JOHNSON v. THE STATE OF NEW YORK, #2007-015-554, Claim No. 110297
Following trial, claim for excessive force was dismissed.
1 1.The caption of the claim is amended sua sponte to reflect the only
properly named defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
sponte to reflect the only properly named defendant.
FRANCIS T. COLLINS
Troy Johnson, Pro Se
Honorable Andrew M. Cuomo, Attorney General
EsquireAssistant Attorney General
May 10, 2007
See also (multicaptioned
Claimant, an inmate proceeding pro se, alleges that excessive force was used
against him by correction officers at Great Meadow Correctional Facility on
January 9, 2004. He also states a claim for medical malpractice arising from
the alleged failure of the defendant to properly treat his injuries. The claim
proceeded to trial on March 6, 2007.
Claimant alleges that following his attempt to commit suicide, he was taken to
the prison infirmary where he was treated for self-inflicted wounds and then
beaten and burned on his feet by correction officers. As the result of the
incident the claimant alleges he sustained multiple contusions, burns on the
soles of his feet, loss of hearing in his left ear, unspecified internal
injuries and nosebleeds. In addition to the claim for excessive force, claimant
alleges that he was not treated appropriately for his injuries following the
The claimant testified at trial that he had "emotional issues" and attempted to
commit suicide by cutting his wrists. He was taken to the infirmary where he
was photographed and his wounds were sutured. He testified that he repeatedly
lost consciousness on the examination table and that when he regained
consciousness he was shivering from the cold. He testified that as he shivered
Correction Officer Michael directed him to stop resisting and then beat him with
a baton until he was unconscious. The claimant testified that he awoke from a
burning sensation on his feet and ankles and that on the way to the mental
health unit ("MHU") Correction Officer McClure burned his ankle with a cigarette
lighter. Claimant testified that after he had received 65 sutures in his arms,
12 sutures in his head, and a shot of Ativan, he was beaten again in the MHU.
He testified that on January 11, 2004, two days after the incident, he notified
Physician's Assistant Nesmith ("PA Nesmith") that he was urinating blood. On
January 23, 2004 PA Nesmith informed him that there was no blood in his urine
and on February 25, 2004, according to the claimant, blood tests showed that
there was a large amount of blood in his urine which was treated with
On cross-examination the claimant testified that he "had no recollection" of
being the aggressor, that he was following direct orders, and that he was
already weak from the loss of blood at the time he was assaulted. Claimant
rested his case at which time the defendant moved to dismiss the cause of action
for medical malpractice as unsupported by expert proof. Decision on the motion
Defendant's first witness was Sergeant Griffen. Sergeant Griffen testified
that he was advised that the claimant had attempted suicide and went to the
claimant's cell with Sergeant Michael, his supervisor at the time, where he
found the claimant bleeding from both forearms. He and Sergeant Michael
escorted the claimant to the infirmary, which took only three to four minutes.
During the escort, the claimant was cooperative. Sergeant Griffen testified
that upon their arrival at the infirmary, PA Nesmith sutured one arm and during
the course of suturing the other arm the claimant jumped from the bed in an
aggressive manner and began to punch him. Sergeant Griffen testified that he
drew his baton in self defense and used it to strike the claimant on his arms,
knees and shins, breaking his baton in the process. The claimant then walked
toward PA Nesmith at which time Sergeant Griffen grabbed the claimant from
behind, brought him to the floor and applied leg and arm restraints with the
assistance of other correction officers.
A report of the incident prepared by Sergeant Griffen on the date it occurred
was received in evidence as part of Exhibit 3. The report indicates that the
claimant became "highly agitated" as PA Nesmith was applying stitches and began
flailing his arms and legs. Sergeant Griffen's report states the following with
regard to the events which then transpired:
I ordered inmate Johnson to stop inmate continued. At that point he jumped from
the bed at me continuing to flail his arms while his fists were clinched in an
effort to hit me. Using my left hand I pushed inmate Johnson in the upper chest
back towards the bed. Again inmate Johnson got up from the bed swinging his
clenched fist striking me in the head and upper chest. At that point I drew my
baton in defense of the inmate swing [sic] his fist at me. He was still able to
hit me. At that point I began striking inmate Johnson in both of his forearms
in a [sic] attempt to stop him from striking me. This had no effect. At that
point I began striking inmate Johnson about the lower leg areas. Inmate Johnson
continued to violently strike me in the upper chest and head area with his fist.
At point [sic] I began striking inmate Johnson in the upper chest and arm
areas. Inmate Johnson then turned towards PA Nesmith at which time I grabbed
inmate Johnson's upper chest area to include his arms, forcing him to the floor.
Other officers arrived and took control of the upper body and [I] took control
of the inmates [sic] lower leg area using both of my hands. At which time I
applied leg restraints. Inmate Johnson continued to violently struggle during
the entire incident up to and including when the restraints were applied. There
were numerous times we bounced off the walls, floor, and table.
On cross-examination, Sergeant Griffen testified that he had no problems with
the claimant prior to this incident, that he does not recall the claimant
"passing out" and that it is permissible to use a baton and fists in
self-defense. He also testified that he did not burn the claimant's feet or
ankles nor did he observe anyone using a baton to twist the restraints which had
been used to secure the claimant.
The next witness to testify was Sergeant Michael. Sergeant Michael testified
that he accompanied Sergeant Griffen to the claimant's cell pursuant to a policy
requiring the presence of a supervisor. He and Sergeant Griffen escorted the
claimant to the infirmary where the claimant became irate and "lunged" at
Sergeant Griffen striking him with his fists in the chest and head. He
testified that Sergeant Griffen defended himself with his hands and baton and
the inmate was eventually restrained with handcuffs and leg restraints.
Sergeant Michael observed the use of force by Sergeant Griffen and recommended
him for a commendation as the result of his "superb professionalism". Sergeant
Michael testified that he did not burn the claimant's feet or strike him with a
baton. On cross-examination Sergeant Michael testified that he did not have any
prior problem with the claimant and confirmed that the use of a baton is
permitted if necessary in self-defense. He had no recollection of personally
using force against the claimant and could not recall whether a retention strap
was used to restrain him.
PA Nesmith was the next witness called and testified that he had only a vague
recollection of the incident. He reviewed the medical records which were
received in evidence as Exhibit 1 and testified that he administered a local
anaesthetic to the claimant's forearms and began suturing
. He testified that the claimant was
cooperative upon his arrival at the infirmary but that while he was suturing his
arms the claimant rose up and became loud and uncontrollable. He testified that
the correction officers intervened and restrained the claimant with the use of
force. After the incident the claimant required twelve stitches in his forehead
in addition to the sixty-five stitches in his arms. PA Nesmith testified based
upon his review of the claimant's medical records that on January 23, 2004 the
claimant complained of blood in his urine. On that date he used a "dip stick"
to test the urine for blood, which was negative. PA Nesmith testified that the
medical records reflect that on February 25, 2004 a small quantity of blood was
detected in the claimant's urine and he was given an antibiotic and Tylenol for
pain. He testified that on the date of the incident he did not observe anyone
burn the claimant's feet.
On cross-examination PA Nesmith testified that he does not recall seeing the
claimant prior to the incident. He testified that he was called into the
infirmary and arrived there at about 4:30 or 4:45 p.m. PA Nesmith again
testified that a local anaesthetic was used on both of the claimant's forearms
before the sutures were applied and that the claimant jumped from the
examination table and began striking out in every direction. At 5:40 p.m.
claimant was given an intramuscular shot of Ativan. He testified that he does
not recall Sergeant Griffen striking the claimant and does not recall anyone
burning the claimant's feet. PA Nesmith reviewed the medical records (Exhibit
1) and testified that a record dated January 15, 2004 makes mention of sores on
the claimant's feet. PA Nesmith testified that according to these records, on
February 16, 2004 he saw the claimant in his cell regarding complaints of
numbness in his ankles and knee. PA Nesmith noted in the records that the
claimant was "malingering". The records, according to PA Nesmith, reflect no
blood in the claimant's urine as of January 23, 2004, although a small amount of
blood was detected on February 25, 2004.
