Abdallah K. Sankofa alleges in Claim Number 107064 that Defendant's agents at
Green Haven Correctional Facility used excessive force while he was in their
custody on November 1, 2002. Trial of the matter was held at Sing Sing
Correctional Facility on October 17, 2005.
Claimant testified that on November 1, 2002 at approximately 5:45 p.m. he was
part of a group of 30 inmates from A-Block being escorted by Officer Nagy to
programs in the J-school in Building 12 at Green Haven. Claimant was on his way
to the mosque for services. When his group approached the corridor area near
J-School, some inmates from an escort moments earlier from B and C-Blocks still
waited in the corridor across from the reception area. Although the better part
of the group from B- and C-Blocks had been directed to proceed to the J-School
gate when Claimant's group came to stand at the yellow line across from the
reception area in the corridor, 12 or so inmates still remained from B- and
told Claimant that Officer Mapes had already ordered J-School call-outs to line
up behind the J-School gate. Based upon this information, Claimant and several
others from A-Block walked toward the J-School gate. Then, Claimant averred,
Officer Nagy "singled . . . [him] out of the group" and started questioning why
he had crossed the yellow line. When Claimant tried to explain that Officer
Mapes had told everyone going to J-School to move out, "Officer Nagy said:
‘I didn't tell you to move or anything like that; give me your ID card and
everybody go back to behind the line.' So . . . [he] gave . . . [Officer Nagy
his] ID card and lined up behind the line."
Thereafter, all the others going to J-School were directed to do so, but
Claimant was directed to stay behind. He said that he waited alone for about 20
to 25 minutes in the hallway while another group going to Building 12 was
allowed to go forward. Officer Mapes was around the corner "she couldn't even
see . . . [him]," but told him to wait when he said that he was going to go back
to the block. After Officer Mapes told him to wait, Claimant asked to see a
sergeant but was told by the officer that he "didn't need to see a sergeant."
After a further period of waiting, he then saw Officers Nagy and Strack coming
down the hallway. Officer Strack walked "right by . . . [him] into the
reception room," while Officer Nagy spoke with Claimant, saying "why are you
disrespecting me" as Claimant continued to explain that Officer Mapes had
directed the earlier movements. Officer Nagy then said "are you gonna let me
talk?" and "let's go to the reception area to talk."
In the reception room, Officer Nagy directed Claimant to take off his coat,
empty his pockets, and then ordered him to enter a smaller room or office off
the reception room. Officer Nagy directed that Claimant put his hands against
the wall - which he did - and then conducted a "pat/frisk" of Claimant. "The
next thing you know Officer Strack came in and started cursing and screaming at
. . . [Claimant]; and the next thing you know Officer Strack just swung at . . .
[him] hitting . . . [him] in the back of the head."
Claimant said he rolled himself up into a fetal position, and then Officer Nagy
came and started kicking him. Claimant said he was now on the floor in the
corner while Officer Strack punched him and Officer Nagy kicked him. A third
officer came in - whose name he did not recall - from one of the reception
areas. They put handcuffs on Claimant behind his back, and Officer Strack
continued to elbow him in his back. More officers came, including a sergeant,
who asked what was going on. Thereafter, Claimant was "taken to medical" where
photographs were taken [Exhibits 1A-E], he spoke with a lieutenant, and was then
transported "to the box."
The Court notes that there appears to be a bruise at his top left temple in at
least one photograph [Exhibit 1D] as well as some kind of marking on his back in
another [Exhibit 1A]. Otherwise, the photographs are not particularly clear.
On cross-examination Claimant would not agree that he was not injured as a
result of this incident. Shown the photographs taken at the infirmary, he said
1D shows injury to his face and head, as does 1C. He denied receiving ice or
Tylenol on the day of the incident. Claimant indicated that he understood that
when given orders by officers - even if he did not understand the reasons for
such orders - he was required to comply. He agreed that although he did not
understand at the time why, there came a time on that day when Officer Nagy
asked him to step out of the line. He would not admit that he was irritated by
being singled out to step out of the line, nor did he fail to comply with the
direction that he place his hands on the wall. He did not agree that he took
his hands off the wall in contravention of any direct order, except when Officer
Strack punched him in back of the head for no reason. He claimed he had not
said anything to Officer Strack prior to being punched. He was not yelling while
in line. When he was in the hallway by himself, he agreed, because he had been
standing there for 25 minutes, he said "I'm going back to the block" to Officer
Mapes and then said "I want to see a sergeant," but he claimed he was not
raising his voice.
Correction Officer Michael Nagy testified that he had a brief recollection of
the incident involving Claimant on that day, but had also reviewed a "to/from"
he had written to his sergeant [Exhibit 5]; an inmate misbehavior report he had
written concerning the incident [Exhibit 6] and the supporting deposition he had
completed in connection with a proceeding against Claimant in the Town of
Beekman Justice Court. [Exhibit 4]. He recognized Claimant on the day of trial.
