Reginald Martin, the Claimant herein, alleges in Claim Number 104324 that
Defendant's agents used excessive force against him while he was incarcerated at
Green Haven Correctional Facility (hereafter Green Haven). Trial of the matter
was held at Green Haven on June 20, 2003.
Claimant testified that on April 14, 1999 he was "trying to cross over to the
other side of the yard"
and "knocked on the door of the F and G yard" to gain access to the corridor
that would lead him to the other side. He wanted to go "get some medication
because . . . [he] was injured." Several inmates had knocked previously when
Claimant approached the door, with no response. Correction Officer Patterson,
who was "in charge of the keys on that corridor," opened the door and let
Claimant in. It is noted that in his Claim, Claimant indicated that he knocked
on the door "roughly hard." [See
, Claim No. 104324, ¶2]. As
Claimant proceeded in, he was ordered to "go to the wall" by C.O. Patterson, who
then allegedly struck Claimant on the back with the keys he was holding. Several
other officers were in the corridor as well. Claimant testified he turned around
and told the officer to stop, but C.O. Patterson continued to strike Claimant
and continued to direct him to "get to the wall." Claimant estimated that the
wall was approximately 16 feet from the door he had just entered. Claimant
stated that he continued to say to the officer, "don't hit me." Thereafter, he
was taken back to his cell. Although he complained of back pain, he testified
he was refused medical treatment.
Correction Officer Patterson served a misbehavior report on Claimant, charging
him with various facility rule violations [
, 7 NYCRR §270.2] including, threats [102.10]; conduct involving
threat of violence [104.11]; conduct which disturbs the order of any part of the
facility [104.13]; violation of direct order [106.10]; Interference [107.10];
and destruction of State property [116.10]. [Exhibit 1]. In the narrative
portion of the report, C.O. Patterson indicates that he heard a "kicking and
pounding on [the] G & H yard door, . . . looked out and identified the
inmate as Reginald Martin." [Id]
. He let the Claimant in, who proceeded
to start "screaming ‘Don't put your hands on me C.O., I'm telling you,
don't put your hands on me or else'."[Id].
The officer wrote that he
told Claimant to put his hands on the wall but Claimant refused, continuing to
exclaim, "don't touch me." [Id]
. Eventually Claimant complied after
several direct orders, allowed a pat frisk, and was escorted back to his cell by
two other correction officers. Later inspection showed a broken window on the
Claimant's Ambulatory Health Record (hereafter AHR) for the period around the
time of the alleged assault was admitted in evidence. [Exhibit 2]. The visit to
the facility clinic closest to the date of the alleged assault is noted as April
On that date, under the "subjective" portion of the physician's
notes, it indicates "I hurt my back working out." [Id]
. Under the
"objective" portion of the notes there is an indication that Claimant was
"shuffling along but in no extreme distress." [Id]
. It appears he was
given pain medication and told to rest and not work out. [Id]
Thereafter, the AHR reflects some regular visits to the facility clinic with
complaints of lower back pain, and various courses of treatment including pain
medication as well as a back brace. [Id]
. There is no indication in the
medical record - for example, a report of inmate injury form or other narrative
report by medical personnel - that any injury to Claimant's back was a result of
C.O. Patterson also testified. He stated that at approximately 7:00 PM on
April 14, 1999 he had just closed the "F and G door, and had secured the E and F
door also, and started to walk back to the corridor, when somebody started
banging on the door loudly." He opened the door, recognized Claimant, and had
him come in, telling him to keep going forward to the wall. He pat frisked
Claimant at the wall, and claimant was then escorted back to his cell. During
this process, he recalled Claimant saying "don't touch me." He did not strike
the Claimant, nor did he observe anyone else strike Claimant.
On cross-examination, C.O. Patterson did not recall having written in the
misbehavior report that there was kicking or banging on the door or that there
was a broken window in the door. He could not recall seeing Claimant's face at
the window when he went to the door, and did not recall other inmates at the
window or any sort of disturbance.
Claimant admitted that he was found guilty of the various disciplinary charges
with the possible exception of the asserted destruction of State property
charge. No evidence of the disposition was offered.
No other witnesses testified, and no other evidence was submitted.
As an initial matter, Defendant moved to dismiss the Claim based upon untimely
service. Pursuant to a prior decision dismissing a claim for improper service,
and allowing Claimant to file a late Claim [
, Martin v State of New York
, Claim No. 101798, Motion No.
M-62526, Waldon, J. April 19, 2001], Claimant was required to serve his new
claim within sixty (60) days of the filing date of the decision, or by June 19,
2001. No affidavit of service appears in the file reflecting when service was
made upon the Attorney General. Regulations require that proof of service be
filed with the Chief Clerk within ten (10) days of service on the Defendant.
