New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2007-040-030, Claim No. 105868


Prisoner – 1) alleged assault by correction officers – Court finds force used was reasonably necessary; and 2) alleged medical malpractice – Court finds failure of proof.

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:
Luis Gonzalez, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Frederick H. McGown, III, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 5, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se Claimant, Luis Gonzalez, has failed to establish by a preponderance of the credible evidence that the State of New York was liable in connection with his Claim. Mr. Gonzalez alleges that, from approximately April 3, 2001 until May 15, 2001, while he was incarcerated at Upstate Correctional Facility in Malone (Upstate), he was: (1) assaulted on several separate occasions including, specifically, an assault by correction officers on April 12, 2001 at the conclusion of a disciplinary hearing; (2) denied adequate medical treatment; (3) subjected to harassment in the form of food tampering, personal body threats and having the water in his cell shut off for several days; and (4) subjected to harassment in two separate disciplinary hearings that were based upon fabricated misbehavior reports and punished, all in violation of his rights under the United States Constitution. The trial was held by video conference on April 17, 2007, with the parties at Clinton Correctional Facility in Dannemora and the judge at the Court of Claims in Saratoga Springs. Four witnesses testified: Claimant; Correction Officer (C.O.) Royce Corbine; Civilian Hearing Officer (C.H.O.) Curtis Drown; and C.O. Todd Rabideau.

As a preliminary matter, the Court notes that the Claim was filed with the Clerk of the Court on April 8, 2002. The Court informed Claimant, in writing, on January 5, 2007 that the trial of his Claim would be conducted on April 17, 2007. At the trial, however, Claimant revealed that “a couple of months”[1] previously he was separated from his legal paper work during a transfer from one facility to another. That transfer appears to have been unrelated to the trial of this Claim. In any event, Claimant had ample advance notice of the trial date and more than sufficient time to apprise the Court that his legal papers were missing. Initially, Claimant indicated that he wished to proceed with the trial. Later, he indicated that he might prefer to apply for an adjournment. In light of the foregoing, to the extent an oral application for adjournment was made, the Court denied it. At the Court’s request, however, Defendant provided Claimant with a copy of his Notice of Intention to File a Claim, the Claim and the State’s Response to Claimant’s Demand for Discovery and Inspection that was served in 2006. Claimant was given an opportunity to review the materials, and most of the discovery materials were received into evidence. Claimant also alleged that he had a video of the April 12, 2001 disciplinary hearing at which he asserts he was assaulted by C.O. Amos LaClair. It was Mr. Gonzalez’ testimony that he mailed the video to his family, but made no arrangements to have the video produced at the trial. The Assistant Attorney General stated that he did not have a copy of the tape as he was unaware of the tape’s existence. With respect to this item, the Court concludes that Claimant did not have a copy of the tape at trial as a result of his own decision. Thus, his request to mail the tape to the Court after the trial was denied.

The Court next addresses several other evidentiary matters that were reserved upon at trial. Defendant objected to the introduction of Claimant’s Exhibit 2, in part, and to Exhibit 5, in its entirety, on the ground that they contained hearsay statements. Exhibit 2 is admitted, although the Court attaches no weight to any statements attributed to individuals that were not under a business duty to report. The objection to Exhibit 5 is sustained and the document is not admitted in evidence. Claimant’s objection to the introduction of Defendant’s Exhibit A on relevancy grounds was overruled at trial. The Court now admits Exhibit A for impeachment purposes only. Claimant’s objection to the introduction of Defendant’s Exhibit C was overruled at trial. The Court notes that Exhibit C is included as part of Claimant’s own Exhibit 4.

Claimant testified that the alleged wrongs he complains of occurred because he gave testimony on behalf of three other inmates in connection with alleged incidents of abuse against them by staff at Upstate. It is Claimant’s contention that officers “took it personal for me testifying on behalf of these other guys” and that they conspired against him as a form of retaliation.

