New York State Court of Claims

New York State Court of Claims

SIMS v. THE STATE OF NEW YORK, #2001-030-504, Claim Nos. 97228, 96991


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97228, 96991
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
August 29, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Robert Sims, the Claimant herein, alleges he was assaulted by
Correction Officer Sergeant Daniel Weeden on August 15, 1997. He filed two claims asserting the same allegations, which were combined on consent as duplicative at the trial held of this matter on July 27, 2001 at Sing Sing Correctional Facility (hereafter Sing Sing). Also heard at the same time was claim number 97290 alleging medical malpractice among other things. Exhibits were marked in a continuous series for the three claims.[1] The Court has carefully reviewed the Notices to Admit referred to above, and finds that none of the facts asserted therein are pertinent to the Claimant's assault allegations

At the trial, the Claimant testified to essentially the same facts contained in his claims. He asserted that Sergeant Weeden had come to his cell to act as his Assistant [
see, 7 NYCRR § 251-4.2 2001] for a Tier III disciplinary hearing. Claimant alleged that while he was giving Sergeant Weeden a list of things he needed, Sergeant Weeden punched him in the face by his right eye area "for no apparent reason and without provocation." [Claim 97228, dated October 16, 1997, paragraph 3]. Photographs were taken of the claimant by Sergeant Romaine at the time of the alleged incident. [ Claimant's Exhibits "1" and "2"]; and Sergeant Weeden wrote what the Claimant testified to as a false misbehavior report alleging rules violations by Claimant. [Claimant's Exhibit "3", Inmate Misbehavior Report, dated August 15, 1997].
The Ambulatory Health Record (hereafter AHR) for the date of the alleged assault indicates that the Claimant had complained of "pain in his right eye." [Claimant's Exhibit "6", Ambulatory Health Record for August 15, 1997 through August 19, 1997.] Where they are legible, the notes indicate that the " ... sclera of [Claimant's] right eye clear
no redness or swelling along lid ... (illegible) has no change to vision, slight swelling noted along right cheek bone, no break in skin, cold compress to area, tylenol for pain ... (illegible)." [Claimant's Exhibit "6", Page 1]. There is no notation of an alleged assault and resultant injury as being the presenting problem.
Sergeant Daniel Weeden also testified. He stated that he had gone to the Claimant's cell in the Special Housing Unit (SHU) to act as his Assistant for a pending disciplinary hearing. The Claimant gave him a witness list. While the Sergeant was reviewing the list he stated to Claimant, in words or substance, "If these witnesses are not relevant to the hearing then I am under no obligation to get them for you." Sergeant Weeden testified that the Claimant began rubbing his eyes and shouting out "Ow! Sergeant hit me in the eye!" at which point other inmates began shouting out "Yeah, Yeah, I saw that!"

Sergeant Weeden indicated that he had no awareness of any photographs being taken, although the taking of such photographs would generally occur when an inmate alleges he is assaulted. At the point when the Claimant was calling out for witnesses, Sergeant Weeden recalled that Sergeant Romaine, who apparently took the photographs, was walking another inmate out to recreation. To the witness' knowledge, Sergeant Romaine was not present during the alleged incident. After calling Captain McElroy, Sergeant Weeden terminated the assistance and wrote a misbehavior report, as directed by the Captain. No use of force report appears to have been filed. 7 NYCRR § 251-1.3 (2001).

Liability may be found when defendant's employees use excessive physical force against an inmate causing physical injuries without justification.
Brown v State of New York, 24 Misc. 2d 358 (NY Ct. Claims 1960). Whether any force used was more than necessary under the circumstances is the standard of review. Jones v State of New York, 33 NY2d 275 (1973); See, generally, 7 NYCRR § 251-1.2 (2001).
Before turning to any question of the degree of force, however, resolution of this claim rests upon the respective credibility of the Claimant and Sergeant Weeden. Resolving issues of credibility is the province of this Court as the trier of fact.
LeGrand v State of New York, 195 AD2d 784 (3d Dept. 1993), lv. denied, 82 NY2d 663 (1993).
On the whole, the testimony of Sergeant Weeden was more credible than that of this Claimant. Claimant's medical record [ Claimant's Exhibit "6"], substantiates only his subjective complaints of pain in the right eye area. The eye is otherwise described as "clear" and without "redness." While there is an indication by the nurse of "slight swelling . . . along right cheek bone," there is no evidentiary connection between this alleged "injury" and the kind of assaultive conduct alleged, to wit: being punched in the eye; without some other evidence.

The Claimant has failed to establish by a preponderance of the credible evidence that Sergeant Weeden assaulted him. Accordingly, the Court finds and concludes that no such assault occurred in this case, and Claim numbers 96991 and 97228 are dismissed in their entirety. The Chief Clerk is directed to enter judgment accordingly.

August 29, 2001
White Plains, New York

Judge of the Court of Claims

In connection with this intermingling of the three claims, at least two Requests for Admission appear to have been served since the claims were filed. § 3123 Civil Practice Law and Rules. In a previous decision of this Court (M-60845; Ruderman, J., January 4, 2000), the Defendant's application for an extension of time within which to respond to the claimant's Notices to Admit was denied. The Court stated in pertinent part "...that which was properly set forth in the Notices to Admit is deemed admitted. Claimant is reminded that merely because the Court has granted his application, does not establish his entitlement to judgment and that he will be held to his burden of proof at trial."