New York State Court of Claims

New York State Court of Claims
BARNES v. THE STATE OF NEW YORK, # 2009-037-502, Claim No. 100753


Case information

UID: 2009-037-502
Claimant(s): JESSIE J. BARNES
Claimant short name: BARNES
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 100753
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Jessie J. Barnes, Pro Se
Defendant's attorney: Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. Miller
Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 27, 2009
City: Buffalo
Official citation: 89 AD3d 1382 (2011)
Appellate results: Affirmed
See also (multicaptioned case)


Jessie J. Barnes, a former inmate proceeding pro se, alleges in his Claim(1) that correction officers used excessive force against him amounting to an assault and thereafter failed to provide adequate and timely medical treatment for his resulting injuries while he was in the custody of the New York State Department of Correctional Services (DOCS) at Collins Correctional Facility (Collins). Specifically, he alleges that on or about October 24, 1998, at approximately 9:20 P.M., as he was being escorted from the personal property area to his cell in the special housing unit (SHU) at Collins, he was assaulted by several correction officers, sustaining injuries to his head, face, and extremities for which he was denied prompt and proper medical treatment.

Claimant testified on his own behalf and submitted documentary evidence in the form of his Inmate Misbehavior Report, Disciplinary Hearing Record, Felony Complaint filed in local criminal court and Certificates indicating that the disciplinary and criminal charges were dismissed (Exhibit 1); DOCS Directive No. 4944, Use of Force (Exhibit 2); and Employee Accident/Injury Reports filed by Correction Officers (COs) Nagi, Hagedorn, Fisher and Grover (Exhibit 3). Defendant called six witnesses: Sergeants Ronald D. Fisher and Michael Hersperger; COs Kevin M. Grover, Keith Nagi and Raymond J. Hagedorn; and Linda Bannister, RN, and submitted documentary evidence in the form of Claimant's medical records from Collins (Exhibit A) and a Use of Force Report (Exhibit B).

Claimant testified that on October 20, 1998 he was transferred from Attica Correctional Facility to the Collins SHU for disciplinary reasons and on October 24, 1998 he was escorted to the property room at Collins where he accused CO Grover of reading his legal mail. When Claimant attempted to return to his cell he was struck by CO Hagedorn and pushed to the floor by COs Nagi and Grover who scraped his face against the rough concrete surface, causing abrasions. He was then placed "on the wall"(2) in mechanical restraints (handcuffs, waist chains and leg irons) for approximately two hours, resulting in injuries to his wrists and ankles during which time he was denied medical treatment. On cross-examination Claimant admitted that he was issued an inmate misbehavior report for assault on staff and refusing a direct order as a result of this incident and was found guilty of the charges following a disciplinary hearing.(3) He also admitted that he had previously been charged with assaults on staff at other DOCS facilities.

COs Keith Nagi and Raymond J. Hagedorn testified that they were the escort officers on S-Block (SHU) at Collins the evening of October 24, 1998 when they escorted Claimant from his cell to the property area to view his personal property with CO Kevin M. Grover. Claimant became agitated after a disagreement with CO Grover over his legal mail and attempted to run away from the escorts. They ordered him to stop but he became belligerent and uncooperative, swinging his arms and elbows threatening their physical safety. COs Nagi and Hagedorn stated that because Claimant refused to comply with their requests to stop resisting they guided him to the floor to gain compliance. At that point they were assisted by Sergeants Ronald D. Fisher and Michael Hersperger who testified that they applied mechanical restraints and placed Claimant against the wall to gain compliance but he continued to resist. The officers were finally able to control Claimant and he was returned to his cell without further incident. Each of the officers testified that there were no punches thrown at Claimant and his face was not scraped across the floor as he alleged.

Linda Bannister, a registered nurse employed by DOCS for eleven years, testified that on October 24, 1998, at approximately 10:00 P.M., she was on duty at Collins and was called upon to examine Claimant following a use of force report. The examination took place in his cell and Nurse Bannister recorded in the Use of Force Report (Exhibit B) that Claimant complained of marks on his wrists and ankles from the restraints and also complained of tenderness of the right jaw but there was no swelling and there were no marks or abrasions noted on his face. Approximately ten minutes after the initial examination Claimant indicated to the nurse that he had a superficial scratch on his left cheek for which treatment was rendered, together with a cold compress for his jaw.

