Opinion
No. 123612.
09-22-2017
Terry SANDERS, Claimant, v. The STATE of New York, Defendant.
Terry Sanders, pro se. Eric T. Schneiderman, Attorney General, by Anthony Rotondi, Assistant Attorney General, for State of New York.
Terry Sanders, pro se.
Eric T. Schneiderman, Attorney General, by Anthony Rotondi, Assistant Attorney General, for State of New York.
WALTER RIVERA, J.
Claimant, an inmate proceeding pro se, seeks damages for the injuries he sustained during his incarceration at Coxsackie Correctional Facility ("Coxsackie") when, on October 3, 2013, two correction officers allegedly used excessive force to obtain claimant's compliance with a direct order.
After the trial concluded, claimant inadvertently left with Exhibit 16 after it had been received into evidence. Therefore, the Court sent claimant a letter requesting that claimant return the marked exhibit. Claimant complied and the exhibit has been returned to the Court file. In his transmittal letter dated September 5, 2017, claimant requested that a number of his exhibits received in evidence be "removed" from the trial record and he raised objections to defendant's Exhibit B in evidence. By letter dated September 14, 2017, defendant opposed claimant's requests and objections. By letter dated September 18, 2017, claimant replied to defendant's opposition. The Court has considered the parties' arguments and DENIES all of claimant's requests and objections.
Claimant testified that on July 25, 2013, he was transferred to Coxsackie with a noted condition of vertigo for which he was taking prescribed medication (see Claimant's Exs. 1, 2). On October 2, 2013, claimant made a sick-call request because his vertigo was getting worse. The following morning, claimant was seen by a nurse (Claimant's Ex. 3). After claimant's sick-call visit, claimant returned to his cell and retrieved a folder which he carried with him to breakfast and then to his work assignment. The folder contained documents regarding claimant's request for a change in his inmate work assignment due to his vertigo (see Claimant's Exs. 4, 5).
Upon claimant's arrival at work, the supervisor advised claimant that he was not supposed to be at work. Nonetheless, the supervisor advised claimant that he would be permitted to work due to another inmate's absence. Thereafter, the supervisor informed claimant that Correction Officer ("CO") Kevin Pecore had called and requested that claimant return to his cell block. When claimant returned, CO Pecore directed claimant to step into the recreation room. CO Pecore and CO Stephen Byrne were locking up the other inmates returning to their cells while claimant stood in the recreation room. CO Byrne was on the other side of the recreation room.
CO Pecore approached claimant and asked claimant why he went to work when he had been told at roll call not to go to work. Claimant responded that he had not been at the roll call because he was at a sick-call visit at that time. CO Pecore repeatedly asked claimant the same question. Claimant remained silent. CO Pecore also asked claimant what was in the folder and claimant showed him the contents of the folder.
CO Pecore then directed claimant to stand against the wall for a pat frisk. Claimant testified that while this was occurring, his vertigo was triggered and he felt his head spinning uncontrollably. Claimant put his left hand on his head for comfort. At that moment, CO Pecore and CO Byrne "rushed" claimant to the ground. Claimant testified that while he was on the ground, CO Byrne held claimant's hands behind his back while CO Pecore had the claimant in a brace hold. CO Pecore then punched claimant in rapid succession in the back of the head, forehead, and left eye. Claimant yelled, "I'm sick. I'm sick. Why are you punching me?" According to claimant, CO Pecore punched claimant approximately 15 to 20 times in rapid succession.
All quotations are to the trial audio recording unless otherwise indicated.
The response team then arrived and took claimant to sick call. Photographs of claimant's injuries to his forehead, left eye and the left side of his face were received into evidence along with an Inmate Injury Report wherein claimant indicated that he was hit by an officer (Claimant's Exs. 6, 7). Claimant's medical record indicates that on October 3, 2013 at 2:00 p.m., claimant had difficulty opening his mouth due to swelling of the left eye and he was given Advil. At 5:05 p.m. claimant was observed to have swelling and an abrasion to his left eye (Claimant's Ex. 8). At 6:45 p.m., claimant was seen at an emergency sick call with neck stiffness and eye swelling. Claimant was administered Motrin (id. ).
