New York State Court of Claims

New York State Court of Claims

MANLEY v. THE STATE OF NEW YORK, #2009-030-008, Claim No. 112645


Synopsis


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 $2,000.00

Case Information

UID:
2009-030-008
Claimant(s):
TONY MANLEY
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
MANLEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112645
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
TONY MANLEY, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 30, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

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 area”[2] 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 and Rules.

Defendant brought out minor discrepancies in the inmate injury report form completed by claimant in the infirmary. [Exhibit A]. The portion completed by claimant states:
“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 secluded area.

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 jumped.”

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 infirmary.

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. [Exhibit C].

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’ report.”

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 are looking].


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 room.” [Ibid.].


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 follows:
“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.” [Exhibit 1].

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 1996).[3] 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, 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, supra.

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 utility.

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); [4] 1A NY PJI3d 1:75, at 108-124 (2006).

Claimant was easily confused on cross-examination, but the simplest version of his story

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
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 bruises.

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
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. Quotations are to trial notes or audio recordings unless otherwise indicated.
[3].
“[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.
[4]. “[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 (citations omitted). 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). Accordingly, 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, supra, at 930-931.