Claimant testified that, when he was a witness for the second inmate, C.H.O. Drown sarcastically asked him if he was being paid to testify. Claimant further testified that, on the third occasion he was called as a witness, C.H.O. Drown turned off the recording device in the hearing room and said to Mr. Gonzalez: “Oh you again. Next time you come in front of me, any incident, I’m going to blaze you.”

Mr. Gonzalez did come before C.H.O. Drown again at the April 12, 2001 disciplinary hearing. Claimant stated that C.H.O. Drown was “very rude” and would not permit Claimant to introduce any type of evidence or state any objections to the proceedings. Claimant testified, “I don’t know what type of plan he [C.H.O. Drown] had conspired with C.O. LaClair, but all I know was that when he [C.H.O. Drown] nodded his head, C.O. LaClair grabbed me by my chain waist, by the back of my shirt, slammed me all the way across the floor to the wall. Upon falling, I felt a slight sprain in my back. My knee, you know, I experienced a lot of pain.”

Claimant contends that this altercation aggravated an old knee injury for which he had undergone surgery. He further maintained that he did not receive prescribed therapy for his knee injury. In addition, Mr. Gonzalez claims C.O. Rabideau shut off the water in his cell without justification. Claimant alleges that his food was defiled with spit and hair. He testified that he did not eat for fifteen days because of his concerns about the condition of his food. Several of Claimant’s allegations are recited in Exhibit 5 that was marked for identification purposes, but which was not admitted into evidence. That document, a letter by Mr. Gonzalez’ daughter dated April 27, 2001, purports to relate his hearsay statements. At most, Exhibit 5's probative value would be as some indication that, in 2001, Claimant was asserting some of the allegations that later were included in his Claim.

C.O. Corbine testified about the incident that was the subject of the April 12, 2001 disciplinary hearing (see also Ex. A). He testified that he was conducting security rounds on April 3, 2001 when he observed inmates engaged in “fishing” (e.g., an unauthorized method for transferring property by means of a line dragged from cell to cell). He saw the line being dragged between Claimant’s cell and another cell. The witness stated that an envelope was being passed on the drag line, that he intercepted it, and that he was present when the substance tested positive for narcotics. C.O. Corbine testified that he prepared inmate misbehavior reports against each of the four inmates in the two cells, including Claimant, alleging that they were engaged in smuggling, possession of narcotics, unauthorized exchange of property and destruction of State property.

C.H.O. Drown testified that he spends about 75% of his time conducting disciplinary hearings and has conducted approximately 6,000 to 8,000 such hearings. He stated that all of the hearing rooms at Upstate are configured in the same way. Each is “relatively small,” measuring approximately ten feet square, or perhaps twelve feet by ten feet. The hearing officer sits at a “regular office desk” and the inmate sits immediately in front of the desk. On cross-examination, C.H.O. Drown elaborated on the cramped conditions, stating that the inmate sits with his knees “only inches from the front of the desk.”

C.H.O. Drown testified that he did not “necessarily remember any specifics” regarding the subject matter of Mr. Gonzalez’ hearing, but had reviewed the file. He stated that he found Mr. Gonzalez guilty of drug possession and participating in a drag line in connection with the April 3, 2001 incident. C.H.O. Drown testified that, at the conclusion of the hearing, Mr. Gonzalez became verbally abusive and “continued to get more and more unruly, in fact.” He requested that Mr. Gonzalez be removed from the hearing room once, or perhaps twice. “Suddenly, Mr. Gonzalez flew back in his chair. I thought he was coming to get me, to tell you the truth.” On cross-examination, C.H.O. Drown was more emphatic. In response to Claimant’s suggestion that the witness was not being truthful, C.H.O. Drown stated, “[t]he truth, Mr. Gonzalez, is that you threw yourself back in the chair in an attempt to attack me and in so doing, Mr. Gonzalez, you attacked C.O. LaClair.” C.H.O. Drown further testified “I can tell you that, from where I was sitting, there was no doubt in my mind that you [Claimant] were about to become violent, and I believed that it was against my person.”

On direct examination, C.H.O. Drown continued, “[i]n any event, at that point, Correction Officer LaClair, who had stepped behind Mr. Gonzalez, restrained him, placed him on the floor.” On cross-examination, the witness noted that the takedown “happened very fast” and that he was not able to see how precisely C.O. LaClair restrained Claimant because Mr. Gonzalez’ body was between his line of sight and C.O. La Clair’s hands. On cross-examination, C.H.O. Drown testified that Claimant was behaving “like a raving maniac” prior to being taken to the floor, but that upon being restrained, Claimant seemed “almost other worldly composed and relaxed, just the exact opposite of the mania I had witnessed.” He rejected Claimant’s suggestion that his calm was a result of being stunned after his head allegedly hit the wall.

Exhibit 3 indicates that Upstate’s superintendent, Thomas Ricks, reviewed and evaluated the incident. On April 30, 2001, he wrote that “[f]orce used by staff appears to be premature. It appears inmate was attempting to comply with direct order. Officer was counseled on this issue. Force used was not excessive” (see Ex. 3). In a memorandum dated May 17, 2001, a Lieutenant K. DuBray wrote that he had reviewed a videotape of the incident and made similar findings (see Ex. 2).

C.O. Todd Rabideau testified that he was instructed by his supervisor, Sergeant Allen, to shut off the water in Claimant’s cell and then to conduct a cell search. The action was taken because Claimant refused to comply with a directive to hand over medications that the nurse said he was no longer authorized to keep in his cell. C.O. Rabideau testified that Claimant would not comply with the order and he reported that to Sergeant Allen. C.O. Rabideau stated that he assumed, from reviewing Exhibit D, that Sergeant Allen went to Claimant’s cell and obtained the medications, at which time Sergeant Allen restored the water. The witness did testify that he would have stopped at Claimant’s cell later that same day to distribute the lunch meal. He could not recall specifically if Claimant accepted a meal, but Claimant told him at that time that the water had been turned back on.

Correction officers are charged with the formidable and unenviable task of maintaining order and discipline in correctional facilities under stressful circumstances (Arteaga v State of New York, 72 NY2d 212; Green v State of New York, Claim No.105748, dated March 25, 2004, Mignano, J. [UID No. 2004-029-367]). When an inmate in the custody of the Department of Correctional Services offers violence to another person, or resists or disobeys any lawful direction, correction officers are permitted to use all suitable means to defend themselves, to maintain order, to enforce discipline and to secure such inmate (Correction Law § 137[5]). That authority includes the application of physical force if the correction officer “reasonably believes that the physical force to be used is reasonably necessary” (7 NYCRR 251-1.2 [d]). Correction officers must use caution and exercise conservative judgment, however, in determining whether physical force is necessary (7 NYCRR § 251-1.2[a]) and, if it is determined that it is required, then “only such degree of force as is reasonably required shall be used” (7 NYCRR 251-1.2[b]). Where excessive force is used by a correction officer, such action constitutes a battery and the State may be liable under the doctrine of respondeat superior (Jones v State of New York, 33 NY2d 275, 280; Stein v State of New York, 53 AD2d 988).

The trier of fact is to determine whether or not the force used was excessive in a particular situation upon examination of the background and circumstances confronting the officers (Koeiman v City of New York, 36 AD3d 451, 453; Lewis v State of New York, 223 AD2d 800; Hinton v City of New York, 13 AD2d 475; Vogler v State of New York, 2002 WL 32068269, 2002 NY Slip Op 50604[U]; Johnson v State of New York, Claim No. 110297, filed May 30, 2007, Collins, J.) and great weight should be accorded to the trial court’s resolution of issues of credibility and assessment of the weight of the evidence (Wester v State of New York, 247 AD2d 468; Davis v State of New York, 203 AD2d 234). Such weight is given because the trial court has the advantage of observing the witnesses firsthand and, often, the most accurate method of determining the truth is the fact finder’s observation of the appearance, attitude and demeanor of witnesses as they testify (People v Carter, 37 NY2d 234, 239, citing Matter of Nowakowski, 284 App Div 655, 657; Amend v Hurley, 293 NY 587, 594; Boyd v Boyd, 252 NY 422, 429; Medina v State of New York, Claim No. 106664, Motion No. M-71375, dated March 2, 2007, Sise, P.J. [UID No. 2007-028-010]). “[T]he fact-finder is not required to credit a particular fact testified to by one or even six witnesses,” but instead should assess the likelihood of a fact being true “by the totality of circumstances surrounding the occurrence as well as by the ordinary laws that govern human conduct” (People v Collier, 85 Misc 2d 529, 553-554).

