due date for defendant's initial submission, and defendant's posttrial submission was thereafter received prior to the extended deadline. The motion nevertheless seeks to preclude consideration of that posttrial submission. However, defendant's counsel timely sought and was granted an extension of time for its posttrial submission, and claimant offers no persuasive argument why the Court should not have exercised its discretion to extend the deadlines upon defendant's timely request. Accordingly, that part of claimant's motion that seeks to preclude defendant's submission of a posttrial brief is denied.
Turning to that part of claimant's motion requesting reconsideration of the Court's trial ruling sustaining defendant's hearsay objection to claimant's offered Exhibit 13, a sworn affidavit of an inmate who avers that he was in Room 4 of the Infirmary and witnessed and heard some of the events on the evening of March 17, 2009. Claimant has not argued that the exhibit is being offered for a nonhearsay purpose, and he clearly seeks to have the exhibit admitted to prove the truth of the matters asserted therein, rendering the affidavit classic hearsay material. Although claimant has cited a number of federal and state decisions in support of his motion, those decisions deal primarily with constitutional Confrontation Clause issues. Claimant offers no authority addressing the admissibility of this affidavit under an exception to the rule against hearsay exception nor any other basis upon which the affidavit should be admitted into evidence. To the extent that claimant argues that the affidavit should be admitted because the affiant is unavailable, his assertions of the affiant's unavailability are insufficient to establish unavailability. Further, there is no hearsay exception based solely on the unavailability of the witness, and even if there were, claimant has failed to make any showing as to the reliability or trustworthiness of the hearsay statements. Accordingly, upon reconsideration of its ruling sustaining defendant's objection, the Court adheres to its trial ruling and claimant's Exhibit 13 will not be received into evidence.

Claimant was transferred into Upstate CF on February 6, 2009 and, after threatening to kill himself if he was kept at Upstate CF, he was transferred to Great Meadow CF on February 24, 2009. Claimant was returned to Upstate CF on March 10, 2009, and on March 11, 2009, after he was observed to have engaged in suicidal behavior, he was confined to Room 9 in the Upstate CF infirmary on OMH Special (Suicide) Watch (see Defendant's Exhibit B [Notes dated 3/11/09 and 3/12/09]) where he remained until March 26, 2009 (id. [3/26/09]). As discussed in greater detail below, claimant testified that on March 17, 2009, four COs entered Room 9 and viciously assaulted him, resulting in a fractured rib and a collapsed lung.

An inmate may be placed on Special Watch after he has exhibited suicidal behavior or tendencies, to assess his mental health and to protect against suicide through constant observation. A Special Watch Officer sits at a desk outside of the room in which the inmate is confined and records observations of the inmate in a Special Watch logbook every fifteen minutes, or more frequently as events dictate. Inmates on Special Watch are issued a mattress, a suicide blanket, a smock and paper slippers, and are not allowed to have any personal items in the room with them. Room 9 contained a bed that was bolted to the floor, a toilet, a sink, and an enclosed shower stall, that was between 4 to 9 square feet in dimension and contained a seat or bench; all items and appurtenances within the room were made of steel and were not detachable. A Special Watch Officer has a virtually complete view of Room 9 except for the space inside the shower, which is partially obscured and is visible only through a 6 inch by 6 inch window. The CO who is posted as the Infirmary Officer is the only individual who may unlock and open the doors to the Special Watch rooms, unless otherwise directed by a supervisor.

Claimant testified that he was fasting because he wanted to see a doctor and a doctor visit would be required if he did not eat nine consecutive meals. On March 17, 2009, he asked CO Marsh, the Infirmary Officer on the 2:00 p.m. to 10:00 p.m. tour, how many meals he had missed, and claimant protested when CO Marsh responded that he had eaten lunch that day. Claimant testified that Sgt. Howard, the area supervisor for the infirmary and 12 Building on 2:00 p.m. to 10:00 p.m. tour, subsequently appeared at the infirmary, spoke to OMH Unit Chief Timothy Kemp, and then visited claimant in Room 9 and inquired of claimant whether there was any problem. Claimant told Sgt. Howard about the disagreement about whether he had eaten lunch, and Sgt. Howard thereafter spoke with Kemp and CO Jock, the Special Watch Officer assigned to claimant at that time. Claimant testified that Sgt. Howard returned and told claimant "I'm tired of your [expletive]. I'll be back to deal with you later."

