Claimant, Robert Dougal, filed claim number 102893 on August 11, 2000 against
the State of New York, alleging that he was assaulted by a correction officer,
an employee of the Defendant. I conducted a trial on this matter on March 8 and
9, 2005, in Buffalo, New York.
Claimant alleges that on June 30, 1999, at Gowanda Correctional Facility
("Gowanda"), Correction Officer Salvatore Evans assaulted him while he was in
the ground floor hallway of the A block, South Tower. Claimant alleges that
inmates receiving prescription medication at the infirmary during the 9:00 p. m.
movement were held there after the five-minute movement period had ended.
Claimant stated that the inmates were then instructed to leave the infirmary in
groups of two or three. Claimant alleges that, as he proceeded through the
foyer of A Block en route to his cell, he was grabbed from behind by Correction
Officer Salvatore Evans and that, at that hour, the hallway was empty, except
for Officer James O'Neill, whom Claimant believed to be stationed farther down
Claimant alleges that, at approximately 9:12 p.m., Officer Evans grabbed his
throat and made a statement similar to this: "You know what this is all about."
Claimant testified that Officer Evans began roundhouse punching his ribs and
then put on gloves, which Claimant believed to be weighted, and continued to
hold Claimant's throat with his left hand and to throw punches with his right
hand, striking Claimant in the kidney/rib area. In sum, Claimant believed that
he was hit 20-25 times. Claimant testified that he heard movement in the empty
hallway and saw three other officers whom Evans waved to the scene. According
to Claimant, these other officers drew their night sticks and one brandished a
can of mace. Claimant stated that, at this point, Officer Evans intensified his
beating and allegedly said, "You better say yes if you know what is good for
you." Officer Evans then allegedly hit Claimant's head repeatedly against the
steel casing of the Parole Office doorway 5 to 11 times. During the alleged
beating, Claimant said that his glasses fell to the ground and Officer Evans
stepped on them. Claimant stated that the alleged altercation ended when he
finally said "Yes" to Officer Evans. He was then allowed to pick up his glasses
and go to his cell.
Claimant stated that he proceeded to his cell located on the second floor,
south end of A Block, and told Inmate Mauer and his cellmate, Inmate Brown, what
had happened. Claimant also used the phone to call his girlfriend. The next
morning, Claimant reported the incident to the Chaplain, for whom he worked, and
was directed to the medical facility where pictures of him were taken (Exhibit
A). Claimant was taken to the Special Housing Unit ("SHU") at 3 p.m. where he
allegedly told a female correction officer, identified as Officer Steel, that he
was in pain because of the incident. However, Defendant's witness, Lieutenant
Karen Howard, pointed out that no female officer named Steel worked at Gowanda
at the time of the incident, and that the only officer named Steel employed by
the Department of Correctional Services at Gowanda was male, balding and wore
Claimant testified that, prior to this incident, he had encountered
difficulties with Correction Officers Evans, McCormack, O'Donnell, and O'Neill.
According to Claimant, these officers harassed him in the days immediately
preceding the assault. Specifically, Claimant alleged that the officers
improperly went through his legal mail and asked him to get a new name tag for
his pants. Claimant also argued that an Inmate Misbehavior Report ("IMR")
issued by Officer McCormack for disobeying movement procedure was given to him
maliciously (Exhibits C and D). Officers Evans, McCormack, O'Donnell, and
O'Neill each testified that they did not harass Claimant in any way.
Officer McCormack and Lieutenant Howard testified that an IMR is automatically
issued if an inmate is signed out to a specific location and is found not to be
present at that location. Officer McCormack testified that he did not use
abusive language or behave maliciously when issuing the IMR. None of the
officers recalled the specific incidents that Claimant offered, but explained
that it is common procedure to stop inmates who have envelopes in areas other
than their cells because they may be transporting contraband. The officers
contend that, if they stopped Claimant, they did not read his mail, but rather
followed proper procedure which involves scanning the material for an official
legal heading and the appropriate name. This is done for security reasons, not
harassment, as an inmate is not allowed to possess another's legal mail.
With regard to the name tag, the officers stated that inmates are required to
have their names on their clothes for identification and for laundry, offering
that it was in the inmates' interest to remind them to secure their name tags so
that clothing is not misplaced. The officers stated that they often remind
inmates when it is time to receive new iron-on name tags.
