New York State Court of Claims

New York State Court of Claims

PAUL v. THE STATE OF NEW YORK, #2007-037-509, Claim No. 111201


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:
Shondell Paul, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Reynolds E. Hahn, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a pro se inmate, alleges in Claim Number 111201 that he was assaulted by correction officers (COs) while he was under the care and custody of the New York State Department of Correctional Services (DOCS) at Attica Correctional Facility (Attica). Trial of the matter was conducted on September 10, 2007, where Claimant testified on his own behalf and Defendant called ten witnesses: COs Booth, Miller, Cianci, Gebler, Chapman and Bauer; Sergeants (Sgts.) Pawlak, Lewalski and Buehler; and Lieutenant (Lt.) Gilmore, all employees of DOCS.

Claimant testified that late on the afternoon of July 29, 2004 he and fellow inmates at Attica were proceeding from A block to the evening mess when he initiated an assault on COs Booth and Miller by stabbing them with a makeshift knife. Several COs responded to the incident and managed to subdue Claimant with the use of physical force, including striking his head, arms and legs with batons. Claimant was then escorted to the facility infirmary for treatment and was later transported to Erie County Medical Center (ECMC) where it was determined that he sustained a ruptured eardrum, fractured left tibia and multiple contusions and lacerations. Claimant contends that the more serious injuries were inflicted upon him by seven or more COs in the infirmary waiting room and were not incurred during the initial use of force at the scene of the incident.

The testimony of DOCS employees was consistent and confirmed that Claimant initiated the assault on COs Booth and Miller and that physical force was used by COs Cianci, Gebler and Chapman to subdue him. Sgts. Pawlak and Buehler ordered Sgt. Lewalski and CO Bauer, who were not involved in the use of force, to escort Claimant to the infirmary and to remain with him until he was treated by medical personnel. According to the testimony, the only other officer to see Claimant in the infirmary was Lt. Gilmore, the shift watch commander, who questioned him briefly. Lt. Gilmore, Sgt. Pawlak and CO Bauer testified that they did not strike Claimant at any time and did not see anyone else strike him after he was secured and removed from the scene of the incident to the infirmary where he was treated and transferred to ECMC.

Claimant placed in evidence transcripts of testimony given by CO Bauer and Lt. Gilmore and supporting depositions filed by Sgts. Buehler and Lewalski and COs Bauer and Chapman in connection with a criminal proceeding in Wyoming County arising out of the assault on the COs and the trial testimony of the officers was consistent with their prior testimony and/or depositions (see Claimant’s Exhibits 1-6).

Correction officers are charged with the responsibility of maintaining order and discipline in correctional facilities under stressful circumstances (Arteaga v State of New York, 72 NY2d 212 [1988]). It is well settled that correction officers may use physical force to maintain order and discipline in correctional facilities, but “only such degree of force as is reasonably required shall be used” (7 NYCRR 251-1.2 [b]). The limited circumstances in which use of force is permitted by correction officers are set forth as follows:
“[a]n employee shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape.” (7 NYCRR 251-1.2 [d])

In situations involving inmate allegations of excessive force by correction officers, the credibility of the witnesses is often the dispositive factor (Davis v State of New York, 203 AD2d 234 [1994]). To determine, in a given instance, whether use of force was necessary and, if so, whether the force used was excessive or unreasonable, a court must examine the specific circumstances confronting the officers (see e.g. Wester v State of New York, 247 AD2d 468 [1998]; Lewis v State of New York, 223 AD2d 800 [1996]; Quillen v State of New York, 191 AD2d 31 [1993]; Arnold v State of New York, 108 AD2d 1021 [1985], app dismissed 65 NY2d 723 [1985]).

By his own admission, Claimant initiated the assault on the COs with a deadly weapon thereby requiring the use of force to protect the officers and to restore order. The testimony of the officers was credible and consistent. Claimant’s proof that he was assaulted after force was used to subdue him consisted of his sole testimony unsupported by any corroborating evidence. The force used against Claimant in this incident was not excessive in relation to the purpose of restraining him and only conclusory statements of Claimant were presented in support of his claim that he suffered physical injuries at the hands of the COs after the initial use of force.

In summary, the Court finds that the force exerted by the COs in this matter was reasonably necessary under the circumstances and was not excessive and, as a result, no liability attaches to Defendant arising out of this incident (see Passino v State of New York, 260 AD2d 915 [1999], lv denied 93 NY2d 814 [1999]).

Furthermore, with respect to Claimant’s allegations that he was the victim of an unprovoked assault by several COs following the incident, the Court finds the preponderance of the evidence to be that Claimant’s injuries were sustained as a result of the use of force.

Defendant’s motion to dismiss this claim for failure to establish a prima facie case, upon which decision was reserved at trial, is granted and Claim Number 111201 is dismissed in its entirety.


January 11, 2008
Buffalo, New York

Judge of the Court of Claims