On November 1, 2002, Officer Nagy stated, he first saw Claimant standing in a
line of inmates headed toward programs at 5:30 p.m. Prior to that evening, he
had had no interactions with Claimant. He told the group to stop at the next
yellow line: the normal procedure when escorting a large group, taking one line
at a time to maintain order. Claimant, he said, did not comply with that
direction. Officer Nagy told Claimant to return to the group behind the yellow
line, at which point Claimant "became disruptive and argumentative." Claimant
was "using his hands, and directed all the rest of the group to come forward
with him." The officer then directed Claimant, as well as all the inmates who
had proceeded to follow Claimant, to return to the yellow line.
After the group returned to the yellow line, he began "running the groups to
where they needed to go to." He told Claimant to "step to the side in another
hallway, and to let the other group go by him . . .because . . . [the officer]
had already had a problem with him . . . he had refused to show his ID card."
Officer Nagy planned on "procuring . . . [Claimant's] ID card and returning him
back to his housing unit, or counseling the inmate."
Officer Nagy said he then "ran the rest of the groups," and when he returned
"the inmate was being very loud and disruptive. They were starting to drop more
groups in the hallway, so
. . . [he] brought him to reception to avoid a bigger problem."
Once in the reception room, Officer Nagy told Claimant to take off his jacket,
remove things from his pockets and place his hands on the wall. Claimant
complied. Officer Nagy could not remember if he commenced a pat/frisk or not,
because he "didn't get that far . . . [Claimant] turned from the wall and
assaulted . . . [Officer Nagy] by hitting . . . [him] in the face." Officer Nagy
said that Claimant hit him with a closed fist on the jaw, and kicked the officer
several times. Officer Nagy said he "tried to restrain the inmate." He thought
that he grabbed Claimant's left arm and tried to restrain him and bring him to
the ground. Officer Strack then assisted Officer Nagy in restraining Claimant.
Another officer responded there - he had "heard the incident" - and after
applying handcuffs Claimant was escorted out of the area.
After the incident, Officer Nagy completed the misbehavior report and the State
Police report. Officer Nagy did not remember Claimant saying anything just
prior to assaulting him. Claimant was found guilty of the assault charge at a
disciplinary hearing at which Officer Nagy testified.
On cross-examination, Officer Nagy explained that it was the usual practice to
give a direct order to the inmates in front when moving a group. He did not
recall Officer Mapes directing those inmates going to J-School to proceed. He
said the only inmate he saw going across the yellow line was the Claimant, and
Officer Mapes - stationed at the gate - had her back to the line. Although
Officer Nagy did agree that Claimant complied with the direction to furnish his
ID card, the officer said it was only after the second or third request that the
ID card was furnished. Officer Nagy conceded that Claimant complied with the
directions to go to reception, to remove his coat, to empty his pockets and - at
least initially - to place his hands on the wall. Officer Nagy repeated that he
did not remember whether he conducted a pat/frisk, nor did he remember actually
calling the sergeant as had been requested by Claimant. Officer Nagy confirmed
that there was no opportunity to do so because he was hit by Claimant before he
could initiate a pat/frisk, make a call for a sergeant, or talk to the inmate.
The witness could not recall whether he was directly asked to get a sergeant, or
whether Claimant had asked somebody else.
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.
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 Misc2d 358
Often the credibility of witnesses will be a critical factor in these
determinations (Davis v State of New York, 203 AD2d
." Kosinski v State of New York
No. 97581 dated November 30, 2000, Sise, J. (UID
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 Nagy, and the evidence Claimant presented to substantiate his claim.
Based upon a preponderance of the credible evidence, the Claimant has failed to
establish that the degree of force used was excessive.
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). Claimant has failed to establish by a
preponderance of the credible evidence that he complied with a lawful direction,
and that the correction officer used unreasonable force under the circumstances.
The Court finds that Claimant decided to disobey a direct order by Officer Nagy.
[Exhibits 5 and 6]. Indeed, the uncontradicted testimony is that Claimant was
found guilty of the charges raised in his disciplinary
Faced with a large group of inmates and a seemingly minor insurrection under
Claimant's leadership, Officer Nagy justifiably separated Claimant from the
group, and completed his escort tasks. Thereafter, at first alone with an
inmate who struck him, it was reasonable to attempt to restrain Claimant. The
force used to subdue him was reasonable under the circumstances. Claimant's
assertion that Officer Strack or Officer Nagy used force unnecessarily, and
without provocation on his part, simply lacks credibility.
Besides internal inconsistencies in his testimony, Claimant has not offered any
medical evidence to substantiate any alleged injury by some objective means.
The photographs are not dispositive of the extent of any injury, and
demonstrate, at best, bruising that would occur consistent with the take-down
maneuvers described by Officer Nagy. The officer credibly testified as best as
he could recall to an event occurring three (3) years before the date of trial.
The contemporaneous accounts shown in the paperwork support only the version of
events testified to by Officer Nagy. [
Exhibits 4, 5, 6].
Claimant has not sustained his burden of showing by a fair preponderance of the
credible evidence that officers used excessive force to restrain him on November
1, 2002. Claim Number 107064 is in all respects dismissed.
Let Judgment be entered accordingly.