In any event, Claimant construed these incidents as harassment and expressed
his concerns to his girlfriend, one Susan Yerry. Ms. Yerry wrote letters on
Claimant's behalf to the Superintendent at Gowanda (Exhibit 5). In her letters,
Ms. Yerry went so far as to say that the officers called Claimant names and that
Claimant feared for his life. Ms. Yerry wrote another letter on the night of
June 30, 1999, notifying the Commissioner of Claimant's alleged assault.
Claimant testified that he called Ms. Yerry right away and told her what had
With regard to the alleged assault itself, each officer testified that they did
not recognize or recall Claimant, and that they did not participate in any
assault upon him. The officers and Lieutenant Howard all suggest that an attack
such as described by Claimant would be logistically impossible. For instance,
each stated that inmate movement begins on the hour and ends approximately five
minutes thereafter. The movement for the entire facility is directed by
officers in a central control center known as the arsenal. Officers in the
arsenal announce the movement by two-way radio. Officers McCormack, Evans,
O'Donnell, and O'Neill each has specific posts to man during this movement
period. These officers are required to man these "movement posts" until
movement ends and then proceed directly back to their original posts on housing
floors. According to the officers, they are subject to discipline if they are
not at their proper posts both during and after movement. Lieutenant Howard
stated that, after 5 minutes, the end of a movement is announced by the arsenal
over two-way radios. At this point, inmates are not free to move, doors are
locked and attendance taken. Officers with movement posts outside are expected
to be back to their main post within ten to fifteen minutes. According to
Defendant, therefore, Officer Evans would have been on his way back to his post
on the sixth floor of B Block or, more likely, already there, when the alleged
assault occurred. This conclusion would be much easier to reach if the State
had provided the Court with the appropriate officer logbooks.
Frances Allen, a Registered Nurse at Gowanda, explained movement for inmates
taking evening medication. Ms. Allen stated that, depending on population,
thirty to forty inmates receive medication during the 9:00 p.m. medical
distribution call at Gowanda. Because all of the medicine cannot be distributed
within the five-minute inmate-movement time frame, it is standard procedure,
once the movement has ended, for the medical facility to hold all the inmates in
the medical facility until all medicine is distributed and then to have a
separate movement, a "medical go-back," during which these inmates are escorted
back to their cells. Generally, the medical go-back takes place 20-25 minutes
past the hour. Ms. Allen stated that, for security reasons, inmates are never
permitted to leave in groups of two or three, as described by Claimant.
On the evening of the alleged incident, Officer O'Neill manned his regular post
on the first floor hallway of A block, South Tower, where the alleged incident
took place. As part of his duties during an inmate movement, Officer O'Neill
ensures that the doors on the floor are locked, especially because the offices
located on that floor close shortly after his shift begins. The doors that
Officer O'Neill checks include the door in the foyer giving access to the first
floor offices, where the alleged attack took place, and the door to the Parole
Office, the door against which Officer Evans allegedly banged Claimant's head.
Officer O'Neill testified that he would have made sure the doors on the ground
floor were locked at approximately 9:00 p.m. and then would have returned to his
other post on A-3 South, in the same building, by 9:10 p.m. Officer O'Neill
stated quite candidly that if he were late returning to A-3 South, his absence
would be noted and other officers would "look for" him. Had Officer O'Neill
been in A-3 South at 9:10 p.m., as he testified, Claimant could not have seen
him at 9:12 p.m. in the ground floor hallway.
Officer Evans' regular duty in 1999 was as a B-6 "rover." His responsibility
was aiding other officers in various situations and supervising inmates on the
sixth floor of B block on both the north and south ends. During movement,
Officer Evans manned an outdoor post by the main walkway and the fence
separating A and B blocks from C and D blocks. After movement, Officer Evans
testified that he was required to return to the sixth floor of B block. Officer
Evans claimed that he did not open the door separating the foyer from the ground
floor hallway of A block, South Tower, and that he does not know if he even had
a key to that door. He explained that he is provided only with the keys
necessary to perform his duties in B block, and he has never had to open the
door in question. Officer Evans testified that he did not threaten or assault
Claimant. Officer Evans also explained that, on the date of the incident,
officers were not authorized to carry either weighted gloves or mace. Further,
Officer Evans and Lieutenant Howard both stated that officers are inspected
daily and, if such items were found, the officer would be reprimanded
immediately and asked to leave the property. Officer Evans testified that he
believed he would lose his job if he possessed such articles.
As a result of the alleged assault, Claimant stated that he has suffered from
syrinx, or cysts in the spinal column, in T2 through T4, and in T5 through T10.
