MANLEY v. THE STATE OF NEW YORK, #2009-030-008, Claim No. 112645
Inmate claimant proceeding pro se established after trial that correction
officer committed unprovoked battery while escorting claimant from mess hall.
The officer involved in confrontation with claimant did not testify. Claimant
did not establish the extent or permanency of any damages proximately caused by
the battery, beyond some minor cuts and bruises. Damages in the amount of
1 1.The caption has been amended to reflect the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
TONY MANLEY, PRO SE
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
March 30, 2009
See also (multicaptioned
Tony Manley alleges in his claim that defendant’s agents at Downstate
Correctional Facility assaulted him while he was an inmate in custody on or
about June 20, 2005. Trial of the matter was held on February 20, 2009.
Mr. Manley testified that on June 20, 2005 he was being escorted by
Correctional Officer Nichols through the mess hall after receiving his
medication at the facility infirmary. As they passed through the mess hall,
Officer Nichols instructed claimant to “leave the
and directed him to a secluded
stairwell within “three complex.” When he got to the area he
“was smacked by C.O. Nichols.” Other officers, including Officer B.
Hagan and Officer Lappas, “came over” and “they all
jumped” him. Mr. Manley said:
“My hand was twisted I was punched in the right ear [by Nichols] I fell
to the floor, my leg twisted, I was hit in the head, my tooth got chipped. At
Attica they gave me a hearing aid in the right ear. I was taken upstairs to the
infirmary. They gave me a piece of paper to write a complaint. Pictures were
taken. I never got copies of any pictures. No UI [Unusual Incident] report was
filed; they had to do a root canal on my front right tooth.”
On cross-examination, Mr. Manley reiterated that it had been Nichols who told
him to leave the mess hall, and Nichols who took him “down to the
ground.” This clarification was sought because in the filed claim, Mr.
Manley had indicated that Officer Lappas had “twisted” him to the
floor. [See Claim No. 112645, ¶7]. At trial, claimant said
“Lappas was more like trying to restrain me, not trying to hurt me.”
When asked why officers were trying to “bring him down” claimant
readily responded: “I guess they saw me having an altercation with the
officer, slapping me, so I guess they reacted.”
Defendant brought out other supposed “discrepancies” between
claimant’s brief direct testimony at trial and the filed claim. In the
filed claim, Mr. Manley had indicated that Officer Hagan had punched him in the
left ear. [Claim No. 112645, ¶ 6]. Elsewhere in the filed claim Mr. Manley
had indicated that he was kicked. [Ibid. ¶ 8]. Claimant said:
“I was punched more than one time. It was a punch, a kick”.
Claimant said: “I was punched in both ears” by Officer Nichols, but
it was the “right ear” that sustained the injuries.
When prodded, claimant could not say initially which officer kicked him, but
reviewed his claim and ultimately stated that it had been Nichols who had kicked
him on the left side of his face. By way of explaining his sketchy recall, Mr.
Manley acknowledged that in the filed claim, he did not allege any damage to his
right ear, only to the left ear, but said “it’s been a long
time.” He stated further: “ I have one hearing aid.” After
some hesitation, he said that the hearing aid was for his left ear. When asked
when he had last used the hearing aid, he said it had been taken from him when
he went to Southport Correctional Facility, and that he had it when he was at
Wende Correctional Facility. Asked more specifically when he had received the
hearing aid, and when it had been taken, he said, respectively, 2007 and 2008.
Mr. Manley said he had been “cut and bruised.” He said he had been
kicked in the mouth so that his “left tooth chipped”, and his lip
was cut and swollen. When asked what other injuries he suffered, he said:
“My right foot and hand were swollen. My back was hurting - I got
medication for that. I had cuts, abrasions on my hands and face. The left and
right side of my face had cuts and abrasions.”
He reiterated that Officer Lappas “wasn’t trying to hurt me, hurt
me, like I was by C.O. Nichols”, but then agreed that the filed claim
indicated that Lappas held him down “so that Officer Nichols could kick
[him]” and averred that Lappas did so.
