New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-030-025, Claim No. 110711


While State not liable for bullying behavior of civilian cook who extorted “little debbie” cakes from inmate claimant at his work assignment in correctional facility kitchen, State is liable for the assaultive conduct of its agents at correctional facility. No permanency of injuries established through medical records or expert testimony. $5,000.00 damages for placing claimant in imminent fear of harm and for intentional, offensive, touching.

Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

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Claimant’s attorney:
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Signature date:
November 25, 2008
White Plains

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See also (multicaptioned case)


Johnny Johnson, a former inmate proceeding pro se, alleges in his claim that while he was in the custody of correctional facilities operated by the New York State Department of Correctional Services [DOCS], personnel there first negligently allowed his brutalization and extortion at the hands of the head cook - a civilian State employee - and thereafter engaged in a course of intimidation and harassment, in retaliation for claimant’s accusations concerning such cook, all causing him injury. More specifically, he alleges that on or about March 31, 2003 he was assigned to the kitchen at Mid-Orange Correctional Facility [Mid-Orange], when Ronald Jefferson, the head cook in the kitchen, began the use of threats and beatings to force claimant to purchase commissary items with his own money for the use of the cook. The threats of exposure to the prison population concerning the offense for which claimant was incarcerated, and physical assaults, continued for a period of nearly five months, he alleges.

On August 28, 2003 Mr. Johnson was transferred to Mt. McGregor Correctional Facility [Mt. McGregor], where a pattern of harassment by correction officers continued he alleges, because of claimant’s cooperation with the Inspector General’s Office during their investigation of Jefferson at Mid-Orange. One specific allegation in the written claim concerning such transfer recites:
“. . . The officers who transported me told the officers at Mt. McGregor what occurred, and the new officers began threatening and harassing me for the months of September and October, including writing a false misbehavior report; handcuffing me and placing me in a room with my face into the corner while they banged on the walls with sticks, over my head . . .” [Claim No. 110711, ¶ 7].

In October 2003, claimant alleges he was transferred to Hudson Correctional Facility [Hudson], at the behest of the Inspector General’s Office, and although he was threatened by civilian personnel there as well, including another civilian cook, he was also assisted by correctional personnel who credited his claims of harassment and investigated.

Mr. Johnson alleges that in December 2003, he testified during an arbitration hearing held by DOCS concerning Jefferson. Jefferson was dismissed thereafter.

A unified trial was held concerning this claim on October 15, 2008.

Mr. Johnson testified essentially as alleged in his claim. He indicated that he was serving time at Mid-Orange on a conviction for the rape of a minor. He said that generally, those who were convicted of such a crime, liked to “keep a low profile.”[1] He said “they just want to do their time, make a correction and leave.”

When he began his work assignment in the kitchen the head cook, Ronald Jefferson, kept pressing him to reveal why he was incarcerated. Since claimant did not think such information was any of Mr. Jefferson’s business, he refused to answer. Mr. Jefferson at some unspecified point came down to the kitchen area, called Mr. Johnson aside and directed him to the “vegetable room”, closed the door, and then “viciously punched” claimant in the ribs, while not saying anything. This occurred “several times over a period of days,” where Mr. Jefferson would hit claimant “in the ribs, the stomach, the back and sometimes the arm, for no apparent reason.” Mr. Johnson did not report these incidents.

Mr. Jefferson learned from another source - an Officer Kannon - what claimant’s crime was. He approached claimant, and said “I know what you’re in here for. I like ‘Little Debbie’ cakes, so bring me some.” Mr. Jefferson’s demands for cakes would occur in front of other inmates, Johnson said, but the punching and threats of exposure concerning his crime to other inmates were unwitnessed, as they occurred in secreted places in the large kitchen.

In late June 2003 Mr. Johnson did not bring the demanded “Little Debbie cakes” on one occasion. Mr. Jefferson directed claimant to get the bread out of the freezer. As claimant was opening the freezer door Mr. Jefferson - “who weighed something like 400 lbs “ - came behind Mr. Johnson and grabbed him, lifted him in the air, and “started shaking [his] body up and down like [he] was a rag doll,” saying “see motherf****r, I’m tougher than you’all inmates, I’ll f**k one of you all up!” Mr. Jefferson then dropped him down and claimant hit the ground.

At some point after the freezer incident, claimant sought medical assistance [see Exhibits 1 and A] and utilized a back brace and a cane, as shown in medical excuse forms dated in early July 2003. [Exhibit 2]. He did not, however, tell anyone that he had been battered or extorted by Mr. Jefferson.

