ANDREWS v. THE STATE OF NEW YORK, #2008-030-027, Claim No. 112839
Notice of intention substantially complied with statutory requirements as to
location, in claim alleging excessive force. Defense as to manner of service of
notice of intention waived. Claim thus timely served and filed. Dismissed after
trial. Claimant did not establish that force used to subdue him was excessive
when measured against his own conduct.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
BARNETT ANDREWS, PRO SE
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
December 22, 2008
See also (multicaptioned
Barnett Andrews alleges in his claim that defendant’s agents at Downstate
Correctional Facility [Downstate] assaulted him during his reception processing
into the custody of the New York State Department of Correctional Services
[DOCS] on November 8, 2005. Trial on the issue of liability was held on
November 13, 2008.
As an initial matter, defendant moved to dismiss the claim, asserting defenses
raised in the eighth and ninth paragraphs of the answer regarding the adequacy
of the notice of intention. The notice of intention, received on December 19,
2005, provides in pertinent part:
“. . . this claim arose in [Downstate] Correctional Facility and is for
the Assault and Battery caused on the claimant by several prison guards.
The date of the incident was November , 2005 somewhere in the forenoon of
that day.” [Exhibit A].
Court of Claims Act §11(b) requires that a notice of intention “. .
. state the time when and place where such claim arose, [and] the nature of same
. . .” The purpose of the notice of intention is to put the defendant on
notice of potential suit against it, so that it may investigate the claim and
infer a theory of liability. It also acts to extend the period within which a
Claim must be served and filed, provided it has been properly served and
contains the required information. While it need not be scrutinized with the
same attention as a pleading, it should nonetheless perform its notice function,
as well as provide specific enough information to determine whether any
subsequently served and filed claim is timely filed.
“While Court of Claims Act § 11(b) does not require ‘absolute
exactness’, it requires a statement made with ‘sufficient
definiteness to enable the State to be able to investigate the claim promptly
and to ascertain its liability under the circumstances. The statement must be
specific enough so as not to mislead, deceive or prejudice the rights of the
State. In short, substantial compliance with section 11 is what is
required’ . . . (citation omitted).” Grumet v State of New
York, 256 AD2d 441, 442 (2d Dept 1998).
Clearly, what information is sufficient about the nature of the claim and the
location depends on what kind of cause of action is being asserted. Here, where
an assault on a named claimant by correction officers at a specific correctional
facility on a specific date is alleged - while not having the additional
exactness that may have been required in a pleading - nonetheless sufficiently
advises the defendant of the nature of the claim so as to enable the State to
investigate and infer a theory of its own liability. Rhodes v State of New
, 245 AD2d 791, 792 (3d Dept 1997).
Indeed, in this case while the notice of intention does not provide the specific
location within the facility, nor the exact time of the incident, a simple,
investigatory telephone call would obtain the information that force was used,
and by whom, at Downstate against this claimant on November 8, 2005. The
information furnished in the notice of intention alleging an assault by
correction officers allows that investigation would produce the various reports
that correction personnel are required to complete when force is used against an
inmate, and would have shown that such reports were indeed completed.
Exhibits B and C]. In this case, based on this cause of action,
there has been substantial compliance.
Accordingly, the defendant’s motion to dismiss the claim based upon the
insufficiency of the notice of intention, upon which decision was reserved at
trial, is hereby denied.
Thus, when the claim
was served on the Attorney General’s Office on October 6, 2006 it was
timely, since a notice of intention had been served within ninety (90) days of
accrual of the claim on November 8, 2005, and the claim was served within one
(1) year of accrual as required for an intentional tort. See
Claims Act §10(3-b).
More substantively, claimant testified essentially as set forth in his claim
with some amplification. His claim provided that at approximately 3:00 p.m. on
that date he was sitting as directed in the reception area after his arrival
from Rikers Island. As he sat, he was supporting his lower back with his hand.
