New York State Court of Claims

New York State Court of Claims

BRITO v. THE STATE OF NEW YORK, #2006-030-023, Claim No. 107714


Claimant alleges Defendant’s agents assaulted him and used excessive force while he was incarcerated - dismissed - no credible evidence.

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:
Third-party defendant’s attorney:

Signature date:
October 2, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Victor Brito alleges in his claim that Defendant’s agents, correctional facility officers, assaulted him and used excessive force while he was incarcerated at Downstate Correctional Facility (hereinafter Downstate). Additionally, he alleges he was denied adequate medical treatment. Trial of the matter was held at Sing Sing Correctional Facility on July 21, 2006. Mr. Brito gave testimony with the assistance of a Spanish interpreter.

Claimant testified to essentially the same facts asserted in his verified claim. He said that on Sunday, July 21, 2002 he had “put down”
that he wished to go to church services. Before being called out for church services, he had also been called out for a medical visit to monitor his diabetes condition. After the blood work was completed, he was escorted to the mess hall, and thereafter escorted to church.
When Mass was over, an officer directed them row by row to be dismissed. Another officer came along after they were dismissed, asking where they were coming from and where did they lock. Claimant told him the requested information. Claimant was with two other inmates who had come from the hospital. They were directed to leave, while he was told to go sit at a bench. As he waited, he saw a couple of other inmates from his unit, and asked them to ask the sergeant why he was sitting there when the others were going back to the unit. Claimant explained to the sergeant, and he was given an escort, Correction Officer William Lopez, to go back to the unit. Another officer said to hold off on the movement. They were all speaking in English, and Claimant tried to tell Correction Officer Lopez that he did not speak English. Officer Lopez then told him to give the officer his identification and asked where he locked. Claimant understood that question, and responded “2G13". The officer then put him in the back of the line and they did not speak further and they continued with their movement.
When Claimant was at the end of a set of steps at the housing unit they were directed to stand in front of their cells, while going up, he needed to open the door. The officer then grabbed Claimant by his throat and threw him against some kind of glass material. While the officer still had his hands on Claimant, Claimant put his hands up on the wall to show that he did not intend to do anything, and to allow a search. The officer then punched him in the back. Claimant said he turned to the officer and said, in English, “no punch me more.” Despite that, the officer was “aggressive” with him. Thereafter, two other officers grabbed Claimant’s arms, while Claimant continued to say “no touch me more.”
He was then moved and made to sit on the floor “Indian style” with his legs crossed. One officer had his hands around Claimant’s wrists, and the other had his hands on his wrists. The other officer then continued to berate him in profane language. Then his body went backwards and they continued to hit him in the face. Claimant said that his “body felt on fire, and . . . [he] could only see spots of light.” He testified that he did not remember anything thereafter until he woke up on one of the beds of the hospital. He felt like he was “suffocating” and he was “spitting up blood.” He was sent to an outside hospital.
At the hospital he had a cat scan. He was told he had a fracture to his mouth and had to see a specialist. He was prescribed pain medication. He returned to Downstate but did not see a specialist immediately or anyone despite the instruction from the outside hospital.
Sometime thereafter, he was notified of disciplinary actions against him and he was sent “to the box.” Later, he was transferred to Green Haven Correctional Facility, where he was placed in the box as well. Physically, he was having headaches and was unable to stand up. No attention was given to him for seven (7 ) days. He was then taken to the hospital to do another cat scan and he was “packed up for Upstate;” but did not go there because he had to go to the hospital. After the hospital visit, he “went to the box at Upstate,” and he stayed there without medical attention again. They “only gave aspirins or pills.” When he “finally got medical attention, . . .[he] told them of his problems.” Claimant indicated that he “lost some sense of smell; [and his] right eye sees double with a little blur. They told . . .[him] it was too late to do anything in terms of . . . [his] vision.” Claimant said that he “wrote to Albany to try to get a second opinion about the prognosis for . . . [his] eyes.”
Claimant indicated that what he was looking for was “some compensation for the suffering and abuse he went through.”
Claimant submitted photographs taken of him on that day, showing bruising on his right eye and cheek and mouth, and scratches along his torso and hands. [See Exhibits 1A, 1B, 1C, 1D, 1E, 1F].
On cross-examination, Claimant conceded that he was served with a misbehavior report charging him with assaulting Correction Officer Lopez on July 21, 2002. [See Exhibit 2]. He also conceded that he was found guilty of such assault at the disposition of the disciplinary hearing regarding the charge, and that it was affirmed on administrative appeal. No judicial review of the administrative finding was commenced or concluded. Mr. Brito confirmed that he was alleging herein that he did not understand English, and thus did not understand Correction Officer Lopez. Asked if Officer Lopez had used hand gestures, he could not recall. He nonetheless admitted that he had followed all instructions until Officer Lopez “put him in a room.” He explained he understood because they were in a group, thus he understood that they were supposed to go lock in as a group. Asked if he spoke to Officer Lopez in English on that day, he first responded that he understood English phrases like, “get in the line” or “go lock in,” but then as the question was clarified he said the only thing he said to the officer was “I no speak English.” He denied having said in English to the officer in response to the direction to lock in “why don’t you lock me up.” He denied that he was walking with friends at the time of this incident, but acknowledged that there were inmates speaking both English and Spanish. He did not ask fellow inmates to translate the directions given by the officer.
Correction Officer William Lopez testified that he had been a correction officer for over 34 years, and had worked at Downstate for over 20 years. On July 21, 2002, in keeping with the general duties of maintaining custody and control of inmates, he was performing the job function of escort, moving inmates from one point in the facility to another. That Sunday morning was the first time Officer Lopez had met Mr. Brito. He escorted the inmates to and from church services. He explained that after breakfast on Sunday, inmates go back to their housing units and he and whichever officer will be his partner that morning, go to the lobbies of the housing units and call out those inmates who will be going to church services.
That morning, all the inmates had “by and large come back from the mess hall, . . . [he] called out for those attending Catholic services, and they were lined up in the gym area.” He reminded them that they were going to religious services, and that it was not a recreation hour or a time for socialization. As they lined up, he reminded them that there was no talking in the tunnels, and that they were to walk in pairs. Before they proceeded, he counted 33 inmates. He then took these 33 inmates, including Claimant, down the steps and down through the tunnel to the chapel area.
Generally, as they proceeded into the chapel, the “Complex 2 [housing group] would sit in the first batch of chairs in the interior of the chapel on the western side.” He explained that the chapel is divided into three sections. Complex 1 inmates sit in the middle, Complex 2 inmates sit afterwards on one side, then Complex 3 inmates sit on the other side at the end. When the services are over, he generally tries to get his group - Complex 2 - out quickly, because otherwise they can be overrun by the Complex 3 inmates getting up and moving through the tunnel as well. When he lined up the group that morning to leave the chapel, he counted only 32 inmates, when he knew he had come in with 33. He told his partner to wait with the group, and they lined up against the wall, as Officer Lopez went back to retrieve the missing inmate. It was Claimant who was missing.
Officer Lopez found Claimant back with the Complex 3 group in the chapel - having crossed through the Complex 1 group to get to the Complex 3 group - “to meet with his buddies.” Officer Lopez then had to try to move Claimant through the other group in the narrow tunnel to rejoin the Complex 2 group, having no idea whether, for example, Claimant had enemies in the group he would have to “squeeze through:” a security concern.
Officer Lopez told Mr. Brito, admittedly with some irritation because of his security concerns, “get out of the chapel, get out of the chapel now” while he saw Mr. Brito “standing over there shaking hands like a politician.” When Officer Lopez observed Claimant then moving quickly through to get to his own group, he also heard Claimant “ spieling away talking a mile a minute” saying “what’s the matter for you Mr. Lopez, you’re one of us...” as if a shared “Hispanic descent” would give Claimant “a little leeway.” As they walked, Claimant continued to “mutter in broken English” under his breath, as Officer Lopez told him to be quiet as no talking was allowed in the tunnel. Officer Lopez then asked Claimant for his identification, because he was “entertaining the idea of writing him a ticket not only for talking in the tunnel but for failing to follow a direct order and separating himself from the group and interfering with the administration of . . . [the officer’s] duties.”
When they caught up with the group, and moved past the gates to the lobby, Officer Lopez instructed the inmates to proceed directly to their housing blocks. He explained that to the right of the lobby are blocks G and H, which have a courtyard. Up another flight of stairs is another courtyard leading to blocks E and F. While the officer was watching the inmates return to their blocks, he turned to the right and saw Mr. Brito standing on the steps, again “holding court with about 10 inmates standing around listening to him.” Officer Lopez repeated, “I told you to go to your blocks and lock in,” and opened the door. “At that point,” Officer Lopez said, “Protestant services are coming down and the Catholic services people are supposed to be out of the way already.” As the officer pointed at Mr. Brito and repeated “I told you to lock in,” Mr. Brito made a hand gesture pointing at the officer, and saying “you lock me in.”
