New York State Court of Claims

New York State Court of Claims

ALSTON v. THE STATE OF NEW YORK, #2006-015-549, Claim No. 109130


Synopsis


Claim for assault on an inmate by correction officers was dismissed after trial. Claimant failed to establish by a preponderance of the credible evidence that he was assaulted.

Case Information

UID:
2006-015-549
Claimant(s):
SAMUEL ALSTON
Claimant short name:
ALSTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109130
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Elmer Robert Keach, III, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 27, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant alleges that on April 2, 2003 he was assaulted by two correction officers while an inmate at the Greene Correctional Facility. A trial on the issue of liability was held on July 13, 2006.


Claimant called as his first witness Correction Officer Norman Haner, who testified that he was working at the Greene Correctional Facility Secure Housing Unit (SHU) between 7:00 a.m. and 3:00 p.m. on April 2, 2003. Officer Haner testified that he does not recall the claimant. Nor does he recall any physical altercation with an inmate or an incident involving an inmate with a severe nosebleed occurring on April 2, 2003. Correction Officer Haner testified that he began working for the Department of Correctional Services (DOCS) in 1984 and that he was employed at Greene Correctional Facility from 1991 through 2005. According to the officer he never assaulted any inmate while at Greene Correctional Facility. There was no further inquiry of this witness.

The claimant testified that he recognized Correction Officer Haner from the Greene Correctional Facility SHU and that Officer Haner was one of the correction officers who assaulted claimant on April 2, 2003.

Claimant testified that on that date he was taken to the Greene Correctional Facility SHU after being charged with attempting to purchase marijuana. The claimant was escorted to the SHU by an unidentified correction officer who left him in the custody of Correction Officer Haner and another officer. Claimant was taken to the SHU shower area and instructed by the correction officers to "get on the wall" and spread his arms and legs. According to the claimant he was then struck in the face by one of the correction officers. He tried to curl up to deflect the blows and was struck several more times. According to the claimant, following the alleged assault he was placed in a secure portion of the shower area and told not to say anything about what had occurred. Claimant testified that his nose was bleeding during the time he remained in the shower area (one-half hour to one hour). He was then escorted to his cell and, although his nose was not bleeding at that time, it began to bleed later that evening. Claimant was visited by a nurse whom he could not identify. Claimant's nose was not bleeding at the time of the nurse's visit.

Claimant testified that when he awoke the next day his nose was painful but not bleeding. Later that morning his nose began to bleed while doing push-ups. Claimant testified that his nose bled throughout the period from April 3, 2003 to April 8, 2003. During this time claimant was seen by a nurse who provided him with ice bags to apply to his nose.

Claimant testified that on April 8, 2003 two sergeants and several COs came to his cell and instructed him to complete and sign a statement regarding the cause of his injury. Claimant was instructed by the sergeant to make up an excuse explaining the source of his injury which he did by completing a statement in his own handwriting which was signed on April 8, 2003 (Exhibit I). Claimant testified that he complied with the sergeant's direction because he was "scared for his life". In relevant part the statement contained on the fourth page of Exhibit I reads as follows:
About 2 ½ weeks ago in J-1 dorm i was taking a shower and i had made the wrong step so i sliped and hit my nose on the shower switch i tried to get my ballance straight but couldn't and fell and hit my head on the floor [sic].
Claimant testified that he was first taken to Albany Medical Center for treatment of his nose following completion of his statement. At Albany Medical Center a balloon was placed in claimant's nose, which stopped the bleeding until the balloon deflated the following day. Claimant was taken back to Albany Medical Center and a second balloon was placed in his nose. Claimant testified that he did not explain how his injury occurred to the medical personnel treating him at Albany Medical Center. Exhibits A through H were received in evidence without objection following the completion of claimant's direct testimony.

On cross-examination the claimant testified that he was taken to the Greene Correctional Facility SHU on April 2, 2003. He stated that he was beaten by two correction officers in what is known as the strip-frisk room shortly following his arrival at the SHU at approximately 4:00 p.m. without provocation. Claimant acknowledged that he did not request sick call on either April 2, 2003 or April 3, 2003 nor did he ask to speak to a lieutenant, sergeant or correction officer to report the alleged assault. With regard to Exhibit I claimant agreed that he completed a report of inmate injury which contained a statement in his own handwriting which he signed on April 8, 2003. That statement reads as follows:
About 2 ½ weeks ago in j-1 dorm i was in the shower i had sliped and hit my nose on the shower switch and i tried to catch my balance but couldn't and i also hit my head on the floor [sic].
Claimant denied that he injured his nose as a result of slipping in the J-dorm shower although he agreed that Exhibit A, claimant's records from Albany Medical Center, reflect in several parts that claimant reported injuring his nose as a result of a slip in the shower.

Claimant confirmed that he lied to correction officials at Auburn and Clinton correctional facilities by stating that he was a member of the Crips gang and that a rival gang member wanted to kill him. Claimant testified that he was not a member of a gang and lied to authorities in an effort to obtain voluntary protective custody status. Claimant also acknowledged that he never informed anyone during the month of April, 2003 that his nose was injured as a result of an assault.

On re-direct examination claimant testified that he lied to obtain voluntary protective custody because he did not feel safe around correction officers.

Claimant next called Jacob Dobbs who testified that he is currently a correction counselor at Greene Correctional Facility, a position which he also held during April, 2003. As a correction counselor, Mr. Dobbs visits each inmate at the Greene Correctional Facility SHU on a daily basis. The witness recalled speaking to the claimant while on rounds at the SHU and that the claimant had tissue paper in his nose. According to the witness, the claimant explained that he had a bloody nose as a result of an assault upon him by correction staff. In response to this information Mr. Dobbs testified that he checked the logbook to see if any event or altercation was recorded and also spoke to Correction Officer Norman Haner regarding the claimant's allegations. Haner informed the witness that claimant was admitted to the SHU during the evening and that Haner was not present at that time as he was working the 7:00 a.m. - 3:00 p.m. shift. The witness took no other action with regard to claimant's allegation of an assault. The witness agreed that an entry contained in Exhibit B indicates that the claimant was admitted to the SHU shower #1 at 2:10 p.m. on April 2, 2003.

On cross-examination the witness admitted that he is unsure on what date he first spoke to the claimant in the SHU. He also reiterated his testimony on direct examination that the claimant had a tissue in his nose at their first meeting. In response to claimant's allegation that he had been assaulted by facility staff the witness checked the logbook and spoke to Norman Haner regarding claimant's complaints.

Claimant's next witness was the claimant's mother Drucilla Alston. In her brief testimony Mrs. Alston testified that she received a letter from her son on April 23, 2003 indicating that his nose had been broken and that she made various calls to individuals employed at the Greene Correctional Facility to obtain additional information regarding the injuries referred to in the claimant's correspondence.

At the conclusion of Ms. Alston's testimony the claimant rested his case and the defendant called Lieutenant Kevin LaPorto to the stand. Lieutenant LaPorto testified that he has been employed by DOCS since 1985 and that he was a Correction Sergeant at Greene Correctional Facility in April, 2003. Lieutenant LaPorto testified that he witnessed the claimant's written statement dated April 8, 2003, contained on the fourth page of Exhibit I, in which claimant indicates that he injured his nose as a result of slipping in the shower. The lieutenant denied that he ever threatened or coerced the claimant in an attempt to influence the content of the statement and stated that the claimant at no time informed him that his injuries were the result of an assault by correction officers in the Greene Correctional Facility SHU.

On cross-examination the witness testified that although he is aware that inmates have been injured in the shower area of various facilities at which he has been employed he did not recall any inmate other than the claimant having injured his nose as the result of a fall in the shower. He further testified that he was instructed to interview the claimant by his watch commander upon claimant's return from Albany Medical Center. He interviewed the claimant privately, which he described as normal procedure. Following the conclusion of the interview claimant was examined by medical personnel and photographs were taken. In that regard, entries on page 242 of the logbook indicate that the claimant returned to the SHU from Albany Medical Center at 5:30 p.m., was interviewed by the witness at 6:25 p.m. and that photographs of the claimant were taken at 7:10 p.m. The photographs contained on the final page of Exhibit I indicate that the photographs were taken at 7:15 p.m. on April 8, 2003.

The defendant's next witness was Sarah Wieninger who testified that she has been a registered nurse since 1981 and began her employment with DOCS at the Greene Correctional Facility in January, 2001. Ms. Wieninger testified that in April, 2003 her usual shift was from 2:00 p.m - 10:00 p.m. and that she would generally be assigned to the infirmary, S Block or SHU.

Ms. Wieninger first reviewed Exhibit H, claimant's ambulatory health records, which she testified did not reflect that the claimant was seen by medical personnel at Greene Correctional Facility whether in the infirmary or during emergency sick call between January 1, 2003 and April 2, 2003. On April 2, 2003 the witness conducted an SHU admission exam of the claimant in SHU cell #2. The claimant was stripped to his boxer shorts and found to be in good physical condition. A scabbed-over area was noted below his right knee and bacitracin was provided for treatment of the area. The witness noted an entry on page 224 of the SHU logbook (Exhibit B) which states that at 7:40 p.m. "nurse on unit . . . admit exam 1, 2, 4, 9, 10, 11 # 2 cell has scratch on r shin claims to be four days old". According to the witness the claimant did not complain of problems with his nose during his SHU admission examination on April 2, 2003.

Ms. Wieninger further noted an entry in the claimant's ambulatory health records dated April 6, 2003 indicating that the claimant attended sick call complaining of a bloody nose. An entry dated April 7, 2003 noted that Ms. Wieninger responded to SHU Cell #2 in response to a call regarding a severe bloody nose. At that time claimant advised the witness that he had been having nosebleeds every day and was given an ice pack and an appointment to see a physician the following day.

On cross-examination the witness testified that on April 7, 2003 she found the claimant bleeding from his nose and that there was blood in his cell and on his clothing, although the bleeding had stopped by the time the witness arrived at claimant's cell. According to the witness, the claimant at no time provided her any information regarding the cause of his nosebleeds.

Re-direct and re-cross-examination of this witness were unremarkable.

Defendant next called Thomas Mahoney who testified that he has been employed by DOCS since November 1, 1982. In April, 2003 Lieutenant Mahoney was employed as a correctional sergeant at Greene Correctional Facility where he worked as a resource sergeant filling various positions and assignments on an as-needed basis.

Lieutenant Mahoney testified that in April, 2003 all new inmates at the Greene Correctional Facility SHU were strip-frisked by a sergeant and a correction officer (referred to at trial as the #1 officer). The witness testified that he was present and observed the strip-frisk of the claimant upon his entry into the SHU on April 2, 2003 and that no assault or physical altercation occurred at that time. Lieutenant Mahoney never learned of any allegations concerning an assault upon the claimant by CO Haner and CO Hallenback, which he would have been required to report to his watch commander.

The witness noted various entries contained within the SHU logbook (Exhibit B). The first entry on page 221 of Exhibit B indicates that at 6:55 a.m. Officers Haner and Hallenback came on duty for the 7:00 a.m. to 3:00 p.m. shift at the Greene Correctional Facility SHU. An entry on page 222 indicates that the claimant was admitted to SHU shower #1 at 2:10 p.m. On page 223 it was noted that a count taken at 3:30 p.m. indicated the presence of "15 + 2" inmates including the claimant and inmate Johnson who were confined in separate cells in the shower area. Various entries contained on page 224 of Exhibit B indicate that the claimant was moved from the shower area to SHU cell # 2 at 6:15 p.m. without incident, that the claimant was taken from his cell to inspect and complete an I-64 with regard to his property at 6:35 p.m. and returned to his cell without incident at 6:55 p.m. A further entry on page 224 indicates that the claimant and other inmates were provided an admission exam at approximately 7:40 p.m. and notes that the claimant, who was housed in the #2 cell, had a scratch on his right shin.

On cross-examination Lieutenant Mahoney testified that in April, 2003 he was what is known as a resource officer which he described as a "floater" assigned to various duties dependent upon need. The witness did not recall interacting with the claimant on April 2, 2003 except as revealed by the records received in evidence. He explained that the #1 officer is responsible for making entries in the SHU logbook which are then reviewed by a Sergeant to insure their accuracy. On April 2, 2003 Correction Officer Haner was the #1 officer on the 7:00 a.m. - 3:00 p.m. shift and therefore responsible for entries made in the SHU logbook during the period he was on duty. With regard to strip-frisks of incoming SHU inmates Lieutenant Mahoney explained that the actual frisk is conducted by the #1 officer and observed by the correctional sergeant.

According to the witness, injured inmates are sent to the infirmary to receive medical treatment prior to being received by the SHU. The witness stated that had the claimant been injured or bleeding upon his arrival at the SHU such circumstance would have been noted in the SHU log.

Correction Officer Dennis Hallenback testified that he was first employed by the Department of Correctional Services as a correction officer in 1987 and has been employed in that capacity at Greene Correctional Facility since 1988. He testified that on April 2, 2003 he worked the 7:00 a.m. - 3:00 p.m. shift as the #2 man in the Greene Correctional Facility SHU. He testified that he did not participate in the strip-frisk of incoming SHU inmates since strip-frisks were conducted by the SHU sergeant and #1 officer. The witness denied that he at any time assaulted the claimant on April 2, 2003. He did not observe Sergeant Mahoney or CO Haner assault the claimant nor did the witness recall the claimant's nose bleeding at the time he exited the strip-frisk room. Finally, the witness denied that he ever threatened the claimant not to reveal that he had been assaulted.

On cross-examination Officer Hallenback testified that he was not present in the room when the strip-frisk of the claimant was conducted. He did not specifically recall the claimant nor did he recall any inmate with a bloody nose in the SHU on April 2, 2003.

The defendant rested its case at the conclusion of CO Hallenback's testimony and moved to dismiss the claim for failure to establish a prima facie case. The Court reserved decision on the motion at trial. That motion is now denied.

It is the claimant's burden to prove his case by a preponderance of the credible evidence ( see, Zi Guang v State of New York, 263 AD2d 745, 746). In determining whether the claimant has carried his burden, this Court, as fact finder, must weigh the evidence presented after assessing the credibility of the witnesses and resolving conflicting evidence and inferences that may be drawn therefrom ( id.; see also, Raynor v State of New York, 98 AD2d 865; Brooker v State of New York, 206 AD2d 712). After careful consideration of the evidence presented at trial, this Court finds that the claimant failed to establish by a preponderance of the credible evidence that he was assaulted by correction officers as alleged.

Claimant's testimony that he was assaulted was contradicted by his own prior inconsistent statements in which he reported that the injuries sustained were the result of a slip and fall in the shower. These written statements, signed by the claimant and written in his own hand, were witnessed by Lieutenant LaPorto who testified that the claimant was neither threatened nor coerced into making the statements. In addition, claimant's ambulatory health records, the SHU logbook and the testimony of Ms. Wieninger indicate that the only injury observed during claimant's physical evaluation at approximately 7:40 p.m. on the day of the alleged assault was a scratch on his right shin. Nor do the medical records regarding treatment rendered the claimant at Albany Medical Center reflect that the cause of the injury was an assault. Rather, the records reflect that the claimant identified the cause of his recurrent nosebleeds as an injury suffered when he slipped in a shower during both visits to the Albany Medical Center, the first on April 8, 2003 and the second on April 9, 2003. Claimant's attempt to bolster his credibility through the testimony of Mr. Dobbs must fail as claimant's own self-serving statements to Mr. Dobbs on an unspecified date following the alleged attack are of little probative value. Thus, the only evidence of an assault was the claimant's trial testimony which was undermined by both his own prior inconsistent statements and the weight of the countervailing testimony which indicated that, in fact, no assault occurred. As a result, the Court finds that upon the proof presented at trial the claimant has failed to establish by a preponderance of the credible evidence that he was the victim of an assault.

The claim is dismissed. Let judgment be entered accordingly.





November 27, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims