New York State Court of Claims

New York State Court of Claims

McWILLIAMS v. THE STATE OF NEW YORK, #2007-013-512, Claim No. 106756


Claim alleging assault and battery by six correction officers is dismissed, as the degree of force used was reasonably required to enforce compliance with a lawful direction.

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:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 23, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein was filed on October 7, 2002[1] and alleges assault and battery upon the Claimant by six named correction officers on October 13, 2001 at the Albion Correctional Facility (Albion). She allegedly sustained, inter alia, scrapes and abrasions to her head and face as well as a dislocation of the elbow of her right arm. The trial of this claim was conducted by videoconferencing technology, with Claimant appearing pro se from Bedford Hills Correctional Facility, and the State of New York, represented by Assistant Attorney General Thomas G. Ramsay appearing from Albion. After the conclusion of the trial, the parties submitted post-trial closing statements, from Claimant on April 18, 2007, and from Defendant on April 19, 2007.

Claimant described the incident in question as occurring on October 13, 2001 at about 8:35 p.m.[2] as she was going through the “sally port” to get her medication. She was told by a correction officer that she would have to go back. She questioned the directive, since there were other people going through to get medication, and she believed that she was being singled out. She was seeking to get her nighttime dose of psychotropic medication which she testified that she needs to take for the rest of her life. She refused to go back, went through the sally port and continued to walk up the hill. Correction staff were alerted and she ran, not on the paved walkway but through the trees and grass, and when she got toward the top, she saw officers coming and she threw a half a cup of water that she had at Correction Officer Cherry. She saw three correction officers coming toward her, so she continued to run, not toward the medication line, but toward the church, where she fell and curled up in a fetal position so she “would not be beaten that bad.”

She contends that while she was lying on the ground she was cursed at, kicked in the ribs and punched in her face by various correction personnel. Her face was scraped in the gravel. She was restrained, handcuffed and shackled with her arms behind her back. She was then

“dropped” into a fire and safety truck, and felt pain in her shoulder. She was then brought to the RMU, the medical department at Albion. Her wounds were treated with alcohol, and she was given an injection at the Albion infirmary, after which she had no conscious recollection of her trip in an ambulance, but reports that she first saw a doctor later that night at the Erie County Medical Center (ECMC). Her arm was placed in a cast, but she similarly had no conscious recollection of that medical procedure. A series of photographs of Claimant showing, inter alia, her cast and some bruising were admitted into evidence as Exhibit 1.

Claimant was placed in a satellite unit for two days and was then transferred to Bedford Hills Correctional Facility, at which she resided at the time of trial. Her medical care from ECMC and Albion was continued at Bedford Hills. She testified that at the time of trial she still had pain and discomfort in her right knee from what she described as a torn meniscus and for which she was given a knee brace that affects her when she plays sports or walks a long distance. She testified that she cannot straighten her arm, that she suffers from short-term memory loss due to being dragged on the ground and that, in contrast to the period prior to this incident, she is fearful when she sees groups of correction officers.

On cross-examination she admitted that she had disobeyed a direct order from a correction officer to return to her unit, that she threw a cup of liquid at Correction Officer Cherry and that the altercation/assault took place after these events. She contends that the assault by the correction officers was far beyond that which was needed. While not so articulated, these allegations may be characterized as the use of excessive force.

Claimant called Michelle Petrino in support of her claim. Ms. Petrino, Associate Director of Operations for the Central New York Psychiatric Center, has known Claimant since 1987, and, episodically, has been her primary therapist. She has met with Claimant at least once a month while she has been housed at Bedford Hills and noted Claimant’s diagnosis of manic depression or bipolar disorder since the age of 15. Claimant is treated with anti-psychotic, mood stabilizing medications, specifically Tegretol and Thorazine, with Benadryl to help with some side effects.

Ms. Petrino, noting some of the symptoms, and behaviors of Claimant’s condition, also testified to a rather unique symptomatology, specifically that Claimant exhibited a pattern of episodes of manic mania in the months of October, albeit not every October. She has a history of being more manic in some Octobers. According to Ms. Petrino’s review of her medical records between October and December 2001 (Exhibit 2), it appears that she experienced a manic episode while at Albion around the incident in question in October 2001, as well as a second episode of mania at Bedford Hills in November 2001.

Correction Officer (CO) Michael Cherry testified for the Defendant and described his responsibilities at Albion for walkway coverage and to monitor movement at the sally port on the evening in question. He testified that inmates requiring evening medications were required to move on the walkway between 8:30 and 8:40 p.m. If an inmate missed that 10-minute movement period, she had to go back to her dorm and have her dorm officer contact the medical office to advise that the inmate had missed getting her medications and she would then be individually cleared to move through the sally port to get the medications. He testified that no inmate who required medications would be deprived of the same merely because she had missed that 8:30 to 8:40 p.m. authorized group movement.

CO Cherry related that on October 13, 2001, Claimant attempted to go through the sally port at 8:45 p.m., five minutes after that movement had ended (see n. 2, supra). Another officer directed her to return to her dorm and gave her a direct order to do so. She did not comply and ran through the sally port and up the hill. CO Cherry ordered her to stop, and she again did not comply, so he pursued her up the hill near the chapel. Just when he was about to grab her, she turned and threw about one-half cup of an unknown liquid in his face. He described the liquid as not clear, rather that it was colored and that it had some type of gritty substance in it. He stopped to clear out his eyes, nose and throat.

