New York State Court of Claims

New York State Court of Claims

COMBO v. THE STATE OF NEW YORK, #2006-031-521, Claim No. 109760


Claimant failed to demonstrate that force used, after his fight with another inmate, was unreasonable. Claim dismissed.

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:
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Calvin Combo (“Claimant”) filed claim number 109760 on October 25, 2004. In his claim Mr. Combo alleges that on July 20, 2004, at Five Points Correctional Facility (“Five Points”), he was assaulted first by another inmate, and then by correction officers. I held a trial in this matter on July 26, 2006 at Auburn Correctional Facility.
Claimant testified that, while he was confined in the special housing unit (“SHU”) at Five Points, he was escorted to a physical therapy session. He was left to wait for his appointment with the therapist in a waiting area with general population inmates. Claimant was in full restraints and the other inmates were not. According to Claimant, one of these other inmates attacked him without warning or provocation. Claimant then alleges that he was assaulted by the correction officers who responded to break up the fight between Claimant and this other inmate.
Claimant testified that both of the fighting inmates were grabbed by officers and thrown against the wall of the waiting room. He then stated that he was taken out of the waiting room and around a corner where he was choked and beaten by the officers. Specifically, he alleges that Correction Officer Perry knocked him down and, because he was in restraints, he landed on his elbow. He testified that the officers involved wrote a fraudulent inmate misbehavior report and a fraudulent use of force report in an attempt to conceal their assault upon him. He alleges permanent injury to his right elbow and back and seeks damages in the amount of $80,000.00.
At the close of Claimant’s direct case, I granted Defendant’s motion to dimiss that portion of the claim relating to the assault by the inmate. Claimant failed to show that the assault was foreseeable in any manner. I reserved decision on Defendant’s motion relating to the excessive use of force by correction officers.
Defendant called David Mosher to testify. Mr. Mosher was a correction officer at the time of the incident but has since retired after 24 years of service. Officer Mosher stated that he and the other officers involved did use force, but that the use of force was necessary to separate and subdue the two fighting inmates. According to Officer Mosher, Claimant was on top of the other inmate when he arrived at the scene. The inmates were directed to stop fighting but refused to do so. He then grabbed Claimant and pulled him off the other inmate. He pulled Claimant out of the waiting room and into the hallway. He then placed Claimant against the wall and directed him to stop struggling. Claimant did not stop struggling, however, and both he and Officer Mosher fell to the floor. Officer Mosher was injured in the ensuing scuffle with Claimant. Officer Mosher testified that he never choked Claimant and that he used no more force than was necessary to ensure that Claimant was restrained.
Defendant then called Correction Officer Preston Perry to testify. Officer Perry was also involved in the incident and in the use of force to separate the two fighting inmates. Officer Perry witnessed the attempts to separate the inmates, as well as Claimant’s struggle with Officer Mosher. He stated that Claimant refused direct orders from Officer Mosher to stop struggling. Officer Perry’s testimony was consistent with the testimony of Officer Mosher in that the force used in the incident was only what was necessary to restrain Claimant and prevent him from hurting himself and others.
Correction officers are charged with the unenviable task of maintaining order and discipline in correctional facilities under stressful circumstances (Arteaga v State of New York, 72 NY2d 212). It is well settled that correction officers are entitled to use physical force in order
to achieve this goal, but "[o]nly such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]). The limited circumstances in which the use of force is tolerated by correction officers are set forth as follows:
[a]n employee shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape. (7 NYCRR 251-1.2 [d]).
In situations involving inmate allegations of excessive force by a correction officer, such as here, the credibility of the respective witnesses is often the dispositive factor (Davis v State of New York, 203 AD2d 234). To determine, in a given instance, whether use of force was necessary and, if so, whether the force used was excessive or unreasonable, a Court must examine the specific 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).
I find that the Claimant’s theory that the guards assaulted him in retaliation for some unspecified reason lacks credibility. By contrast, I find the testimony of both officers to be very credible and consistent. I find that Claimant disobeyed a direct order and attempted to assault Officer Mosher. The force used by the officers in separating the fighting inmates and attempting to restrain Claimant while he struggled with Officer Mosher was necessary and quite reasonable. For this reason, Claimant has failed to prove a prima facie cause of action for assault.
Accordingly, Claim No. 109760 is hereby DISMISSED.
Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

September 29, 2006
Rochester, New York

Judge of the Court of Claims