New York State Court of Claims

New York State Court of Claims

WALSH v. THE STATE OF NEW YORK, #2003-032-529, Claim No. 103621


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:
Howard Walsh, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Howard Walsh filed this claim on January 4, 2001, alleging that on December 20, 2000, he was assaulted as he was brought to the Special Housing Unit (SHU) of Franklin Correctional Facility for an unrelated disciplinary infraction. At trial, claimant testified that while in the frisk room of the SHU unit, Correction Officer Titus and another unknown officer were in the process of strip frisking him as he was standing with his hands against the wall. After some sort of verbal altercation involving the officers purportedly instructing claimant to address them as "sir" or "officer", the unknown officer allegedly struck claimant on the back of the left foot causing his left knee to strike the concrete wall. Claimant testified that although his knee is not giving him problems anymore, he went through roughly four months of pain in his knee before the injury evidently resolved itself.

Defendant State of New York offered the testimony of two correction officers. Although it was never firmly established at trial, it appears that Correction Officer Andre Secore was the other "unknown" officer who processed claimant on December 20, 2000. After giving basic information regarding how the SHU operates and how inmates are processed into the unit (
see 7 NYCRR 302.1), Secore testified that he had no memory of the alleged incident with claimant on December 20, 2000. At this juncture the State offered into evidence a memorandum authored by Secore to his sergeant dated 12/20/00. The full text of the memorandum states:
To: Sgt. Brown
From: C.O. A. Secore
Subject: Inmate Walsh (00A1008)
At no time did I kick Inmate Walsh in the leg, nor did I physically abuse him in any way (Defendant's Exh. A).

On cross-examination, after this exhibit was entered into evidence, Secore maintained that he could still remember no specifics from that day.[1]
Correction Officer Marvin Titus's testimony duplicated Secore's both in its content regarding SHU procedure and in its paucity of value as far as resolving the sharp factual dispute in this claim. He stated that he had no memory of any event occurring on December 20, 2000. Other than stating that he recognized claimant's face and acknowledging that records showed that he was working in the SHU area on the day in question, Titus's testimony added nothing of probative value. Claimant declined to cross-examine the witness since it was evident that he would recall nothing.

Correction officers are allowed to strike an inmate when there is justification related to immediate threats to facility security or in self defense (
see 7 NYCRR §251-1.2 [d]). The only issue in the present case is whether such justification is present here. Consequently, the credibility of the witnesses becomes the sole deciding factor for the Court (see, Davis v State of New York, 203 AD2d 234; Vogler v State of New York, Ct Cl, Patti., J., 2002 WL 32068269). Based on the Court's viewing of the witnesses' demeanor at trial, as well as a review of the audio tapes and exhibits, the Court credits claimant's testimony regarding the incident that took place on December 20, 2000 over the version offered by the correction officers which, in reality, can be summed up as "we can't remember". In doing so the Court obviously discounts the memorandum authored by Correction Officer Secore.
Since there can be no punitive damages assessed against the State (
see Sharapata v Town of Islip, 56 NY2d 332; Harvey v State of New York, 281 AD2d 846; Wheeler v State of New York, 104 AD2d 496), the sole inquiry remaining is to determine a monetary value for the suffering caused by the battery it has determined took place.
The testimony offered by claimant pertaining to his damages centered on complaints regarding his left knee. He made clear at trial that he was only seeking damages for the approximate four months following the incident that his knee was troubling him. His ambulatory health records (Claimant's Exh.1), however, cloud the issue as a review of the entries after the incident (entries from January 2001) appear to focus initially on pain to his wrist emanating from the incident. The health records do not reveal any complaints for knee pain stemming from the incident until March 2, 2001. After that, there is a total of four entries regarding knee pain with the final one occurring on April 2, 2001.

Nevertheless, based on claimant's testimony and his ambulatory health records, the Court accepts that he suffered from some degree of discomfort associated with what appears to have been minor injuries from the incident for intermittent periods of time after the incident and, accordingly, awards claimant three hundred dollars ($300.00) as reasonable compensation for this pain (
see generally Flower v State of New York, Ct Cl, 2002, Scuccimarra, J., Claim No. 101480 [UID No. 2002-030-005] [reoccurring knee pain from a slip and fall accident - - $200]). To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a (2).
Let judgment be entered accordingly.

December 31, 2003
Albany, New York

Judge of the Court of Claims

[1]The Court reserved on the State's objection to claimant's questions regarding any prior misbehavior reports or claims similar to claimant's of which Secore was the subject and now sustains the objection. Claimant did not set forth the requisite clear showing of facts to justify such an inquiry and, in any event, it would be improper to allow claimant to attempt to prove that Secore utilized excessive force on this particular occasion by showing that he had been accused of similar acts on different, unrelated occasions (see Prince, Richardson on Evidence §4-517 [Farrell 11th ed]).