New York State Court of Claims

New York State Court of Claims

BLACKS v. THE STATE OF NEW YORK, #2006-009-166, Claim No. 108112


In this claim, claimant sought damages for personal injuries alleging that he was assaulted by certain correction officers at Auburn Correctional Facility. He also alleged that correction officers lost or destroyed certain items of his personal property. He also alleged that he was deprived of the use of his shower shoes and as a result contacted a foot fungus. Following trial, all causes of action were 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:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

In this claim, claimant, an inmate under the care and custody of the State Department of Correctional Services, alleges that he suffered personal injuries when he was assaulted by certain correction officers at Auburn Correctional Facility (Auburn) on June 16, 2003. Claimant also alleges in his claim that while he was housed in the Special Housing Unit (SHU) at Auburn following this incident, correction officers then either lost or destroyed certain items of his personal property. Finally, claimant alleges that while he was confined to SHU, he was deprived of the use of his shower shoes (slippers) and as a result, contacted a foot fungus for which medical treatment was required.
The trial of this claim was conducted at the Syracuse Court of Claims, where claimant testified on his own behalf and the defendant called one witness, Sergeant Shawn Yorkey, a correction officer at Auburn.
Claimant testified that on June 16, 2003, during a facility search, he was physically assaulted by Correction Officer John Thomas while he was handcuffed behind his back, and in the midst of being escorted to SHU. In particular, claimant testified that this assault took place in the “E 2/9 Center Room”, when C. O. Thomas, without any justification, slammed claimant’s face into some cell bars, and that he suffered a cut above his left eye as a result. In addition to his testimony, claimant submitted a videotape documenting his transfer to the SHU (see Exhibit 2).
In further support of this cause of action, as well as the other causes of action asserted in his claim, claimant submitted as an exhibit documents received by him pursuant to a freedom of information request, consisting primarily of misbehavior reports, items of correspondence, photographs, and personal property inventory forms (see Exhibit 1).
As previously indicated, Sergeant Shawn Yorkey was the only witness to testify on behalf of the defendant. Sergeant Yorkey testified that on June 16, 2003, he was supervising cell frisks on E-8 Company, where claimant was housed. According to Sergeant Yorkey, claimant and Correction Officer Stock engaged in a verbal argument over the number of books and magazines possessed by claimant. Due to the argument, Correction Officer Stock ordered claimant to “lock-in”, and claimant refused to do so. Sergeant Yorkey testified that he then handcuffed claimant behind his back, and ordered Correction Officers Thomas and Gabak to escort claimant to SHU.
Sergeant Yorkey testified that as they arrived at the “8 Company” landing, claimant turned suddenly and kicked Correction Officer Thomas in his right knee. A scuffle then occurred as both Correction Officers Thomas and Gabak attempted to subdue claimant. When Correction Officer Thomas grabbed claimant around his back, both Officer Thomas and claimant fell to the floor. As they were falling, claimant struck his head on the west wall, suffering an abrasion above his left eye.
According to Sergeant Yorkey’s report of this incident (see Exhibit A), Officers Gabak and Thomas then took claimant to the “E 2/9 Center Room”. At this point, Correction Officers Howard and Jones relieved Thomas and Gabak, and they proceeded to escort claimant to the SHU. According to Sergeant Yorkey’s report, the transfer of claimant from the Center Room to SHU was then videotaped by Correction Officer Woodard.
As part of their responsibility of maintaining order and discipline in correctional facilities, correction officers may, in certain circumstances, resort to the use of physical force, but “only such degree of force as is reasonably required” (7 NYCRR 251-1.2[b]). The limited circumstances in which the use of force is permitted by correction officers are defined by regulation 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 this particular matter, as is often the case in claims based upon allegations of excessive force, claimant and the defendant’s witness have provided the Court with sharply contrasting testimony as to the particulars of this incident. While there is no dispute that claimant suffered an injury above his left eye, defendant’s witness contends that the use of force was necessary in order to subdue claimant after he kicked Correction Officer Thomas.
In these cases, the credibility of the witnesses is often the dispositive factor (Davis v State of New York, 203 AD2d 234), and the Court must evaluate this credibility, as well as examining the specific circumstances in the incident, in order to determine whether the force used was excessive or unreasonable (see Wester v State of New York, 247 AD2d 468; Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Arnold v State of New York, 108 AD2d 1021, appeal dismissed 65 NY2d 723).
The Court has viewed the videotape (see Exhibit 2) submitted by claimant. Although it provides documentation of the injury suffered by claimant, this videotape only documents the transfer of claimant to SHU subsequent to the incident which forms the basis of this claim. The Court has also reviewed all of the documents submitted by claimant as Exhibit 1, as well as the two exhibits of the defendant which were received into evidence.
Based upon its review of these documents, as well as the testimony of the two witnesses at trial, the Court finds and concludes that the use of force by Correction Officer Thomas and Correction Officer Gabak was reasonable in response to claimant’s actions when he kicked Officer Thomas. The Court found that the testimony of Sergeant Yorkey was credible, and that the injury suffered by claimant was consistent with Sergeant Yorkey’s description of the altercation involving claimant, Correction Officer Thomas, and Correction Officer Gabak. The Court therefore concludes that the force utilized by Correction Officers Thomas and Gabak was reasonably necessary under the circumstances, and was not unprovoked or unjustified, as alleged by claimant (see Passino v State of New York, 260 AD2d 915, lv denied 93 NY2d 814).

