New York State Court of Claims

New York State Court of Claims

LANNO v. THE STATE OF NEW YORK, #2008-029-043, Claim No. 110609


Synopsis


Claim brought by correctional facility inmate alleging harassment and excessive force is dismissed after trial.

Case Information

UID:
2008-029-043
Claimant(s):
CHEYENNE LANNO
Claimant short name:
LANNO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110609
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
ANTHONY M. GIORDANO, ESQ.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Wanda Perez-Maldonado, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 22, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate in the State correctional system at the time the claim accrued, seeks damages for a series of incidents occurring at Bedford Hills Correctional Facility and Taconic Correctional Facility between June and October 2004. She alleges that she was the victim of a “harassment campaign” at Taconic and that the “willful, malicious and deliberate actions of the state . . . caused injuries and violated claimant’s rights under the state and federal constitutions, under New York State and federal statutory law and under international laws and treaties relating to human rights and humane treatment of prisoners” (Claim, paragraph “third”).

The first incident occurred at Bedford Hills on June 26, 2004 in the kitchen area of housing unit 112C. Claimant testified that she entered the kitchen and walked near the stove where another inmate was cooking. She stated she was splattered with grease, became startled, turned around and her hand struck the door. [1] The next thing she knew her hand was bleeding and her thumb, which had been severed by the glass in the door, was lying on the floor. She was taken to an outside hospital where her thumb was reattached. After being released from the hospital, she was transferred to Taconic with her hand in a cast. She claimed that a “no handcuff” order was then issued.

Although the claim alleged upon information and belief that the glass in the kitchen door had been previously banned from use in the facility and was supposed to have been removed and replaced with Plexiglass, no proof was offered in support of that assertion. The Bedford Hills plant Supervisor, Mark Hayo, testified that as far as he knew the glass in the kitchen door was there since the original construction of the facility in the 1950's. The glass contained a wire mesh intended to make it stronger and resist breakage during a fire. Although some of the windows in the kitchen area consisted of Lexan rather than glass, Hayo was unaware of any directive or requirement to replace the wire-reinforced glass with Lexan or with anything else. He was also unaware of any problem with the wire-reinforced glass. General Business Law §389-n, cited by claimant, merely requires that all safety glazing material sold in the State be permanently labeled unless the seller furnishes a certificate stating that the glass meets the applicable American National Standards Institute (ANSI) standard. Certainly, whether the glass in question here was properly labeled is totally irrelevant to any issue in this case, regardless of whether claimant struck the glass as part of a reflexive reaction, as she alleged, or intentionally, as defendant alleged. The ANSI standard referred to in the statute was not referenced by claimant, nor was there any evidence or indication that the glass in question here did not meet such standard.

Prior to injuring her hand in the Bedford Hills kitchen, claimant had suffered an injury to her right foot in an incident that is not a subject of this claim. She claimed that she had been allowed orthopedic boots in Bedford Hills but that when she arrived at Taconic, Correction Officer Ball and Lt. Whitmore denied her request for such boots. It is noted that no appropriate permit or prescription for the boots was offered by claimant. She also testified to generalized continuing problems with Lt. Whitmore, that he took her maintenance job away and that he would curse at her and say “it’s my jail . . . I’m the man here.” [2]

The next specific incident complained of occurred on October 8, 2004 when the beds on claimant’s housing unit were being replaced. The inmates were to disassemble their beds and carry them to the loading dock area. Claimant stated she explained to the officer in charge that she was not supposed to be lifting, carrying or pushing and claimed she showed him a “no lifting” order. She stated the officer made a phone call and then told her that Lt. Whitmore said that every inmate has to change the beds. While she was carrying the bed, a portion of it fell on her legs and she fell to her knees. She was taken to medical and given Tylenol. She testified that Lt. Whitmore refused her request that her injuries be photographed. No medical records were produced concerning this incident.

Correction Officer Edmund Cowan was the officer in charge of B Gallery in Building 93, the housing unit at Taconic where claimant resided on October 8, 2004. He confirmed that the beds on the unit were being replaced that day and that the inmates were responsible for disassembling their beds and taking them downstairs. He wrote in the unit’s log at 5:10 p.m. that day: “Inmate Lanno 02 G 0870 has black and blue bruises on her legs. She said while taking apart her bed for removal it fell and hit her on the legs” (Exhibit 11). Cowan testified he never spoke to claimant that day prior to the incident, that she never told him that she had a “no lifting” order and that if she had shown him such an order, he would have directed her not to move the bed and directed another inmate to do it. He further testified that medical restrictions for inmates on the unit are posted on the roster board and that claimant was not listed as having any restrictions.

