New York State Court of Claims

New York State Court of Claims
MERCED v. THE STATE OF NEW YORK, # 2010-015-513, Claim No. 112948


As no degree of force was necessary in self-defense or to maintain order and security in the prison, claimant was awarded damages for minor injuries sustained through the use of force by correction officers.

Case information

UID: 2010-015-513
Claimant short name: MERCED
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112948
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Christopher R. Merced
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Kent Sprotbery, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 17, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


The claim, alleging excessive force by a correction officer at Great Meadow Correctional Facility, proceeded to trial on July 15, 2010.

Claimant testified that on June 28, 2006 he was being escorted by Correction Officer Pilon to his cell in the Great Meadow Correctional Facility Behavioral Housing Unit (BHU). Correction Officer Pilon asked the claimant where he "locked" and what his cell number was. Claimant had not been notified of any change in his cell assignment and he therefore instructed Officer Pilon that he locked in cell A-9. As they reached cell A-4 fellow inmates informed the claimant and Correction Officer Pilon that claimant's cell had been moved. According to the claimant, Correction Officer Pilon asked him why he was playing games by incorrectly identifying his cell as cell A-9. Correction Officer Pilon then "turns the handcuffs to the right and he starts to slam me against the plexiglass". Claimant testified that he then asked Correction Office Pilon "what the f**k are you doing" and reiterated his understanding that "this is my cell location", referring to cell A-9. Correction Officer Brockley arrived at the scene approximately three to four minutes later and took the claimant to his new cell. Claimant alleges he did not resist Correction Officer Pilon nor did he have any prior information that his cell location had been switched following his report to programs that day. Claimant testified that he was in full restraints at the time of the incident.

On cross-examination the claimant agreed that neither he nor CO Pilon were aware that claimant's cell had been moved at the time claimant informed the officer that he locked in cell A-9. He testified CO Pilon asked him what kind of game he was playing by identifying the wrong cell, turned the claimant with his right hand while grasping the claimant's handcuffs and "bounced me repeatedly off the plexiglass". The medical report portion of the Use of Force Report regarding the incident indicates a quarter-sized area of redness on claimant's left hand "just above the wrist and below the thumb". Claimant is said to have had an excellent range of motion with regard to his left wrist and fingers although he complained of discomfort during the range of motion examination. The medical report also indicates "several red marks noted around wrist which appear to be cuff marks".

The defendant called Correction Officer Michael Brockley. Officer Brockley testified at trial that in June, 2006 he was employed as an escort officer in the Great Meadow BHU. On June 28, 2006, while he was escorting inmates to their cells from programs, Officer Brockley heard the sound of yelling coming from the opposite gallery approximately 40 feet away. Officer Brockley looked in the direction of the yelling and observed the claimant turning his head and shoulders toward CO Pilon. He then observed Officer Pilon turn the claimant and place him against the wall. According to CO Brockley he could see both the claimant and Officer Pilon although there is a console that "somewhat blocks the view". The witness testified that inmates in the facility BHU are those that have exhibited behavioral issues in the past and that it is important to insure that such inmates be strictly controlled for the safety of both the correction officers and inmates involved. CO Brockley testified that after he first observed CO Pilon place the claimant on the wall, he completed his task of placing the inmate under his supervision in his cell. CO Brockley then went to relieve CO Pilon. The witness estimated that he arrived to relieve CO Pilon within 15 to 20 seconds after he completed placing the inmate in his assigned cell. Upon arriving at the scene the witness relieved CO Pilon and took control of the inmate. He did not observe any bleeding or other injuries at that time. When asked whether he observed Officer Pilon repeatedly push the claimant into the plexiglass shield, Officer Brockely responded "I don't believe so, I was putting an inmate back into his cell, I finished, got the inmate secured in his cell and then went over to assist [CO Pilon]".

