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:
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
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
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,
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
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
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.