New York State Court of Claims

New York State Court of Claims

BARRINGTON v. THE STATE OF NEW YORK, #2008-029-028, Claim No. 112252


Synopsis


State found liable for excessive use of force against inmate by correction officers.

Case Information

UID:
2008-029-028
Claimant(s):
HENRY BARRINGTON
Claimant short name:
BARRINGTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112252
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
ERNEST HOLZBERG & ASSOCIATESBy: Richard Holzberg, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 25, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate at Green Haven Correctional Facility, seeks damages arising out of a May 30, 2005 confrontation, involving five correction officers, that he alleges was a brutal and unprovoked assault and battery. In addition to his own testimony, claimant called three of the officers involved in the incident in support of his claim.

Officer Jeremy Burch testified that he was the G Block officer on the date in question and that he was involved in an altercation with claimant at the “keeplock pat frisk” [1] area of the block. Burch, who testified he is 6' 6" tall and weighs 265 lbs., stated he was in the area while Officer Ohl was conducting a pat frisk of claimant prior to his being brought out for recreation. Claimant was standing facing the wall with his hands on the wall and his feet spread apart while Ohl frisked him. There were no other inmates in the area because keeplock inmates are brought to recreation one at a time. Burch recalled that claimant was in keeplock for making threats after his radio had been taken for noise violations. Burch testified that while claimant was in the “pat frisk” position and Ohl was frisking him, claimant tried to strike Ohl with his elbow and Burch then grabbed claimant around the waist and forced him to the floor.

At this point, Burch’s memory became spotty, at best. He did not recall where Ohl was at this point or whether he had also grabbed claimant. He did recall how much time elapsed between claimant’s alleged elbow movement and Burch grabbing him by the waist. He did not recall if claimant had changed position from the pat frisk posture. Once on the ground, he remembered claimant kicking his feet and flailing his arms but did not recall how long this resistance continued or if Ohl was also involved in trying to restrain claimant. He denied punching or kicking claimant or striking him in any way. The incident ended when Officer Huttel handcuffed claimant. Burch did not remember if any officers other than himself, Ohl and Huttel were involved in the incident.

Burch claimed not to have noticed any injuries to claimant. He stated that once claimant was restrained, he and Ohl left the block to seek medical attention although he was not injured and could not remember if Ohl was injured. From there the two officers proceeded to the sergeant’s office where they filled out an incident report.

Claimant’s counsel asked Burch about a May 25, 2005 incident, five days prior to the incident in question. Burch remembered writing claimant a “ticket” but nothing else about the incident. After being shown an Inmate Misbehavior Report (Exhibit 2) in which he charged claimant with disobeying a direct order to return to his cell in front of a group of other inmates, he recalled the incident. At trial, he stated that while he considered claimant’s conduct that day to be a significant act of disobedience, it was a common occurrence at the correctional facility. He denied counsel’s assertion that the May 30 incident was motivated by his desire to retaliate for the earlier incident, which also formed the basis of a grievance against Burch by claimant (Exhibit 1) to which Burch was required to file a written response. Burch had little recollection of the specific allegations of claimant’s grievance.

Under questioning by defense counsel, Burch indicated that the May 25 incident arose out of claimant playing his radio loud, without headphones, in violation of facility policy. He stated he told him to lower the radio, that claimant did not comply with that request, and the radio was confiscated, either by Burch or another officer. The misbehavior report alleges that claimant was demanding the “paperwork” for his confiscated radio when Burch ordered him to return to his cell. Burch did not know when claimant was placed on keeplock status as the result of the May 25 incident, although the misbehavior report indicates that he was confined as the result of the incident. Claimant remained confined to his cell except for recreational periods, through May 30.

Defense counsel referred Burch to his response to claimant’s grievance about the May 25 incident. Claimant had accused Burch of banging on his cell bars with his stick and using racial epithets, which Burch denied in his written response (Exhibit 9). Burch testified that he was not disciplined or reprimanded as a result of this incident.

