New York State Court of Claims

New York State Court of Claims

ASTACIO v. STATE OF NEW YORK, #2009-032-502, Claim No. 109925


Case Information

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:
William Astacio, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Kent Sprotbery, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 12, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a former inmate proceeding pro se, seeks damages for injuries sustained from an alleged assault and battery by correction officers at Clinton Correctional Facility on May 3, 2004. For the reasons set forth herein, the Court finds that claimant has failed to prove his claim by a preponderance of the credible evidence. Accordingly, his claim is dismissed.

At the trial, claimant testified on his own behalf and submitted documentary evidence in the form of photographs and an Unusual Incident Report, dated May 3, 2004. Claimant testified that on the date of the subject incident, he was called to a Tier I hearing on the first floor of C Block. At the conclusion of the hearing, which was conducted by Sergeant Tamer, claimant was asked to sign a copy of his disposition, which he says provided for a loss of all of his privileges for 30 days. Claimant refused to sign the disposition and began to walk up the stairs to his cell. According to claimant, Sergeant Tamer called him back and claimant asked him what was his problem. Sergeant Tamer replied that claimant needed to respect him. Claimant testified that Sergeant Tamer then grabbed him by the shirt, banged him into a gate near the staircase and pushed him into Correction Officer Vaughn, who then pushed claimant down the stairs.

Claimant testified that he fell down a whole flight of stairs and was hurt. When Sergeant Tamer and Correction Officer Vaughn came down the stairs, they handcuffed him and began stomping on claimant and kicking him in the face. Claimant was brought upstairs, where Lieutenant Allen and approximately 10-15 other officers were waiting. Claimant testified that while he was being escorted to the hospital, the escorting officers kicked him, slapped him, and told him they were going to kill him. He said that Sergeant Tamer asked one of the correction officers to uncuff claimant’s hands and when they held claimant’s hands up to do so, Sergeant Tamer kneed claimant in the groin, the stomach and the face. One of the correction officers twisted claimant’s leg, as in a wrestling move, dragged him to the hospital and told him he would get another beating if he said anything. Claimant testified that he was afraid for his life and that he thought he was going to die that day.

In defense of the claim, defendant called six witnesses: Sergeant Thomas Tamer; Correction Officer Leonard Vaughn; Lieutenant William Allen; Correction Officer Richard Mitchell; Correction Officer Kenneth Varin; and Correction Officer Randy Russell, all of whom were employees of the Department of Correctional Services and on duty at Clinton Correctional Facility on May 3, 2004. Documentary evidence was submitted on behalf of defendant in the form of an Inmate Misbehavior Report; Sergeant T. Tamer’s Report; Correction Officer L. Vaughn’s Report; Sergeant W. Allen’s Report; Correction Officer R. Mitchell’s Report; and Correction Officer K. Varin’s Report.

Sergeant Tamer testified that on the date of the subject incident, he was assigned as the East Sergeant and had gone to C Block to conduct Tier I hearings, which are held for minor violations committed by inmates. The hearings are informal and can result in a loss of recreation, commissary, and/or packages for up to 13 days. The maximum penalty is a loss of two of the three privileges for 13 days. According to Sergeant Tamer, claimant was poised at the beginning of the hearing. As the hearing progressed, however, he became agitated, cussing and moving his hands around. Sergeant Tamer, who had conducted at least 100 Tier I hearings prior to the subject one, testified that he had never experienced such behavior by an inmate at a Tier I hearing, conducted for the lowest level of violations.

