New York State Court of Claims

New York State Court of Claims

STRACHAN v. THE STATE OF NEW YORK, #2002-031-505, Claim No. 99670


Synopsis


Claimant failed to demonstrate that force used after his assault on Correction Officer was unreasonable. Claim dismissed.

Case Information

UID:
2002-031-505
Claimant(s):
EMAR STRACHAN
Claimant short name:
STRACHAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99670
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
HENRY N. DIAZ, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 26, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Emar Strachan ("Claimant") filed claim number 99670 on January 21, 1999. Claimant demands damages for assault, battery, false imprisonment, and negligent hiring and/or retention.

I held a trial in this matter on May 20, 2002.
Defendant moved in limine to exclude proof at trial of a prior arrest of a misdemeanor assault by a State witness (Motion #M-65190). I denied the motion as moot inasmuch as Claimant dropped the negligent hiring and/or retention cause of action prior to trial.

The undisputed facts as they relate to Claimant's case are as follows: On the morning of February 1, 1998, at the Gowanda Correctional Facility, Correction Officers Brian Walsh, Thomas Erdley, and Laurence McMahon were escorting Claimant from the Special Housing Unit ("SHU") recreation yard to Claimant's cell. During the escort, Claimant struck Officer Walsh in the face with enough force to knock him down, render him semi-conscious, and cause a severe laceration over the officer's left eyebrow, in addition to other injuries to the right shoulder and knee and the left elbow (Ex. R). Officers McMahon and Erdley immediately restrained Claimant. Shortly thereafter, Officer Drews and Sergeant Jerge arrived on the scene in response to a call for assistance. Officer McMahon then assisted Officer Walsh, while Officers Erdley and Drews and Sergeant Jerge carried the Claimant back to his cell. On September 24, 1998, the Town of Collins Justice Court convicted Claimant of Assault in the Third Degree for his attack upon Officer Walsh in the SHU recreation yard after a non-jury trial (Ex. A). The issues in dispute are whether the force used to restrain Claimant after the attack on Officer Walsh was reasonable and whether or not the force used caused Claimant's injuries.

Correction officers are charged with the unenviable task of maintaining order and discipline in correctional facilities under stressful circumstances (
Arteaga v State of New York, 72 NY2d 212). It is well-settled that correction officers are entitled to use physical force in order
to achieve this goal, 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 are 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 situations involving inmate allegations of excessive force by a correction officer, such as here, the credibility of the respective witnesses is often the dispositive factor (
Davis v State of New York, 203 AD2d 234). To determine, in a given instance, whether use of force was necessary and, if so, whether the force used was excessive or unreasonable, a Court must examine the specific 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).
Although the testimony of some of the officers seemed less than forthcoming, I find that credible testimony regarding the force used against Claimant came from Officer McMahon and Sergeant Jerge. Officer McMahon testified that, after Officer Walsh went down, Officer McMahon pushed Claimant into a corner between a brick wall and a chainlink fence, face first, and restraints were applied. Officer McMahon then assisted Officer Walsh and witnessed nothing further regarding this incident. Sergeant Jerge testified as to the necessity of force used in Claimant's cell. He stated that once Claimant was brought to his cell, force was used to restrain him, but only to the extent that the officers could ensure their own safe exit from the cell.

Claimant also lacked credibility. I find that he was injured, but not to the extent he testified to at trial; the medical records state otherwise (Ex. D). During his direct examination, Claimant stated that he had a broken arm and a concussion and pain in his back and both his wrists as a result of the attacks. He stated that he also had a cut on the top of his head. Claimant testified that his injuries occurred after he was restrained and Officer Walsh punched him and kicked him in the face and threw him down on the ground and kicked him on the top of the head. Claimant asserted that Officer Erdley just stood and watched while Officer Walsh beat him. Claimant could not recall what, if anything, Officer McMahon was doing because he was trying to dodge the punches and kicks. According to Claimant, he and Officer Walsh had disagreements resulting in name calling and the denial of supplies prior to this incident and that Officer Walsh retaliated against Claimant.

Claimant also alleges that he was assaulted by Officers Erdley and Drews when they carried him back to his cell. Claimant alleges that Officer Drews threw Claimant head first into the radiator in the cell. Once in the cell, Officer Drews then tried to choke Claimant and break his fingers by pulling them back to his wrist. Sergeant Jerge was also in the cell and sat on Claimant's back while Drews was attacking him. Claimant could not recall when the Sergeant arrived. Claimant believes he passed out and when he woke up, he was receiving medical attention.

The facility doctor sent Claimant to Tri-County Medical Center for a medical examination. The CAT Scan showed nothing remarkable, but for a possible bruise on his forehead. No reference is made anywhere in the notes from Tri-County Medical Center or Claimant's Ambulatory Health Record to broken bones or concussions resulting from this incident (Ex D). Post-incident complaints related to back pain and headaches could well be related to prior problems as Claimant stated he complained of back pain and headaches before the date of the accident. These complaints were documented in his medical records (Ex D). Claimant proffered no medical testimony to show otherwise.

Further, Claimant refused to admit that he hit Officer Walsh with his fist, stating that he was actually defending himself when the assault on Officer Walsh occurred. Claimant testified that when Officers Erdley, Walsh, and McMahon escorted Claimant from the cage in the recreation yard, Walsh issued direct orders on where to place his hands and when to back out of the cage. Claimant maintains that Officer Walsh "smacked me and I hit him back." On cross-examination, Claimant testified that he was tried and found guilty of assault but that he disputed the charge on the grounds that he was defending himself against Walsh. This scenario was rejected by the Town of Collins Justice Court after a non-jury trial. The fact that he would rely on this scenario during the civil trial and the fact that his injuries were not commensurate with the amount of force Claimant states the officers used, leads me to discredit his testimony regarding the allegations of excessive use of force.

The credible evidence established that Claimant instigated an attack on Officer Walsh, and that the resulting actions of the other officers were in direct response to Claimant's own violent conduct. There was no credible evidence that the officers used excessive force in responding to Claimant's behavior. I find that Claimant's injuries, if any, were the direct result of his own violent and assaultive behavior. I find that the use of force by the correction officers that subdued Claimant after his assault upon Officer Walsh was reasonable and necessary. The defendants are not liable in this case, due in no part to their performances at trial. Rather, Claimant failed to persuade me that the force used to restrain him after his assault on Officer Walsh on February 1, 1998 was unreasonable and unnecessary.

At the close of Claimant's proof, the State moved to dismiss for failure to prove a prima facie case. That motion is granted. The State then moved to preclude Claimant's proof that Officer Walsh was the aggressor in this incident on collateral estoppel grounds. In addition, the State asked to preclude all testimony from Claimant regarding what happened in his cell after the attack in the yard on the grounds that Claimant failed to plead that occurrence in his Notice of Intention to File a Claim. Both motions to preclude are denied as moot.

Accordingly, Claim No. 99670 is hereby
DISMISSED.
Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby
DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

September 26, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims