Luis Sanchez, the Claimant herein, alleges in Claim Number 108510 that
Defendant's agents assaulted him while he was an inmate at Sing Sing
Correctional Facility (hereafter Sing Sing). Trial of the matter was held on
April 29, 2005 at Sing Sing.
that on November 28, 2002 at approximately 12:18 p.m. he was returning from his
work assignment to Z-Gallery, and wanted to take a shower. He was told that he
could not by Correction Officer Middleton, the Z-Gallery officer. Officer
Middleton also asked Claimant whether he was the one complaining to the sergeant
about not being allowed showers. When Claimant admitted, that yes, it was he who
had been complaining, Officer Middleton then told Claimant he was "dead on his
and to lock back in his cell. A few
minutes later, Officer Middleton came back and unlocked the cell, asking
Claimant if he still wanted a shower. When Claimant said yes, Claimant exited
his cell and preceded the officer down the company to the shower area. When
Claimant was in front of the bathroom gate, CO Middleton started calling him
back, signaling him to come back to the gallery gate. Claimant said, "Why? The
bathroom entrance is right here." Claimant would not move, since he had a
"feeling" he was going to get beaten. After the second time the officer called
him back, Officer Middleton pushed Claimant between the center gates of
Z-Gallery and U-Gallery, and Officer Middleton and Officer Acevedo "jumped" him.
Claimant said the officers hit him in the ribs, on his back, and on the back of
his head. Where he was hit in the ribs hurt the most. He asserted that he could
not drink anything with lactose afterwards and continues to suffer from stomach
problems. He takes voluminous amounts of medicine. He stated that for the 22
years he had been in prison, he had "only one ticket", and that incident
"involved another inmate assaulting him and his not reacting." He said that in
this case, although there were four (4) charges against him in the misbehavior
report - "they accused him out of place, assault, disobeying a direct order" -
the ticket was "thrown out because there was a conflict in testimony between the
officers", and he was "not provided with assistance" as required. He testified
that after this incident, he was tested for drug use, too, but it "came up
On cross-examination he stated that Correction Officers Middleton and Acevedo
"beat him up together". He explained that Correction Officer Middleton "opened
all the cells - because that is the way the cell doors work" - telling Claimant
he was opening the cell for Claimant's shower. Claimant said he had a robe on,
soap in his pocket, a towel on his shoulder, and nothing in his hands. He
denied having his hands in a clenched position. He reiterated that the officer
called him over once Claimant was out of the cell - he admitted to not
following the direct order to come back - because he knew they were going to
beat him up. They pulled him in the gate and started to beat him up. Claimant
said he "didn't throw one punch." He would not agree that he exited his cell
without authorization. He would not agree that he was instructed to open his
hands and did not, or that as he exited he raised both of his hands to his chest
and took a fighting stance stepping toward the officer.
When asked whether there was an inconsistency between his trial testimony and
the facts asserted in his claim concerning the assault, Claimant did not agree
that there was an inconsistency. In the claim, he stated that Correction
Officer Middleton struck him in the chest and forced him to the floor. During
Claimant's direct testimony, he said Officer Middleton hit Claimant's rib cage
and punched him repeatedly. Claimant stated that the officers grabbed him,
punched him twice in the "middle stomach", and Officer Acevedo struck him in the
After the incident, Claimant was given the opportunity to review the use of
force report, and filed a grievance. [Exhibit 1]. The grievance was denied.
Claimant agreed that he was aware that in the grievance findings, among other
things, it is stated that Claimant anticipated a physical confrontation with
Officer Middleton prior to exiting his cell, yet chose to do so. Claimant also
conceded that he was interviewed by the Inspector General's Office, but would
not concede that their investigation resulted in a finding that his allegations
were unsubstantiated. He would not concede that he approached the Officer in a
threatening manner, and said that he only refused the direct order because he
thought he was going to get beaten up.
Only Claimant testified on his direct case. Portions of the use of force
report and investigation, as well as Claimant's medical record were introduced
in evidence. [Exhibit 1]. A complete use of force report and investigation was
offered by the State and admitted as well. [Exhibit B].
Dr. John Perilli, Medical Director at Sing Sing also testified. He identified
Claimant's medical record and discussed the information contained therein
concerning medical treatment on November 28, 2002 and thereafter. [Exhibit 1].
