New York State Court of Claims

New York State Court of Claims

MATIAS v. THE STATE OF NEW YORK, #2004-034-011, Claim No. 106441


Judgment for Claimant following trial of liability and damages regarding claim of assault by a correction officer. Adverse inference drawn from Defendant's failure to call officers who witnessed incident. Defendant 70% liable. Gross award of $6,000, reduced by Claimant's culpable conduct of 30%. Net award to Claimant of $4,200.

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:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 8, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant filed suit on July 30, 2002 to recover for injuries he allegedly sustained at Attica Correctional Facility (Attica) on April 22, 2002. The matter proceeded to trial on May 13 and 14, 2004, during which Claimant testified on his own behalf, and Defendant called four witnesses: Michael Cater, Timothy Steele, Todd Keller and Richard Apps, all employed by the Department of Correctional Services at Attica Correctional Facility. Upon review of that testimony, as well as the sixteen exhibits introduced into evidence,[1]
I will now grant judgment in favor of Claimant, in limited part, finding as follows.
Claimant was born on June 30, 1965, and was 36 years old at the time of the incident. He is 5 feet 10 inches tall, approximately 180 pounds, and admittedly muscular, as a result of working out. In 1983 he was convicted of an unspecified felony or felonies for which he remains incarcerated. Over the past 21 years he has served his sentence at a number of correctional facilities, with 4 to 5 years of that time concededly spent in disciplinary housing.

At some point during the year 2000 Claimant was transferred to Attica. In and about March 2002 a
n incident occurred that resulted in his disciplinary confinement to the prison's Special Housing Unit (SHU). He subsequently reported to prison officials that he had not received a clothing allotment for the SHU, and requested that he be supplied additional clothing. Thereafter, on the evening of March 6, 2002 Officer Todd Keller appeared at the SHU to provide State-issue clothing to Claimant. In so doing the officer followed a practice of only allowing for a direct clothing exchange to occur, and he requested that Claimant provide him with his old clothing in return for the supply of fresh clothing. Claimant, in contrast, expected that he would be furnished more than one set of clothes to wear in the SHU. An argument ensued concerning Claimant's entitlement to additional clothing. It is Claimant's position that he became verbally abusive to C.O. Keller, but only in response to the officer's profane and threatening behavior, including a statement that once the inmate was released to "B-Block" he would be coming right back up to the "box," a slang reference to the SHU. Claimant wrote a complaint that same date to the prison's superintendent, Victor Herbert, expressing concern that C.O. Keller would retaliate against him once he was released from the SHU. In and about March 25 and 26, 2002 Sergeant Hirsch conducted an investigation of the complaint, and made a written report to First Deputy Superintendent J. Conway. Mr. Matias also alleged in his Claim that he subsequently spoke directly to Deputy Superintendent Conway regarding the purported threat in early April 2002, during the latter's inspection of the SHU, although Claimant did not amplify that assertion at trial.
On or about April 13, 2002 Claimant was released from the SHU. For reasons that were not explained, he became assigned to B-Block, one of five housing blocks within the facility.

The next contact between Claimant and C.O. Keller occurred on the late afternoon of April 22, 2002, while Claimant was housed on the third floor of B-Block, in an inmate wing known as 15 Company. Officer Keller was assigned to work that day on the second floor of B-Block, which housed inmates in two wings, 14 and 17 Companies. Those two floors were connected by a stairway that continued down to the first floor, known as "the flats," from which access could be gained to the facility's mess hall. A 30-foot by 40-foot, rectangular lobby adjoined the base of the stairs. A doorway was located on each wall of the B-Block lobby: one to the corridor that led to the mess hall; one to a shop area; one to a general inmate wing, 13 Company; and one to the prison's only keeplock wing, 18 Company. It was as 15 Company was released to proceed down the B-Block stairs to the flats to walk to dinner that Claimant passed C.O. Keller on the second floor. Mr. Matias testified that as he did the officer stated "we'll see how tough you are, you punk bitch." Although nothing further happened at that time, Claimant reported that he became concerned for his safety, and approached Lieutenant Dixon at the mess hall to inform him of C.O. Keller's comments. According to Claimant the lieutenant responded that he would contact Sergeant Welsh to speak to the officer, and cautioned Claimant not to attend recreational activities outside of his cell that night.