With respect to Claimant's allegation that he was denied adequate medical care, “[i]t is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons” (Rivers v State of New York, 159 AD2d 788, 789, lv denied 76 NY2d 701). To maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, a party may proceed upon a theory of simple negligence, or upon the more particularized theory of medical malpractice (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by laypersons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978; Twitchell v MacKay, 78 AD2d 125, 127). In a medical malpractice claim, Claimant has the burden of proving a deviation or departure from accepted practice and evidence that such deviation was the proximate cause of the injury asserted (Thomas v State of New York, 10 Misc 3d 1072[A], 2005 NY Slip Op. 52230[U]). In addition, expert medical testimony is required (Morgan v State of New York, 40 AD2d 891; see also Macey v Hassam, 97 AD2d 919, 920).

The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so. C.H.O. Drown and C.O. Corbine each provided generally credible testimony. C.O. Rabideau provided articulate, straightforward and persuasive testimony. Claimant’s testimony and demeanor, on the other hand, was agitated, argumentative, disjointed, repetitive and self-serving, all of which severely diminished his credibility. Claimant kept his emotions in check only with some difficulty and at one point, when he became particularly upset, he felt compelled to request a brief recess in order to compose himself. The Court credits very little of the testimony offered by Mr. Gonzalez. The Court finds that Claimant failed to meet his burden and did not establish the particulars of his Claim by a preponderance of the credible evidence in view of all the circumstances.

Claimant provided no testimony or evidence concerning assaults, other than the alleged assault by C.O. LaClair on April 12, 2001. With respect to that incident, the Court rejects Claimant’s version of events – that he was the target of a conspiracy and victim of an unprovoked assault – as not credible. Rather, the Court finds that C.O. LaClair acted reasonably to defuse a rapidly deteriorating and potentially dangerous situation. In this regard, the Court credits C.H.O. Drown’s testimony that he believed himself to be under imminent physical threat as a result of Claimant’s abusive and aggressive behavior and actions. While there is some indication, with the 20/20 vision of hindsight, that the use of force by C.O. LaClair may have been premature (see Exs. 2 and 3), the Court determines that the use of force was reasonably necessary under the circumstances.

Moreover, and more importantly, the Court determines that no excessive force was used. Superintendent Ricks stated that the force used was not excessive (Ex.3). There is no indication of excessive force in the report of the nurse that examined Claimant shortly after the incident. The nurse noted various red marks on Claimant’s torso, but detected no swelling, deformities, bruising or open areas. He concluded that “[i]nmate is able to stand, walk, and bear weight without difficulty. Full R[ange] O[f] M[otion] of all extremities and digits is noted ... No treatment indicated at this time” (see Ex. 3). Moreover, Claimant’s Ambulatory Health Records do not document any significant injury resulting from the April 12, 2001 incident (see Ex.1). Thus, the Court concludes that the force used by C.O. LaClair was reasonably necessary under the circumstances and that only that measure of physical force as was reasonably necessary was applied. Claimant’s allegations that excessive force was used against him in an unjustified attack are both self-serving and unsupported by the evidence.

To the extent Mr. Gonzalez is asserting an action premised on medical malpractice, it must fail for want of expert medical testimony. Insofar as his Claim posits that medical negligence occurred because he was denied adequate medical treatment, the Court concludes that such allegations are unsupported by the record. Exhibit 3 indicates that Claimant was restrained by C.O. LaClair at 2:05 p.m. on April 12, 2001. The nurse examined him in a holding pen ten minutes later, at 2:15 p.m. Upstate’s Ambulatory Health Records for Claimant, included in Exhibit 1, indicate that he was seen again at 6:22 a.m. the next morning and includes nearly daily entries over the course of the next three weeks and frequent entries thereafter. In fact, the records indicate that one recurring problem was Claimant’s unwillingness to follow the medical regimen that was prescribed for him. To compound matters, he was on a self-imposed hunger strike from April 16, 2001 through April 27, 2001 (see Ex.1). Then, on April 27, 2001, Claimant was involved in an alleged altercation with his cellmate. In his signed statement relating to that event, Mr. Gonzalez complained of many of the same injuries that he alleges in connection with this Claim, including bruises to his left shoulder, head, left knee, back and groin area. Yet, the records also indicate that he refused admission to the infirmary. A May 15, 2001 medical report on the April 27, 2001 incident states that no injuries or new bruises were detected and that Claimant said he was “O.K. now.” A May 16, 2001 record suggests that Claimant had left Upstate by that date and was in transit and that, beginning on May 19, 2001, entries indicate that Claimant was at Southport Correctional Facility where, Claimant testified, his treatment improved. Thus, the Court concludes that the ailments and injuries Claimant complained of received prompt attention and his allegation that he received inadequate treatment is without merit.

Claimant’s charge that his food was tampered with is rejected by the Court as unsupported beyond Claimant’s self-serving allegations.

The Court further determines that the charge that the water to Claimant’s cell was shut off for several days as a form of harassment is, likewise, without merit. An April 16, 2001 notation signed by a nurse Walsh, contained in Upstate’s Ambulatory Health Records for Claimant, indicates that “all [of Claimant’s] medications to be 1:1” (see Ex. 1). Separate memoranda from C.O. Rabideau and Sergeant Allen, each dated April 23, 2001, state that nurse Walsh had advised them on April 18, 2001 that Claimant was being prescribed medication on a “one to one” basis and that any medications in his cell had to be retrieved. Sergeant Allen’s memorandum states that, after Claimant refused to comply with the order to hand over any such medications, he instructed C.O. Rabideau to turn off the water to Claimant’s cell to prevent Mr. Gonzalez from flushing medications down the toilet. The memorandum further states that water service was restored after the medications were retrieved and that Claimant’s “water was off for no more than 45 minutes” (Ex. D). A memorandum from a C. Daggett notes that she advised Claimant’s daughter, during an April 26, 2001 telephone call, that Mr. Gonzalez’ water “was turned off for a short duration one day due to medication issues” (see Ex. 4).

Claimant’s charges that he was harassed in two separate disciplinary hearings that were based upon fabricated reports in violation of his rights under the United States Constitution are unsubstantiated. It is not entirely clear what two hearings Claimant is referencing. However, the Court finds that there is no evidence of harassment in connection with either the misbehavior report regarding the April 3, 2001 “fishing” incident, or the April 12, 2001 disciplinary hearing where he was found guilty of those charges. Regarding the April 3, 2001 report, which involved three other inmates in addition to Mr. Gonzalez, both the testimony of C.O. Corbine and the documentation contained in Exhibit A, impeach Claimant’s assertion that he was the victim of false charges made in retaliation for his testimony on behalf of other inmates. The Court determines that his contention lacks credibility.

Finally, to the extent that any of Claimant’s allegations assert a deprivation under the Federal Constitution, it is long settled that no action may be maintained in this Court against the State for alleged Federal constitutional violations (Matter of Thomas v New York Temporary State Commn. on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656; Welch v State of New York, 286 AD2d 496; Davis v State of New York, 124 AD2d 420). Claimant’s remedy for any such Federal constitutional violations lies elsewhere and any such causes of action are dismissed.

Defendant’s motion to dismiss, made at the conclusion of the trial and upon which the Court reserved decision, is now granted and the Claim is dismissed.

The Chief Clerk is directed to enter judgment accordingly.

June 5, 2007
Albany, New York

Judge of the Court of Claims

[1].All quotations are taken from the audiotape recording of the trial.