New York State Court of Claims

New York State Court of Claims

SIMS v. THE STATE OF NEW YORK, #2002-016-097, Claim No. 99418


Synopsis


Claim alleging the use of excessive force at Sullivan Correctional Facility was dismissed.

Case Information

UID:
2002-016-097
Claimant(s):
ROBERT SIMS
Claimant short name:
SIMS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99418
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Robert Sims
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
October 21, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the claim of Robert Sims, which was tried at Sullivan Correctional Facility, where Mr. Sims testified on his own behalf. For its part, defendant called correction officers Scott Hastings, Frederic Leaney and Donald Nelson. As set forth below, claimant asserts that correction officers at Sullivan assaulted him without provocation, while the correction officers maintain that force was used following claimant's refusal to follow a direct order.2

Sims testified that on September 14, 1998, he arrived at Sullivan, shackled to another prisoner. Once there, he said, a correction officer "pushed me into the wall for no apparent reason . . . " Claimant stated that two additional correction officers came and started pushing him and "stomp[ing] on my feet" and "they took . . . . the shackle off the other guy and put both of them on my [feet] . . ."

Sims maintained that he was then taken to a room with no camera, where the correction officers continued to assault him. He testified that an officer placed a needle in his hair and then said "Oh, look what I found! I found a needle."

Claimant testified that he was then taken to another room, which had a video camera, where his restraints were removed. There, a "strip frisk" of claimant was done, after which he was taken to see medical personnel, where he ended up with a band-aid. Sims complained that he was not given pain medication for being pushed into the wall. He also asserted that his knuckles were "dislocated," and that x-rays should have been taken.

Sims recalled that he was next taken to the Special Housing Unit ("SHU") and was issued a misbehavior report. The misbehavior report, prepared by correction officer Hastings (see claimant's exhibit 3) states:
On the above date and time I officer S. Hastings was escorting inmate Sims . . . from the hub bus to the draft area. As we entered the MHU elevator I ordered inmate Sims to go to the back of the elevator and face the wall. At this time inmate "[swore at me and said] I aint doin nothin you say . . . " At this time I took control of Sims by the waist chain and between his shoulders and place[d] him on the wall. I called for a supervisor. Officers Nelson and Odell met the elevator when it opened and helped me escort inmate Sims to the dry cell. Inmate continued to make threats during this process. On removing a piece of thread from inmate[']s dreadlocks I found a sewing needle and thread in his hair. Only necessary force was used to control inmate[.] Needle and thread was placed in evidence locker . . .

Sims maintains that the misbehavior report was ultimately dismissed because it was learned that a search was conducted at Downstate Correctional Facility prior to his transfer to Sullivan – and no contraband was found at Downstate. See claimant's exhibit 1 ( a "Certificate of Search") and exhibit 3, which indicates that four charges[1]
against claimant were "dismissed by DSS Doane 9/21/28." There is no indication in this document as to why the misbehavior report was dismissed.
Sims testified that following the incident, he made an internal complaint alleging "physical abuse by staff at Sullivan." In the response of George J. Bartlett, Department of Correctional Services Deputy Commissioner, Bartlett states that an investigation was conducted and it was found that force was used after claimant refused a direct order. It is also stated that claimant was "subsequently examined by the facility nurse on duty and no injuries were noted, nor did you voice any complaints of physical discomfort. The records pertaining to this incident do not corroborate your allegations of assault or physical abuse." See claimant's exhibit 4.

The report of inmate injury prepared in connection with the incident indicates

"abrasions - tiny . . . index knuckles – claims seeing red spots in flashes" and states that the treatment provided was "bandaids to knuckles – to see MD in AM." See claimant's exhibit 5.
Essentially, claimant contends he "was never acting up" and thus no force should have been used against him.
* * *
Correction Officer Scott Hastings testified that he was on duty at Sullivan on September 14, 1998, processing inmates, including Sims, "in and out of the facility." He recalled that Sims came into the facility after "being a problem on the transportation bus." Hastings testified that he escorted claimant into the elevator and told him to go to the back after which Sims "called me a whole bunch of things" and refused to comply. Hastings stated that he then "placed" claimant into the back of the elevator and they went upstairs where they were met by several officers, in response to his call for the supervisor. Asked on cross examination whether other officers were involved in placing claimant against the elevator wall, Hastings said no.

