New York State Court of Claims

New York State Court of Claims

ELLIS v. THE STATE OF NEW YORK, #2008-041-509, Claim No. 107788


Claim alleging assault of resident by staff at secure juvenile housing facility is dismissed after trial where claimant failed to demonstrate that the defendant’s use of force was either unjustified or excessive.

Case Information

BENJAMIN ELLIS, on behalf of ELIJAH ELLIS, his minor son
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:
RAWLINS & GIBBS, LLPBy: Earl A. Rawlins, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: Michael T. Krenrich, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 28, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


That there was a physical confrontation on March 14, 2003 between Elijah Ellis (claimant), a then resident of Brookwood Secure Center (Brookwood), a secure facility housing juveniles operated by the defendant through the New York State Office of Children and Family Services, and staff members of Brookwood, is not in dispute. Left to the Court to determine is whether the use of physical force by representatives of the defendant upon the claimant was proven by claimant by a preponderance of the credible evidence to have been either unjustified or excessive. The Court finds the claimant has failed to demonstrate by a preponderance of the credible evidence that the defendant’s use of force upon claimant on March 14, 2003 was either unjustified or excessive. Accordingly, the claim is dismissed.

Each of the five trial witnesses testified to a physical confrontation at Brookwood, on March 14, 2003, which resulted in claimant being restrained face down on a carpeted floor with Youth Division Aide (YDA) Timothy Burke and Officer Guild on top of him, Burke over claimant’s upper torso and Guild over claimant’s legs. However, only two witnesses, claimant himself and YDA Burke were able to testify as to the events which immediately led to and began the physical confrontation, ingredients necessary to determine whether defendant’s use of force upon claimant was justified.

Claimant testified that in response to verbal sparring between he and Burke, Burke “grabbed” him, first sending the two into a small table and then falling to the floor. Claimant provided no testimony regarding his physical actions (other than the turning of his head to the side) during the verbal confrontation.

Burke, on the other hand, testified that during the verbal confrontation, while each were in very close physical proximity to the other, claimant was “rocking” on his feet, clenching and unclenching his hands and refusing to keep his hands, as ordered, clasped behind his back, culminating in claimant moving toward him, bringing his hands up and “pushing” into him. At this point, Burke spun claimant around, restrained him from behind and the two fell to the floor. As to the description of claimant’s physical movements leading to the physical encounter, the Court, having observed the testimony and demeanor of Burke and the claimant as each testified, credits YDA Burke’s account.

The genesis of the verbal confrontation between Burke and claimant was Burke’s assessment that claimant was acting in an insubordinate manner, refusing to follow Burke’s directives and failing to timely comply with efforts to move a group of residents from one location in Brookwood to another, all of which resulted in the verbal sparring which preceded the physical encounter. After the initial argument, Burke ordered claimant to his room for a five minute cooling-off period and aborted efforts to then transport the residents, ordering the others to their rooms as well.

After Burke had inquired within the facility to determine if claimant had any personal issues of which Burke was unaware, the residents were again assembled to move, but claimant remained agitated. The other residents were again directed to their rooms, and Burke began to address claimant. The physical encounter then took place.

Claimant asserts the defendant exercised unjustified use of force and/or violated facility policy, additionally suggesting that YDA Burke should have again ordered claimant to his room a second time rather than employing physical restraint of claimant.

In Bush v State of New York (Ct Cl, Fitzpatrick, J., September 10, 2007, Claim No. 105008, UID #2007-018-581), the court, in considering an alleged assault against a juvenile resident of a secure facility by a staff member, described the applicable law as follows:
“The State may be liable for an assault and battery committed by an employee in carrying out their duties under the theory of respondent superior (Jones v State of New York, 33 NY2d 275). An assault is the intentional placing of a person in apprehension of imminent harmful or offensive contact and a battery is the intentional non-consensual touching of another person causing offensive bodily contact (PJI 2d 3:2, 3.3 [2007]). Where a person is lawfully in custody the offensive contact or force may be privileged, that is permissible to effectuate or maintain custody and control, as long as the force used is only such force as may be reasonably necessary under the circumstances (PJI 2d 3:4 p. 22 [2007]; see Sheils v State of New York, Ct Cl, Collins, J., signed May 18, 2007, Claim No. 110349, UID #2007-015-556).”
The factual situation presented here is analogous to claims involving correctional facility use of excessive force against an inmate. In such claims, the credibility of the witnesses is generally the dispositive factor (Davis v State of New York, 203 AD2d 234 [2nd Dept 1994]). To determine whether the 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 (see Wester v State of New York, 247 AD2d 468 [2nd Dept 1998]; Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Quillen v State of New York, 191 AD2d 31 [3d Dept 1993]; Arnold v State of New York, 108 AD2d 1021 [3d Dept 1985], appeal dismissed 65 NY2d 723 [1985]).

Initially, crediting YDA Burke’s account of claimant’s physical movements and further crediting his testimony that he feared claimant would become physically “assaultive” and “might take a swing at me,” the Court finds YDA Burke’s decision to physically restrain claimant justified. The physical nearness (side by side) of claimant to Burke, Burke’s further description of claimant as being agitated, the failure of claimant to obey directives to place his hands clasped behind his back, the clenching and unclenching of claimant’s hands and his initiation of physical contact between the two, belie any suggestion that again directing claimant to his room to further cool-down was a preferred alternative, or even a possibility, to physical restraint.

So too are these circumstances sufficient to find that there was no violation of the facility policy contained in Exhibit B, paragraph B, which states in part, “ It is the policy of Brookwood Secure Center (BSC) to limit the use of physical force to those circumstances in which there is no reasonable alternative.”

Indeed, Exhibit B, paragraph F, delineates those circumstances under which the use of physical force may be necessary and includes: “1. To protect one’s self . . . 5. To enforce a direct order to a resident for reasons of safety or control . . . 7. To respond to an immediate threat to the safe, secure operation of the facility.”

In addition to having concern for his physical safety, Burke testified that claimant failed to heed several orders, including the placement of his hands. Further, claimant failed to comply with Burke’s orders related to the movement of several residents from one location to another within the facility, which the Court finds to involve matters of safety and control, the failure of which threatened the safe, secure operation of the facility.

For all of the foregoing reasons, the Court finds the claimant failed to prove defendant employed unjustified force upon him on March 14, 2003.
The remaining issue involves whether the use of the force that was employed was excessive. Claimant asserts that defendant’s employees rubbed his face back and forth on the carpeted floor, resulting in rug burns to his face. Claimant’s account of events once he and Burke fell to the ground is simply not credible, for three primary reasons. First, when viewed under the circumstances described and in consideration of the testimony of the three defense witnesses, claimant’s assertion that he did not at all struggle with Burke once on the ground is simply not believable. Claimant himself testified he was upset and indicated, in prior deposition testimony, that he intentionally sought to prevent Burke from restraining his arms once on the ground. Next, claimant asserted that Burke placed a knee on his upper back while he was on the ground. Burke testified both of his knees were on the ground to claimant’s left and that he suffered rug burns to both knees (Burke was wearing shorts at the time of the incident). Defendant’s witnesses Daniel Serviss and Robert Burns also testified to both of Burke’s knees being bloodied. The Court credits YDA Burke on this small, but telling point. Finally, at trial, apparently for the first time, claimant asserts that it was defendant’s employee Patterson who rubbed his face back and forth across the carpet while claimant was prone on the ground. Robert Burns, the supervising official responding to the incident, testified that immediately after the incident, claimant reported to him that Burke and Guild were involved with restraining claimant and that claimant made no mention in the incident’s immediate aftermath of Patterson being involved in his restraint. The Court credits Mr. Burns on this point.

All of the defendant’s witnesses testified that claimant was vigorously struggling with Burke and Guild on the floor, Mr. Burns further indicating claimant was moving his head back and forth. The witnesses also variously described the struggle to have lasted several minutes, that all of the involved parties were “winded,” that claimant was “thrashing his head back and forth” while on the floor and that claimant appeared to be “red and flushed.” All of these observations discredit claimant’s testimony that once on the floor, he engaged in no struggle.

The Court finds as a matter of fact that the injuries sustained by claimant, rug burns to each cheek of his face, were the direct result of his animated, if not violent, struggle in response to being physically restrained, initially by Burke and Guild, and subsequently, by members of a response team. Further, the Court finds that the force used by defendant, in response to the affirmative resistance and struggle claimant employed, to have been both necessary and appropriate to control the situation. No excessive force was used.

For all of the foregoing reasons, the claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

August 28, 2008
Albany, New York

Judge of the Court of Claims