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
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
, 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
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
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,
, 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.
, 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
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