Review of the medical records received in evidence as Exhibit 1 reflect that
the claimant was brought to the infirmary on January 9, 2004 for deep
lacerations on both arms which required 65 sutures to close. The medical
record for this date indicates that the claimant became "belligerent" and that
correction officers had to restrain him with the use of force. The record for
the date of the incident then documents a one and one-half inch laceration to
the claimant's forehead which required 12 sutures to close and the fact that a
shot of Ativan was administered at 5:40 p.m. The records thereafter note that
on January 14, 2004 two sutured lacerations were red and inflamed and antibiotic
ointment was applied. On January 15, 2004 palpitations and pain under the
claimant's left breast are noted. Claimant was given an EKG which was
apparently normal. It is also noted in the record for January 15th that the
claimant had complaints of "festering" sores on his feet, which the claimant
noticed on Saturday (January 10, 2004). The record notes that the claimant's
right foot was swollen and there was a quarter-size sore on the bottom of the
claimant's right foot at the base of the great toe. Also noted were sores at
the top of the claimant's right foot instep area and another quarter-size wound
on the bottom of the claimant's left foot, and on the left great toe. On
January 16, 2004 and again on January 19, 2004 the suture sites were examined
and noted to be healing well. The sutures were scheduled to be removed on
January 23, 2004. On January 20, 2004 claimant's complaints of blood in his
urine and numbness in his right hand are noted. On January 23, 2004 the
stitches in the claimant's forehead were removed. The stitches in the
claimant's forearms were gone, apparently having been previously removed by the
claimant. On that same date the records reflect that a urine dip was conducted
and that a negative result was shown. Complaints of decreased hearing, decreased
balance and numbness in his right thumb are noted as well. Claimant's feet were
checked. On February 13, 2004 there is noted a complaint of pain in the
claimant's right knee and hand. On February 16, 2004 PA Nesmith saw the
claimant with regard to these complaints and noted his impression that the
claimant was "malingering". On February 18, 2004 and February 27, 2004
subjective complaints of decreased hearing in the claimant's left ear are noted.
On February 25, 2004 claimant's urine tested positive for the presence of blood
and the claimant was prescribed Cipro. The remainder of the records were
unrelated to the injuries allegedly sustained in this incident.
Review of the records received in evidence as Exhibit 3 consist of reports
dated January 9, 2004 from Sergeant Griffen, as recited above, Sergeant Rozell,
Correction Officer McClure, Correction Officer McNally, Sergeant Kirkley,
Correction Officer Clark, Correction Officer Keough, Correction Officer Gille,
Correction Officer Vladyka, Correction Officer Carlton and Sergeant Michael.
Correction Officer Rozell's report indicates that he arrived in the clinic to
assist Correction Officer Griffen in the use of force and assisted in
restraining the claimant during which time the claimant "continued to violently
struggle in an attempt to hit me".
Correction Officer McClure's report indicates that he responded to an incident
in the hospital involving the claimant and secured the claimant's legs with his
hands and took control of the leg restraints which were already in use at the
time of his arrival. Claimant was moved to another examination room because of
the blood contamination in the room and was placed on the table where he
continued "thrashing around not compling [sic] with orders given". In a
separate report dated April 29, 2004 Correction Officer McClure denied burning
the claimant's feet.
The report from Correction Officer McNally reflects that he arrived in response
to an assault on Officer Griffen and assisted in restraining the claimant on the
floor during which time the claimant continued to "violently struggle".
The report from Sergeant Kirkley indicates that he "took control" with some
officers and the claimant was removed to another examination room because of the
blood contamination in the room. The claimant was placed on a table and given a
shot of Ativan. The report notes that the claimant refused to comply and was
held down by Officers Clark, Gille and McClure with Correction Officer Carlton
standing by. Sergeant Kirkley applied a retention strap and the claimant was
brought to his feet and guided to the door.
The report from Correction Officer Clark indicates that the claimant was
restrained on the floor upon his arrival. This report notes that the claimant
was removed to another examination room and restrained.