Correction Officer Jeffrey Ohl recalled that Burch, Huttel and other officers were in the area on May 30 as he prepared to frisk claimant. He did not recall the names of the other officers or how many there were. He testified that claimant came out of his cell, deposited several articles on the floor and put his hands on the wall in the frisk position. Ohl recalled that he wasn’t “comfortable” with claimant’s position and that the incident “happened so fast.” Claimant had put the items on the floor to the right side of where he was standing and turned back to the left to put his hands on the wall. Ohl stated he was about one and one-half feet from claimant when he asked him if he had anything else to put on the floor. At that point, according to Ohl, claimant took his left hand off the wall and “swung with his left elbow.” Ohl then “grabbed him around the upper torso and forced him to the floor,” landing on top of him. He estimated about five seconds elapsed from when claimant took his left hand off the wall to when he was on the ground. Ohl recalled he was trying to get control of claimant’s hands and that claimant was struggling. He did not know what Burch was doing. Claimant was then handcuffed by Huttel while Ohl held his hands and Ohl then left the scene, with Burch, first to the clinic, although he was not injured, and then to the sergeant’s office to fill out reports.

Ohl, who testified he is 6' 2" tall, weighs 205 lbs., and holds a second degree black belt in combat Hopkido, denied punching, kicking or otherwise striking claimant.

Ohl initially denied any involvement in the May 25 radio incident, other than knowing that there had been a “situation” with the radio. It was pointed out to him that he had signed the Inmate Misbehavior Report (Exhibit 2) arising from that incident as a witness. He then recalled that he had told claimant to lock back into his cell, that claimant had complied with his direction, and that claimant had filed a grievance against him. Other than that, he stated “I really don’t remember it at all.”

With respect to the May 30 incident, Ohl claimed his only use of force was the “bear hug” he used to take claimant to the floor and the struggle after that. He stated he was not disciplined after the incident.

Correction Officer Daniel Huttel was the SHU escort officer on May 30, 2005 but was present on G Block that morning. He stated he was standing at a podium, about ten to fifteen feet from claimant, who was being frisked by Ohl – his “hands were high on the wall and his feet were spread.” He heard Ohl giving claimant instructions in the pat frisk procedure – “he was giving some sort of orders” – and the next thing he knew he heard a commotion and saw claimant “come off the wall.” Ohl was approximately one foot behind claimant. Huttel did not recall where Burch was.

Huttel looked down the company and made sure no other inmates were out of their cells, then assisted the two officers who were struggling with claimant on the ground. Claimant was “struggling and yelling,” with Burch on top of his lower body and Ohl on top of his upper body. Huttel applied handcuffs and then “stood him up to avoid positional asphyxiation from the heavy officers on top of him.” Huttel then escorted claimant out of the block, assisting him in walking because he was limping, and leaned him against a wall. He stated he went with claimant to the clinic and filled out paperwork. Huttel was not injured in the incident. He denied seeing any other officer punch or kick claimant.

Claimant, who was 41 years old at the time of the incident, stands 5' 9" tall and weighs 160-170 lbs. He testified he had been incarcerated for 14 years on convictions for attempted murder, weapons possession and robbery. He alleged that prior to the two incidents at issue at this trial, his prison disciplinary record was limited to a 1993 conviction for possessing a weapon (a piece of sharpened steel) at Ogdensburg C.F. and a 1998 conviction for failing to mop and sweep and for taking something from the mess hall. Claimant arrived at Green Haven in January 2005 and had been housed on G Block for about two months as of the end of May.

Claimant testified that he was sleeping in his cell at about 7:30 a.m. on May 25, 2005 when he heard banging on his cell bars. He saw Officer Titka standing over him and the officer told him to turn his radio down. He stated he “flipped the switch” and went back to sleep. He again heard banging and awoke to see Officer Burch, who told claimant to give him the radio and his headphones, which he did. Claimant alleged Burch called him stupid, using a racial epithet, and walked away. After the radio was taken, the cell doors were opened for chow. Claimant stated he walked to the “A man station” (the officers’ station) and asked Burch to give him a receipt for the radio and headphones and a grievance form. Burch allegedly told him, profanely, to “get away from my cage.” Officer Ohl then told him to lock into his cell. Claimant maintained that his tone was respectful and that he was shocked at the officers’ responses. He stated he had never experienced this treatment in all his years in prison. He claimed he turned to Burch and said “all I’m asking for is a receipt and a grievance form,” and Burch, again using profanity and racial epithets, told him to “shut up . . . this is our house.” Claimant then returned to his cell.