All quotations are to the Court's trial notes or the digital audio recording of the trial, unless otherwise indicated.
--------

Claimant testified that at approximately 7:00 p.m. that evening, he was lying on the bed in Room 9 when he saw CO Marsh put a blanket over the window to the door of Room 4, which was directly across from Room 9. Claimant testified that a bald-headed CO who he later learned was CO Monacelli looked through the window of Room 9, "sized him up" and put on gloves. Claimant testified that Sgt. Howard then got the keys to his room from CO Marsh, and Sgt. Howard and COs Jock, Marsh and Monacelli rushed into the room and began "beating on him," with CO Monacelli holding onto claimant and Sgt. Howard "pounding" on his side. Claimant testified that Sgt. Howard wanted him out of Special Watch because he had been there for over one month, and that during the assault Sgt. Howard told claimant that he should tell OMH staff the next day that he wanted to go back to his own cell. Claimant testified that Sgt. Howard continued punching him and he was eventually dropped to the floor, at which point Sgt. Howard said that it was "not enough." The assault resumed, with COs Jock and Marsh punching and kicking him, with CO Jock landing kicks to his back. Claimant testified that the assault lasted between 7 to 10 minutes and that when Sgt. Howard told claimant to stand up after the assault ended, he could not move because his ribs were in extreme pain.

At trial, Sgt. Howard and the three COs who allegedly took part in the assault had limited recollections of their activities on the 2:00 p.m. to 10:00 p.m. tour on March 17, 2009, and their testimony about the events of that day was based largely upon logbook entries and memoranda completed in response to an investigation into the alleged assault. However, all of these witnesses unequivocally denied that they entered Room 9 and assaulted claimant that day.

CO Jock's entries in the Special Watch log book on March 17, 2009 note that between 4:15 and 4:45 p.m., claimant was "pacing cell," was "[defecating] down cell" and "banging on door," and that at 5:00 p.m. Sgt. Howard talked to claimant (Claimant's Exhibit 16, at p. 214). CO Marsh noted in the Infirmary Officer's logbook that at 4:42 p.m. "water off in OMH Rm 9 Romance threating [sic] to flood cell" (Claimant's Exhibit 18). Subsequent entries in the Special Watch logbook state that during the hour from 5:15 p.m. to 6:15 p.m., claimant was "painting window w/scraped paint and water," and was "pounding on door," "pacing in cell," "kicking corner of bed," and was "banging on shower Sgt. notified" (Claimant's Exhibit 16, at p. 214). It was noted that from 6:30 p.m. to 8:00 p.m. he was "laying down on floor" (id.). The Special Watch logbook entries state that between 8:15 p.m. and 8:45 p.m. claimant arose and was "pacing" and "jumping on bed" and that from 8:45 p.m. to 9:45 p.m. when CO Jock went off duty he was again "laying on floor" (id.). The first entry in the Special Watch logbook by CO Denyour when he came on duty at 9:45 p.m. states that claimant was "laying on floor on mattress kicking toilet and yelling 'Theo' " (id.). In a memorandum dated March 20, 2009 to Lieutenant Mitchell, Sgt. Howard stated that he was informed by CO Jock that claimant "was spreading an unknown substance on [OMH] room windows and kicking the door repeatedly" and that he "interviewed [claimant] regarding his behavior, [claimant] stated he had no problem with security staff and did not wish to discuss anything further. At no time did any staff member enter [claimant's] room for any reason; at no time was [claimant] assaulted by any staff member" (Defendant's Exhibit A).

CO Jock testified that he did not observe claimant trying to harm himself that evening, that there was no logbook entry noting such, and that he did not know how claimant sustained a fractured rib. CO Jock testified that the shower had a small window and if claimant injured himself in the shower he might not have been able to see it. CO Jock did not recall whether claimant appeared to be injured after he had been banging on the shower at 6:15 p.m., and he did not recall whether Sgt. Howard came to speak to claimant after being notified of claimant's behavior at 6:15 p.m. CO Jock testified that he did not observe CO Marsh put a blanket over the window to the door to Room 4.

