After unified trial, State found liable for excessive force utilized in subduing a mentally unstable inmate. Only one of five officers involved testified before court. Some deposition testimony offered. Thus only basis for evaluating credibility as to whether only such force as was necessary to subdue claimant was used was live testimony by one officer with limited recall, and testimony by claimant.
|Claimant short name:||CARTER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||EDWIN CARTER, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||July 22, 2010|
|See also (multicaptioned case)|
Edwin Carter alleges in his claim that on June 17, 2005 defendant's agents at Fishkill Correctional Facility [Fishkill] utilized excessive force amounting to a battery when extracting him from his cell, causing him injury. Trial of the matter was held on June 25, 2010. Only the claimant, and Lieutenant Robert Coulombe, who had acted as a team leader during the cell extraction, testified.
Mr. Carter testified that on June 17, 2005 he had been double-bunked with an inmate named Michael Osby, with whom he had been "going through some problems."(1) Mr. Carter explained that he had a history of mental health problems, which made it difficult for claimant to socialize or interact with others in such a closed setting "locked in a cell for 23 hours a day" on the special housing unit [SHU]. His bunkmate had asked one of the officers if they could be separated, but was not given a specific answer at the time. They waited "an hour" for the officials to move them, and when it appeared that they were not going to be separated, Mr. Osby and Mr. Carter spoke more about their differences, and decided that their conflict was resolved.
Mr. Carter said that when a correction officer announced later that "it was time for him to move" claimant and his bunkmate said it was not necessary. The officer, however, "said that 'No. He's gotta move now.' " Claimant said:
"at this point was where I started to get paranoid due to my mental state I have a history of emotional disorders; and I tried to explain to the officer . . . usually they are fairly reasonable if you give them an explanation, but after I started seeing that he was going to be hard core, his actions started to get erratic, and I started to get paranoid that he had set me up . . . that he was trying to put me in a cell with somebody who might harm me, so I said 'I am not coming out of my cell. I am not going to let you do something to me, and I'm not letting my bunky come out either.' They started to go through the whole protocol of notifying the watch commander; getting others. At this point everything was okay, but about 50 minutes later they came in the cell with the response team. When they get there, they come in, big helmets, almost like space suits - everything covered - protection gear. There were five officers. I went to the back of my cell and my roommate went back to the shower area. I am in the back of the cell laid out on the floor; waiting for them to come in. The first one comes in drags me along. Then somebody bent back my fingers to a breaking point when they were handcuffing me. I was not struggling. I was laid out on the ground and not a threat in my paranoid state. I was not a threat, yet they - somebody - bent my fingers back unnecessarily."
After claimant was handcuffed, he said they escorted him to "the bullpen on the first floor", where he saw a nurse. She wrote notes about his complaints, including his complaints of pain. He said that because they bent his fingers the way they did, "the ring finger on [his] left hand is permanently disfigured." Mr. Carter said that the "nurse blew [him] off on [his] complaints."
He said that his claim was not just for injuries suffered because of the use of excessive force, but also for medical malpractice or negligence. He said that he was not referred for help when the nurse saw him, in "violation of the policies." He said that "she is supposed to document what the patient says and [in my case] make a further referral based on my complaint that I could not open my hand."
In terms of documentary proof, Mr. Carter said that psychiatric progress notes from Central New York Psychiatric Center show that he is "mentally ill" and "has a history." [Exhibit 1]. The notes, apparently written on June 8, 2005, indicate that he was serving ninety (90) days in SHU "for fighting" and was presented for evaluation for medication because of "suicidal statements" and feelings of stress and depression. [Ibid.]. The notes indicate a prior detention for assault, in a "DFY" [Division for Youth] facility, where he earned his GED. [Ibid.]. The "impression/diagnosis" the evaluator makes is "anxiety disorder" and a prescription for "Remeron" is noted. [Ibid.].
The ambulatory health record [AHR] for June 17, 2005 notes the "cell extraction" and indicates:
"very verbal during procedure. Once in bullpen & stripped to shorts, was screaming to friends in gallery 'I'm OK, they tried to break my fingers, I'm OK.' [Complains of] pain in thumbs & claimed to be unable to open hands from soft fist. No edema noted, no abrasions or lacerations noted. On way back to cell C24 was screaming, 'I'm OK, I'm OK'. " [Exhibit 2].
A portion of New York State Department of Correctional Services [DOCS] Division of Health Services Policy was submitted. [Exhibit 3]. The policy sets forth the general procedure for "evaluat[ing] inmates at sick call in accordance with a standardized, problem-oriented method of nursing evaluation." [Ibid.]. Claimant argued that by not making a referral of any kind, the nurse had violated such regulations. It is noted that the policy requires that subjective complaints be noted, objective observations by the medical practitioner be recorded as well as a plan of treatment. [Ibid.]. With regard to the AHR entry for June 17, 2005 [see Exhibit 2], while the nurse records claimant's complaints and her observation that there was no swelling, or abrasions or lacerations, there is no other indication of what kind of examination was made or whether any conclusions were drawn from her observations, including the need for any treatment.
Further sections of claimant's AHR were also submitted, covering his complaints after this incident. [Exhibit 4]. A report on July 4, 2005 indicates that the claimant told medical personnel that "Ibuprofen & elevation ineffective for swelling both hands from old injury" and that he was scheduled for an "MD appointment" "for evaluation." [Ibid.]. There are no further complaints about his fingers or hand in entries made by medical personnel on July 6, 2005, July 7, 2005 and July 10, 2005 [Ibid.].
A July 13, 2005 AHR entry made at 9:10 a.m. by medical personnel doing rounds, apparently stopped by claimant, reports that claimant said
" 'Nurse can I show you something?' '3 weeks ago I hurt this hand' - waves [left] hand in window. Writer instructed [inmate] to submit sick call-slip per procedure." [Ibid.].
Thereafter, claimant apparently put in a sick-call slip as directed and was seen at 10:00 a.m. the same day. [Ibid.]. The notation in the AHR indicates:
"Per unit [correction officer], [inmate] reports excruciating [left] hand pain . . . [Inmate] reports hit hand on something this AM & now in pain. Noted #2 & #4 [left] digits [with] swelling. #4 unable to straighten. [Inmate] can make a fist & reports appearance of all digits SAME as x 3 wks. States, 'I'm just very concerned if this is how my hand will always look.' Has appt pending . . . " (emphasis in original). [Ibid.].
AHR entries for July 15 and 16, 2005 reference complaints of pain in his left fingers and, on July 15, 2005, note that claimant was complaining that the "officer broke finger" during the cell extraction. [Ibid.]. The July 15 and July 16, 2005 entries also record objective signs of injury, including swelling, and limited range of motion because of the swelling, and refer claimant for an x-ray. [Ibid.].
An x-ray report dated July 19, 2005 states that an examination of the left hand
"[Show[ed] no recent fracture, dislocation or arthritic change. There is healed oblique fracture proximal to mid-shaft 4th metacarpal with minimal deformity. Impression: No acute bone injury or arthritic change. Healed left 4th metacarpal fracture. No prior study." [Exhibit 5].
Another x-ray report dated August 4, 2005, records the same type of examination but notes "soft tissue swelling 4th (ring) finger with mild flexion position at proximal IP joint of same finger . . ." [Exhibit 6].
A consulting orthopedist's report dated August 31, 2005 records that claimant's left index and left ring fingers were reported as hyperextended two months earlier, and that claimant was complaining of residual pain and stiffness in these fingers. [Exhibit 7]. The impression noted on the report is that claimant had suffered sprains of the PIP [proximal interphalangeal] joints on his left index and ring fingers, and recommends occupational therapy twice weekly as well as a splint for night use. [Ibid.].
