New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2007-030-020, Claim No. 108389


Claimant, an inmate proceeding pro se, failed to establish after trial that excessive force was used to restrain him on March 7, 2003. Credible testimony established claimant acted in a belligerent, aggressive manner, necessitating a level of force sufficient to restrain a reasonably perceived threat from the standpoint of each officer who testified.

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:
Third-party defendant’s attorney:

Signature date:
June 18, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Ricardo Rivera alleges in his claim that defendant’s agents at Green Haven Correctional Facility assaulted him while he was in their custody on or about March 7, 2003. Trial of the matter was held on April 13, 2007.

Mr. Rivera testified that he was “a resident at Green Haven when at about 12:20 p.m. on March 7, 2003 Correction Officer Pelicone took the ‘go around’,” wherein inmates report to the officer what prison programs they will be going to from the residence block.[1] Claimant signed up for “chow and gym.” As the cells “were cracked open” to proceed to chow, Claimant walked down the stairs to line up in front of H-block against the wall, and Officer Pelicone took the count. This lets the next officer know how many inmates were going to chow. That task completed, the inmates proceeded to the west side mess hall, took about 15 to 20 minutes to eat and then were again “addressed” by Pelicone with the instruction that it was time to leave.

Once the inmates exited the mess hall and were standing in “D and C corridor, we again had to line up. I was standing sideways when Pelicone was taking the count. I am a little short of hearing in one of my ears. The inmate behind me was ‘tipping’ my feet, because he plays like that, he’s a playful man; so I turned around to tell him, ‘look, stop playing around’.” When Pelicone saw this, Claimant testified, what he saw was that claimant was facing sideways, and told him to face forward as the officer did the count. As the officer completed the count, the same playful inmate was asking claimant where he was going next, to which claimant responded that he was going to the gym. Another inmate on the other side, Inmate Rodriguez, started asking why the original inmate was joking with claimant, and claimant responded in a conversational tone that the joking inmate was being “ridiculous.”

Thereafter, apparently having overheard this comment, Officer Pelicone said: “Rivera, you don’t know what being ridiculous is all about yet.” Pelicone and then Officer Daly instructed the company to keep going forward.

When claimant arrived at the J-Corridor intersection, he was headed to H-block, because he had “put down for gym.” As he headed in the direction to go inside the block, Claimant said, Officer Pelicone was “standing, blocking me with his club out.” The officer
“point[ed] me out of the line, and told me to stand right to the right side of him. Everybody else was exiting inside the block, including Correction Officer Daly. Pelicone start[ed] yelling at me: ‘Who do you think you are, you’re just a f*** inmate, you will do as you are told’. I felt like . . .[Officer Pelicone] was doing this just to get the other officer’s attention. I said to Pelicone, ‘Why are you doing this, I have never had a problem with you I did not disrespect you’. Pelicone said, ‘Listen just go upstairs and lock in’. I felt if I had done anything wrong it was . . . [the officer’s] right to detain me but, then he didn’t he just told me to go upstairs.”
As claimant entered the block he saw “an Irish C.O.”, Officer Mc Gill, who he asked for a grievance form. The officer did not give him a form, he said, but instead directed him upstairs. As he was walking upstairs, but just before he took the first step, Officer Pelicone was “right there.” Claimant asked the officer “how did he spell his name.” Pelicone “sticks out his name tag to show” him - but the “letters were too small” to read easily, the claimant testified. Claimant was “concentrating hard on the name tag memorizing the spelling.”

Claimant again started going up the stairs, when he saw “CO Daly rushing down” toward him. Claimant was holding onto the railing. When Daly came “alongside” claimant in the stairway, the officer took his forearm and “rammed me in the throat and punched me in my mouth.” The officer
“called me a ‘snitch’ and was saying I wasn’t gonna make it home, they were gonna kill me, and he kept punching me in the side of my ribs. At the time I was angry and scared - and I said ‘Do you know what the f*** you are doing?’ I was holding the railing, then Pelicone grabbed my left arm and dragged me down the stairs. I let go of the railing when my foot hit the bottom step because I knew I was at the bottom of the stairs. They pushed me to the floor, and I felt a couple of swift kicks. My whole back arm was bended backward because they wanted it across my back, but I was trying to protect my face from being hit. As I looked up, I saw another inmate there - forgot the name - they told him to lock in. I felt handcuffs being applied, and I was picked up by the handcuffs by CO Daly. I saw Officer Hahn come from underneath me, and he slapped me. Daly stopped Hahn from hitting me again.”

Officer Daly “passed” him over to some other officers, who took him across to “one company.” They placed him against the door in the corner of the wall and had, he said,
“a little festival with me while handcuffed. I was out of breath and exhausted, hoping for it to stop. I heard officers say, ‘Sergeant Miller is coming’. The hitting stopped when the sergeant came.”