When Officer Jodoin asked why he was doing so, claimant explained that he had
lower back problems. Thereafter, Officer Jodoin picked claimant up by the left
arm, put his left arm behind his back and escorted him out of the holding pen.
They were joined by Officer Jaques. Together, Officers Jodoin and Jaques then
escorted claimant to a curtained off area where Officer Jaques banged
claimant’s head into a wall while Officer Jodoin held claimant’s
left hand behind his back. Claimant’s left eye hit a clamp holding a pipe
to that wall. When an area above his left eye started bleeding profusely he was
taken to the clinic, where he received five stitches. [See Claim Number
During his testimony, he explained that he was seated on the bench with a
“group of 40 inmates waiting to be
in the reception area at
Downstate, when the officer started calling names for processing. His was
“probably the second named called.” As they stood, he was half
holding his back and the bench for support for his back. The officer asked him
why he was doing that, and Mr. Andrews explained that he had bad back problems.
The officer then pulled him out of the group by his arm to a curtained off area,
accompanied by another officer. Once in the curtained off area, the officer
“pushed [claimant’s] head into a wall.” Mr. Andrews said:
“There was no argument, no disturbance, no words took place, it all
happened just as I told you . . . My eye - right above the eye - hit a screw
with a piece of pipe on it. He proceeded to wipe my eye with a paper
Claimant was taken to the infirmary, and “given five stitches”
above his left eye. Photographs were taken at the time. Claimant was charged
with and found guilty at a disciplinary hearing of three different facility
violations. He was “placed in a cell by himself” until he left the
Claimant stated that he received stitches resulting in a permanent scar, and
took pain medication for six (6) months. [See Exhibit 5].
On cross-examination, Mr. Andrews could not say which of the two officers put
his head against the wall. He knew that one held his arm and moved him, while
the other simply “escorted” him. Whoever did the pushing was behind
him; but he did not know which one pushed. He said “one was taller than
the other. The smaller one of the two escorted by [holding claimant’s
When they arrived at the curtained off area, Mr. Andrews said he was
“directed to put [his] hands on the wall . . . [He] complied.” He
insisted that while he was in the draft area, there were no “words”
between him and either of the officers, nor did he resist at all any
instructions from the officers. Claimant reiterated “he first asked me why
are you sitting like that?” No direct orders were given and violated, he
claimed. Shown Exhibit B, claimant identified it as the misbehavior report
written up about the incident by Officer Jodoin. The misbehavior report charges
refusing a direct order, interference with an employee, and disturbing the order
of the facility. He acknowledged again that he was found guilty of all three (3)
charges after a hearing at which he and the officer testified, and upon appeal.
The disposition printout after the Tier II hearing was also identified and shows
that claimant was sentenced to thirty (30) days keeplock among other limitations
of privileges. [Exhibit D].
Asked to describe the clamp his head struck further, he said the wall was
sheetrock, and there was a pipe containing wires and a clamp to the lighting
fixture; the clamp appeared to be clamping wires and the bolt to the lighting
fixture. He was not certain if the lighting fixture itself was on the wall with
Mr. Andrews acknowledged that the pain medication was for back pain but said he
got a “bigger supply” after this incident for his eye, and that
there was different pain medication for his eye. [Exhibit 5]. For his eye, he
said they gave him “cylobenzaprine.” [Ibid.]. There is a
notation on the Exhibit 5 label that is handwritten saying back
pain.[Ibid.]. No explanation was offered concerning the handwritten
No other witnesses testified on claimant’s direct case, and no other
relevant evidence was offered.
Officer Jeffrey Jaques, a correction officer for eleven (11) years at the time
of trial, testified. He testified that he did not recognize claimant by his
face, but recalled the incident involving him. On November 8, 2005 he had been
working the draft reception area at Downstate. Officer Jaques explained
“Downstate is a reception center, where we do the intake of inmates
being received into DOCS custody from county facilities and Rikers Island. As
they are brought in, they are searched for property, get initial haircuts,
orientation, and then are sent next to the ‘id’ room for
fingerprinting and photos. They are eventually escorted to cells. There are
several bullpens for inmates where they get orientation. In our draft area there
are four of them . . . this incident happened in bullpen number one...there are
about 25 to 30 inmates in a bullpen.
The process begins with receipt of a form listing the names and identification
numbers of all the inmates. We enter the bullpen, have all the inmates stand up
in the middle of the room, and start calling out by last name according to DIN
#, and then they are seated in the same order. Then they are called out in
order. As [Mr. Andrews’] name was called he approached me, I directed him
to take a seat, and he refused to sit. That is just the procedure, everyone
remains seated . . . I told [Mr. Andrews] to take a seat several times, but he
refused, saying ‘I’m not going to, I don’t have to listen to
you.’ The tone was not conversational, but argumentative and belligerent.
The situation was escalating with 25 other inmates there, so I told him to step
out of the bullpen and escorted him to just outside the bullpen to the frisk
At that point Officer Jodoin came to assist. When we got to the frisk area,
Officer Jodoin went into the back of the frisk area with . . . [Mr. Andrews],
and I stayed back at the entrance. [Claimant was] told to face the wall, calm
down, [in an effort to] defuse the problem. Officer Jodoin gave him orders to
face the wall, advised him that he would be processed, and to relax. Shortly
after that the inmate turned abruptly and quickly toward Jodoin, as if he was
going to strike him. Jodoin was directly behind him. When Andrews jerked to
the right, I wasn’t sure if he was going to lunge or strike him or try to
grab Officer Jodoin or what.”
The frisk area itself, Officer Jaques said, “is cinder blocks 8 or 9 feet
in the air, in a horseshoe area.” Claimant was “directly in the
back of the horseshoe.” Officer Jaques said there are no protrusions on
the back wall, although “at the entrance there is a conduit wire with a
light switch on it.” Andrews’ motion was “quick.”
Officer Jaques felt he was either going to grab or strike Officer Jodoin.
Officer Jodoin pushed claimant into the wall and pinned him against the wall.
Officer Jaques said that he then “ran in, and grabbed claimant by his left
arm, struggling to get that into the small of his back. [Mr. Andrews] was
fighting [him] from getting the hand behind his back. [Officer Jaques] got the
arm in the small of his back, Officer Jodoin meanwhile had gotten the right
hand. [Jaques] was carrying the cuffs, and we placed handcuffs on him.”
The area sergeant came to the area, and two other officers took control of the
inmate and took him out of the area.
Officer Jaques was shown the use of force report prepared by the area sergeant,
Sergeant Chamberlin. [Exhibit C]. Officer Jaques said he saw claimant’s
face after he was handcuffed, and observed bleeding coming from the brow area,
dripping over his eye and onto the floor.
Officer Eric Jodoin, employed as a correction officer for four (4) years at the
time of trial, also testified. He remembered the incident with Mr. Andrews in
the draft holding area at Downstate much the same way as did Officer Jaques. He
heard an inmate arguing with Officer Jaques in the bullpen. He could not hear
the specifics of the argument,
“just that it was loud, not following directions and starting a
disturbance. There are 30 or so inmates in there, [he] did not know why he was
yelling. In that situation, you need to move the inmate because you don’t
want a riot to start, don’t want to get all the others excited.
There’s (sic) 5 officers with 37 or so convicted
The inmate was taken to the strip area to the side of the bullpens, essentially
“a couple of concrete walls.” When they got to the area, he said,
the inmate was told to face the wall because he kept calling out. He was saying
“what are you doing? you can’t touch me!” The inmate’s
hands were at his sides, not on the wall. It was then that the claimant:
“turned to his right side in an aggressive manner, and I thought he was
going to attack me. That’s when I pushed him against the wall, and when
his head hit against the wall. I was pushing with my left hand between his
shoulder blades. The part of the wall that he hit did not have any protrusions,
just the concrete. The left side of his face hit - since he had turned to the
right, his left side would be facing the wall and hit that way. I pushed him on
the wall, I stayed with my body on top of his against the wall, I put his right
hand behind his back, by that time Officer Jaques saw what was going on, came
over, and he put his other hand back and put the handcuffs on. I had to use
some force to put his hand behind his back. After handcuffing, we turned him
around, his forehead was dripping. I am assuming that he was escorted to the
Officer Jodoin identified Exhibit B as the misbehavior report that he wrote on
November 8, 2005. He explained, when asked, that he was the one to write the
report because he was the one who used the force and pushed claimant into the
wall. Correction Officer Jaques signed as a witness to the incident. The
charges in the misbehavior report are based on the things Officer Jodoin saw. He
did not charge claimant with assault, because claimant did not touch him, and he
had no injuries. When Officer Jodoin spoke to the sergeant who prepared the use
of force report he had also told him that he had “not been hit.” The
use of force report [Exhibit C] contains the information Jodoin gave the
sergeant. Officer Jodoin repeated that when claimant was taken to the frisk area
it was “with the goal of getting him away from the other inmates because
he was creating a disturbance. The inmate was told he would be processed. He
was not taken to the frisk area with the intent of causing him bodily
harm.” Asked to describe the force used in the push, Office Jodoin said:
“the wall was maybe six inches to a foot away from claimant, and I was
probably just about that far behind him . . . I was on him, he was being
disruptive, argumentative, swearing, my whole concern was on him . . . I
couldn’t tell what his actions were going to be. He turned toward me
On cross-examination, Officer Jodoin confirmed that when he saw Jaques and
claimant, he could not make out what was being said, but could perceive that it
was loud enough that he could see they were arguing. When asked to say what the
“DOCS procedure was when a c.o. and an inmate are arguing”, Officer
Jodoin “could not say exactly, but [he] said that if it were [he], [he]
would try to defuse the situation - and maybe if the inmate wasn’t
listening [his] voice would rise too.” The witness said he escorted
claimant from claimant’s right hand side. He did not recall where the
light switch is in the frisk room. He recalled that the instruction to claimant
was to stand facing the wall, not to put his hands on the wall. He did not know
whether when claimant came to the facility he had been walking with a cane, but
confirmed that in the bullpen, no one would be allowed in with a cane in any
event. When asked to describe the extent of the blood he saw from
claimant’s injury, Officer Jodoin said “it was not bleeding like
split open, not squirting, not blood all over the carpet or the floor.”
Claimant asked Officer Jodoin why he did not charge claimant with assault.
Officer Jodoin said: “Because you did not kick me or punch me in the
face, etcetera. I felt threatened when you turned to face me.” He could
not say why he did not charge claimant with attempted assault at the time,
saying “I don’t know why.”
No other witnesses testified and no other evidence was submitted.
Use of physical force against an inmate is governed by statute, regulation, and
the attendant case law. The statute provides in pertinent part “. . .
[w]hen any 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, to maintain order, to enforce observation of
discipline, [and] to secure the persons of the offenders . . . ”
Correction Law §137(5). 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). The State
may be liable for the use of excessive force by its employee - constituting a
battery - under the concept of respondeat superior. See Jones
v State of New York, 33 NY2d 275, 279 (1973).
To assess whether force was necessary, or whether the particular degree of
force used was reasonable, “. . . a Court must examine the particular
factual background and the circumstances confronting the officers or guards
(see e.g. Lewis v State of New York, 223 AD2d 800; Quillen v State of
New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358) . .
. [T]he credibility of witnesses will be a critical factor in these
determinations (Davis v State of New York, 203 AD2d 234; McKinley v
State of New York, Decision, Claim No. 97500 & 97648, dated Sept. 22, 2000,
Lebous, J.).” Kosinski v State of New York, UID #
2000-028-0012, Claim No. 97581 (Sise, J., November 30, 2000).
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, assessing the internal
consistency of their accounts, and the court is never bound to credit a
In this case, the only witnesses to testify concerning the incident were Mr.
