New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2001-030-523, Claim No. 98371


Inmate's claim alleging excessive force by correction officers dismissed for failure to establish claim by preponderance of the credible evidence. Credible testimony established Claimant acted in a verbally belligerent, physically aggressive manner, necessitating a level of force sufficient to restrain a reasonably perceived threat

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:
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Signature date:
October 15, 2001
White Plains

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See also (multicaptioned case)


Kenneth Jones, the claimant herein, alleges in Claim number 98371 that he suffered personal injuries at Sing Sing Correctional Facility (hereafter Sing Sing) because of the use of excessive force by Correction Officer J. Harvey. Trial of this matter was held at Sing Sing on August 17, 2001.

Claimant relied upon the factual allegations contained in his claim, his own testimony, and the testimony of three other witnesses at trial. He stated that on July 10, 1997 at approximately 2:55 pm he was preparing to leave the inmate visiting room and frisk area at Sing Sing, awaiting an escort back to his housing area. He recalled hearing Correction Officer(C.O.) Harvey calling out for an inmate "Greene" several times from the Officer in Charge (OIC) Desk. Since his name is not "Greene", Claimant indicated he continued his conversation. When claimant finished his conversation he approached the OIC desk to announce he was ready to go back.

Officer Harvey "stepped down from the OIC desk and approached...[claimant], stating in a hostile manner, ‘You can't hear!' I replied: ‘I didn't hear you calling me, nor do I appreciate you talking to me in such fashion.'"[1]
[Claim No. 98371, Paragraph 6]. "C.O. Harvey then attempted to hand me an institutional pass and an ID card, I told Officer Harvey that since I was placed in ‘Special Housing' I wasn't allowed to receive the pass and ID card, that it was to be given to the escort officer...." [Claim No. 98371, Paragraph 7].
"I realized that C.O. Harvey was mistaken but complied with his directions, simultaneously informing him that my name was not ‘Greene.' C.O. Harvey looked at me with a puzzled and frustrated expression on his face, apparently angered thinking that claimant was playing on his intelligence. He yelled at me to ‘take your ass to the door!'" [Claim No. 98371, Paragraph 8].

Claimant alleged when he proceeded through to the other side of the door "suddenly Officer Harvey pushed me from behind very forcibly, causing me to lose my balance." [
Ibid.] When Claimant regained his balance he asked Officer Harvey "What are you doing?" Then, "[o]ther officers gathered around me with C.O. Harvey facing me in the center. Officer Harvey was hostile with his body language, removing a watch or gold bracelet from his arm, placing it in his pocket simultaneously stating: ‘You really think you tuff.' [Claimant did not reply]....'If you really want to get your little ass whipped, I can provide the service, because you ain't tuff, you're just a little punk.' Suddenly, without any provoking on claimant's behalf, C.O. J. Harvey punched...[him] in the face with a closed fist." [Ibid.]
Claimant asserted other officers then grabbed him, and attempted to handcuff him. "Officer J. Harvey, cursing and yelling while I was being restrained, out of the clear blue, assaulted claimant by hitting me over the head with his walkie-talkie radio transmitter, causing severe laceration, contusion and bleeding." [Claim No. 98371, Paragraph 9].

In a Use of Force Report completed by Correction Officer Charles Daley, who also testified, it is noted that the officer Daly "...attempted to place inmate a prone position on the floor. ...[the officer] then used ...[his] right hand to grab...[claimant's] right hand, attempting to place it behind his back. When...[claimant's] right hand was finally placed behind his back,...[the officer] applied the mechanical restraints." [Claimant's Exhibit "1", Use of Force Report, C. Daly, dated July 10, 1997].

Officer Daly testified that his assigned post on July 10, 1997 was as "Inmate Frisk Officer", responsible for "strip frisking inmates leaving the visiting room." He stated that he was "standing by the ‘new package' room" when he "heard an aggressive argument in the visitor's room." He "saw Claimant and Officer Harvey in a fight." Claimant was described as "resisting violently."

He did not recall Officer Harvey calling out for an inmate "Greene" earlier, nor did he observe Officer Harvey - or the Claimant - becoming angry, because he was not in the immediate area of the visiting room.

Later, after claimant was handcuffed by Officer Daly, he did not see Officer Harvey hit claimant with a walkie talkie as alleged. He described Claimant as behaving "aggressively" and generally as "violent." He stated that the "inmate became aggressive and did not want to comply with a direct order."

Correction Officer James Harvey testified at length. He recalled calling for an inmate "Greene", and that he had assumed Claimant was inmate "Greene." The basis for his assumption, in addition to the basic assumption that Claimant was inmate Greene, had been "where [Claimant] was standing" and the "fact that the ID card being used for [Claimant] was not a standard State ID was a photo without a name." The witness denied becoming "annoyed", or questioning the Claimant's ability to hear in a hostile manner, but instead remembered the Claimant as having spoken to him in a "belligerent manner." He confirmed that "a radio is assigned to the area", and that he generally "would carry" with him "a radio assigned to the area." He denied striking Claimant in the head with a walkie talkie.

