New York State Court of Claims

New York State Court of Claims

THORPE v. THE STATE OF NEW YORK, #2002-031-509, Claim No. 99684


Claimant failed to demonstrate that use of force by correction officers was unjustified or unreasonable. 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:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Omar Thorpe commenced this action on January 22,1999, alleging that he was assaulted by a correction officer at Lakeview Shock Correctional Facility on November 5, 1998. Claimant seeks $40,000 for his personal injuries, which include continuing back pain. I conducted a trial of this matter on May 6, 2002, at Wende Correctional Facility.

In his direct case, Claimant testified that on November 5, 1998, he was returning to his cell from a visit to an outside hospital and, while still handcuffed, Correction Officer Mark Van Zile choked and hit him, then threw him to the floor and kicked him and threatened to kill him. According to Claimant, this assault occurred in his cell and was completely unprovoked, but was witnessed by several other correction officers.

Claimant then called Correction Officer J. Hahn. Officer Hahn testified that, at the time of the incident, he and Officer Van Zile had just escorted Claimant back to his cell after an outside hospital visit. At the cell door, Claimant refused several direct orders to enter his cell. Claimant became belligerent and raised his hands toward Officer Hahn in what he believed was an attempt to strike him. Officer Hahn stated that he and Officer Van Zile then used force upon Claimant, but only to the extent necessary to restrain him so that the Officers could exit the cell safely.

Claimant also called Correction Officers J. Reimer and J. Tamarazio. These officers reported to Claimant's cell upon receiving a call for assistance from either Officer Van Zile or Officer Hahn. Each of these Officers' testimony was consistent with that of Officer Hahn, that Claimant refused several direct orders to stop struggling and that the force used was only that which was necessary to restrain Claimant and prevent any injuries to the Officers. They additionally both testified that, despite their efforts, they understood that Claimant bit Correction Officer Van Zile. Neither of these Officers actually saw Claimant bite Officer Van Zile, however, as the injury was discovered only after the incident.

Claimant then called Correction Officer Van Zile. Officer Van Zile testified that, after escorting Claimant back to his cell, Claimant refused to actually enter his cell. When he saw what he believed to be Claimant's attempt to attack Officer Hahn, he placed Claimant in a body hold. While he was attempting to get a better hold on Claimant, he heard another inmate from a nearby cell yell "bite him!" Though everything happened fast, he felt pain, saw blood, and believes that he was, in fact, bitten by Claimant. After the incident, Officer Van Zile went to an outside hospital for treatment of his injuries. Officer Van Zile also testified that Claimant was taken to the floor during the restraint but that he was not choked or kicked and that no threats were made.

Claimant also called Lieutenant Van Volkenburg. Lieutenant Van Volkenburg, a sergeant at the time, was " making rounds" when he received a call for assistance on his radio. When he got to the cell, Claimant was "against the wall" but was resisting being restrained by the other officers present. He testified that Claimant became increasingly agitated and he directed the officers to place Claimant on the floor. Lieutenant Van Volkenburg stated that, during this attempted restraint, Claimant was fighting and "acting like an animal." He saw Claimant attempt to bite Officer Van Zile several times. He agrees that force was used, but only to the extent that it was necessary to restrain Claimant so that the correction officers could exit the cell safely.

Finally, Claimant called Nurse Bonnie Degen. Apparently, Nurse Degen did not see Claimant immediately after the incident and she was unable to testify directly as to the injuries sustained by either Officer Van Zile or Claimant. She was able to confirm, however, that according to Claimant's medical records, there were no objective findings of injury to Claimant. His injuries all relate to subjective complaints of pain.

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).
In his testimony and, in fact, throughout the trial, Claimant focused primarily on demonstrating that he did not bite Officer Van Zile during the incident. His theory was apparently that, if he could convince me that he did not bite Officer Van Zile, this would somehow demonstrate that the correction officers' use of force was excessive. While this testimony was not incredible, indeed I believe that Claimant believes that he did not bite Officer Van Zile, Claimant's testimony was perhaps most important for what he implicitly admitted. Claimant does not deny that he refused a direct order to enter his cell, that he struggled with the officers, or that he refused a direct order to stop struggling.

On the other hand, I find that the testimony of the correction officers involved in the incident was both credible and consistent, and I credit their testimony. The credible evidence established that Claimant instigated an attack on Officer Hahn 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 Hahn was reasonable and necessary.

Accordingly, Claim No. 99684 is hereby
Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied. The Clerk is directed to enter judgment accordingly.

September 30, 2002
Rochester, New York

Judge of the Court of Claims