New York State Court of Claims

New York State Court of Claims
FLAMIO v. THE STATE OF NEW YORK, # 2010-010-022, Claim No. 114066


Inmate slip and fall.

Case information

UID: 2010-010-022
Claimant(s): MICHAEL FLAMIO, JR.
Claimant short name: FLAMIO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114066
Motion number(s):
Cross-motion number(s):
Judge: Terry Jane Ruderman
Claimant's attorney: RUSSELL A. SCHINDLER, ESQ.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Rachel Zaffrann, Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 24, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant seeks damages for injuries he sustained on August 22, 2006, during his incarceration at Downstate Correctional Facility (Downstate). The parties present vastly divergent versions of the facts. Claimant alleges that he was assaulted by three named correction officers, while defendant contends that claimant was injured when he slipped and fell in the shower. Further, two of the named correction officers maintain that they never had any contact with claimant until they testified at an examination before trial in this matter. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant was incarcerated for a violation of parole based upon an underlying conviction for attempted criminal possession of cocaine. Claimant testified at trial that he had violated the terms of his parole on three occasions; at his examination before trial (EBT), he testified there were six occasions.(1) In reviewing his personal history, claimant noted that he had a nervous breakdown when he was 15 years old. He also stated that he had been in rehabilitation for cocaine use more than 15 times during the past 20 years. He described himself as bipolar, semi-psychotic and semi-schizophrenic. He also labeled himself a "MICA" patient, that is an individual whose mental illness triggers a chemical addiction (T:35).(2)

Immediately prior to entering Downstate on August 15, 2006, claimant was incarcerated at Dutchess County Jail (Dutchess). Claimant testified that he was in the process of filing a claim against Dutchess based upon an alleged assault and other wrongdoings by Dutchess staff. Claimant contends that due to his intention to file a claim, he was red flagged as trouble upon entering Downstate. Claimant also testified that his parole officers had treated him unfairly and were not compassionate to his MICA needs. He believed that one of his parole officers was out to get him and that the parole officer had spoken to the Dutchess deputies, and maybe even the correction officers at Downstate, about claimant in a negative manner. Claimant reasoned that his parole officers were antagonistic because claimant intended to file a claim against them.

According to claimant, he was transported from Dutchess to Downstate by the "goon squad," that is, Dutchess County deputies who were dressed in black and certified in special tactics to extract and maintain control (T:40-41). Claimant described them as rough violent thugs dressed in black (T:41-43).

When claimant arrived at Downstate, his personal property, which included legal papers regarding his claim against Dutchess, was taken at reception. Claimant testified that the goon squad told the personnel at Downstate that "this one is trouble" (T:46) Thereafter, the sergeant at reception stated in a threatening manner, "I hear you're a troublemaker" (T:47) Claimant purportedly filed a grievance regarding this incident which has not been resolved. Claimant also observed the goon squad and the Downstate correction officers exchange looks which caused claimant to be scared. According to claimant, all the officers at reception had their name tags covered; therefore he did not know their identities. He further stated that all of the correction officers he encountered at Downstate either had blacked-out name tags or no identification tags. Claimant maintains that he did not know that his housing officer's name was Robin Kuinlan until his EBT because Kuinlan did not have a visible name tag. Claimant also denied hearing anyone call Kuinlan by name at the facility.

Claimant was assigned to housing block A3. He was adamant in his testimony that he knew the rules and his rights and that he was entitled to a return of his property; nonetheless Kuinlan did not return claimant's personal property which was taken at reception.

On August 16, 2006, claimant had a seizure which he attributes to the facility's failure to provide him with proper medications. He testified that he had intended to sue the State for this malfeasance, but he missed the filing deadline. Claimant further stated that Kuinlan failed to come to claimant's assistance and instead badgered claimant by calling him a "punk" and a "big baby" (T:60). According to claimant, six inmates carried him to the medical facility for treatment and, after the seizure was resolved, claimant returned to his unit where Kuinlan continued to mock claimant. Claimant maintained that the facility's employees played mind games with claimant.

According to claimant, by August 22, 2006, he still did not have his personal belongings; therefore one half hour after returning to his cell from lunch, he asked Kuinlan for permission to speak to a sergeant (T:84). Kuinlan left the area and returned approximately 10 minutes later. Claimant's cell was then unlocked and he was instructed to proceed to the sally port, an area described by claimant as a blind zone between the courtyard and housing unit. Claimant noted that Kuinlan, like several other correction officers, wore black leather gloves which they used to beat up inmates and that other officers used nightsticks. According to claimant, Correction Officers Sam Purcell and Jerome Preston joined Kuinlan in the sally port and assaulted claimant. Specifically, Purcell and Preston held claimant and then each of the three officers took turns slapping and punching claimant before they slammed claimant's head against the wall. Throughout the three to five minute attack, the officers cursed and insulted claimant (T:82). After the attack, claimant felt excruciating pain in his face, shoulder and eye.

