New York State Court of Claims

New York State Court of Claims

CLARK v. THE STATE OF NEW YORK, #2003-029-272, Claim No. 98440


Bifurcated trial, liability only. Prisoner allegedly assaulted by C.O.s. Court finds force used by C.O.s in response to the incident was neither unprovoked or excessive. No liability, 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:
Adam M. Thompson, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 4, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for personal injury asserts that claimant, an inmate under the care and custody of the New York State Department of Correctional Services (hereinafter DOCS), was assaulted by several Correction Officers (hereinafter C.O.s) at Green Haven Correctional Facility (hereinafter Green Haven) on October 14, 1997. The trial was bifurcated and this decision deals only with the issue of liability.

The evidence at trial established that on October 14, 1997 claimant and his primary witness, inmate Rivers, were housed at Green Haven in F Block and were on keeplock status, confined to their cells and allowed one hour of recreation per day. On this day both had appointments at the facility clinic. At approximately 10:30 a.m. the inmates were sent to the recreation yard for their hour of recreation. When they arrived at the yard they requested they be taken to the clinic. Sergeant (hereinafter Sgt.) Keyser escorted them to the clinic where C.O. Panarello was stationed. In the clinic there is a separate waiting area (referred to as "the pen") for keeplock inmates. When they stepped into the pen, Rivers stated it had a "humid, funky smell"[1]
and claimant stated it had a "bad smell" which forced them to immediately exit the keeplock pen. It is at this point that the witnesses' testimony regarding events begins to diverge.
At trial, claimant testified and called two inmates, Michael Rivers and Thomas Riley, to testify on his behalf. Mr. Rivers testified that C.O. Panarello called for Sgt. Keyser and while he thought they were waiting for the Sgt. to arrive, C.O. Surber arrived and wanted to know what the problem was. C.O. Panarello told him that Clark and Rivers refused to enter the keeplock pen and Surber then directed the inmates to do so. They refused. Rivers and claimant both testified that they were not refusing medical care, just refusing to enter the keeplock pen. Rivers testified that C.O. Surber then told the two inmates that they were going back to their cells so they should put their hands in their pockets. On the walk back to F Block they saw Sgt. Keyser who asked what was occurring. As the witness started to explain, C.O. Surber told him to be quiet and keep walking. During the walk, C.O. Surber was allegedly constantly pushing claimant and the witness down the hallway.

The evidence established that the inmates were walking shoulder to shoulder in front of C.O. Surber and C.O. Panarello and that Sgt. Pulci was behind the C.O.s. Rivers stated that when the group got to the F Block gate, C.O. Hanaman, the Block Officer, opened the cells of Clark and the witness. When the two inmates walked toward their cells, C.O. Surber told them to stop. Rivers testified that Surber was nasty, had a bad attitude and was looking for a fight. After the Block porters were told to go to their cells by another C.O., C.O. Surber told claimant and the witness to proceed to their cells. As he went to his cell, the witness saw in his peripheral vision that C.O. Surber had grabbed claimant around the neck and picked him up off his feet. Up until this point, claimant had not removed his hands from his pockets. The witness turned around and as he did, Sgt. Pulci pushed C.O. Panarello at the witness and the witness "locked onto" C.O. Panarello. C.O. Surber pushed claimant around a caged area and threw him to the floor. Rivers testified that he and C.O. Panarello were fighting and that claimant and C.O. Surber were "around the corner" so the last time he saw claimant that day was when C.O. Surber threw him to the floor. He did not see claimant again until about five days later when they were both in the Special Housing Unit (hereinafter SHU). Rivers stated that approximately ten C.O.s arrived at the scene to break up the fight.

On cross-examination, Rivers admitted that he knew that by refusing to enter the keeplock pen in the medical clinic he would not be allowed to see the doctor. He said that he wanted to see the doctor but denied being upset that he had not. He testified that claimant never took his hands out of his pockets and that claimant never swung at C.O. Surber.