Mr. Manley maintained that he did nothing to cause officers to use force. He
insisted that he did not try to strike Officer Nichols, as alleged in the inmate
misbehavior report that the officer issued. [See Exhibit 1]. He
acknowledged he was found guilty of attempted assault after a hearing, but said
that at the hearing, “they only talked about the assault,” saying
nothing about the other facility rules violations noted thereon such as
“interfering with staff.” The finding of guilt was upheld on
appeal, although he “got [his] time cut in half.” When questioned
further, he acknowledged that he had been given an 18-month penalty for the
attempted assault, but ultimately served “8 or 9 months in SHU”
[Special Housing Unit]. He did not bring a proceeding for judicial review of the
administrative determination pursuant to Article 78 of the Civil Practice Law
Defendant brought out minor discrepancies in the inmate injury report form
completed by claimant in the infirmary. [Exhibit A]. The portion completed by
“When [I] was walking out from the mess hall [I] was jump[ed] by unknown
officers. One of the officer[s] work[s] in my house on 3-C block. And my front
tooth was kick[ed] out and [I] had bleeding from my head my hands . . . [were]
cut.” (sic) [Exhibit A].
Claimant said that he did not know the officers’ names at the time, and
acknowledged that while the inmate injury report indicates that he walked out
from the mess hall, he nonetheless “was told by officers to leave”,
and had not simply walked out on his own - a fact also confirmed in other
reports admitted in evidence. [See Exhibits 1 and A, C]. Claimant
maintained that the area was a “secluded area” even though it was
just outside of the mess hall, because “it was in a corner” of the
stairwell. It was not in view of the public “unless someone went over
there.” Mr. Manley acknowledged that this initial injury report he
completed did not say anything about being escorted or being directed to a
In the written claim Mr. Manley had stated that being struck in the ear was the
first event in the sequence while in the inmate injury report claimant had
written that he was “jumped.” Asked to chose which event came
“first” (presumably) Mr. Manley chose “I got
Correction Officer Lappas, a twenty-year employee of DOCS, recalled the
incident with Mr. Manley from his viewpoint as an officer assigned as a
“3-complex” escort at Downstate that day. He essentially witnessed
the “end of the incident.” He heard noise coming from the corridor
outside the mess hall, went to investigate, and found “Officer Nichols
lying on inmate Manley who was resisting.” He denied holding Mr. Manley
down while Nichols struck and kicked the inmate. When he arrived at the scene,
Officer Lappas said
“Inmate Manley was already on the floor, and I assisted Officer Nichols
in putting on mechanical restraints on inmate Manley. In order to do so, I had
to use force to get inmate Manley into the mechanical restraints; grabbing
inmate Manley’s wrists to bring them to his back and applying mechanical
restraints; he was resisting.”
Asked if he himself had suffered any injury, Officer Lappas stated:
“I had an injury to my right pinky, from trying to get inmate
Manley’s wrist from underneath him to his back.”
He denied using any force other than pulling on Mr. Manley’s hands and
arms to move his arms and apply the restraints. Once the inmate was in
restraints, he was moved to a standing position and escorted to the
Officer Lappas recalled that Officer Hagan was “helping Officer Nichols
escort, and was not on top of Manley at all,” nor did he see him strike
Manley. Officer Hagan, it was noted, is retired from service with DOCS. Officer
Lappas “never saw” Officer Nichols strike Manley.
Officer Lappas identified a series of color photographs as depicting how inmate
Manley looked after this incident. [Exhibit B]. The photographs show the head
and face of Mr. Manley, as well as views of his body from his head to his toes,
albeit at a distance.[Ibid.]. When asked to do so by counsel, the officer
opined that the photographs did not show cuts or abrasions on the left side and
ear; or on the right side of his face, or mouth area.[Ibid.]. The court
notes that there are no close-up photographs of either ear, bleeding is shown on
his left nostril, on the thumb on his left hand, and the back of his head
appears reddened and swollen, but there are no other photographs clearly showing
the nature of his injuries, largely because most are taken from too far away,
thus they are of limited utility.
On cross-examination, claimant asked Officer Lappas if other pictures had been
taken, since he recalled that there had been, but only seven (7) photographs had
been submitted. The witness said that no other pictures were taken to his
knowledge. Officer Lappas said there had been a UI [Unusual Incident] report.
It is noted that no unusual incident report was submitted, although a
handwritten version and a typed version of a use of force report was submitted.
