New York State Court of Claims

New York State Court of Claims

TROUCHE v. THE STATE OF NEW YORK, #2000-013-518, Claim No. 95045


Claimant, an inmate, sued for injuries allegedly inflicted by correction officers during a cell extraction at Southport Correctional Facility. Judge Patti concluded that the officers' use of force to restrain Claimant while applying leg irons was privileged because it was reasonable and justified under the circumstances. The claim was dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES E. SHOEMAKER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December , 2000

Official citation:

Appellate results:

See also (multicaptioned case)


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 (
see, 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 answer[1] (see, 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 (
see, 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[12][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 (
see, 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 directions.
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 camera's view.

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 gas.

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 him.

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 Claimant's leg.

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[5]). While corporal punishment is absolutely forbidden under all circumstances (7 NYCRR 250.2[g];
see also, Correction Law §137[5]), 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[2]).
However, the use of
excessive force by a correction officer performing his lawful duties constitutes battery and renders Defendant liable under the doctrine of respondeat superior (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; see also, Jones v State of New York, supra).
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 extraction.

The claim is dismissed.


December , 2000
Rochester, New York

Judge of the Court of Claims

The attorney who signed, and presumably prepared, the answer is no longer an Assistant Attorney General