New York State Court of Claims

New York State Court of Claims
GONZALEZ v. THE STATE OF NEW YORK, # 2010-015-516, Claim No. 113453


Excessive force claim was dismissed following trial.

Case information

UID: 2010-015-516
Claimant short name: GONZALEZ
Footnote (claimant name) :
Footnote (defendant name) : The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113453
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Dilian Gonzalez
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Paul Cagino, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 3, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a pro se inmate, seeks damages for injuries allegedly sustained as a result of the use of excessive force by correction officers at Great Meadow Correctional Facility. The claim proceeded to trial on August 18, 2010.

Claimant Dilian Gonzalez testified through an interpreter, Deacon Miguel Fabien. Claimant testified that in December 2006 he was in a line of inmates proceeding to the messhall at Great Meadow Correctional Facility. Claimant was stopped by a correction officer (CO) who placed him against the wall and began to search his person. Claimant contends that during the search the correction officer began touching his buttocks in an inappropriate manner. This caused claimant to inform the officer in Spanish that his actions constituted an abuse of power. Claimant's hands were then placed behind his back, handcuffs were applied and claimant was taken to a separate room. Claimant testified that upon entering the room he was pushed into a wall by two correction officers. Claimant was instructed to take his clothes off, was searched and then allowed to return to the line to the messhall.

Claimant testified that when he returned to the messhall line a sergeant noticed a mark on his face and instructed a correction officer to detain him. Claimant was again placed on the wall, told to put his right hand behind his back and was then pushed to the floor. Claimant testified that twelve correction officers then beat him with batons, twisted his leg and otherwise assaulted him. As a result of the alleged assault claimant suffers neck pain, is unable to sleep and has headaches. He also testified that he has pain in his elbow and back as well as the leg that was twisted by one of the correction officers while he was on the ground. On cross-examination the claimant denied that he struck any COs or that he attempted to punch a correction officer prior to being taken to the floor. Claimant also denied "making a ruckus" on the way to the messhall.

The defendant called Sergeant Peter DePalo. He testified that he is currently a correctional sergeant at Great Meadow Correctional Facility where he has been employed for the past seventeen years. The witness is familiar with the claimant and was present at the time of the incident at issue herein.

Sergeant DePalo testified that at the time of the incident he was a correction officer assigned to conduct random pat frisks of inmates. The witness called the claimant out of line, had him place his hands on the wall and conducted a pat frisk. Once the frisk was completed the claimant was told that he could continue to the messhall. As claimant walked away he began speaking loudly in Spanish and then yelled "abuse of power" in English. Sergeant DePalo testified that he became concerned that claimant's actions were inciting other inmates in the area and a supervisor instructed the witness to stop the claimant and place him on keeplock. The witness approached the claimant and ordered him to stop. The claimant failed to comply with this order and, as the witness approached, swung a closed fist at the witness's head. Officer DePalo blocked the punch and threw claimant to the ground. While on the ground the claimant "violently struggled", and with both his hands and legs attempted to strike the witness, and other correction officers who responded to the scene. At the time, two full companies of inmates (120 inmates) were present in the main hallway of the rotunda at Great Meadow where the incident occurred.

The use of force reports, misbehavior reports and interdepartmental correspondence received in evidence at trial collectively reflects that the claimant caused a disturbance in the messhall corridor and refused to stop when ordered to do so. The use of force reports indicate that after claimant was directed to place his hands on the wall he "threw a punch" at Correction Officer DePalo who then brought him to the ground. Five correction officers responded to the incident and two of the officers sustained minor lacerations as the claimant resisted their attempts to subdue him. The type of force used was limited to body holds and mechanical restraints, according to the reports. Claimant's medical records reflect that he sustained minor abrasions on both hands as well as his face and forehead. Following a disciplinary hearing, claimant was found guilty of violent conduct, creating a disturbance, assault on staff and refusing a direct order. A penalty of 12 months in the facility Special Housing Unit with loss of various privileges and merit time allowances was imposed. 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 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 is 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]). Consideration of all the evidence leads this court to conclude that the force used upon the claimant was necessary and that only that degree of force reasonably required was used. The Court does not find claimant's version of the incident credible. Rather, Correction Officer DePalo's testimony is consistent with the version of the incident as described by the other officers who responded to the scene, all of whom indicated that the use of force was necessary in self-defense and to gain control of the claimant. Claimant failed to establish by a preponderance of the credible evidence that he was the victim of excessive force.

Based on the foregoing, the claim is dismissed.

Let judgment be entered accordingly.

November 3, 2010

Saratoga Springs, New York


Judge of the Court of Claims