Troy v. THE STATE OF NEW YORK, #2000-016-061, Claim No. 98482
Inmate alleges abuse and retaliation by correction officers/no liability
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Eliot Spitzer, Attorney GeneralBy: Dennis McCabe, AAG
August 15, 2000
See also (multicaptioned
Reginald Troy contends that on October 14, 1997 he was assaulted by one or more
correction officers, thereafter failed to receive proper medical care, and was
punished by being placed in special housing for nearly a month. This case was
tried on June 21, 2000 at Sullivan Correctional Facility, the site of the
by describing his efforts to have his hair cut at the prison barbershop on the
evening of October 14. At Sullivan Correctional, an inmate must submit a slip
requesting a haircut, and there is a procedure by which days are assigned
according to the last digit of an inmate's DIN number.
Claimant testified that he had "dropped a slip several times", but did not make
the call-out list for the barbershop. He was told to see Sgt. Cherry who gave
him permission to see the barber, inmate Adolphus Zimmerman. Troy was
Zimmerman's last customer; since inmates were customarily locked into the
barbershop, Zimmerman began tapping on the window. Receiving no response, the
two inmates waited "15 to 20 minutes" and the barber began tapping again, this
time a little harder. Officer Matthew DeFrank finally opened the door and,
according to Troy, directed a stream of abusive language at him. Claimant and
Zimmerman left the shop, started down the hall toward the metal detector, but
Officer DeFrank called out Troy's name, "used offensive language....fuck
me..words like that." Troy said that he then responded with the same
four-letter word, with some embellishment.
Troy recounted that the officer ran down the hall towards him, shouting and
swinging his hands "like he's trying to fight me or jump on me". So he "tried
to block the officer's hands" because he thought DeFrank was about to "hit, grab
or scratch" him. Then the "officer must have pulled his security pin" and six
or seven officers responded to the radio call. "Everyone was grabbing me and
throwing me around..hitting me...", adding that DeFrank had struck him before
Claimant was, he then testified, turned to face the wall, pat-frisked, and his
hands were cuffed behind his back. He was then dragged down to a holding cell,
known as a "dry cell". Facing the wall, he was "flipped" when made to spread his
legs out and then kicked. Troy described being thrown down on a cinder block and
believes he passed out for some 15 minutes. He was then taken to the infirmary;
he had abrasions on his face, skinned knees and his lip and cheekbone were
swollen. The nurse came in, but did not treat him; rather, she directed him
back to his cell. Troy claimed he was written up on two or three misbehavior
reports and spent 24 days in SHU by way of retaliation.
On cross-examination, claimant stated that in all he was kicked about 8 times,
took 12 hard punches to the face, and that an Officer Hastings jumped on his
back two or three times.
* * * *
The claimant put Zimmerman on the stand, and defendant called Sergeant Tim
Cherry, correction officers DeFrank, Tim Saccone and Ward Burlingame,
as well as Ms. Dawn Kortright, a registered nurse serving at Sullivan.
Zimmerman said that claimant, not he as Troy had testified, was the one knocking
on the window. When asked on cross-examination whether DeFrank was "yelling and
screaming" and if the officer came running at Troy, Zimmerman replied, "no, not
that I recall".
At trial, Zimmerman said that he recollected the incident essentially as he had
described it to the DOCS inspector general in January of 1998:
I completed giving Troy [his] haircut....Troy banged on [the] door...on [the]
way out. Troy, had words with CO DeFrank...continued to have words while walking
down the corridor...DeFrank told Troy to keep moving toward the housing unit,
but Troy did not move...then DeFrank went to take hold of Troy, but Troy yanked
his arm away, then other COs arrived to assist in restraining Troy. They put him
on the wall and cuffed him behind his back...I did not see any baton used or
Zimmerman was then told to proceed to his housing unit, and
saw no more of the incident.
Officer Saccone was about 20 feet away, frisking inmates as they went through a
metal detector. Claimant introduced into evidence a memorandum Saccone wrote to
Sgt. Cherry. Written just after the incident, the memo noted that claimant,
appearing agitated towards DeFrank over a call-out, was verbally abusive toward
him. When DeFrank gave him several direct orders to go down the hill towards his
housing, Troy stepped back up the slope towards DeFrank "raising his hands
striking Officer DeFrank in the upper extremities." He was handcuffed as
ordered by Sgt. Cherry, who directed that Troy be taken to the dry cell and then
be seen by the medical staff (cl exh 13). Saccone's live testimony was wholly
consistent with his contemporaneous account; he added that Troy was never
punched or kicked, although Saccone was not part of claimant's escort to the
Officer DeFrank explained that his responsibilities included the inmate
barbershop. He recalled that when Troy came over for a haircut, his name was
not on the callout sheet. But inasmuch as no other inmate's name was listed,
the officer allowed claimant to enter the barbershop. Sgt. Cherry corroborated
that such decision rested with DeFrank, not with him, as claimant had
When DeFrank went to unlock the shop door to let claimant and Zimmerman out, he
recounted that Troy was yelling and screaming, unhappy about the callout system
and not at all mollified by the officer's response that no callout slip was
submitted. Starting down the hallway, Troy was still shouting, and DeFrank
testified he told him to keep moving. He continued being verbally abusive to
DeFrank, was again told to move down the hall, was given a direct order and then
Troy turned around. DeFrank testified that when Troy came close:
He stopped, took a defensive stance started to raise his hands..as if to square
off to fight..I tried to put my hands on him and placed him on the wall to
restrain him before he had the opportunity to swing at me..I got a hold of his
shirt and upper body...and his hands as they were coming up....he shoved me to
get me off of him. I almost fell to the ground, but I was holding onto his
clothes..he continued to shove and hit me in the upper body..As I was trying to
turn him to wall..I could not turn him..I reached down and pulled my pin
[summoning assistance]..I knew he could overpower me..I attempted to pull my
baton out...he was shoving me..I hit the wall.
DeFrank denied swearing at Troy, using any racial epithets and
said he saw no other officer punch or kick the claimant.
Officer Ward Burlingame was one of the officers who responded to the incident.
When he arrived, Troy was facing the wall, and Burlingame placed the handcuffs
on him. He helped bring claimant down to the holding area. Troy was walking
under his own power. The officer did not see anyone kick or punch Troy. At the
medical area, Troy sat on a low oxygen tank box and then fell over and struck
his head on a metal cabinet. Both Burlingame and Sgt. Cherry believed his fall
was contrived (Cherry using a vivid image from an old
television show), although Cherry did mention that Troy had complained of
Sgt. Cherry had a forthright, matter-of-fact way of testifying that came across
very credibly. Cherry did not observe the incident as it unfolded, but was one
of the officers who came to the scene when the alarm went off. The sergeant
explained that when Troy maintained he was beaten by an Officer Hastings, he had
the escort on claimant changed. Not part of the escort, Cherry caught up with
Troy about ten minutes later in the holding area and took him to the infirmary.
Dawn Kortright, a registered nurse on duty that night, did a complete external
examination of Troy which showed a slight swelling on his left cheekbone (cl exh
11). Photographs offered by claimant do not indicate otherwise (cl exhs 1-9).
The cheekbone swelling could have been caused by his fall from the oxygen tank
or, even if resulting from the efforts to restrain him outside the barbershop,
such does not necessarily support the inference of an improper use of force.
Kortright related that "when I came back [after having briefly left the room,
Troy] was laying on the floor, saying he was unable to ambulate himself...[then
he was] able to dress himself and walk out without difficulty".
* * * *
Claimant has not, by a fair preponderance of the evidence, proven that he was
subject to an improper use of force. Not only did the four testifying officers
present a markedly different version of events, but testimony from claimant's
own witness did not back up his story. Upon hearing Zimmerman's testimony, Troy
exclaimed that he probably should not have called him. Troy contended that he
was not informed that Zimmerman was interviewed by the inspector general's
office, but I find that,
, claimant was afforded the opportunity to review a transcript
Troy was angry about what he had to do to get his hair cut. He may well have
been correct in believing that the call-out system at Sullivan did not work as
advertised. But the most logical view of the evidence is that his anger spilled
over and he threatened violence and perhaps crossed that line as well. Claimant
disobeyed at least one direct order; inmates are required to comply with direct
orders issued by correction officers.
Reyes v Barkley
, 261 AD2d 743, 691 NYS2d 203 (3d Dept 1999).
Defendant acted in accordance with applicable rules and regulations governing
the use of physical force which permit such force only as is reasonably
necessary; for example, to enforce compliance with an officer's order or for an
officer's self defense. 7 NYCRR §251-1.2(b) & (d) .
Green v State of New York
, (Cl # 96453, Lebous, J, 7/21/2000). On use of
restraints, see, e.g.
, 7 NYCRR §250.2(h).
In addition, Claimant has not proven by a fair preponderance of the evidence
that, following his restraint, he was kicked or punched by any officer.
Troy's testimony was not as credible as the four officers who
testified. Moreover, the medical evidence did not reflect Troy's version of
As to medical treatment in general, "[i]t is well settled that the State owes a
duty to its incarcerated citizens to provide them with adequate medical care".
Kagan v State of New York
221 AD2d 7, 8, 646 NYS2d 336, 337 (1996).
Nonetheless, claimant offered nothing of probative value to connect various
physical complaints to his treatment by defendant, and did not prove that
defendant failed to afford him infirmary and medical appointments, procedures
and medication as appropriate (see cl exh 11); nor did Troy call a physician as
an expert to demonstrate a variance from accepted medical
Finally, there is claimant's cause of action asserting he was placed in SHU by
way of retaliation. Claimant offered a Restraint Order Authorization approving
his placement under restraint from Oct 15 through Oct 19, 1997 (cl exh 14), but
there was testimony he was sent back to his regular cell in keep-lock status,
and the Authorization was dated October 15. According to his transfer history
(def exh D), Troy was moved from Sullivan to Downstate CF on October 16, to
Auburn on October 18
for an appearance in federal district court in Syracuse (def exh C), and then to
Attica on November 6. The transfer document lists Troy as being in the general
population in Auburn and Attica. He may have been in quarantine at Downstate:
Sgt. Cherry explained that when an inmate is in transit for purposes of
attending court, he may be placed in quarantine.
Troy testified that he was in special housing for 24 days right after the
incident, a period of time not borne out by the transfer documentation. Such
contention undermines claimant's overall credibility as to, for example, his
statement that he never had a hearing on the matter. In fact, Sgt. Cherry
testified that when the incident happened, he recommended SHU time but was
overruled by the watch commander who wanted Troy back in his cell. That may
have been preparatory to a transfer out of Sullivan, where Troy "has always
related poorly to staff" (from the October 21, 1997 transfer documentation, cl
exh 16). Claimant has not presented an explicit case, by a preponderance of the
evidence, that a misbehavior report was written up on
that he was entitled to a hearing and then improperly denied a timely one per 7
NYCRR § 251-5.1.
* * * *
In view of the foregoing, the claim of Reginald Troy is
LET JUDGMENT BE ENTERED ACCORDINGLY.
August 15, 2000
HON. ALAN C. MARIN
Judge of the Court of Claims
The transfer form stated that Troy had a
"pending Tier 3 for pushing an officer", and an unusual incident report
described Troy as having assaulted one or more officers (cl exh 15).