Claimant sustained serious injuries on June 1, 1998, when he was allegedly
assaulted by correction officers while an inmate in C block at Attica
Correctional Facility (Attica).
At the beginning of trial, Claimant made an oral application for an adjournment
of trial to seek counsel to represent him. Notably, Claimant had been given
five months' advance notice of the commencement of trial; more than sufficient
time to secure counsel. Accordingly, his application for an adjournment was
In his claim, Claimant alleges that four named correction officers
intentionally assaulted him at approximately 6:55 p.m. on June 1, 1998, at
Attica. By its third affirmative defense, Defendant alleges that the claim fails
to state the place where the claim arose with sufficient particularity as
required by §11 of the Court of Claims Act. Pursuant to §11(b), the
claim must set forth the "place where such claim arose." The purpose of this
requirement is to give the State prompt notice of a claim and sufficient
opportunity to investigate the facts (
Sheils v State of New York
, 249 AD2d 459).
Court of Claims Act §11(b), however, does not require absolute exactness.
Rather, it requires "sufficient definiteness to enable the State to be able to
investigate the claim promptly and to ascertain its liability under the
Wharton v City Univ. of N.Y.
, 287 AD2d 559, 559-560, quoting Grumet v
State of New York
, 256 AD2d 441, 442; see also
, Heisler v
State of New York
, 78 AD2d 767). Here, the claim arose at a State-run
correctional facility where Claimant was an inmate, and allegedly involved four
correction officers of that facility, all employees of the State. Under these
circumstances, the Defendant had, or should have had, ample notice of the
occurrence, its location, and sufficient opportunity to investigate the facts
surrounding the claim (see
, Cannon v State of New York
Misc 2d 623). Accordingly, the requirements of §11(b) of the Court of
Claims Act have been satisfied, and I hereby strike, sua sponte
Defendant's third affirmative defense. I will proceed to discuss the claim on
Claimant testified that he had been an inmate in the general population at
Attica for approximately two years at the time of the alleged assault.
According to Claimant, he was going to the recreation yard from his cell in "C"
Block when he was assaulted by four correction officers.
Initially, Claimant testified that the assault was in retaliation for his
having made a complaint to the FBI regarding an earlier assault he had witnessed
by a correction officer on another inmate. Upon further questioning, Claimant
admitted that the only complaint he made to the FBI was in regard to the subject
assault, and that he had made no prior complaint to the FBI or to anyone at
Attica regarding the earlier assault he purportedly witnessed.
As he was coming down the stairs from his cell on the second floor to the yard,
Claimant testified that Correction Officer (CO) Gee ordered him and another
inmate to step out of line and hug the wall. After sending the other inmate to
the yard, Claimant testified that CO Danheim asked him what he had in his mouth.
Claimant responded: "nothing." One of the correction officers then allegedly
slugged Claimant and threw him to the floor, where the Correction Officers knelt
on him with their full body weight. Claimant believes that his collapsed lung
and fractured ribs occurred as a result of the combined weight of the Correction
Officers on him. While his arms were pinned, Claimant testified that he was
beaten with night sticks. According to Claimant, Sergeant Morris observed this
beating from the lobby area and did nothing to stop it.
Claimant was then allegedly taken to the office, pushed against a wall and
left for half an hour before being taken to the Special Housing Unit (SHU) where
he complained to the medical staff that he could not breathe or feel his arms.
Claimant contends that the infirmary nurse did not render any treatment or give
him any medication. No x-rays were taken because the technician was on
vacation. Claimant testified that he was not taken to see a doctor until a week
after the incident, in spite of his continual complaints of pain and requests
for medical attention. At that time, x-rays were finally taken and Claimant was
sent by ambulance to Strong Memorial Hospital in Rochester, where he remained
for three to four days. While hospitalized, a tube was inserted in Claimant's
chest due to a collapsed lung (pneumothorax), and two or three fractured ribs
were wrapped. Claimant alleges that he also sustained a bruised or sprained
finger as a result of the assault.
Claimant testified that he had no prior involvement, confrontation or conflict
with any of the correction officers who allegedly assaulted him, or with
Sergeant Morris who allegedly witnessed the assault. In fact, Claimant stated
that he had never seen CO Sojda or CO Danheim before the day of the incident.
He did, however, identify CO Gee as being one of the correction officers
involved in the earlier assault on another inmate.
On cross-examination, Claimant denied being in possession of a razor at the
time of the incident, and denied that he had ever filed a complaint against CO
Gee for sexual assault. He admitted, however, that he was sent to SHU for 30
days upon his return to Attica from Strong Memorial Hospital as a result of a
disciplinary hearing, at which time he was found guilty of various offenses
involving this incident.