The final incident that was the subject of this claim occurred at Taconic on October 25, 2004. Claimant testified she was outside, walking from Building 94 towards Building 93 with two other inmates. She saw Ms. Ricard, a counselor whom she knew from Bedford Hills, and walked towards her to talk with her. Claimant stated her leg gave out, she started to fall and she grabbed Ms. Ricard’s shoulders to stop her fall. At this point, she noticed Lt. Whitmore on the second floor of Building 93, through a window. She stated Whitmore came out of the building, grabbed her by the hair, pushed her into a wall and hit her with his elbow. He then allegedly told Ms. Ricard to leave and struck claimant in the head and neck with his elbow. She claimed her mouth hit the wall breaking a tooth, half of which fell out. She was handcuffed, despite informing Whitmore of a “no handcuff” order, and she claimed he hit her a few more times after she was handcuffed. He then jerked the handcuffs, claimant started yelling and Whitmore told one of the other officers to bring her inside to a “back room.” In the back room, Whitmore told her to put her nose on the wall and elbowed her again. She claimed she was also hit by Sgt. Harmon.

Claimant was taken to the clinic where she was given Tylenol. She claimed she requested that pictures be taken but the nurse refused. Claimant was taken back to her housing unit and placed on keeplock status. She claimed she had no bedding for three days, that she was not provided medical attention and that her meals were left outside of her cell so that by the time she got the food, it was cold and had roaches in it.

Nilda Ricard testified that she was standing outside Building 93 talking to two “peer educators” with her back to the path between Buildings 94 and 93 when she felt someone touch the top of her shoulder from behind. She turned around and saw claimant, whom she knew. She said she was a little startled at first but then saw it was claimant and “may have said Hi or something.” Then, Whitmore came out of Building 93 and, in a “loud, authoritative voice” said something about touching a civilian. She stated claimant was put up against a wall. Ricard was “shocked . . . so much happened so fast . . . I just wanted to leave.” She asked Whitmore if she could go to her office, a trailer located nearby, and he said yes. She spoke to Whitmore later in the trailer. She told him claimant’s actions were not an attack or an aggressive move, that she had a professional relationship with claimant and did not feel threatened by her. She stated Whitmore suggested claimant’s actions might have been sexual in nature and she responded absolutely not. She was asked to write a memo describing the incident (Exhibit 2) and she got the impression that Whitmore wanted her to say that claimant made an aggressive move against her but she would not. In her memo, she wrote that claimant had both arms on her upper torso in a “bear hug” but she testified that the language in the memo was Whitmore’s, not hers, and that she felt she had to go along with Whitmore because of her status as a nonemployee “guest” at the DOCS facility.

Ricard did not see Whitmore strike claimant or grab her hair, but she did remember seeing his hand on her. She did not see Whitmore bang her head against the wall nor did she see any officer punch or elbow claimant. She recalled claimant was against the wall but not how she got there.

Sergeant Ronald Harmon was in the same stairwell as Whitmore, above him, when he heard Whitmore say “did you see that, she assaulted her” and saw him run outside. When Harmon got outside he saw a few inmates, Whitmore, Ricard and Officer Martha Ball. Whitmore was interviewing Ricard. Harmon said he had no idea what was going on and did what he was told. Whitmore told him to have claimant frisked and cuffed and Harmon directed Ball to do so. He stated claimant said nothing and specifically did not mention a “no handcuff” order. Harmon denied ever touching claimant. He said there was no need for any force because claimant was not acting aggressively, except that she kept turning around and Harmon kept telling her to face the wall. He never saw Whitmore grab her hair, push her against the wall or elbow her, never saw Ball strike her and never saw claimant bleeding.

