Claimant's motion for partial summary judgment on issue of liability was granted where he established through his sworn statements the use of excessive force and defendant failed to rebut this showing with evidentiary proof in admissible form.
|Claimant(s):||WILLIAM H. BROOKS|
|Claimant short name:||Brooks|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||William H. Brooks, Pro se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michele Walls
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 20, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves for an order striking the defendant's answer and awarding partial summary judgment on the issue of liability pursuant to CPLR 3212.
Claimant seeks damages for injuries sustained as the result of the alleged use of excessive force by correction officers at Great Meadow Correctional Facility on January 17, 2009. The claim alleges that "willful negligence and assaultive misconduct by the defendant put the claimant in the hospital for injuries he sustained as a result of an unprovoked beating by prison guards" and incorporates "the accompanying CLAIM FOR DAMAGES signed and sworn to under the penalty of perjury". The Claim For Damages sets forth in pertinent part the following:
"3. On January 17, 2009, at approximately 9:23 P.M.; the claimant exited the honor block shower area . . .
4. The Claimant went to retrieve his honor block identification card from the C.O.'s gym/shower recreation office, for claimant's subsequent use of the honor block inmates designated shower area.
5. Upon reaching for his identification card from the holder . . . C.O. Trombley informed the claimant that he was late exiting the shower area.
6. The claimant then apoligized for being tardy exiting the shower area. Claimant then requested to assist the designated honor block porters in cleaning the honor block shower area.
7. C.O. Trombley responded in a negative manner by saying 'you fucked up.' C.O. Trombley also said 'I'm keeping your honor block identification, so don't bother coming to honor block rec tommorrow.'
8. Claimant then stated to C.O. Trombley 'my reason for existing the shower late is because there was no space to undress. the benches where we undress, were completely full,' C.O. Trombley then stated, I don't give a fuck.'
9. The claimant then reiterated his explanation for said tardiness. The claimant further explained to C.O. Trombley that he did not have a problem with not coming to honor block rec on the date he ordered, claimant just wanted his Inmate Identification back.
10. CO. Trombley then exclaimed 'I don't give a fuck!' And now you're keep locked, put your fucking hands on the wall!'
11. The Claimant complied with C.O. Trombley['s] direct order. C.O. Trombley proceeded to pat frisk the claimant, while exclaiming 'I'm tired of you motherfuckers acting like you can do whatever you want!'
12. While pat frisking the claimant down to his right ankle, C.O. Trombley brought his left hand up with force into the groin area of the claimant. C.O. Trombley the[n] exclaimed, 'stay on the fucking wall!'
13. C.O. Trombley then used his left forearm to exact a blow to the back of the claimant's neck and head area, causing the claimant's left side of his face to hit the wall in front of him, causing an injury to the left side of claimant's forehead region to bleed, swell, and scar.
14. C.O. Trombley along with an unidentified area C.O. tacked the claimant to the floor, and C.O. Trombley started to bang claimant's head on the floor causing more injuries to the claimant's head and face. C.O. Trombley then pinned claimant's arms under his stomach behind claimant's back, and continued to strike him in the face, repeatedly.
15. C.O. Trombley also punched the claimant with his right hand clenched, the right side of the claimant's body in the lower rib and kidney area. A correction officer then used the same clenched fist to strike the claimant in the right eye.
16. C.O. Trombley then attempted to pull claimant's hooded sweatshirt over his head/face and continued to punch claimant on the right side of his face and head. the other unidentified C.O. [h]eld the claimant's legs the entire course of the assault.
17. Immediately thereafter and during the course of the assault and battery. C.O.'s responded expediently to the area of the assault and battery, and just stood by idly and watched as the claimant was assaulted and battered by C.O. Trombley.
18. C.O. Trombley then used his fingers from his right hand while claimant lie subdued on his stomach, and attempted to gouge out the claimant's right eye. . .
19. C.O. Troubley then handcuffed the claimant and used the links of the handcuffs to pull the claimant from the floor by his arms causing damage to his left shoulder.
21. Soon thereafter the claimant was video taped and taken to the facility hospital for an examination. It was determined that the claimant should be taken to an outside hospital for the injuries that were inflicted by C.O. Trombley , on this claimant. Most notable, the claimant's jaw.
22. Once at Glens Falls Hospital it was confirmed after an examination of the claimant by a hospital resident physician that the claimant had suffered a concussion and trauma in severity to the areas of infliction mentioned here in this claim.
23. The actions of C.O. Trombley and the unidentified C.O. were intentional, unwarranted, and . . . past the realm deemed necessary of 'physical force,' to quell the situation of which C.O. Tromley was the agitator. . . .