Claimant returned to his cell and used a wet shirt as a cold compress. One half hour later, Kuinlan advised claimant that he had a visitor and ordered him to take a shower (id.). After the shower, Preston escorted claimant to the visiting room where he saw his mother. Claimant testified to a timeline which amounted to one and one half hours from the time when claimant had returned from lunch until he went to the visiting room (T:84-86). However, when asked on cross-examination to confirm this time period, he thought the amount of time was closer to one hour, than the one and one half hours to which he had testified. Claimant told his mother that he had been assaulted by correction officers. Claimant never told anyone at the facility about the purported incident.

On August 23, 2006, claimant was seen at the facility emergency room by Nurse Tina Wrisley-Day and a sergeant. Claimant testified that he told the nurse discretely about the assault; however the sergeant directed claimant to write on the accident report that he had fallen in the shower. Claimant assumed that Kuinlan had briefed the sergeant as to what should be written in the report. When claimant first viewed the Inmate Injury Report, it had been partially completed with the entry "coming out of shower. Puddle of water. Bumped head over ® eye" in the space allotted for the inmate's activity when injured and the cause of injury (Ex. C). Claimant testified that he defiantly added "same as above" and signed the document (id.). Photos taken of claimant August 23, 2006 reveal a bruised right eye and abrasions on his nose (Exs. 3, 8, 9).

Claimant testified that since his release from custody, he has observed correction officers in his community and this makes him feel uncomfortable. He explained that it is a "magnetism," a "vibration" that makes him feel unsafe because they have access to his private information (T:126-30, 140-41). He stated that the officers exhibit alpha male mannerisms and they have stared at him with evil eyes (T:126-30). Claimant also testified that he has encountered correction officers on the road with their "broad chested staring" (T:130) He is concerned because his family has been threatened by friends of correction officers and he has also observed correction officers walking around with guns. Claimant has also seen members of the "goon squad" since his release from custody and he is fearful that the Downstate correction officers will retaliate against him, especially if he wins this case.

On redirect, claimant was asked if he has been arrested in the last two and one half years. He responded that he did not think so, but that he could not remember because he has been arrested hundreds of times.

Claimant's mother, Kathleen Smith, testified that on August 22, 2006 she visited her son at Downstate. When claimant entered the visiting room she observed that his right eye and right side of his head was "growing and turning color" (T:169) Claimant was crying and indicated that he had been the victim of an assault.(3)

Correction Officer Robin Kuinlan testified that he has been employed by the New York State Department of Correctional Services (DOCS) for almost 18 years and has been at Downstate since 2002. On August 22, 2006, he was the relief correction officer on housing units 3A, 3C and 3E at Downstate. Kuinlan's testimony completely controverted claimant's version of the facts as they occurred on August 22, 2006.

Kuinlan insisted that he never argued with claimant, never approached claimant's cell, and never assaulted claimant. Kuinlan was also not aware that claimant had been injured on August 22, 2006. Kuinlan further testified that he does not wear black leather gloves. He wears his name tag as required by DOCS and his name tag is not obscured with black tape. Additionally, Kuinlan contradicted claimant's description of the sally port and noted that the sally port cannot be entered without the officer in control opening the gate (T:182).

Kuinlan reviewed the logbook for housing unit 3A on August 22, 2006. He noted that the block returned from chow at 1:15 p.m.; claimant showered at 1:30 p.m.; and at 1:50 p.m. claimant left for his visit. Kuinlan explained that when inmates have a visitor, they are permitted to shower. Since visitors sometimes complain when they wait, entries are made in the logbook to document the shower time, which is sometimes lengthy.

Kuinlan recalled claimant's seizure. Kuinlan explained that he did not approach claimant or assist him because the proper procedure dictates that, for safety reasons, the officer must notify the area sergeant rather than approach the inmate. Kuinlan alerted the sergeant and the medical staff. Kuinlan denied the allegation that he had taunted claimant.