Officer Lappas confirmed that he did not see Nichols escort Manley out of the
mess hall, and it had been because he “heard a commotion” that he
went to the outside corridor to investigate. The witness could not say why the
“use of force” box was not checked on the misbehavior report.
[See Exhibit 1]. He said: “It was Officer Nichols’
Officer Lappas maintained that the incident “was not in a secluded area,
it was right outside 3-complex mess hall.” He estimated that after he
“heard the commotion, it took ten (10) seconds to arrive at the
scene.” He reiterated that he saw Officer Nichols and inmate Manley; that
Officer Nichols was on top of inmate Manley, “trying to restrain him, who
was resisting at the time. I came to the aid of another officer, and applied
mechanical restraints to the inmate.”
Asked to describe the area outside the mess hall more precisely, he said:
“The area is a long tunnel area leading from 3-complex down to the end
which is the mess hall. When you walk out of the mess hall, it is a tunnel area
. . . No one else was in there at the time, only Officer Nichols, inmate Manley
and me . . . People in the mess hall can see into the hall,” [if they
Officer Lappas identified a four-page use of force report, signed by Sergeant
M. Zaccagnino as the “reporter,” and reviewed and evaluated by the
superintendent. [Exhibit C]. In the section where the reporter is to
“DESCRIBE EVENTS LEADING UP TO THE APPLICATION OF FORCE” the
following is written:
“Inmate Manley . . . was causing a disturbance and was acting
erratically in the mess hall. He was approached by C.O. Nichols to be counseled
and pat frisked. Inmate Manley, [then] with a clenched fist attempted to strike
Officer Nichols. The attempted assault took place outside the #3 dining
Elsewhere in the use of force report, Officers Nichols and Lappas are mentioned
as the “staff involved” - Officer Hagan is not noted - and in the
section where the reporter is to “DESCRIBE THE ACTUAL FORCE USED”
the following is written:
“Officer Nichols grabbed inmate Manley in [an] upper body hold (bear
hug) taking the inmate to the floor. Officer Lappas then assisted, by placing
the inmate in mechanical restraints behind the inmate’s back. Force used
was minimal and necessary to prevent injury to staff and to enforce compliance
with a lawful direction.” [Ibid.].
No statements by Officers Nichols and Lappas (or Hagan) are included with the
use of force report.
A typewritten “physical examination/treatment report” in the use of
force report notes that claimant had a “superficial laceration left
nostril, and occipital area, and base of left thumb.” [Ibid]. A
page from claimant’s ambulatory health record [AHR] for June 20, 2005 -
with notations at 8:15 a.m. and 8:35 a.m. - indicates that claimant
“appear[ed] to have superficial laceration to left nostril &
occipital area of scalp. Both areas noted to have clotted blood [at] injury
sites. Allowed areas to be cleansed. Superficial laceration to [left] hand
[negative] swelling [negative] deformity. Gross visual [physical exam negative]
except for above superficial lacerations.” [Exhibit D].
A body diagram of the location of claimant’s injuries refers to the left
nostril, the back of the head, and the base of his left thumb. [Exhibit C].
These injuries are memorialized in the photographs. [See Exhibit B].
In additional colloquy between claimant and counsel for the defendant, claimant
asserted that more photos were taken, including pictures of his chipped tooth,
and that the medical report did not seem complete because it said nothing about
his tooth being chipped. After treatment at the facility clinic, Mr. Manley
agreed that he “went straight to SHU,” and did not go to the dental
clinic at that time. He said that “when I came to Downstate my teeth were
fine, when I left they were not.”
Further discussion revealed that there might have been an additional violent
incident involving claimant in the SHU, that occurred later on that same day,
which might have confused claimant.
The inmate misbehavior report written by Officer Nichols, places the incident
“outside the dining room” and describes the incident as
“On the above date and time I C.O. Nichols escorted Inmate Manley . . .
out of the messhall. Inmate was ordered to put his hands to his side. Inmate
refused stating ‘f*** that motherf****, s*** my d***!’ At the same
time swinging at me Officer Nichols with his right fist clinched. I Officer
Nichols grabbed the inmate in [an] upper body hold taking him to the ground.
Officer Lappas assisted and cuff the inmate without any further incident.”