Claimant contends that additional officers were in the elevator, attempting to prove such by arguing that Hastings could not have telephoned for assistance while at the same time holding Sims with both hands. Hastings explained that the supervisor had been notified by radio prior to his placing Sims against the wall.

Hastings testified that the correction officers proceeded to take Sims to the frisk room, but on the way, a sergeant directed them first to a "dry cell," since another inmate going to the SHU was in the frisk room at the time. According to Hastings, as he patted claimant down, he found a piece of thread in claimant's hair, which he pulled, and found a needle.

Correction officer Frederic Leaney testified that on September 14, 1998 he received a telephone call that Sims had been disruptive on the draft bus. He stated that he went toward the draft area and saw claimant being led toward the frisk room. According to Leaney, he redirected Sims to the dry cell because other inmates who had come off the bus were being processed. He testified that in this cell, a pat frisk was done on Sims and a needle and thread were found in his hair. He recalled that after the other inmates had been cleared from the frisk room, Sims was taken to the frisk room and a strip frisk was done prior to claimant's SHU admission. Leaney explained that a strip frisk is not ordinarily done prior to SHU admission, but was done in this case because the needle had been found.

According to Officer Leaney, a nurse was called to examine Sims since force had been used to hold him against the wall. Thereafter, he was taken to the SHU. Leaney prepared a Use Of Force Report in connection with the incident (see defendant's exhibit c), which states:
C.O. Hastings took control of inmate Sims by the waist chain and between the shoulders and placed him against the wall[.] Inmate was taken to the dry cell where he continued to be verbally abusive. When a wrapping thread was removed from inmate['s] dreadlocks[,] a sewing needle and thread was found. C.O. Nelson held Inmate Sims by the waist chain and right shoulder and C.O. R. O'Dell took control of the waist chain when C.O. Hastings let go.

Leaney testified that photographs were taken of claimant following the incident. See defendant's exhibits A and B, which do not show any apparent injury to claimant. Leaney added that when he arrived on the scene, claimant refused to cooperate with the pat frisk, but once they arrived in the frisk room and progressed with the strip frisk, claimant "did go along with orders," which is why, according to Leaney, in most of the photos, no one is holding claimant.

Correction Officer Donald Nelson testified that he helped escort claimant from the dry cell to the strip frisk room and that he prepared a memo regarding the incident. See claimant's exhibit 3, which corroborates the testimony of Leaney and Hastings.
* * *
It is well settled that correction officers may use physical force to maintain order and discipline in correctional facilities, but "[o]nly such degree of force as is reasonably required . . ." See 7 NYCRR §251-1.2(b). Specifically, 7 NYCRR §251-1.2(d) provides that an:
employee shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape.

In order to prevail here, Sims would have to prove that he did not refuse to comply with a lawful direction. While it is in dispute, I find the preponderance of the evidence to be that Sims did in fact refuse a direct order to move to the back of the elevator and face the wall. As he refused to comply with such direction, the use of force was authorized. Moreover, I find no evidence that an excessive degree of force was used. In sum, claimant has failed to prove by a preponderance of the evidence that he was assaulted by employees of the defendant.

As to medical treatment provided to claimant on September 14, 1998, he failed to provide expert testimony that accepted standards of medical care were not met. See, e.g.,
Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998).
Accordingly, in view of the foregoing, claim no. 99418 is dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.


October 21, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The four charges were: Property in Unauthorized Area, Interference with Employee, Refusing Direct Order and Threats.