Claimant stated that on October 14, 1997 he had a scheduled medical appointment to check his stitches after hemorrhoid surgery several days earlier. Claimant stated that the inmates requested the ventilation system in the keeplock pen be turned on because of the smell but C.O. Panarello refused. C.O. Panarello told them to enter the keeplock pen or sign a medical refusal form. Claimant then asked to speak to Sgt. Keyser or the Area Supervisor. C.O. Panarello started to call Sgt. Keyser when C.O. Surber and Sgt. Pulci came around the corner and interjected themselves into the situation.

Claimant stated that C.O. Panarello again told him and Rivers to enter the keeplock pen or sign the medical refusal form. He again refused to enter the keeplock pen and refused to sign the form because he was not refusing medical attention, he was just refusing to wait in the keeplock pen. He said that he wanted medical attention because he was in pain. He and Rivers were then told to put their hands in their pockets for the walk back to their cells. On the walk to F Block, C.O. Surber continually pushed claimant and Rivers.

Claimant also stated that as C.O. Hanaman turned around to open their cells, and as the inmates went toward their cells, C.O. Surber put claimant in a choke hold, lifted him off his feet and took claimant to the floor. C.O. Surber then "hog tied" him, handcuffed him and beat and kicked him. He took his hands out of his pockets to try to get C.O. Surber's hands off his neck, but Surber slammed claimant to the ground and then threw himself on top of claimant and punched him in the face. C.O. Straley appeared at that point and put handcuffs on claimant and another C.O. arrived and punched and kicked claimant. A little later, about eight to ten C.O.s arrived and assaulted him. Claimant further alleged that Sgt. Pulci struck claimant's nose with a baton and his nose was "busted" and bleeding. He also alleged that he was kicked in the rectum, breaking his stitches and causing his rectum to bleed; that he was dragged from F Block to the clinic by several C.O.s, leaving a trail of blood; that he did not receive any assistance at the hospital even though his pants and underwear were soiled with blood and feces. From the clinic he was taken to SHU.

Claimant was issued a misbehavior report charging him with assault on staff, interfering with an employee and refusing a direct order. This misbehavior report and the disciplinary hearing and findings resulting therefrom were all expunged from claimant's record. However, claimant brought this information to the Court's attention and at trial submitted into evidence the disciplinary documents relating to this incident (see Exhibits 2 - 7).

Claimant stated that he never had a problem with any of the C.O.s involved prior to this incident. He also denied punching C.O. Surber in the face.

On cross-examination, claimant stated that he filed a grievance against C.O. Surber for excessive use of force as a result of this incident and that his grievance was denied. He also denied stating he suffered a broken nose in this incident.

Claimant also called Thomas Riley as a witness. Mr. Riley is an inmate currently incarcerated at Auburn Correctional Facility. Mr. Riley testified that on October 14, 1997 he was an inmate at Green Haven. At approximately 10:30 a.m. he was at the facility clinic waiting to obtain medication. As a general population inmate he was sitting in the general population pen (which is partitioned off by glass and cinder block from the keeplock pen) when he saw claimant and another inmate enter the clinic. He observed a conversation between a C.O. and the inmates. Riley stated that the ventilation and lights were not on in the keeplock pen and that the inmates asked for them to be turned on. The inmates were then told to enter the keeplock pen or they could not keep their medical appointments. They were told they were refusing medical treatment and ordered to place their hands in their pockets. Riley stated he was still at the clinic when claimant was brought back by two C.O.s. He stated that he saw claimant brought to the nurse's area where claimant's pants were pulled down and he was able to observe red and brown colors on claimant's buttocks.

On cross-examination, Riley stated that he never saw a C.O. strike claimant. He also admitted that he had recently lost a lawsuit against the State of New York alleging that an officer had used excessive force against him.

At the conclusion of claimant's case, the State moved to dismiss the claim on the basis that claimant failed to establish a prima facie case. The Court denied the motion.

