Opinion
# 2018-015-149 Claim No. 123924
08-22-2018
GILL TERRENCE v. THE STATE OF NEW YORK
Gill Terrence, Pro Se Honorable Barbara D. Underwood, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General
Synopsis
Claimant failed to demonstrate excessive force by a preponderance of the credible evidence.
Case information
| UID: | 2018-015-149 |
| Claimant(s): | GILL TERRENCE |
| Claimant short name: | TERRENCE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123924 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Gill Terrence, Pro Se |
| Defendant's attorney: | Honorable Barbara D. Underwood, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 22, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim herein alleges the claimant was assaulted by a correction sergeant at Mt. McGregor Correctional Facility on May 29, 2013. Trial of this matter was conducted by video conference on June 5, 2018.
At trial, the claimant testified that on May 29, 2013 he was instructed by a block officer that his presence was required at the law library where he worked. It was the claimant's day off and he contended he had not been outside his block all day since attending the commissary at 9:00 a.m. that morning. As instructed, the claimant exited his block en route to the law library. As he was proceeding along the corridor two correction officers and Sergeant Jefferey Ropeter stopped the claimant and instructed him to place his hands on the wall. The claimant's hands were cuffed behind his back and he was then taken to a location he described as "the sergeant's area". On arriving at the sergeant's area the claimant was placed in a chair and Sergeant Ropeter allegedly told him "I can kill you now". Sergeant Ropeter directed racial epithets at the claimant and stated that he had been previously charged with possession of a "shank". When the claimant denied having been so charged Sergeant Ropeter allegedly punched him forcefully in the face, head and ear. Claimant was then placed in a closet for three hours and, at approximately 10:00 p.m., he was called for processing on a transfer to Greene Correctional Facility. The claimant was also issued an Inmate Misbehavior Report charging him with various infractions including stalking, threats, riot and verbal harassment. The report prepared by Sergeant Ropeter states that the claimant had been stalking and harassing Correction Officer Robinson on multiple occasions. The claimant testified that all the charges contained within the misbehavior report, other than interference with an employee, were dismissed and that he continues to experience pain and loss of hearing in his ear as a result of the assault upon him by Sergeant Ropeter. There was no cross-examination.
All quotations are taken from the audio recording of the trial. --------
The defendant called Jeffrey Ropeter who testified he was employed as a housing relief sergeant at Mt. McGregor Correctional Facility in May 2013. Sergeant Ropeter testified that he had no independent recollection of the events involving the claimant, although he denied that he ever struck or threatened him. He confirmed that he issued the misbehavior report received as page 1 of Exhibit A, which he testified resulted from the claimant stalking and harassing a female correction officer. Sergeant Ropeter stated that although he has no independent recollection of the events, the documents received as part of Exhibit A that were prepared by the witness were intended as truthful recountings of the events related therein.
On cross-examination, the witness denied he ever threatened or punched the claimant.
To recover under a common law cause of action for battery, it must be proved "that there was bodily contact, that the contact was offensive, that is, wrongful under all the circumstances, and that [the] defendant intended to make the contact" (Silipo v Wiley, 138 AD3d 1178, 1182 [3d Dept 2016] [internal quotation marks and citations omitted]). In the prison environment, the use of force is specifically permitted "in self defense, or to suppress a revolt or insurrection [and] . . . to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape" (Correction Law § 137 [5]). As set forth in 7 NYCRR § 251-1.2 [b], "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used." Assessment of the degree of necessary force requires consideration of the particular circumstances confronting officers at the time the force was applied (Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]; Koeiman v City of New York, 36 AD3d 451 [1st Dept 2007], lv denied 8 NY3d 814 [2007]; Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Hinton v City of New York, 13 AD2d 475 [1st Dept 1961]). The State is not immune from liability for an assault and battery when an officer uses more force than is necessary to perform his or her duty (Arteaga v State of New York, 72 NY2d 212, 220-221 [1988]; Jones v State of New York, 33 NY2d 275 [1973], rearg dismissed 55 NY2d 878 [1982]; Barnes v State of New York, 89 AD3d 1382 [4th Dept 2011], lv denied 92 AD3d 1267 [4th Dept 2012], lv dismissed 19 NY3d 949 [2012]).
Upon consideration of the evidence adduced at trial, the Court finds the claimant failed to establish the use of excessive force by a preponderance of the credible evidence. Review of Exhibit A indicates claimant was found guilty of interference with an employee, harassment, refusing a direct order, threats, and stalking. No witnesses were called on claimant's behalf at trial and there is no medical evidence demonstrating that the claimant suffered any injury as a result of the incident. Upon these facts, the Court is unable to find that the claimant was subjected to the use of excessive force by correction officers, specifically Sergeant Ropeter, as alleged in the claim. Accordingly, the claim is dismissed.
Let judgment be entered accordingly.
August 22, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims