Christopher Ling, the Claimant herein, alleges in Claim Number
that he was assaulted by a correction officer when he was an inmate at Downstate
Correctional Facility (hereafter Downstate). Trial of the matter was held at
Sing Sing on February 27, 2004.
Claimant testified that on November 7, 2001 he was returning from the evening
meal at about 4:30 p.m. at Downstate "in G and H yard block when . . . [he] ran
into a crowd of inmates, an officer ran up the stairs, and [Claimant] got hit .
. . in the mouth [by the officer who] . . . broke . . . [his] bridge in four
places and knocked out two teeth."
Claimant indicated Officer Miner hit him and did not apologize, at which point
Claimant "cursed at" the officer and was "written up." Claimant was put on
keeplock, and not sent for medical attention until the next morning. He spoke
to a Sergeant Davis, who explained the grievance process, and he "put his
paperwork in" for a grievance. [Exhibit 2]. The following week he was
transferred to Clinton Correctional Facility, where he received physical therapy
for some time.
Claimant furnished copies of letters he wrote to the Superintendent and to
Commissioner Goord dated, respectively, November 21, 2001 and May 6, 2002,
asking for investigation of Correction Officer Miner. [Exhibits 5 and 6]. The
grievance was denied, as was the Superintendent's appeal. [Exhibit 4]. Claimant
appears to have instituted an appeal to the State level, but it is unclear from
the documents submitted what the resolution was of any appeal to the State.
Exhibit 3]. Claimant indicated that he served a thirty (30) day
keeplock sentence. Portions of Claimant's ambulatory health record (hereafter
AHR) were submitted in evidence as well. [Exhibit 9].
On cross-examination Claimant confirmed that on November 8, 2001 he was issued
a misbehavior report by Correction Officer Miner, charging him with violent
conduct, creating a disturbance, harassment, and refusing a direct order.
Exhibit A]. After a disciplinary hearing, he was found guilty of all
the charges. Claimant confirmed he was found guilty, but indicated his view that
the ticket was written to "cover-up" the officer's own actions. Claimant
reiterated that he did not threaten the officer with violence. The disposition
of the disciplinary hearing was on November 13, 2001. On that date Claimant
filed his grievance alleging that Correction Officer Miner had broken his
denture plate. Claimant admitted that no letters to officials requesting
investigation of the matter or investigation of Correction Officer Miner, or
complaints in the form of the grievance were sent until on or after November 13,
2001: the day he was found guilty of the disciplinary charges. He confirmed that
he had not been believed at the disciplinary hearing when he said in defense of
the charges that Correction Officer Miner had "bumped into" him. Claimant did
not appeal the disciplinary determination.
No other witnesses testified and no other evidence was admitted.
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 employees under the concept of
. See Jones v State of New York
, 33 NY2d
275, 280 (1973); Court of Claims Act §8.
Before turning to any question of the degree of force, however, resolution of
this claim rests upon the credibility of the Claimant and the evidence Claimant
presented to substantiate his claim. 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). Based upon a preponderance of the credible
evidence, the Claimant has failed to establish that he was assaulted by anybody.
There was no evidence, other than the self-serving testimony of the Claimant,
that any force was used by any correction officers. From the testimony Claimant
gave at trial, what can be inferred at best is that a correction officer may
have accidentally bumped into the Claimant, and offended his dignity by not
apologizing for the contact. The narrative provided in the misbehavior report
written by Correction Officer Miner is far different, and indicates no physical
contact between the correction officer and the Claimant, but rather some verbal
sparring initiated by Claimant. As conceded by Claimant, his version of events
was not accepted at the disciplinary hearing.
What medical evidence was submitted to substantiate the injury does not provide
any objective information to support the scenario of injury related to an
assault alleged by this Claimant. The AHR submitted shows a visit to medical
personnel on November 16, 2001 - nine (9) days after the alleged assault - with
the notation that the patient has "broken upper denture and 6 lower teeth."
[Exhibit 9]. A subsequent consultation by telephone is noted on November 17,
2001, and several missed sick calls are noted as well.
The AHR entry for November 29, 2001 is the first indication in
the "subjective" portion of the notes - the portion where the patient would
report his complaints - that Claimant alleged he was hit in the mouth by a
correction officer on November 7. [Id].
Finally, Claimant presented himself to this Court as somewhat combative and
confrontational, and given the absence of objective proof, his testimony is not
Claim Number 105521 is hereby dismissed in its entirety.
Let judgment be entered accordingly.