Andrews and Officers Jaques and Jodoin. A court is always required to assess
the credibility and consistency of any witnesses offered, and has done so in
The court also notes that this incident did not occur in a vacuum, but in a
prison setting. There are always more inmates than correction officers in any
given location, and it is noted that most of the case law describing events
resulting in violent conduct - whether it is between correction officers and
inmates, or among inmates alone - involve the particularly precarious time when
men are being moved from one location to another. In order to maintain order
in this volatile setting, outnumbered correction officers understandably may
remove one inmate from what is reasonably perceived to be a potentially
The testimony of the claimant, who impressed the court as an intelligent and
resourceful individual, was simply not as credible as that of the officers who
described a situation that they feared was escalating, and acted accordingly.
There was no evidence - even claimant’s testimony was consistent with that
of the officers - that any force was used after he was restrained by handcuffs.
The only force used was the quick reaction to claimant’s sudden turn
toward one of the officers, and their subsequent efforts to then place handcuffs
on him. His own direct examination showed that when claimant was under control,
officers escorted him out of the area. No contemporaneous medical evidence was
submitted to substantiate more extensive injury than the injury that occurred as
a natural consequence of the amount of force used in forcing claimant to the
concrete wall from a six (6) inch distance, moving first one arm and then the
next into the position at the small of the back where the handcuffs were then
placed. Crediting the testimony of the officers who testified, who gave such
testimony based only on what each individual perceived at the time, the amount
of force used was what was reasonably necessary to restrain an otherwise
agitated and belligerent inmate. Cf. Lewis v State of New York,
supra. Once claimant was under control and handcuffed, no additional
force was used according to all the testimony offered, even that of claimant.
Any failure to charge claimant with an additional facility rules violation -
within the discretion of the charging officer - does not support a version of
events in which claimant’s role is minimized. Moreover, whether claimant
was charged with assault or attempted assault is not the issue. The question is
whether he was subjected to force that was not commensurate to the behavior he
himself offered. The court finds that the testimony offered by claimant was not
credible, when measured against his demeanor as he testified, as well as the
testimony of the officers involved, and the contemporaneous accounts of the
incident placed in evidence.
Claimant has failed to establish by a preponderance of the credible evidence
that the State of New York should be held vicariously liable for the conduct of
its agents in using more than the force necessary to subdue him.
Claim Number 112839 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.
December 22, 2008
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. “. . . [C]laimant’s notice of
intention specified the date and general location of the incident, described the
manner in which claimant was injured and set forth the factual basis for the
State's alleged negligence and, as such, was sufficient to provide the State
with the opportunity to investigate the claim and to reasonably infer the basis
for its alleged liability . . . (citation omitted
). Our conclusion in
this regard is not altered by the fact that claimant's notice of intention did
not specify the precise location where the incident occurred within the confines
of the correctional facility or identify the correction officer who allegedly
left his assigned post, as the notice of intention nonetheless provided
sufficient details to permit a prompt investigation into the incident
, Riefler v State of New York, 228 AD2d
, [impossible for State to determine situs of accident given the
claimant’s vague and contradictory description thereof] ).”
. Any defense based upon the manner of service
of the notice of intention - which appears to have been delivered by regular
mail - is waived, since it was neither raised in the answer, or by timely motion
to dismiss. See
Court of Claims Act §11(c).
. All quotations are to trial notes or audio
recordings unless otherwise indicated.
. Other exhibits offered by Mr. Andrews
included a FOIL request dated April 7, 2006 apparently concerning the
disciplinary hearing [Exhibit 1]; denial of a grievance dated January 11, 2006
[Exhibit 2]; a letter denying a FOIL request concerning an open investigation by
the Inspector General dated April 19, 2006 [Exhibit 3]; and a memorandum dated
April 12, 2006 asking for clarification of a FOIL request. [Exhibit 4]. Other
than to show that he had been trying to obtain information two years before the
trial date, and had been thwarted somehow (although he did not offer any showing
that these denials were appealed) the exhibits were unexplained.