The initial examination was made by Nurse E. Hansen, who Dr. Perilli said is the
Nurse Administrator for the facility. He described her as having been a
"certified emergency room technician for over 30 years." Such individuals are
the first ones to evaluate patients' conditions and recommend referral and
treatment when "catastrophic situations occur." Claimant's Ambulatory Health
Record (hereafter AHR) for that day contains her notations, and indicates that
Claimant was brought to the emergency room after the use of force, complaining
of abdominal pain. The examining nurse observed mild redness in the
mid-abdominal area, but no significant trauma. No loss of consciousness was
noted. She noted some mild abrasion in the left scapular area. In terms of
treatment, she gave Claimant Advil pain medication, directed that the area be
iced, and Claimant follow-up with the physician's assistant if necessary. Dr.
Perilli testified that the treatment instructions evidence that the physical
exam showed minor injuries because the nurse did not refer Claimant to a
physician immediately. Dr. Perilli also examined color photographs taken of
Claimant at the time, as did the Court. [Exhibit A]. He said that a "slight
redness can be seen in the left scapular area and at the abdomen." [
Dr. Perilli noted that within the first 24 hours after the incident, Claimant
was seen three (3) times by medical personnel, and all "documented the same
findings." For example, in the notations in the AHR for November 28, 2002 at
7:20 p.m. - inscribed by someone other than Nurse Hansen - it is stated that
Claimant complained of difficulty breathing, was examined, the "mild redness"
on the abdomen was observed, and he was given a mild pain reliever, and advised
to return if symptoms persisted. [Exhibit 1]. On November 29, 2002 the AHR
states that Claimant again walked in complaining that his stomach hurt, and that
he had been assaulted, but after examination no treatment was given. [
He was referred to a physician on December 2, 2002 by Nurse Hansen, who noted
his complaints of abdominal pain, but did not observe any edema or redness on
the abdomen. [
Claimant was seen by Dr. Halko on December 23, 2002.
Abdominal x-rays taken were read as "normal" in early 2003. Later that year,
more x-rays of Claimant's chest and lumbar spine were taken and read as normal.
Dr. Perilli himself examined Claimant on April 14, 2003, and reviewed his chart
because of Claimant's complaints that his "stomach was coming up." Dr. Perilli
said that his notes indicate that all the "labs were normal" since February
2003, and that the continuing medical complaints were completely unrelated to
any trauma. In response to continued complaints, Dr. Perilli said that on June
23, 2004 a CAT scan of Claimant's abdomen and pelvis was conducted. All organs
are "visualized" with such a test, he explained. The "impression was a normal
CT of the abdomen." Finally, Dr. Perilli stated his opinion, "based upon 32
years of medical experience" that "not only was there not any significant
injury" at the time of the use of force, Claimant's complaints are completely
unrelated to any use of force.
Correction Officer Acevedo also testified. On November 28, 2002 Officer
Acevedo was first officer on Z-Gallery, on B-Block while Correction Officer
Middleton was assisting. He explained that his job as a correction officer
requires that he maintain "care, custody, and control over the inmates." Both
officers were manning the U and Z galleries. Approximately 120 inmates are on
the gallery, he said, which is H-shaped. The center of the "H" is where the
gate is between the galleries.
On November 28, 2002 he observed Officer Middleton involved in a use of force
with Claimant, and went to assist him. Officer Acevedo had been in the office
for the gallery when he heard a struggle on the other side of the gallery about
opposite from where he was. He went around the corner, and observed Officer
Middleton holding both of Claimant's hands by the wrists, while Claimant's hands
were in a "closed fist position." He stated that Claimant was in a "fighting
stance" with his closed hands in a raised position up to his shoulders. Officer
Middleton was holding Claimant's right wrist with his left hand, and Claimant's
left wrist with his right hand. They were "struggling," Officer Acevedo said,
and Officer Middleton was yelling at the inmate, giving him direct orders to
open his hands. Claimant was fighting back. Officer Acevedo then went over
Officer Middleton's right shoulder, grabbed the inmate by his left shoulder, and
they pulled the inmate down to the ground. Claimant continued to resist,
swinging his arms while his hands were closed in fist positions. The officers
pulled him "down and forward," with Officer Middleton "sweeping his legs" -
meaning kicking Claimant's legs under - and all three ended up on the floor.
Although the officers kept telling the Claimant to give them his hands, he would
not comply. Eventually they got his hands to the small of his back and
handcuffs were applied. The "red dot team responded to the site of the
incident." Officer Acevedo received medical treatment for injuries to both his
legs although mostly his left leg and ankle, which was swollen. He did not
recall whether Officer Middleton was injured. He did not observe any injuries on
Claimant, nor did Claimant complain of injuries at the time, but he was escorted
to the emergency room in accordance with procedures regarding any use of
Officer Acevedo said he was not familiar with Claimant prior to this incident,
and was not brought up on any departmental or criminal charges himself as a
result of the use of force, and had no history of such departmental charges. He
indicated he was familiar with the use of force report to which he contributed
his report. [Exhibit B]. Officer Acevedo denied kicking or punching Claimant
and said that the only force he used was "pulling him to the ground" because
Claimant was struggling with Officer Middleton and disregarding his direct
orders. He stated that this was "protocol."
