New York State Court of Claims

New York State Court of Claims

CURKENDALL v. THE STATE OF NEW YORK, #2005-031-514, Claim No. 107132


Claimant failed to demonstrate that force used after his failure to comply with strip frisk protocol was unreasonable. Claim dismissed

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: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 9, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Richard Curkendall, filed claim number 107132 on December 27, 2002, alleging that, on October 2, 2002, correction officers employed by Defendant used excessive and unnecessary force during a strip frisk. I conducted the trial on this matter on October 5, 2004.

Both parties agree that, on October 2, 2002, after receiving information that Claimant was secreting medication on his person, Sergeant Britton and Correction Officer Delmar stopped Claimant for a pat frisk. During the pat frisk, Correction Officer Delmar felt an unknown object between the Claimant's buttocks and Sergeant Britton authorized a strip frisk. During the strip frisk, Officer Delmar saw Claimant remove something from his lower body and hold it in his left hand against the wall.

This is where the parties' version of the underlying events diverge. Defendant asserts that, by removing his hands from the wall during the frisk, Claimant violated a direct order. In such an event, standard procedure permits the use of force to secure the inmate and prevent possible harm to the officer. According to Correction Officer Delmar, he tried to obtain the unknown object from Claimant's hand while Claimant was in a standing position, but Claimant resisted. Officer Delmar then used a body hold to take Claimant to the floor, where he proceeded to struggle to obtain the object. The object turned out to be two Percocet pills wrapped in tissue paper.

Claimant concedes that he attempted to conceal the pills, but asserts that he was compliant at all times during the incident and at no time did he resist the officers. Claimant argues that he suffered back, knee and hip injuries as a result of the unnecessary use of force exerted upon him. Claimant testified that, once on the ground, the officers kicked him, banged his head into the ground, and contorted his legs. Pictures of Claimant after the event show no significant bruising, but do indicate an injury just above his left eye, resulting in a small scar (Exhibit B). I accepted into evidence Claimant's medical records which indicate that Claimant suffered pain and significant bruising from a sprained knee, as well as abrasions on his hip and back (Exhibit 1).

The Use of Force Report completed on the date of the incident by Sergeant Britton describes the actual force used: " C. O. Delmar grabbed inmate's left arm with his left hand and with his right arm around the inmate, took the inmate to the floor. The contraband was recovered and the inmate was placed in handcuffs by C. O. Trombley" (Exhibit D). The Use of Force Report also includes a physical examination report completed by medical staff. The initial physical report indicates a two centimeter laceration to the left eyebrow and minor abrasions to Claimant's right mid-back. Medical staff cleansed both wounds and applied steri-strips to Claimant's eyebrow laceration.

After reviewing the videotape of the incident several times ( Exhibit C), it is clear to me that Claimant did resist Officer Delmar's attempt to remove the object from Claimant's left hand. At Claimant's request, I also reviewed the running time displayed on the recording to ensure that portions of the tape had not been edited out. The videotape clearly shows Claimant removing contraband from his genital area and cupping his hand on the wall. The tape shows Officer Delmar secure Claimant in a standing position and attempt to remove contraband from Claimant's hand. Claimant resisted and Officer Delmar took Claimant to the ground. The videotape does not show the use of unnecessary force; it shows a fluid movement to the floor. Officer Delmar testified that he did not bang Claimant's head into the cement floor, and that the injury above Claimant's left eye was probably due to the initial takedown, during which Claimant struck the ground head first. While the video does not show Claimant's head because of the positioning of the camera, it does show Officer Delmar's body movements, which do not indicate that he exerted unnecessary force or struck a blow at Claimant's head.

Correction officers are charged with the unenviable task of maintaining order and discipline in correctional facilities under stressful circumstances (
Arteaga v State of New York, 72 NY2d 212). It is well-settled that correction officers are entitled to use physical force in order
to achieve this goal, but "only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]). The limited circumstances in which the use of force is tolerated by correction officers are set forth as follows:
"[A]n employee shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape. (7 NYCRR 251-1.2 [d]).
In situations involving inmate allegations of use of excessive force by a correction officer, such as here, the credibility of the respective witnesses is often the dispositive factor (
Davis v State of New York, 203 AD2d 234). To determine, in a given instance, whether use of force was necessary and, if so, whether the force used was excessive or unreasonable, a Court must examine the specific 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).
I find that the Claimant's assertion that Officer Delmar used excessive force without need or provocation is lacking in credibility. By contrast, I find that the testimony of Sergeant Britton and Officer Delmar are both credible and consistent. I find that Claimant disobeyed a direct order and came off the wall during the frisk. The force used by Officer Delmar in response to Claimant's actions was reasonable and appropriate.

I find, therefore, that Claimant has failed to demonstrate a
prima facie cause of action.
Accordingly, Claim No. 107132 is hereby
Any and all motions on which the Court may have previously reserved decision or which were not previously determined, are hereby denied.


February 9, 2005
Rochester, New York

Judge of the Court of Claims