For its first witness, Defendant called CO Sojda. He had been a correction
officer at Attica for about ten years at the time of the incident, but had no
prior dealings with Claimant. He testified that an incident occurred in the
lobby of Cell Block C during evening recreation when he asked Claimant to step
out of line in order to pat frisk him. Officer Sojda asked Claimant if he had
any contraband. According to Officer Sojda, Claimant would not respond, even
when the question was repeated. Officer Sojda turned to Sergeant Morris and
told him he thought Claimant had something in his mouth. Claimant then
allegedly dropped his head and something fell out. After Claimant tried to bite
Officer Sojda, he pushed Claimant toward the back wall, and they fell to the
ground as Officer Gee entered. A struggle ensued when the officers tried to get
Claimant handcuffed. Officer Sojda denied ever using his night stick.
Eventually, Claimant was cuffed, stood up and faced toward the wall. He was
later taken to SHU.
CO Sojda had no idea how Claimant got a razor. He did testify that contraband,
including razors, had been previously discovered on inmates at Attica.
Defendant next called CO Danheim to testify. He had been a correction officer
for approximately 13 years and had been assigned to Attica since 1993. Danheim
was familiar with Claimant as he was on his company, but he had no prior
altercations with him. Danheim was aware that Claimant had filed a sexual
harassment complaint against him, but he did not know if this complaint had been
filed before the incident in question.
At the time of the incident, CO Danheim was in the corridor lining up inmates
to go to the yard for evening recreation. He responded to the incident, but by
the time he arrived it was over, as Claimant was already handcuffed, and a razor
was on the floor. Danheim retrieved the razor. On the second page of the
Weapon Recovery Form (Exhibit A) Danheim identified a photocopy of the
CO Danheim testified that he had no further involvement with Claimant after
recovering the razor. He denied ever striking, punching or beating the Claimant
and testified that he never removed his night stick. On cross-examination, he
testified that it was not standard procedure for officers to have their night
sticks out when inmates are in the corridor, and that it was left up to the
officer to have it out or not. He further testified that when he heard the
incident and went to assist, there were no inmates left in the corridor.
Danheim did not witness the incident, and when he arrived in the area, the
Claimant and CO's Gee and Sojda were present.
Sergeant David Morris testified that he had been a sergeant at Attica for the
past seven years. As sergeant, he was responsible for what was going on and to
ensure that inmates and employees followed the rules. On the night of the
incident, he was on vacation relief and assigned to Cell Block C. He had never
seen Claimant or had any contact with him before that night.
Sergeant Morris arrived in time to see CO Gee, a large man, put a bear hug on
Claimant and saw them fall to the floor. Before then, an officer had requested
to do a mouth search on Claimant. Morris had consented and then something was
heard hitting the floor, and Claimant allegedly tried to bite one of the
officers. Morris did not see anyone punch, strike, beat or physically molest
Claimant. He did not see any officer use or pull a baton or night stick. He did
see Claimant's hands pulled behind his back and handcuffs applied while Claimant
was still on the floor. Claimant was charged with attempted assault and with a
weapons charge relating to the razor.
Use of physical force against an inmate in the custody of the Department of
Correctional Services is permitted when the inmate attempts to resist or
disobeys a lawful direction (Correction Law §137 ). An officer must use
caution and exercise conservative judgment, however, in determining whether
physical force is necessary (7 NYCRR § 251-1.2[a]), and may use only such
degree of force as is reasonably required (7 NYCRR §251-1.2[b]).
The use of excessive force by a correction officer performing his lawful duties
constitutes a battery and renders Defendant liable under the doctrine of
(Stein v State of New York
, 53 AD2d 988;
Jones v State of New York
, 33 NY2d 275). Whether or not the force used
was excessive is to be determined by the trier of fact upon examination of the
background and circumstances confronting the officers (Hinton v City of New
, 13 AD2d 475; Lewis v State of New York
, 223 AD2d 800). The
credibility of witnesses will often be a crucial factor in these determinations
(Davis v State of New York
, 203 AD2d 234).
None of the witnesses struck me as being completely credible. Initially,
Claimant testified that the assault on him was in retaliation for his having
witnessed an assault on another inmate, yet later he admitted that he never
reported this prior incident to anyone, and further admitted that he had never
even seen two of the officers who allegedly assaulted him here. Finally,
Claimant testified that he was beaten with a night stick by one or more of the
correction officers in such a way that no marks were left.
On the other hand, the testimony of the officers was neither entirely credible
nor consistent with each other. CO Sojda testified that after Claimant tried to
bite him, he pushed Claimant toward the back wall, and they fell to the ground
as CO Gee entered. Sergeant Morris testified that he saw CO Gee put a bear hug
on Claimant, and saw them fall to the ground.
Claimant did sustain serious injuries -- a pneumothorax and several fractured
ribs. These injuries, however, are consistent with injuries one would expect to
see if one or more correction officers sit or kneel on an inmate. In fact, even
Claimant believes that his injuries occurred when he was sat upon. I find that
the officers were justified in attempting to subdue and handcuff Claimant for
his refusal to comply with lawful directives and his attempted assault on an
officer, for which he was subsequently disciplined following a hearing. The
actions of the officers were, thus, privileged. I further find that Claimant
failed to establish, by a fair preponderance of credible evidence, that the
injuries he sustained resulted from the use of excessive force or any wrongful
conduct on the part of the Defendant. Accordingly, the claim is
All motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.