New York State Court of Claims

New York State Court of Claims

DUNLOP v. THE STATE OF NEW YORK, #2009-044-013, Claim No. 108264


Inmate’s claim for alleged assault by correction officers dismissed after trial for failure to meet burden of proof, as he was not a credible witness and no other evidence was introduced to support his claims

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:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 20, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a former inmate proceeding pro se, brought this claim alleging that he was assaulted by two correction officers[1] “on the staircase at Southport”[2] Correctional Facility (Southport) on August 5, 2003. He further alleged that he was issued false misbehavior reports regarding the incident, confined in an unclean cell, and denied medical treatment for the injuries he received in the assault. Trial of the matter was held in the Binghamton District on June 16, 2009.

At trial, claimant testified that on the date of the alleged incident, correction officers at Southport were going to perform a cell extraction in the cell next to his. He said that he was removed from his cell and placed in another cell due to his asthma (to protect him from any tear gas that may have been necessary in the cell extraction). He stated that after he was removed from his cell, the neighboring inmate entered the old cell through a hole that inmate had made in the wall during the prior night with a piece of a bedframe. Claimant stated that the correction officers were angry at claimant as a result, and assaulted him in his cell, then filed false misbehavior reports. He said he was then fed bread and cabbage, confined to his cell, and denied medical treatment.

On cross-examination, counsel for defendant pointed out that the claim originally filed in this case stated that claimant was assaulted on a stairway. Claimant denied that he had written that, but did agree that the claim was in his handwriting. Claimant said that there were no stairways at Southport, and argued that his “amended complaint”[3] dated November 24, 2004 set forth the correct version of the facts pertaining to his assault. Notably, there is no record that an amended claim was ever filed, nor was any motion made requesting permission to file an amended claim, as would have been necessary pursuant to CPLR 3025 and the Rules of the Court of Claims (22 NYCRR) § 206.7. In any event, the only references in that “amended complaint” to any assault are the statements “no respond [sic] to my complaints of the brutality [sic] Assault & Battery twice by officers in Southport,”[4] and “Claimant [sic] loss of personal property by the same officers and Sergeant who brutality [sic] assaulted me last year.”[5]

Later in the trial, claimant testified that the alleged assault occurred while he was being extracted from his cell. He stated that he was handcuffed and that officers sprayed tear gas on him, and then beat him.

Correction Sergeant C. Frost testified at trial that he was employed at Southport at the time of the alleged incident. He reviewed an Inmate Misbehavior Report dated August 5, 2003,[6] the date of the alleged incident, but stated that he had no independent recollection of the incident. That Misbehavior Report, which had been written by Sergeant Frost, stated that claimant was moved to a new cell on that date. The Report relates that claimant was “in an agitated state expounding many obscenities towards [Frost], including that he was going to expel feces at [Frost] when given the chance.”[7] Frost further stated that he had never been involved in a cell extraction at Southport, and also said that the unit where claimant was housed at Southport (B-Block) did have stairs.

Officer Portalatin also testified at trial. He stated that he had been involved in many cell extractions at Southport, but had no recollection of a cell extraction involving claimant (or any other interaction with claimant) around the August 5, 2003 date of the alleged incident. Portalatin also stated he had never been involved in a cell extraction where tear gas had been used. Portalatin stated that, while physical force was occasionally necessary to subdue inmates in accordance with Department of Correctional Services regulations, he had never initiated physical force against an inmate other than in accordance with those regulations.

It is clear that correction officers are entitled to use reasonable physical force under certain circumstances (see Correction Law § 137 (5), 7 NYCRR § 251-1.2). As has been frequently noted, “claims of excessive force often turn on the credibility of the witnesses” (McKinley v State of New York, Ct Cl, Lebous, J., Sept. 22, 2000, Claim Nos. 97500 & 97648 [UID # 2000-019-022]; see also Davis v State of New York, 203 AD2d 234 [1994]; Kosinski v State of New York, Ct Cl, Sise, J., Nov. 30, 2000, Claim No. 97581 [UID # 2000-028-0012]).
The disposition of this claim clearly rests on the issue of claimant's credibility. Resolving issues of credibility is the province of this Court as the trier of fact (LeGrand v State of New York, 195 AD2d 784 [1993], lv denied 82 NY2d 663 [1993]). Important aspects of that role are observing the behavior and demeanor of witnesses as they testify, and assessing the internal consistency of their accounts.

At trial, claimant recounted two different stories regarding the alleged assault, both of which completely contradict the original claim, as well as being contrary to the testimony of the correction officers. The Court finds that claimant was not a credible witness with regard to his contention that correction officers used excessive force on him, if indeed force was used at all.

Moreover, no evidence was introduced (other than claimant’s completely incredible and inconsistent testimony) which might indicate that he was denied medical treatment for a back ailment which may or may not have been incurred during the officers’ alleged use of physical force against him. Claimant’s medical records[8] indicate that claimant did repeatedly complain of back pain, and further show that he received treatment for those complaints.

Accordingly, the claim is dismissed on the merits. Any motions not previously determined are hereby denied. Let judgment be entered accordingly.

July 20, 2009
Binghamton , New York

Judge of the Court of Claims

[1]. In the claim, those officers were identified as Sergeant C. Frost and Officer “Porterlatin.”
[2]. Claim, ¶ 3.
[3]. Claimant’s Exhibit 4.
[4]. Claimant’s Exhibit 4, ¶ 6.
[5]. Id., ¶ 7.
[6]. Defendant’s Exhibit B.
[7]. In addition to the Inmate Misbehavior Report of August 5, 2003 prepared by Sergeant Frost, defendant submitted another Inmate Misbehavior Report into evidence as Defendant’s Exhibit C. This Misbehavior Report was also dated August 5, 2003, and recited another incident of harassment of a correction officer by claimant, which also included an unhygienic act.
[8]. Defendant’s Exhibit A.