Ishmael Vallade, the Claimant herein, alleges in Claim Number 105690, that
Defendant's agents used excessive force while he was in the reception area at
Downstate Correctional Facility (hereafter Downstate). Trial of the matter was
held at Sing Sing Correctional Facility on March 12, 2004.
Claimant testified to essentially the same facts contained in his verified
claim. He testified that on March 20, 2001 he was transferred with a group of
other inmates from Rikers Island to Downstate. When he arrived at the reception
area, the inmates were all "told to get up against the
They remained in shackles and handcuffed. After complying with the direction,
"all of a sudden . . . [Claimant] was smacked from behind and kicked, and the
officer was shouting ‘you all don't listen', . . . [Claimant] remained
facing the wall."
Claimant later identified the officer who he alleges hit him as Officer McGue,
and pointed him out during the course of the trial.
During the next phase of reception, inmates were taken to the medical staff for
review. Claimant stated that he tried to tell the nurse about his injuries. He
said his "nose was bleeding and . . . [his] front teeth were hit . . . but she
was more concerned about . . . [his] documents coming from Rikers Island . . .
and shuffling . . . [him] out for the next guy."
Claimant indicated that he found the unprovoked assault very disturbing and
unfair. He stated that he obtained some medication for anxiety.
On cross-examination, he confirmed that as a result of the physical contact,
his nose was bleeding, a tooth was loosened, and he suffered a bruise on the
back of his right leg down to his ankle.
Defendant called Correction Officer Joseph McGue, employed by the New York
State Department of Correctional Services for 20 years, to testify. He
recalled working during the period alleged in the Claim, although he could not
say specifically that he recalled working on March 20, 2001, nor did he
recognize the Claimant. He did not recall any incident involving the Claimant
A portion of Claimant's Ambulatory Health Record (hereafter AHR) was admitted
as Defendant's Exhibit A. The entry for March 20, 2001 confirms that Claimant
was processed as a new inmate from Rikers, that he complained of pain in his
right hand and was given an analgesic for the pain. [Exhibit A]. Complaints of
nausea and diarrhea on March 24, 2001 and March 25, 2001 are also entered, as
well as other complaints on other days
, that do not correlate in any respect to the assaultive conduct
complained of here.
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.
Before turning to any question of the degree of force, however, resolution of
this claim rests upon the relative credibility of the Claimant and Correction
Officer McGue, and the evidence Claimant presented to substantiate his claim.
Resolving issues of credibility is the province of this Court as the trier of
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.
Here, the Claimant did not establish that any force was used. No use of force
report appears to have been filed. [
7 NYCRR § 251-1.3]. There was no evidence, other than the
self-serving testimony of the Claimant, that any force was used by correction
officers. C.O. McGue credibly testified about events occurring three (3) years
before the date of trial and simply did not recall the Claimant or any dispute
involving Claimant. No medical evidence substantiated the injuries described by
Claimant and thus no other objective information has been presented to the Court
to support the claim.
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 105690 is hereby dismissed in its entirety.
Let judgment be entered accordingly.