Larry McKee, the Claimant herein, alleges in Claim Number 105614 that
Defendant's agents used excessive force and assaulted him on November 14, 2001,
while he was an inmate at Green Haven Correctional Facility (hereafter Green
Haven). Trial of the matter was held at Sing Sing Correctional Facility on
September 10, 2004.
As an initial matter, the Defendant made a motion to dismiss the claim based
upon its affirmative defense asserting a lack of subject matter and personal
jurisdiction because of Claimant's alleged failure to comply with the service
requirements of Court of Claims Act §11. Although Claimant's affidavit of
service indicates that the Claim was served certified mail, return receipt
requested, he did not provide proof that the Claim was served by that mechanism.
The Claim was served on the Attorney General by regular mail as shown by the
mailing envelope attached to the copy of the Claim stamped "received" by the
Attorney General on February 15, 2002. [Exhibit A]. The envelope contains four
$.34 stamps - postage insufficient for certified mail - and does not contain the
remains of the green postcard normally associated with certified mail.
Additionally, the Claim was served after the ninety (90) day statute of
limitations expired on February 14, 2002.
The filing and service requirements contained in Court of Claims Act
§§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New
York State Thruway Auth.
, 75 NY2d 721, 722-723 (1989); See
also Welch v State of New York
, 286 AD2d 496, 729 NYS2d 527, 529
(2d Dept 2001); Conner v State of New York
, 268 AD2d 706, 707 (3d Dept
2000). Indeed, the statute provides in pertinent part ". . . [n]o judgment
shall be granted in favor of any claimant unless such claimant shall have
complied with the provisions of this section applicable to his claim . . ."
Court of Claims Act §10.
Court of Claims Act §11(a) provides that ". . . a copy [of the claim]
shall be served personally or by certified mail, return receipt requested, upon
the attorney general . . ." within the time prescribed in Court of Claims Act
§10; and service is complete when it is received in the Attorney General's
Office. Court of Claims Act §11(a)(i). Service upon the Attorney General
by ordinary mail is generally insufficient to acquire jurisdiction over the
State, unless the State has failed to properly plead jurisdictional defenses or
raise them by motion. Court of Claims Act §11(c)
; Edens v State of New York
, 259 AD2d 729 (2d Dept 1999); Philippe v
State of New York
, 248 AD2d 827 (3d Dept 1998).
The Claimant has the burden of establishing proper service [
Boudreau v Ivanov
, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance
of the evidence. See Maldonado v County of Suffolk
, 229 AD2d 376
(2d Dept 1996). Regulations require that proof of service be filed with the
Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR §
Here, the Claimant did not establish that he served the Claim upon the Attorney
General as required, and the Defendant has raised the jurisdictional issue in a
timely motion premised upon duly raised affirmative defenses. Thus Claimant
has failed to establish, by a fair preponderance of the credible evidence, that
the Attorney General was timely served with a copy of the claim as required by
Court of Claims Act §§10 and 11. For procedural reasons alone, the
claim must be dismissed.
More substantively, Claimant testified that on November 14, 2001 he was "on the
mess hall line . . . at G-Block for
when an officer told him to "move up" and close up the line. As he moved up,
Correction Officer T. Miller "shoulder bumped" Claimant. Claimant stated that
the officer "didn't pick me out specifically" but nonetheless "bumped" him.
When Claimant asked "what happened?" the officer responded "I'll see you later."
After breakfast, Claimant said he was on his way to school at H-Block, when
Officer T. Miller - who was not the G-Block officer - called him back to the
block. The officer directed Claimant to place his hands in his pockets, and
proceeded to push Claimant as he walked down the corridor. When Claimant arrived
at G-Block, Officer T. Miller was joined by another officer named Miller,
Officer Frederick, Officer Speed and another unknown officer, who told Claimant
to put his hands on the wall and take his sneakers off. As he removed his
sneakers, "the officer commenced to hit . . . [him]." He said that all the
officers proceeded to kick and hit him while
". . . [he] was on the floor" - they used sticks "and everything . . . and
put . . . [him] in a bear hug where they twisted . . . [his] right arm." While
his arm was being twisted, they "all fell down together and something popped in
. . . [his] right arm."
They handcuffed him on the floor, while Claimant continued to tell the officers
that there was something wrong with his arm. He was taken to the "SHU" [Special
Housing Unit], where he was directed to place his hands on the wall to be
searched. He told officers there's "something wrong with my right hand, so
they pulled at it." Eventually, they let him go and took him to an outside
hospital where his arm was put back in place. He stated he required six (6)
months of therapy.
To this day, Claimant said, he suffers from pain and headaches.
An x-ray report form from the facility indicates that on November 14, 2001
Claimant was given an x-ray of his right shoulder, and the physician noted that
there was "anterior dislocation right shoulder." [Exhibit 1]. Claimant also
offered two exhibits concerning a grievance he apparently filed concerning
disciplinary proceedings instituted against him that may have involved the
subject of this Claim, but it was not made clear in the testimony exactly how
the disciplinary proceeding related to the alleged assault. [Exhibits 4 and 5].
Notably, although the Superintendent's decision "modified" the hearing officer's
determination in terms of the sentence, the finding of guilty was not expunged.
[See Exhibit 4]. Claimant also appealed to the State Commissioner. [Exhibit 5].
On cross-examination, Claimant recalled that the underlying charges of the
disciplinary proceeding concerned Claimant's alleged assault of the officer.
After being found guilty of the charge - at a hearing during which he alleged he
was not allowed to call witnesses - Claimant appealed, and the determinations
were upheld. Claimant repeated that he was struck with sticks on the back while
he was on the floor and he was kicked. Officers punched him in the head as
well, he recalled, but he was primarily thinking about his arm at the time. He
could not say why the group of officers attacked him.
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)
(McKinney's 2001). 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 v State of New York
, 33 NY2d 275, 279 (1973) and 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 credibility of the Claimant. Based upon a
preponderance of the credible evidence, the Claimant has failed to establish
that he was assaulted by anybody. 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 only independent evidence of injury is the
x-ray report indicating that Claimant had a dislocated shoulder on November 14,
2001. [Exhibit 1]. No narrative or other information indicates how the shoulder
may have been dislocated. No use of force report, [See
7 NYCRR §
251-1.3] or report of inmate injury, or other independent corroboration of the
event was presented in evidence. Without more, Claimant's testimony alone does
not persuade the Court that the Defendant should be liable for the alleged acts
of its employees.
Accordingly, the Claimant has failed to establish by a preponderance of the
credible evidence that correction officers used excessive force in carrying out
their duties, and Claim Number 105614 is hereby dismissed in its entirety on
both jurisdictional and substantive grounds.
Let Judgment be entered accordingly.