New York State Court of Claims

New York State Court of Claims

VALLE v. THE STATE OF NEW YORK, #2006-037-501, Claim No. 107849


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:
David M. Giglio, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Gregory P. Miller, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 2, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for personal injuries asserts that Claimant, an inmate under the care and custody of the New York State Department of Correctional Services (DOCS), was assaulted by several Correction Officers (COs) at Wende Correctional Facility (Wende) on May 29, 2002. The trial was conducted on February 15, 2006, where Claimant testified on his own behalf and Defendant called four witnesses: Francis Dougherty; Kevin Horvatits; Michael Marinaccio and Randall Smith, all employed by DOCS. As set forth below, Claimant alleges that COs at Wende assaulted him without provocation, while the COs maintain that reasonable force was used to restrain him following Claimant’s assault of CO Francis Dougherty (CO Dougherty).
Claimant is presently an inmate at Southport Correctional Facility and has been in the custody of DOCS for over twenty-three years where he has a history of assaultive behavior. He was born in 1955, and was forty-six years old at the time of the incident. He is five feet eight inches tall and weighed approximately 167 pounds in May of 2002. Photographs of Claimant taken by COs at the time of the incident confirm his testimony that he has a muscular upper body from lifting weights and is in good physical condition.
The evidence at trial established that in May, 2002 Mr. Valle was housed at Wende in B Block, 10 Company, 15 Cell and was on keeplock status, confined to his cell and allowed one hour of recreation per day. On May 29, 2002, at approximately 9:58 A.M., Claimant was let out of his cell for recreation and he proceeded to the gate at the end of B-10 Company which was manned by COs Dougherty and Horvatits. It is at this point that the witnesses’ testimony regarding events begins to diverge.
Claimant testified that as he passed through the gate CO Dougherty grabbed him by the shoulder and threw him to the floor where an unnamed CO struck him with a baton, and as many as eighteen or nineteen other COs punched and kicked him repeatedly. After the scuffle, he was handcuffed and allegedly thrown down two flights of stairs striking his head on a table as he was being escorted to the prison infirmary. As a result, he claims to have sustained certain physical injuries depicted in photographs taken by DOCS personnel following the incident (see Defendant’s exhibits N and O). No other witnesses testified and Claimant did not submit any medical evidence to support his claim for personal injury.
CO Dougherty, employed at Wende for over twenty-one years, testified that in May, 2002, he was assigned to B Block, 10 Company where Claimant was housed. He recruited Claimant to be a porter for the company laundry detail which led to their first encounter on May 7, 2002, when Claimant refused his direct order to perform laundry duties and used profane and abusive language. CO Dougherty filed an Inmate Misbehavior Report (IMR) (Defendant’s Exhibit II) which resulted in Claimant being placed on keeplock status for thirty days. On May 28, 2002, Claimant was released from his cell for recreation and as he walked through the gate at the end of B-10 Company he verbally threatened CO Dougherty who then filed another IMR (Defendant’s Exhibit HH). On May 29, 2002, at approximately 9:58 A.M., Claimant was again released from his cell for recreation and as he walked through the gate he turned and struck CO Dougherty on the face with his fist. In response to this attack by Claimant, CO Dougherty grabbed Claimant and wrestled him to the floor striking a nearby desk. Claimant continued to struggle and refused orders to stop resisting, requiring fellow officers to use physical force to restrain him. CO Dougherty sustained physical injuries in the altercation as shown in Defendant’s Exhibit FF.
Following the incident, CO Dougherty filed an IMR (Defendant’s Exhibit JJ) and a Use of Force Report (Defendant’s Exhibit NN) which corroborate the officer’s testimony.
Defendant also called CO Kevin Horvatits to testify. CO Horvatits, employed for eighteen years at Wende, was present at the time of the incident and assisted CO Dougherty in subduing Claimant. He observed Claimant strike CO Dougherty and immediately activated his personal alarm which alerted other COs at the facility that a level two incident was in progress. He then used his baton on Claimant in an unsuccessful attempt to break his hold on CO Dougherty. When Claimant and CO Dougherty fell to the floor, CO Horvatits went down with them to assist in subduing Claimant who continued to resist. However, it was not until other responding officers arrived at the scene that Claimant was finally restrained and placed in handcuffs. CO Horvatits otherwise testified consistently with CO Dougherty’s account of the incident and his Use of Force Report is in evidence as Defendant’s Exhibit OO.
Sergeant Michael Marinaccio (Sgt. Marinaccio), a former CO and twenty-year employee of Wende, testified that, at the time of the incident, Claimant was unknown to him and that he responded to the level two alarm. When he arrived at the scene, three or four COs were restraining the still struggling Claimant on the floor and he placed him in handcuffs. Sgt. Marinaccio and CO Randall Smith (CO Smith) were directed to escort Claimant to the facility hospital. Sgt. Marinaccio stated that Claimant did not fall and was not pushed down the two flights of stairs leading to the hospital and that he was escorted there without incident.
Finally, CO Smith, a twenty-two year employee of Wende, testified that he, too, responded to the level two alarm and upon his arrival at the scene found six or seven COs attending to Claimant who continued to struggle with them. CO Smith was directed to assist Sgt. Marinaccio with the transport of Claimant to the facility hospital which he confirmed was accomplished without further incident.
The written reports filed by Sgt. Marinaccio and CO Smith were admitted into evidence as Defendant’s Exhibits SS and MM, respectively, and the testimony of both officers was consistent with their reports.
Correction officers are charged with the responsibility of maintaining order and discipline in correctional facilities under stressful circumstances (Arteaga v State of New York, 72 NY2d 212 [1988]). It is well settled that correction officers may use physical force to maintain order and discipline in correctional facilities, but “only such degree of force as is reasonably required shall be used” (7 NYCRR 251-1.2[b]). The limited circumstances in which use of force is permitted 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 correction officers, the credibility of the witnesses is often the dispositive factor (Davis v State of New York, 203 AD2d 234 [1994]). 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 (see e.g. Wester v State of New York, 247 AD2d 468 [1998]; Lewis v State of New York, 223 AD2d 800 [1996]; Quillen v State of New York, 191 AD2d 31 [1993]); Arnold v State of New York, 108 AD2d 1021 [1985], app dismissed 65 NY2d 723 [1985]).
Based upon the preponderance of the credible evidence presented at trial, the Court finds that the use of force by the COs was initiated in legitimate defense of CO Dougherty and that the force used against Claimant in this incident was not excessive in relation to the purpose of restraining him. The Court does not find Claimant’s allegations that the attack was unprovoked and initiated by CO Dougherty to be credible.
In summary, the Court finds that the force exerted by the COs in this matter was reasonably necessary under the circumstances and was neither unprovoked nor excessive and, as a result, no liability attaches to the Defendant arising out of this incident (see Passino v State of New York, 260 AD2d 915 [1999], lv denied 93 NY2d 814 [1999]).
Accordingly, Claim Number 107849 is dismissed in its entirety.

March 2, 2006
Buffalo, New York

Judge of the Court of Claims