Claim alleging that correction officers assaulted the inmate/claimant without provocation on three separate times in different locations on the same day is dismissed after trial where claimant's testimony lacked credibility; to find liability Court would be required to discount the credible trial testimony of the correction officers and conclude that the correction officers conspired to repeatedly assault claimant without cause and without provocation, and, in the aftermath of the assaults, conspired to separately fabricate contemporaneous detailed written accounts of the events.
|Claimant short name:||MCFADDEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||REGINALD MCFADDEN
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Michael Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 30, 2018|
|See also (multicaptioned case)|
Reginald McFadden (claimant) alleges that while an inmate at Clinton Correctional Facility (CCF) on February 17, 2007, he was assaulted by several correction officers three distinct times in three different locations, between the approximate times of 4:00 p.m. and 4:25 p.m. Specifically, claimant alleges that while placed in a "pat frisk"(1) position near the "117 corridor gate," a number of officers beat and struck him in a sudden and unprovoked attack, "out of nowhere," beating him with their batons for "approximately 10 minutes." Claimant further alleges he was then "dragged to the hospital steps" (60 to 70 steps), beaten again during "14 or 15 more minutes" at the base of the hospital stairs and as he was forced, "on a broken ankle," to ascend the hospital stairs, and then again beaten during a "third series of assaults" which occurred at the rear of Hospital II, Exam Room 2.
Defendant's position, primarily presented through trial testimony of two of the accused correction officers, Officer Vernal Favreau and Officer Randy Russell, and by contemporaneously created written documentation memorializing the events of February 17, 2007, is that during the course of a random pat frisk of claimant, claimant was "wanded" and the wanding device alerted. By reason of that alert, per protocol, claimant was escorted to the institution's medical facility to be placed in a "BOSS chair" (Body Orifice Security Scanner), a device used to detect secreted metallic objects. The BOSS chair alerted as well, the claimant was ordered to disrobe and while in the process of Officer Favreau beginning a strip search of claimant, the claimant attempted to flee the room. The only officer immediately present, Officer Favreau, soon aided by Officer Russell, subdued claimant, bringing him to the ground, and by application of an authorized restraining hold, a "figure 4 leg lock" applied by Officer Russell, officers were able to place a struggling, non-compliant claimant in mechanical restraints. These events, asserts defendant, explain claimant's resultant injuries, the most serious of which was a distal left leg fibula fracture. After claimant was subdued, a small homemade sharpened metal object was found on the floor of the exam room.
After sustaining his injuries, claimant was evaluated at CCF by Registered Nurse Mary Beth Gillen and was provided an emergency telemedicine conference with Dr. Sean Marley. Claimant was then transported to Champlain Valley Physicians Hospital (CVPH) for further evaluation and/or treatment and was thereafter returned to CCF. Upon his return to CCF, in the very late hours of February 17, 2007 or in the wee hours of February 18, 2007, claimant was evaluated by Nurse Ronald Dumont, and Nurse Dumont consulted by telephone with Dr. Lee, a CCF resident doctor, regarding claimant's condition and treatment. Subsequent to that consultation, claimant was sent to the CCF Special Housing Unit (SHU). Later that day (February 18, 2007), concerned with infection, defendant again sent claimant to CVPH, which then determined claimant should be sent to Albany Medical Center (AMC). Claimant was admitted to AMC, where he was treated until February 22, 2007, at which time he was returned to CCF, and upon his return, housed in the facility's medical unit.
Claimant filed his claim on April 30, 2007, ultimately alleging two bases for recovery:
A) That on February 17, 2007, defendant employed unjustified excessive force upon claimant three distinct times between 4:00 p.m. and 4:25 p.m.; and,
B) That upon claimant being returned to CCF from CVPH very late in the evening of February 17, 2007, defendant, after medically evaluating him, improperly sent him to be housed in SHU, rather than housing claimant in CCF's medical unit.
