New York State Court of Claims

New York State Court of Claims

LING v. THE STATE OF NEW YORK, #2004-030-008, Claim No. 105521


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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
April 7, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Christopher Ling, the Claimant herein, alleges in Claim Number 105521[1]
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."[2]
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. [
See 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. [
See 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
respondeat superior. 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 denied 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.
[Id]. 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 credited.

Claim Number 105521 is hereby dismissed in its entirety.

Let judgment be entered accordingly.

April 7, 2004
White Plains, New York

Judge of the Court of Claims

[1] The Court notes that the Claim herein was filed with the Office of the Chief Clerk of the Court of Claims on January 25, 2002. The Defendant filed a Verified Answer on March 22, 2002. An additional document, entitled "Amended Claim Complaint" was file-stamped in the Clerk's office on December 6, 2002, beyond the time period within which amendment of a pleading as of right may be made, and without leave of Court. Accordingly, the document is treated as a nullity.
[2] All quotations are to trial notes or audiotapes unless otherwise indicated.