In this claim filed on October 15, 2001, Claimant seeks damages for injuries
sustained from an alleged assault and battery by Correction Officer (CO) Edwin
on November 16, 2000, at Wende
Correctional Facility (Wende). A notice of intention to file a claim was served
on January 21, 2001. Claimant alleges a fracture of the proximal tibia of his
right leg and one fractured or broken right rib.
Claimant was in the Mental Health Unit (MHU) at Wende when he contends that he
had an argument with Sgt. Mendez who struck him with his left fist, after which
he was restrained and handcuffed and then allegedly beaten with a baton in the
rib cage, right leg and head. Claimant seeks $5,000.00 in damages for the
injuries he sustained.
He was then transferred to the Central New York Psychiatric Center (CNYPC)
where, according to his testimony, his fractured leg from the initial incident
was then “broken” and eventually casted. The liability aspects of
this claim revolve around the events preceding that transfer and
Claimant’s subsequent transfer from CNYPC to Attica Correctional Facility
(Attica). Should I determine that Defendant is culpable, I will examine the
injuries and subsequent medical treatment resulting from the incident.
The underlying incident took place on the morning of November 16, 2000, at
approximately 8:10 a.m. when Claimant stepped outside of his dormitory to have a
“smoke break” and Sgt. Mendez directed Claimant to return to his
dormitory, questioning why Claimant was outside. Claimant and Sgt. Mendez
initially had a verbal disagreement, and then it “picked up” again a
few minutes later after Claimant had returned to the dormitory. It was
Claimant’s testimony that Sgt. Mendez just hit him in the right temple and
then they “locked up,” with each grabbing the other. Claimant
testified that another officer pulled an alarm, came to the assistance of Sgt.
Mendez, and eventually Claimant was handcuffed behind his back. It was then
that Claimant alleges approximately four other COs arrived, and he was allegedly
hit by Sgt. Mendez with a baton in the tibia, ribs and back (see
photographic Exhibits 8 and C). Claimant testified as to various medications he
has been prescribed as a result of the injuries he sustained, including the pain
medications “autram,” “loboxin,” and at the time of
trial, “flexeril” (all medications are spelled phonetically). He
described continuing pain in his back, and weather-sensitive leg injuries.
As a result of this incident, Claimant was involved in a disciplinary
proceeding for which he was found guilty related to the physical interaction,
etc., with Sgt. Mendez and the other correction officers. While the charges and
results thereof were not offered into evidence, that can be explained by
observing that the Superintendent’s Hearing conducted on February 12,
for the incident of November 16, 2000,
was administratively reversed on November 13, 2001 by Donald Selsky, Director,
Special Housing/Inmate Disciplinary Program (Exhibit 6). While there was some
discussion at trial relating to the reason for such reversal, to wit, whether it
was substantive or procedural, in a memorandum from Mr. Selsky to the
Superintendent of Attica advising of the reversal (Exhibit M), it was for the
reason that: “After discussion with Attorney General’s Office it was
deter[mined] that the inmate was inappropriately denied the opportunity [to]
obtain documentation previously provided for the developmen[t of] his
That explanation is vague and provides no insight to the Court as to the actual
reasons for the reversal but it does not appear to have been on the merits of
Claimant did testify that after the initial disciplinary hearing at Attica he
had been sentenced to SHU and was there for ten months before he brought a CPLR
article 78 proceeding, which he contends led to the Selsky reversal noted above.
Regardless, no formal record of evidence regarding the original disciplinary
proceeding, or any pleadings, papers, orders or decisions relating to an article
78 proceeding are before this Court. Claimant’s testimony in this regard
Claimant had been given an opportunity to request witnesses for his
disciplinary hearing and to provide statements to the Inspector General’s
Office for its investigation and he named all four inmates from his MHU dorm --
inmates Ochio, Melendez, Green and Linear, but none of them testified. At the
instant trial, Claimant was confronted with written statements from Ochio,
Melendez and Green and asked about the substance of such statements. However,
since none of those were offered or admitted into evidence, and since none of
those inmates were present at trial, I have given no weight and ascribed no
probative value to the contents thereof, all of which would seem to have been
adverse to Claimant. Those hearsay statements, made without penalty of perjury
and not under oath, and without cross-examination, have been disregarded.
Subsequent to the initial incident, Claimant was involved in a physical
altercation at CNYPC on December 26, 2000, and during this physical
incident/altercation with another inmate, the other inmate fell on the floor
atop Claimant. The medical record reflects that Claimant struck his leg on a
bookcase (Exhibit J). It was then that Claimant was taken to a hospital, his
leg was x-rayed, and only then was a fracture of his tibia diagnosed and
eventually placed in a cast. Claimant stressed that the fracture of his right
tibia first took place in the alleged assault by Sgt. Mendez, but was not
diagnosed until December 26 after this second incident. There are no medical
records to support such a theory, and it certainly is not supported by medical
testimony. Moreover, the SHU entrance exam (Exhibit H) on November 16, 2000,
the day of the incident, only discusses injury/swelling to Claimant’s
right cheek, forehead, and upper lip with a good range of motion but pain in his
jaw. There is no reference to a leg injury on Exhibit H. To the extent that
Claimant alleges that he was struck several times on the proximal tibia, all by
Sgt. Mendez, there is no complaint thereof in Exhibit H.
Sgt. Mendez is the alleged assaulting officer who was assigned to the Mental
Health Unit (MHU). He testified regarding his specific training for serving in
MHU. Sgt. Mendez, with some 22½ years of experience, had not had any
earlier incidents or problems regarding Claimant prior to the one in
On November 16, 2000 a use of force memorandum regarding this incident was
provided to the Wende Superintendent (Exhibit N), but was not signed by Sgt.
Mendez because he had sustained a fractured right hand in the altercation with
Claimant. Sgt. Mendez also sustained an injury to his right eye, with both
injuries clearly depicted on photographs contained on Exhibit Q. Needless to
say, Sgt. Mendez’s testimony differs significantly with that of Claimant.
He describes a defiance of his order to Claimant to go back inside the dorm,
with Claimant poking him in the chest and then striking him in the right eye.
Sgt. Mendez then grabbed Claimant around the waist in a body hold, falling to
the ground, in the process of which, breaking his hand. The floor was concrete
with tile on top, and Sgt. Mendez sustained a boxer-type fracture with the bone
“pushed out” when he fell full force on his hand with his arms
Claimant continued to throw
punches despite the bear hug body hold and, after a couple of minutes, Sgt.
Mendez was able to pull the pin to alert other correction officers of an
incident requiring assistance in a Level 2 response. Some five officers
responded quickly, and together they were able to subdue
Sgt. Mendez described Claimant as argumentative, loud, boisterous, nasty and
belligerent in response to several direct orders to return to the dorm, and his
failure to comply with those orders. The reason for requiring the return to the
dorm, according to Sgt. Mendez, was that it had to be secured (locked) and that
was the policy with respect to the MHU dorm, unless the inmate had permission
for a “scheduled” particular purpose, nonexistent here. Claimant
wanted a smoke break and had no scheduled appointment. Sgt. Mendez strongly and
credibly denied having struck Claimant with a baton, particularly as he is
right-handed, and his right hand, the one next to the baton on his belt, was
broken and became swollen after the fall to the ground. His testimony was
plausible and credible.
Correction Officer Mark Everett, with some 26 years of service and who had been
assigned to the recreation tour at the MHU dorm since about 1994 and was so
assigned on the day of this incident, testified that he was one of the
responding officers to the personal alarm sounded by Sgt. Mendez. He described
observing Claimant on the ground and his action in subduing, restraining and
eventually handcuffing Claimant behind his back, then escorting him to the
facility hospital (see Exhibit R). He specifically denied,
unequivocally, dragging Claimant to the hospital, cogently noting that to have
done so across a yard full of inmates probably would have created a riot. He
described an uneventful escort of the Claimant, restrained with handcuffs, to
the infirmary and back. He also testified that he had not used a baton, and
that the use of force report (Exhibit O) similarly reflects no use of a baton,
contradicting Claimant’s assertions.
Correction Officer Jerry Wood, an officer with 25 years of experience,
similarly testified that he responded to the alarm and assisted in restraining
Claimant’s left shoulder and, after handcuffing, escorting him to the
Regional Medical Unit without incident (Exhibit S).
The claim for injuries sustained in an alleged assault upon Claimant is denied.
I find that the Claimant’s testimony is vague and unspecific, particularly
the assertion that his leg was fractured in this incident, but that it did not
manifest itself until nearly six weeks later on December 26, 2000, and is
further belied by the SHU entrance examination on November 16, 2000, which
contains no mention of a leg injury (Exhibit H). Moreover, it was graphically
apparent, after viewing photographs of Claimant standing (Exhibits 8 [color] and
C [black and white]) when contrasted with the black and white photographs of
Sgt. Mendez (Exhibit Q), that the far worse injuries were sustained by Sgt.
In sum, I find that Claimant assaulted Sgt. Mendez, that he was thereafter
restrained and handcuffed, that no baton was then utilized in this incident, and
that the fracture of the proximal tibia of his right leg occurred in the second
incident on December 26, 2000, a finding reinforced by the absence of the report
of any leg injury, while the swelling on his right cheek, mid-forehead and upper
lip and the pain in his jaw were noted (Exhibit H). I find that neither Sgt.
Mendez nor any other correction officer assaulted Claimant on November 16,
This claim is dismissed. All motions not heretofore ruled upon are now
LET JUDGMENT BE ENTERED ACCORDINGLY.