According to claimant, Titka came to claimant’s cell later in the day and told him he would return the radio at the end of the shift but that if claimant persisted in requesting a receipt, the officer would have to write him a ticket. Claimant stated he responded “whatever” and later in the day he wrote his grievance (Exhibit 1), which he did not file until after he was served with the misbehavior report charging him with refusing to lock in his cell and being loud and belligerent. The grievance against Titka, Burch and Ohl contained essentially the same allegations as claimant’s trial testimony.

Claimant testified he did not leave his cell on May 26, except to file the grievance, or on the 27th except to take a shower. He alleged that on the 27th, Titka waved a copy of the grievance in his face and, again using profanity and racial epithets, said “you can write, but me and my boys are going to get you.” He did not leave his cell on the 28th, but on the 29th he went out to recreation without incident, and was not searched or pat frisked when he left his cell. He requested recreation again on the 30th.

On that date, according to claimant, he was let out of his cell at about 9:00 a.m. and he walked over to the gate and stopped. He was the only keeplock inmate let out for recreation that day, as opposed to the previous day when there were four to seven such inmates let out. Officer Huttel was sitting behind a podium and he said to claimant, “over there,” and pointed to the front of the A man station where there was a mat on the floor. Claimant stated he knew Huttel was sending him there to be searched. Ohl came out of the station, with Burch right behind him, and two other officers whom claimant could not identify remained in the station. Ohl said to claimant, “standard procedure . . . what you got in your pockets?” and claimant emptied his pockets onto the floor. Ohl said, “on the bars,” and claimant assumed the search position with his hands on the bars in front of him and his feet spread. Claimant stated he was “trying not to move . . . not to breathe,” when he heard Ohl say, “watch this,” and felt hands hit him from behind. Suddenly, Ohl and Burch pulled him from the bars and slammed him to the ground and the next thing he knew all of the officers were hitting and stomping him. He claimed that the two officers he could not identify grabbed his two legs and held them like a wheelbarrow while Ohl, Burch and Huttel punched him in the face. When the two officers lifted his legs, he felt pain in his left leg and heard a cracking sound. He stated he cried, “you broke my leg.” Two officers lifted him from the floor and he cried out again and the officers pushed him back down. Ohl told him to get up, Huttel cuffed his hands behind his back, Ohl said, “get him out of here,” and other officers dragged him out into the hallway and threw him against the wall, where he was standing on one leg. A woman (named Eileen, presumably a nurse) and an inmate came with a stretcher and brought him to the clinic.

At the clinic, officers tried to remove claimant’s clothes but Eileen stopped them due to his injuries. Part B of the Use of Force Report (Exhibit 10), completed by a nurse (not named Eileen), describes claimant’s injuries as including a 2½ cm laceration of his right ear, a 2½ cm bruise on his right eye, a bloody nose on the left side, a laceration on his wrist, swelling and edema on the outer aspect of his left knee and complaints of pain in his left knee and his neck. Claimant’s neck was immobilized and claimant was taken to St. Francis Hospital, where X rays confirmed that claimant had sustained a supracondylar metadiaphyseal fracture of his left femur, for which he underwent an open reduction involving insertion of a plate and multiple screws. [2]

Claimant denied that he ever disobeyed a command during the incident. He denied that he instigated any confrontation with the officers, whom he referred to as “giants.” The grievance he filed as the result of this incident was denied and claimant was convicted of assaulting staff, refusing a direct order and refusing a search or frisk as the result of the incident.

The sole witness called by the defense was Officer James Titka. He was not present during the May 30 altercation and his testimony was limited to the May 25 incident concerning the radio. He stated that he took claimant’s radio after claimant refused to lower it. He initially did not intend to issue claimant a ticket and that he told claimant that if he gave him a receipt for the radio he would have to issue a ticket. He claimed his “policy” is not to issue a ticket under such circumstances but rather to just return the radio to the inmate the next day, but claimant insisted on a receipt. Titka stated he did not know claimant prior to that date and could not recall if claimant had also asked for a grievance form along with a receipt for the radio. He was shown the grievance filed by claimant after the May 25 incident, in which claimant alleged that he, as well as Burch and Ohl, used racial epithets and otherwise acted improperly towards him. Titka testified that he never made the statements that claimant attributed to him in the grievance.

