New York State Court of Claims

New York State Court of Claims

ERAZO v. THE STATE OF NEW YORK, #2003-031-509, Claim No. 100943


Synopsis


Claimant failed to demonstrate assault upon him by correction officers. Claim dismissed.

Case Information

UID:
2003-031-509
Claimant(s):
ANGEL ERAZO
Claimant short name:
ERAZO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100943
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ANGEL ERAZO, PRO SE
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:
May 15, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, Angel Erazo, filed Claim No. 100943 on August 23, 1999, alleging he was the victim of negligence and intentional tort at Attica Correctional Facility on September 16, 1997. Specifically, he claims that correction officers forced him to swallow a razor blade which was surgically removed on September 26, 1997. The claim was tried before me on March 10, 2003 at Wende Correctional Facility. [1]

According to Claimant's testimony, on September 16, 1997, Claimant activated a walk-through metal detector. He was then scanned by a hand-held detector, which activated around his buttocks. After its activation, Claimant alleges he was thrown to the floor, and his hands and legs were held down while Sergeant Monin and Correctional Officer ("CO") Davis searched Claimant for contraband.

Claimant testified that Sergeant Monin and CO Davis were unsuccessful in their search, so he was handcuffed and escorted to the facility hospital. After he was informed an x-ray would be taken, Claimant admitted that he had placed a razor blade in his anal cavity and offered to remove it. He was then escorted, still handcuffed, by CO Davis to a private room where he defecated onto a tray under the observation of CO Davis, and handed the tray to the officer. Claimant alleges that after Sergeant Monin was shown the blade, which measured approximately 2 x 5 centimeters and was wrapped with plastic and toilet paper, he was held by Sergeant Monin while CO Davis forced him to swallow it. An x-ray was taken which revealed the blade near Claimant's esophagus. Once it became clear that it was not going to pass through his system, the blade was surgically removed.

Defendant called Sergeant Monin as its first witness.[2]
Sergeant Monin testified that, after Claimant activated a metal detector, he was scanned with a hand-held detector which activated near his buttocks. Claimant admitted he had a blade in his anal cavity and volunteered to remove it via defecation. The blade was not recovered, so Claimant was escorted to the hospital where an x-ray showed it had been swallowed. Sergeant Monin denied having assisted in forcing the blade down Claimant's throat.
Defendant's other witness was CO Davis, who also denied Claimant's allegations. CO Davis testified that a hand-held metal detector activated around Claimant's buttocks. After Claimant admitted he had a razor blade, CO Davis escorted Claimant to a private room where he could defecate behind a small partition. CO Davis was observing Claimant around the partition, and he testified that he saw the Claimant's hand quickly go to his mouth. After Claimant defecated, CO Davis did not find a blade, and he informed Sergeant Monin that Claimant had defecated but no weapon had been recovered.

During cross-examination, Claimant asked CO Davis why Sergeant Monin's report did not reflect the fact that CO Davis allegedly saw Claimant put his hand to his mouth.[3]
CO Davis responded that not every fact is put into the misbehavior report. In re-direct, CO Davis also stated that, contrary to Claimant's allegations, Claimant was not handcuffed in the private room during his attempt to produce the razor blade.
I find it troubling that there was no mention of Claimant putting his hand to his mouth prior to CO Davis' testimony. CO Davis testified that, while waiting for Claimant to defecate, he observed Claimant quickly put his hand to his mouth. Although it was brought out during the trial that not every fact is put into a misbehavior report, it would seem that an important fact such as this should not be omitted. It is obvious that the blade was swallowed sometime between the Claimant's activating the metal detector and his x-ray. The Claimant's and the Defendant's witnesses agree that the hand-held detector activated around Claimant's buttocks. The subsequent x-ray showed a blade in the area of Claimant's esophagus. Assuming the detector was accurate, and given that swallowed objects move down the body and not up, the razor was obviously swallowed while the Claimant was under the observation of the officers.

However, Claimant also testified to certain events which weakened his credibility. In his original claim, there is no mention that he was handcuffed during the incident, and he alleged that Sergeant Monin grabbed him by his arms. This is in contrast to his testimony where Claimant stated he was handcuffed the entire time, and Sergeant Monin grabbed him by his handcuffs. Additionally, Claimant testified that after defecating, he handed the tray to CO Davis. This would presumably be possible if he was handcuffed in the front, as he claims, but CO Davis testified that not only are inmates not handcuffed in the front, but Claimant was not handcuffed at all.

In situations involving inmate allegations of excessive force or, such as here, assault by a correction officer, the credibility of the respective witnesses is often the dispositive factor (
Davis v State of New York, 203 AD2d 234). Ultimately, as the trier of fact, this Court considers the credibility of each witness in making its determination (LaCourt v State of New York, Ct Cl, July 25, 2002 [Claim No. 96339], Mignano, J., UID #2002-029-199). After careful consideration of the evidence, including assessment of the credibility of the witnesses, the Court finds that Claimant has failed to establish by a preponderance of the evidence that he was forced to swallow the blade by Sergeant Monin and CO Davis. Accordingly, his claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.

May 15, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims



[1]Claimant initially indicated that he was unprepared to proceed as he was unable to secure the attendance of a witness on the issue of damages. Therefore, I explained to Claimant that the trial would be bifurcated and, if an assault was found, a damages trial would follow. The State did not object.
[2] Sergeant Monin was promoted to Lieutenant subsequent to the alleged incident.
[3] Claimant's Exhibit 1 was an Inmate Misbehavior Report completed by Sergeant Monin on the date of the incident. Sergeant Monin's testimony was consistent with his description of the incident in the report.