The State offered the testimony of six C.O.s on its direct case.

First was C.O. Chris Panarello who testified that he has been employed by DOCS as a C.O. since 1993 and is currently assigned to Green Haven. On October 14, 1997 he was working the 7:00 a.m. to 3:00 p.m. shift and was assigned to the clinic area where his duties were to oversee the movement of inmates in the clinic. C.O. Panarello described the physical layout of the clinic. He stated that he was assigned the clinic floor and that there was a C.O. in the "bubble".

The witness stated that for security reasons when a keeplock inmate has a medical appointment, the inmate is escorted by a C.O. and the inmate must keep his hands in his pockets. Clinic keeplock procedures require keeplocked inmates to wait for their appointments in the keeplock pen. C.O. Panarello also described the ventilation system, which is computer controlled. The system keeps a constant flow of air into the entire clinic area. He also stated that the C.O.s turn on the lights in the area every morning as they enter the clinic.

C.O. Panarello testified that on October 14, 1997 the lights were on in the clinic and the air conditioning was running. While working the clinic area, he was advised that Rivers and Clark were on keeplock status and that they were coming to the clinic directly from their recreation period. He testified that each seemed to be high strung and agitated during his initial observation of them that day and that keeplocked inmates are generally not pleased to go to medical during recreation time. Since keeplocked inmates must wait in the keeplock pen, he unlocked the pen and directed Rivers and claimant into that area. C.O. Panarello stated that the clinic is cleaned every morning by inmate porters and that the entire area was cleaned that day. Rivers and claimant were the first inmates to complain that day about the keeplock pen, telling him they were not going in because the pen had no air and it smelled. He then stood in the keeplock pen doorway to check the temperature and smell of the pen for himself and found that the air quality was the same as in the rest of the clinic. He again directed the inmates into the pen area and they again refused. The witness testified that he noticed the inmates' body language was changing for the worse and he felt threatened and decided to call the area Sergeant. He then saw Sgt. Pulci but did not remember specifically how Pulci had come to the area. Sgt. Pulci told the inmates to step into the keeplock pen and explained that in order to be seen in the clinic the inmates were required to wait there. Rivers and Clark again refused and became even more agitated. C.O. Panarello stated that to his best recollection, C.O. Surber arrived with Sgt. Pulci.

The witness stated that since Rivers and Clark refused to comply with Sgt. Pulci's order to enter the keeplock pen, he told them that they would not be seen at medical and were required to sign refusal forms. The inmates refused to sign the forms. The inmates were ordered to put their hands in their pockets and were then escorted back to their cells. C.O. Surber was behind claimant and the witness was behind Rivers. Sgt. Pulci was behind the C.O.s as they walked down the corridor to F Block. The inmates were mumbling on the way back to the F Block but the witness could not hear what they were saying. At no time on the walk back to F Block did the witness, C.O. Surber or Sgt. Pulci push or touch Rivers or claimant.

C.O. Panarello further testified that when they got to the F Block, C.O. Malark opened the door to the block for the group. After they proceeded into the block, C.O. Surber told the inmates to stop. They eventually stopped at the end of the C.O.'s "cage" and C.O. Surber asked Rivers and claimant for their cell locations, but the inmates refused to answer. Surber then asked a second time where their cells were located and one of the inmates responded that the information was "up on the board, to look for himself". The witness and C.O. Surber turned to look at the board in the C.O.'s cage. C.O. Hanaman, stationed in the cage, yelled out the inmates' cell numbers. As C.O. Surber and the witness turned back toward Rivers and Clark to tell them to proceed, Clark turned to swing at C.O. Surber but Surber was able to wrap his arms around Clark. Rivers then swung at C.O. Surber but the witness stepped in front of the punch. Rivers punched the witness in the jaw and then hit him again causing his head to snap back. He attempted to restrain Rivers, but Rivers was too strong for him. He was losing control of the situation with Rivers and as he continued fighting, Sgt. Pulci came to his aid. Both the witness and Sgt. Pulci were bitten by Rivers. During the struggle the C.O.s and Rivers ended up away from the cage.

