Claimant alleges in this matter that he was "savagely assaulted" by correction
officers on October 18, 1995, while he was an inmate in D-block at the Southport
Correctional Facility (Southport). He seeks damages for injuries he sustained,
including a dislocated kneecap, a swollen eye, lacerations to his wrist and
lower back pain and numbness. A trial of this matter took place on September 8,
2000 at the Elmira Correctional Facility.
From the face of the pleadings, it appears that the claim was untimely.
Claimant avers that he served a notice of intention on the Attorney General on
December 11, 1995, giving him one year from the October 18, 1995 accrual date to
serve and file his intentional tort claim (
Court of Claims Act §§10[3-b] and 11[a]).
However, Claimant did not file his claim until October 31, 1996, and he did not
deposit it in the mail to be served on the Attorney General until October 19,
1996. In this case, however, Defendant waived its timeliness defense because
it did not particularize that defense in the
Court of Claims Act
§11[c]; Sinacore v State of New York
, 176 Misc 2d 1, 7; Knight v
State of New York
, 177 Misc 2d 181, 183). Accordingly, I will consider the
claim on its merits.
Many of the events that form the basis for this claim are recorded on videotape
Exhibit 4). The tape shows that the front wall and the door
of the cell where Claimant resided were solid. A small window located in the
door provided the only way to see into the cell. On the day in question,
Claimant blocked the view through his window with paper, in violation of
Defendant's regulations (see,
7 NYCRR 270.2, B[iv]).
A correction officer and two other facility employees, whom Claimant identified
at trial as a minister and a counselor, came to Claimant's cell at different
times and told him to remove the covering. Claimant refused to comply with the
requests and uttered strings of profanity (
Exhibit 2 at pp. 10-11). One of the officers, who was
extremely patient with Claimant's antics, finally informed him that they were
going to have to enter his cell and remove the covering, as well as anything
else that could be used to block the window. The correction officer gave
Claimant a direct order to submit to handcuffing so that he could be removed
from his cell. He also told Claimant that if he refused to follow the order, a
chemical agent would be used to subdue him and that he would be removed from his
cell forcibly. Claimant refused to follow the officer's
The cell extraction team arrived and deposited chemical agents through the
front door hatch of Claimant's cell. Claimant finally agreed to be handcuffed
through the cell hatch door. The officers ordered him to get down on his knees
while they entered the cell, but had some difficulty opening his door. When it
finally opened, they entered his cell, seized him and led him away to the shower
where they helped him wash away the chemical agent. After he emerged from the
shower, Claimant can be heard complaining to a nurse that he could not use his
leg. The officers took him to another cell, cut his clothing away, and
photographed his body. Meanwhile, the nurse began to examine him. By this
time, Claimant was complaining that the officers had hurt his wrists and that
his right knee was "messed up." At least three times, he said that the officers
hurt his right knee by banging it on a gate. He made no complaints about his
back. When the nurse finished her examination, the videotape ended.
The videotape was shot from the hallway and does not show what transpired
inside Claimant's cell or in the shower area. The parties called Claimant and
the members of the cell extraction team to describe what happened outside the
Claimant provided a different account at trial about the way that the officers
hurt his knee than the one he gave on the tape. He testified that his knee was
hurt when the cell extraction team flung him down on the floor and one officer
stepped on the back of his leg, while another pressed on his back with his knee.
He thought that this force was unnecessary because he was already handcuffed.
He said he tried to tell the officers that they were hurting his leg, but they
did not release him until they had fastened the leg restraints. Claimant
further asserted that an officer struck him while they were in the shower and
whispered in his ear that he would kill Claimant if he tried to struggle. But
Claimant, who was quite vocal during the videotape, did not cry out or otherwise
indicate that he had been threatened or struck.
On cross-examination, Claimant acknowledged that the cell door jammed because
he stuffed paper in the track to prevent it from opening. He also confessed
that he threw toilet water in the direction of the cell hatch as the officers
were administering the gas. He claimed that he did not intend to hit the
officers with the toilet water. He said he threw it in an effort to neutralize
The photographs taken by the cell extraction team show a small abrasion on
Claimant's right wrist which looks like the kind of mark that a handcuff might
make. The photographs of his right knee do not evidence any marks, bruises or
swelling, but they do show that Claimant's leg is bent slightly forward and that
he is not placing any weight on it. The photograph of his back is unremarkable,
but the view is partially blocked by the arms of the officers who were holding
Claimant says that his knee was dislocated in the incident and that he now has
to wear a knee brace. His medical records show that he made frequent complaints
about his knee through the fall of 1997 and that Defendant's physicians
prescribed a knee brace for his right knee. The records also reflect that
Claimant complained about back numbness and pain for several weeks following
this incident. Some records describe Claimant as a hypochondriac.