CO Marsh testified that he shut off the water to Room 9 because CO Jock had told him that claimant had tried to flood the room. CO Marsh denied that he put a blanket over the window to the door to Room 4, and denied that he let anyone into Room 9. He testified that no one entered or exited Room 9 that evening, and he did not recall seeing CO Monacelli that evening. Based upon entries in the Infirmary Officer's logbook, CO Marsh testified that he left the infirmary at 5:14 p.m., when he was relieved by CO Bond, and he returned to his post at 6:10 p.m. He testified that based upon his review of the logbook, he believed that CO Jock had told him that claimant had tried to hurt himself that evening.

Sgt. Howard did not recall telling claimant to tell OMH staff that he wanted to get off Special Watch and go back to his cell. Nor did he have any specific recollection of interacting with claimant at 5:00 p.m. as was indicated in the Special Watch logbook, but he assumed he had done so during his rounds. Sgt. Howard went to the infirmary after being notified at 6:15 p.m. that claimant was banging on the shower and he testified that whether he would have come to the infirmary after being notified of such behaviors would have depended upon whether the inmate was attempting to injure himself, and that there was no record in the logbook that claimant was attempting to harm himself that evening.

CO Monacelli, who is bald-headed with a muscular build, testified that he was assigned as an escort officer to Building 12 during the 2:00 p.m. to 10:00 p.m. tour on March 17, 2009, but that he had very little recollection of the events of that day. CO Monacelli testified that had he left his post at 12 Building that day, he would have obtained permission to do so, but he recalled neither going to the infirmary nor getting permission to do so. CO Monacelli testified that if he had gone to the infirmary that day it would have been to escort a prisoner to the infirmary for a "med run," or if he himself felt sick.

A video recording of the entrance into the infirmary from 6:00 p.m. to midnight on March 17, 2009 was received into evidence as Claimant's Exhibit 8. The video display includes views from three separate cameras, along with a display of the date and time. One camera view shows what appears to be an automated gate that secures the infirmary at the end of a hallway that ends in a "T" intersection with a corridor outside the infirmary. The gate opens into the corridor that runs perpendicular to the infirmary hallway that leads to the gate. The other two camera views are of the corridor outside the infirmary, and they show individuals approaching and departing from the infirmary. The angles of the camera and the quality of the images render it difficult to identify any particular individual entering or exiting through the infirmary gate. However, an individual appearing to resemble CO Marsh passes through the gate into the infirmary at approximately 6:12 p.m., the time at about which he testified that he returned to the infirmary. At approximately 7:01 p.m., a CO with dark hair in a white shirt that appears to have sergeant bars on the shoulder walks through the gate into the infirmary, followed at approximately 7:17 p.m. by a bald-headed, muscularly-built bald-headed CO. At approximately 7:55 p.m. and 8:01 p.m. respectively, COs of similar appearance exit the infirmary. However, given the angles and quality of the video recording, a viewer cannot conclude that these COs were the same officers who previously entered the infirmary, nor whether they were Sgt. Howard and/or CO Monacelli.

Claimant testified that after the assault, he lay on the floor in pain, and he told CO Jock at the end of his tour that his ribs were broken and he needed to "see medical." According to claimant, CO Jock said that his ribs were not broken, just bruised. Claimant testified that he was on the floor all night and was in pain, spitting up and urinating blood. An entry in the Special Watch logbook by Registered Nurse Rodney Cook at 11:05 p.m. on March 17, 2009, notes that "medical rounds made concerns raised" (Claimant's Exhibit 16, at p. 215). A memorandum prepared by Cook on March 23, 2009 noted that on "3-18-09, during medical rounds, [claimant] voiced no medical concerns. [Claimant] noted to be lying on his mattress covered up with his smock in the corner of the room over by the toilet" (Defendant's Exhibit E). Claimant testified that he called the nurse when he saw her the morning after the assault, but she laughed and continued walking. According to claimant's ambulatory health record (AHR), at 6:30 a.m. on March 18, 2009, he was "awakened for sick call refused when offered lying on mattress on floor with blanket on" (Claimant's Exhibit 11 [March 18, 2009 6:30 a.m. entry]; see also Claimant's Exhibit 16, at p. 215, [6:30 a.m. entry ("sick call offered")]).