According to claimant, he experienced pain for three weeks following the incident. Claimant also testified that he could not eat during those three weeks and that his pain was a level seven on a scale of one to ten, with ten being the highest level of pain. Claimant also testified that he continues to experience pain in the back of his neck to the present time and that it is worse in the wintertime when the back of claimant's neck locks with pain. Claimant denied having any similar pain prior to the incident. In January 2014, a CAT scan of claimant's head was normal and the optometrist who examined claimant noted no abnormalities (Claimant's Ex. 9). Claimant was prescribed 7.5 mg of Mobic two times daily for pain (id. ). Claimant continues to take Mobic daily to alleviate his pain. Claimant also testified that he has a slight lump under his left eyelid and that the nerve under his eyelid jumps on occasion.
Following the incident, claimant was transferred to the special housing unit and issued a misbehavior report charging him with: assault on staff; violent conduct; creating a disturbance; interference with an employee and refusing a direct order (Defendant's Ex. A). According to the misbehavior report, the Unusual Incident Report and a memorandum of Sgt. Hotaling, claimant was visibly agitated when CO Pecore ordered claimant to place his hands on the wall for a pat frisk (id. ). Claimant thereafter purportedly turned off the wall and punched CO Pecore in his right eyebrow area. CO Byrne responded to CO Pecore's aid and claimant allegedly took several unsuccessful swings at CO Byrne. The officers forced claimant to the floor onto his left side. Claimant was reported to have continued to struggle violently. CO Pecore called for an emergency response and the area supervisor, Sergeant Hotaling, responded. According to the memorandum of Sgt. Hotaling, claimant fell face first onto the floor and landed on the left side of his face while he was resisting the two officers. According to Hotaling's memorandum and the Unusual Incident Report, CO Pecore and CO Byrne repeatedly struck claimant in the rib area in an attempt to gain control of claimant's hands while he continued to struggle with the officers. After several strikes and numerous direct orders, claimant became compliant and mechanical restraints were applied to claimant. Claimant was then assisted to his feet and escorted from the area.
After a disciplinary hearing, claimant was found guilty of all charges. The Hearing Officer's determination was affirmed on administrative appeal and thereafter by the Appellate Division.
CO Stephen Byrne, who has been employed as a correction officer at Coxsackie for 10 years, testified that on October 3, 2013 he was locking inmates in their cells when he heard CO Pecore ask claimant about a folder that he was carrying. CO Byrne observed claimant, from a distance of approximately 15 to 20 feet, comply with CO Pecore's order to disclose the contents of the folder. While CO Byrne was turned away from CO Pecore and claimant, CO Byrne heard a disturbance and CO Pecore directed claimant to put his hands on the wall. CO Byrne then turned and saw that "claimant had punched Officer Pecore in the right eye." CO Byrne ran over and directed claimant to place his hands on the wall. Claimant was non-compliant and took multiple swings at CO Byrne without making contact. CO Byrne directed claimant to get on the ground. Claimant did not comply. Therefore, according to CO Byrne, he grabbed claimant by the waist and CO Pecore grabbed claimant by the shoulders. Both officers brought claimant to the ground on his left side. CO Byrne testified that he punched claimant in the right-rib area because Byrne believed, at that time, that this amount of force was necessary to subdue claimant.CO Byrne sought medical attention for swelling and pain to his right hand and he was given ice (id. ). An Unusual Incident Report, an Inmate Injury Report, and a Use of Force Report were completed regarding the incident (Defendant's Ex. A).
On cross-examination, CO Byrne was confronted with the scant testimony he provided at claimant's disciplinary hearing regarding the incident (Claimant's Ex. 10), as compared to the detailed testimony CO Byrne provided at trial after having had his recollection refreshed with the detailed misbehavior report (Defendant's Ex. A).