27. The claimant has had surgery to correct an injury suffered on his right foot and toes. The claimant is still seeking treatment for other various injuries that exist as a direct result of this incident.(2)
Defendant served an answer to the claim denying, upon information and belief, the aforementioned allegations which were incorporated by reference into the claim. The answer, verified by defense counsel, sets forth as affirmative defenses the negligence or culpable conduct of the claimant (first defense), the negligence or fault of some third person or persons for whose conduct the State is not responsible (second defense); judicial or quasi-judicial privilege (third defense); and lack of subject matter jurisdiction based upon the failure to file the claim as required by Court of Claims act § 11(a) (fourth defense).
In opposition to the instant motion, defense counsel submits an attorney's affirmation in which she withdraws the fourth defense in the State's answer and asserts the requirement that the culpable conduct of the claimant or others must be plead pursuant to CPLR 1412 and 3018. Defense counsel also contends that "the actions of prison personnel involving inmate disciplinary matters are generally quasi-judicial and, unless they exceed the scope of their authority or violate applicable rules, are afforded absolute immunity" (affirmation in opposition, ¶ 10, citing Arteaga v State of New York, 72 NY2d 212  and Davis v State of New York, 262 AD2d 887 ).
It is well settled that the State is not immune from liability for assault and battery which results when an officer uses more force than is necessary in performing his or her duty (Arteaga v State of New York, supra; Jones v State of New York, 33 NY2d 275 ; Stein v State of New York, 53 AD2d 988 ). Correction Law § 137  prohibits an officer or other employee from inflicting
"any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection. When any inmate, or group of inmates, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape."
As set forth in 7 NYCRR § 251-1.2[b] "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used." Assessing of the degree of force necessary requires consideration of the particular circumstances confronting the officers when the force was applied (Koeiman v City of New York, 36 AD3d 451 , lv denied 8 NY3d 814 ; Lewis v State of New York, 223 AD2d 800 ; Hinton v City of New York, 13 AD2d 475 ).
Claimant established his prima facie entitlement to judgment as a matter of law through the submission of his sworn Claim For Damages in which he avers that he was beaten without provocation and that the beating continued long after the claimant was restrained and placed face down on the floor. The events as recounted in the Claim For Damages are referenced in paragraph 2 of claimant's affidavit in support of the motion, which states the following:
2. I . . . state that everything that happened during the course of . . . the assault and battery by C.O. Trombley and the unidentified C.O., to be true and correct to the best of my knowledge, as set forth in the claim for damages with respect to the said incident.
Claimant's version of the incident does not implicate any of the circumstances in which the use of force is authorized pursuant to Correction Law § 137 . Having established his entitlement to summary judgment, the burden shifted to the defendant to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" (Zuckerman v City of New York, 49 NY2d 557, 562 ; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). In opposition to the motion, defendant proffered only the affirmation of an attorney without personal knowledge of the facts underlying the claim. Such an affirmation lacks evidentiary value and is insufficient to defeat the claimant's motion for summary judgment (id.). Having established, without countervailing proof, that excessive force was used, defendant's first defense in its answer that claimant's culpable conduct contributed to the alleged injuries is not only devoid of evidentiary support, but "not pertinent to the issue of defendant's liability for assault" (Olsson v MacDonald, 16 AD3d 1017, 1018 ). As stated long ago by the Appellate Division, Third Department, in Nelligar v State of New York (205 App Div 734, 737 ) "[t]he assault upon the claimant having been intentional, without provocation and unjustifiable, the negligence of the claimant, if any, was antecedent and a thing apart; it did not contribute to the willful assault which was made upon his person." As to the remaining defenses, the only proof submitted is that the claimant was assaulted by employees of the defendant and not a third-party as alleged in defendant's second affirmative defense. Moreover, while certain actions related to prison discipline are clearly provided immunity, the actions described in this record are equally clearly not amenable to such a defense.
Accordingly, claimant's motion for partial summary judgment on the issue of liability is granted, and the Court will schedule a trial on the issue of damages at the appropriate juncture.
April 20, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The following papers were considered:
1. Notice of Motion dated February 10, 2010;
2. Affidavit of William H. Brooks sworn February 10, 2010
with attachments, including the Claim, Claim For Damages and the defendant's Answer;
3. Affirmation of Michele Walls dated February 19, 2010;
4. Reply affidavit of William H. Brooks sworn February 4, 2010.
2. No corrections to the quoted excerpts have been made except where indicated.