Claimant testified that he told Kemp about the assault on March 18, 2009. Kemp testified that when he visited claimant in Room 9 that date, claimant was sitting on the floor with his knees up, and that when Kemp asked him "what's going on," claimant replied that he was sore and hurt and that the COs had assaulted him. Kemp reported the incident to medical staff and the Upstate CF Superintendent (see Defendant's Exhibit A), and claimant was seen by Dr. Weissman later that day. Lt. Mitchell was assigned to conduct an Unusual Incident (UI) investigation and a UI Report was subsequently issued on March 27, 2009 (see Defendant's Exhibit A).

Claimant testified that when he saw Dr. Weissman and a nurse on March 18, 2009, he told them that his side was very sore. Dr. Weissman ordered x-rays at 1:30 p.m. that day, and the x-rays came back at 2:30 p.m. "negative" with "no fractures noted" (Defendant's Exhibit A [March 18, 2009 Inmate Injury Report]). A separate entry in claimant's AHR at 1:40 p.m. on March 18, 2009 states "no acute fracture noted" on x-rays (see Claimant's Exhibit 11 [March 18, 2009 13:40 entry]). The UI Report notes that the x-rays were originally negative with no fractures noted, but that after the x-rays were sent to Alice Hyde Medical Center (AHMC) they showed a "hair-line fracture of his 11th rib on his right side and a small pneumothorax" (Defendant's Exhibit A; see also Lt. Mitchell Memorandum to Capt. Quinn, dated March 19, 2009; Claimant's Exhibit 2), and an Inmate Injury Report completed the next day reflects those diagnoses (see Defendant's Exhibit A [March 19, 2009 Inmate Injury Report]). Defendant admitted during pre-trial discovery that claimant was told by Dr. Weissman on March 20, 2009 that he had a fractured rib and a collapsed lung (see Claimant's Exhibit 6, ¶ 6). There was no evidence adduced at trial as to the meaning of these diagnoses, the severity of such injuries, or the types or degrees of force that might have caused such injuries. Claimant's medical records in evidence do not reference any complaints or observations of claimant spitting up or urinating blood.

Claimant testified that he had been assaulted by correction officers on three prior occasions at Upstate CF, none of which had resulted in the type of injuries he suffered in the assault at issue. Claimant testified that after the instant incident, Captain Quinn visited him in Room 9, and claimant told him that the COs had "jumped him" after a prior complaint of assault, to which Capt. Quinn replied that if claimant did not complain, the COs would not come into his room any more. Claimant testified that an investigator subsequently visited him to discuss the assault, but that he said nothing about the assault because he did not want to get "jumped again." Claimant testified that Lt. Mitchell subsequently visited him and offered him a deal that came "straight from the Superintendent," that if he made no complaints about the assault and pleaded guilty to Tier III tickets that were pending against him, he would not receive any additional disciplinary time and that when he came off Special Watch he would be transferred out of Upstate CF. Claimant testified that he pleaded guilty to the Tier III tickets, received no added disciplinary time and that he was subsequently transferred to Great Meadow CF. Claimant offered no documentary evidence to corroborate his testimony regarding the Tier III tickets, his plea, or the disposition(s) of them.

As part of the UI investigation, seven photographs of claimant clad only in his boxer shorts were taken on March 18, 2009 at 2:15 p.m. (see Claimant's Exhibit 1). A bruise or abrasion in the area of claimant's shoulder blades is visible on three photographs (id. at 4, 6 and 7), and the right side of his torso appears to be reddened (id. at 3). No other bruising or abrasions of claimant's torso are apparent in the photographs. A memorandum from Lt. Mitchell to Capt. Quinn states that during an interview in the infirmary on March 18, 2009, claimant "stated he had no problems with security staff and offered no information regarding the alleged incident" (Defendant's Exhibit A). The UI report states that no force or weapon was involved in the incident, and that the cause of claimant's injuries was "accident - other" (id.).