A report from Correction Officer Keough indicates that he filmed the escort
from the hospital to MHU
The report prepared by Correction Officer Gille indicates that the claimant was
already restrained upon his arrival in the examination room and that he assisted
in moving the inmate to another examination room and then to a cell in the MHU
where he continued refusing orders and handcuffs were reapplied. The report from
Correction Officer Vladyka indicates that he assisted in removing the claimant's
leg restraints after he was moved to another examination room and the handcuff
retention strap was applied by Sergeant Kirkley.
The report from Correction Officer Carlton reflects that the claimant was
already restrained upon his arrival in the hospital and that he assisted in the
transport of the claimant to MHU.
The report from Correction Officer Michael is consistent with his trial
testimony and the testimony of Sergeant Griffen and reflects that the claimant
became "highly enraged" during his treatment and began screaming and flailing
his arms. The report indicates that Correction Officer Griffen directed him to
stop and the claimant jumped off the table and "lunged" at Correction Officer
The Claim For Excessive Force
It is well settled that the State is not immune from liability for assault and
battery which results when an officer uses more force than is necessary to
perform his or her duty (Arteaga v State of New York, 72 NY2d 212 ;
Jones v State of New York, 33 NY2d 275 ; Stein v State of New
York, 53 AD2d 988 ). That being said, force is permitted in the
[N]o officer or other employee of the department shall inflict any blows
whatever upon any inmate, unless in self defense, or to suppress a revolt or
insurrection. When any inmate, or group of inmates, shall offer violence to any
person, or do or attempt to do any injury to property, or attempt to escape, 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, to secure the persons of the offenders and to prevent any such
attempt or escape (Correction Law § 137).
As set forth in 7 NYCRR § 251-1.2[b] "[w]here it is necessary to use
physical force, only such degree of force as is reasonably required shall be
used". Assessment of the degree of force necessary requires consideration of
the particular circumstances confronting the officers when the force was applied
(Koeiman v City of New York, 36 AD3d 451 ; Lewis v State of New
York, 223 AD2d 800 ; Hinton v City of New York, 13 AD2d 475
). In making this determination, the credibility of the witnesses is
often the critical factor (Davis v State of New York, 203 AD2d 234
; Vogler v State of New York, 2002 WL 32068269, 2002 NY Slip Op.
Here, the Court is confronted with two vastly divergent versions of the events
- claimant's version that he was beaten and burned while restrained in the prone
position and the versions of two corrections officers and the Physician's
Assistant that the claimant jumped from the examination table and lunged at
Sergeant Griffen with clenched fists. Both Sergeant Griffen and Sergeant
Michael testified that the claimant was undeterred by the initial blows to his
forearms and continued his efforts to strike Sergeant Griffen. Only when the
claimant's attention was turned to PA Nesmith were the correction officers able
to bring the claimant to the floor and restrain him. Moreover, all of the
reports from the correction officers who arrived at the scene confirm the fact
that the claimant was resisting their efforts to control him. The Court notes
that the medical records reflect sores at the bottom of the claimant's feet;
however, no medical evidence was presented indicating that these sores were in
fact burns or otherwise relating these sores to the events which transpired that
day. The evidence in this case leads the court to the conclusion that the
degree of force used was necessary and reasonably required to control the
claimant and secure the safety of those in the room. Claimant was admittedly
suffering from "emotional issues" on the date the incident occurred and his
version of the incident is contradicted by each and every correction officer
involved. The Court credits the testimony of the correction officers present
and concludes that the force used to control the claimant was necessary under
the circumstances. Accordingly, the claimant has failed to prove by a
preponderance of the credible evidence his claim that excessive force was
The Claim For Medical Malpractice
In order to succeed on a medical malpractice claim, the claimant was required
to demonstrate that a deviation from the accepted standard of care proximately
caused injury (Auger v State of New York, 263 AD2d 929 ). Expert
testimony was necessary to establish the applicable standard of care and a
deviation therefrom (McDonald v State of New York, 13 AD3d 1199 ).
Having presented no such proof, the claimant's cause of action for medical
malpractice must be dismissed. Based on the foregoing, the claim is dismissed.
Any motions on which the Court may have reserved decision are denied. Let
judgment be entered accordingly.
May 10, 2007
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
. Claimant denies that PA Nesmith used an
anaesthetic before suturing his arms.
. The video was not produced at trial.