After the freezer incident, claimant said that Mr. Jefferson continued the abuse. One “commissary day” Mr. Jefferson told claimant he wanted things from the commissary. Claimant told Mr. Jefferson “I do not want to get those items because of the sugar [since he suffered from Diabetes], and also because I want to save money.” Nonetheless, when claimant went to the commissary, he asked for Jefferson’s items. Arriving at the commissary when it was closing, he was told he could not go in. Mr. Johnson told the “commissary lady” - whose name he later learned was Tina Tamok - that he needed the items “for Jeff.” Claimant testified that she told an officer about this request, but he still was not allowed in to get the items. The next day, when claimant did not have the items Jefferson had wanted, Jefferson hit him again.

By way of explanation as to why he did not report these events, claimant said that in prison, “you can’t just go to somebody because the employees look out for each other.” He did “not know who to talk to.” He thought he would approach Officer Kannon because Kannon would greet claimant with a “good morning” and ask him how he was doing, and thus seemed approachable. He spoke to Officer Kannon on August 3, 2003 [see Exhibits 1 and A], who then spoke to his own supervisor.

This was the first complaint Mr. Johnson ever made about the abuse by Mr. Jefferson.

Within a short time after such report, the Inspector General’s Office began its investigation. Mr. Johnson was interviewed by Mark Miller of the Inspector General’s Office on August 28, 2003. [Exhibits 1 and A]. As Mr. Johnson recalled it, he was told to go to the administration building “one day”, and while there, he was “whisked down the hallway and into some room” where he first met Mark Miller from the Inspector General’s Office. Telling Mr. Miller he did not want to give him any information, Mr. Miller kept asking why claimant was in the infirmary, why did he have crutches and a cane, and ultimately claimant told him about the beatings. Claimant said to Mr. Miller, “I can’t be protected in here, because they all work together” but Mr. Miller said, “don’t worry, I’m gonna take care of you.”

Claimant testified that investigators wanted to “catch” Mr. Jefferson engaging in the extortionate behavior. At their instruction, he wrote his initials on a box of Little Debbie cakes, and gave the box to the cook. Unbeknownst to claimant, investigators were in the area when claimant went to work. After he gave Mr. Jefferson the cakes, claimant was “taken away in handcuffs”, and “kept in a cell” and then transferred to Mt. McGregor. He could not see what was happening to Mr. Jefferson.

As soon as Johnson got to Mt. McGregor, the correction officers “harassed” him about his involvement in the incident with Mr. Jefferson. “It had followed” him, he avowed. One day he was beaten up and dragged downstairs in the cellar of the administration building and handcuffed. He said his “face was in a corner of a wall”, and officers were “banging night sticks against the wall telling me they were going to crack my skull open and to keep my mouth closed.” Fearful for his life, claimant “asked the lieutenant to call Mark Miller.” Mark Miller “came and got [him] that day.”

He said he was transferred to Hudson, and again experienced “harassment” similar to that experienced at Mt. McGregor. As soon as he got in the prison van for transfer, the “two officers did the same thing”, he said, telling others at Hudson about claimant’s involvement with Mr. Jefferson. He was told about protective custody, but claimant felt “they would have really had me then. It would be just the police [his term for correction officers] and there would be no witnesses then.” He would not fill out the form for protective custody. He said he was ultimately in “five different prisons over a couple of years” for his safety. “Everywhere he went” he was “harassed by staff.”

He “knew” he was “going to court” for the arbitration hearing in December 2003 at Mid-Orange because the “threats escalated.” When the hearing was over at Mid-Orange, he heard from the “van officers” taking him back to Hudson that Mr. Jefferson was terminated. When he “got back to the jail,” he was told to “pack up” and told to “get the f*** out of my house” by correction personnel at his housing unit. Arriving at a different housing unit and unpacking, he would be greeted with the same or a similar exhortation. On this one day, he estimated that he was told to “pack up and move at least four or five times.” He was transferred from Hudson and served out his time elsewhere, including Gowanda Correctional Facility and Mohawk Correctional Facility.

The last ten (10) months of his incarceration at Mohawk before his release from prison in 2006 were uneventful. He saw medical treatment providers periodically for back pain and was prescribed pain medication. He said he sought and received counseling. He said he has taken pain medication since the July 2003 freezer incident, and is currently prescribed 50 milligrams of Tramadol and 75 milligrams of Diclofenac. Surgery to both knees has been suggested, he said, and he is “avoiding back surgery” by periodic injections. He claimed not to have had physical issues until Mr. Jefferson’s assaultive conduct. Now he “walks with a cane, uses a back brace and takes pain medication.” He said he suffers from mental anguish to this day, and seeks damages in the amount of “one million dollars.”