Claimant presented considerable testimony and evidence concerning the confiscation of his radio and the resulting grievance contending that this was the motivating factor behind the May 30 incident in which he sustained the injuries referenced above. However, final determination of the May 25 incident is not necessary to decide this claim. The gravamen of the claim at bar is that excessive force was used against claimant on May 30, 2005, and if the court finds the force used “was more than necessary under all the circumstances” (Jones v State of New York, 33 NY2d 275, 280 [1973]), it is irrelevant whether the officers were motivated by some desire to exact revenge for the May 25 incident and resulting grievance.

Correction Law § 137 (5) provides that “no officer or other employee of the department shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection,” but that if an inmate “shall offer violence to any person . . . or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves [and] to maintain order.” The applicable regulation provides that “[t]he greatest caution and conservative judgment shall be applied in determining (1) whether physical force is necessary; and (2) the degree of such force that is necessary” (7 NYCRR § 251-1.2 [a]) and that “[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used” (7 NYCRR § 251-1.2 [b]).

Here, as in most such cases, in determining whether the use of force against claimant was “more than necessary under all the circumstances,” the court’s assessment of the credibility of the testimony, and the extent to which the other evidence bears on that assessment of credibility, is crucial (see Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Davis v State of New York, 203 AD2d 234 [2d Dept 1994]; Hinton v City of New York, 13 AD2d 475 [1st Dept 1961]. Moreover, such assessment must be made with due consideration of the “ ‘formidable tasks’ of maintaining order and security in correctional facilities and protecting the safety of inmates and employees” (Arteaga v State of New York, 72 NY2d 212, 217 [1988]).

At the outset, I note that virtually none of the witness testimony in this matter bore any sign of “absolute truth”. Neither the highly selective memory of the C.O.s nor the protestations of the lamb-like innocence by claimant are particularly persuasive to this court. Virtually the only corroborated fact in the record is Titka’s “policy” regarding the confiscation and return of loud radios.

Even assuming the truthfulness of Ohl’s testimony that his perception was that claimant moved his left hand from the bars in a manner that Ohl perceived as threatening, the court is constrained to conclude, based on the totality of the evidence, that a much greater degree of force than was necessary to respond to the situation was applied by these officers. Claimant was immediately set upon from behind by two officers – Burch and Ohl – who should have had claimant under complete control at that point. Ohl himself testified that claimant was on the ground within five seconds. There was no reason for the intervention of the other officers, whom neither claimant nor Ohl could identify but both agreed were present. Indeed, it was these unidentified officers who claimant alleged were responsible for fracturing his leg. Crucial to the court’s conclusions is the fact that the Use of Force Report and the hospital records reflect injuries consistent with the scenario described by claimant and totally inconsistent with the cautious and conservative application of a limited amount of force, as prescribed by the department’s regulations and as testified to by these officers (see Hinton v City of New York, supra). The testimony that claimant was not punched or struck was belied by the injuries described by the nurse in the Use of Force Report, as was Burch’s disingenuous claim that he did not notice any injuries to claimant. Defendant’s assertion that claimant was merely taken to the ground by bear hugs, and that his leg must have been broken when one of the heavier officers fell on him, was similarly not supported by the evidence. Further, the idea that claimant walked to the clinic with a femoral fracture strains any credibility the court might grant to the account by the C.O.s.

The court appreciates the difficult task involved in maintaining order in a maximum security correctional facility, and further appreciates the split-second nature of the decisions made in this effort. However, the court finds that claimant’s description of the encounter, supported by the limited corroborative testimony of Titka and the objective evidence of his injury, were more credible than that offered by the officers involved and that a finding of liability is compelled by any realistic evaluation of the evidence. The court further finds that there is no basis for an allocation of contributory fault on the part of claimant.

Accordingly, the Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability, after which the court will schedule a damages trial.


July 25, 2008
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1].Unless otherwise indicated, all quotations are from the electronic recording of the trial.
[2].Although the trial was bifurcated, with only liability to be determined, portions of claimant’s medical records were received for the limited purpose of assisting the court in assessing claimant’s injuries to the extent they clarify the force used by the correction officers.