Richard Brisman, the Claimant herein, alleges that he was injured by a
Correction Officer while in transit from the mess hall through the connecting
gates to his cell block. He seeks recovery from the state for the alleged
incident. Trial was held at the Sing Sing Correctional Facility (hereafter Sing
Sing) on July 27, 2001.
Claimant testified that on September 1, 1997 at approximately 7:45 am he was
coming back from the mess hall, approaching the Officer in Charge's room. As
directed by Correction Officer V. Hereford, he stopped until she told him he
could pass. He started walking, she told him to come back again. He inquired
as to why she let two other prisoners pass; she did not answer. He testified
that she then slammed the gate purposely on his back, causing him to stumble to
the floor, and injuring his back and arm. Claimant reported the incident to
Correction Officer F. Eaves, who referred him to the emergency room for
The Claimant filed a Grievance on or about September 4, 1997, which was denied
on or about September 25, 1997. [Claimant's Exhibit "1"] The Decision of the
Superintendent indicates that the matter was investigated by Sergeant Murray,
who interviewed the Claimant herein, Correction Officer Hereford and Correction
According to the Sergeant's investigation, Correction Officer Hereford had
directed all the inmates to stand behind the gate before she shut the gate. She
stated that she had neither witnessed claimant being hit by the gate, and had no
knowledge of any injury. Correction Officer Eaves advised the reviewing officer
that the Claimant had told him of the alleged incident about 20 minutes after he
had been secured in his cell. Sergeant Murray reported: "it is my belief that
the injury was self inflicted or the result of an unintentional accident.
Either way, the injury was minor, and treatment was given in a timely fashion."
Memorandum from B. Murray to Captain McElroy dated September 11,
1997]. Finding that nothing other than the claimant's own statement supported
his version of events, the grievance was denied.
Correction Officer Vanetta Hereford also testified. She indicated she had no
recollection of the alleged incident or indeed of the claimant.
The legible portions of the "Report of Inmate Injury" dated September 1, 1997
. ] indicates that the claimant received some treatment on that date
for an abrasion above his elbow, and a cold compress was applied to the area
affected. There was no evidence of any other medical treatment of this claimant
related to this alleged incident.
"[C]ivil assault ‘is an intentional placing of another person in fear of
imminent harmful or offensive contact'; civil battery ‘is an intentional
wrongful physical contact with another person without consent'....(
." Charkhy v. Altman
, 252 A.D.2d 413 (1st. Dept.
1998). With varying degrees of mens rea
, criminal assault requires
physical contact as well as injury of some kind. See
, § 120.00
., New York State Penal Law (McKinney's 2001). Even a criminal
assault defined as "reckless," requires that the actor be "aware of and
consciously disregard a substantial and unjustifiable risk that..." injury will
result from her conduct. §15.05(3) New York State Penal Law (McKinney's
In this case, the claimant has failed to prove by a preponderance of the
credible evidence that any incident occurred as he described it. Correction
Officer Hereford credibly testified that she neither recalled the claimant
generally, nor recalled any incident involving a gate closing on an inmate.
What little proof of injury there was, as contained in the "Report of Inmate
Injury" referred to above, does not support the claimant's allegations without
some further explanatory medical testimony, which was not provided.
Claimant's testimony was somewhat unclear, and unsupported by any other
evidence. Indeed, he apparently did not even report the alleged incident until
almost an hour had elapsed, belying his claims of injury.
Even if the gate operated by Correction Officer Hereford struck the claimant as
he alleges, there has been no showing of any conduct on the part of the state's
employee which would warrant recovery against the state. Claim number 97185 is
dismissed in its entirety. Any motions made at trial, upon which the Court
reserved decision, are now hereby denied. The Chief Clerk is directed to enter