On cross-examination, the witness testified that at the time he first observed the interaction between the claimant and CO Pilon he was escorting an inmate to his cell. He was located approximately 40 feet from the claimant and Officer Pilon and agreed that there was some obstruction to his view caused by a console. According to CO Brockley, he observed the claimant turn his head and shoulders to the left as Officer Pilon placed the claimant against the wall. Officer Brockley locked the inmate he was escorting into his cell but did not remove the inmate's restraints so he could respond promptly to the incident involving the claimant and Officer Pilon. The witness agreed that the claimant was not aggressive in any way when he took control of him following the incident.

It is well settled that the State is not immune from liability for assault and battery when an officer uses more force than is necessary to perform his or her duty (Arteaga v State of New York, 72 NY2d 212 [1988]; Jones v State of New York, 33 NY2d 275 [1973]; Stein v State of New York, 53 AD2d 988 [1976]). Correction Law 137 [5] 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". Assessment of the degree of force necessary requires consideration of the particular circumstances confronting the officers at the time the force was applied (Bush v State of New York, 57 AD3d 1066 [2008]; Koeiman v City of New York, 36 AD3d 451 [2007], lv denied 8 NY3d 814 [2007]; Lewis v State of New York, 223 AD2d 800 [1996]; Hinton v City of New York, 13 AD2d 475 [1961]). While the absence of a significant injury is relevant to the determination of whether the force applied was excessive, recovery is nevertheless permissible where none of the circumstances set forth in Correction Law 137 [5] existed when the force was applied.

In the context of an Eighth Amendment claim for excessive force, the United States Supreme Court has rejected the notion that a significant injury is a threshold requirement for stating a cause of action (see Wilkins v Gaddy, ___US ___, 130 S Ct 1175 [2010]; Hudson v McMillian, 503 US 1 [1992]). Rather, the sole inquiry in determining such a claim is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm" (Hudson at 7).(1) This determination requires consideration of "the need for application of force, the relationship between that need and the amount of force used, the threat 'reasonably perceived by the responsible officials,' and 'any efforts made to temper the severity of a forceful response' " (Hudson at 7). While the absence of a significant injury is therefore a relevant consideration, it is not determinative (id.; Wright v Goord, 554 F 3d 255 [2009]).(2)

Here, the unrefuted trial evidence indicates that the claimant was repeatedly slammed against a plexiglass wall due to confusion - not of his own making- regarding his cell location. When this occurred, claimant was in full mechanical restraints. While Officer Brockley testified that he did not observe the claimant being slammed against the wall repeatedly, his line of vison was admittedly obscured by a console and his attention diverted by the necessity of placing another inmate in his cell. Moreover, defendant failed to call as a witness at trial Correction Officer Pilon whose conduct allegedly caused the injuries complained of. His absence was unexplained.

The Court concludes, based on the proof at trial, that the force applied to the claimant by Correction Officer Pilon was not required in self-defense or to maintain order and discipline in the prison (see Correction Law 137 [5]; Lewis v State of New York, 223 AD2d 800 [1996]). Claimant's testimony regarding the incident, including the repeated use of force and the fact that he was in full mechanical restraints at the time, is unrefuted by the defendant. Inasmuch as no legitimate penological purpose was served by the use of force in these circumstances, the Court finds the force used was excessive. Claimant having sustained only minor soft tissue injuries and discomfort of a temporary nature, the Court awards him the sum of $650.00. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a (2).

Let judgment be entered accordingly.

1. While claims under the Eighth Amendment are evaluated on both a subjective and objective basis, the malicious and sadistic use of force by prison officials satisfies both standards (Hudson at 9-10).

2. While this standard is not controlling with respect to the instant State-law claim, it is useful to the determination of whether or not a finding of excessive force may be made where the injuries sustained were minor. Indeed, no purpose would be served by requiring a significant injury in order to prevail on a state-law claim alleging excessive force but not one alleging cruel and unusual treatment under the Eighth Amendment.

September 17, 2010

Saratoga Springs, New York


Judge of the Court of Claims