The claim herein was filed on October 7, 2002
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
Claimant described the incident in question as occurring on October 13, 2001 at
about 8:35 p.m.
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
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
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
(Ct Cl, UID #2004-029-367, Claim No. 105748, March 25,
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.