Both claimant and defendant submitted in evidence the Arbitrator’s Opinion and Award resulting in the termination of Ronald Jefferson, setting forth the Arbitrator’s summary of the evidence before him, and the reasons for termination. [Exhibit 1 and A].[2] There is no indication therein that prior to the events involving this claimant, that DOCS had any notice that Mr. Jefferson was guilty of this type of misconduct. [Ibid.]. Indeed, it is noted therein that “the first report of any improper contact with Inmate Johnson was received on August 3, 2003.” [Ibid.]. Inmate Bing never reported any “impropriety” either although he, too, had been bullied by Jefferson. [Ibid.]. The arbitrator does note testimony by a Philip Rancieri to the effect that he observed Jefferson taking goods from inmates, and that he “counseled” him on the instruction of a superior - and was immediately rebuffed by Jefferson. [Ibid.]. There were no specifics given as to when this occurred, or what “counseling” - a word with multiple meanings in a prison context - meant.

On cross-examination, claimant confirmed again that he had been incarcerated upon his conviction for the rape of a minor.

No other witnesses testified nor was any other evidence submitted on claimant’s direct case.

Mark Miller, presently the Assistant Deputy Inspector General for the New York State Office of the Inspector General [IG], testified. He indicated that he was familiar with the case of Johnny Johnson and Ronald Jefferson, and identified the Arbitrator’s Opinion and Award as containing a summary of his own investigation and the resulting termination of Mr. Jefferson, as well as summaries of the testimony given at the hearing by Mr. Miller, inmate Bing, and Mr. Johnson. [Exhibit A]. At the time of the incident involving Mr. Johnson, Mr. Miller said he was a senior investigator assigned to the Internal Affairs Unit of the IG Office.

On August 13, 2003 he received the assignment concerning inmate Johnson’s allegations that he was being assaulted by a civilian cook and was being extorted for commissary goods. The complaint was first “articulated by inmate Johnson to Officer Kannon on August third, who told his supervisor about it in writing, who followed up the chain to the Superintendent” who called the Inspector General’s Office.

Mr. Miller said that he first “did some cursory review on the computer and saw that the inmate was incarcerated for the rape of a minor.” He said “you typically do get a lot of complaints with these allegations of harassment: it is a tough road for an inmate with a rape conviction in a correctional facility.” Usually, however, it “involves other inmates.”

Mr. Miller remembered the events of August 28, 2003 at Mid-Orange slightly differently than Mr. Johnson, however, the salient points were the same. All of the events occurred within a “two- to three-hour time period,” namely: an interview with Johnson, interviews with the witnesses mentioned by Johnson such as inmate Bing, and the commissary clerk, a “sting” operation with a box of Little Debbie cakes, and claimant’s removal from the facility. He recalled interviewing Mr. Johnson - as the complainant - first. He recalled that Johnson described “two, or up to three, occasions where the cook had punched him, and on one occasion threw him to the ground,” and that Mr. Jefferson was extorting the inmate for Little Debbie cakes. Mr. Miller said it was “tough to believe from a cook who has available to him sheets of cake every single day as the head cook” that he would be interested in such an item.

During the interview, claimant told Mr. Miller that he had to get back to work because he had Little Debbie blueberry cake he had to deliver to the cook that he had purchased or suffer the consequences. The “sting” arrangement was made at that time, with Mr. Miller instructing claimant to place his initials on the box he was supposed to deliver.

When Mr. Miller interviewed inmate Bing, Bing said he did see the cook “manhandle” claimant, but Bing “did not say he picked . . . [Johnson] up or threw him or punched him.” Bing reported that Jefferson did bully inmates believed to have committed sex crimes for commissary goods, specifically, “evaporated milk and cakes.”

In terms of corroborating other elements of Mr. Johnson’s complaint about Jefferson, when Mr. Miller interviewed Tina, the commissary clerk, she remembered one occasion when Johnson had submitted a sheet the day before, as required to obtain commissary purchases, but then came down and indicated that he forgot to include sticky buns for the head cook.

Miller said that in his review of the medical records, he saw Johnson came in for an emergency sick call in June 2003. The notation by medical personnel was that he said he had strained his back while working in the kitchen. Miller said “the time frame was consistent and corroborative of . . . [Johnson’s] story of having been thrown by Jefferson.”