CO Pecore retired from State employment approximately two and one-half to three years before the date of the trial and was not called as a witness by the State. A photograph of CO Pecore with a cut above his right eyebrow was received into evidence depicting the injury sustained by CO Pecore on October 3, 2013 (Defendant's Ex. B).
Claimant, an inmate proceeding pro se, did not ask the Court to draw an adverse inference from defendant's failure to produce CO Pecore or Sgt. Hotaling at trial. Thus, defendant did not provide the Court with any information which could refute a request for an adverse inference (see People v. Gonzalez, 68 N.Y.2d 424 [1986] ). The Court did not draw an adverse inference from the State's failure to call the witnesses to testify at trial.
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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 A.D.2d 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 listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant's detailed recitation of the incident was credible. Particularly compelling was claimant's testimony that, after CO Byrne and CO Pecore had rushed claimant to the ground, CO Byrne held claimant's hands behind his back and CO Pecore held claimant in a brace hold while CO Pecore punched claimant 15 to 20 times in rapid succession, delivering blows to the back of claimant's head, forehead and left eye as he lay on the ground.
To the contrary, CO Byrne did not appear to be forthright in his testimony. Rather, CO Byrne's testimony appeared to be calculated to conform to the details set forth in the report used to refresh his recollection at trial. While CO Byrne testified that he punched claimant in the rib area because CO Byrne believed, at that time, that it was the amount of force necessary to subdue claimant, CO Byrne's testimony was silent regarding how claimant sustained the injuries depicted in the photographs showing claimant with severe swelling and bruising to his left eye and the left side of his face (Claimant's Ex. 6).
The Court received numerous documents into evidence detailing a violent struggle to subdue claimant. However, except for CO Byrne, the authors of those documents did not testify at trial. Additionally, there were inconsistencies in the reports authored by CO Pecore. While the misbehavior report completed by CO Pecore states that he sustained a cut to his right eyebrow area as a result of a closed fist punch by claimant, CO Pecore's Employee Accident Injury Report states that the injuries he sustained occurred when "[w]hile subduing a combative inmate [I] fell to [the] floor" (Defendant's Ex. A). The report is also devoid of any mention of claimant punching CO Pecore. Thus, without the benefit of hearing and observing the authors of the reports testify to the facts set forth in their accounts of the incident, defendant's documents describing a violent struggle by claimant were accorded little weight and the evidence was inconclusive as to whether the cut above CO Pecore's right eyebrow (Defendant's Ex. B) was caused by a punch delivered by claimant.
The sum of the credible evidence, including the photographs of claimant's swollen face and bruised left eye, leads the Court to find that the use of physical force upon claimant was excessive. Specifically, the Court finds that after claimant had been forced to the ground by the two officers and was secured in a brace hold with his hands held behind his back, CO Pecore's punching claimant in the head and face 15 to 20 times in rapid succession was an excessive use of force (see Lewis v. State of New York, 223 A.D.2d 800 [3d Dept 1996] [claimant was sufficiently under control therefore the execution of a take-down maneuver was found to be an excessive use of force] ).
The Court further finds that as a result of the excessive force used by CO Pecore, claimant sustained a swollen face and a bruised left eye which caused him to experience pain for three weeks following the incident. The Court's award is limited to the aforenoted injuries and three weeks of pain and suffering. In this respect, there was no competent medical evidence or testimony establishing a causal connection between the use of excessive force and any other resulting injuries or pain and suffering (see Madsen v. Merola, 288 A.D.2d 520 [3d Dept 2001] ; Brown v. County of Albany, 271 A.D.2d 819 [3d Dept 2000] ). Accordingly, the Court finds that claimant is entitled to an award of $950.00, inclusive of interest, for the aforenoted injuries and pain and suffering.
It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11–a (2).
LET JUDGMENT BE ENTERED ACCORDINGLY.