Defendant called Richard Cerio, Assistant Deputy Superintendent, Program
Services at Southport. He testified that Claimant was one of six inmates who
would not leave their D-Block cells on the day in question. Deputy Cerio, who
has crisis intervention training, explained the steps that Defendant takes
before attempting a cell extraction.
The inmate receives a direct order from facility staff. If, as in this case,
he refuses to comply, then counselors who know the inmate, or the chaplains, are
called upon to persuade him to comply. Crisis intervention team members
intervene near the end of the process. If the inmate continues to resist, then
the security supervisor will issue a direct order. The cell extraction team is
called upon to intervene only if the inmate persists in his resistance. The
extraction is videotaped and a nurse examines the inmate following the
extraction to tend to any injuries. Deputy Cerio, who went to Claimant's cell
as a team member, testified that in this instance Defendant followed all of the
procedures outlined above.
Frank Grover was the inmate supervisor on D-Block on October 18, 1995. He
briefly described the difficulty he had getting Claimant and other inmates to
remove the coverings from the windows.
Correction Officer Gridley worked on the cell extraction team. He recalled
ordering Claimant to his knees, but said that Claimant kept getting up and
walking away. He explained that when the cell extraction team enters the cell,
its first responsibility is to gain physical control of the inmate. The team
"gained physical control" in this case, he believed, by "securing him to the
floor." Officer Gridley could not recall whether Claimant complied with
requests to lie on the floor. He did not believe that he or any other officer
kneeled on Claimant's leg. In response to my questions, he admitted that he did
not have a specific recollection of bringing this Claimant under control. It
was, however, his practice to secure an inmate who had been cuffed by first
grabbing his arm.
Another member of the cell extraction team was Correction Officer Wilber. He
recalled that Claimant's extraction was one of five or six done that day. He
was the third man who entered the cell. He was responsible for placing the leg
restraints on Claimant's leg. He said that he would only have had to hold
Claimant's legs down if Claimant was struggling. He had no recollection of
Claimant saying his leg was hurting him. He noticed nothing unusual about
Correction Officer J. Ameigh was also a member of the cell extraction team. He
put the cuffs on Claimant before the team entered the cell and he helped take
control of Claimant. He denied pressing or kneeling on Claimant's back or legs.
He testified that he did not hear Claimant complain about his knee.
Agnes Peters (Basurto) was the nurse who examined Claimant after the cell
extraction. She reviewed the notes she added to Claimant's medical records on
the date of the incident (Exhibit 3). These showed that Claimant complained of
right knee pain and bilateral wrist pain. Nurse Peters noted that there was
mild redness in the lower aspect of his knee with no swelling or open wounds.
She did not test his range of motion, but she did prescribe an analgesic. With
respect to his wrists, she found that he had good range of motion to his fingers
and wrists and that his nail beds were pink with good capillary refill.
When an inmate in the custody of the Department of Correctional Services
attempts to resist or disobey any lawful direction, correction officers are
statutorily directed to use "all suitable means" to maintain order and to
enforce the observation of discipline (Correction Law §137). While
corporal punishment is absolutely forbidden under all circumstances (7 NYCRR
Correction Law §137), physical force may be used
where a correction officer "reasonably believes that the physical force to be
used is reasonably necessary: for self-defense; to prevent injury to person or
property; [or] to enforce compliance with a lawful direction..." (7 NYCRR
251-1.2[d]; Penal Law §35.10).
However, the use of
force by a correction officer performing his lawful duties
constitutes battery and renders Defendant liable under the doctrine of
(see, Stein v State of New York
53 AD2d 988; Jones v State of New York
, 33 NY2d 275, 280). Whether or
not the force used was excessive under the circumstances is a question to be
resolved by the trier of fact (Hinton v City of New York
, 13 AD2d 475;
, Jones v State of New York
I find that Claimant was failing and refusing to comply with the lawful
directives of Defendant's correction officers. When they entered his cell, the
extraction team used only that force that was reasonably necessary to immobilize
Claimant so that the officers could place restraints on his legs without
endangering their own safety. The officers were justified in entering the cell
and in applying leg restraints because of Claimant's continued defiance of their
lawful directions. Their actions were therefore privileged and Defendant cannot
be held vicariously liable for any injuries Claimant sustained during the cell
The claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.