C.O. Panarello stated that he saw C.O. Surber wrap his arms around Clark and then saw them fall to the floor. He was busy attempting to get Rivers under control and did not see claimant again, nor did he see C.O. Surber or any other C.O. strike or punch claimant.

C.O. Panarello contradicted the testimony of Riley. He stated that from the general population pen area one cannot see inside the nurse's office where Riley claimed he saw claimant being examined since there is a wall which separates the pen from the nurse's station. Exhibit C is an inter-departmental memorandum from C.O. Panarello to Sgt. Pulci regarding this incident which was prepared on that day. It is consistent with C.O. Panarello's trial testimony.

On cross-examination, the witness stated that the complaint about the smell in the keeplock pen from Rivers and claimant was the first such complaint he had received. He reiterated that he stood at the door of the keeplock pen and he did not notice that the area had an odor. He also stated that he saw C.O. Surber grab claimant after claimant threw a punch at him but does not recall C.O. Surber using a choke hold on claimant.

Stephen Pulci testified that he has been employed by DOCS since July 1985. In March of 1997 he was temporarily promoted to the position of Sgt. for approximately one year and his evaluations as Sgt. were always excellent. Prior to his temporary promotion, the witness had been disciplined in 1995 for excessive use-of-force. During a struggle with an inmate at Lakeview Correctional Facility, the inmate hit his head on a table and C.O. Pulci was suspended for eight months as a result of arbitration. He lost no seniority as a result of the incident and was never placed on probation.

That witness stated that on October 14, 1997 he was working as a Sgt. at Green Haven assigned to the 7:00 a.m. to 3:00 p.m. shift at the clinic area. On that date he was called to the clinic but does not recall how he was advised to respond to the location. When he arrived he observed two keeplocked inmates, claimant and Rivers, refusing to enter the keeplock pen. C.O. Panarello advised him that the two inmates were being uncooperative and were refusing to enter the keeplock pen. He stepped into the pen area to see for himself if there was a problem and he found conditions normal. Sgt. Pulci testified that the lights were on in the keeplock pen and there was ventilation since a computer controlled the entire clinic area. In his opinion the entire infirmary was sufficiently ventilated. Sgt. Pulci stated he directed the inmates to enter the pen but the inmates refused claiming it was too hot. The inmates were arrogant and somewhat agitated and uncooperative. The inmates refused a direct order to enter the keeplock pen and were advised that they could not see the doctor if they did not enter the pen waiting area. He gave Rivers and claimant medical refusal forms, which they refused to sign. He then ordered that the inmates be escorted back to their cells in F Block by C.O. Panarello and C.O. Surber and he accompanied them. According to the procedure, the two inmates were required to keep their hands in their pockets while being escorted back to their cells. En route to F Block, C.O. Surber was behind claimant and C.O. Panarello was behind Rivers and the witness was following behind the two C.O.s. The witness stated that neither he nor the two C.O.s touched or pushed Rivers or claimant on the walk to F Block. When the party reached F Block, C.O. Surber ordered the inmates to stop. They kept walking, so C.O. Surber again ordered them to stop and the inmates stopped near the C.O.'s cage. C.O. Surber asked the inmates their cell location and when they did not answer the witness went to the cage to ascertain their cell locations. While checking the board, he heard a commotion, turned around and saw Clark attempting to strike C.O. Surber with his fist and C.O. Panarello being attacked by Rivers. Sgt. Pulci noted that C.O. Panarello was getting beat "unmercifully" (see Exhibit B) and was not able to control and subdue Rivers so he immediately went to Panarello's aid. Sgt. Pulci testified that all he saw of the incident between claimant and C.O. Surber was the initial attempt by claimant to strike C.O. Surber. He was not, thereafter, involved in the Surber/Clark altercation.

