New York State Court of Claims

New York State Court of Claims

STRONG v. THE STATE OF NEW YORK, #2006-029-603, Claim No. 105656


Synopsis


Former inmate’s claim that he was assaulted by correction officers is dismissed after trial.

Case Information

UID:
2006-029-603
Claimant(s):
PERRY STRONG
Claimant short name:
STRONG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105656
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
PERRY STRONG, Pro Se
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Mary Kavaney, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 13, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, formerly an inmate at Otisville Correctional Facility, seeks damages for two separate alleged incidents of assault and battery at the hands of correction officers on November 29, 2001. He testified that at 7:55 that morning, he heard an announcement cancelling all programs that day. About twenty minutes later, Officer Wilson asked claimant why he was not at his program
[1]
and claimant responded that it was closed for the day. The officer was unaware of any closure. He asked for claimant’s ID card and program card and made a phone call.

According to claimant, Sergeant Tonic arrived and asked him “You refused program?”
[2]
to which claimant responded “no.” The sergeant then told him to get dressed, which he did, and to put his hands in his pockets. Claimant alleged that Tonic pushed him in the back as they were leaving the housing unit on their way to a van that was to take them to the facility’s special housing unit (SHU). They boarded the van, which contained other inmates also headed for SHU.

According to claimant, during the drive to SHU, Sgt. Tonic, after asking claimant “Why were you messing with my buddies?”, hit him three times, once each in the stomach, back and chest. Tonic allegedly did this while he was driving the van. Claimant stated he did not do anything in response to being hit. When the van arrived at the SHU building, Correction Officer Redmond met him at the door and told him to keep his hands in his pockets. He was escorted to a “concrete enclosure” and told to keep his face to the wall and keep his hands in his pockets. Redmond and another officer then proceeded to strip search him.

After the strip search, Nurse Delgado examined claimant. After that, claimant stated he was given a pair of pants and as he was putting them on, Redmond hit him on his left side and he fell to the concrete pavement. He alleged he started to scream “Oh, my head,” and a different nurse came in. Claimant alleged Redmond was hollering “You fell, didn’t you?” and claimant said “OK, if you say so.” Photos of claimant were taken (Exhibits “A”, “B” and “C”) and he was placed in his SHU cell.

Claimant advised that he was given a “ticket” with two charges arising from his failure to go to program that morning– refusing a direct order and unauthorized movement – and that he was found guilty on those charges and sentenced to 15 days “time served” in SHU.

On cross-examination, claimant agreed that he was placed in IPC (involuntary protective custody) following the subject incident. He stated this was done because the facility personnel thought he had been in a fight with another inmate, which claimant denied. He was asked if he was limping when he entered SHU but he could not recall.

Correction Officer Robert Redmond testified he was called to SHU at about 8:00 a.m. on November 29 and told that an inmate was being brought to SHU from general population. Claimant arrived at the van and Redmond proceeded to escort him up the stairs, holding claimant’s left arm. Redmond, who did not know why claimant was being sent to SHU, described him “quiet” and following instructions. He testified claimant said he had a “bad leg” and he told claimant to take his time. Claimant was placed in the intake area to be strip searched, which was done by Officer Campbell with Officer Redmond present. Nurse Delgado came in and examined claimant – apparently part of routine procedure for entry into SHU. According to Redmond, claimant had no visible injuries, and after the examination he started to get dressed.

Redmond testified that claimant was having trouble lifting his left leg to put his pants on. Redmond asked him if he was all right and offered him a chair, and claimant responded that he was fine. Claimant, on his own, then fell backwards striking his head on the wall. Redmond stated he noticed a cut on the back of claimant’s head and he called for a nurse. Nurse Hulbert arrived and conducted an examination. Although Redmond had initially noticed only the cut on claimant’s head, the nurse noticed red marks on claimant’s neck and back, which Redmond stated looked like someone had attempted to choke him, and red, “rash-like” marks on claimant’s arm that gave the impression that claimant had been in a struggle. He also saw a hand print on claimant’s shoulder. No medical reports were submitted at this trial and it was unclear why Nurse Delgado did not notice those injuries; although the alleged marks on the neck are barely perceptible on the photographs, the red marks on both of claimant’s arms are evident.

Redmond denied that he ever struck claimant or that he saw any other officer strike claimant.

Resolution of this claim – involving two contrasting factual scenarios – turns entirely on the credibility of the two witnesses and their divergent testimony. Claimant submits that he was punched three times – in his stomach, back and chest – by a sergeant who was driving him to SHU and that he was knocked to the ground by a SHU officer. The photographic evidence did not support claimant’s allegations in this regard in that the only injuries shown thereon were scrape-like bruises on his arms, injuries that were not consistent with being struck as claimant testified but were consistent with what Officer Redmond surmised – that claimant had been the victim of an assault by other inmates. Also consistent with that theory was claimant’s placement in IPC following the incident to protect him from other inmates, something claimant did not indicate he objected to whatsoever. Additionally, there were no medical records submitted in support of the claim that claimant had been assaulted by defendant’s employees as he alleged.

While the court certainly was not presented with a complete picture of what occurred on the date in question, it was claimant’s burden to establish by a fair preponderance of the evidence that he was the victim of tortious conduct by defendant’s employees. The court finds that claimant failed to meet that burden of proof and, accordingly, the Clerk of the Court is directed to enter judgment dismissing this claim.

October 13, 2006
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1].Claimant’s normal program assignment was to work in the print shop.
[2].Unless otherwise indicated, all quotations are from the court’s trial notes.