Harmon and Ball brought claimant to a small interview room in Building 93. Harmon stated he told Ball to put claimant in the room facing the wall and claimed he never entered the room. At one point, claimant stated her ankle was bothering her but Harmon told her he couldn’t help her because there were no chairs in the room. Harmon claimed that Ball was in and out of the room but neither he nor Whitmore ever entered the room. He estimated that claimant was in the room for about 20 minutes before being taken to the clinic, but the unit’s logbook (Exhibit 13) indicates that she was there for a little over an hour.

Norris Whitmore was a lieutenant at Taconic in 2004, serving either as watch commander or disciplinary lieutenant. He denied ever having any involvement with claimant’s work assignment, which was the responsibility of the Program Committee, or her special footwear, which was a medical issue. He stated he was making rounds at about 9:30 a.m. on October 25, 2004, descending a staircase in Building 93 with a large window facing the outside yard, when he saw claimant walking down the sidewalk from Building 94 to Building 93. He saw claimant leave the sidewalk and walk behind a dumpster. He then saw claimant emerge from behind the dumpster, walk up behind Ms. Ricard and grab her from behind, putting her arms around her upper body and chest area in a bear hug and pulling her backwards. He stated he believed claimant was assaulting Ms. Ricard.

Whitmore ran down the stairs and out into the yard. Claimant saw him and let go of Ms. Ricard. Whitmore directed claimant to move to a wall about 10 to 12 feet away and put her hands on the wall. Claimant complied with that direction and said nothing to Whitmore. By this time, Sgt. Harmon and Officer Ball were on the scene. Whitmore stated he directed Ball to pat frisk claimant and put her in handcuffs. Whitmore denied he had any physical contact with her. He stated he went to check on Ms. Ricard, who told him she was OK, but she appeared upset and shaken. He testified that she did not use the phrase “bear hug” and that he did not recall ever speaking with her again. Whitmore then ordered Harmon and Ball to escort claimant into the interview room in Building 93. He testified he was unaware of any “no cuff” order but that even if such an order had been issued it would not apply where an inmate displayed violent conduct or assaulted a civilian. He did not observe any physical contact between any officer and claimant other than the pat frisk. The facility’s log reflects that Harmon and Ball escorted claimant onto the unit at 9:19 a.m. and that Whitmore arrived at 9:26 and left at 9:28. He stated he informed Harmon that claimant would be taken to the clinic after Ms. Ricard was finished there. The Employee Accident/Injury report reflects that Ms. Ricard was seen at 10:00 a.m., with no complaints or injuries and no treatment required. Whitmore denied he ever entered the interview room or spoke to or had any contact with claimant while she was there.

Photographs were taken of claimant while she was at the clinic, pursuant to Whitmore’s authorization. The original photographs were in color, but the originals could not be located and black and white copies of five photographs were received as Exhibit J.

Linda Romney, a registered nurse employed by Supplemental Nursing Care, a private company that provides nursing staff to correctional facilities, was on duty in the clinic when claimant was brought there. Claimant told her that she lost her footing while walking to Building 93, grabbed Ms. Ricard to break her fall and the next thing she knew, she was pushed against the wall and handcuffed. Romney stated claimant never said she had been assaulted by officers, never said she was banged against the wall and never said anything about a tooth being knocked out. Romney noted no bleeding, no bruising or swelling of her face and no redness. She reported the results of her physical examination as follows:
“Inmate checked from head to toe. Noted [left] upper/outer arm eccymotic area 50 (cent) size. (1) [complaining of] (Rt) wrist numbness and tingling [secondary] to cuff application. (2) [complaining of] (Rt) ankle pain, (Rt) upper/outer foot pain [secondary] to stating she “twisted” her foot when almost falling. Ice applied to (Rt) wrist [history] of surgery to same. (Rt) thumb lower near palm; slight eccymosis noted.”
(Exhibit 1).

Romney was present when photographs of claimant were taken by Correction Officer Debra Linen after the examination. Linen testified she was present when claimant was brought to the clinic by Harmon and Ball, handcuffed behind her back, and stayed with claimant while Romney examined her. Claimant was questioned by the nurse for about 15 minutes and was then brought into the examining room. Linen stated that, on the way into the examining room, claimant said she had been “beaten up.” After the examination, which took another 15 minutes, Linen took five photographs (Exhibit J) and filled out a Photograph Log form (Exhibit K). She testified she never saw any bleeding or any abrasions on claimant’s face. The black and white copies of the photographs show no apparent injuries.