C.O. Pulci testified that he did not strike claimant nor did he see any other C.O. strike claimant. Following the incident he saw claimant in handcuffs at the front of the gallery and he did not look hurt. There were no cuts or marks visible and only his clothes were rumpled.

On cross-examination, the witness testified that an inmate porter is assigned to clean the keeplock pen twice a day and the area appeared to have been cleaned that day.

Jerry Surber testified that he had been employed by DOCS as a C.O. at Green Haven since October 1987. On October 14, 1997 C.O. Surber was working the 7:00 a.m to 3:00 p.m. shift and was assigned to reception. On that date, while walking past the clinic, he observed Rivers and claimant talking to C.O. Panarello in an agitated state. The inmates' demeanor caused him to stop to see what was going on. C.O. Panarello seemed relieved to see him and wanted him to stay. C.O. Panarello advised him that Rivers and claimant were refusing to enter the keeplock pen. Sgt. Pulci arrived and was advised of the situation. Sgt. Pulci directed the inmates to enter the keeplock pen and they refused. Sgt. Pulci advised the inmates that they would be taken back to their cells and ordered C.O. Surber and C.O. Panarello to escort the inmates back to their cells in F Block. The inmates were directed to keep their hands in their pockets while being escorted. The witness stated that he did not push the inmates during the walk back to the block nor did C.O. Panarello or Sgt. Pulci. He could not recall any conversations between the C.O.s and the inmates in their walk to F Block.

C.O. Surber stated that when the inmates entered F Block, he ordered them to stop. The inmates did not stop so he repeated the order two or more times until the inmates finally stopped in front of the officer's cage. He then asked claimant for his cell location and claimant did not respond, so the witness asked him again. At this point, Clark turned to him and grabbed the officer with his right hand and threw a punch with his left hand. The witness blocked the punch with his arm and threw claimant to the floor face down. The witness then attempted to restrain claimant by putting his hands behind his back and placing handcuffs on him. C.O. Straley, who came to assist him, put claimant in a "figure four" leg-lock which restrained his legs. C.O. Surber stated he did not strike claimant at any time with either his hands or baton, nor did he see any other C.O.s strike or kick claimant. C.O. Surber testified he does not recall seeing any injuries on claimant. Claimant was taken to the clinic and then to SHU. Prior to this incident, he never had any problems with either Rivers or claimant. C.O. Surber was not administratively disciplined by DOCS for use of excessive force as a result of this incident. C.O. Surber's testimony was consistent with the report he made of the incident (see Exhibit D) and his Use of Force Report (see Exhibit H). Finally, C.O. Surber corroborated C.O. Panarello's testimony that a person in the clinic pen cannot see into the nurse's area or any of the exam rooms.

On cross-examination, C.O. Surber testified that he did not use a choke hold or lift claimant off the floor. He also stated that after C.O. Straley put claimant in the leg-lock, C.O. Straley put hand restraints on claimant.

Charles Straley testified that he had been employed by DOCS as a C.O. for approximately six and one-half years. On October 14, 1997 he was working the 7:00 a.m. to 3:00 p.m. shift at Green Haven as an Escort Officer for SHU inmates. At about 10:45 that morning he was leaving F Block when he observed two inmates and several C.O.s walking toward the F Block door along the F and G Corridor. The inmates were walking with the C.O.s behind them and Sgt. Pulci following the C.O.s. He did not see any pushing in the corridor leading to F Block. He believed the situation was especially tense between the C.O.s and the inmates so he decided to remain in the F Block area. The inmates were told to stop when they were in F Block. They did not stop and were told a second time. They then stopped and were asked for their cell locations but did not answer. C.O. Straley testified that claimant suddenly turned toward C.O. Surber, grabbed him with his right hand and threw a punch with his left hand. C.O. Surber blocked the punch and claimant was taken to the floor by C.O. Surber. The inmate continued to resist by pushing up off the floor. C.O. Surber told claimant to stop resisting. The witness assisted C.O. Surber by placing claimant in a figure four leg-lock, a hold officers are trained to use in order to restrain an inmate in which the legs of an inmate are bent toward the inmate's back. Only after the witness applied the leg-lock was claimant subdued and he was able to apply handcuffs to claimant.

C.O. Straley stated that at no point did he observe claimant being struck by anyone. Although he did not escort claimant from the block, he observed no marks or bruises on claimant and did not see any injury to claimant.

Duane Malark testified that he has been employed by DOCS as a C.O. since October 1994 and is assigned to Green Haven. On October 14, 1997 he was working the 7:00 a.m. to 3:00 p.m. shift assigned to F Block as the No. 2 Officer. The No. 2 Officer keeps the block running, opens the block doors and generally works outside the cage area where the No. 1 Officer (C.O. Hanaman) is located. The duties of the No. 1 Officer are to work in the cage and to keep the log book, take telephone calls and open and close the cell doors.

At around 10:45 a.m that day, he observed Rivers and claimant being escorted back to F Block by C.O. Surber, C.O. Panarello and Sgt. Pulci. He was at the F Block door when he observed them walking down the F and G Corridor. He knew the inmates were housed in the block so he stayed by the door and left it open. When he first observed the inmates they were about 50 feet up the corridor and at that point he did not see touching or conversations going on. C.O. Surber was behind claimant Clark and C.O. Panarello was behind Rivers and Sgt. Pulci was behind the two C.O.s. When they reached the cage area, he heard C.O. Surber give two direct orders to the inmates to stop walking. When they did stop, C.O. Surber asked the inmates for their cell locations. One of the inmates replied that he should check the board. Upon being directed to walk to their cells, they took one step then turned quickly on the C.O.s and started swinging at them. The witness then proceeded to 4 Company and slammed the N Gate closed. After he secured 4 Company, where some inmates were not locked in their cells, he turned to go back to the front of the Company. When he re-directed his attention toward claimant, C.O. Surber already had claimant on the floor and was restraining him. C.O. Panarello and Sgt. Pulci were out of his vision since they turned around the corner onto 1 Company.

C.O. Malark testified that he did not see any C.O. hit claimant with either a hand or a baton. C.O. Malark's report of the incident was admitted into evidence as Exhibit G.

Harold Hanaman testified that he has been employed by DOCS as a C.O. at Green Haven since October 1996. He is the No. 1 Officer on F Block and was assigned there on October 14, 1997 on the 7:00 a.m. to 3:00 p.m. shift. He confirmed the duties of the No. 1 Officer are to run the cage area, open the cells and perform paper work. The No. 2 Officer that day was C.O. Malark.

While working on October 14, 1997, at approximately 10:45 a.m., he saw C.O. Surber, C.O. Panarello and Sgt. Pulci escorting Rivers and claimant to F Block. As the inmates walked past the cage, he heard C.O. Surber direct the inmates to stop, they did not and C.O. Surber gave them a second order to stop, which they obeyed. The inmates were then told to start walking to their cells. The inmates began to walk and he turned around to open their cells. As he turned and pulled the handle, he heard a commotion behind him and turned back around to look out from the cage. He saw Rivers in an altercation with Sgt. Pulci and C.O. Panarello in 1 Company. He also saw C.O. Surber, C.O. Straley and claimant on the floor in front of the cage. He stated he did not see how they ended up on the floor. At this point, C.O. Hanaman issued an alarm and exited the cage in order to open the door for the response team. When he turned around after opening the door, he saw the claimant being restrained by C.O. Surber and C.O. Straley. C.O. Hanaman recalled claimant being escorted as he walked from the block and stated he did not see any officer strike claimant. C.O. Hanaman prepared a memorandum regarding this incident (Exhibit F) which is essentially consistent with his testimony.