Thereafter, Officer Lopez grabbed Mr. Brito by the arm and brought him back to the lobby, with the intent of counseling Claimant that he could write a ticket for the repeated failures to obey direct orders, and with the additional intent of reminding Claimant that it is mandatory to move along and not talk in the tunnel. Officer Lopez repeated that he did not actually intend to write him a ticket, and just wanted to talk to him, but before Lopez had a chance to talk, and as he brought Claimant in to the lobby, the inmate broke away from the officer and “took a shot at . . . [him] that . . . [Lopez] deflected. When . . . [Officer Lopez] retaliated by instinctively taking a swing back, that’s when . . . [Claimant] came and tried to choke . . . [Lopez].”
Officer Lopez explained that he was holding Claimant by Claimant’s right arm as he was escorting him back to the lobby. The door opens to the left side, so he got behind Claimant and opened the door still holding Claimant by the right hand. “Just as . . . [he] was telling . . . [Claimant] to just stand there - [the officer] wanted him separate from other inmates because of security - . . . [Claimant] broke away and took a shot at . . . [Lopez].” As best Lopez could recall, Claimant used his left hand to take a swing at the officer’s face. Officer Lopez deflected the swing by ducking, and then “took a shot [himself] connecting with Claimant’s right eye.” Describing Claimant as then “stunned,” Officer Lopez said he assumed the “only thing . . . [claimant] could do was try to hold on to . . . [the officer] and . . . [Claimant] was trying to choke . . . [Lopez] by the neck, and . . . [the officer] got that hand off of . . . [his] neck.” After Officer Lopez got Claimant’s hands away from his throat, he wrestled Claimant to the ground.
While he was holding Claimant down on the ground, another officer heard the “scuffle,” came running over, and another officer - Officer Lopez’ partner - came running over as well. These officers put cuffs on the Claimant. Thereafter, Officer Lopez said he asked the other officers “whether they had him,” and told them he had to run to the bathroom, and did just that. Officer Lopez was examined by medical personnel as is “required for any unusual incident.” He had a bruise on his right hand and his forehead, but was otherwise uninjured as he recalled. Officer Lopez had no further contact with Claimant after going to the bathroom.
A misbehavior report completed by Officer Lopez, and endorsed by Officer Navarro and by Sergeant Gildersleeve, essentially describes the incident as testified to by Officer Lopez, acknowledges the use of force, and charges Claimant with facility rule violations including assault and failure to stay in place. [Exhibit 2]. Officer Navarro notes in his contemporaneous memorandum that he saw the Claimant “try to punch Officer Lopez in the face” as he escorted the inmate into the west lobby area of Complex 2, and arrived at the location after Officers Lopez and Kiernan already had the inmate under control. [ibid.]. Officer Kiernan, who had been calling out the housing blocks for the Protestant services, heard noise in the west lobby and saw Officer Lopez wrestling with Claimant. [ibid.]. He writes in his memorandum that he “grabbed inmate Brito’s left arm and applied handcuff to it . . . [and] then grabbed his right arm and applied handcuff to it.” [ibid.]. Officer Navarro and Sergeant Gildersleeve then escorted Claimant to the facility medical clinic. [ibid.]. The Superintendent’s review of the use of force report indicates: “The force used was appropriate to control the incident.” [ibid.].
Claimant was found guilty of the charges after a hearing. [ibid.]. The “hearing record sheet” notes that several witnesses testified on Claimant’s behalf. [ibid.]. By way of explanation for the guilty disposition, however, the testimony of Claimant and his witnesses was not found to be credible. [ibid.]. On administrative appeal, the guilty findings were affirmed. [ibid.]. The use of force report includes a physical examination of the Claimant by a facility nurse, noting
“. . . edema & ecchymosis around . . . right eye & . . . right epistaxis” and indicates that Claimant was sent to St. Luke’s emergency room for evaluation. [ibid.]. The nurse’s notes also say: “remainder of exam reveals no other abrasions, lacerations, reddened, edematous or ecchymotic areas.” [ibid.].
Voluminous medical records from both correctional facility infirmaries and outside hospitals attest to medical treatment over an unspecified period of time for a variety of different conditions, but without explanation by a medical expert have little probative value in reference to any medical malpractice cause of action. [See Exhibit 3]. There is an indication that Claimant was receiving treatment for trauma to his right eye in progress notes commencing July 22, 2002 - indeed a series of successive notations would appear to show that Claimant was seen very regularly by medical personnel; thus his assertion that he was not seen by medical personnel for seven days is belied by the record he submitted. [ibid.]. The ambulatory health record entry for July 21, 2002 reports swelling and redness around Claimant’s right eye, and tenderness along the bridge of his nose. [ibid.]. No other abrasions or lacerations are noted. [ibid.].
No other witnesses testified and no other evidence was submitted.
Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part “. . . [w]hen any inmate . . . shall offer violence to any person, . . .or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline,[and] to secure the persons of the offenders . . . ” Correction Law §137(5). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use “. . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary.” Once an officer determines that physical force must be used, “. . . only such degree of force as is reasonably required shall be used.” 7 NYCRR § 251-1.2(b). The State may be liable for the use of excessive force by its employee under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973); Court of Claims Act §8.
To assess whether force was necessary, or whether the particular degree of force used was reasonable, “. . . a Court must examine the particular factual background and the circumstances confronting the officers or guards (see e.g, Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Often the credibility of witnesses will be a critical factor in these determinations (Davis v State of New York, 203 AD2d 234; . . ..citation omitted).” Kosinski v State of New York, Claim No 97581 (November 30, 2000, Sise, J.).
Resolution of this claim rests upon the relative credibility of the Claimant and Correction Officer Lopez, and the evidence Claimant presented to substantiate his claim. Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). After careful consideration, and after observing the demeanor of the witnesses as they testified, the Court credits the more internally consistent testimony of Correction Officer Lopez, and does not find the Claimant’s version of events credible. Although it was his burden to establish his claim by a preponderance of the credible evidence, Claimant has failed to establish that correction officers used excessive force to restrain him, tantamount to an actionable assault, when presented with what appeared to be an escalating situation.
The use of force report filed by the officers involved [See 7 NYCRR § 251-1.3] shows that a contemporaneous record was made, consistent with the testimony Officer Lopez gave at trial. [See Exhibit 2]. No evidence, other than the self-serving testimony of the Claimant, was presented to show that more force than was necessary to subdue him in the circumstances was used by correction officers. Officer Lopez described in an internally consistent fashion the events leading up to his “take down” of the Claimant. After failing to comply with a series of direct orders - orders which by Claimant’s own admission he understood even with limited English, particularly because they were a matter of routine travel within the facility through the tunnel to church services and the like - Claimant tried to strike the officer. Officer Lopez credibly admitted that it was instinct at first, that made him swing back, but otherwise it was reasonable under the circumstances for the lone correction officer to then try to gain control of an inmate engaged in assaultive conduct.
There was no evidence, other than the self-serving testimony of the Claimant, that any excessive force was used by correction officers. Indeed, even most of the version presented by Claimant, in which he is cast in the role of unsuspecting victim, primarily describes physical actions taken by the correction officers consistent with standard “take-down” maneuvers. The amount of force used was what was reasonably necessary to restrain an otherwise agitated and belligerent inmate. Once Claimant was restrained with the other officers’ help, there was no additional force used beyond that necessary to restrain and handcuff him. cf. Lewis v State of New York, supra.
Any injuries suffered, seem connected to the take-down maneuvers described, as attested to by Correction Officer Lopez, and substantiated in the documentary evidence. [See Exhibits 2 and 3].
Although the photographs show an apparent injury and swelling in the Claimant’s right eye, and the redness described by the examining nurse, there is no evidentiary connection between these injuries and the kind of extreme assaultive conduct alleged by Claimant. [See Exhibits 1A- 1F]. Claimant essentially described a repeated bludgeoning. No medical evidence was submitted to substantiate injury consistent with the conduct described by Claimant.
Accordingly, Claimant has failed to establish by a preponderance of the credible evidence that excessive physical force was used on him by correction officers or that he failed to receive adequate medical treatment.
Claim number 107714 is hereby dismissed in its entirety.
Let judgment be entered accordingly.

October 2, 2006
White Plains, New York

Judge of the Court of Claims

[1].As an initial matter, argument was heard concerning Defendant’s motion to dismiss the Claim [M-71893] on jurisdictional grounds, based upon Claimant’s alleged failure to serve the Claim upon the Office of the Attorney General either personally or by certified mail, return receipt requested as required. Defendant argued that the notice of intention and the claim were mailed to the Attorney General by ordinary mail. Claimant seemed to acknowledge that he had not sent the Notice of Intention and the claim by certified mail, return receipt requested but there was some confusion as to whether copies of return receipts contained in the Court’s file, and also appended to the papers submitted in support of Defendant’s motion, evidenced proper service. In the interests of allowing the matter to proceed on the merits and in fairness to Mr. Brito, the Assistant Attorney General withdrew the motion to dismiss on this ground.
[2]. All quotations are to audio recordings or trial notes unless otherwise indicated.