There are no detachable objects in the Special Watch rooms with which an inmate could cause harm to oneself, but Sgt. Howard testified that he knows of instances in which inmates have injured themselves by slamming themselves onto the bed or the bench in the shower, or by banging themselves up against the door.

Kemp testified that doing harm to oneself and threatening suicide are two different concepts, and that an individual who harms himself by breaking a bone by punching a wall or kicking a hard item is not necessarily at risk for suicide. Kemp further testified that an inmate who has harmed himself in a Special Watch room is not necessarily barred from release into general population. On March 26, 2009, nine days after the alleged assault, Kemp determined that claimant no longer showed signs of suicidal behavior, and he was released to general population (see Defendant's Exhibit B [March 26, 2009 entry]).DISCUSSION

At trial and in his post-trial submission, claimant suggested that defendant is liable for negligent hiring and for failing to follow DOCS Directive 4101 governing inmate suicide prevention (see Claimant's Exhibit 14). However, no causes of action sounding in negligence are asserted in the claim, and no proof was offered at trial that would support such causes of action. The claim that was filed by claimant and the proof at trial allege and clearly relate to the intentional torts of assault and battery.

Correction officers may use reasonable force against inmates when necessary (see Correction Law § 137 [5]); 7 NYCRR 251-1.2 [b]; [d]), but when a use of force is authorized it must be exercised within the bounds of that which is reasonably necessary and no greater than is reasonably necessary, and defendant may be found liable for injuries sustained by an inmate when the use of force was excessive (see Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]; Jones v State of New York, 33 NY2d 275 [1973]). Here, however, claimant is not alleging that there was excessive authorized use of force, rather, he is alleging and sought to prove that he was the victim of an outright unauthorized and unprovoked beating by COs. 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, UID No. 2000-028-0012 [Ct Cl, Sise J., Nov. 30, 2000]), and the credibility of the witnesses at trial is a critical factor in the determination of whether claimant has met that burden (see Shirvanion v State of New York, 64 AD3d 1113 [3d Dept 2009]; Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Medina v State of New York, UID No. 2007-028-010 [Ct Cl, Sise, PJ., Mar. 2, 2007]).

At trial, claimant testified that after a verbal dispute with Sgt. Howard, he and the COs stormed into Room 9 without provocation and brutally beat claimant. On the other hand, the officers alleged to have assaulted claimant recalled little of that evening, but each adamantly denied entering the claimant's room and assaulting him. After hearing the testimony and observing the demeanor of claimant and the COs, and considering their testimony along with the other evidence adduced at trial, the Court concludes that claimant has not proven his claim by a preponderance of the credible evidence.

In viewing claimant's testimony and demeanor at trial in conjunction with the other evidence presented by claimant and defendant, the Court found claimant's testimony to be unreliable and grossly exaggerated, so much so that his credibility is severely undermined. Claimant's version of the assault that he was brutally beaten, dropped to the floor and kicked over the course of 7 to 10 minutes is simply not consistent with the credible evidence. The photographs of claimant that he offered into evidence, while revealing minor injuries to his back and slightly appreciable redness along the right side of his torso, do not demonstrate the type or degree of injury that would have been inflicted during the lengthy beating that was described by claimant. Further, claimant's testimony that he asked to "see medical" immediately after the alleged assault is glaringly inconsistent with the credible documentary evidence that he voiced no medical complaints to RN Cook at 11:05 p.m. on March 17 and declined medical attention during sick call at 6:30 a.m. on March 18. His testimony that he was laying on the floor in pain, spitting up and urinating blood all night is simply not believable in light of the documentary evidence that he did not complain to medical personnel at his first two opportunities as well as the absence in his AHR complaint of any such conditions. And when he reported the alleged assault to Kemp some 18 hours after the attack, he told Kemp only that he was "sore." Moreover, although claimant testified that he was in severe pain, spitting up, urinating blood, and that he lay on the floor in pain the "whole night," the Special Watch logbook reflects that from 8:00 p.m. to 8:45 p.m. - shortly after the alleged assault - claimant was "pacing" and "jumping on his bed." The credibility of claimant's testimony is undermined by his testimony that his left rib was broken, when all of the medical evidence demonstrates that it was his right rib that was fractured. His credibility is further undermined by his assertion that he was assaulted because Sgt. Howard complained that he had been in Special Watch for "over a month," when other evidence clearly establishes that he had been on Special Watch at Upstate CF for less than a week.

