Claimant, a former inmate proceeding pro se, brought this claim alleging that
he was assaulted by two correction officers
“on the staircase at Southport”
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,
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
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
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
and “Claimant [sic]
loss of personal property by the same officers and Sergeant who brutality [sic]
assaulted me last year.”
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,
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.”
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
; 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 ,
lv denied 82 NY2d 663 ). 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
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
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.