New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2001-013-517, Claim No. 97090


Prison inmate failed to sustain his burden of proving that he was injured by an excessive use of force on the part of prison guards, where he was found guilty of disciplinary charges brought against him arising from the incident and where there was no proof of physical injury.

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: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December , 2001

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on August 5, 1997, at Gowanda Correctional Facility (Gowanda). Claimant was being escorted from the recreation yard to Cell Area No. 43, within the Special Housing Unit (SHU), by Correction Officers Parkin and Gagliardi. At trial he testified that when they reached the cell area, he was ordered to face the wall, put his feet together, and slide his hands up the wall. He was then told to step back from the wall, which he did. The officers then told him to step back further but he told them that he was unable to do this without sliding down the wall because his back was hurting. He testified that when he did not step back far enough to satisfy them, the officers began kicking at his feet, causing him to slide down the wall. At that point, according to Claimant, the officers grabbed him, "slammed" him to the floor, placed a knee on his head, applied a restraint mechanism and flung him onto his bed in the cell. Claimant stated that this aggravated an injury to his back, which he had sustained on May 3, 1997 when he was assaulted by another Correction Officer while housed on the other side of the SHU.

Claimant was seen by a nurse in his cell, which is mandatory whenever there is an incident involving physical contact between an inmate and an officer, and he complained about aggravation of his earlier back injury. Claimant stated that he subsequently received a CAT scan which indicated an injury to his head.

Claimant's medical records (Exhibit 1) contain reports of his examination in his SHU cell on August 5 and 6, 1997. The notes for August 5 indicate that Claimant refused to say anything when asked if he had any pain and that no injuries were noted. The entry for August 6 reports no evidence of injury upon examination, but indicates that he had complaints of back pain in the lumbar region, the site of the earlier injury. A subsequent CAT scan of the sinus area revealed "essentially normal" results.

On cross-examination, Claimant acknowledged that he was charged with a variety of offenses in connection with this incident. He stated that he was found guilty of refusing to obey a direct order and refusing to comply with a search, but not guilty of the other charges.

Defendant called Correction Officer Brian Parkin, one of the officers allegedly involved in the incident, as a witness. He testified that he had no independent memory of the incident prior to reviewing the records before trial. The narrative portion of the Use of Force Report (Exhibit A) indicates that Claimant failed to comply with the officers' directions regarding his position so that they could pat-frisk him and then became "verbally uncooperative" and resisted physically. At that point, each officer grabbed one of his arms, and he was "guided" face-down to the floor, where mechanical restraints were placed on his hands. The Inmate Misbehavior Report (Exhibit B) contains a similar account.

Defendant also called Lon Wallschlaeger, a Registered Nurse who works at Gowanda. He testified that he completed the medical examination section of the Use of Force Report (Exhibit C), on which he wrote "Inmate examined - No injuries noted or expressed." He also confirmed that he prepared the notes contained in Claimant's Ambulatory Medical Record for August 5 and 6, 1997.

The State is authorized and required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (Flaherty v State of New York, 296 NY 342). Correction officers may use "all suitable means" to defend themselves, maintain order, enforce discipline, and prevent escapes, and this may include physical force against inmates "in self defense, or to suppress a revolt or insurrection" (Correction Law §137[5]).[1] Where correction officers or others empowered by governmental entities to use force in carrying out their duties use more force than is necessary or reasonable under the circumstances, the cause of action is an intentional tort, for which the employer may be liable under the theory of respondeat superior (Jones v State of New York, 33 NY2d 275, 280). To determine, in a given instance, whether use of force was necessary and, if so, whether the force used was excessive or unreasonable, a Court must examine the specific circumstances confronting the officers or guards (see, e.g., Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358), and often the credibility of witnesses is the determining factor (Davis v State of New York, 203 AD2d 234).
Assessment of credibility is difficult in this instance, because the witness who was present at the time of the alleged use of excessive force disclaimed any independent memory of the event. Claimant's account of the events was certainly not incredible. Quite likely, the truth of the event lies somewhere between Claimant's account and the description recorded by the officers in contemporaneous records. I am unable to find any evidence to support a conclusion that excessive force was used in this incident. Claimant's assertion that the force was unwarranted must be balanced by the finding of guilt in his subsequent disciplinary proceeding. In addition, I do not find that the medical records support the claim of exacerbated injury to his back or injury to his head.

Claimant has failed to prove his claim by a preponderance of the credible evidence. The Chief Clerk is directed to enter judgment dismissing the claim.

All motions not heretofore ruled upon are hereby denied.


December , 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]The relevant regulation of the Department of Correctional Services (DOCS), 7 NYCRR §251-1.2, directs employees to use "[t]he greatest caution and conservative judgment" in determining whether physical force is necessary and, if so, the degree of force necessary. "Where it is necessary to use physical force, only such degree of force as is reasonably required shall be used." Employees are permitted to lay hands on or strike inmates only if necessary "for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape."