David Rivera, the Claimant herein, alleges in Claim number 104603 that
Defendant's agents assaulted him while he was incarcerated at Fishkill
Correctional Facility (hereafter Fishkill) on July 21, 2000. Trial on the issue
of liability was held on January 12 and 13, 2004.
Claimant testified that on July 21, 2000 he was working at his regular program
at Fishkill as "the 21 building basement porter pool clerk, . . . assigned to
dish out jobs."
He indicated he was responsible for handing out jobs to approximately 100
inmates, assigning them to jobs in one part of the building or another. In
connection with that function, he also "did payrolls." Under his supervision,
inmates did anything from sweeping or mopping a floor, to cleaning a wall, to
cleaning up a flooded basement, and Claimant worked five to six days per week,
two shifts per day. It was a position of some responsibility and influence in
the inmate population.
that two days earlier, on July 19, 2000, a correction officer named Sean Morin
was assaulted by unknown inmates. He said that he was playing ping pong at
approximately 11:00 p.m., "about the time the officers change their shifts" and,
apparently, shortly after the time of Officer Morin's injury, when correction
officers called all the inmates in for a "count." The inmates, including
Claimant, returned to stand outside their cells, and were "kept standing until
6:00 a.m. the following morning," while officers searched rooms and interviewed
Two investigations of the assault on the correction officer were ongoing,
Claimant said. On July 20, 2000, Claimant indicated he was escorted by
Correction Officer Cocuzza to an interview with the Sheriff's Department. As he
waited for approximately eight to ten minutes
for the sheriffs to interview another inmate, Cocuzza, he claimed, started
asking him about the assault on Morin, and Claimant told Cocuzza he knew nothing
about it. Although it was not totally clear from the testimony, it was
presumably during this wait in the company of Officer Cocuzza that Cocuzza
allegedly threatened to frame Claimant if he did not give him the name of the
inmate who had assaulted Officer Morin.
Claimant stated he was also interviewed during a second investigation by the
Inspector General's Office on the same day. He advised all questioners that he
knew nothing about the assault on Morin, and had been playing ping pong at the
time indicated. He recalled that some time during the evening of July 20, 2000
the inmates were finally released from their rooms, and the "lock down"
When he reported for work on July 21, 2000 to the porter pool office,
Correction Officer Cocuzza was there as the supervisor, as were three (3) other
inmates. He stated that Cocuzza was not the "regular supervisor." From
approximately 8:00 a.m. to 8:45 a.m. he and the others were busy handing out
assignments. When the three other inmates left the office to "check on
something", Officer Cocuzza proceeded to question Claimant again about his
knowledge of the assault on Morin.
Thereafter, Claimant testified that Cocuzza told him to "get against the wall"
in the corridor outside the porter pool office. After Claimant complied with the
request Cocuzza started searching him. Claimant said that while he was facing
the wall, Cocuzza hit him in the back with his forearm, grabbed him, and tried
to throw him on to the ground. In the meantime, another officer had arrived -
Correction Officer Jewel - who assisted in throwing Claimant to the ground,
where they kicked and punched him. He presumed one of the officers had "pulled
his pin", since more officers arrived in apparent response to a distress call.
Sergeant Zaccagnino arrived, and the officers handcuffed Claimant, twisted his
fingers, and threw him into the porter pool office, where they "beat . . . [him]
up some more." Throughout the process, he said, they kept asking him about the
assault on Morin.
A different sergeant and other officers took him to the special housing unit
(SHU) in "21-A building," where he was strip searched, taken to an SHU cell and
photographed. He alleged that during the strip/frisk in SHU he was struck in
the right ear by Correction Officer
Surveillance cameras were in the strip/frisk room. Before officers took
photographs of him in the SHU cell, however, he said they told him to "clean
himself up and clean the blood off the floor." At the time, he averred, he was
bleeding from his face and was hurt at his "left eyebrow, right cheekbone, right
ear, right shoulder and a couple of other places where he was bruised from being
dragged on the floor."
Claimant identified certain photographs as showing how he looked after the
alleged assaults in the corridor outside the porter pool office, in the porter
pool office, and in his cell at SHU. [Exhibits 4, 5, 6, 7, 8, 9, 11, 13, 14].
These three locations were summarized on cross-examination as being the places
where he alleges officers assaulted him.
Claimant recalled that within an hour of the photographs being taken, he saw
medical personnel at the Fishkill medical facility. A nurse cleaned his wounds,
a doctor put sutures on his eyebrow and right cheek, but no medication was
prescribed. After treatment, he returned to his cell where he recalled being
questioned by somebody about the allegations concerning Officer Cocuzza.
Thereafter, a misbehavior report was filed by Correction Officer Cocuzza,
alleging possession of a weapon and failure to comply with a frisk and search
procedure in violation of facility rules. [Exhibit M]. In the misbehavior
report, Officer Cocuzza notes that he observed Claimant apparently receiving
something from another inmate in the corridor outside the porter pool office,
watched him for a little while, and then directed him to place his hands on the
wall. During a pat/frisk type search, he " . . . felt something in the small of
his back, by his waistband. As . . . [the officer] tried to remove the item the
inmate came off the wall and attempted to run . . . [The officer] then tackled
the inmate around the legs . . . As . . . [they] went to the ground the weapon
fell to the floor."
In the meantime, Officer Jewel, stationed at the "TC-3" station
down the corridor approximately 30 to 40 feet away, had responded. Other
officers arrived thereafter. The weapon was a "red toothbrush with a razorblade
melted into the brush end." [Id].
Photographs taken on that day show
where the altered toothbrush came to rest in the hallway opposite the entrance
to the porter pool office. [See
Exhibits 1, 2, 3].
After a Tier 3 disciplinary hearing, Claimant was found guilty of the charges
in the misbehavior report. In his letter appeal to the State of the
Superintendent's hearing affirming the finding of guilt, Claimant recited
essentially the same version of events recited at the trial here. [Exhibit N].
The finding of guilt was again upheld at the State level as well.
Additionally, Claimant pled guilty to the criminal charge of promoting prison
contraband, a misdemeanor, in Fishkill Town Court in full satisfaction of
charges that originally included third degree criminal possession of a weapon, a
"violent" felony charge. [
Exhibit L]. Claimant maintained that he had pled guilty to the
misdemeanor in order to avoid future sentencing problems as a predicate felon.
On cross-examination he conceded that he had been undergoing sentencing for
criminal possession of a controlled substance at the time: a new charge levied
while he was released on parole. He would not say, however, that he pled guilty
to the misdemeanor in Town Court in order to avoid consideration as a
felony offender versus sentencing as a mandatory persistent
Lieutenant Mark Simmons, a 31 year New York State Department of Correctional
Services (hereafter DOCS) employee, who was the building lieutenant for the SHU
building, also testified on Claimant's direct case. He had interviewed Claimant
in SHU in connection with Claimant's accusation that Correction Officer Cocuzza
had threatened to frame Claimant if he didn't name the inmate who assaulted
Correction Officer Morin. Lieutenant Simmons indicated that he completed a
"To/From" memorandum in connection with his interview, directed to his Captain,
and dated July 21, 2000, as part of the normal course of business when staff
misconduct is alleged. [Exhibit 32]. The memorandum notes the accusation and
Claimant's denial of ownership of the weapon. Although he remembered that
Officer Morin had been assaulted earlier in the week, Lieutenant Simmons did not
recall that there was any ongoing investigation of the event.
Lieutenant Simmons indicated he had been present when Claimant arrived at SHU.
He could not recall whether he had been making rounds or had been specifically
alerted that a room needed to be prepared, but he was, in any event, present
when he saw Claimant brought through the door to SHU. He was nearby when
Claimant was in the strip/frisk room at SHU, but could not recall exactly which
officers were with Claimant in that room. He noted that surveillance cameras
are in the strip search cell, all the way up the stairwell and along the
corridor. Although no individual is assigned to view the cameras
contemporaneously, there is constant monitoring by the cameras to record any
misdeeds. "Anyone doing anything in the strip/frisk area has to know that they
could be monitored at any time given the surveillance and sense of constant
Once Claimant was in the SHU cell where photographs were taken, Lieutenant
Simmons recalled that he and Sergeant Sullivan were outside the cell, while
another officer who took the photographs, and Officer Kitson were present inside
the cell, "waiting for a nurse to come to do a gross physical evaluation" as was
the practice when force is used with an inmate. The cell door was open. He
stated that he did not see any of the officers strike the Claimant in any way,
nor did he himself strike the Claimant. There was no instruction by any
officer to "clean up the cell" as averred by Claimant. He did observe that
Claimant had a piece of toilet paper in his hand "blotting blood near his nose
No other witnesses testified on Claimant's direct case.
The State called Correction Officers Cocuzza and Jewel, as well as Sergeant
Zaccagnino and Sergeant Sullivan. Correction Officer Cocuzza, a 12 year DOCS
employee, stated that on July 21, 2000 he was assigned to supervise the porter
pool office at Fishkill. For approximately seven and one-half (7 ½ ) years
Cocuzza had worked a day shift from 6:30 a.m. to 2:30 p.m., and had worked for
one (1) year at the porter pool office. He described Claimant as "one of my
clerks," with whom he had a "good working relationship."
Cocuzza testified that the corridor outside the porter pool office generally
has a constant stream of traffic as the only access used by the inmate
population to travel from 21 building to 21-A building until about 11:30 a.m.
There would be a slight decrease in traffic between 8:30 a.m. and 8:40 a.m.
because most inmates would have gotten to their programs by that time, but there
would generally always be some movement in the corridor as inmates went to see
doctors, went to the grievance office, went to the laundry, or responded to
whatever call-outs were made throughout the morning.
On July 21, 2000, between 8:30 a.m. and 8:40 a.m.,Cocuzza, from where he was
sitting at his desk in the porter pool office,
observed Claimant in the corridor either passing or receiving "something."
Claimant was approximately 15 to 20 feet away at the time, and the officer could
not confirm who the other inmate was only observing that he was wearing "State
greens." Cocuzza did not approach Claimant right away, because the porter pool
was still running, and Cocuzza was surrounded by other inmates - as many as 150
- supervising the area on his own. The closest correction officer was Officer
Jewel, who was stationed approximately 50 to 100 feet away down the corridor at
the "TC-3 desk." For his own safety, and that of the inmate as well, he decided
to wait to approach Claimant when the porter pool assignments were
Cocuzza testified that at some point thereafter Claimant returned to the porter
pool office, and he told Claimant to come out to the hallway and "get on the
wall." Cocuzza noted that the hallway was a better place to conduct a search
than inside the very small porter pool office because even though far away, the
TC-3 officer would be within hearing distance. Claimant had complied with the
direct order to put his hands on the wall, and face it. Cocuzza stated that he
then commenced a standard "pat/frisk" search, centering his foot between the
Claimant's spread legs, and patting down Claimant's arms, shoulders and chest.
The witness stated that he saw a lump in the back of Claimant's waistband. As
Cocuzza took his hand to retrieve the object from Claimant's clothes, Claimant
proceeded to "move off the wall," turning his body to the left and bringing his
hands down, and continuing to "come off the wall." Cocuzza then took the inmate
to the ground by grabbing his legs. Claimant tried to get back up, and a
struggle ensued, with Claimant continuing to try to get back up and Officer
Cocuzza "attempting to gain control."
Cocuzza said he was busy trying to control Claimant's legs as he continued to
struggle. Officer Jewel arrived in the meantime, and attempted to gain control
of Claimant's upper body. He saw Jewel get on top of Claimant's back, trying to
control his arms, while Cocuzza continued to try to control the lower part. At
some point, Claimant fell head first into the steam tunnel doorway along the
corridor. Cocuzza could not say what if any part of his body hit the doorway,
but he did see Claimant go "head first," striking either his head, cheek or chin
on the doorway. He presumed that Officer Jewel called for assistance, because
he was unable to get his own radio to work. Other officers arrived shortly after
Jewel pulled the alarm, within "15 to 20 seconds. " Officer Cocuzza first saw
the red toothbrush with the razor on the floor against the wall when Officer
Jewel arrived, but he was focused on gaining control of the inmate, not on
attempting to recover the weapon.
Among the six to eight officers responding, Cocuzza recalled that Sergeant
Zaccagnino, the building sergeant that day, and Sergeant Sullivan, the SHU
sergeant, also responded. When they all arrived, Cocuzza, Jewel and the
Claimant were on the floor in the tunnel. Sullivan directed Cocuzza and Jewel to
"slide" Claimant back into the porter pool office, a matter of a few feet. Once
they were in the office, Cocuzza and Jewel were directed to relinquish control
of the inmate to Officers Dively and McAnney, who would be the escort officers
taking Claimant to SHU. Cocuzza could not recall who had put handcuffs on the
Claimant, but recalled that "once control was relinquished" officers put
handcuffs on, and Claimant was picked up to a standing position facing the wall.
After Officers Dively and McAnney took over, Cocuzza went back out to the
corridor to secure the weapon on the floor, and observed Sergeant Zaccagnino
taking photographs of the weapon. [Exhibits 1, 2, 3]. A "Continuity Evidence"
form [Exhibit F] was completed by the officer to establish the initial chain of
custody of the weapon before it was secured by Sergeant Zaccagnino and logged in
the contraband locker. [Exhibit I].
Cocuzza denied punching, striking or kicking the Claimant, and did not observe
any other officers engaged in such activity. He completed an "Employee
Accident/Injury Report" form [Exhibit 27], required whenever there is an
unusual incident, and noted his complaints at the time as a sore left thumb, and
a slight ache in back of his left shoulder. His contact with Claimant ended in
the porter pool office when the escort officers took over.
As a result of Claimant's allegations of staff misconduct, Officer Cocuzza was
interviewed by the Inspector General's Office, and indicated he was never
disciplined or sanctioned concerning the events of July 21, 2000. Of his own
knowledge, the Inspector General's investigation resulted in a determination of
Correction Officer Jewel, a 13 year DOCS employee, testified that he was at
the vocational checkpoint at the TC-3 station on July 21, 2000 when he heard a
loud commotion, with the "inmates all disturbed" down the hall. From his
position he monitored inmate movement along two long corridors. The porter pool
area is approximately 50 to 100 feet away from this checkpoint. When he heard
the noise, he looked up the corridor and saw an inmate and a correction officer
struggling on the floor. He ran to assist the officer. When he got there, the
correction officer was struggling to keep Claimant under control, while the
Claimant was attempting to rise. Officer Jewel indicated he then tried to "work
on the upper body, arms and shoulders area," since Officer Cocuzza was
struggling for control of the lower body. He used "some holds" he knew, whereby
he placed his left hand on Claimant's left arm, bringing it up behind his back,
while bringing Claimant's right arm to his back with his right hand. He applied
pressure with his knee to keep the Claimant down, while Claimant continued to
struggle. Officer Jewel pulled his personal alarm, and officers responded
almost immediately. He recalled Sergeant Sullivan and Sergeant Zaccagnino as
being among the responding officers. He recalled one of them directing him and
Cocuzza to get Claimant out of the inmate traffic in the hallway, and they
"slid" the Claimant into the office. He described it as a "quick scoop of
approximately four (4) feet; the entire hallway being only eight (8) feet
wide." Officer Jewel stated he did not punch, slap, kick or hit Claimant, nor
did he see any other officer do so.