No other witnesses testified.
DISCUSSION AND CONCLUSION
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); see
Lewis v State of New York
, 223 AD2d 800, 801 (3d Dept
The state may be liable for the use of
excessive force by its employee - constituting a battery - under the concept of
. See Jones v State of New York
NY2d 275, 279 (1973).
To assess whether force was necessary, or whether the particular degree of
force used was reasonable, Courts look at what circumstances confronted the
officers at the time. The credibility of those who testify before the court is a
critical factor in these assessments. See Kosinski v State of New
York, UID # 2000-028-0012, Claim No 97581 (Sise, J., November 30, 2000 );
see also Medina v State of New York, UID # 2007-028-010, Claim No.
106664 (Sise, J., March 2, 2007).
With regard to an unprovoked assault and battery - which is essentially what is
alleged here as the first phase of this claim - the violence allegedly offered
by officers is not permitted as it would be were it in reaction to an
inmate’s behavior. A cause of action for assault is established upon
“. . . ‘proof of physical conduct placing the [claimant] in imminent
apprehension of harmful contact’ (citations omitted).” See
Fugazy v Corbetta, 34 AD3d 728 (2d Dept 2006). To establish a cause
of action for battery, a claimant must prove that there was intentional,
non-consensual and offensive bodily contact. [Ibid.].
Committed in the scope of employment by a correction officer, a battery may
render the State vicariously liable for the acts of its agent.
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, and assessing the internal
consistency of their accounts. “. . . ‘[T]he fact-finder is not
required to credit a particular fact testified to by one or even six
witnesses,’ but instead should assess the likelihood of a fact being true
‘by the totality of circumstances surrounding the occurrence as well as by
the ordinary laws that govern human conduct’ (People v Collier, 85
Misc 2d 529, 553 [NY Sup 1975]).” Medina v State of New York,
In this case, the sole witness to testify concerning what transpired before the
acknowledged use of force by correction officers in the corridor - namely the
supposed erratic behavior in the mess hall reported in the use of force report,
and the allegedly unprovoked attack - was Mr. Manley. Certainly the court is
not obligated to accept in its entirety the testimonial evidence offered by one
witness alone. See 1A NY PJI3d 1:41, at 55-56 (2006). This is because a
court is always required to assess the credibility and consistency of any
witness offered, and has done so in this case.
Upon review of all the evidence, including listening to the witnesses testify
and observing their demeanor as they did so, the court finds that claimant has
established an adequate basis for the state’s liability by a preponderance
of the credible evidence. On the whole, claimant’s account of events was
credible and supported by other evidence, even if he did not have perfect recall
of which uniformed officer rendered which blow first or where - as pressed upon
him during cross-examination - and even if he exaggerated to some degree the
extent of the injuries he sustained.
By the same token, the testimony of Officer Lappas, while credible in terms of
what he actually witnessed, was pertinent only as to his role and what he
observed as the latecomer on the scene. Because Officer Lappas only came upon
the scene after Officer Nichols had taken claimant down to the ground, his
testimony is of limited utility, relevant only as to whether more force than was
necessary was applied after claimant was on the ground in a body hold. Indeed,
Mr. Manley was left with the impression that Officer Lappas was not trying to
“hurt him, hurt him”, but only assisting an officer already in the
process of holding him down.
While there was some sketchiness in claimant’s recall of the incident,
the court nonetheless finds that he was a credible witness, who was directed
outside of the mess hall by a correction officer who did not testify in this
court, and then struck in the face (at a minimum) by that officer without
provocation. The hearsay provided in the inmate misbehavior report [Exhibit 1]
and the use of force report [Exhibit C] does not rebut the live testimony given
by claimant, who was subject to cross-examination, as to the scenario presented
on June 20, 2005.
In the inmate misbehavior report Officer Nichols writes only of
claimant’s supposed behavior in the corridor outside the mess hall.
