New York State Court of Claims

New York State Court of Claims

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.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
December 22, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 [8], 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 York, 245 AD2d 791, 792 (3d Dept 1997).[1] 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. [See 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.[2] 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 Court of 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 112839].

During his testimony, he explained that he was seated on the bench with a “group of 40 inmates waiting to be called”[3] 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 towel.”

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 facility.

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 left] arm.”

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 the clamp.

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 notation.

No other witnesses testified on claimant’s direct case, and no other relevant evidence was offered.[4]

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 that:
“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 area.

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 felons.”

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 facility hospital.”

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 aggressively.”

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 particular fact.

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 this case.

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 dangerous situation.

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
White Plains, New York

Judge of the Court of Claims

[1]. “. . . [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 (compare, Riefler v State of New York, 228 AD2d 1000, [impossible for State to determine situs of accident given the claimant’s vague and contradictory description thereof] ).”
[2]. 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).
[3]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[4]. 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.