, 22 NYCRR 206.5 (a)]. From the argument made on the record by the
Assistant Attorney General, it appears that the claim was received by that
office on July 19, 2001, after the time period provided for.
The filing and service requirements contained in Court of Claims Act
§§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New
York State Thruway Auth.
, 75 NY2d 721, 722-723 (1989); see,
, Welch v State of New York
, 286 AD2d 496, 729 NYS2d 527, 529
(2d Dept 2001); Conner v State of New York
, 268 AD2d 706, 707 (3d Dept
2000). Indeed, the statute provides in pertinent part ". . . [n]o judgment
shall be granted in favor of any claimant unless such claimant shall have
complied with the provisions of this section applicable to his claim . . . "
Court of Claims Act §10.
Court of Claims Act §11(a) provides that ". . . a copy [of the claim]
shall be served personally or by certified mail, return receipt requested, upon
the attorney general . . ." within the time prescribed in Court of Claims Act
§10; and service is complete when it is received in the Attorney General's
office. Court of Claims Act §11(a)(i). Service upon the Attorney General
by ordinary mail is generally insufficient to acquire jurisdiction over the
State, unless the State has failed to properly plead jurisdictional defenses or
raise them by motion. Court of Claims Act §11(c)
; Edens v State of New York
, 259 AD2d 729 (2d Dept 1999); Philippe v
State of New York
, 248 AD2d 827 (3d Dept 1998).
The Claimant has the burden of establishing proper service [
Boudreau v Ivanov
, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance
of the evidence. See, Maldonado v County of Suffolk
, 229 AD2d 376
(2d Dept 1996).
Claimant did not offer any proof of service. The only affidavit of service in
the Clerk's file refers to service of the claim upon the Court of Claims, not
the Attorney General's office. Accordingly, Claimant has not established that
the Attorney General was served in accordance with Court of Claims Act
§§10 and 11. For this reason alone, the claim should be dismissed
for a lack of jurisdiction.
The Claim should be dismissed for substantive reasons as well, however, since
the Court is not convinced that any force was used in Claimant's encounter with
correction personnel on April 14, 1999.
Use of physical force against an inmate is governed by statute, regulation, and
the attendant case law. The statute provides in pertinent part ". . . [w]hen any
inmate . . . shall offer violence to any person, . . . or resist or disobey any
lawful direction, the officers and employees shall use all suitable means to
defend themselves, to maintain order, to enforce observation of discipline,[and]
to secure the persons of the offenders . . . " Correction Law §137(5). As
set forth at 7 NYCRR § 251-1.2 (a), an officer must use ". . . [t]he
greatest caution and conservative judgment . . . in determining . . . whether
physical force is necessary; and . . . the degree of such force that is
necessary." Once an officer determines that physical force must be used, ". . .
only such degree of force as is reasonably required shall be used." 7 NYCRR
§ 251-1.2(b). The State may be liable for the use of excessive force by
its employee under the concept of
, Jones v State of New York
NY2d 275, 279 (1973); Court of Claims Act §8.
To assess whether force was necessary, or whether the particular degree of
force used was reasonable, ". . . a Court must examine the particular factual
background and the 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)
Often the credibility of witnesses will be a critical factor in these
determinations (Davis v State of New York, 203 AD2d 234; . . .
." Kosinski v State of New York
Claim No 97581, November 30, 2000, Sise, J. [UID No.
Before turning to any question of the degree of force, however, resolution of
this claim rests upon the relative credibility of the Claimant and Correction
Officer Patterson, and the evidence Claimant presented to substantiate his
claim. Based upon a preponderance of the credible evidence, the claimant has
failed to establish that he was assaulted by anybody. Resolving issues of
credibility is the province of this Court as the trier of fact.
LeGrand v State of New York
, 195 AD2d 784 (3d Dept 1993), lv
, 82 NY2d 663 (1993).
Here, the Claimant did not establish that any force was used. No use of force
report appears to have been filed. [
, 7 NYCRR § 251-1.3]. There was no evidence, other than the
self-serving testimony of the Claimant, that any force was used by correction
officers. C.O. Patterson credibly testified - as best as he could recall - to
what would appear to have been a fairly innocuous event occurring four (4) years
before the date of trial. Out of present memory, he did not even recall that
there had been any real dispute beyond Claimant proclaiming "don't touch me."
No medical evidence was submitted to substantiate injury, and thus no other
objective information has been presented to the Court to support the
Accordingly, Claimant has failed to establish by a preponderance of the
credible evidence that excessive physical force was used on him by correction
Claim number 104324 is hereby dismissed in its entirety.
Let judgment be entered accordingly.