After careful consideration of all the evidence, the court concludes that claimant has failed to meet her burden of proof with respect to any of the various causes of action arising out of the incidents alleged in this claim.

Regarding the June 26, 2004 incident where claimant injured her hand on the glass door, the court has already noted that there was no proof supporting claimant’s contention that there was anything improper about the glass on which she was injured or indicating that any negligence or culpable conduct on the part of any State employee played a role in her injury.

With respect to claimant’s allegation of injury while carrying bed parts, claimant did not submit any order or medical direction restricting her from such work, nor did she submit records of medical treatment for any injury allegedly sustained in the incident. Officer Cowan’s testimony that he was unaware of any such order and that claimant was not listed on the unit’s medical roster as having any restriction on her activity was credible. Claimant’s testimony that she advised the officer of her restrictions and provided him with a copy of an order was unsupported by any evidence and lacked credibility, as did most of her testimony in this case. At the very least, the court would expect to have a copy of the alleged order submitted by claimant. None was forthcoming.

Claimant’s allegations that Lt. Whitmore engaged in a campaign of harassment against her do not state a cause of action for damages. It is settled law that “New York does not recognize a common-law cause of action to recover damages for harassment” (Daulat v Helms Bros, Inc., 18 AD3d 802, 803 [2d Dept 2005]). The allegations that Whitmore interfered with claimant’s work assignment, prevented her from wearing proper footwear, cursed at her repeatedly and forced her to stand handcuffed in an interview room for an hour might properly form the basis of an institutional grievance with subsequent judicial review. They are irrelevant to any cause of action for damages justiciable in this court.

To the extent that the claim referenced alleged violations of the State and Federal Constitutions, the court notes that it lacks jurisdiction over any claim based upon federal constitutional rights (Welch v State of New York, 286 AD2d 496 [2d Dept 2001]; Davis v State of New York, 124 AD2d 420 [3d Dept 1986]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). Claimant neither identified any particular section of the State Constitution allegedly violated nor proved that any conduct of defendant’s employees even approached the level required to constitute a constitutional violation. It is apparent that claimant and Lt. Whitmore did not have the best of relationships, a circumstance that was undoubtedly unfortunate for claimant given their respective positions at the correctional facility. Nevertheless, every unpleasant experience does not give rise to a cognizable cause of action for damages. The court does not know the extent to which claimant utilized the grievance process with respect to Lt. Whitmore’s actions towards her, nor does it know if any such grievances were successful. However, that process is the proper forum for such allegations.

There remains only the October 25, 2004 incident involving claimant’s encounter with Ms. Ricard. The testimony concerning this incident was troubling to the court because each of the two main participants, claimant and Whitmore, was severely lacking in credibility. Claimant’s allegations that she was beaten against a brick wall and struck repeatedly in the head and face were belied by the absence of any corroborative medical evidence that she suffered any injury whatsoever from the brutal assault she described. It was also unsupported by the testimony of any of the various witnesses.

Whitmore’s recollection of the incident was barely more credible than that of claimant. Claimant’s description of the encounter with Ms. Ricard – innocuous, incidental contact – was supported by Ms. Ricard, particularly by her testimony that Whitmore cajoled her into writing an account of the incident more in line with what he perceived than with what actually occurred from her point of view. The thought that Whitmore was predisposed to assume the worst with regard to claimant is somewhat inescapable.

Nevertheless, the disciplinary charges that Whitmore brought against claimant are not at issue here. The only potential cause of action arising out of this incident is the alleged excessive use of force by Whitmore and, as already noted, the record does not support the conclusion that any force was used against claimant in this incident other than the application of handcuffs. Certainly, no violation of Correction Law §137(5) or 7 NYCRR §251-1.2(a), both of which authorize the use of reasonable force to the degree necessary in the correctional setting, was established.

Based on the foregoing, the court finds that claimant failed to establish any cause of action for damages and that this claim must be and is hereby dismissed. Let judgment be entered accordingly.

October 22, 2008
White Plains, New York

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




[1].The documentation from Bedford Hills indicated that claimant punched the door after being burned and put her hand through the glass (Exhibits 5 and 6).
[2].Unless otherwise indicated, all quotations are from the court’s trial notes.