New York State Court of Claims

New York State Court of Claims

SHEILS v. THE STATE OF NEW YORK, #2007-015-556, Claim No. 110349


Synopsis


Claim for excessive force was dismissed following trial.

Case Information

UID:
2007-015-556
Claimant(s):
KEVIN SHEILS
Claimant short name:
SHEILS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110349
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Kevin Sheils, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 18, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate, alleges that he was the victim of excessive force at Great Meadow Correctional Facility on August 5, 2004[1]. The matter proceeded to trial on March 21, 2007.

Claimant alleges that on August 5, 2004 he was transferred to Great Meadow Correctional Facility for mental health treatment following a suicide attempt on August 2, 2004. He testified at trial that upon his arrival at Great Meadow Correctional Facility he was escorted to the mental health unit ("MHU") and then taken to the observation unit ("OBS") with his hands restrained behind his back. Upon their arrival at OBS his right hand was removed from the restraints and he was instructed to place his hand on the wall. Claimant testified that Correction Officer Sears was banging a billy club on the table and that he advised the correction officers present that he was partially deaf in his left ear. As the claimant started to place his right hand on the wall, he turned his head to the left and was then taken to the floor by Correction Officers Griffen and Busse and beaten with a billy club until he lost consciousness. Claimant testified that he was beaten on the legs and that one of the correction officers stepped on his face. He was treated in the infirmary following the alleged assault where, according to the claimant, the blood was wiped off his body and photographs were taken.

On cross-examination, claimant testified that he had arrived from Upstate Correctional Facility approximately 45 minutes to an hour before the alleged incident occurred and that he was familiar with the frisk procedures utilized at the facility.

Claimant's medical records were received in evidence as Exhibit 1. A note dated August 5, 2004 reflects that the claimant was being transferred to Great Meadow Correctional Facility for a mental health assessment. A list of claimant's medications is noted as well as the fact that sutures from his chest needed to be removed on August 8, 2004. The medical records next reflect a "use of force exam" on August 5, 2004. This record indicates that the claimant was examined and found to have bruised or reddened areas on his forehead, left eyebrow, nose, right side of his lip, both elbows, and that he complained of pain in his shoulders and elbows. The note reflects that claimant's range of motion in both upper extremities was "ok". The medical record for August 6, 2004 indicates that the claimant complained of pain in his jaw and that he was unable to open his mouth fully. The note for this date also reflects that the claimant "claims had seizure last night denies injury". An x-ray of the claimant's jaw was negative and the claimant was examined by a dentist with regard to a complaint of loose teeth. The dental examination was noted to be negative. It is also noted that the claimant experienced no trouble in speaking.

Poor quality black and white photographs of the claimant were received in evidence as claimant's Exhibit 2. The only bruised or reddened areas that can be discerned in these photographs are on the claimant's nose and right thigh.

A Use Of Force Report signed by Sergeant Busse was received in evidence as claimant's Exhibit 3. The report states the following:
Inmate Sheils was escorted to MHU OBS for admission and was given instructions by CO T. Griffin to place his hands high and flat on the wall when the hand restraints come off. Inmate Sheils was agitated and stated that he was tired of being told to put his hands in his pockets and on the wall. He was again instructed that he must put his hand high and flat on the wall when the cuff comes off. CO Griffin released the right hand from the restraints and Sheils started to place the hand on the wall but then began to turn in the direction of CO Hatch.

CO Hatch grasped Sheils right wrist with his left and right hands and CO T. Griffin took control of Sheils left hand, which still had the restraint attached to it, with his left hand, and took control of the inmates left upper arm with his right hand. Sheils continued to resist and CO's Hatch and Griffin turned Sheils away from the wall and forced him to the floor face down. Sheils continued to resist the Officer's [sic] attempt to restrain him while on the floor and continued banging his head on the floor. CO Griffin was finally able to reattach the loose hand restraint. Griffin continued to control Sheils on the floor until other staff arrived. Leg restraints were applied by CO M. Sears.

A medical report is attached as Part B of the Use Of Force Report and reflects the injuries as noted in the medical records referred to above. Part C of the Use Of Force report is a review by the Superintendent, who indicated in the report that "UOF appears justified to control inmate".

The defendant called Correction Officer Griffen to testify on its behalf at trial. Correction Officer Griffen testified that he was assigned to escort the claimant to OBS. The claimant was first escorted to the facility hospital where he was examined by a nurse. At the hospital, the claimant's restraints were removed and replaced without incident. The claimant was then taken to MHU where he was instructed to sit in a chair while he was interviewed. At the conclusion of the interview, during which he remained restrained, the claimant was ordered to stand up and he was taken to the OBS area. Upon their arrival at the OBS area, Correction Officer Griffen removed the right restraint and instructed the claimant to place his right hand on the wall. According to the testimony of Correction Officer Griffen, the claimant dropped his right arm and attempted to turn toward the other Officers present. Correction Officer Griffen testified that in failing to place his right hand on the wall, the claimant failed to follow his direct order. As a result, Correction Officer Griffen brought him to the floor with the use of body holds. Correction Officer Griffen testified that no club or baton was used during the incident. Once on the floor, he instructed the claimant to stop struggling. Correction Officer Griffen's report of the incident was received in evidence as defendant's Exhibit A. This report indicates that as the claimant was being admitted to the OBS unit the use of force became necessary. The report reflects that Correction Officer Griffen took control of the claimant's left arm, which still had the restraint attached to it, and forced him to the floor where restraints were applied to his hands and legs. On cross-examination, Correction Officer Griffen testified that prior to the incident the claimant had been cooperative and that Sergeant Busse was present at all times.

Sergeant Busse was the defendant's next witness. Sergeant Busse testified that he and Correction Officer Griffen were present to receive the claimant upon his arrival from Upstate Correctional Facility. The claimant's restraints were removed, the claimant was frisked and the restraints were replaced. Claimant was escorted to medical where the restraints were again removed and replaced at the conclusion of the medical examination. Claimant was then escorted to MHU where he was interviewed by a nurse. Sergeant Busse testified that after the interview the claimant appeared agitated. Claimant was then taken to the MHU observation area for a strip frisk prior to his admission. Sergeant Busse testified that Correction Officer Griffen removed the restraint from the claimant's right hand and instructed the claimant to place his hand on the wall. Claimant then suddenly turned to the right and Correction Officer Hatch took control of the claimant's right hand and Correction Officer Griffen took control of the claimant's left hand and brought him to the floor. Restraints were then applied and Sergeant Busse called for a video camera. Sergeant Busse testified that the claimant's failure to place his right hand on the wall was a failure to obey a direct order for which a misbehavior report was issued.

A report from Sergeant Busse was received in evidence as defendant's Exhibit B. The report indicates that when the claimant's right hand came out of the restraints he refused to place it on the wall thereby requiring the use of force to gain control of the inmate. This report indicates that body holds were used by both Correction Officers Griffen and Hatch and that the claimant continued to resist and bang his head on the floor.

A misbehavior report issued by Sergeant Busse was received in evidence as defendant's Exhibit C together with reports prepared by Correction Officers Hatch and Sergeant Kirkley. The misbehavior report contains the allegation that the claimant refused a direct order by failing to place his hand on the wall when he was instructed to do so. Claimant was charged with failing to comply with a direct order, failing to comply with frisk procedures and violent conduct. The report from Correction Officer Hatch is consistent with the testimony of Correction Officers Griffen and Busse and indicates that when the claimant failed to place his right hand high on the wall, he "firmly grasped" the claimant's right wrist at which time he began resisting. The claimant was then brought to the floor where handcuffs were reapplied and Correction Officer Sears applied leg restraints.

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 [1988]; Jones v State of New York, 33 NY2d 275 [1973]; Stein v State of New York, 53 AD2d 988 [1976]). That being said, force is permitted "[w]hen any inmate ... shall offer violence to any person . . . or resist or disobey any lawful direction..." (Correction Law § 137[5]). The applicable regulation for the use of force makes clear that "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used" (7 NYCRR § 251-1.2[b]).
A proper 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 [2007]; Lewis v State of New York, 223 AD2d 800 [1996]; Hinton v City of New York, 13 AD2d 475 [1961]). In making this determination, the credibility of the witnesses is often the critical factor (Davis v State of New York , 203 AD2d 234 [1994]; Vogler v State of New York, 2002 WL 32068269, 2002 NY Slip Op. 50604[U]).

The testimony of the claimant and Correction Officers Griffen and Busse is consistent with respect to the events which led to the claimant being restrained on the floor. Claimant admittedly turned away from the wall without placing his right hand on the wall as instructed. However, the claimant testified that Correction Officer Sears was banging a club on the table and he was trying to explain to the correction officers present that he was hard of hearing. Correction Officers Griffen and Hatch on the other hand testified that claimant refused a direct order in failing to place his right hand on the wall. Based upon the claimant's admitted familiarity with the frisk procedure, the Court credits the testimony of Correction Officers Griffen and Busse that the claimant was refusing to obey a direct order when the claimant was brought to the floor through the use of force.

There is conflicting testimony with regard to the degree of force used to restrain the claimant. While the claimant testified that he was beaten repeatedly with a billy club by Correction Officer Griffen until he lost consciousness, Correction Officer Griffen denied the use of a billy club and testified that he brought the claimant to the floor with the use of body holds. In addition, the Use of Force Report by Sergeant Busse indicates that after the claimant was brought to the floor he continued to resist the correction officers' attempts to restrain him and was banging his head on the floor (see claimant's Exhibit 3 and defendant's Exhibit B). The medical records and photographs most notably reflect a bruised nose and areas of redness which are consistent with the evidence adduced at trial that the claimant was banging his head on the floor and resisting efforts to restrain him. Although the records reflect subjective complaints of pain, there is no objective medical evidence to substantiate the claim that excessive force was used. Based on the evidence adduced at trial, the Court credits the testimony of the correction officers that claimant failed to follow a direct order, that some degree of force was necessary to control the claimant and that this was done with the use of body holds- not a billy club. The relatively minor nature of the injuries noted in the claimant's medical records supports the conclusion that excessive force was not used. Based on the foregoing, the Court finds that the claimant failed to establish his case by a preponderance of the credible evidence. Accordingly, the claim is dismissed.

Let judgment be entered accordingly.


May 18, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




  1. [1]Claimant withdrew his claim for medical malpractice at trial.