As a result of claimant’s agitated state, Sergeant Tamer ended the hearing and told claimant to go back to his cell. Claimant left the main floor where Sergeant Tamer was standing, turned and went up the stairs. When claimant was approximately halfway up the stairs, Sergeant Tamer began to follow him, to make sure he returned to his assigned cell. As they were proceeding up the stairs, claimant turned, put his head down and charged at Sergeant Tamer. Claimant grabbed Sergeant Tamer, who tried to spin claimant and grab the back of his shirt in order to push him away, they both fell down the first flight of stairs to the landing, and subsequently down the second flight of stairs to the basement. Claimant fell down the entire second flight of stairs, whereas Sergeant Tamer fell down half of the flight. Sergeant Tamer testified that he could not get claimant under control and struck him in self-defense. After exchanging punches, Sergeant Tamer put claimant in a headlock and took him down to the ground. The two struggled on the ground. Sergeant Tamer used his two-way radio to call for assistance. As Sergeant Tamer was making that call, Correction Officer Vaughn arrived and helped get control of claimant’s arms. Once they had control of claimant’s arms, they handcuffed him. Staff responded to the call for assistance and claimant was escorted to the hospital. Sergeant Tamer denied ever stomping on claimant.

Correction Officer Vaughn testified that on May 3, 2004, he was the First Officer assigned to C Block. As First Officer, his responsibilities included controlling the movement of inmates on the C Block. His post was a cage located on the first floor. At approximately 5:00 P.M. on that day, Correction Officer Vaughn was seated at his desk, doing paperwork, when he heard loud voices. He got up from his desk, stood in the door area to the cage, and saw Sergeant Tamer and claimant verbally bantering back and forth. Claimant appeared aggravated and displeased with the charges being brought against him, and Sergeant Tamer appeared to be trying to explain the procedures for Tier hearings, including that claimant could submit an appeal to the Superintendent. After Sergeant Tamer advised claimant of his rights, he directed claimant to go back to his cell. Claimant continued to object to the charges and then proceeded up the stairs, followed by Sergeant Tamer.

Correction Officer Vaughn testified that he had a partial view of the stairwell from where he was standing, so after watching claimant and Sergeant Tamer start up the stairs, he returned to the duties at his desk. Shortly thereafter, he heard something out of the ordinary. He got up from his desk, and saw two bodies grasping each other as they tumbled down the stairs. He locked the cage area and responded to Sergeant Tamer, who was directly on top of, and trying to maintain control over claimant, who was trying to get up. Correction Officer Vaughn placed his entire body on top of claimant and Sergeant Tamer, in an attempt to get control of claimant. After an initial struggle, Correction Officer Vaughn grabbed claimant’s wrists, and with Sergeant Tamer, forced claimant’s arms behind his back and handcuffed him. Sergeant Tamer then radioed for help. Correction Officer Vaughn testified that he did not strike, kick or punch claimant. He further testified that while he observed the struggle between claimant and Sergeant Tamer, he did not observe Sergeant Tamer swinging at or punching claimant.

Lieutenant Allen, who was working as the West Side Sergeant at the time of the incident, testified that he responded to Sergeant Tamer’s Level 2 radio call for assistance, as a backup supervisor. When he arrived at the scene, claimant was already outside of C Block. He had marks on him and may have been bleeding. Because Sergeant Tamer and Correction Officer Vaughn had used force on claimant, they were unable to escort him to the hospital. Accordingly, Lieutenant Allen, along with Correction Officer Varin and Correction Officer Russel, took claimant to the hospital. Lieutenant Allen testified that restraints may have been removed for medical purposes after they got to the hospital, but he denied striking claimant or observing any corrections officer strike claimant.

Correction Officer Mitchell was working as an extra at the yard door when the Level 2 was called at C Block of Clinton Correctional Facility. When he first arrived, claimant was in restraints and being escorted to a hospital. Correction Officer Mitchell was asked by a supervisor to get a video camera and to go up to the hospital to record the proceedings. He was not involved in the escort of claimant and started filming after claimant was brought up to the medical facility. Correction Officer Mitchell denied striking or kicking claimant and testified that he never saw anyone else strike or kick claimant.