Once they were inside the porter pool officer, Sergeant Sullivan told them to
turn Claimant over to the other correction officers, who handcuffed Claimant and
escorted him to SHU. He recalled being interviewed by the Inspector General's
Office some time later, but never heard about the end result of the
investigation. He was never disciplined as a result of the incidents of July 21,
On cross-examination Officer Jewel admitted that he had seen a gash on
Claimant's face that he took note of at the time, and remembered seeing some
blood above Claimant's eyebrow.
Sergeant Zaccagnino, a 21-year DOCS employee, testified concerning his
involvement as well. He said that he was responsible for documenting the
location of the weapon by taking the photographs of it where it was found
[Exhibits 1, 2, 3]
, completing the contraband receipt [Exhibit E] and assuring the chain of
custody [Exhibit F] until it was logged into the contraband locker. [Exhibit I].
On cross-examination he confirmed that he had not seen the Claimant in
possession of the weapon.
Finally, Sergeant Sullivan, a DOCS employee for 19 years, testified for the
State. He indicated that he was the person in charge of monitoring admissions
to SHU on July 21, 2000. When an alarm call went off that morning, he responded
to the porter pool hallway as had the others. He noted that when an alarm is
called, there is no indication of exactly what the emergency is, just that there
When he arrived at the porter pool hallway, he saw that the other inmates in
the area were all "agitated," and saw that the correction officers had
essentially gotten the Claimant under control. He directed Officers Cocuzza and
Jewel to get Claimant into the porter pool office, and out of the way of the
other inmates who were milling about. He did not observe any punching, kicking
or striking of the Claimant.
Sergeant Sullivan followed the officers into the porter pool office and
directed Officers Dively and McAnney - who were his subordinates at SHU - to
take control of the Claimant. Officer Dively handcuffed the Claimant with the
handcuffs that Sergeant Sullivan gave him. Officer Cocuzza was sent to control
the weapon. The Claimant was brought to his feet and Sergeant Sullivan and
Officers Dively and McAnney escorted Claimant to SHU. Nobody struck anybody
along the way. He also confirmed that there are surveillance cameras all along
the tunnel to SHU, at the entrance to SHU, in the stairwell and in the
strip/frisk room at SHU.
Once they arrived at SHU, Sergeant Sullivan and Officer Dively were joined by
another SHU Officer, Kitson, and all three accompanied Claimant into the
strip/frisk room for the strip/frisk procedure. Sergeant Sullivan confirmed
again that he did not strike Claimant in any way, nor did any of the officers,
Sergeant Sullivan completed a report of inmate injury form [Exhibit 21],
indicated that Claimant was injured while "fighting [with an] officer" and that
the cause of the injury was that the inmate "was tackled to [the] ground while
running away from C.O. during pat frisk."
Sergeant Sullivan also recalled that there was an investigation by the
Inspector General's Office, but could not recall his own interview specifically.
He indicated that he had been involved in the union at that time and he may have
accompanied Officer Cocuzza for his interview as a union representative. He did
remember, however, that the result of the investigation was that the Claimant's
charges of staff misconduct were unsubstantiated.
On cross-examination, Sergeant Sullivan again confirmed that the distance that
the Claimant slid from the hallway into the porter pool office was as little as
three (3) feet, and that Claimant's "middle torso" would have been the portion
of his body touching the floor while the officers moved him. When the sergeant
saw the Claimant in the porter pool office, he observed that Claimant had
injuries in his facial area, in the form of redness and some blood along one
side of his head. In the strip/frisk room, he observed the same facial
injuries, as well as scratches and abrasions on Claimant's front and back torso.
Sergeant Sullivan explained that in the strip/frisk room the inmate is "stripped
down naked and assessed," so more of the body is visible. In terms of a more
specialized, medical assessment, the nurse generally comes in and does a gross
assessment to establish the need for any first aid. Because force had been used
to restrain the Claimant, any injuries would be documented by photographs, and
were. He was "not sure" he had taken the photographs admitted on consent as
Exhibits K-1 through K-15, although he "probably had" since he usually took
He identified the photographs as taken of Claimant in the SHU cell he was placed
in. Sergeant Sullivan estimated that approximately 10 to 15 minutes elapsed
from the time claimant was strip/frisked until the time he was placed in his
cell and the photographs were taken.