Correction Officer Sam Purcell testified that he has been employed by DOCS for 21 and one half years and has been at Downstate since completing his training at the Police Academy. On August 22, 2006, he was working his usual assignment of patrolling the gym and the lobbies and was not assigned to any particular housing unit. He testified that he does not wear or carry black leather gloves and that he wears his name tag appropriately displayed and not covered. He further stated, prior to the time of his EBT in this matter, he did not know claimant.

Correction Officer Jerome Preston testified that he has been employed by DOCS for 22 years and has been at Downstate since 1991. On August 22, 2006, he was assigned to housing unit 3D as an escort officer during the 7:00 a.m. to 3:00 p.m. shift. He had no reason to be on claimant's housing unit, 3A, that day. Preston maintained that he wears his nameplate as required, without tape covering his name and has never been issued, nor does he carry, black leather gloves. He stated that, prior to his EBT, he had never even seen claimant. Preston testified that he has never had a verbal disagreement or any physical confrontation with claimant and he denied assaulting claimant.

Sergeant Raymond Aube testified that he has been employed with DOCS for 21 and one half years and, on August 23, 2006, he was a sergeant at Downstate assigned to the 3:00 p.m. to 11:00 p.m. shift. He arrived on the housing block at 3:30 p.m. and had no contact with the officers on the earlier shift. Aube recalled escorting claimant for medical care and inquiring of claimant what had happened. According to Aube, claimant stated that he slipped in the shower and hurt his eye; claimant did not mention his shoulder and nose. Aube had no reason to question claimant's veracity and no further investigation was conducted to determine if claimant was truthful about the cause of his injuries. Aube did not tell claimant what to write on the Inmate Injury Report and he did not watch claimant complete the report. Aube insisted that no other correction officer directed him to write an explanation regarding claimant's injury.

Aube completed a memorandum to Captain Cavaleri memorializing claimant's statement that, "at approx 2pm while coming out of the shower [claimant] slipped on a puddle of water and bumped his head over his right eye" (Ex. B). Aube observed claimant's injuries and photographs were taken.(4) Aube was not present during claimant's physical examination.

Aube testified that in the past he has performed rounds at the facility to inspect officers' uniforms and name tags and that, if a correction officer had a blacked-out name tag, then the officer would be sent home. Aube stated that he has never observed a blacked-out name tag.

Nurse Tina Wrisley-Day has been employed by DOCS for 20 years and has been at Downstate since 2000. She recalled seeing claimant on August 23, 2006 and inquired what had happened to him. Wrisley-Day told claimant he had the right to make a statement on the form, but that it was not required. Claimant responded that he slipped and fell on water and hit his eye on the shower curtain rod. Wrisley-Day completed the Inmate Injury Report based upon claimant's statements and no one from the correction staff instructed her what to write. Wrisley-Day remembered the incident because it was the only time during her tenure at DOCS that an inmate had been injured in that manner.

Wrisley-Day testified that exhibits 3 to 9 accurately reflected claimant's appearance on August 23, 2006.(5) He had bruising around his right eye. He did not complain about any other injuries and she gave him some ice to reduce the swelling. She did not conduct an investigation because claimant's account was consistent with his injuries.(6) Wrisley-Day testified that this was not a use of force incident. Had that been the situation, she would have completed different forms, rather than the Inmate Injury Report.


Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to present any credible evidence which would warrant a finding on his behalf. Indeed, claimant's description of all officers with whom he has had contact, including his parole officers and the correction officers at Dutchess, Sing Sing, and those he has observed in his community, was riddled with bizarre characterizations that were beyond belief. Further, claimant's account of the events as they occurred on August 22, 2006 was rebutted by the testimony and the evidence presented by defendant. In contrast to claimant's testimony, the testimony of defendant's witnesses was forthright and credible.

Accordingly, the Court finds that claimant has failed to meet his burden of proof and the claim is hereby dismissed.


March 24, 2010

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims

1. Claimant maintained that he had completed a revision sheet correcting this and other errors in his EBT testimony; however the purported revision sheet was never produced and claimant's counsel acknowledged that corrections had not been provided to defendant's counsel.

2. References to the trial transcript are preceded by the letter "T."

3. Defendant objected to Smith's hearsay testimony, however, the Court finds it unremarkable that a mother would corroborate her son's allegations.

4. Aube testified that the reference to "Use of Force" photos in exhibit B was an error because the photos were not related to any use of force (T:231-32).

5. She was not consulted as to why the photographs were taken.

6. While Wrisley-Day testified as to whether the injuries she had observed appeared to be consistent with an injury resulting from being pushed against a wall or from being struck, this testimony was accorded no weight regarding the cause of claimant's injuries.