New York State Court of Claims

New York State Court of Claims

DELANO v. THE STATE OF NEW YORK, #2008-031-515, Claim No. 112508


Synopsis


Force used on Claimant was necessary and reasonable, given Claimant’s refusal to comply with lawful direction. Claim dismissed

Case Information

UID:
2008-031-515
Claimant(s):
SEDNEY DELANO
Claimant short name:
DELANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112508
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
SEDNEY DELANO, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: BONNIE GAIL LEVY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 14, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Sedney Delano (“Claimant”) filed claim number 112508 on July 7, 2006. In his claim, Mr. Delano alleges that on November 19, 2005, at Five Points Correctional Facility, he was assaulted by several correction officers during a search of his cell. I held a trial in this matter on June 20, 2008 at Auburn Correctional Facility.


Claimant testified that, on the day of the incident, he was waiting in his cell for dinner. Claimant stated that he was a vegetarian and was to receive a special, alternative dinner. According to Claimant, Correction Officer Anthony Edick intentionally gave Claimant a diet dinner instead of his alternative dinner. Claimant admittedly became upset and demanded to be given the correct dinner trays.[1]

Claimant stated that Officer Edick gave him a new hot tray but refused to give him a new cold tray. An argument between the two men ensued. According to Claimant, Officer Edick became angry with him and told him that he would get nothing because he complained. At this point, Claimant admits that he and Officer Edick struggled over the hot tray that was partially sticking out of the feed up hatch in Claimant’s cell.

Claimant’s testimony became a little confusing at this point. He testified initially that, as he and Officer Edick were struggling over the hot tray, Officer B. Ranger came to Officer Edick’s aid and the two officers proceeded to assault Claimant by pulling his arms through the feed up hatch and slamming the latch closed against his hands. At another point in his testimony, he stated that he and Officer Edick were no longer struggling over the tray, but that his arms were, nonetheless, outside of the feed up hatch as he was discussing the matter with Officer Edick.

In any event, Claimant testified that the two officers grabbed his hands, pulled him forward through the hatch and then slammed their body weight down on the latch, smashing his hands and arms. Mr. Delano asserts that he sustained permanent injuries to his hands and neck as a result of the incident. His claim requested damages of $150,000.00.

Claimant called no witnesses but was very concerned that I review both the written and audio version of the disciplinary hearing transcript relating to the incident. He also stated that the incident itself was captured on videotape. I held proof in this matter open to permit the parties to submit copies of the videotape of the incident and audiotape of Claimant’s disciplinary hearing.

Both Claimant and Defendant submitted audio recordings of Claimant’s Tier III disciplinary hearing and video recordings of the incident itself. Claimant’s submissions, the hearing audiotape and incident videotape, have been admitted into evidence as Exhibits A and B, respectively. Defendant submitted two audiotapes from the disciplinary hearing and one videotape of the incident. These have been admitted into evidence as Exhibits 7, 8 and 9, respectively. Defendant also submitted two audiotapes which, while related to Claimant’s disciplinary hearing, contain exclusively confidential medical information. As they are not relevant to the issues at hand, those two audio recordings are not being admitted into evidence.

In defense of this matter, Defendant called Correction Officer Anthony Edick. Officer Edick testified that he recalled the incident clearly. He had gone to Claimant’s cell to deliver Claimant’s evening meal. He recalls giving Claimant his meal and then moving on. Claimant called him back, however, complaining that Officer Edick had given him the wrong dinner. Officer Edick testified candidly that he believes that he did give Claimant the wrong dinner trays that night. He intended to simply make a switch for the right trays, but when he took back the trays he had given to Claimant, he noticed that one of them had been emptied of its contents.

For this reason, Officer Edick attempted to give the full tray back to Claimant and told Claimant that he would return after he had served the other inmates in the company who were still waiting for their dinners. Claimant became agitated at being told he would have to wait and demanded to be given his correct dinner immediately. Claimant held the feed up hatch open with the full tray and refused to either give it to Officer Edick or take the tray into his cell. Officer Edick testified concerning Directive 4933 which requires him, for security reasons, to close the feed up hatch before he leaves the inmate. At this point, Officer Edick could not continue with his duties because Claimant refused to let Officer Edick shut the feed up hatch.

According to Officer Edick, once he finally got the tray away from Claimant, Claimant continued to hold the latch open with his hands. He gave Claimant several direct orders to remove his hands from the hatch. Upon Claimant’s refusal, Officer Edick and another guard, Officer Ranger, physically removed Claimant’s hands and arms from the feed up hatch and shut the hatch.

Exhibit 2 is Claimant’s disciplinary packet, which contains, among other things: 1) photographs of Claimant shortly after the incident; 2) the use of force report; and 3) the inmate injury report. A review of this exhibit, as well as Exhibit 5 (Claimant’s certified medical records), demonstrate that, despite his allegations to the contrary, Claimant’s injuries were relatively mild; indeed, they were quite superficial.

I have also had a chance to thoroughly review Claimant’s disciplinary hearing transcript, both the written version (Exhibit 1) and the recorded versions that were received from both Claimant and Defendant. In addition, I have reviewed videotapes, submitted by each party, of the incident itself.

Correction officers are charged with the unenviable task of maintaining order and discipline in correctional facilities under stressful circumstances (Arteaga v State of New York, 72 NY2d 212). It is well-settled that correction officers are entitled to use physical force in order

to achieve this goal, but "[o]nly such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]). The limited circumstances in which the use of force is tolerated by correction officers are set forth as follows:
“[a]n employee shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape” (7 NYCRR 251-1.2 [d]).
In situations involving inmate allegations of excessive force by a correction officer, such as here, the credibility of the respective witnesses is often the dispositive factor (Davis v State of New York, 203 AD2d 234). To determine, in a given instance, whether use of force was necessary and, if so, whether the force used was excessive or unreasonable, a Court must examine the specific 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).

I note here that Claimant was intent on demonstrating first, that he was given the wrong dinner, and second, that his arms were injured (however superficially) when the officers tried to forcefully place his arms back inside of his cell. Claimant did demonstrate these things. However, I find that the use of force upon Claimant was completely justified. My review of the videotapes (exhibits B and 9) and the audiotapes (exhibits A, 7 and 8) only reinforce the testimony of Officer Edick. From the videotape, Officer Edick reacted calmly and patiently toward Claimant. When this did not work, however, there was a struggle that lasted several minutes. It was apparent to me that the struggle went on for such a long time because the officers were attempting to force Claimant’s hands back through the hatch as gently as possible under the circumstances.

Claimant may have been justifiably upset that he was given the wrong dinner. He had no right, however, to refuse to comply with Officer Edick’s direction to remove his hands and arms from the feed up hatch. The force used by the officers to enforce compliance with this lawful directive was necessary and reasonable.
Accordingly, Claim No. 112508 is hereby DISMISSED.

Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

November 14, 2008
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims



[1].Each dinner consisted of two trays - one hot and one cold.