While the testimony of the C.O.s contain several minor inconsistencies as to their placement and the number of times orders were issued, the testimony of the officers is consistent regarding the critical details of the incident. Those details include: (1) Rivers and claimant disregarded at
least one order to stop when they arrived at F Block; (2) they did not respond to a query as to their cell locations; (3) no one saw claimant struck by an officer wielding a baton; (4) claimant turned and threw a punch at C.O. Surber after claimant was told to proceed to his cell. The Court notes that it is not uncommon for eyewitnesses to remember the events differently. In fact it is much less common, and often more suspicious, for eyewitnesses to precisely match in all particulars.
C.O.s 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 C.O.s 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 C.O.s 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 C.O., 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 (see, 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).
Claimant testified that Sgt. Pulci struck him in the nose with a baton. As a result, his nose was "busted" and started bleeding. On cross-examination, claimant denied stating that his nose was broken and yet again, in his re-direct testimony, he stated his "nose was busted up top" with the baton. Whether "busted" means broken or not, page 2 of the DOCS Unusual Incident Report (Exhibit A) prepared as a result of this incident contains a "medical report" regarding claimant. The report states:


The medical report makes it clear that there was no major injury to claimant's nasal/facial area. This exaggeration of injury casts doubt upon the allegation that claimant was hit with a baton and, in turn, causes the Court to view the rest of his testimony with a degree of skepticism.

The Court also finds Mr. Rivers' testimony to lack credibility. Rivers testified that on the walk from the clinic to F Block, the group passed Sgt. Keyser and that the Sgt. asked Rivers a question but when he attempted to respond, C.O. Surber told him to be quiet and keep moving. The Court finds it curious that a C.O. would not allow an inmate to respond to an inquiry from the officer's superior or that the superior officer would accept such conduct. The Court also finds Mr. Riley's testimony that he was able to see the examination of claimant in the nurse's room from the clinic's general population pen to lack credibility. The Court accepts the testimony of the C.O.s that a wall would block a person's view of the nurse's room from the pen area.

Based upon the preponderance of the credible evidence presented at trial, the Court finds that the use-of-force by the C.O.s was initiated in legitimate defense of the C.O.s and that the force used against the claimant in this incident was not excessive in relation to the purpose of restraining him. The Court does not find the claimant's allegations that the attack was unprovoked and "out of nowhere" to be credible.

As a result, the first and second causes of action in the claim, which essentially allege an unprovoked assault by the C.O.s upon claimant and negligence on the part of the State in the hiring, training and supervision of the C.O.s are hereby dismissed.

Further, to the extent that claimant's third and fourth causes of action allege denials of equal protection, due process and "other civil rights", the finding by this Court that the force used was not excessive defeats any such alleged violation under the New York State Constitution.[2]

Finally, claimant's fifth cause of action alleges emotional distress and other noneconomic damages occasioned by the alleged excessive use-of-force. Once again, the Court having found that the force utilized was appropriate and justified, this cause of action is dismissed.

In summary, the Court finds that the force exerted by the C.O.s in regard to the incident at trial was neither unprovoked nor excessive and, as a result, no liability attaches to the defendant arising out of this incident (see,
Lipert v State of New York, 207 Misc 632).
The Chief Clerk of the Court is directed to enter judgment accordingly.

April 4, 2003
White Plains, New York

Judge of the Court of Claims

[1] All quotations are from the Court's trial notes or the audiorecord of the trial.
[2]It is noted that the claim also alleges violations of rights under the United States Constitution and claims under 42 USC Sections 1983, 1985, 1986 and 1988. As to these issues, it is long established that the Court of Claims has no jurisdiction over Federal questions (Matter of Thomas v NY Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656; Davis v State of New York, 124 AD2d 420) and therefore, these portions of the third and fourth causes of action are dismissed as outside the jurisdiction of the Court.