New York State Court of Claims

New York State Court of Claims

MAJOR v. THE STATE OF NEW YORK, #2001-011-103, Claim No. 98459


Synopsis


Claimant's cause of action for battery based on an allegation that Claimant was physically attached by correction officers is dismissed.

Case Information

UID:
2001-011-103
Claimant(s):
SHA-KIM MAJOR
Claimant short name:
MAJOR
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98459
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Sha-Kim Major, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Michael W. Friedman, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
June 20, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 correction officers.

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[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 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 Claimant.

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.

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.

June 20, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims