Claimant Omar Thorpe filed claim number 100110 on April 5, 1999, alleging he
was assaulted by four Department of Correctional Services employees on December
28, 1998, at Lakeview Shock Incarceration Correctional Facility ("Lakeview"). I
held a trial on this claim at Wende Correctional Facility on May 6 and 8,
Claimant testified that on December 28, 1998, he received a new cell assignment
and got into a fight with his new "bunkie, " Santos Sabater. Several correction
officers responded to the disturbance and ordered Claimant and Mr. Sabater to
stop fighting. Claimant testified that they both obeyed the order. Once they
stopped fighting, they were directed to go in separate directions, one to the
"rec yard" located outside the rear door of the cell, and the other to the front
of the cell to be handcuffed. According to Claimant, before the inmates could
comply, Sergeant Edward Hulton ordered that the cell door be opened and the
officers entered his cell. Mr. Sabater was removed and Officer John Attea
grabbed Claimant and pushed him to the floor, slamming the right side of his
face to the ground. Officer Lata kicked Claimant while he was on the ground.
Sergeant Hulton was also in his cell and kicked Claimant and stomped on his back
repeatedly. Officer Steven Tilley grabbed Claimant's feet and twisted his
ankles, then reached underneath Claimant and grabbed his genitals and squeezed.
Claimant testified the assault lasted for about a minute or more.
Claimant cannot recall at what point he was restrained, nor whether the assault
occurred inside the cell or in the corridor. However, he states he was
restrained at some point and taken to "medical" where he was seen by Nurse
Bonnie Degen. Claimant testified that his injuries included multiple abrasions
on his right and left shoulders and on his back. Nurse Degen cleaned the
abrasions and left them exposed to the air. He was then brought back to his
Claimant called Sergeant Hulton as a witness. Sergeant Hulton testified that
he was working that day and responded to a call that Claimant and his bunkmate
were fighting. He observed the two inmates fighting and gave several direct
orders to stop fighting. He also gave them the option to break up the fight by
having one inmate go to the recreation yard through the back door in the cell.
An officer in the control room was attempting to open the back door by
"pounding" on the button that controlled that door; the witness stated he knew
this because he could hear the pounding. The Sergeant testified that the
inmates ignored the direct orders and that Claimant seemed to have the upper
hand in the fight. As far as the Sergeant could tell, no weapons were involved.
The Sergeant waited until several officers arrived before opening and entering
the cell; at which point the inmates were still fighting. Upon opening the
door, Officer Attea entered the cell first.
As the door was slowly opening, the inmates realized that the officers were
entering the cell and Claimant released his bunkmate and the inmates stopped
fighting. At that time, Mr. Sabater fell to the floor and put his hands out to
"show retreat." The witness observed Claimant step toward the staff entering
the cell with his fists clenched and advance toward Officer Attea. He next saw
the officers step over Mr. Sabater and Officer Attea "duck a punch" from
Claimant. Officer Attea then put a body hold on Claimant and took him to the
floor where there was a struggle. Two other officers assisted in restraining
Claimant in the cell. Claimant was then taken out of the cell, placed standing
up against the wall opposite the cell, frisked, and then escorted to the medical
center. Three other officers took Mr. Sabater out of the cell while Claimant
was being restrained. Mr. Sabater was picked up and removed from the cell. Mr.
Sabater showed no resistance.
The Sergeant testified that he filed a Use of Force Report, which I admitted
into evidence as Defendant's Exhibit J. Pursuant to Department of Correctional
Services ("DOCS") policy, all employees involved in the incident reported to the
medical staff, whether injured or not, and completed an Employee Accident/Injury
Report. The Sergeant testified that he was not injured.
On cross-examination, the Sergeant explained the significance of Mr. Sabater's
actions in the cell once the fight ended; inmates are taught to lay face down on
the floor with their arms extended to show submission. That was the reason that
force was not used on Mr. Sabater in contrast to Claimant's behavior and how the
officers treated him.
Claimant called Mr. Sabater to testify. Mr. Sabater stated he was presently on
medication and that he had no independent recollection of bunking with Claimant
nor of fighting with Claimant. He needed to rely on the Use of Force Report
(Exhibit J) for specifics and nothing he testified to contradicted the Use of
Force Report in any way. I did not give his testimony much weight in my
Bonnie Degen, RN, then testified for Claimant. She described Claimant's
injuries as "abrasions" on his shoulders and between the middle of his back and
waist. She then reviewed Claimant's Ambulatory Health Record. She noted that,
on December 30, 1998, Claimant's "hand moving without difficulty" and that he
complained he had pain in his back and right ankle. He was given ibuprofen for
the pain and a doctor's visit was scheduled. The next day, he was given an
ankle support for his left ankle, which was sprained. On January 9, 1999, he
complained of chest, ankle, and back pain. On January 11, 1999, he complained
that his right ear hurt and that he was experiencing pain in his back and his
ankle. On January 12, 1999, he saw a doctor. The record states he complained
that his right ear hurt, that his ankle hurt, and that his lower back was
tender. His ankle and his back were both X-rayed and the results were negative
Claimant next called Correction Officer Tilley. Officer Tilley testified that
he believed he was the third officer that entered the cell and was assigned to
restrain Mr. Sabater and did not assist with Claimant until Mr. Sabater was
restrained. He stated he did not observe Claimant attack any officers, nor did
he observe any of the injuries Claimant alleges he suffered, despite the fact
that this witness escorted Claimant to medical.
Correction Officer John Attea testified next. He testified that Claimant was
given a direct order to stop fighting, which he ignored. When the door opened,
the witness was the first officer in and "tackled" Claimant when he saw
Claimant's hands "go up." He states he did not observe Claimant swing at him
because his head was down for the tackle. He tackled Claimant to the floor to
roll him over and apply restraints. The witness stated he sustained several
injuries and was treated at a local hospital (Exhibit O).
Claimant's last witness was Correction Officer Leonard Stevenson. He stated
that he observed Claimant and Mr. Sabater fighting in their cell and ignore a
direct order to stop fighting. Officer Stevenson's role was to restrain and
remove Mr. Sabater. Once the witness accomplished that goal, he did not
immediately re-enter the cell. He observed nothing further.
Claimant rested after Officer Stevenson's testimony. The State called no
witnesses. I did reserve on Claimant's proffer of grievances involving one of
the officers both prior to and after the incident in this case. The Assistant
Attorney General objected on the grounds that the grievances had no probative
value. I reserved on the ruling and now find that the objection is sustained
not only because the grievances themselves are merely just allegations, thus
truly not probative, but also because this officer was Claimant's own witness,
therefore he is prohibited from impeaching him (Prince, Richardson on Evidence
§ 6-421 [Farrell 11th ed]).
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
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:
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).
Here, Claimant admits that he did not immediately stop fighting with Mr.
Sabater when ordered to do so. What is unexplained is how and why Mr. Sabater
had the time and the inclination to lie on the ground with his arms out to
signify submission, while Claimant had to be tackled. I find Claimant credible
as to the fact that force was used to subdue him. However, I credit the
testimony of the officers as to the amount of force used and find that they were
justified in doing so.
I do not doubt that Claimant accurately described being "slammed" to the ground
when Officer Attea used a body tackle to restrain him. His testimony regarding
his injuries, that is abrasions to his back and shoulders, could have occurred
during his struggles with Mr. Sabater, just as easily as they could have with
the officers and their efforts to restrain Claimant.
Had Claimant followed Mr. Sabater's lead and lain prone on the cell floor, he
would not have experienced the use of force described here. His injuries were
the direct result of his own violent and assaultive behavior that day in his
cell. I find the use of force by the officers that subdued Claimant after his
refusal to obey a direct order and attempted assault on Officer Attea was
reasonable and necessary.
Accordingly, Claim No. 100110 is hereby
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