He testified on Claimant's direct examination of him that there was "a violent struggle, precipitated by...[claimant's] failure to follow the orders...[he]
gave [to claimant]." He stated: "...[Claimant] approached me in an aggressive manner, and in an attempt to ward off...[claimant's] advances...[the officer] struck ...[claimant]. After striking...[Claimant],... [Claimant] violently resisted and there was a very violent altercation in which all of us ended up on the floor." He couldn't answer Claimant's questions about how claimant may have sustained injuries, stating: "How you sustained injuries I don't know, there's a multitude of ways you could have sustained injuries given the violent nature of our struggle. I don't know how you sustained injuries, I know what I did to you.....I struck you with my right hand in the face."
On cross-examination by Defendant, the witness stated he had given inmate Jones "an order to return to the inmate frisk area because his presence was requested back there for a disciplinary hearing," at least inmate "Greene's" presence was requested. Claimant "refused" the direct order, then refused a second time. When the witness ordered the inmate to "take his ID card and proceed to the door,...[Claimant] said ‘That's not my fucking job,... that's the police job.'" When asked to comply the second time, Officer Harvey stated Claimant again refused. He stated he then stepped down to escort the inmate to the back, describing Claimant as "getting aggravated, saying I was riding him and so on and so forth, becoming more and more agitated".

The witness stated Claimant "came toward me...with clenched fists. My experience as a correction officer took that to mean hostile behavior and an attack towards me, so I took measures to defend myself, by striking inmate Jones on the right side of his face with a closed fist right hand. After I struck him, he became much more angry and violent. He charged toward me, we clenched, and we ended up in a violent struggle on the floor."

Officer Harvey asserted that Claimant never corrected his misconception that the Claimant was the inmate "Greene" for whom he had been calling. He noted that a pre-existing injury to his shoulder was aggravated by the altercation.

An Inmate Misbehavior Report, completed by Officer Harvey at the time of the incident, describes it in essentially the same fashion, with a little more detail as to the particulars of the "belligerent" commentary he testified Claimant engaged in from the beginning of their contact, as well as the added information that Claimant spat at the correction officer when Claimant was in restraints. [Claimant's Exhibit "2", Inmate Misbehavior Report, J. Harvey, dated July 10, 1997]

Correction Officer Cheryl Lilly testified. After her recollection was refreshed, she remembered the incident, and remembered Claimant spitting at Officer Harvey while he was in restraints getting off the floor, and the spittle hitting her. She said, "once you get spit on, that's it...I don't remember much else." She did not recall Officer Harvey striking Claimant with a walkie-talkie as alleged.

When Claimant was taken for medical treatment, he was examined by C. DeVito, who completed a Use of Force Report as well. [Claimant's Exhibit "5", Use of Force report, C. DeVito PA-C, dated July 10, 1997]. Her report indicates: "On 7/10/97 at [about] 3:00 pm Inmate Jones came to ER s/p injury to scalp...(
illegible) unknown object. He sustained small [about] ½ " laceration to...[right] parietal scalp....cleansed...[with] betadine, hemostasis achieved,...applied...[three] 4.0 poly sutures, edges approximated well, bacitracin applied." The Report of Injury form indicates that the sutures were to be removed within "7-10 days." [Claimant's Exhibit ‘6", Report of Inmate Injury, C.DeVito, PA-C, dated July 10, 1997].
Two close-up photographs taken of Claimant by a correction officer at approximately 3:05 pm on July 10, 1997, show blood on the right side of his face and head. [Claimant's Exhibit "4", Four Photographs taken on July 10, 1997 by C.O. J. Ferrer]. Two other, very unclear, photographs, apparently taken from further back, depict the claimant from the ankles up. [
Ibid.] Because of the lack of clarity of these photographs, the extent or degree of any injuries cannot be seen.
No other witnesses testified.

Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part "....[w]hen any inmate...shall offer violence to any person,...or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline,[and] to secure the persons of the offenders...." Correction Law § 137 (5). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use "...[t]he greatest caution and conservative judgment determining...whether physical force is necessary; and...the degree of such force that is necessary." Once an officer determines that physical force must be used, "...only such degree of force as is reasonably required shall be used." 7 NYCRR § 251-1.2(b). The state may be liable for the use of excessive force by its employee under the concept of
respondeat superior. See, Jones v State of New York, 33 NY2d 275,279 (1973) and Court of Claims Act § 8.
To assess whether force was necessary, or whether the particular degree of force used was reasonable, "...a Court must examine the particular factual background and the 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). Often the credibility of witnesses will be a critical factor in these determinations (Davis v State of New York, 203 AD2d 234;....citation omitted)." Kosinski v State of New York, Claim Number 97581 (November 30, 2000, Sise, J.)
Here, Correction Officer Harvey credibly testified as to the events leading up to the use of force against the Claimant, as well as his observations of Claimant's general demeanor. Correction Officers Daly and Lilly, respectively, also credibly testified as to their observations of Claimant's general demeanor before the restraints were applied, and after. Claimant's own testimony confirms that he did not respond to the direct orders given by Correction Officer Harvey. The Court found C.O. Harvey consistently credible, from his description of the Claimant's unwillingness to respond to conversation clearly directed at him - whatever name the officer was calling him - as well as his indication that Claimant never said simply "I am not Greene." Claimant chose instead to act in a verbally belligerent, and physically aggressive manner, necessitating a level of force sufficient to restrain a reasonably perceived threat. No one other than the not very credible Claimant stated that Claimant was struck by Officer Harvey with a walkie-talkie. The Court is simply not convinced that any additional force beyond that necessary to restrain and handcuff this Claimant was used as Claimant alleged.
C.f., Lewis v State of New York, supra. Any injuries suffered seem connected to the take-down maneuver: all the officers and Claimant confirmed that this was a violent struggle, in which not only Claimant suffered injury, but officer Harvey exacerbated a pre-existing injury.
Accordingly, Claimant has failed to establish by a preponderance of the credible evidence that the physical force used on him by Officer Harvey was excessive, and Claim Number 98371 is hereby dismissed.

Let judgment to entered accordingly.

October 15, 2001
White Plains, New York

Judge of the Court of Claims

[1]All quotations are to trial notes or audiotapes unless otherwise indicated.