The claim sets forth a cause of action for battery based on an allegation that
Claimant was physically attacked by correction officers on July 25, 1997 at
Great Meadow Correctional Facility.
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 pushed against a
wall while exposing his anal area during a strip frisk. According to Claimant,
after being pushed, a choke hold was applied and he was beaten by a number of
Defendant concedes that force was used on Claimant but contends that only the
amount of force needed to restrain Claimant was used.
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; Correction
Law §137). 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 Stephen Kemp testified that on the day of the incident
Claimant was on keeplock status and when he was released from his cell for
recreation he was scanned with a metal detector. The metal detector indicated
the presence of a metal object in the rectal area and Claimant was escorted to a
room so that a strip frisk could be performed. According to Officer Kemp,
Claimant refused repeated requests to expose his rectal area and while he had
his hands on the wall, Claimant reached around, removed something from his
rectum and tried to put it in his mouth. Officer Kemp testified that he applied
pressure to Claimant's mouth so that he couldn't swallow. A body hold was also
used so that mechanical restraints could be applied. After the restraints were
applied, a coat was placed over Claimant's head because he was spitting blood on
correction officers. Officer Kemp also testified that half a metal razor wrapped
in paper was found
A videotape of a portion of the incident was reviewed by the court. The tape
does not begin until after Claimant was in mechanical restraints and confirms
that the coat was placed over Claimant's head because he was spitting on
correction officers. In addition, the tape does not show any instance in which
correction officers use any more force than is necessary to restrain
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
During the course of his testimony, Claimant reluctantly admitted that a weapon
was found on his person during the course of the strip frisk but incredibly, he
contended that he did not remember where the weapon was found. His lack of
memory on this issue evinces a lack of candor on his part and undermines the
believability of his testimony as to what occurred.
Based upon the foregoing, the testimony of Officer Kemp is credited and the
court finds that the force employed by correction officers was justified.
Accordingly, the claim is dismissed.
Let judgment be entered accordingly.