Claimant also alleges that because of injuries to his neck at C-5 and C-6, he
has trouble holding his arms out, suffers from shoulder and arm pain, and has
spasms in his arms. Claimant stated that he wears a TENS (transcutaneous
electrical nerve stimulator) unit and a transubdermal patch, and takes OxyContin
and Fentanyl for pain. Claimant also stated that he takes anti-depressants.
Because of his lack of mobility and pain, Claimant can no longer work as a pipe
fitter, a job he performed prior to his incarceration.
Registered Nurse Frances Allen examined Claimant at the Gowanda medical
facility on July 1, 1999, the day after the alleged assault. Ms. Allen
testified that she observed no redness, no limitation of his range of movement,
and no other evidence of injury when she examined Claimant that morning. She
documented the lack of objective medical findings on the Inmate Accident Report
and in Claimant's Ambulatory Heath Record (Exhibits B and G). Ms. Allen stated
that, based upon Claimant's description of the nature and duration of the
assault, one would expect to find very obvious injuries. Ms. Allen did not
observe any injury consistent with Claimant being punched or struck, and
Claimant made no complaints as to pain in his scalp or skull. Ms. Allen, who
took photographs of Claimant during the course of the examination, did not
observe any damage or receive any complaint of damage to Claimant's eyeglasses,
and the glasses appear to be intact in the pictures (Exhibit A).
Later that day, Claimant was transferred to Collins Correctional Facility
("Collins") SHU, where he was examined as an incoming draft by Registered Nurse
Nicole Gemmill-Stang. Ms. Gemmill-Stang has received training in the
identification of wounds at Brooks Memorial Hospital and served on a wound
identification team before employment with the Department of Correctional
Services. Ms. Gemmill-Stang did not find any evidence of injury to Claimant
during the course of her examination other than an innocuous faint bruise
smaller than a quarter on his left rib area (Exhibit F). Ms. Gemmill-Stang
agreed with Ms. Allen, testifying that extensive injuries would have been
readily apparent if Claimant had been punched 20-25 times and had his head
banged against the steel casing of a doorway 5 to 11 times. Ms. Allen also
stated that, according to Claimant's Ambulatory Health Record dated July, 1999
(Exhibit G), Claimant took pain medication daily for his preexisting chronic
back pain, which dated back to at least 1996.
Dr. Cristina Maria Misa, Director of Medical Services at Gowanda, testified on
behalf of the State as an expert medical witness (Exhibit K). Dr. Misa's expert
opinion, consistent with that of the nurses who examined Claimant after the
incident, was that, based upon Claimant's physical condition, the events at
issue simply could not have occurred as described by Claimant. Dr. Misa
explained that Claimant's first examination took place approximately 13 hours
after the alleged assault occurred. At that time, visible purple bruising
should have been readily apparent. Dr. Misa also stated that with an assault as
described by Claimant, she would expect to see head injuries, such as
lacerations, bleeding, edema, or even fractures. In his post-incident
examination, Claimant did not complain of any injury to or pain in his head.
After the incident, several examinations were done to ensure that Claimant did
not have internal injuries. Claimant's lungs were clear; they were not
punctured by a broken rib (Exhibit G). Claimant's heart and bones also showed
no indication of injury (Exhibit G). Dr. Misa bluntly stated that there is
simply no physical evidence that would support Claimant's description of the
events. With regard to Claimant's syrinx, Dr. Misa testified that, to her
knowledge, and she is admittedly not a neurologist, the causes of syrinx are
unclear. Syrinx may be a congenital condition existing from birth, and it may
also be caused by trauma. Dr. Misa was careful to state that Claimant suffered
from chronic back problems for years before the incident and, without full
access to his medical records, she could not offer any objective findings as to
the cause of his syrinx.
In situations involving inmate allegations 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 force was used 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
, 223 AD2d 800; Quillen v State of New York
, 191 AD2d 31;
Brown v State of New York
, 24 Misc 2d 358).
I find Claimant's assertion that Officer Evans used excessive force without
need or provocation lacking in credibility. Several contradictions in
Claimant's testimony call his recollection of the events at issue into doubt.
These include the identification of the officers present, the alleged damage to
his eyeglasses, and the complete lack of objective medical evidence that he
suffered any injury whatsoever on the night in question. Had the events of June
30, 1999 unfolded as described by Claimant, one would expect very visible and
perhaps life threatening injuries. Claimant's physical condition shortly after
the alleged assault, however, showed no indication of any trauma whatsoever.
By contrast, I find that the testimony of each of Defendant's witnesses to be
both credible and consistent.
I find, therefore, that Claimant has failed to demonstrate a
cause of action.