Correction officers are charged with the responsibility of maintaining order and discipline

in correctional facilities under stressful circumstances (Arteaga v State of New York, 72 NY2d 212 [1988]). It is well settled that correction officers may use physical force to maintain order and discipline in correctional facilities, but "only such degree of force as is reasonably required shall be used" (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]).

In situations involving inmate allegations of excessive force by correction officers, the credibility of the witnesses is often the dispositive factor (Davis v State of New York, 203 AD2d 234 [1994]). To determine, in a given instance, whether 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 [1998]; Lewis v State of New York, 223 AD2d 800 [1996]; Arnold v State of New York, 108 AD2d 1021 [1985], appeal dismissed 65 NY2d 723 [1985]).

In order to prevail here, Claimant would have to prove that he did not refuse to comply with a lawful direction of the correction officers. While there is some conflict in the testimony, the Court finds the preponderance of the evidence to be that Claimant refused a direct order to stop and became verbally abusive and unruly thereby requiring the use of force to protect the correction officers and enforce compliance with a lawful order. The force used against Claimant in this incident was not excessive in relation to the purpose of restraining him and the medical report makes it clear that there was no significant injury to his head or body.

In summary, the Court finds that the force exerted by the correction officers in this matter was reasonably necessary under the circumstances and was not excessive and, as a result, no liability attaches to the Defendant arising out of this incident (see Passino v State of New York, 260 AD2d 915 [1999]).

Additionally, the evidence is contrary to Claimant's assertions that he was denied medical attention. Immediately following the incident, Claimant was given a medical evaluation that resulted in the completion of an Ambulatory Health Record (Exhibit A) and a Use of Force Report (Exhibit B). Claimant also consulted with a staff nurse on the day following the incident and did not complain of any other symptoms related to the alleged injuries and did not seek additional treatment (Exhibit A).

It is "fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons," including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788, 789 [1990], lv denied 76 NY2d 701 [1990]).

In a medical malpractice action, the claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The "claimant must [demonstrate] . . . that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries" (Auger v State of New York, 263 AD2d 929, 931 [1999], citing Parker v State of New York, 242 AD2d 785, 786 [1997]).Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained (Hale v State of New York, 53 AD2d 1025 [1976], lv denied 40 NY2d 804 [1976]). A medical expert's testimony is necessary to establish, at a minimum, the standard of care (Spensieri v Lasky, 94 NY2d 231 [1999]).

Whether the claim is grounded in negligence or medical malpractice, "[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case" (Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]; see Duffen v State of New York, 245 AD2d 653, 654 [1997], lv denied 91 NY2d 810 [1998]). With it evident that Claimant is contending that the failure to promptly diagnose and treat his condition contributed to a period of discomfort, the failure to present any testimony on the effects the alleged delay had on his condition is fatal since such facts are outside the ordinary experience and knowledge of a layperson; Claimant's speculation as well as his conclusory statements are inadequate (Tatta v State of New York, 19 AD3d 817 [2005]).

In this case, only conclusory statements of the Claimant have been presented in support of a claim of malpractice. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. The fact that discomfort persisted for a few days after the alleged injury does not establish that somehow the treatment given was below the accepted standards of care. Claimant does not rebut the showing by Defendant that there was acceptable treatment, or that any treatment or failure to treat is a proximate cause of the injuries alleged. Accordingly, the claim of medical malpractice must be dismissed.

Additionally, from the record on Claimant's direct case there is no indication that the actions of medical caregivers amounted to simple negligence or ministerial neglect (see Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1986]; Kagan v State of New York, 221 AD2d 7, 10 [1996]). To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect must also be dismissed.

Therefore, after carefully considering all of the testimony and documentary evidence, the Court finds that Claimant has failed to establish his claim by a preponderance of the credible evidence. Claim Number 100753 is dismissed in its entirety. All motions made at trial are denied as moot.


April 27, 2009

Buffalo, New York


Judge of the Court of Claims

1. Pursuant to an Order of this Court (Barnes v State of New York, Ct Cl, Lane, J., filed December 28, 1999, Claim No. 100753, M-60350) paragraphs 21 through 28 were stricken from the Claim, and by a further Decision and Order (Barnes v State of New York, Ct Cl, Minarik, J., filed June 27, 2002, Claim No. 100753, M-64723) the ad damnum clause was increased from $84,000.00 to $100,000.00.

2. All quotations are to audio recordings of the trial unless otherwise indicated.

3. The findings of the Superintendent's disciplinary hearing held on November 5, 1998 were administratively reversed on May 4, 1999 (Exhibit 1).