Moreover, claimant's argument that the evidence as a whole confirms his version of the events is unpersuasive. Claimant's contention that the only way he could have sustained his injuries was to have been beaten is undermined by the inconsistency between the severity of his claimed injuries and the photographic and medical documentary evidence, which demonstrate that claimant's injuries were far less severe than he asserts, as discussed above. The objective medical diagnosis of a fracture of the 11th rib (which was described as "hairline") and a small pneumothorax, which claimant was told by Dr. Weissman was a collapsed lung, have not been shown to be injuries that could be sustained only by a beating. Claimant offered no corroborating evidence - expert or otherwise - that a "collapsed lung" and a "small pneumothorax" are equivalent injuries, or that such injuries or a hairline fractured rib are severe injuries. Nor did claimant offer any evidence as to the level of force that may have caused such injuries. In the absence of expert testimony as to the location of the fracture, the severity of the injuries and the level of force needed to cause claimant's injuries, the proof at trial does not preponderate in favor of a finding that claimant's injuries were the result of a brutal gang assault such as claimant alleges.

Claimant's argument that his injuries could not have been self-inflicted without having been observed by the Special Watch Officer is unsupported by the credible evidence. There are three entries in the Special Watch logbook noting that claimant was banging or pounding on the door or banging on the shower, and CO Jock testified that if claimant injured himself in the shower stall, such may have gone unseen because the window in the shower was small. Claimant's assertion that the shower stall was too small to permit him to sustain a fractured rib and collapsed lung is simply lacking evidentiary support. Finally, claimant's contention that he would not have been released from Special Watch on March 26, 2009 if he had engaged in self-harm on March 17 is unpersuasive, as Kemp explained that the criteria for release was not whether claimant injured himself, but whether he showed signs of suicidal behavior. Kemp testified that prior to claimant's release from Special Watch, Kemp had determined that he did not show such signs.

Claimant further contends that his allegations are corroborated by CO Monacelli's presence in the infirmary as confirmed on the DVD, inasmuch as he did not know CO Monacelli's identity prior to serving a notice of intention to file a claim which described one CO assailant as a "tall bald head white male" (Claimant's Exhibit 9). However, there was no evidence at trial that persuasively establishes that the tall bald caucasian CO who passed in and out of the infirmary gate was CO Monacelli, and despite having observed CO Monacelli during the trial, the Court is unable to conclude that it was he. Even if it was CO Monacelli who was seen entering and exiting the infirmary on the DVD, his demeanor and earnestness when he testified that he did not participate in an assault of claimant the evening of March 17, 2009 was extremely believable, and is therefore credited.

In sum, the proof at trial established that claimant was diagnosed with a hairline fracture of the 11th rib and a small pneumothorax on March 18, 2009, but claimant's testimony about the manner in which he sustained those injuries was not credible. Accordingly, the Court is not persuaded by a preponderance of the credible evidence that claimant was brutally assaulted by four COs in Room 9 on the evening of March 17, 2009, and thus, defendant is not liable for claimant's injuries.

CONCLUSION

The Court finds in favor of defendant. Claimant's motion M-85801 is DENIED in its entirety, as are any motions not previously ruled upon. The Acting Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.

March 18, 2015

Saratoga Springs, New York

W. BROOKS DeBow

Judge of the Court of Claims


Summaries of

Romance v. State

New York State Court of Claims
Mar 18, 2015
# 2015-038-103 (N.Y. Ct. Cl. Mar. 18, 2015)
Case details for

Romance v. State

Case Details

Full title:RAVON ROMANCE v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Mar 18, 2015

Citations

# 2015-038-103 (N.Y. Ct. Cl. Mar. 18, 2015)