New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2002-019-010, Claim No. 97093


Claimant failed to establish prima facie case of use of excessive force by correction officers; Claimant found to bear the sole responsibility for use of reasonable and necessary force by correction officers based upon his own violent behavior; Claim dismissed.

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:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 10, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Preston A. Smith, an inmate appearing
pro se, alleges that he was unlawfully assaulted by various correction officers while in the custody of the Department of Correctional Services at the Elmira Correctional Facility (hereinafter "Facility"), on June 15, 1997. The trial of this Claim was held at the Facility on May 29, 2002.[1]

Claimant testified that on June 15, 1997, he went to the visiting room at said Facility for a visit with his wife, niece and daughter. Claimant alleges that he bent over and placed his foot on a chair to tie one of his sneakers when he was told by Correction Officer Barton "to get his fucking foot"[2]
off the chair. Claimant then asked the correction officer to call the correction supervisor because Claimant felt he was being "disrespected" by the correction officer supervising his family visit. Claimant was told to go to the visit room, but in his words both he and his visitors were harassed by the same correction officer. He further stated that there is a history of correction officers calling him "nigger" and harassing him because of his interracial marriage. Claimant stated that one of the correction supervisors ultimately arrived and spoke to Correction Officer Barton first but never spoke to the Claimant. The Supervisor then wrote up a misbehavior report. The Supervisor, Lieutenant Dean, then threatened to terminate Claimant's visit and Claimant testified he got upset because he did nothing wrong. Moreover, Claimant stated his movement on the visit was restricted. Claimant, feeling that restriction was unwarranted, became indignant. Claimant testified that during the course of the visit he got up out of his chair when he was "touched" by Correction Officer Barton. Claimant then turned and punched Correction Officer Barton and also threw a chair. Claimant was subsequently "jumped" by a number of correction officers who took him to the floor, restrained him, beat him about his back and ribs, and even stuck their fingers in his eyes. He further alleged that during his transport to the Special Housing Unit, correction officers slammed his face into the wall; threw him down a flight of steps; and beat him "unmercifully".

On cross-examination, Claimant acknowledged that all of this physical contact took place after he struck Correction Officer Barton and after he had thrown a chair. However, Claimant was adamant that the force used by the officers to restrain him was excessive, particularly after he was placed in restraints. Claimant rested. While the State made a motion to dismiss at this point, the Court reserved on the same.

The State commenced their case by calling various correction officers and supervisors who were on duty on June 15, 1997, including Correction Officer Earl Schnautz, Correction Officer Robert Andrew, and Correction Officer William Carnegie, who all testified in sum or substance that on June 15, 1997, they were called to quell a commotion in the visiting room at the Facility after Claimant had assaulted Correction Officer Barton. Most notably, Correction Officer Schnautz stated that he saw commotion in the visiting room and that the Claimant was in a violent rage and maintained an assaultive stance to the correction officers who responded. He testified that Mr. Smith was placed under control and then taken out of the visiting area. Correction Officers Andrew and Carnegie both stated that after the assault of Correction Officer Barton, it took five officers to subdue the Claimant after he refused numerous requests to peacefully leave the visiting area.

On cross-examination of Correction Officer Schnautz by Claimant, it became obvious to the Court that Claimant had been taunting the correction officers in the visiting area by continually entering the frisk area of the visiting room, without appropriate permission, in anticipation of meeting with his family. Also, it became obvious to the Court that the Claimant was deliberately resisting orders to leave the frisk area of the visiting room. He was lallygagging, and he did have his feet on the furniture in the frisk area and visiting room, pretending to tie his sneakers in an effort to thwart the correction officers lawful direction for him to leave the area.

It is well-settled that correction officers are entitled to use physical force, but "[o]nly such degree of force as is reasonably required shall be used". (7 NYCRR 251-1.2 [b]). The limited circumstances in which the use of force is tolerated by correction officers is set forth as follows:
[a]n 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.

(7 NYCRR 251-1.2 [d]).

In addition, the credibility of the respective witnesses is often the dispositive factor in cases involving inmate allegations of excessive force by a correction officer. (
Davis v State of New York, 203 AD2d 234). Here, the credible evidence established that Claimant refused a direct order to leave the visiting area and to remove his shoes off the furniture; instigated an attack on Officer Barton; and escalated the situation by continuing to take an indignant and combative posture thereafter. This Court finds the use of force by the correction officers was reasonable and necessary under the circumstances with which they were confronted. Moreover, the Court has no hesitation in concluding that Claimant here bears the sole responsibility for his own injuries, if any, as a result of his violent, indignant and threatening behavior and refusal to obey valid and direct orders. In short, the Claimant not only instigated the situation, but agitated the same by resisting a peaceful resolution of the disturbance. The Court is also satisfied on these facts that the correction officers used only that force necessary and reasonable to subdue the Claimant. While the Court is certain that Claimant desires the Facility be run according to standards envisioned by him to be idyllic, the realities faced by correction officers who are charged with the unenviable task of maintaining order and discipline in correctional facilities under stressful circumstances warrants the standards currently in place. (Arteaga v State of New York, 72 NY2d 212).

As a final note, while the Claimant alleges he was beaten unmercifully after he was restrained, a review of Claimant's Exhibit 2 (Use of Force Report) shows that upon examination by Rosemarie Schreiber, R.N., immediately after this incident, Claimant's wounds consisted of no more than sore lower legs; a one inch superficial scratch on his right forehead; an abrasion to the top of his left shoulder; an approximately one-half inch scratch on the right side of his neck; superficial abrasions on the left shin area; and superficial abrasions under the right knee and down the right shin. Additionally, Claimant had good range of motion of all extremities and was able to do knee bends without difficultly. Nurse Schreiber also cleansed all areas with betadine and bacitracin, applied band-aids where necessary, and told Claimant to follow-up at sick call if any problems subsequently appeared. The foregoing document prepared by Nurse Schreiber, a party uninvolved in the altercation, belies Claimant's allegation he was beaten unmercifully.

Based upon the foregoing, and the lack of credibility in Claimant's direct case, the State's motion to dismiss is now GRANTED and Claim No. 97093 is hereby DISMISSED.

All other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


July 10, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The Court acknowledges receipt of a copy of a letter which Claimant sent to R. Padusky, Field Inspector, dated June 1, 2002. The Court also acknowledges receipt of Claimant's letter dated June 28, 2002 requesting the Court contact a new witness for additional proof of his claim. The proof was closed at trial and Claimant rested. Claimant's request is improper.
[2]Unless otherwise indicated, all quotations are from the Court's trial notes.