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
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.
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
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
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].
cross-examination, Claimant conceded that he was served with a misbehavior
report charging him with assaulting Correction Officer Lopez on July 21, 2002.
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
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.
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.
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]
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.
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.
.]. 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.”
.]. Officer Navarro and Sergeant Gildersleeve then escorted
Claimant to the facility medical clinic. [ibid.
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
]. 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.
]. 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; . .
.” 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
The use of force report filed by the officers involved
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
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].
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.
number 107714 is hereby dismissed in its entirety.
Let judgment be entered