Notably, on redirect, it was Sergeant Sullivan's recollection that an
individual had been placed into keeplock custody in connection with the assault
on Correction Officer Morin prior to the incident of July 21, 2000. He
remembered interviews on the unit on July 19 and 20, 2000, and remembered that
the investigation of that assault - including placing an individual into
keeplock - ended either the evening of the assault on Officer Morin on July 19,
2000, or the next day.
No other witnesses testified.
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 respondeat superior
. See Jones (Lynda) v State of
, 33 NY2d 275, 279-280 (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.).
Before turning to any question of the degree of force, however, resolution of
this claim rests upon the relative credibility of the Claimant and that of
Correction Officers Cocuzza and Jewel, Sergeants Zaccagnino and Sulllivan,
Lieutenant Simmons, and the evidence Claimant presented to substantiate his
claim. Based upon a preponderance of the credible evidence, the Claimant has
failed to establish that excessive force tantamount to an actionable
was used to restrain him. 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).
Here, the Claimant did not establish that excessive force was used.
There was no evidence, other than the self-serving testimony of the Claimant,
that more force than was necessary to subdue him in the circumstances was used
by correction officers. C.O. Cocuzza credibly testified that he observed what
appeared to be some kind of an exchange in a crowded hallway between the
Claimant and another inmate. As the only officer within close range, he
cautiously waited until most inmates in the busy area had gone on to their
assignments before approaching Claimant in the more public arena of the hallway
outside the office. Had his intent been to conceal his activity, Officer
Cocuzza would more logically have selected the porter pool office itself to
begin his questioning of the Claimant. Officer Cocuzza described in an
internally consistent fashion the events leading up to his "take down" of the
Claimant. Although it appears that the Claimant initially complied with the
direct order to place his hands on the wall and subject himself to a search,
during the course of it he began to resist. It was reasonable under the
circumstances for the lone correction officer to try to gain control of an
inmate who appeared to be about to take flight.
Any injuries suffered seem connected to the take-down maneuvers described, as
attested to by Correction Officers Cocuzza and Jewel, and further described by
Sergeant Sullivan. On the whole, the testimony of the correction officers was
more credible than that of this Claimant. For example, Claimant indicated that
Cocuzza was not his regular supervisor, a fact belied by Officer Cocuzza's
indication that supervising the porter pool clerks had been his assignment for
one (1) year. Additionally, no other witnesses described the count procedure
Claimant attested to, which he asserted involved all inmates standing up in
their cells overnight - clearly an exaggerated account.
The report of inmate injury form substantiates the version presented by the
different correction officers, and although the photographs show some cuts,
abrasions and bruising, there is no evidentiary connection between these
injuries and the kind of assaultive conduct alleged without some other evidence.
No medical evidence was submitted to substantiate the extent of injury, or any
failure to treat such injures, and thus no other objective information has been
presented to the Court to support the claim. What medical information there was
showed that Claimant was treated and released to his cell without any
prescriptions having been given.
Additionally, it was Claimant's contention that the assaultive behavior was
precipitated by efforts to have Claimant reveal information he might have about
the assault on Correction Officer Morin. Given the fact that an individual was
already targeted as a suspect, it is illogical to think that these experienced
correction officers would behave in the fashion described by Claimant.
The Court is satisfied that the correction officers used no more force than was
reasonably necessary to control the Claimant.
Accordingly, Claimant has failed to establish by a preponderance of the
credible evidence that excessive physical force was used on him by correction
officers. Similarly, any State constitutional claim of cruel and inhuman
treatment is also not sustained.
Claim number 104603 is hereby dismissed in its entirety.
Let judgment be entered accordingly.