As far as the mechanics of the “sting” arrangement with the Little Debbie cakes, Miller said he waited until claimant had been at work for approximately ten minutes, and would have handed over the cakes to Jefferson, and then went with two officers to the kitchen area. The officers who accompanied him had not been given any details. They had been told that Miller needed to bring an inmate Johnson out, that Miller wanted him frisked, and then brought to a holding area to be held there until he could be transported. Miller had pre-arranged an administrative transfer before going down to the kitchen, since “regardless of the result of the investigation it was clear that there had been misconduct on the part of the cook in accepting gratuitous gifts requiring administrative charges be brought against him.” The “classification and movement” department would actually decide where the transferred inmate would go, not Miller. Mr. Miller went down to the kitchen area, Johnson was taken away, and the cakes were found in the cook’s locked desk. At this point, Miller said, “we still did not know if this was a set-up from the inmate saying ‘here cook, I brought you some cakes today’ or what.” As a precautionary measure, however, Miller had contacted the Bureau of Labor Relations, who placed Jefferson on immediate administrative leave.

Other than Bing, no other inmates said they witnessed physical altercations; one or two other inmates said they themselves had provided “evaporated milk and things out of a pay back for the cook letting them stay later shifts, things of that nature.” As they described their treatment to Miller, “they were not being extorted.”

Miller testified that when they interrogated Ronald Jefferson, he “totally lied about just short of his name. Everything we could verify he just totally lied about.”

After the December 2003 arbitration hearing, the Arbitrator found that Jefferson should be terminated. At that point, Mr. Jefferson was “on administrative leave already”, and had thereafter been placed on suspension at the conclusion of Miller’s investigation. Miller testified: “Since August 28, 2003 Mr. Jefferson never set foot in another facility.”

Although Mr. Miller testified that he did go to Mt. McGregor after claimant was placed there to follow up with Johnson and review medical records, he claimed it was routine, and not in an effort to “get him out,” as claimant had testified. Miller did recall claimant complaining that he was not being attended to in his medical care, but did not recall how he heard the complaint, whether in person “or by letter or what.” From whatever source, Mr. Miller remembered telephoning the superintendent to confirm that the inmate was receiving “appropriate medical care” and learned that he was. He also received a telephone call from the captain saying that inmate Johnson had spoken to a lieutenant to say he was “being harassed by a Sergeant Porta, but nothing physical.” Miller said:
“I don’t believe Mt. McGregor even has batons to be honest with you . . . Also I am cautious about any manipulative behavior at this point because we receive thousands of these [complaints] a day looking for transfers. Being an inmate with rape, we get a lot of requests to be moved here or there.”

Despite such reservations, however, Mr. Miller said he went to his own supervisor in response to the report that he thought Johnson “may be experiencing some verbal harassment, and recommended that he be transferred to Hudson.” The captain at Hudson is a former Deputy Inspector General, Miller explained. Miller insisted, however, that correction officers generally do not know when an inmate is transferred
“administratively or normal course of business or otherwise. It is on a hidden screen that they don’t have access to. The IG’s Office notified the captain [at Mt. McGregor] - who was the only one who knew why. . . [Johnson] was there - then we transferred him to Hudson. Obviously, with him being transferred from Hudson and back, staff would know he was being transferred for testimony for an arbitration, but we did not receive any notification that he was being harassed or that any grievances were filed.”

Mr. Miller’s last contact concerning Johnson - prior to being asked to testify at this trial - had been when he signed off on a “routine” order for Johnson’s transfer to Gowanda, which had a sex offenders’ program: a necessary part of Johnson’s rehabilitation in order to secure parole. Because Johnson’s placement at Hudson had been pursuant to an IG administrative transfer order, “movement and control” would routinely inquire as to whether the IG Office had some reason that the subject inmate could not be transferred.

Asked to describe Ronald Jefferson’s job responsibilities as civilian head cook, Miller said Jefferson was responsible for food preparation. “Inmates that worked underneath him were told the quantities to make, and to use this scoop etc.” The correction officers, he said, are responsible for “the care, custody and control of inmates.” Any problem Jefferson may have had concerning inmate conduct, such as “refusal to work, follow directions, slacking off, being disrespectful, whatever,” he was required to report to correction officers.
The primary theory of liability advanced by claimant on this claim is that the State of New York should be held vicariously liable for Ronald Jefferson’s tortious and indeed criminal conduct, including assault, battery and extortion, based upon the doctrine of respondeat superior. He also asks that liability be imposed upon the State of New York premised upon the negligent supervision and/or retention of its employee, Ronald Jefferson. Additional asserted bases for imposing liability are in allegations that claimant was mistreated after his transfer from Mid-Orange in retaliation for his participation in Jefferson’s termination, or that his claim can be viewed as one for constitutional tort.

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has established an adequate basis for the state's liability by a preponderance of the credible evidence.

Under the doctrine of respondeat superior, an employer may be liable for the tortious acts of its employee if the tortious acts occurred within the scope of employment. Riviello v Waldron, 47 NY2d 297, 302 (1979). Although intentional torts committed in furtherance of the employer’s business have been found - albeit rarely - to have been committed in the scope of employment, [see e.g. Jones v State of New York, 33 NY2d 275, 279 (1973);[3] Sims v Bergamo, 3 NY2d 531 (1957)[4]; Holmes v Gary Goldberg & Co., Inc., 40 AD3d 1033 (2d Dept 2007)[5]], the criminal activities practiced by the cook are not the kind of intentional torts that may render the State liable under the doctrine because they are clearly perpetrated for the employee’s own purposes, are a departure from service to the employer, and are not “. . . conduct [which] may have been reasonably expected.” Riviello v Waldron, supra, at 304; see Naegele v Archdiocese of N.Y., 39 AD3d 270 (1st Dept 2007), lv denied 9 NY3d 803 (2007);[6] Judith M. v Sisters of Charity Hospital, 93 NY2d 932, 933 (1999)[7]; Doe v Rohan, 17 AD3d 509, 793 NYS2d 170 (2d Dept 2005).[8] Bowman v State of New York, 10 AD3d 315 (1st Dept 2004).[9]

Mr. Jefferson’s duties as a civilian head cook were fairly circumscribed. While there was a supervisory aspect to his interaction with the inmates with kitchen work assignments, it was merely to require “x” amount of potatoes be scrubbed or directing the implementation of a recipe. Any insubordination was to be referred to correction officers. Clearly, the criminal acts attested to here are not reasonably related to acts in furtherance of the employer’s business. While a bouncer in a bar might foreseeably become overzealous when pacifying a customer [see Sims v Bergamo, supra], or an employee entrusted with sums of money might foreseeably convert funds at her disposal to her own use [see Holmes v Gary Goldberg & Co., Inc., supra], the State may not be held vicariously liable for the criminal acts of this bullying cook. The head cook oversees the food preparation for the inmates. It is not reasonably foreseeable that he would extort inmate cooks for pastries from the commissary, or beat them up in furtherance of his employer’s business of feeding incarcerated persons. While reprehensible, Mr. Jefferson’s actions were undertaken in his own interests exclusively, and may not be imputed to his employer.

Causes of action for negligent supervision or negligent retention will not lie under these facts. Negligent supervision requires a showing that the employer knew or should have known - had the supervision been adequate - of the employee’s propensity for the type of conduct which injured claimant. Prentice v State of New York, UID # 2004-009-01, Claim No. 91731, Motion Nos. M-65785, M-65786 (Midey, J., March 30, 2004)1[0]; Jablonski v State of New York, UID # 2001-028-0010, Claim No. 96587 (Sise, J., April 10, 2001)1[1].

Under a negligent retention theory, a claimant would need to establish that the employer knew or should have known of the employee’s propensity for the sort of conduct which caused the injury. Detone v Bullit Courier Service, Inc., 140 AD2d 278 (1st Dept 1988), lv denied 73 NY2d 702 (1988). In a negligent retention cause of action, the negligence of the employer arises from its “. . . having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the . . . retention of his employees.” Detone v Bullit Courier Service, Inc., supra, at 279.1[2]

Although claimant argued that there had been other, earlier, misconduct on the part of Mr. Jefferson, there is no evidence that the defendant had prior notice of such misconduct. The Arbitration decision specifically notes that Jefferson had no prior disciplinary record. [See Exhibits 1 and A]. The statement concerning prior “counseling” in the arbitration decision does not place the said counseling in a context, including a time frame. As such, the issue such counseling was to address cannot be translated into adequate notice to the employer of the presence of a rogue employee. Indeed, it was Mr. Johnson’s complaint which triggered an investigation resulting in Mr. Jefferson’s termination. In the course of such investigation it was revealed that Jefferson had bullied others, but there has been no showing that the people in a position to take disciplinary action against Jefferson were aware of such misconduct, or should have been aware of it, until Mr. Johnson spoke up and then some others added their own information about Jefferson’s conduct.

