New York State Court of Claims

New York State Court of Claims

VOGLER v. THE STATE OF NEW YORK, #2002-013-525, Claim No. 99674


Prison inmate failed to sustain his burden of proving that correction officers' use of force was not privileged, reasonable or justified under the circumstances.

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:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 31, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


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 denied.

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 circumstances" (
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, 163 Misc 2d 623). Accordingly, the requirements of §11(b) of the Court of Claims Act have been satisfied, and I hereby strike, sua sponte, the Defendant's third affirmative defense. I will proceed to discuss the claim on its merits.
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 razor.

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 [5]). 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
respondeat superior (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 York, 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 dismissed.

All motions not heretofore ruled upon are now denied.


December 31, 2002
Rochester, New York

Judge of the Court of Claims