Officer Acevedo confirmed that he, too, was interviewed by the Inspector
General's Office, and remembered that the result of their investigation was that
claims that excessive force was used were "unfounded." The witness declared
that he used reasonable force under the circumstances. He said he understood his
responsibility to use only that degree of force necessary to bring a given
situation under control, in the nature of self-defense, to prevent injury to
person or property, and to ensure compliance with direct orders. He also
indicated that he did not observe anyone using other than the force necessary -
including Officer Middleton - to restrain Claimant.
On cross-examination, he could not recall who pulled the pin on the radio for
the red dot, but knew that it must have been either him or Officer Middleton.
On re-direct examination, he said that he really did not remember what
triggered the arrival of the red dot team. It might have been that they were
summoned by other means, by a telephone call from another gallery, for example,
if someone heard the altercation.
In the statement given by Officer Middleton in the use of force report, he
indicates that he had opened the brake to the Z-Gallery in order to allow a
different inmate out for a visit. [
Exhibits B and 1]. He then observed Claimant with his shower gear,
and directed him to lock back in. [ibid.
After he ordered him
back in for a second time, he observed Claimant's right hand closed in a fist,
and directed him to open it. [ibid.
Instead, Claimant raised
both hands to his chest level, stepping toward Officer Middleton.
The Officer reports he then grabbed both wrists, a
struggle began, resulting in Officer Middleton sweeping out the Claimant's legs
and pulling him down and forward to the floor, eventually restraining him with
the assistance of responding staff. [ibid
The statement of a third responding officer, Sergeant Toussaint, in the use of
force report indicates his arrival after Claimant was on the ground in
restraints controlled by Correction Officer Middleton. [
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 in 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); 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, J. Sise).
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 Acevedo, the evaluation of the medical evidence by Dr. Perilli, and the
evidence Claimant presented to substantiate his claim. It is Claimant who has
the burden of proof, and while it troubles the Court that the correction officer
had a somewhat selective memory at times, it is equally troubling that
Claimant's version of events suffered from some internal inconsistency and is
not substantiated by the medical evidence. On balance, the Court cannot credit
the Claimant's testimony, and thus based upon a preponderance of the credible
evidence, the claimant has failed to establish that he was assaulted because
officers used excessive force. It is axiomatic that 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 Officer Acevedo gave at trial. [See
Exhibits 1 and B]. While there is a slight discrepancy between how the
bring-down maneuver was executed as between Officers Middleton and Acevedo, in
that Officer Middleton's report indicates that he pulled him to the ground
without mention of Officer Acevedo's involvement, while Officer Acevedo included
his own involvement in the testimony at trial, it does not appear significant.
There was no evidence, other than the self-serving testimony of the Claimant,
that he was told to exit his cell for a shower, after having been denied the
opportunity before, or that any excessive force was used by correction officers
in the face of Claimant's admitted denial of at least three direct orders to,
first, return to his cell, and second, open his fist. While to Claimant it may
have seemed reasonable to disobey a direct order, and he seemed noticeably
frustrated by the denial of the opportunity to take a shower, his own testimony
shows that he repeatedly did not follow the direction given by the correction
officer. 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.
The medical evidence submitted substantiates minor injury consistent with a
brief take-down maneuver, not the kicking and punching described by Claimant.
Additionally, two years after the incident, when the medical record described
by Dr. Perilli as showing unrelated medical conditions, Claimant is reported
trying to link the alleged assault to stomach problems. Dr. Perilli credibly
stated that he did not find any link between the Claimant's complaints and an
assault. 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. What force is used is measured by
what was reasonably apparent to the officers involved. As indicated by Officer
Acevedo, he was not familiar with Claimant prior to this incident, and saw a
seeming threat to security and rendered assistance. Once Claimant was restrained
by Officers Middleton and Acevedo, there was no additional force used beyond
that necessary to restrain and handcuff him.
cf. Lewis v State of New York
Accordingly, Claimant has failed to establish by a preponderance of the
credible evidence that excessive physical force constituting an assault was used
on him by correction officers.
Claim number 108510 is hereby dismissed in its entirety.
Let judgment be entered accordingly.