Edward Sanchez, the Claimant herein, alleges in Claim Number 105572 that
Defendant's agents used excessive force and assaulted him while he was in the
custody and control of the New York State Department of Correctional Services
(hereafter DOCS) incarcerated at Downstate Correctional Facility (hereafter
Downstate). Trial of the matter was held at Sing Sing Correctional Facility on
February 27, 2004.
Claimant testified that he was assaulted by "numerous officers at Downstate . .
. on November 8, 2001."
He recalled that he was on the way to see an eye doctor as part of new inmate
processing procedures, standing in line awaiting completion of procedures to see
medical personnel, but he "couldn't stand because . . . [his] knee was hurting
him." Claimant asked Officer Delgado if he could sit down, but was refused, with
the officer making a "smart remark like ‘what do you want me to do, carry
you?' or something like that, so . . . [he] sucked . . . [his]
at . . . [the officer]." Thereafter,
the officer asked Claimant for his identification card - which Claimant gave to
the officer - and asked him where he "locked." Claimant indicated he didn't
know where he locked, because he had only arrived the night before from Rikers
Island, and told the officer that he would "have to find it out on his own."
Claimant noted that the officer might have taken this as a sign of disrespect,
since immediately thereafter Claimant was told to get off the line, and "walk a
certain way." As Claimant was going down the staircase in the direction he had
been told to walk, the officer pushed him up against the wall, face first. When
Claimant turned around to ask why the officer did that, the officer "swang at .
. . [Claimant] and started hitting . . . [him] with the night stick, called for
assistance, and then numerous other officers came along." Claimant alleged that
they "just beat . . . [him] up."
On cross-examination, Claimant conceded he was issued a misbehavior report as a
result of the incident charging him with assaulting staff, and refusing a direct
order. He was found guilty of the charges, and served an 18 month penalty. The
finding and disposition was affirmed administratively, but no judicial review
No further witnesses testified on Claimant's direct case, and no evidence was
Correction Officer Delgado testified that on November 8, 2001 he was the
"building five groundsman," patrolling building five where all preliminary
medical procedures for the new inmates are done. He said he was walking through
the "square area," where over 100 inmates were congregated for different medical
procedures, when he observed Officer McCants - who had been assigned to the
square to direct the inmate movement - arguing with the Claimant. The witness
stopped to see what was going on, and overheard the correction officer telling
Claimant that he must follow all directions given to him by correction officers,
but the Claimant began speaking with another inmate, and ignored Officer
McCants. Officer McCants asked Claimant if he understood what she was saying,
but Claimant was observed continuing to ignore the correction officer.
At that point, Correction Officer Delgado approached Claimant, and tried to
gain his attention, but although he looked at the officer briefly, the Claimant
ignored Officer Delgado as well, and continued talking with the other inmate.
Groups of inmates were standing in the area. Correction Officer Delgado then
told Claimant he had to listen to direct orders from all staff members, and told
him to "get back in the line." The witness testified that the Claimant then said
"I have to shout out to my people man." Officer Delgado again told him to get
back in line and follow directions. Claimant got back in the line, and then
said to a fellow inmate "Man, I don't have time for this bull****."
The whole line of inmates was starting to get agitated then; the medical staff
was starting to be aware of "everyone getting jittery so they were starting to
lose concentration," so rather than speak to Claimant again, Officer Delgado
called the area supervisor to describe the behavior Claimant was engaging in on
the square, and was instructed to remove the inmate from the square, and return
him to his cell.
Officer Delgado then approached Claimant, and asked for and received Claimant's
identification card. When Officer Delgado asked Claimant where he locked,
Claimant responded by saying "you're so f ****ing smart, you figure it out
yourself." Officer Delgado said he "stood back from . . . [Claimant] for a few
minutes, went and found his officer" and advised him that Claimant was being
returned to his cell as per the area supervisor's instructions. Officer Delgado
went to Claimant saying "you have to come with me," to which Claimant replied
"where we going?" Officer Delgado said "come with me and I will explain it to
you." He took him to the side where there were no inmates, and stated "I have to
take you back to your unit." Claimant inquired "why", and was told "you are
being a little disruptive up here, we will have to continue this later."
