New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2005-037-507, Claim No. 103185


Claimant failed to establish a prima facie case of assault or of medical malpractice. 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:
Johnathan Johnson, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 26, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Johnathan Johnson, the Claimant herein, alleges in Claim Number 103185 that he was assaulted by correction officers and then denied adequate and timely medical treatment for his resulting injuries while he was in the custody of the New York State Department of Correctional Services (DOCS) at Southport Correctional Facility (Southport). Trial of the matter was held at Elmira Correctional Facility on July 28, 2005.
Specifically, Claimant alleges in his claim and testified that on September 26, 2000, at approximately 10:25 A.M., as he was being escorted from a Tier II disciplinary hearing, he was assaulted by Correction Officers (COs) Richards and Casselberry and sustained injuries to his head and face for which he was denied prompt and proper medical treatment.
In support of his claim, Claimant submitted documentary evidence in the form of his Ambulatory Health Record (Exhibit 1), Use of Force Report (Exhibit 2), and Inmate Misbehavior
Report (Exhibit 3), and called Karen Weaver (formerly Karen Dyal), a staff nurse at Southport, to testify for him.
After reviewing Exhibits 1 and 2, and under questioning by Claimant, Nurse Weaver testified that on September 26, 2000, at approximately 11:05 A.M., she was on duty at Southport and was called upon to examine Claimant following a Use of Force Report. The examination took place in the gallery shower area where he had been placed in full restraint by correction officers. She stated that Claimant complained of a bump on the head and pain in his wrists and she found a quarter size lump in his left temple area but no marks or injuries on his wrists.
The witness also stated that Claimant was totally uncooperative during the examination and refused to show or describe any other injuries and did not request treatment. In response to a question by Claimant concerning the ordering of pain medication, she indicated that on September 27, 2000, he did not complain of pain but reported that all of his medications, including Tylenol, were disposed of by correction officers and he requested replacements. As a result, the Tylenol which had previously been ordered on September 25, 2000 (the day before the alleged incident), was reordered along with other medications. Following the examination, Ms. Weaver made written reports of her findings which are found in Exhibits 1 and 2.
The Defendant’s only witness was CO James Richards, Jr., an employee of DOCS for over
23 years, who stated that he was on duty at Southport on September 26, 2000, acting as the Tier II disciplinary hearing escort officer. At approximately 10:25 A.M., he was ordered by Lieutenant Donohue, the hearing officer, to escort Claimant from the hearing room to the gallery shower area to wait for other witnesses in the matter to testify. Claimant refused a direct order to enter the shower area, became verbally abusive and attempted to kick CO Richards who then took control of his right arm and they both fell to the floor as Claimant continued to struggle. The officer believes that the left side of Claimant’s head struck a door jam as they fell.
Correction Officer Richards further testified that he followed his training and experience in
the use of force, indicating that minimal force was used in this instance. Richards prepared an Inmate Misbehavior Report in connection with the incident (Exhibit 3) which corroborates the officer’s testimony.
Claimant’s testimony consisted of conclusory statements in support of his claim that he was assaulted and then denied prompt and proper medical treatment. No other witnesses testified and no additional evidence was submitted.
Correction officers are charged with the responsibility of maintaining order and discipline
in correctional facilities under stressful circumstances (Arteaga v State of New York, 72 NY2d 212 [1988]). It is well settled that correction officers may use physical force to maintain order and discipline in correctional facilities, 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 permitted 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

(7 NYCRR 251-1.2 [d]).
In situations involving inmate allegations of excessive force by correction officers, the credibility of the witnesses is often the dispositive factor (Davis v State of New York, 203 AD2d 234 [1994]). 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 (see Wester v State of New York, 247 AD2d 468 [1998]; Lewis v State of New York, 223 AD2d 800 [1996]; Arnold v State of New York, 108 AD2d 1021 [1985], appeal dismissed 65 NY2d 723 [1985]).
In order to prevail here, Claimant would have to prove that he did not refuse to comply with a lawful direction of the correction officer. While there is some conflict in the testimony, the Court finds the preponderance of the evidence to be that Claimant refused a direct order to enter the shower area and became verbally abusive and unruly thereby requiring the use of force to protect the correction officer and enforce compliance with a lawful order. The force used against Claimant in this incident was not excessive in relation to the purpose of restraining him and the medical report makes it clear that there was no significant injury to his head or body.
In summary, the Court finds that the force exerted by the correction officer in this matter was reasonably necessary under the circumstances and was not excessive and, as a result, no liability attaches to the Defendant arising out of this incident (see Passino v State of New York, 260 AD2d 915 [1999]).
Additionally, the evidence is contrary to Claimant’s assertions that he was denied medical attention. Immediately following the incident, Claimant was given a medical evaluation that resulted in the completion of an Ambulatory Health Record (Exhibit 1) and a Use of Force Report (Exhibit 2). Claimant also consulted with a staff nurse on the day following the incident and did not complain of pain or any other symptoms related to the alleged injuries and did not seek treatment for the same (Exhibit 1).
It is “fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons,” including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788, 789 [1990], lv denied 76 NY2d 701 [1990]).
In a medical malpractice action, the claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A claimant must establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The “claimant must [demonstrate]...that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his ...injuries” (Auger v State of New York, 263 AD2d 929, 931 [1999], citing Parker v State of New York, 242 AD2d 785, 786 [1997]).Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained (Hale v State of New York, 53 AD2d 1025 [1976], lv denied 40 NY2d 804 [1976]). A medical expert’s testimony is necessary to establish, at a minimum, the standard of care (Spensieri v Lasky, 94 NY2d 231 [1999]).
Whether the claim is grounded in negligence or medical malpractice, “[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case” (Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]; see Duffen v State of New York, 245 AD2d 653, 654 [1997], lv denied 91 NY2d 810 [1998]). With it evident that Claimant is contending that the failure to promptly diagnose and treat his condition contributed to a period of discomfort, the failure to present any testimony on the effects the alleged delay had on his condition is fatal since such facts are outside the ordinary experience and knowledge of a lay-person; Claimant’s speculation as well as his conclusory statements are inadequate (Tatta v State of New York, 797 NYS2d 588, [2005]).
In this case, only conclusory statements of the Claimant have been presented in support of a claim of malpractice. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. The fact that discomfort persisted for a few days after the alleged injury does not establish that somehow the treatment given was below the accepted standards of care. Claimant does not rebut the showing by Defendant that there was acceptable treatment, or that any treatment or failure to treat is a proximate cause of the injuries alleged. Accordingly, the claim of medical malpractice must be dismissed.
Additionally, from the record on Claimant’s direct case there is no indication that the actions of medical care givers amounted to simple negligence or ministerial neglect (see Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 [1986]; Kagan v State of New York, 221 AD2d 7, 10 [1996]). To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect must also be dismissed.
The Defendant’s motion to dismiss for failure to establish a prima facie case, upon
which decision was reserved at the time of trial, is granted and Claim Number 103185 is
dismissed in its entirety.

September 26, 2005
Buffalo, New York

Judge of the Court of Claims