As 15 Company returned from mess at approximately 5:00 p.m. Claimant deliberately positioned himself in the middle of the line, in order to avoid C.O. Keller. Nevertheless, as they returned to the B-Block lobby and began to approach the stairs to the upper levels Claimant was stopped by the officer, who had moved from the second floor to a first floor doorway area adjoining the lobby. The inmate testified that Officer Keller grabbed him by his neck, removed him from the line and escorted him to a corner of the B-Block lobby, where he directed Claimant to face the wall with his arms extended. At that point the officer, who stood behind the inmate and to the right, allegedly forced his head into the wall, then struck him in the right jaw area with an uppercut punch. He then struck Claimant a second time, after which Mr. Matias dropped to the floor. C.O. Keller then kicked him four to six times in the ribs, back and forehead.

Officer Keller disputed Mr. Matias' testimony in most respects. First, he denied that he had engaged in any profanity or threats during the March 2002 incident at the SHU, and denied any ill will as a result of the grievance that Claimant subsequently filed against him. He also noted that since he had no permanent assignment with the facility, and Claimant could have been assigned to any of the five housing blocks upon his release from the SHU, it made no sense for him to have mentioned B-Block as the place where he purportedly would retaliate against Claimant.

With respect to the incident of April 22, 2002, Officer Keller stated that his first contact with Claimant did not occur on the second level as inmates were walking down for dinner, but instead on the first floor as 15 Company returned from the mess hall. While standing inside what appears to have been a hallway or stairwell area adjoining the B-Block lobby, the officer reportedly observed Claimant in a line of inmates walking toward the stairs to the upper floors, with his right hand in his right pocket. Since prisoners are prohibited from walking with their hands in their pockets under facility rules, Officer Keller directed Claimant to step out of line. The inmate did not initially comply, and instead asked "why" and "what for." After several such requests and responses Officer Keller took hold of Claimant by his shirt and escorted him from the bottom of the stairway over to a corner of the B-Block lobby, next to a slop sink. He then directed Claimant to stand facing the wall and questioned him as to why he would walk with a hand in his pocket. As he counseled Mr. Matias to refrain from such conduct, which he described as the lowest level of discipline that could be administered, he stood to the right and slightly behind Claimant. At that point Mr. Matias suddenly turned and struck him across the right side of his face with his right elbow. According to the officer, he immediately restrained the inmate by grabbing him from behind in a bear hug. They dropped forward to the ground, and in so doing caused injury to the officer's knuckles and the inmate's face. Mr. Matias then turned around on the floor as Officer Keller held him down by straddling his torso. He attempted to restrain Claimant who repeatedly punched him in the chest and shoulder areas. Other officers responded, and together they subdued the thrashing inmate.

Under cross-examination the officer rejected the assertion that he had left his post when he stopped Mr. Matias at the base of the stairs. To the contrary, the officer explained that he was allowed to travel from the second floor to the first floor lobby to assist in monitoring the return of inmates from the mess hall. The officer denied punching or kicking Claimant at any point. He acknowledged that he did not recite that the inmate had punched him in the chest and shoulder areas in his subsequent reports, although he had claimed that Mr. Matias had attempted to strike him in the head area. I also note that the officer made no claim of injury to his chest or shoulder areas when he subsequently sought medical treatment.