Thereafter, claimant was escorted by “two other officers and Sergeant Miller to room 10 of the facility clinic.” He said he “just couldn’t breathe right.” Sergeant Miller went to make a call to see if “they were ready for him”, and claimant was left with the two other officers. Claimant testified that they then shoved him against a wall and “slapped . . . [him] around a couple of times.” After a knock on the door, someone asked from the other side of the door without opening it: “are you ready?” The door opened, and it was Sergeant Miller. Claimant was then “escorted upstairs to the box area” without further incident. He was strip searched, and seen by medical personnel. He thought he was being videotaped and voice recorded while he told his story to Sergeant Miller. Claimant said to the sergeant, and reported to the court, that “Daly was the one who escalated the whole thing, although Pelicone had addressed . . . [claimant] with foul language”, the officer sent him upstairs thereafter and he was not detained. “It was Daly who shoved and punched first.”

Claimant said that when he was offered the opportunity to shower once he was placed in his cell, he “refused because [he was] afraid to leave the cell.”

About three (3) days later, he was told he needed to go to the “medical room.” When claimant got there, he was told “that Daly had received a ‘lash’ and they were deeply concerned as to whether he might have been infected with AIDS or some other disease, and would [claimant] agree to testing for AIDS and hepatitis.” Claimant told them “I am deeply concerned myself - I don’t know where Daly has been - and took the test. Everything was negative.”

He testified that he had been “housed in H-block for four (4) years, and had never disrespected these correction officers, yet I was being victimized, [in that] they were implying I was a ‘snitch’.” His lip “was busted from Daly’s punch, I couldn’t eat for three (3) weeks - only soft food - and I also was kicked in the ribs.” He said the “bruises were not seen because I was kicked sideways, the injuries were internal - x-rays did not show damage. I was scared to leave my cell, I lost sleep, I visited mental health to tell them how I was feeling, but also to improve myself. Now, I don’t feel that I should have to take violence programs anymore because I was not the aggressor.” Claimant said he has “been at Elmira for a while, I do volunteer work, and get along well with others.” The “only” injury Daly received was from Claimant’s teeth “because they are crooked. He must have cut his hand when he was punching me.” Although the records show that “nothing was broken,” Claimant said he “was hurt, and was taking naproxen for inflammation and pain.” He asked for “$20,000.00 damages.”

On cross-examination claimant agreed that he was incarcerated pursuant to his conviction after trial of murder in the second degree, and that he had previously been convicted of misdemeanors. He also conceded that he was found ‘guilty’ of some of the disciplinary charges leveled against him at a disciplinary proceeding following this incident, although he was found ‘not guilty’ on others, and that he was given one (1) year “box time.”

Documentary exhibits submitted include an inmate misbehavior report completed by Officer Pelicone on March 7, 2007 [Exhibit 1], an inmate misbehavior report completed by Officer Hahn the same day [Exhibit 2], both of which reflect service on Mr. Rivera March 7, 2003.

A use of force report completed by examining medical personnel on the incident date, indicating that claimant had a “1/4-inch superficial laceration lower lip . . . [left] side - cleanse

. . . [with](illegible) . . . [no] active bleeding. Teeth intact, non-mobile pre-existing deformity - teeth . . . [below] gumline per inmate.” [See Exhibit 3]. The graphic drawing in the same report, wherein the examiner may mark the parts of the body that were treated on a rough drawing of the human body, contains only a mark by the lip, and the same description of injury and treatment noted. [Id.]. Also attached to this same exhibit are portions of claimant’s ambulatory health record [AHR], memorializing visits to the facility medical department two (2) months after the incident on May 17, 18, 21, 23, 28, and 30, 2003. [Exhibit 3].

Claimant also filed a grievance on April 10, 2003, complaining that Officers Daly and Pelicone used excessive force, and that he feared retaliation. [Exhibit 4]. In denying the grievance, the acting superintendent wrote on June 18, 2003 that the evidence did not substantiate claimant’s assertions, that there was an attempted assault on staff and use of force by staff that was not excessive, that there were no inmate witnesses mentioned, and that the medical documentation showed that the inmate received only minor injuries. [Ibid.].

When claimant appealed, he noted the name of an inmate witness. [Ibid.]. The central office review committee then affirmed the superintendent’s determination on July 9, 2003, and further clarified that the matter was investigated and found to be without merit. [Ibid.].

Interdepartmental memoranda concerning the events [Exhibits 5 and 6], and a computer printout record of the disciplinary hearing disposition [Exhibit 7], complete the documentary exhibits.

