New York State Court of Claims

New York State Court of Claims

NIEVES v. THE STATE OF NEW YORK, #2007-037-510, Claim No. 103611


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:
Francisco Nieves, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Wendy E. Morcio, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 16, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a pro se inmate, alleges in Claim Number 103611 that correction officers (COs) used excessive and unnecessary force during a strip frisk while he was under the care and custody of the New York State Department of Correctional Services (DOCS) at Lakeview Correctional Facility (Lakeview). Trial of the matter was conducted on September 6, 2007 and November 15, 2007 at Wende Correctional Facility where Claimant testified on his own behalf and Defendant called four witnesses: Sergeant (Sgt.) Hulton and COs Hahn, Matyas and Lovern, all employees of DOCS.
Claimant alleged in his claim and testified that shortly after 7:00
on June 18, 2000, while in his cell in the special housing unit (SHU) at Lakeview, he was directed to accompany Sgt. Hulton and other COs to the frisk room for a strip search. When Claimant arrived at the frisk room the mechanical restraints were removed from his wrists and he was ordered to strip so a body cavity search could be conducted. He claims that he was then moved by CO Lovern to an adjacent room out of the view of the surveillance camera where he was struck from behind with a hard object, knocked to the floor and assaulted by other COs who forcibly searched his anal cavity resulting in injuries to his face, lower back, genitals and buttocks.

No other witnesses testified for Claimant and one exhibit was introduced into evidence.[1]

Sgt. Hulton, a 25-year employee of DOCS, testified that on June 18, 2000 he was supervising the SHU (S block) at Lakeview which houses inmates with disciplinary problems. Based on information from a fellow officer that Claimant, who had a long history of drug use and possession at Lakeview, may be in possession of contraband, Sgt. Hulton ordered a cell and pat frisk of Claimant who was observed placing his hands down the front of his pants. During the pat frisk, CO VanWey felt an object in the crotch area of Claimant’s pants and, as a result, was authorized by Sgt. Hulton to perform a strip frisk. During the strip frisk CO Hussey found a small packet in Claimant’s underwear containing a brown powdery substance which later tested positive for heroin (Defendant’s Exhibits D, E, G & T). CO VanWey then ordered Claimant to spread his buttocks for inspection as part of the frisk routine and he refused stating “I’m gonna do what I gotta do” (see Defendant’s Exhibit G). Believing that Claimant was holding contraband in his buttocks and was about to force it into his anal cavity as he had in the past, Sgt. Hulton ordered COs Hussey, Hahn, Lovern and VanWey to restrain Claimant for the purpose of removing the contraband from his buttocks by the use of force. While they held Claimant on the floor and cuffed his hands, CO Matyas attempted to remove the foreign object from his buttocks but was unable to do so. After the frisk, Claimant was escorted to a cell where he was placed under a special watch. The next day COs reported seeing Claimant defecate a foreign object onto a napkin and immediately ingest the object before it could be retrieved for analysis.

The Use of Force Report completed on the date of the incident by Sgt. Hulton describes the actual force used:
“C.O. VanWey initiated force by taking hold of Nieves upper body with both arms. C.O. Hahn assisted by taking hold of Nieves right arm. Nieves refused orders to comply and struggled with staff. Eventually Nieves was guided to the floor but continued to struggle. C.O. Hussey and C.O. Maytas [sic] assisted in controlling Nieves lower body. C.O. Maytas [sic] tookhold [sic] of his left leg as Nieves struggled by twisting and turning his body and bending and unbending his legs. C.O. Hahn, once on the floor, released his right arm to control his right leg. Once Nieves was somewhat restrained on the floor several orders were given to put his hands out to be cuffed. He refused all orders. Sgt. Hulton then applied pressure to the right mandible jaw to gain compliance with orders given to put his hands out. C.O. Lovern then applied the mechanical restraints. C.O. Hussey then took hold of his left leg from C.O. Maytas [sic] and C.O. Maytas [sic] then attempted to spread Nieves buttocks using disposable latex gloves. Nieves resisted by tightening his buttocks. C.O. Maytas [sic] struggled but was able to get a quick view of his anus. C.O. Maytas [sic] reported a white foreign object in his anus. Inmate Nieves was then lifted to his feet and escorted to S-A-48 cell by C.O. Hahn on the left arm and C.O. VanWey on the right arm” (Defendant’s Exhibit E).

The Report further indicates that Claimant continued to struggle with the COs as they attempted to place him in the cell and remove the restraints.

The Use of Force Report also includes a physical examination report completed by the medical staff. The report indicates that Claimant was examined in his cell on June 18, 2000 at approximately 8:15
Redness was noted over both shoulder blades and under his right jaw and three bruises, each one-half inch in diameter, were noted in Claimant’s left jaw and neck area. A small amount of blood was noted on his lips but they were unable to determine its source. Pictures of Claimant taken after the event show the redness and minor bruising described in the report but do not show any significant injuries (Defendant’s Exhibits K-S).

The testimony of COs Hahn, Lovern and Matyas, all experienced officers, was consistent with their written reports (Defendant’s Exhibits H, I, & J, respectively) and confirmed the testimony and reports of Sgt. Hulton (Defendant’s Exhibits E & G) regarding the strip frisk and use of force incident. The officers all testified that Claimant was not struck with any object during the frisk.

A surveillance tape (Claimant’s Exhibit 1) of a portion of the incident was reviewed by the Court. The tape does not show the frisk itself because there was no camera in the frisk room, but it confirms that Claimant resisted the officers’ attempts to complete the strip frisk. In addition, the tape does not show any instance in which the COs used any more force than was necessary to restrain Claimant.

Correction officers are charged with the unenviable task 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], appeal dismissed 65 NY2d 723 [1985]).

By his own admission, Claimant was familiar with the strip frisk procedure and had a history of disciplinary actions for use and possession of illegal drugs while in DOCS custody, including this incident.[2] Claimant’s proof that he was subjected to an unprovoked assault in the frisk room consisted of his sole testimony unsupported by any corroborating evidence. Sgt. Hulton on the other hand testified that Claimant, by actions and words, refused to permit the inspection of his buttocks as part of the frisk procedure. Based upon Claimant’s admitted familiarity with the frisk procedure, the Court credits the testimony of Sgt. Hulton that Claimant was refusing to obey a direct order when he was restrained and taken to the floor through the use of body holds. In addition, the Use of Force Report indicates that after Claimant was taken to the floor he continued to resist the COs attempts to restrain him. Based on the evidence adduced at trial, the Court credits the testimony of the COs that Claimant refused to follow a direct order, that some degree of force was necessary to control Claimant and that this was accomplished with the use of body holds. The relatively minor nature of the injuries noted in the medical records supports the conclusion that excessive force was not used.

In summary, the Court finds that the force used 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]).

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 103611 is dismissed in its entirety.


January 16, 2008
Buffalo, New York

Judge of the Court of Claims

[1].Claimant’s Exhibit 1 is a surveillance tape showing a portion of the incident which was provided to Claimant by the facility.
[2].Claimant was found guilty of drug (heroin) possession following a Tier 3 disciplinary hearing held on June 30, 2000 (Defendant’s Exhibits D & F).