At trial, claimant expressly disavowed, despite being repeatedly asked by the Court, that any aspect of his claim was founded in medical malpractice, and stated that his claim was entirely predicated upon the two bases set forth above.LAW
The use of physical force against an inmate is governed by statute, regulation and case law. Correction Law 137 (5) provides as follows:
"No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict 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."
Correction officers may use physical force to maintain order and discipline in correctional facilities, but "[w]here 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]).
The limited circumstances in which use of force is permitted by correction officers are set forth at 7 NYCRR 251-1.2[d]:
"[F]or self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape."
In claims involving inmate allegations of excessive force by correction officers, the credibility of the witnesses is generally the dispositive factor (Davis v State of New York, 203 AD2d 234 [2d Dept 1994]). To determine whether the use of force was necessary and, if so, whether the force used was excessive or unreasonable, a court must examine the specific circumstances confronting the officers (see Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Quillen v State of New York, 191 AD2d 31 [3d Dept 1993]; Arnold v State of New York, 108 AD2d 1021 [3d Dept 1985], appeal dismissed 65 NY2d 723 ).
CONDUCT OF THE TRIAL AND POST TRIAL DATE PROCEEDINGS
Trial of the claim followed extensive discovery (e.g. seventeen sets of claimant interrogatories), assorted motion practice (including an application that resulted in a protective order being issued in favor of defendant), a perfected appeal of the Court's denial of claimant's motion for summary judgment, and adjournment of two previously scheduled trial dates, at claimant's request.
The claim was tried on August 2, 2018. Seven witnesses testified. Due to pre-trial security concerns expressed by the Department of Corrections and Community Supervision (DOCCS), trial of the claim was conducted via three-way teleconference. Claimant, appearing pro se, was at Attica Correctional Facility in Attica, New York, defendant's counsel and all trial witnesses (other than claimant) were at CCF in Dannemora, New York and the Court presided in the courthouse in Albany, New York.
Due to the logistical challenges presented by the three-way teleconference, all of the trial exhibits (claimant's Exhibits 1-8 and defendant's Exhibits A-O) were simply marked at trial, and then transmitted to the Court post trial date, to be copied and distributed to the parties. The trial record was kept open, post trial date, to allow the parties to review all of the marked exhibits and to thereafter lodge written objections, if any, with the Court. The Court informed the parties that any post trial date objections would be addressed in the Court's written trial decision.
The trial record, post trial date, was also kept open due to confusion between two potential witnesses with similar names and due to the uncertain availability for trial testimony of one of those two witnesses. The Court directed the parties to notify the Court post trial date of any request for the further trial testimony of the one potential witness of uncertain availability. Neither party, post trial date, made any such request for additional witness testimony.
Failing to receive any request for additional witness testimony, the Court informed the parties that upon receipt of each party's post trial date objections to the marked trial exhibits, the trial record would be closed and that no additional evidence would be received.
In addition to the trial testimony given on August 2, 2018, the Court has reviewed and considered the marked trial exhibits (with the single exception of marked trial Exhibit G, as will be explained) and has further considered the post trial date correspondence by and between the parties and the Court related to post trial date party objections to marked trial exhibits.
As such, the post trial date correspondence referred to immediately above is made part of the trial record and consists of the following:
1) Copies of claimant's Exhibits 1-8 submitted to the Court by cover letter of Pamela Babin, Offender Rehabilitation Aide at Attica Correctional Facility, dated August 3, 2018;
2) Defendant's Exhibits A-O submitted to the Court by cover letter of Assistant Attorney General Michael T. Krenrich dated August 3, 2018;
3) Letter of Assistant Attorney General Michael T. Krenrich dated August 3, 2018, advising that potential trial witness Lt. Richard Rendle had retired;
4) Letter of the Court to the parties dated August 7, 2018, setting forth post trial date procedures;
5) Claimant's undated fifteen page affidavit, sworn to August 24, 2018, setting forth claimant's objections to defendant's marked trial exhibits;
6) Letter of the Court to the parties dated August 30, 2018, acknowledging receipt of claimant's objections and providing copy of same to defendant; and,
7) Fax cover sheet and letter of Assistant Attorney General Michael T. Krenrich, each dated and received September 11, 2018, setting forth defendant's objections to claimant's marked trial exhibits and making argument in support of admission of defendant's exhibits.
The Court also received, but did not consider, an additional letter of claimant's, dated September 13, 2018 and received by the Court on September 20, 2018, which contained additional argument and additional exhibits, none of which has the Court reviewed.
By post trial date correspondence, defendant objected to the admission of all of claimant's marked trial exhibits. Defendant's objections to claimant's marked trial exhibits 1, 2, 3, 4, 6 and 7 are overruled and those exhibits are admitted. Defendant's objections to claimant's marked trial exhibits 5 and 8 are sustained and they are not admitted.
By post trial date correspondence, claimant made no objection to defendant's marked trial exhibits B, C, D, E, F, H, I, L, M, N, O and that page of exhibit A which is Nurse Gillen's "Use of Force Report-Part B-Addendum" (page 2 of two-page exhibit). Accordingly, all such exhibits are admitted. Claimant did object to defendant's marked trial exhibits G, J, K and that page of exhibit A which is then-Sergeant Richard Rendle's "Use of Force Report" (page 1 of two-page exhibit). Claimant's objections to defendant's marked trial exhibits J and K are overruled and they are admitted. Claimant's objections to defendant's marked trial exhibits G and Sgt. Rendle's use of force report within exhibit A are sustained and they are not admitted.
To summarize then:
A. The exhibits admitted are:
- Claimant's Exhibits 1, 2, 3, 4, 6 and 7.
- Defendant's Exhibits B, C, D, E, F, H, I , J, K, L, M, N, O, and Nurse Gillen's report within Exhibit A.
B. The exhibits not admitted are:
- Claimant's Exhibits 5 and 8.
- Defendant's Exhibits G and Sgt. Rendle's report within Exhibit A.
Exhibit G merits specific mention. Defendant's marked trial exhibit G is a DVD disc which purports to depict the recorded events taking place at CCF, Hospital II, Exam Room 2, on February 17, 2007, between 4:27 p.m. and 6:24 p.m., a time during which the recorded evaluation of claimant in the aftermath of defendant's use of force upon claimant was conducted, as required. These facts were testified to by the correction officer (CO) recording the events, trial witness CO Eugene Miller, and are facts further memorialized in admitted trial Exhibits E and F. Defendant alleges that the DVD disc recording of claimant's use of force evaluation includes claimant stating that he sustained his injuries in a backward fall down the steps rather than from beatings by defendant's correction officers.
Post trial date, claimant objected to the admission of Exhibit G "because I cannot inspect it and do not know what is on it" (see paragraph 6 of claimant's undated fifteen page affidavit of August 24, 2018). At trial, although CO Miller testified to his actions of February 17, 2007 in recording the events described above, and to his belief that Exhibit G was the physical manifestation of that recording, he also testified that he had never in fact viewed the DVD disc which is marked trial Exhibit G. Additionally, for reasons unknown, Exhibit G was never played at trial.
Accordingly, CO Miller, did not, and could not, establish that the events depicted on Exhibit G faithfully and accurately recorded the events and scenes he testified to having observed and recorded on February 17, 2007. Indeed, without viewing the Exhibit, CO Miller did not, and could not, establish that Exhibit G was even a recording of the events and scenes he testified to having observed and recorded on February 17, 2007. As such, there is an insufficient foundation upon which to permit the admission of Exhibit G. Beyond that, the claimant, apparently due to the circumstances of his incarceration, was unable to view Exhibit G and therefore lacked meaningful opportunity to dispute or object to it contents. Due to the foregoing reasons, the Court sustains claimant's objection to defendant's marked trial Exhibit G and has not viewed or considered Exhibit G.
The events of February 17, 2007, according to claimant's testimony, were preceded and precipitated by a search of his cell conducted by correction officers Pelkey and Appleby on February 8, 2007. While claimant was at the gym, that search, according to claimant, resulted in damage to and/or the destruction of certain of his personal possessions, including a Quran, a typewriter and family photographs.
In response, that same day, claimant wrote a series of four complaints (Exhibits 1-4) to different prison officials, complaining of the cell search. Claimant alleges that his authorship of these complaints, and claimant's subsequent refusal to withdraw them despite being requested by correction officers to do so, resulted in retaliatory beatings on February 17, 2007.
The claimant testified to the events of the late afternoon of February 17, 2007. While assembling for evening chow, claimant was directed to the "117 corridor gate" to undergo a pat frisk. At that location, at about 4:00 p.m., in an "unprovoked" manner, CO Favreau "attacked" him, beating him with a baton, and after claimant fell to the floor, CO Favreau, now joined by four more correction officers, beat him with batons for approximately 10 minutes. Then, according to claimant, he was dragged and/or forced to walk on a broken bone, 60 to 70 steps, to the base of CCF's hospital stairs, and while there, and as he was forced to ascend the stairs to the facility hospital, was additionally beaten during "14 or 15 more minutes." Upon arriving in Hospital II, Exam Room 2, he was beaten for a third time.
After being medically examined at CCF, claimant was sent to CVPH where he was examined and evaluated before being returned to CCF very late on the evening of February 17, 2007. Upon his return to CCF, after Nurse Dumont's examination and after the nurse and Dr. Lee conducted a telephone conference concerning claimant's condition, claimant was sent to SHU. Claimant alleges, forming the second base of his claim, defendant's policies required that upon being returned to CCF from CVPH, claimant was to be sent to and housed in CCF's medical unit, rather than sent to and housed in SHU as was done.
Claimant testified to having sustained injury to his lower left leg during the beatings, which he described, alternately, as a "left foot broken," a "broken ankle," a "leg broken," a "broken bone," a "broken foot," a "wound one-inch long that went straight down to the bone," and an "open wound on left leg shin bleeding." Later, while directly examining Nurse Gillen at trial, claimant further characterized his injury as, "on the side of the ankle there was a bone literally sticking out through the ankle bone." Finally, in Exhibit C, an emergency telemedicine form memorializing the initial evaluation of claimant at CCF at 5:26 p.m. on February 17, 2007, under "History," the following note is included, "pt. claims he saw bone sticking through his shin."
As a general observation, claimant at trial was well prepared, organized, appropriately focused on attempting to prove his claim, and for the most part, clearly presented his own testimony. However, the Court found a great deal of claimant's examination of the other trial witnesses to be non-probative. Many, if not most, of his questions were composed of narration, testimony and argument, frequently referencing facts or proof not in evidence. As such, claimant's examination of the trial witnesses did little to assist him in proving his claim.
Registered Nurse Mary Beth Gillen was the first medical provider to see claimant on February 17, 2007, beginning her evaluation at 4:25 p.m. (see Exhibit B and Exhibit D). She also arranged an emergency telemedicine conference with Dr. Sean Marley (see Exhibit C, which notes the start time of the conference as 5:26 p.m.). Beyond the concern noted in Exhibit C of a possible fracture, Exhibits B, C and D mention redness to claimant's forehead, shoulder and left forearm, spinal pain, swelling, numbness, abrasions and a left shin ½ inch laceration. That claimant did in fact suffer a distal left leg fibula fracture was confirmed by Exhibit O (medical records of claimant dated February 22, 2007 and March 13, 2007). Three Exhibits (B, C and D) also contain a note that claimant's injuries were sustained in a fall down stairs. Nurse Gillen testified at trial that her notations on Exhibit B that claimant "fell down stairs backwards" as the cause of claimant's injuries and on Exhibit D that claimant "states fell down stairs" were made in response to what claimant had told her.
The two defendant trial witnesses with the most direct involvement in the events of February 17, 2007 were CO Vernal Favreau and CO Randy Russell, officers directly accused by claimant of participating in a series of unprovoked assaults he endured that day.
Correction Officer Favreau denied using any force upon claimant or observing any other correction officer using force of any kind upon claimant prior to the commencement of the strip search of claimant in Hospital II, Exam Room 2 - - not at the 117 corridor gate, not during the escort of claimant to the BOSS chair, and not in any hospital examination room. The officer testified that as claimant was being hand-scanned during a pat frisk by the 117 corridor gate, the device alerted in the claimant's groin area. Claimant was then escorted to the hospital to be placed in the BOSS Chair. The BOSS Chair alerted, indicating the presence of a metallic object upon claimant's person. Following protocol, the claimant was then brought to Hospital II, Exam Room 2 to be strip searched. Officer Favreau was alone in the room with claimant, and then-Sgt. Rendle and CO Russell were immediately adjacent at the room's threshold (separated by a privacy screen) as CO Favreau undertook the strip search process.
Officer Favreau further testified that when claimant was instructed to remove his undershorts, he began running for the door. Officer Favreau jumped on claimant's back, CO Russell then entered the room, and the two officers brought the struggling and resisting claimant to the floor. The two officers were eventually able to subdue claimant, and Sgt. Rendle then cuffed the claimant. At this point, CO Favreau observed an object on the floor and retrieved it. That object, a small homemade sharpened metal object, is depicted in a photograph, Exhibit J, which also contains pertinent information regarding its recovery.
Correction Officer Russell was present at the 117 corridor gate, was present during the escort of claimant to the hospital and was present while claimant was at the hospital. Officer Russell also denied using any force upon claimant, or seeing any other CO use force upon claimant prior to the officer entering Hospital II, Exam Room 2 to assist CO Favreau in subduing claimant. Standing immediately outside Hospital II, Exam Room 2 as CO Favreau began the strip search of claimant, CO Russell heard sounds of a disturbance, entered the room, and upon seeing CO Favreau struggling with claimant, grabbed claimant's lower body. After claimant was brought to the floor, CO Russell applied an authorized body-restraint hold upon claimant. The restraint hold, alternatively identified as a "Figure Four Hold" (see Exhibit N), or as a "figure 4 leglock," is, as described by CO Russell, "when the inmate is laying on his stomach, his right leg is placed behind his left knee, and his left leg is pushed forward towards the center, his back." Officer Russell indicated the hold is used "to immobilize both legs and to gain compliance."
The following documents substantially corroborate the events as described by CO Favreau and by CO Russell in their testimony:
1) Exhibit H, an "Inmate Misbehavior Report" authored by CO Favreau on February 17, 2007, charging claimant with, among other charges, "weapon" and with "smuggling;"
2) Exhibit I, a "Report of Strip Search or Strip Frisk," signed by CO Favreau on February 17, 2007;
3) Exhibit K, a TO/FROM Memo, to Sgt. Rendle from CO Favreau, a three page description of the events of the day, authored by CO Favreau on February 17, 2007;
4) Exhibit L, a TO/FROM Memo, to Lt. Rock from CO Favreau, authored by CO Favreau on March 5, 2007, denying the use of any force upon claimant other than in Hospital II, Exam Room 2, and asserting only the use of reasonable force then; and,
5) Exhibit N, a TO/FROM Memo, to Sgt. Rendle from CO Russell, a one page recitation of events of the day, authored by CO Russell on February 17, 2007.
DISCUSSION AND ANALYSIS
The second base of the claim will be addressed first. Trial witness Dr. Vonda Johnson, the medical director at CCF, testified credibly, and without contradiction, that the policy which claimant insists defendant violated after his return to CCF from CVPH, by sending claimant to SHU rather than housing him in CCF's medical unit, only pertains when inmates are returned to a correctional facility from an admitted hospital stay (emphasis added), and that on the evening of February 17, 2007, claimant had never been admitted to CVPH. Rather, claimant had only been referred there for examination and evaluation, and that after such evaluation in the ER of CVPH, claimant was returned to CCF never having been admitted to CVPH, and that accordingly, there was no obligation to send claimant to CCF's medical unit upon his return.
Dr. Johnson's credible testimony was additionally strengthened by contrasting the events of February 18, 2007 and February 22, 2007. On February 18, 2007 claimant was sent to and admitted to AMC for treatment of infection, and upon his discharge from AMC and return to CCF on February 22, 2007, claimant was sent to and housed in the CCF's medical unit (see Exhibit 7 and Exhibit O).
Beyond the testimony of Dr. Johnson and the documentary evidence in support of that testimony, which established that defendant had acted appropriately, claimant failed to prove by a preponderance of the credible evidence that defendant's housing of claimant in SHU upon his return from CVPH late on the evening of February 17, 2007 was either violative of defendant policy or that it constituted actionable defendant conduct. The second base of Mr. McFadden's claim is, accordingly, unsupported and unfounded.
Turning next to the first base of the claim, claimant testified, essentially, that by reason of being first beaten for "approximately 10 minutes" at the 117 corridor gate, followed by a "14 or 15 more minutes" period of time during which he was beaten at the base of, and as he was forced to ascend, the hospital stairs, and finally, again beaten in Hospital II, Exam Room 2, he was beaten by five correction officers, using batons, for twenty-five minutes between 4:00 p.m. and 4:25 p.m.
That account, standing alone, is difficult enough to credit, but beyond that, such a beating is inconsistent with the injuries that claimant actually did sustain. Such a series of beatings, it is not difficult to imagine, would have more likely resulted in death or near death. On the other hand, claimant's most serious injury, a fibula fracture, can reasonably be attributed to the force used upon claimant, as described by CO Favreau and CO Russell.
Further, claimant's testimony about the timing of, and the time devoted to, his being beaten, is contradicted by Exhibit I, which reports that the strip search of claimant commenced at approximately 4:10 p.m.
Three scenarios were offered at trial to explain the circumstances under which claimant suffered his injuries: 1) that claimant was savagely beaten for twenty-five minutes in an unprovoked assault by five correction officers wielding batons; 2) that claimant was injured in a backward fall down stairs; or 3) that claimant was injured in a two-officer take down, which included the application of a leg lock hold, as he sought to evade a strip search necessitated by a number of alerts that indicated the presence of a metallic object, and that after he was brought under restraint in Hospital II, Exam Room 2, a small homemade sharpened metallic object was recovered there.
The trial testimony of the correction officers, directly supported by several pieces of contemporaneously created documentary evidence, provide a consistent and coherent narrative about the events of the afternoon of February 17, 2007, and are reason for the Court to conclude, and does hereby find, that the third scenario is the most credible account of the events of that afternoon.
In this regard, the testimony of Nurse Gillen, that claimant contemporaneously explained his injuries as the result of a backwards fall down stairs, presumably reflects claimant's attempt to avoid admitting that his injuries resulted from a justifiable use of force by the correction officers in reaction to claimant resisting a strip search and attempting to flee Hospital II, Exam Room 2 in an effort to avoid the detection and recovery of a concealed weapon.
Conversely, to credit claimant's account, the Court would be required to conclude that several correction officers conspired to savagely beat claimant without proper cause and without provocation, and then, in the aftermath of the beatings, conspired to separately fabricate a number of contemporaneously created written accounts in rich, intricate and consistent detail; detail that almost certainly would have been required to have been discussed and agreed upon prior to setting the conspiracy in motion. Then, the officers, both testimonially, and in writing, would have had to lie in a coherent and fully consistent manner, with intricate and matching detail.
Ultimately, based upon the testimony of the trial witnesses, and observing their demeanor as they provided it, and based further upon the documentary evidence, the Court credits the testimony of CO Favreau and CO Russell, and does not credit the testimony of claimant.
The claimant has, in all respects, failed to prove his claim by a preponderance of the credible evidence. Claim No. 113641 is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
November 30, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Unless otherwise noted, quoted language is from an audio recording of trial testimony of Mr. McFadden's claim.