Defendant also called Officers Timothy Steele and Michael Cater to testify regarding their efforts to assist C.O. Keller in the incident. Officer Steele, who worked both the third floor companies and the first floor lobby areas of B-Block, had been positioned at the lobby's corridor gate as the inmates returned from dinner. When he heard a commotion from within the lobby, he immediately responded to see Claimant and Officer Keller struggling in a corner. He observed Mr. Matias seated on the floor, with his back to a radiator adjoining a wall, and Officer Keller straddled across his knees. Officer Steele helped control Claimant by squatting down and pulling Claimant's legs away from the wall. As he did Claimant moved onto his stomach, although he continued to thrash his legs. Officer Cater also responded to the alarm from his position at a desk in 13 Company, one of the first-floor wings of B-Block. When he arrived, he observed Claimant on the lobby floor, moving his arms and legs. He also observed Officers Steele and Keller on the floor, trying to subdue him, with Officer Steele attempting to secure the inmate's legs, and C.O. Keller holding his arms. Officer Cater grabbed Mr. Matias' right arm in an effort to assist Officer Keller. Claimant continued to thrash about, despite being told to stop resisting. Ultimately Officer Cater placed Claimant's right arm behind his back. One of a further group of officers who had responded was then able to place mechanical restraints on Claimant, and thereby subdue him.

Despite the uniform reports of "thrashing," neither Officer Steele nor Officer Cater reported any attempt by Claimant to punch or kick at them. Similarly, neither reported any punching or threats between Claimant and Officer Keller. Although Officer Steele had been positioned in an area where he would briefly watch inmates as they returned to B-Block from supper, he did not observe Claimant place his hand in his pocket as his company walked back from the mess hall. It also appears from the proof that the lines of inmates would have been escorted to and from the mess hall by at least one officer who would constantly observe their conduct. Additionally, two officers would have been assigned within the B-Block lobby itself at the time of the incident. For reasons that were not disclosed at trial Defendant did not produce the escort officer who was responsible for monitoring Claimant's company as it returned from dinner, and did not call the two officers who were stationed in the B-Block lobby during the entire incident.

Evidence regarding the injuries sustained by Claimant and the three officers also is relevant in resolving the disputed versions of the occurrence. Claimant has asserted various injuries that are not supported by his own medical records, a factor that not only impacts on his claims for damage, but also his overall credibility. Nevertheless, he did sustain injuries that are consistent with an assault, including a swollen right jaw, damage to one of his teeth, a laceration to his right forehead area, and abrasions to his center forehead, occipital skull, left abdomen and upper back. He also experienced a back injury that required physical therapy. Claimant's proof at trial did not support any fracture to his jaw or vertebrae.

All three correction officers also sustained back injuries in the incident. As with Claimant, the officers required treatment that was conservative, but ongoing. For Officer Steele, his resulting disability was lengthy, and he still reports back problems. As previously noted, neither Officer Steele nor Officer Cater was ever punched or kicked by Claimant, and their injuries resulted from their efforts to subdue him. Officer Keller's injuries included back soreness, together with some redness to his right cheek area, and a sprained right wrist. He also experienced bruising to the knuckles of each hand, which the officer reportedly sustained when he held Claimant in a bear hug, and they fell forward to the floor. Officer Keller did not report any injuries to his chest or shoulder area. Additionally, because the three officers were exposed to blood from the inmate's lacerated forehead, they each had to undergo a prophylactic drug treatment process for possible HIV exposure.

In weighing the discrepancies in testimony I first note that while the Claim arises from an alleged assault by Officer Keller, recovery is largely premised upon the State's purported failure to protect Claimant from retaliation by Officer Keller after the March incident and resulting grievance. Claimant testified concerning complaints and requests for protection from Officer Keller that he had made to specific supervisory personnel at Attica, including a request that he made directly to Lieutenant Dixon at the facility's mess hall just prior to the incident. Despite that testimony, which amplified specific allegations within the Claim, Defendant determined not to call Lieutenant Dixon or other correction personnel identified by Claimant as having knowledge of his fear of retaliation. Moreover, and despite a clear repugnancy between the testimony of Claimant and Officer Keller as to the incident itself, the State failed to call other officers who should have been in a position to corroborate various aspects of the testimony of Officer Keller. The State's litigation posture was a matter of deliberate choice, notwithstanding a cautionary notice during the trial, and I will draw adverse inferences from the State's failure to produce such evidence (
see PJI 1:75; Noce v Kaufman, 2 NY2d 347, 353 [1957] ["where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits"]). That principle is of particular significance with respect to Lieutenant Dixon, who was under the control of Defendant, and working in a section of the prison that adjoined the court building as the trial progressed. It is also disturbing that Defendant failed to produce either of the two officers who were present in the B-Block lobby during the entire incident, and failed to produce the escort officer responsible for Claimant's oversight at the point where Officer Keller purportedly observed a breach of the facility's rules.
Another factor for consideration in weighing the evidence is the demeanor displayed by the witnesses. Officers Steele and Cater and Mr. Apps were all relaxed and open in their demeanor, even when cross-examined by Claimant. Mr. Matias was more forceful, particularly in his cross-examination of Officer Keller. Similarly, Officer Keller demonstrated a significant level of aggressiveness and animosity toward Claimant, to a point of making his own evidentiary assessments on whether to even answer his questions. Further, during Claimant's cross-examination of another witness Officer Keller had the attorney for the State leave his counsel table to engage in a lengthy, private discussion. His behavior cannot be described as disrespectful, but certainly strong-willed. Lastly, I also note that Officer Keller appeared to be approximately the same size as Claimant, and also athletic in his physical appearance.

Accepting that Lieutenant Dixon would have corroborated Claimant's prompt report of Officer Keller's threat "we'll see how tough you are, you punk bitch," I find that the correction officer and Mr. Matias first had contact with each other on the second floor as the inmate walked to dinner. I also find that the officer made that threatening remark to Claimant. Further, while I believe Officer Keller's statement that during meal periods he was at liberty to move to the first floor to assist security as inmates returned from the mess hall, I do not believe that he traveled to the first floor for that purpose. Rather, based upon his physical position immediately outside the B-Block lobby, at or near the stairway, and mindful of the threat he had just made to Claimant, I find that Officer Keller walked down to the first floor to initiate a confrontation with Claimant as the inmate returned from the mess hall.

For several reasons I reject the assertion that Officer Keller removed Claimant from the line of returning inmates because his hand was in his pocket. First, as stated, the officer had just threatened the inmate. Second, from Claimant's report of the threat to Lieutenant Dixon, and his effort to position himself in the middle of the line of returning inmates, it is clear that Claimant wanted to avoid a confrontation, rather than create an excuse for one. The State's suggestion of a set-up by Mr. Matias is groundless, given his efforts to prevent an attack, and his lack of knowledge that Officer Keller had even moved down to the first floor doorway at the point he purportedly engaged in the rule violation. I also question how Officer Keller was so readily able to observe Claimant's conduct by peering into the B-Block lobby from a hall or stairwell area, when at least three officers in a better position to view Mr. Matias took no disciplinary action. On those bases I conclude that Officer Keller physically grabbed Claimant from the line of inmates, and forced him over to an isolated part of the B-Block lobby, for no reason other than to intimidate and retaliate against him.

I accept Officer Steele's testimony concerning the positioning of Officer Keller and Mr. Matias when he first responded. That positioning is consistent with Officer Keller's description that they both fell to the floor when the officer grabbed Claimant from behind in a bear hug. In that regard I note that Claimant did not provide a cohesive alternative explanation for how they both became positioned on the floor, with Officer Keller seated on his legs.