A letter from a consultant to medical personnel at Great Meadow Correctional Facility, dated September 29, 2006, indicates:
". . . I have been following [Mr. Carter] now for almost 1 year with regards to an injury to his PIP joint on his left ring finger. He lacks 25 degrees of extension. This has remained unchanged despite physical therapy and working on his own
. . . He flexes completely. He has normal tendon function. Neurologically he is
I have discussed options with Edwin . . . He says he does not want to stay with the flexion contracture. I have offered him a release of the collateral ligaments and the volar plate as an option. I have informed him about the risks of neurovascular injury and the fact that this could result in further stiffness, because of the trauma of surgery. He will require immediate postoperative physical therapy, and if we could book this at the same time that we book the surgery, I think our chances of succeeding with the procedure will be much higher . . . " [Exhibit 8].
Mr. Carter testified that he had the proposed surgery, but still has a "deformity" in his ring finger.
With regard to the "five misbehavior reports" he states he received after the cell extraction, he testified that they were "overturned by Albany," and furnished the Commissioner's finding that his "superintendent's hearing of July 8, 2005, has been reviewed and reversed on September 9, 2005." [Exhibit 9]. Claimant said, "that was not misbehaving. In accordance with my mental state at the time I was not misbehaving. The tickets were thrown out, expunged from my record."
Mr. Carter testified (accurately) that "all the reports from the officers involved do not say anything about my being a threat against them - just what they did." [See e.g. Exhibit 10]. Indeed, memoranda from the four correction officers to Sergeant K. Coulombe, all dated June 17, 2005, describe which of the "positions" each took, and what part of Mr. Carter's body each "controlled." [Ibid.]. Correction Officer R. Melville wrote:
". . . I was assigned to the first position of point man. Upon entering the cell [Carter's] left arm/shoulder was controlled by me with my hands until mechanical restraints were applied. After [Carter's] wrists and ankles were secured, I took hold of his right ankle and assisted in escorting him to the strip cell." [Ibid.].
Correction Officer J. Vito wrote:
"I entered the cell in the fourth position and took control of inmate Carter's right wrist and right arm with both my hands, placing Carter's right wrist and arm in a bent wrist come along until mechanical restraints were placed on Carter. Inmate Carter was removed from the cell and moved to the lower holding pen. I had control of inmate Carter's right arm while carrying the inmate to the lower holding pen." [Ibid.].
Correction Officer E. Burgess wrote:
"I entered the cell in the 3rd position and took control of inmate Carter's left arm with both hands until mechanical restraints were placed on said inmate. I had control of inmate Carter's left arm while carrying the inmate to the lower holding pen." [Ibid.].
Finally, Correction Officer T. Kellar wrote:
"I was assigned number 2 position. I placed mechanical restraints on inmate Carter's wrists and ankles. I then took control of his left leg and escorted him to the holding pen." [Ibid.].
On cross-examination, claimant conceded that he knew what would result from refusing a direct order, but "was not thinking about it. I was paranoid." He denied putting water on the floor in anticipation of the arrival of the extraction team, saying "that was what they put in a misbehavior report which was ultimately dismissed and the matter expunged from my record."
Asked if he kept closing the door on the officers (without specifying which officers), after some colloquy Mr. Carter said
"there is a cell, and at the back of the cell is a 'rec pen' door as I stated in my testimony I was paranoid, and I refused to come out and kept my bunky back, so they kept opening the back door, so yes, I was closing that door."
When asked if the "whole thing started because your roommate wanted to move out" claimant said
"I can't answer that question . . . the whole purpose of them wanting to let my roommate out the back rec pen cage was so that they could run in to the cell in the front with possibly chemical elements or whatever to subdue me. That was the whole purpose to get him out of the cell."
Lieutenant Robert Coulombe, who was a sergeant at Fishkill leading the team in the extraction of Mr. Carter from his cell on June 17, 2005, testified. He described the protocol for cell extraction saying:
"It involves five officers with a team leader, suited up with protective gear to avoid injury, entering the cell in a systematic way, and using force as necessary to complete the extraction in conformance with department guidelines. There's a point man with a shield, then after that various individuals on the stick, cuff, leg irons, and one individual responsible for giving verbal commands."
In an attempt to refresh his recollection, Lieutenant Coulombe was shown a use of force report with its memoranda attachments (including the memoranda submitted collectively as Exhibit 10). [Exhibit A]. Lieutenant Coulombe recalled that the watch commander at the time was Lieutenant Passage, who advised him that they had been
"having problems with [claimant] in SHU 200 with regard to him not moving and not allowing his roommate to move. I assembled my team, and went to talk to Carter, who said 'No one is moving. You are going to have to do what you are going to have to do.' Lieutenant Passage came down to give him one last order (as the highest ranking officer there at the time) which was refused, and the team went in. Each has an assignment. I don't remember exactly what [Carter] was doing - I would have to see the tape - but he definitely resisted. He was not complying with the officer's direction to allow them to place handcuffs on him, and to exit the cell."
Lieutenant Coulombe said his primary role as the leader was to stand and watch the process and give orders.
On cross-examination by claimant, Lieutenant Coulombe repeated that although he could not "say for sure" unless he viewed "a tape" exactly what the claimant was doing specifically, he knew he was "resisting." When asked why five correction officers were used to "subdue one convict", Lieutenant Coulombe repeated that this was the protocol for a cell extraction, and repeated that the "inmate was not following orders to leave the cell and was resisting."
The "use of force" packet submitted includes Lieutenant Coulombe's memorandum, as well as the memoranda from Officers Melville, Vito, Burgess and Kellar, among other documents. [Exhibit A]. Memoranda from two other officers present as part of the team - not noted above - are included. [Ibid.]. Officer K. Norwood writes:
"I was in the fifth position on the stick. I took control of inmate Carter's left hand with my right hand. Once the mechanical restraints were applied to his wrists, I released his hand." [Ibid.].
Officer B. Smith, "in the sixth position", secured and handcuffed inmate Osby without incident. [Ibid.].
No other witnesses testified and no other evidence was submitted.
Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. Correction Law §137(5) prohibits a correction officer 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 at 7 NYCRR § 251-1.2 (a), an officer must use "[t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary." Once an officer determines that physical force must be used, "only such degree of force as is reasonably required shall be used." 7 NYCRR § 251-1.2(b); see Lewis v State of New York, 223 AD2d 800, 801 (3d Dept 1996).(2) The State may be liable for the use of excessive force by its employee - constituting a battery - under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973). To assess whether force was necessary, or whether the particular degree of force used was reasonable, Courts look at what circumstances confronted the officers at the time. The credibility of those who testify before the court is a critical factor in these assessments.
A cause of action for assault is established upon " 'proof of physical conduct placing the [claimant] in imminent apprehension of harmful contact'. . . (citations omitted)." See Fugazy v Corbetta, 34 AD3d 728, 729 (2d Dept 2006). To establish a cause of action for battery, a claimant must prove that there was intentional, nonconsensual and offensive bodily contact. [Ibid.]. Committed in the scope of employment by a correction officer, an assault or a battery may render the State vicariously liable for the acts of its agent as noted above.
Resolving issues of credibility is the province of this court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). An important part of that role is observing the behavior and demeanor of witnesses as they testify, and assessing the internal consistency of their accounts. " '[T]he fact-finder is not required to credit a particular fact testified to by one or even six witnesses,' but instead should assess the likelihood of a fact being true 'by the totality of circumstances surrounding the occurrence as well as by the ordinary laws that govern human conduct' (People v Collier, 85 Misc 2d 529, 553 [-554] [NY Sup 1975])." Medina v State of New York, UID # 2007-028-010, Claim No. 106664 (Sise, P.J., March 2, 2007).
Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has established, by a preponderance of the credible evidence, an adequate basis for the State's liability. On the whole, most of claimant's account of events was credible even if he minimized his own behavior, or exaggerated the extent of the injuries he sustained to some degree.