Correction Officer Varin and Correction Officer Russell each testified that they were working as correction officers on the date of the subject incident. In connection with the Level 2 radio call for assistance, they responded to C Block and participated in the escort of claimant to the hospital, along with Lieutenant Allen. Neither officer struck claimant or kicked him, and neither officer witnessed the other or Lieutenant Allen strike or kick claimant.
Claimant has the burden of proving his case by a preponderance of the credible evidence (see Zi Guang v State of New York, 263 AD2d 745 [3d Dept 1999]). In determining whether the claimant has met his burden, the Court, as a finder of fact, must weigh the evidence presented after assessing the credibility of the witnesses and resolving conflicting evidence and the relative strength of conflicting inferences that may be drawn therefrom (see Zi Guang v State of New York, 263 AD2d 745, 746 [3d Dept 1999]; Brooker v State of New York, 206 AD2d 712 [3d Dept 1994]).

Use of physical force against an inmate is governed by statute, regulation and case law. Correction Law § 137 (5) provides, in pertinent part, that when an inmate offers violence to any person, or resists or disobeys 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. An officer must use the greatest caution and conservative judgment in determining whether physical force is necessary and the degree of force that is necessary (7 NYCRR § 251-1.2 [a]).

Correction officers are responsible “for the safety, security and control of correctional facilities” (Correction Law § 137 [2]), where proper discipline is essential for maintaining order and control (Arteaga v State of New York, 72 NY2d 212 [1988]). To maintain such order and discipline, correction officers may use physical force, but "only such degree of force as is reasonably required" (7 NYCRR § 251-1.2[b]). The limited circumstances in which the use of force is permitted 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]).

To determine whether use of force was necessary and, if so, whether the force used was excessive or unreasonable, a court must examine the particular factual background and the circumstances confronting the officers or guards (see Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Arnold v State of New York, 108 AD2d 1021 [3d Dept 1985], appeal dismissed 65 NY2d 723 [1985]). In making this determination, the credibility of the witnesses is often the dispositive factor (see Davis v State of New York, 203 AD2d 234 [2d Dept 1994]; Levy v Kurpil, 168 AD2d 881 [3d Dept 1990]). Resolving issues of credibility is the responsibility of this court as the trier of fact (see LeGrand v State of New York, 195 AD2d 784 [3d Dept 1993]), lv denied 82 NY2d 663 [1993]). ANALYSIS
In the present case, the Court is presented with two different accounts of the events. It is presented with claimant’s account that Sergeant Tamer beat him after he refused to sign the Tier I hearing disposition, that Correction Officer Vaughn pushed him down the stairs, and that several other officers beat him thereafter, including the officers who were escorting him to the hospital; and Sergeant Tamer’s account that he had to strike claimant out of self-defense after claimant, who was agitated by what was being discussed at a Tier I hearing, charged after him in the stairwell.

Although none of the witnesses appeared to be present at the time the physical altercation between claimant and Sergeant Tamer began, the evidence of the various correction officers with regard to what happened thereafter is consistent with the testimony offered by Sergeant Tamer. Moreover, with the exception of claimant’s own testimony, no evidence has been offered to support claimant’s account that Sergeant Tamer beat him for no reason, that Correction Officer Vaughn pushed him down the stairs, and that, thereafter, several other officers beat him. The evidence submitted, including the documentary evidence, is actually to the contrary.

As the trier of fact, charged with assessing the credibility of witnesses and evaluating the evidence, the Court finds by preponderance of the credible evidence that claimant became abusive, or at a minimum, unruly, thereby requiring the use of force to protect Sergeant Tamer and the other correction officers. The Court further finds that the force used against claimant in this matter was reasonably necessary under the circumstances and was not excessive. As a result, no liability attaches to the defendant arising out of the subject incident (see Bush v State of New York, 57 AD3d 1066 [3d Dept. 2008]); Passino v State of New York, 260 AD2d 915 [3d Dept 1999]).

As claimant has failed to prove his claim by a preponderance of the credible evidence, Claim No. 109925 is hereby dismissed.

All motions not heretofore decided are denied.

Let judgment be entered accordingly.

June 12, 2009
Albany, New York

Judge of the Court of Claims