This claim arises out of an incident which occurred at Greene Correctional
September 11, 1998. The Claimant was an inmate at that facility who
injuries allegedly as a result of an assault by a
Claimant testified at the trial of this matter that on September 11,1998 he
was involved in an altercation with another inmate known to him as Paono.
Correction Officer Wallingford responded to the scene and called the fight
According to Claimant, other inmates broke the fight up even before the response
team appeared on the cell block. While Claimant stood in front of his cubicle,
Correction Officer Zemkin appeared on the cell block. According to Claimant,
this officer came running down the cell block screaming. He grabbed Claimant
and threw him to the floor, and then fell on top of Claimant. While Claimant
was on the floor, Officer Zemkin repeatedly punched and kicked Claimant about
his face and body. According to Claimant, he struck the officer one time, in
the ribs, in self-defense. Once Officer Zemkin placed Claimant in handcuffs, he
pulled Claimant to his feet and pushed him headlong into a metal window grate
causing a laceration to his head. Finally, Claimant testified that while
Officer Zemkin escorted him to the infirmary, he continued to punch Claimant
about his body. Claimant alleges that he suffered personal injuries with
accompanying conscious pain and suffering as a result of the aforementioned
excessive force used by Officer Zemkin.
Two inmates testified at the request of Claimant. Each of these witnesses at
the time in question were confined to the same cell block as Claimant and
testified that they witnessed the above. It was apparent from their testimony
that they were sympathetic to their fellow inmate's cause. They each testified
that Claimant never struck either Correction Officer Wallingford or Zemkin.
These witnesses were proffered to convince the court that C.O. Zemkin's actions
were unprovoked. It should be noted that each of these two eyewitnesses did
verify that Claimant was involved in a fight with a fellow inmate just prior to
Officers Wallingford's and Zemkin's intercession.
Correction Officer Wallingford, an eight year veteran of Greene Correctional
Facility, testified that he was on the E-1 dormitory when he witnessed a fight
between Claimant and inmate Paono. He observed "blows being struck, right and
left handed, by both inmates."
He immediately yelled "On the Count!,"
the pin on his radio and ran down to the end of the dormitory near where the
fight was taking place. Once he stepped between the combatants, the fight
concluded and Claimant, and inmate Paono returned to their respective cubicles.
At this time, C.O. Wallingford realized that the alarm he had triggered had
failed, since no response team had arrived. He went back to his desk and by
telephone called for the response team. During this time, Claimant started the
fight anew with inmate Paono. C.O. Wallingford, still the lone officer in this
area of the dormitory, ran back to the fight location and again attempted to
separate the inmates. He stepped between them and, as he faced inmate Paono
with his hand on Paono's chest pushing him backward, he was struck on his back.
While he did not see who struck him, Claimant was close at his back as he
attempted to stop this fight. According to Officer Wallingford, Claimant and
inmate Paono continued to throw punches at one another as he stood between them.
He testified that he was not having much success breaking up the fight, and he
thought this physical struggle lasted between thirty seconds and two minutes
before C.O. Zemkin arrived as "the first officer on response." As Wallingford
faced inmate Paono and was pushing him away, and Claimant was still behind him,
he felt a brush on his back and then saw the Claimant and C.O. Zemkin go to the
floor. He then observed C.O. Zemkin struggling on the floor. Once C.O. Zemkin
was able to place Claimant in handcuffs the struggle ended.
Finally, C.O. Wallingford identified certain Department of Correction documents
which refuted Claimant's testimony that C.O. Zemkin escorted Claimant to the
infirmary. Instead they reflect that Correction Officer Saddlemire escorted
Claimant to the infirmary without incident. Wallingford explained that it is a
department policy to have an uninvolved officer escort an inmate to the
infirmary so as to avoid further animosity between the parties.
Correction Officer Zemkin, a thirteen year veteran with the Department of
Correctional Services, on September 11, 1998 was posted in the south yard
observing the recreation yard and contiguous dormitories when he received the
radio call that summoned the red dot response team to E-1 dorm. As the first
officer through the door, he saw Claimant at the end of the dorm, approximately
25 feet away, standing behind C.O. Wallingford striking him repeatedly across
the back as Wallingford faced another inmate. He then saw Claimant turn toward
him and square off in a fighting position as he approached to assist C.O.
Wallingford. Officer Zemkin grabbed Claimant by his shirt collar as Claimant
struck him several times in the face. Zemkin then pulled Claimant to the floor
with a hip toss and then fell upon him in an effort to subdue him. It was when
they fell together to the floor that Officer Zemkin believes that the Claimant
struck his head upon the nearby radiator or upon the floor. Zemkin was able to
quickly handcuff Claimant's left hand, however, they continued to struggle upon
the floor as Claimant did not immediately comply with his order to give him his
right hand. Once Claimant was handcuffed, C.O. Zemkin pulled him to his feet,
escorted him off of the wing and relinquished him to Correction Officer
Saddlemire for transport to the infirmary.
Correction officers are authorized to 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). 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."
When 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, 279). To determine whether use
of force was necessary in a specific situation and, if so, whether the force
used was excessive or unreasonable, a Court must examine the particular factual
background and the circumstances confronting the officers or guards (see, e.g.,
Hudson v. McMillian
, 503 US 1, 7 [the core inquiry in assessing excessive
force claims brought against prison officials is "whether force was applied in
a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm."]; Lewis v State of New York
, 223 AD2d 800;
Quillen v State of New York
, 191 AD2d 31; Brown v State of New
, 24 Misc 2d 358). Often the credibility of witnesses will be a
critical factor in these determinations (Davis v State of New York
AD2d 234; McKinley v State of New York
, decision, Claim No. 97500 &
97648, dated Sept. 22, 2000, Lebous, J.).
It is undisputed that immediately before the alleged assault, Claimant and
inmate Paono were fighting. C.O. Wallingford considered the fight so serious
that twice he called it in and asked for backup. While the testimony differs as
to whether the fight was continuing at the time that Zemkin arrived, the Court
credits the testimony of the two Correction Officers that at that point Claimant
was continuing his effort to attack Paono, although C.O. Wallingford was
positioned between the two inmates. In light of this, the situation as C.O.
Zemkin perceived it when he arrived on the scene is easy to fathom. The
situation undoubtedly appeared serious, and it reasonably warranted physical
intervention, if necessary, to halt the violence. In light of Claimant's
flagrant disregard for the truth in testifying that C.O. Zemkin continued to
beat him all the way to the infirmary, when the evidence clearly reflects that
C.O. Zemkin was not involved in the escort process, the Court rejects his
account of the events that took place while C.O. Zemkin was applying restraints.
Furthermore, the Court finds that the injuries Claimant suffered were caused by
his initial fight with Paono and/or when he strongly resisted the officer's
efforts to subdue him.
The record in this claim does not support a finding that the corrections
officer acted unreasonably or used excessive force. Claimant has failed to
establish his claim by a preponderance of the credible evidence. Consequently,
the claim must be dismissed.
Let judgment be entered accordingly.