On certain significant points, however, his testimony was uncontradicted, since Lieutenant Coulombe - as the only other witness to testify - had very limited recall of the events. The memoranda by the active participants in the cell extraction are not subject to cross-examination. [See Exhibits 10 and A]. Significantly, such memoranda (as opposed to live testimony) do little to elucidate the circumstances facing the officers - when examination of those circumstances is necessary to determine whether they acted reasonably - with contents lacking any description of claimant's conduct or even the conduct of their fellow officers. [Ibid.]. It is troubling that no testimony from those officers who actually laid their hands upon claimant was offered. Without such testimony, how is the Court to determine whether "only such degree of force as is reasonably required [was] used" [7 NYCRR § 251-1.2(b)]?
Lieutenant Coulombe's inability to describe even minimally what claimant's actions were, beyond his recitation that he knew claimant was "resisting," and that if he were to view "the tape"(3) he could describe such resistance more accurately, undercuts the value of his testimony and the accuracy of his memory of the events.
In contrast, claimant had a fairly clear recall of the events of June 17, 2005, including his recollection that by the time the cell extraction team was at his cell, he was in a compliant position on the floor. He admitted to closing the rec door and to preventing Osby from exiting and to telling personnel that they would have to do what they needed to do. Nonetheless, in the misbehavior report (that was later expunged in any event) all the alleged resistance is noted as occurring earlier by the officer writing the report. [See Exhibit A]. The last documented portion recites:
"At approximately 10:30 pm, Lt. Passage gave Carter numerous direct orders to lock out on the rec. Carter refused stating 'F*** that - come in and get me.'
At approximately 10:53 pm, the cell extraction team entered C-1-9 cell and removed Carter. After examination by Nurse Brown and photos were taken, Carter was placed in cell C-1-24B. End of report." [Ibid.].
As noted, claimant's testimony that the disciplinary adjudication of this misbehavior report was reversed and his record expunged is uncontradicted. [See also Exhibit 9]. His statement that he was on the floor is uncontradicted, even by the written statement Lieutenant Coulombe made at the time included in the use of force report. [Exhibit A]. The officer writes:
"At approximately 10:50 pm the team entered C-1 gallery and moved into position. I gave Carter one last direct order to comply with Staff direction to which he refused. The manual cell door override was operated and the extraction team entered the cell." [Ibid.].
The foregoing is followed in the statement by word-for-word recitations of the memoranda written by the team. [Ibid.].
Indeed, some courts have found there is a clear inference that follows from the failure to call individuals allegedly involved - here, correction officers - in that they would not testify favorably to the defense as to the pertinent issue of excessive force. Bradshaw v State of New York, 24 AD2d 930 (3d Dept 1965); (4) 1A NY PJI3d 1:75, at 108-124 (2006); cf. Valentino v State of New York, 62 AD2d 1086 (3d Dept 1978), appeal dismissed 46 NY2d 1072 (1979). Without testimony from any involved correction officer, the Court would be unable to do more than speculate whether personnel acted appropriately in accordance with some level of threat perceived, if any. See Lewis v State of New York, 233 AD2d 800, supra. There should be a showing that the degree or kind of force used was "objectively reasonable under the circumstances to effect control over claimant . . ." Passino v State of New York, 260 AD2d 915, 916 (3d Dept 1999), lv denied 93 NY2d 814 (1999).(5)
The Court credits claimant's testimony that he was fearful of imminent harm, and that his fingers were bent back unnecessarily in the process of applying handcuffs. At the point the handcuffs were applied, claimant was already compliant, as he testified. Claimant has established that he suffered an assault by virtue of having been placed in fear of imminent harm, and suffered a battery as well by the nonconsensual touching.
The cause of action for medical malpractice or for negligence based upon a failure to follow regulations is dismissed. There has been no showing, through expert testimony or otherwise, that there was a failure to provide adequate medical care or that any note-taking omissions caused claimant harm (even assuming that the initial AHR notes from June 17, 2005 are somehow inadequate, or reflect an inadequate examination).
