|Claimant short name:||COOPER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JEREMIAH J. MORIARTY III|
|Claimant's attorney:||Anthony Cooper, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. Friedfertig
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 1, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, is seeking in this claim to recover for injuries allegedly sustained when assaulted by correction officers (COs) on March 13, 2005 while he was under the care and custody of the New York State Department of Correctional Services (DOCS) at Gowanda Correctional Facility (Gowanda). The trial was conducted by video conference with the parties at Wende Correctional Facility in Alden, New York and the Court of Claims sitting in Buffalo, New York. Claimant testified in support of his claim and Defendant called six witnesses: COs Zmuda, Roth, Stefanik and Minton; Nurse Durand and Lieutenant (Lt.) Sticek, all employees of DOCS.
Claimant testified that on the morning of March 13, 2005 he was removed from his cell and placed in a holding cell awaiting transfer to the special housing unit (SHU) at Gowanda. While in the holding cell, Claimant alleges that he slipped and fell injuring his back, leg and shoulder after which he was escorted to the facility infirmary for examination. Claimant was then escorted from the infirmary to SHU where he was placed in a cell and allegedly assaulted by Sergeant (now Lt.) Sticek, CO Minton and two other unidentified COs who punched, kicked and stomped Claimant injuring his back, legs and groin for which he was denied medical treatment until March 24, 2005. No other witnesses testified for Claimant and he did not submit any medical evidence to support his claim for personal injury.
The testimony of DOCS employees was consistent and provided an overview of the events of March 13, 2005 involving Claimant, particularly indicating that no assault occurred. The documentary evidence (Defendant's Exhibits A, B, C, D, E, and G) confirmed that, at approximately 7:25 on the morning of March 13, 2005, Claimant caused a disturbance on the cellblock when he refused a direct order to clean up his cell and yelled obscenities at the COs. As a result, Claimant was moved to a holding cell prior to placement in SHU and a misbehavior report was filed charging him with failure to obey a direct order, causing a disturbance, harassment and failure to maintain an orderly and clean cell. While in the holding cell, Claimant yelled to CO Stefanik that he fell and hurt his back, leg and shoulder. Claimant was immediately escorted to the infirmary to be examined by Nurse Durand, but he refused to permit the nurse to touch or examine him and he also refused to sign an injury report. The Inmate Injury Report (Defendant's Exhibit D) contains Claimant's version of the accident and a report from the nurse that Claimant did not show any physical signs of injury and did not require treatment. The entry in Claimant's Ambulatory Health Record for March 13, 2005 made by Nurse Durand likewise documents Claimant's refusal to undergo a physical examination following the alleged accident in the holding cell.
The entry in Claimant's Ambulatory Health Record for March 24, 2005 makes reference to the slip and fall incident of March 13, 2005 and indicates that Claimant was treated by a nurse on March 20, 2005 for complaints of back pain and by a doctor on March 21, 2005 for asthma and headaches. There is a notation that Claimant exhibited an open abrasion on his forehead on March 24, 2005 which he stated occurred when a scab was scrubbed off during washing. There is no indication in the Ambulatory Health Record that Claimant complained of or was treated for injuries resulting from an assault.
Correction officers are charged with the responsibility of maintaining order and discipline in correctional facilities under stressful circumstances (Arteaga v State of New York, 72 NY2d 212 . It is well settled that correction officers may use physical force to maintain order and discipline in correctional facilities, but "only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2[b]). In situations involving inmate allegations of excessive force by correction officers, the credibility of the witnesses is often the dispositive factor (Davis v State of New York, 203 AD2d 234 ).
As the proponent of his cause of action, Claimant bears the burden of establishing his right to recover by a fair preponderance of the credible evidence (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 ). Claimant's proof that he was assaulted consisted of his sole testimony unsupported by any corroborating evidence. The testimony of the officers and nurse was credible and consistent with the documentary evidence. Claimant did not submit any objective proof that he was assaulted by or that he suffered physical injuries at the hands of the COs. No medical evidence was presented, through a treating physician or Claimant's medical records, to support his allegations that he was injured as the result of an assault by the COs. On the contrary, the records clearly indicate that any injuries suffered by Claimant on March 13, 2005 resulted from his fall in the holding cell.
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds the preponderance of the evidence to be that Claimant was not the victim of an assault by the COs and that his alleged injuries resulted from an accidental slip and fall as established by his own testimony and Ambulatory Health Record.
Accordingly, Claim Number 110800 is hereby dismissed in its entirety. Any motions not previously ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
November 1, 2010
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims