New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-031-524, Claim No. 106733


Claimant failed to demonstrate that assault by correction officers occurred, or that he was injured during the alleged assault. 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:
November 30, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Antonio Brown (“Claimant”) filed claim number 106733 on October 2, 2002. In his claim, Mr. Brown alleges that he was assaulted by correction officers on July 24, 2002. He also alleges a cause of action relating to the medical attention he received after the alleged assault. Finally, his claim alleges a cause of action relating to an allegedly fraudulent Inmate Misbehavior Report that he received as a result of the incident. I held a trial in this matter on July 26, 2006 at Auburn Correctional Facility. At that time, I granted Defendant’s motion to dismiss the medical malpractice and fraud causes of action.
Claimant testified that the assault began while he was being transported from a court appearance in Seneca County to Five Points Correctional Facility (“Five Points”). According to Claimant, Correction Officers Levac and Bradley pulled over the van in which he was riding and assaulted him. Claimant believed the assault related to words Claimant had with the officers earlier in the day when the officers allegedly refused to provide him with an appropriate lunch. Claimant alleges that these officers punched and smacked him repeatedly. Claimant further testified that, upon arrival at Five Points, he was again physically mistreated by being dragged to his cell.
Claimant called Correction Officer Tad Levac to testify. Officer Levac testified that the officers did, in fact, pull the van over while transporting Claimant. However, according to Officer Levac, he was driving the van at the time and pulled the van over because Claimant had threatened to spit at Officer Fitzsimmons. Officer Levac stated that no force was used initially, and he just told Claimant to calm down. Claimant, however, turned as if to spit at Officer Fitzsimmons. In an attempt to prevent this, Officer Fitzsimmons grabbed Claimant by the collar. At this point Officer Levac entered the back of the van to assist Officer Fitzsimmons. As he did so, Claimant lunged at him and attempted to bite him. Officer Levac pinned Claimant to the seat with his left arm and waited for Claimant to calm down. Once Claimant calmed down and promised that he would not again attempt to spit, Officer Levac returned to the front of the van and proceeded to Five Points.
Officer Levac also testified that, upon arrival at Five Points, Claimant was uncooperative and refused to exit the van. According to Officer Levac, they attempted to assist Claimant out of the van and he intentionally went completely limp, forcing them to carry him out of the van. Officer Levac was adamant that the only force used on Claimant was when he pinned Claimant to his seat when Claimant tried to bite him.
Claimant then called Correction Officer Randy Kroll. Officer Kroll was present at Five Points and witnessed Claimant being returned to his cell after entering the facility. Officer Kroll and two other officers assisted Claimant from what is known as the A1 gallery to his cell. Officer Kroll did recall that Claimant made complaints of pain in his neck, but saw no injuries. He took Claimant to his cell and Claimant lay down on his bed. Officer Kroll did not think that Claimant had suffered any injuries.
Claimant then called Correction Officer Steven Penn. Officer Penn had assisted in removing Claimant from the van upon its arrival at Five Points. Officer Penn testified consistently with Officer Levac in that he stated that Claimant was uncooperative, refused to exit the van under his own power and went limp when they tried to assist him. He stated that, although Claimant kept complaining that his neck hurt, he did not believe Claimant. He stated that he had seen Claimant swing his head around on his own, and also that he observed no visible signs of injury. Officer Penn’s testimony was consistent with the report he prepared concerning the incident (Ex. 3).
Defendant called Correction Officer Joseph Bradley to testify. Officer Bradley stated that he was in the front passenger seat of the van during Claimant’s transport. He stated that the van was pulled over because Claimant was yelling, rocking the van and appeared to be trying to spit on Officer Fitzsimmons. He witnessed Claimant attempt to bite Officer Levac as well as Officer Levac’s restraint of Claimant with a body hold. He stated that at no time was the Claimant struck either with a fist or an open hand. He also assisted in taking Claimant from the van to his cell. He stated that Claimant kept going limp and dragging his feet. This was despite Officer Bradley witnessing Claimant moving his head and legs freely while kicking the seat of the van just before getting out. He also stated that Claimant had no apparent physical injuries. Officer Bradley’s testimony also was consistent with the report he prepared concerning the incident (Ex. 4).
Defendant then called Sergeant Michael Mikulak to testify. Sergeant Mikulak stated that he received word that the transport had returned to the facility and met the van at the back door of the unit. He witnessed Claimant in the van, kicking and screaming. He then supervised the escort of Claimant back to his cell. He testified that at no time was Claimant struck or in any way mistreated.
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 lacks credibility. By contrast, I find the testimony of each officer to be very credible and consistent. I find that Claimant disobeyed a direct order and attempted to bite Officer Levac. The minimum force used by the officers to subdue Claimant and calm him was necessary and quite reasonable. For this reason, Claimant has failed to prove a prima facie cause of action for assault.
Accordingly, Claim No. 106733 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.

November 30, 2006
Rochester, New York

Judge of the Court of Claims