New York State Court of Claims

New York State Court of Claims

SOWELL v. THE STATE OF NEW YORK, #2001-011-101, Claim No. 100840


Claimant's claim as against battery is dismissed. Claimant is awarded judgment for bailment.

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:
Victor Sowell, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Kevan J. Acton, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
June 20, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The claim sets forth a cause of action for battery based on an allegation that Claimant was physically attacked by a correction officer on May 15, 1999 at Great Meadow Correctional Facility. In addition, Claimant has asserted a cause of action sounding in bailment.

The elements of a claim for battery are (1) bodily contact, which is (2) harmful or offensive and (3) made with intent (
Masters v Becker, 22 AD2d 118).
Claimant testified that on the date of the incident he was frisked as he left the mess hall because he did not return the plastic utensil he had been given to eat with. [1]
According to Claimant, the correction officer, Officer Therrien, performing the frisk fondled Claimant. Claimant testified that he became upset and refused an order to get back in line against the wall. Officer Therrien then swung his baton at Claimant and Claimant grabbed the baton. The two struggled over the baton and Claimant testified, Officer Therrien kicked him in the head during the course of the struggle. Claimant also testified that he was struck on the hand with a baton prior to being handcuffed to make him release his grip on the baton and that he was again assaulted while being carried to the Special Housing Unit and that his shoulder was injured while he was being put into the cell.
The version of events offered by Defendant also involves correction officers employing force against Claimant but only for the purposes of self-defense and to restrain Claimant.

Justification is a defense to an action for battery (2 NY PJI 26 [Supp]). Justification in using physical force exists for a correction officer when an inmate resists or disobeys any lawful direction and it is necessary to maintain order or enforce observation of discipline (Penal Law §35.10[2]; Correction Law §137[5]). To establish the defense Defendant must demonstrate that the officer used objectively reasonable force (see,
Higgins v City of Oneonta, 208 AD2d 1067).
Correction Officer Therrien testified that Claimant did not have his spoon as he left the mess hall and so he was instructed to put his hands on the wall and he was frisked. The spoon was not found on Claimant and according to Officer Therrien, nothing unusual occurred during the frisk. The officer testified, however, that Claimant was angry. Claimant was told to get back in line and the group then headed back to the block. At the rotunda area Claimant asked the officer what his name was and reached to grab his name tag. The officer told Claimant to put his hands on the wall but he did not. Instead, he took a swing at Officer Therrien. The officer pulled his baton out and again told Claimant to put his hands on the wall. Claimant kept backing away and again swung at the officer, this time striking him and knocking him down. Eventually, both wound up on the floor struggling over the officer's baton. Other officers arrived to provide assistance and Claimant was placed in restraints. Officer Therrien testified that he left the area after Claimant had been placed in restraints and that he did not kick Claimant in the head during the course of their struggle.

The testimony presents conflicting versions of what occurred during the course of the search and afterward. In Claimant's version the force used was unprovoked and constitutes a battery. In the version offered by Defendant force was used only to restrain Claimant and was reasonable under the circumstances. Liability, or the absence of it, depends on crediting one version rather than the other.

A videotape of a portion of Claimant being escorted to the Special Housing Unit after the incident was reviewed by the court. The tape shows an uncooperative Claimant who had to be carried to SHU. There is no instance, as Claimant testified, of his being assaulted as he is carried to SHU or of the officers doing anything improper when placing him in the cell. Given Claimant's inaccurate testimony as to what occurred after the video camera was brought to the scene and turned on, his testimony as to what happened prior to that time is rejected. Accordingly, the claim based upon battery is dismissed.

The bailment claim is based upon loss of personal property which occurred after Claimant was placed in SHU and the personal belongings in his cell were packed by correction officers. According to Claimant he had a large number of books ranging in age from three months to fourteen years. The books, some of which were hardback, were packed separately from his other property and never returned to him. Defendant did not contest that the books were lost.

Claimant is awarded $100 for the loss of personal property with interest from May 15, 1999.

Now, therefore, it is

ORDERED that to the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act section 11-a(2), and it is
ORDERED that judgment be entered accordingly.

June 20, 2001
Saratoga Springs, New York

Judge of the Court of Claims

[1]Claimant testified that he left the spoon on his tray.