Officer Pelicone testified concerning his recollection of the incident involving claimant in March 2003. He recalled that they were “coming out of the west mess hall, pairing up the inmates two at a time,” when he noticed inmate Rivera facing the wrong way. The officer told him to turn around and to “keep the noise down”, as they were allowed to have conversations provided the noise level was in conversational tones. Claimant was loud, because despite the crowd, the officer could hear him “loud and clear.” As he walked by the inmate, he heard Mr. Rivera mutter something like “this is ridiculous.” The officer told him again to “turn and knock the noise off.” As they proceeded, inmate Rivera “continued to talk loud in the hallway,” Officer Pelicone said he could hear him “clear as a bell.”

When they got back to the block, he pulled inmate Rivera out of the group to counsel him. As the officer spoke to Mr. Rivera, the inmate got very agitated, and started to
“throw a little bit of a ruckus, and with the inmates out in the hallway, we didn’t need to get them to get involved in this. I told inmate Rivera to go back to his cell and lock in, and he would be issued a misbehavior report. As I was escorting him up the stairs, he got about three (3) steps up the stairs, took his right hand out of his pocket and turned around and swung at me. I ducked. Next thing I know him and Officer Daly are down on the floor behind me. I got down on the ground, I grabbed his left arm with both of my hands, put mechanical restraints on him, and stood him up. As we stood him up, he tried to move his head into Officer Hahn’s face by swinging his head into it.”

Claimant was then escorted out of the block by the sergeant, and two other officers.

On cross-examination Officer Pelicone confirmed that Officer Daly had assisted him. Officer Pelicone “could not say why there was no report from Daly, except that perhaps Daly was in medical at the time that” Pelicone’s misbehavior report was written. [See Exhibit 1]. When asked why Daly was not mentioned as an assisting officer in the report, Officer Pelicone said
“all I can say is that in the report I wrote ‘I [then] assisted taking Rivera to the floor by grabbing his left arm . . .’ - all I can say perhaps I did not notice who it was or he was not in there or I failed to put his name in the report when I did the paperwork. He was obviously not available to cosign the report, as we were all being seen by medical at the same time as we were doing the paperwork.”

The description of the incident, however, he said was “accurate”, although Daly is not mentioned by name. Officer Pelicone thought that Daly was mentioned in the “to/from” memorandum he wrote.

Officer Hahn testified concerning the same incident. He arrived at the scene as inmate Rivera was proceeding up the stairs, and observed inmate Rivera turn and
“swing at Officer Pelicone. By the time I got there, Officer Pelicone and Officer Daly had taken Rivera to the floor, and mechanical restraints were applied. I helped by holding on to Rivera’s legs until mechanical restraints were applied. Once he was up off the floor, I was standing next to him and he attempted to head butt me in the face.”

Thereafter, Officer Hahn said he went to medical to be “checked out.”

On cross-examination, Officer Hahn, too, could not say why he did not include Daly in the inmate misbehavior report. [Exhibit 2]. Officer Hahn said,
“I don’t know why. The report pretty much speaks for itself, I don’t recall why I did not include Daly. My understanding of my obligation as a correction officer making a report was that I am to write down what happened in an incident from my personal perspective, not what others were doing; not that I am required to name every officer who assisted. I am supposed to write what I saw.”

Finally, Officer Daly testified concerning this incident. He recalled that he was coming back from the afternoon chow run from the west side, and was standing in the gate corridor area with one gate separating him from Officer Pelicone. His job assignment that day was to take building 12 inmates mandated to go to chow directly there, so that they could get to their afternoon programs. Officer Pelicone’s job on that day was to take inmates back to the housing block to secure them, then come to building 12 and “run the area that pertains to him.”

Officer Daly said that he was
“not privy to any argument between Officer Pelicone and inmate Rivera, but just saw there was a little bit of passive/aggressive activity going on by the inmate, and that his hands were kinda being a little bit aggressive. Not knowing what kind of numbers I would have on my side of the gate, with 30 to 35 to 40 inmates coming over, being that there would also be another group coming from the east side mess hall, all needing to go to building 12 - though some would be going to H-block - there could be a lot of inmates in that area. So, seeing this aggressive activity, I crossed over to assist the officer to assure that the area maintained its integrity and security. You don’t want an inmate/officer situation in front of 70 inmates. No matter what the incident, you needed to move the [participants]. At that point, I heard the officer give a direct order to ‘put your hands in your pockets and go back to your cell.’ The inmate was told to go upstairs. I was standing, actually in a bladed (phonetic) position, the inmate was acting aggressively, he took his right hand out to take a swing to the left, then came around in a full circle towards the cage away from the wall. I stepped forward in front of the inmate - as I wrote in my misbehavior report - I was not aiming for his face, not aiming for his groin, not aiming for anything, just acting to defend another officer. We wrapped him up, got him down to the floor, and applied mechanical restraints.”

