New York State Court of Claims

New York State Court of Claims
CALLENS v. THE STATE OF NEW YORK, # 2010-015-518, Claim No. 113793


Inmate's excessive force claim was dismissed following trial.

Case information

UID: 2010-015-518
Claimant(s): JAMES CALLENS
Claimant short name: CALLENS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113793
Motion number(s):
Cross-motion number(s):
Claimant's attorney: James Callens, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Paul Cagino, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 1, 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's testimony at trial largely followed the allegations contained in the claim. According to the claimant, on July 9, 2006 he was returning to his cell on the C-2 Company at approximately 8:00 p.m. As he was walking through the C-1 Company, Correction Officer Glasier instructed the claimant to tuck in his shirt. Claimant testified that he did not at first hear the officer's direction, which was relayed to him by another inmate. He tucked in his shirt and Correction Officer Glasier instructed him to "get on the wall". Claimant complied with the order and three other correction officers responded to the scene. The claimant was searched and then instructed to pick up certain personal items which he had dropped onto the floor prior to placing his hands on the wall. According to the claimant he picked the items up and, as he turned around, was attacked by the four correction officers present. Following the alleged assault claimant was handcuffed and taken to Glens Falls Hospital where he received stitches to his forehead and lower lip. Claimant testified that he also sustained back injuries which required eight months of physical therapy.

On cross-examination, claimant agreed that when interviewed by Captain Rowe following the event he stated that he inadvertently struck one of the correction officers in the head with his elbow (defendant's Exhibit A). He explained this statement at trial by testifying that he was merely repeating what he had been told by one of the correction officers involved in the incident, who informed the claimant that they "took me down" because he had inadvertently struck the correction officer. When asked by the Court whether he, in fact, inadvertently struck a correction officer with his elbow claimant responded "not that I know of".

The defendant called Correction Officer Daniel Mulligan to the stand. Officer Mulligan testified that he is employed as a correction officer at Great Meadow Correctional Facility and that he participated in the July 9, 2006 incident involving the claimant. In describing the incident he testified that he was standing to the side covering Correction Officer Glasier who was performing a pat frisk of the claimant. The claimant was talking and "moving around", and then turned and struck the witness in the mouth with his elbow, knocking a tooth loose. Officer Mulligan then grabbed the claimant and pushed him forward and down to the ground. No correction officers had struck or otherwise assaulted the claimant prior to the time that he turned and struck the witness with his elbow.

The law is clear 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]). That being said, physical force may be used where necessary in self defense or where an inmate offers violence to any person or resists or disobeys a lawful direction (Correction Law 137 [5]; 7 NYCRR 251-1.2 [d]). In determining the degree of force necessary the "greatest caution and conservative judgment" is required (7 NYCRR 251-1.2 [a]). "Where it is necessary to use physical force, only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]). Assessment of the degree of force necessary requires consideration of the particular circumstances confronting the officers when 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]).

Correction Officer Mulligan's testimony that the claimant turned away from the wall and struck him in the mouth with his elbow with such force that it loosened a tooth was credible and, in the Court's view, justified the use of force. Claimant's admission to Captain Rowe that "as he bent over to pick up his personal items from the floor he inadvertently struck an officer in the head with his elbow" supports this conclusion (defendant's Exhibit A). Whether claimant's contact with the officer was inadvertent or not, under the circumstances then existing, the correction officers reasonably believed force was necessary in self-defense and to enforce compliance with a lawful direction (Passino v State of New York, 260 AD2d 915 [1999], lv denied 93 NY2d 814 [1999]; Correction Law 137 [5]; 7 NYCRR 251-1.2 [d]). Claimant failed to establish by a preponderance of the credible evidence that his injuries were caused by the use of excessive force. Based on the foregoing, the claim is dismissed.

Let judgment be entered accordingly

November 1, 2010

Saratoga Springs, New York


Judge of the Court of Claims