When they were by the stairway beyond the square area, Claimant stopped, and
asked again "where are you taking me?" Officer Delgado said "back to your
unit." Claimant started to move again, and then turned around to the officer and
said "I ain't going no f****ing where" and struck Officer Delgado in the chest
with his right hand. The officer stepped back one or two steps "absorbing the
shock," and then "rushed" Claimant and "grabbed him around the waist, trying to
get him down on the floor to restrict him." Officer Delgado then realized there
was another officer behind him - he hadn't been able to see because his face was
"in . . . [Claimant's] chest - who then assisted in getting the Claimant onto
the floor. Correction Officer Alston and he then tried to get Claimant on his
stomach, so that they could place the handcuffs on his back - the procedure for
restraining a prisoner. Since they were at the edge of the stairway however,
the Claimant then grabbed the railings, and all three fell down the stairs to
the first landing.
When they got to the first landing, they were still trying to get control, but
Claimant was "fighting and kicking violently." They managed to get one handcuff
on, when Claimant again grabbed the railing, and they fell to the second
landing. Officer Delgado got on the radio, and "called a ‘red
giving . . . [his] location to headquarters." They were able to secure Claimant
with handcuffs on the bottom landing. When the response team arrived, Claimant
was in handcuffs, against the wall. In addition to the response team officers,
the Sergeant had arrived in the meantime, and Correction Officer Delgado and
Correction Officer Alston were instructed to go to the medical unit, and told
that the response team and the Sergeant would "take it from there." Except for
writing up the misbehavior report concerning the incident, that was Officer
Delgado's last involvement with the Claimant. [See
Exhibit A]. He
himself suffered only minor bruises.
Correction Officer Alston also testified, essentially confirming the version of
events described by Correction Officer Delgado. He stated that on November 8,
2001 he was escort officer at Downstate and happened to be in the square area
when he heard "loud, boisterous talking . . . belligerent, agitated talking
between . . . [Claimant] and various officers." He went to the area of the
noise to see if he could offer any assistance. At that point, he learned that
Correction Officer Delgado was going to remove the prisoner from the area upon
the supervisor's advice, and the witness assumed that "because of the size
disparity between Officer Delgado and
. . . [Claimant], another officer would be walking with him." When the
witness saw Officer Delgado and the Claimant walking down the hallway, he
realized that Officer Delgado "was going to be doing the escort by himself and
that the inmate was agitated, so . . . [Officer Alston] fell in step behind
them." As Officer Alston went down the hallway, and as he was turning the corner
to the stairways, he noticed the inmate strike a blow toward Officer Delgado in
the officer's chest area. Officer Alston then "closed . . . [his] distance" to
assist Officer Delgado.
When Officer Alston approached the two men, the inmate struck out at him as
well, and he was able to grab his arm, and began the struggle to get Claimant to
the ground and handcuff him. He reported that once one handcuff was on,
Claimant then grabbed the railing, and pulled all three down the stairs. At the
first landing, attempts to handcuff the inmate continued, and Claimant grabbed
the railing again, and the three men went down to the second landing, where the
officers were then able to turn him over and get the handcuffs on. Normal
procedure followed, he said, in that he and Officer Delgado were relieved, and
other officers escorted the inmate to medical. Officer Alston suffered minor
The physical examination of Claimant reported as part of the investigation of
the incident shows injuries consistent with the version of events presented by
the correction officers. [Exhibit A].
No other witnesses testified, and no other evidence was submitted.
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
. See 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.).
Resolution of this claim primarily rests upon the relative credibility of the
Claimant and Correction Officers Delgado and Alston. After careful
consideration, and after observing the demeanor of witnesses as they testified,
the Court credits the more internally consistent testimony of the correction
officers, and does not find the Claimant's version of events credible. Although
it was his burden to establish his claim by a preponderance of the credible
evidence, Claimant has failed to do so, particularly in light of what would
appear to be a highly selective recall of the events leading up to the attempts
to restrain him by the correction officers. 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).
The use of force report filed by the officers involved [
7 NYCRR § 251-1.3] shows that a contemporaneous record was made,
consistent with the testimony the officers gave at trial. [See
A]. There was no evidence, other than the self-serving testimony of the
Claimant, that any excessive force was used by correction officers. Indeed,
even the version presented by Claimant, in which he is cast in the role of
unsuspecting victim, primarily describes physical actions taken by the
correction officers consistent with standard "take-down" maneuvers. No medical
evidence was submitted to substantiate injury, and thus no other objective
information has been presented to the Court to support the claim. The amount of
force used was what was reasonably necessary to restrain an otherwise agitated
and belligerent inmate. Once Claimant was restrained with Officer Alston's help,
there was no additional force used beyond that necessary to restrain and
handcuff him. C.f. Lewis v State of New York
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 105572 is hereby dismissed in its entirety.
Let judgment be entered accordingly.