Additionally, while there was a correction officer assigned to the kitchen area responsible for the care and custody and control and security of the kitchen area and of the inmates, there was no evidence that the officer was ever advised of the problem or even that he saw anything.1[3] Claimant testified that the activities took place in secret, or that some activity occurred only in the presence of other inmates. There was no evidence or expert opinion offered that the particular location of the officer was against penological standards for supervision and staffing, for example. Cf. Sanchez v State of New York, 99 NY2d 247 (2002); Smart v State of New York, UID # 2007-029-053, Claim No. 98024 (Mignano, J., December 21, 2007).

No cause of action for constitutional tort will lie given that claimant has common-law remedies in timely commenced lawsuits for assault and battery. See generally Brown v State of New York, 89 NY2d 172 (1996); Waxter v State of New York, 6 Misc 3d 1035 (A) (Ct Cl 2005), affd 33 AD3d 1180 (3d Dept 2006).

Finally, with regard to the imposition of State liability premised on claimant’s assertions that he was threatened and harassed at Mt. McGregor and later at Hudson, there is some evidence to support a cause of action premised upon the State’s vicarious liability for the assaultive acts of its correctional officers who, unlike the cook, are responsible for the care, custody, and control of inmates in their charge, and may render the State liable for their tortious acts committed in the scope of such employment. See Jones v State of New York, supra.

A cause of action for assault is established upon “. . . ‘proof of physical conduct placing the [claimant] in imminent apprehension of harmful contact’. . . (citations omitted).” See Fugazy v Corbetta, 34 AD3d 728 (2d Dept 2006). To establish a cause of action for battery, a claimant must prove that there was intentional, non-consensual and offensive bodily contact. [Ibid.].

“ ‘[T]he primary mission of a correction officer [is] to be responsible for the care custody and control of inmates . . . ” Matter of Pierson v Kralik , 279 AD2d 630, 631 (2d Dept 2001). If claimant’s description of the behavior of correction personnel at Mt. McGregor is credited, such “conduct was fundamentally at variance with the conduct expected of a peace officer.” [Ibid.].

Correction Law §137( 5) provides:
“No inmate in the care or custody of the department shall be subjected to degrading treatment, and 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. When any inmate, or group of inmates, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape.”

This is the statutory authority for when force may be used for disciplinary purposes, and requires its reasonable exercise. As set forth at 7 NYCRR § 251-1.2 (a), an officer must use “[t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary.” Once an officer determines that physical force must be used, “. . . only such degree of force as is reasonably required shall be used.” 7 NYCRR § 251-1.2(b).

While claimant did not formally file grievances - there was no evidence of any contemporaneous complaints, such as grievances, or investigations of same [see Waxter v State of New York, supra]1[4] - claimant’s testimony that he was constantly subject to verbal abuse as his participation in the investigation of Jefferson “followed” him from correctional facility to correctional facility was highly credible.

More disturbing than the verbal harassment that one might expect in the unequal and inherently dangerous setting of a prison, Johnson described one chilling incident which occurred at Mt. McGregor which, if credible, shows that the defendant’s employees most certainly engaged in physical conduct that placed the claimant in imminent apprehension of harmful contact amounting to civil assault, and likely committed battery as well in forcing claimant against a wall. There was no indication that claimant posed a disciplinary threat, or that force was used to subdue him or otherwise to justify its exercise. See e.g. Passino v State of New York, 260 AD2d 915 (3d Dept 1999), lv denied 93 NY2d 814 (1999).1[5]

The court finds it likely that the “secrecy” surrounding claimant’s involvement in Jefferson’s termination was somewhat overconfidently avowed by Mr. Miller. Indeed, from a reading of the arbitration award decision [see Exhibits 1 and A] it appears Miller interviewed many people1[6] who might not have exercised self control over broadcasting claimant’s involvement in the investigation and ultimate termination of Jefferson. Miller himself, while equivocally stating his opinion that Mt. McGregor did not “have batons”, and his general view that inmates are “manipulative,” by his own act of conferring with his supervisor and arranging for claimant’s transfer to Hudson credited at least a part of claimant’s complaints about Mt. McGregor, even if his concerns were minimized to “verbal harassment” at trial. The court finds Mr. Miller’s urging of a transfer more consistent with Mr. Johnson having been subject to more than mere verbal harassment.

A large part of the resolution of this claim rests upon the relative credibility of the witnesses. Resolving issues of credibility is the province of this court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). An important part of that role is observing the behavior and demeanor of witnesses as they testify, and assessing the internal consistency of their accounts. “ ‘[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 [NY Sup 1975]).” Medina v State of New York, UID # 2007-028-010, Claim No. 106664 (Sise, J., March 2, 2007).

In this case, the sole witness with direct knowledge concerning the incidents at Mt. McGregor was Mr. Johnson. Certainly the court is not obligated to accept in its entirety the testimonial evidence offered by one witness alone. See 1A NY PJI3d 1:41, at 55-56 (2006). This is because a court is always required to assess the credibility and consistency of any witness offered, and has done so in this case.

The testimony of the claimant, who impressed the court as an intelligent and resourceful individual, was credible and consistent. His distress and perception that he was powerless in the face of the cook’s bullying, and thereafter powerless to pursue redress for the treatment he received once the investigation was undertaken and he was moved from facility to facility, was very real. Any tendency to exaggerate does no more than create some minor inconsistencies in his testimony concerning the initial report concerning Jefferson’s behavior, and the initial interactions with Mr. Miller and the sting operation.

In finding the claimant credible, the court is not unmindful of the general view - as expressed by Mr. Miller in his trial testimony - that there is a tendency to overdramatize or manipulate events to make the actor more sympathetic as the tale is told. This claimant is clearly not a helpless individual in a setting other than a prison under the circumstances he described - indeed, there were times during his testimony when it could be seen that he was capable of great forcefulness.

When cross-examined claimant readily confirmed that he was convicted of a heinous crime. Claimant’s testimony on direct examination about the assaultive conduct of correction personnel charged with his care, custody and control after he contributed to the termination of a state employee was uncontested. No correction officers with direct knowledge of his treatment at Mt. McGregor were called to testify and perhaps rebut, if they could, the claimant’s testimony. Bradshaw v State of New York, 24 AD2d 930 (3d Dept 1965); 1[7] 1A NY PJI 3d 1:75, at 108-124 (2006).

Based on the foregoing, as the trier of fact and law, charged with assessing the credibility of witnesses and evaluating the evidence, the court finds that the claimant has established that the State of New York should be held vicariously liable for the assaultive conduct of its agents at Mt McGregor by a preponderance of the credible evidence.
Damages for assault and/or battery, if proven, may include compensation for the injury, pain and suffering and any special damages incurred. DeLaCruz v City of New York, 163 AD2d 163 (1st Dept 1990). Punitive damages are not recoverable against the state or its political subdivisions. Sharapata v Town of Islip, 56 NY2d 332, 339 (1982). Nor can a claimant recover for emotional distress against the State of New York. Finally, claimant must connect the assault and/or battery to any continuing injury with expert testimony, particularly when a pre-existing injury is part of the factual scenario. See Panzarino v Carella, 247 AD2d 521, 523 (2d Dept 1998); Ortiz v Mendolia, 116 AD2d 707(2d Dept 1986). “Claimant may recover only for such increased pain and suffering caused by defendant’s acts . . . (citations omitted).” Mihileas v State of New York, 266 AD2d 866 (4th Dept 1999).

Claimant did not establish the extent or permanency of injuries proximately caused by the assault and battery committed by the State’s agents at Mt. McGregor. Only claimant’s testimony concerning his continued distress and anxiety was offered, with no substantiation by medical or psychiatric records or expert testimony.

Accordingly, the court finds that claimant is entitled to compensation in the amount of $5,000.00 for the conduct of the state’s agents in placing him in imminent fear of harm, and intentionally touching him offensively. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).

Let judgment be entered accordingly.