The AHR report for June 17, 2005, noting the nurse's examination and the lack of swelling or marks, as well as the report of examination contained in the use of force report, do not suggest any major injury beyond discomfort at that time, however. [See Exhibits 2 and A]. The additional AHR documentation submitted reports medical visits commencing on July 4, 2005. [Exhibit 4]. While Mr. Carter is noted as reporting that "Ibuprofen & elevation ineffective for swelling both hands from old injury," and that an appointment with the doctor has been scheduled, the visit on July 4, 2005 was two weeks after the incident, and suggests a gap in the record claimant chose to submit, given that it mentions earlier treatment directions (the ibuprofen and elevation). [Ibid.]. Three more visits in the same week and in the next are recorded, with no mention of pain in his hand or finger, until a fourth visit on July 13, when it appears that claimant hit his hand. [Ibid.]. Although, the July 4, 2005 notation suggests that he received medical care for hand injuries, without medical testimony to establish causation as to what portion of any injury he ultimately suffered is related to having his fingers bent back excessively by officers, and what portion is related to his striking his hand on July 13, 2005, or on any other occasion, the extent or permanency of any injury proximately caused is not established.
Damages for battery, if proven, may include compensation for the injury, pain and suffering and any special damages incurred. De La Cruz v City of New York, 163 AD2d 163 (1st Dept 1990). His medical expenses are paid for by the State of New York by virtue of his incarceration in the custody of DOCS. Punitive damages are not recoverable against the State or its political subdivisions. Sharapata v Town of Islip, 56 NY2d 332, 339 (1982). Nor can a claimant recover for emotional distress against the State of New York. Finally, claimant must connect with expert testimony, the battery to any continuing injury, particularly when other injuries may be part of the factual scenario. See Panzarino v Carella, 247 AD2d 521, 523 (2d Dept 1998); Ortiz v Mendolia, 116 AD2d 707 (2d Dept 1986). "Claimant may recover only for such increased pain and suffering caused by defendant's acts (citations omitted)." Mihileas v State of New York, 266 AD2d 866 (4th Dept 1999).
Although Mr. Carter was convinced that issues he asserts he has today with the PIP joint in his left ring finger were related to the rough treatment received on June 17, 2005, he did not establish this on this record. Notably, what medical records were submitted show that other incidents involving his hands occurred. Claimant did not establish the extent or permanency of injuries proximately caused by the assault and battery committed by the State's agents on June 17, 2005.
Accordingly, the Court finds that claimant is entitled to compensation in the amount of $5,000.00 for the conduct of the state's agents in placing him in fear of imminent bodily harm and intentionally touching him offensively, causing pain and suffering and non-permanent physical injuries. 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.
July 22, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. All quotations are to trial notes or audio recordings unless otherwise indicated.
2. "[R]eviewing the record as a whole, we find no basis to disturb the Court of Claims' conclusion that [claimant] was sufficiently under control at the time of the incident and that the action taken by [the State employee] in executing the take-down maneuver was therefore not necessary and, accordingly, constituted the negligent application of excessive force."
3. If a videotape was made of the incident, the State was in the best position to produce it, since the witness did not have any present memory of the events. This is noted parenthetically because no demand for same was apparently made in any event.
4. "[Claimant's] testimony established a prima facie case that the State's negligence contributed to or caused the accident, and we find no basis here on which the court below could disregard such testimony even though [claimant] was an interested witness . . . [citations omitted]. In addition, the State's failure to call the attendants allegedly involved supports an inference that their testimony would not have been favorable to the State [citation omitted]. Accordingly, based on the entire record we find that negligence attributable to the State was the cause of the accident . . .[citation omitted]" Bradshaw v State of New York, supra, at 930-931.
5. Use of pepper spray to restrain drunk abusive claimant did not constitute excessive force.