New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2006-032-500, Claim No. 103614


Synopsis



Case Information

UID:
2006-032-500
Claimant(s):
BERNARD THOMAS
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103614
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Bernard Thomas, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 22, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
In January 2001, claimant brought this action alleging that he was assaulted by correction officers on separate occasions in September 2000, October 2000 and November 2000 at Upstate Correctional Facility (Upstate). As a result of these assaults, he allegedly sustained injuries. Claimant further alleges medical malpractice, contending that his injuries were not adequately treated. The Court previously dismissed the allegations concerning the September 2000 incident. The circumstances surrounding the remaining incidents are as follows:

At a trial held on January 23, 2006, claimant testified, albeit very vaguely and disjointly,[1]
that on October 18, 2000, he was assaulted by several correction officers for repeatedly pushing the nurse call button while he was in the infirmary at Upstate. He states in his claim that he did not receive medical care for the alleged injuries to his arms and feet,[2] but was transferred that night to a different facility, ultimately receiving medical treatment two days later. As a result of this incident, claimant filed an unsuccessful grievance. Next, claimant alleges that on November 3, 2000, correction officers tried to break his wrists and fingers when they handcuffed him during a cell search. Further, he alleges that he requested medical treatment and he was denied, although he acknowledged that he received x rays on December 6, 2000. The following month, claimant brought this action.
Defendant produced two credible witnesses at trial. Correction Officer Steven Salls testified that on October 18, 2000, he responded to the infirmary because claimant, who was on the mental health ward, allegedly had pulled the call button off the wall[3]
. Claimant was frisked and the room was searched but the call button was not found. Claimant then admitted that he ate it. A short while thereafter, Correction Officer Salls was notified that claimant was being disruptive and he found that claimant had broken a shower handle off the wall. Blood was observed in his cell. Claimant would not immediately exit his cell when told to do so by Correction Officer Salls. An extraction team was formed, but claimant exited the cell before they could extract him.
Defendant also produced Correction Officer John Stockwell concerning the November 3, 2000 incident. He testified that, while removing claimant from his cell for a routine cell frisk, claimant refused to place his hands in position so the handcuffs could be applied.[4]
Eventually claimant put his hands out, and as Corrections Officer Stockwell applied the cuffs, claimant violently pulled his hands back into the cell, thereby causing the Correction Officer to smash his hand and fingers on the cell door (Exhibit B). Claimant was then restrained by the wrist until a retention strap could be placed on the handcuff. Claimant maintained that he did not try to pull the Correction Officer into the cell but only flinched as the handcuffs were applied.
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 in 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 employees 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, dated November 30, 2000, Sise, J. [UID 2000-028-0012]).
Claimant must establish his case by a preponderance of the credible evidence
(Consolidated Rail Corp. v Cosgrove, 227 AD2d 689 [3rd Dept 1996]). This Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual issues (Burton v State of New York, 283 AD2d 875 [3rd Dept 2001]). Here, claimant's testimony and documentary evidence woefully failed these tests. His testimony was nearly unintelligible and his medical records and photographs fall short of proving that he was either hurt or that the Correction Officers were responsible for any alleged injury. The Court credits the testimony of the two Correction Officers who testified at trial, that in the first incident claimant inflicted minor injuries to himself by the use of a shower handle, and in the second incident, that the limited use of force was necessary to restrain claimant.
To establish a medical malpractice claim, a party "must prove, by a preponderance of the evidence, a deviation or departure from accepted medical practice and that such departure was a substantial factor in producing [claimant's] injuries" (Valentine v Lopez, 283 AD2d 739, 741 [3d Dept 2001]). Further, "expert medical opinion is required to demonstrate merit as to matters not within the ordinary experience and knowledge of laypersons" (Quigley v Jabbur, 124 AD2d 398, 399 [3d Dept 1986]). Claimant offered only his medical records (Exhibit 3) as evidence of malpractice. The Court reviewed these records and finds that they establish that claimant was not injured as a result of these incidents.
Defendant's motion to dismiss the claim, made at the conclusion of trial, is granted.
Let judgment be entered accodringly.


February 22, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims




[1]Most of the facts of the claim are obtained from the written claim as opposed to claimant's testimony which was vague and brief.
[2]Exhibit 4, the photographs of claimant are received, as well as Exhibit 3, claimant's lengthy medical and mental health records.
[3]Correction Officer Salls' view of the incident is transcribed in Exhibit C.
[4]Exhibit A is a memoranda by Correction Officer Stockwell that also presents his view of the incident.