November 25, 2008
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[2]. The parties indicated that both copies were missing page 16 of the determination, containing a portion of the arbitrator’s summary of Ronald Jefferson’s testimony.
[3]. The State may be liable for the use of excessive force by its correction officer employees upon inmates in the custody of the New York State Department of Correctional Services under the doctrine of respondeat superior.
[4]. Bartender’s assault on plaintiff/customer found to have been in furtherance of his employer’s interest rendering employer vicariously liable. Court of Appeals reinstated jury verdict for plaintiff, finding it could not be said that there was no evidence supporting vicarious liability as a matter of law, when viewing the evidence in the light most favorable to the plaintiff. “The perpetration of the assault for either of these purposes - protecting his employer’s property from further damage and the maintenance of peace and order therein - would have been pursuant to unexpressed rules and in the performance of duties enjoined upon him by his employment and in the furtherance of his employer’s interests.” Sims v Bergamo, supra at 535.
[5]. In the context of a motion to dismiss for failure to state a cause of action, customers stated a cause of action against brokerage house, where financial advisor employed by the firm - their own sister - converted monies in their brokerage account to her own use. The court said it was “ ‘foreseeable that an agent entrusted with significant sums of money might convert such funds to his [or her] own use’. . . (citations omitted).” Holmes v Gary Goldberg & Co., 40 AD3d 1033, 1035 (2d Dept 2007).
[6]. Motion to dismiss lawsuit by estate against archdiocese should have been granted. Parish pastor’s alleged exercise of undue influence over deceased parishioner to obtain almost half million dollars for his own benefit could not be basis for archdiocese being held vicariously liable. “[T]he Monsignor’s alleged tortious conduct, which may be characterized as exercising undue influence, overreaching, fraud or even theft, was not in furtherance of archdiocesan business and was a clear departure from the scope of his employment, having been committed for wholly personal motives.”
Naegele v Archdiocese of New York, supra, 270-271.
[7]. Hospital not vicariously liable for sexual abuse of patient by orderly; summary judgment dismissing this cause of action proper.
[8]. Since the bus driver’s acts in sexually abusing and molesting a student passenger were clearly not in furtherance of his employer’s business, and thus not committed within the scope of his employment, the bus company and the school district could not be held vicariously liable under the doctrine of respondeat superior. 793 NYS2d 170, 173
[9]. State not liable for court officer’s rape of private security guard, and also not liable if the acts were consensual, since employee clearly not acting within scope of employment but rather for his own purposes. Summary judgment dismissing should have been granted; also dismissed with respect of apparent authority.
1[0]. State trooper fabricated fingerprint evidence.
[1]1. State park seasonal employees assaulted visitor.
1[2].Thus, in Detone v Bullit Courier Service, Inc., supra, at 279, the Court reiterated the rule that an employer may be liable in damages for its employee’s tort “. . . against a third party when the employer has either hired or retained the employee with knowledge of the employee’s propensity for the sort of behavior which caused the injured party’s harm . . . (citations omitted).” [Id.].
1[3]. At the arbitration hearing claimant had apparently testified that correction officer La Vail was working in the kitchen approximately five feet away on a day that claimant was allegedly “pushed against a table and pinned” by Jefferson, but could not hear what was going on above the noise. [Exhibits 1 and A]. The claimant did not testify about this occurrence at trial.
1[4]. In the context of a summary judgment motion - not a plenary trial such as this one - the Court wrote: “With respect to the cause of action asserted in paragraphs 30 and 31 of the claim, quoted above, of harassment, abuse, and excessive wrongful confinement after the incident involving Correction Officer Roberts, defendant's submission of the investigation reports and other material (Friedman affirmation, Exhibit C) establishes that there are material issues of fact that must be determined at trial.”
1[5]. “. . . [C]laimant had been lawfully arrested for driving while intoxicated, was agitated and exhibited belligerent behavior and refused repeated requests to remove his hands from his pocket to be handcuffed . [The trooper] followed State Police policy governing the use of force by complying with levels one through three of the guidelines before employing the use of pepper spray. Given these facts, we agree with the Court of Claims' conclusion that [the trooper’s] use of the spray was objectively reasonable under the circumstances to effect control over claimant and did not constitute excessive force . . . (citations omitted).”

1[6]. At a minimum, as set forth in the decision, Officer Kannon, Tina Tamok, Inmate Bing, Philip Nicholas Rancieri, Food Service Administrator I, Inmate Coscia, Inmate Beauchamps, Inmate Reedy, Inmate Haynes, Sergeant Brightbill; Lieutenant Harter, Sergeant Wood, Captain Griffin, William Cronic, Garage Supervisor and Local Union President, had involvement in the investigation of Jefferson. The decision reports that Mr. Miller interviewed and took statements from ten of the twenty inmates who worked in the kitchen. The decision reports Cronic’s - the union president - testimony that he spoke to thirty-five staff in kitchen.
1[7]. “[Claimant’s] testimony established a prima facie case that the State’s negligence contributed to or caused the accident, and we find no basis here on which the court below could disregard such testimony even though . . . [claimant] was an interested witness . . . (citations omitted). In addition, the State’s failure to call the attendants allegedly involved supports an inference that their testimony would not have been favorable to the State . . . (citation omitted). Accordingly, based on the entire record we find that negligence attributable to the State was the cause of the accident . . . ” Bradshaw v State of New York, supra, at 930-931.