[See Exhibit 1]. In the use of force report, the indication that the
inmate “was causing a disturbance and was acting erratically in the mess
hall” is recorded, but there is no direct testimony concerning such
alleged behavior. [See Exhibit C]. There is no indication in the written
reports that Officer Hagan was present, although both Mr. Manley and Officer
Lappas indicated he was present. Consequently, such reports, too, are of limited
Claimant testified during his simple, direct testimony, that when he was
escorted by Officer Nichols to the secluded stairwell - and a deserted corridor
in an area where no other personnel or inmates are present is, indeed, a
“secluded” area - he was “smacked” on the head. The
limited medical record [see Exhibits C and D] and the photographs
[Exhibit B] substantiate that he was injured on the back of his head, his nose,
and his finger, and there were signs of blood clotting at the injury sites noted
by the examining nurse. [Exhibit D]. While the injury to his left hand (thumb)
might be consistent with whatever take down maneuver Officer Nichols utilized
originally to place him on the ground (where he was first observed by Officer
Lappas) or even Officer Lappas’ description of pulling claimant’s
hand out from under him to place mechanical restraints, the other injuries are
consistent with being dealt a blow or blows.
“ ‘[T]he primary mission of a correction officer [is] to be
responsible for the care custody and control of inmates . . .’ ”
Matter of Pierson v Kralik
, 279 AD2d 630, 631 (2d Dept 2001).
Claimant’s description of the behavior of his escorting officer attests to
“conduct . . . fundamentally at variance with the conduct expected of a
peace officer.” [Ibid.
]. No correction officers with direct
knowledge of the precipitating incident were called to testify and perhaps
rebut, if they could, the claimant’s testimony on these points.
Bradshaw v State of New York
, 24 AD2d 930 (3d Dept 1965);
1A NY PJI3d 1:75, at 108-124 (2006).
Claimant was easily confused on cross-examination, but the simplest version of
held up and was credible and consistent. Indeed, when asked, claimant readily
confirmed that he was charged as described in the misbehavior report, convicted,
and given a relatively long sentence.
Accordingly, as the trier of fact and law, charged with assessing the
credibility of witnesses and evaluating the evidence, the court finds that the
claimant was credible, and has established that the State of New York should be
held vicariously liable for the conduct of its agent.
Damages for battery, if proven, may include compensation for the injury, pain
and suffering and any special damages incurred. DeLaCruz v City of New
York, 163 AD2d 163 (1st Dept 1990). His medical expenses are paid for by the
State of New York by virtue of his incarceration in the custody of DOCS.
Punitive damages are not recoverable against the state or its political
subdivisions. Sharapata v Town of Islip, 56 NY2d 332, 339 (1982). Nor
can a claimant recover for emotional distress against the State of New York.
Finally, claimant must connect the battery to any continuing injury with expert
testimony, particularly when other injuries may be part of the factual scenario.
See Panzarino v Carella, 247 AD2d 521, 523 (2d Dept 1998);
Ortiz v Mendolia, 116 AD2d 707(2d Dept 1986). “Claimant may recover
only for such increased pain and suffering caused by defendant’s acts
(citations omitted).” Mihileas v State of New York, 266 AD2d
866 (4th Dept 1999).
Claimant did not establish the extent or permanency of injuries proximately
caused by the battery committed by the State’s agents on June 20, 2005.
The limited records submitted confirm that he suffered some minor cuts and
Accordingly, the court finds that claimant is entitled to compensation in the
amount of $2,000.00 for the conduct of the state’s agents in
intentionally touching him offensively, causing pain and suffering and
non-permanent physical injuries. To the extent claimant has paid a filing fee,
it may be recovered pursuant to Court of Claims Act §11-a(2).
Let judgment be entered accordingly.
March 30, 2009
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. Quotations are to trial notes or audio
recordings unless otherwise indicated.
“[R]eviewing the record as a whole, we find no basis to disturb the Court
of Claims' conclusion that [claimant] was sufficiently under control at the time
of the incident and that the action taken by [the state employee] in executing
the take-down maneuver was therefore not necessary and, accordingly, constituted
the negligent application of excessive force.
. “[Claimant’s] testimony
established a prima facie case that the State’s negligence contributed to
or caused the accident, and we find no basis here on which the court below could
disregard such testimony even though [claimant] was an interested witness
). In addition, the State’s failure to call the
attendants allegedly involved supports an inference that their testimony would
not have been favorable to the State (citation omitted
based on the entire record we find that negligence attributable to the State was
the cause of the accident.” Bradshaw v State of New York
, at 930-931.