Inmate bailment claims are governed by Court of Claims § 10(9), which specifically requires that an inmate must first exhaust the administrative remedies established by the Department of Correctional Services, prior to instituting such a claim. At trial, defendant moved to dismiss the bailment cause of action asserted by claimant based upon an alleged failure of claimant to exhaust his administrative remedies.
Pursuant to regulation (see 7 NYCRR § 1700.3), the department has established a two-tier system for handling bailment claims, consisting of an initial review and subsequent appeal process. Pursuant to § 10(9), in order for a claimant to be deemed to have exhausted his administrative remedies, both of these separate and distinct steps must be completed prior to the service and filing of a claim. At trial, it was claimant’s position that the documents received into evidence (Exhibit 1) substantiated his bailment claim, and therefore the Court reserved decision on defendant’s motion to dismiss.
As indicated previously, the Court has reviewed these documents and finds no evidence therein that claimant established that he exhausted his administrative remedies prior to the service and filing of this claim. The only indication that claimant had pursued his administrative claim is contained in a memo to claimant from the “Institution Steward” at Upstate Correctional Facility, indicating that his “claim has been disapproved and returned to you on 1/6/04.” Claimant, however, had previously filed his claim with the Clerk of the Court of Claims on August 7, 2003, and it is therefore clear that claimant had served his claim prior to exhausting his administrative remedies. The filing and/or service of a bailment claim prior to the exhaustion of administrative remedies fails to comply with the straightforward requirements of § 10(9), therefore requiring dismissal (Ramsey v State of New York, Ct Cl, May 12, 2006, Moriarty, J., Claim No. 106646 [UID #2006-037-505]; Palacio v State of New York, Ct Cl, March 22, 2005, Fitzpatrick, J., Claim No. 107992 [UID No. 2005-018-451])
From the documentary evidence submitted, it further appears to this Court that claimant’s third cause of action (his allegations that he was denied access to his shower shoes and that this denial caused him to contact a foot fungus) is based upon his bailment cause of action, since his shower shoes (slippers) were included in those items of personal property which were allegedly lost or destroyed by facility officials. Since his bailment claim must be dismissed, this cause of action, dependent upon the existence of a bailment, must also fail.
Furthermore, claimant presented no competent medical evidence, either at trial or in any of the documents received into evidence, that the foot fungus allegedly contacted by him was a direct or proximate result of the fact that he was deprived of access to his shower shoes while he was confined to SHU. This cause of action is also dismissed.
Accordingly, based upon the foregoing, and after consideration of all of the trial testimony and documentary evidence, Claim No. 108112 is hereby dismissed in its entirety.
Any motions not heretofore ruled upon are hereby denied.

December 27, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at