The physical evidence also provides some support for each participant's descriptions of the event itself. Although the laceration to Claimant's left forehead could have occurred, as the officer alleged, as the inmate fell forward to the ground, that fall could not have explained how Claimant would also have sustained substantial swelling to his right jaw area. Those injuries are more consistent with Claimant's allegations that C.O. Keller punched him several times. Moreover, it is improbable that Officer Keller would have sustained knuckle bruises to both hands, but no other scraping to those areas of his body, from a fall to the floor. Conversely, I must discount Claimant's assertion that Officer Keller punched him with a strong right uppercut to his right cheek from his right rear, while the inmate had his arms positioned on the wall. At that point the outward positioning of Claimant's right arm would have shielded that area of his body, particularly from someone standing to his right and rear. To the contrary,
Claimant must have lowered his right arm and turned before Officer Keller punched him, thereby exposing his right jaw area. For that reason I credit the officer's statement that Claimant struck him with his forearm or elbow at that point. The swelling to C.O. Keller's right cheek is consistent with that claim.
Based upon all the above I conclude that Officer Keller waited for Claimant and removed him from the line of inmates without just cause, in order to intimidate the inmate. That incident included physical contact in removing the inmate from the line, and in forcing him against a corner wall, that was not justifiable under Correction Law § 137 (5), and 7 NYCRR 251-1.2 (a), (b), (d). Liability against the State would not only attach under principles of
respondeat superior for the conduct of Officer Keller (see Jones v State of New York, 33 NY2d 275, 279 [1973]; Lewis v State of New York, 223 AD2d 800, 801 [1996]), but also by reason of the failure of the State to safeguard Claimant from a reasonably foreseeable risk of some form of harm following his report of a threat to Lieutenant Dixon that was credible to a point where the lieutenant had agreed to take action (see Sanchez v State of New York, 99 NY2d 247 [2002]).
Although the exact chronology of events is hard to determine, it appears that Claimant must have turned and struck Officer Keller after being pushed up against the lobby wall, but before the officer punched him in the jaw. That, however, constituted the only point where Claimant actually struck Officer Keller, although I accept that the inmate flailed out at the officer after he was taken down to the floor. The officer, in contrast, struck Claimant several additional times in his head area, and in some manner caused bruising to his upper back and left rib areas. Mr. Matias continued to thrash about after Officers Steele and Cater arrived, and he was directed to stop struggling. For those reasons, Claimant must also bear some responsibility for the incident and his injuries. Based upon the above, I apportion liability as primarily against the State, but with some culpability against Claimant. The State will bear 70% of the responsibility for the incident, with Mr. Matias being 30% liable.

Regarding the injury claims, a lay person is competent to testify to his own past and present medical condition, without need for expert testimony (
Vincent-Wilday, Inc. v Strait, 273 App Div 1054, 1055 [1948]). So also, a fact finder can consider a causal relationship between an act and an injury without medical expert testimony if that claimed result is within the experience and observation of an ordinary layman (Mitchell v Coca-Cola Bottling Co., 11 AD2d 579 [1960]). Conversely, testimony regarding fractures, permanency, or need for long-term therapy involve questions of injury and causation that are beyond the common knowledge of a fact finder, and would require expert testimony to establish (see Duffen v State of New York, 245 AD2d 653 [1997]). I cannot ignore Claimant's burden to present legally competent evidence that extends to expert opinion by reason of his pro se representation or inmate status (Duffen, 245 AD2d at 653-654).
Absent expert testimony I will limit my consideration of Claimant's back injury to the reported experience of soreness and pain, and some initial therapy, although restricted to a period of ten days. I also will make an award for Claimant's back, rib and occipital bruising, facial laceration and swollen jaw, as well as some form of damage to a tooth in his right jaw area, but again with pain and soreness limited in duration to no more than the ten days that followed the incident. Once again, the absence of medical opinion evidence precludes further recovery.

Based upon the above I will make a net award of $4,200 to Claimant, representing a gross sum of $6,000, reduced by 30% to address his own culpable conduct. In addition, to the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).


September 8, 2004
Buffalo, New York

Judge of the Court of Claims

[1] I will decline to consider Claimant's post-trial submission in support of his claim of injury, to which Defendant has objected.