When he completed that task, he saw Sgt. Baugher attempting to restrain Claimant on the ground, and went over to assist him by taking control of her left arm. She continued to thrash on the ground, screaming and trying to bite the officers. Sgt. Schroder also arrived and helped to restrain Claimant with handcuffs. CO Cherry denies hearing any cursing or other threats from officers and denied kicking her, hearing only the officers’ directions for her to comply with their orders to cease and desist. He summarized her behavior on the ground as screaming and thrashing, and that she attempted to spit at and bite the officers attempting to restrain her. He believed that she posed a threat to him because she was disobeying orders and running away, and that constituted a threat to facility security.

Sgt. Gary Baugher testified that he was the area supervisor at the sally port at the time of the incident in question. He described the sally port as an area of double gates that separated the inmate population between the older and newer portions of Albion which housed some 1,100 inmates. He explained the time constraint on inmate movement because of the size of that population, and the necessity to control and limit such movements to maintain order. He noted that the 10-minute period provided Claimant with ample time to go from her dorm through the sally port and get to the medical unit for the medication run. Once there, inmates were permitted to remain at the medical unit as long as necessary until all medications were dispensed. The 10-minute period only covered the period of movement from their units through the sally port and up to the medical unit, a period of time reiterated by this supervisory officer as being more than adequate. It was standard procedure for any inmate who missed the medication run to be ordered back to her dorm, where the dorm officer would call ahead to allow the inmate to be released from her dorm to then go get her medications. He affirmed that no inmate who required medications would be deprived of them because she had missed that 8:30 to 8:40 p.m. movement.

He became aware of Claimant’s run up the hill from the sally port to the area where the liquid was thrown in CO Cherry’s face, and then up to the chapel, all the while ignoring his orders for her to stop. When he reached her, she turned and swung her right fist, striking him in the right cheek area. He tackled her forcibly, with her landing on her stomach and he landed on her back. She continued to fight, trying to spit and bite, and then Sgt. Schroder arrived and took her legs, followed by CO Cherry who controlled her arm. The officers where then able to restrain her with cuffs, and she was placed in a vehicle driven by the fire and safety officer. It was into this vehicle that Claimant alleges she was “dropped” causing her injury. As explained by Sgt. Baugher, the van is three or four feet off the ground, so one would have to be elevated well above that height to be able to drop her as alleged. He described the movement as a transfer, sliding her into the van, and denied having dropped her. Since he had utilized force against this inmate, he advised the Court that under Department of Correctional Services rules, once the immediate situation was resolved, i.e., the inmate was subdued, he was not permitted to further escort the same inmate.

On redirect, he clarified that when Claimant got to the chapel area, there was really no place for her to go, and she was now on the 8-foot or so wide asphalt walkway, where she was tackled. With her arms and legs thrashing and her general resistance, and with the three officers holding her face down while attempting to restrain her, her face was scraping along the macadam surface causing the bruising evident on the photographs (Exhibit 1).

CO Frank Tardibone was at the Albion infirmary when Claimant was taken there. She was lying on the table, and he described her as being pretty agitated. He waited with her until the ambulance arrived, and may have had to use some pressure to hold her down on the table and keep her from moving around the room. He testified that he observed no broken bones or deformity at her elbow.

I am persuaded by the evidence before me that Claimant endured some sort of psychotic event triggered by her bipolar condition. This manic episode, indeed as described by Ms. Petrino as one to which Claimant was prone during the month of October, was seemingly one out of Claimant’s control. It is clear and undisputed that she defied and disobeyed numerous direct orders to stop and return to her dorm, to stop running, to stop resisting, etc. She provocatively threw a liquid, which she described as water, but was otherwise described as colored with a gritty substance by the officer who was struck in the face. Frankly, it is hard for me to understand how Claimant was able to retain a cup with any liquid as she was running up a hill away from correction officers for a distance of some 100 to 150 yards before she threw the liquid. Regardless, and there is no definitive evidence of what the liquid was, she attacked an officer with the liquid, defied the orders of correction officers and kept running.

I find that the officers were justified in their efforts to take control of Claimant through the use of force. It is hard to determine whether there was any punching and kicking as Claimant has alleged, but the officers’ accounts of the force utilized does not, on its face and without more, seem excessive. I infer that Claimant was so agitated and in the midst of her manic episode that she was unaware of the degree of her physical resistance, that she attempted to punch or strike an officer in the face and thus was unaware of the degree of force necessary to subdue her. If crude, harsh and pejorative words were expressed by officers, they form no part of the elements or allegations of assault and battery in the claim, and it is unnecessary for me to decide whether they were spoken. No cause of action for mental abuse is sustainable on this record. Claimant was unable to meet her burden of proof to show that she was “picked up by all four security officers and brutally dropped from high into the fire and safety truck.”

I agree with the analysis by Judge Stephen J. Mignano in Green v State of New York (Ct Cl, UID #2004-029-367, Claim No. 105748, March 25, 2004),[3] describing such degree of force as is reasonably required (7 NYCRR 251-1.2[b]), among other things, “to enforce compliance with a lawful direction” (7 NYCRR 251-1.2[d]). Here, notwithstanding Claimant’s description of force used upon her, and after weighing the testimony of the correction officers, she has failed to establish by a preponderance of the credible evidence that the use of force here was excessive or sufficient to support a finding of assault and battery.

Accordingly, the claim must be and hereby is dismissed. All motions not heretofore ruled upon are now denied.


August 23, 2007
Rochester, New York

Judge of the Court of Claims

  1. [1]On the record at trial, the Defendant advised the Court that it had withdrawn all jurisdictional defenses relating to timeliness.
  2. [2]Other testimony and the statements included in the Unusual Incident Report (Exhibit A) note the time as 8:45 p.m., a distinction with a difference.
  3. Decisions and selected orders of the New York State Court of Claims are available on the Internet at