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
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
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
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
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). 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
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
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
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
The Chief Clerk is directed to enter judgment accordingly.