|Claimant short name:||FLYTHE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Joseph Flythe, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
|Third-party defendant's attorney:|
|Signature date:||November 19, 2009|
|See also (multicaptioned case)|
This decision follows the trial of the claim of Joseph Flythe. In his claim, Mr. Flythe alleges that on February 13, 2003, during a facility search at Sullivan Correctional Facility, he was "jumped on . . . and beat . . . up" in his cell by several correction officers who were members of the "Crisis Team." Claimant further alleges that:
[t]hey only stopped when someone told them that I was . . . [visually impaired] . . . I had done nothing . . . they just beat me up for nothing . . .They punched me in the face and I fell hitting my head on the wall. I get [migraine] headaches now also my back . . . [hurts] . . . I also have trouble sleeping, as I am afraid that they will come back and get me again . . . I also now had to obtain and continue to maintain Mental Health Counseling . . .
At trial, claimant testified on his own behalf, and defendant called registered nurse Floyd Darbee.(1)
Claimant testified as follows. Beginning on February 11, 2003, Sullivan Correctional Facility was locked down for three days for a facility search because of an incident involving contraband. A search team called the "Orange Crush" was called and "took over" the whole facility. On the third day, February 13, 2003, the team came to "D North," where claimant was housed in cell 145. Three members of the team came in his cell and did a strip search. After he put his clothes back on, they surrounded him and placed his hands behind his head and he couldn't move. One of the officers said, "you think I don't know how to read lips," and accused claimant of making a derogatory comment, which claimant denied having done.
Claimant further testified that he was taken out of his cell, and the cell was ransacked; everything was on the floor and out of the dresser. He was then taken back into the cell, where he was pushed and fell, hitting his head on the wall. One of the officers scratched his stomach and another scratched his mouth. He heard one say, "Throw the bastard on the floor." He was put on the floor, face up and handcuffs were put on him. He couldn't move and was gagging. Then, he heard someone come in and say, "What are you doing? Back out." The cuffs were taken off him and he was thrown on the bed and told not to turn around. The team then left and he yelled for the sergeant that he wanted to go to sick call because his head was swollen. He went to sick call and explained what had happened. Claimant stated that photos were taken, but that he had been unable to obtain them. He went to sick call again the next day and was given pain medication to take for three days.* * *
Floyd Darbee testified that he has worked as a registered nurse at Sullivan Correctional since November 2000, and his regular duties include assignment to sick call, which has included seeing patients who were assaulted.
Darbee was shown defendant's exhibit A, claimant's Ambulatory Health Record for February 13, 2003, and he testified that he wrote the entries stating what claimant told him and what his "medical findings" were. As to what Flythe told Darbee, exhibits A states that, "[inmate] states '3 co's hit me in the right side of my head, and the [left] side hitting the wall . . . then they pulled me off the toilet and threw me on the floor. . . [t]hey stood on my back . . . [m]y head is hurting me.' "
Darbee testified that he did a full assessment of Flythe's body at that time. As to Darbee's "medical findings," exhibit A states that there was:
[no] open area on head [no] bruising [or] swelling noted pain is just what the [patient] says it is pain to him. [H]e does not appear in agony no [illegible] very calm demeanor joking [at] times [with] officers. Arms bilateral [with] full [range of motion] no open areas [no] bruising noted Back and legs bilateral [with] [no] bruising noted [no] [illegible] noted. No [illegible] injuries noted. No treatment given.
When cross-examining Darbee, claimant expressed doubt that it was Darbee who had in fact treated him that day. Asked if he had any specific recollection of treating claimant, Darbee stated that it was six years ago, and he was testifying based on what he had written at the time.* * *
In cases involving allegations of excessive force, the credibility of witnesses is crucial, and the trier of fact must assess credibility under the specific circumstances of the incident. See, e.g., Davis v State of New York, 203 AD2d 234 (2d Dept 1994); Wester v State of New York, 247 AD2d 468 (2d Dept 1998); Lewis v State of New York, 223 AD2d 800 (3d Dept 1996).
In the instant case, claimant was the only witness to testify as to what happened in his cell on February 13, 2003. That being said, Darbee's entries on claimant's medical records that day call into doubt whether claimant was in fact assaulted. I am constrained to find, on the record as a whole, that claimant has failed to satisfy his burden of proving by a preponderance of the evidence that he was in fact assaulted as he testified.
In view of the foregoing, having reviewed the submissions, claim no. 107899 is dismissed. LET JUDGMENT BE ENTERED ACCORDINGLY.
November 19, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. Claimant sought to introduce an unsigned, unsworn "statement" of inmate Ralph Ambert, who allegedly witnessed the incident that is the subject of this claim. Such was identified as claimant's exhibit 1, but was not introduced into evidence. Claimant, who was given the opportunity to make a post-trial submission, submitted no authority to suggest that such a document is admissible.