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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
THEADORE BLACKS, Pro Se
HON. ELIOT SPITZER
R. Rubinstein, Esq.,
December 27, 2006
See also (multicaptioned
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.
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.
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).
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.
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
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.
ASSAULT/EXCESSIVE FORCE CAUSE OF
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]).
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.
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
AD2d 31; Arnold v State of New York
, 108 AD2d 1021, appeal
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
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
814). BAILMENT/DENIAL OF PERSONAL PROPERTY CAUSES OF
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.
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
, 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
LET JUDGMENT BE ENTERED ACCORDINGLY.
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the
Court of Claims
. Unpublished decisions and selected orders of
the Court of Claims are available via the Internet at