Officer Daly said that his usual manner of getting someone off the floor once the cuffs are on is to hold on to the wrists and the back of the shirt - not the cuffs themselves. When they got Rivera back up on his feet, he was “still aggressive, still cursing and fighting,” so they placed him up against a wall.

On cross-examination, he said he recalled writing up a misbehavior report but did not have a copy when asked. Officer Daly identified as his a “to/from” memorandum dated March 7, 2007 describing the incident as well. [Exhibit 5].

Sergeant Miller’s “to/from” to Lieutenant Nagy, describes his involvement as beginning at the point where he responded to H-Block and found Officers Pelicone, Daly and Hahn holding the claimant against the wall in mechanical restraints. [See Exhibit 6]. The report is consistent with the contemporaneous reports written by the officers, as well as their testimony at trial.

No other witnesses testified, and no other evidence was submitted.

Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part “. . . [w]hen any inmate . . . shall offer violence to any person, . . . 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, [and] to secure the persons of the offenders . . . ” Correction Law §137(5). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use “. . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary.” Once an officer determines that physical force must be used, “. . . only such degree of force as is reasonably required shall be used.” 7 NYCRR § 251-1.2(b). The State may be liable for the use of excessive force by its employee under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973); Court of Claims Act §8.

To assess whether force was necessary, or whether the particular degree of force used was reasonable, “. . . a Court must examine the particular factual background and the circumstances confronting the officers or guards (see e.g. Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Often the credibility of witnesses will be a critical factor in these determinations (Davis v State of New York, 203 AD2d 234;. . . citation omitted).” Kosinski v State of New York, UID #2000-028-0012, Claim No 97581 (Sise, J., November 30, 2000).

Resolution of this claim largely rests upon the relative credibility of the Claimant and Correction Officers Pelicone, Hahn and Daly, and the evidence Claimant presented to substantiate his claim. Based upon a preponderance of the credible evidence, the claimant has failed to establish that excessive force was used to restrain him on March 7, 2003. Credible testimony established claimant acted in a belligerent, aggressive manner, necessitating a level of force sufficient to restrain a reasonably perceived threat from the standpoint of each officer who testified.

Significantly, resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). An important part of that role is observing the behavior and demeanor of witnesses as they testify, and assessing the internal consistency of their accounts.

The scenario painted confirms this court’s impression that each officer saw a different “phase” of things, and acted in accordance with the level of threat perceived. Thus, Officer Pelicone, directed a noisy and boisterous inmate back to his cell, with a warning that a misbehavior report would follow. Officer Daly, observing claimant swing his arm, saw a threat to a fellow officer and moved in to restrain the claimant’s movement toward Officer Pelicone. Finally Officer Hahn, also seeing the swinging movement, and arriving from his initial position when the fellow officers were taking claimant down, came in to help.

The testimony of the claimant, who impressed the court as an intelligent and resourceful individual, appeared to have been “thought out” in the sense that he had anticipated the version of events that would be presented by the officers involved, and had prepared for it by using details that would “explain” same. For example, the hand movements that were seen by the officers, as an attempt to take a swing at Officer Pelicone, were described by claimant as his attempts to ascertain the proper spelling of Officer Pelicone’s name. In one contemporaneous report claimant admits “pointing” at the officer. [See Exhibit 6].

Claimant embellished his account where possible, adding on an entire additional scenario of abuse after he was handcuffed that he then did not address when questioning the officers. The objective medical documentation submitted showed that he had only minor injury, in the form of a small laceration on his lip, that was not bleeding when he was examined by medical personnel. No bruising, inflammation or other sign of injury that would be associated with being kicked and struck repeatedly is noted.

AHR records showing visits to medical personnel in May 2003, wherein the subjective complaints of the claimant are recorded as relating to the March 2003 incident, establish only that claimant was given medical treatment when he asked. Anticipating the fact that x-rays showed no damage to his ribs, Claimant testified that he was kicked “sideways” presumably, somehow, between his ribs, so as to suffer the “internal” damage he claimed. Indeed, most parts of the version of the incident presented by Claimant, in which he is cast in the role of victim, describe physical actions taken by the correction officers consistent with standard “take-down” maneuvers. The medical evidence does not support the description of the supposed continued assaultive conduct once claimant was removed to “room 10.”

The amount of force used was what was reasonably necessary to restrain an otherwise agitated and belligerent inmate. Once Claimant was restrained, the court finds that there was no additional force used beyond that necessary to restrain and handcuff him [cf. Lewis v State of New York, supra], despite the additional embellishments added by claimant during his trial testimony and in the written claim.

Accordingly, Claimant has failed to establish by a preponderance of the credible evidence that excessive physical force used on him by correction officers.

Claim number 108389 is hereby dismissed in its entirety.

Let judgment be entered accordingly.

June 18, 2007
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.