New York State Court of Claims

New York State Court of Claims
PHELAN v. STATE OF NEW YORK, # 2020-058-009, Claim No. 126648


After trial, dismissing Claim alleging assault and battery and excessive use of force by correction officers.

Case information

UID: 2020-058-009
Claimant short name: PHELAN
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126648
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Kenneth Phelan, Pro Se
Defendant's attorney: Hon. Letitia James, Attorney General
By: Thomas Trace, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 28, 2020
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Kenneth Phelan, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for personal injuries allegedly sustained while incarcerated at Marcy Correctional Facility from an intentional assault and battery and use of excessive force by correction officers. The trial of this Claim was conducted by videoconference on December 4, 2019, with the parties appearing at Marcy Correctional Facility and the Court presiding in Albany, New York. Claimant testified on his own behalf. Claimant offered no other witnesses or exhibits. Defendant offered one exhibit which was received into evidence over Claimant's objection. Defendant presented four witnesses. At the conclusion of Claimant's case and trial, Defendant moved to dismiss the Claim. After considering all the testimony and evidence received at trial, reviewing the applicable law, and arguments made by the parties, the Court grants Defendant's motion to dismiss made at the conclusion of trial and dismisses the Claim.

Claimant testified that, on December 3, 2014, he was to be transported to a court proceeding. Claimant further testified that, before leaving the facility, he was strip searched and handcuffed in his cell. Claimant testified that the correction officer who handcuffed him did so too tightly. Claimant allegedly told that correction officer as well as a Sergeant that the handcuffs were too tight, but his complaint was ignored and/or not addressed. Claimant could not identify the officer who handcuffed him nor was the identity of that correction officer adduced from any of the witnesses who testified at trial. Claimant was taken from his cell to the facility's reception area and then to a waiting van. Claimant further testified that Correction Officer Blake (Blake) escorted Claimant to the van by placing his hand on the Claimant's back and pushing him. Claimant took offense to Blake's hand on his back and his purported pushing of Claimant, articulating to Blake that he was not exercising proper procedure. Claimant stated that, in response to Claimant's concerns, Blake punched him in his face and body, which was witnessed by a Sergeant and other correction officers who responded to the incident. Upon cross-examination Claimant admitted to spitting on Blake. Claimant testified he was taken from the van to the medical unit immediately after this incident. Claimant explained that, following the incident, he suffered from bruising on his right wrist; abrasions on his right outer shin and left inner ankle; red marks on his upper left back, right lower back, and right lower cheek; and that all injuries were superficial in nature. After testifying, Claimant rested his case. At that time, Defendant made a motion to dismiss, and the Court reserved decision.

Defendant produced four witnesses, to wit: Blake, Correction Officer Bowman (Bowman), Correction Sergeant Ploss (Ploss), and Correction Nurse Wilcox (Wilcox). During the testimony of Blake, Defendant offered Exhibit A.(1) Claimant objected to the introduction of Exhibit A into evidence on the basis that Claimant did not have the opportunity to compare the documents and photographs contained in Exhibit A to the original documents and photographs. This Court found Defendant properly introduced Exhibit A through testimonial evidence of Blake and producing DOCCS' Certificate of Records attached to Exhibit A (Exhibit A-21).

Blake credibly testified that, while escorting Claimant to the van, Claimant became disruptive. Blake explained that he did indeed have his hand on Claimant's back because he wanted to assist Claimant, who was handcuffed and shackled at the legs, so that he did not trip and fall or slip on the snow which was on the ground that day. Blake further testified that, before entering the van, Claimant started turning around. In response, Blake told and indicated to the Claimant to get in the van. When getting into the van and onto the seat, Claimant leaned forward and kicked Blake twice, once in the knee and then the hip. Claimant also spit in Blake's face and called him names. In order to gain control over Claimant, Blake and Bowman testified they held Claimant's legs down and pushed his face against a window. As a result of Claimant's conduct, a DOCCS' response team took control of Claimant and brought him from the van to the medical unit.

Sergeant Ploss credibly testified and corroborated Blake's version of events. Ploss testified that Blake escorted the Claimant to the van and placed his hand on Claimant's back in order to safely guide Claimant through the snow. Ploss further testified that she witnessed Claimant become disruptive. She testified that as Claimant was stepping into the van, he leaned forward into the van, kicked Blake, and yelled a racial slur. Additionally, another correction officer, who was involved in the incident but did not testify, was bitten on the hand by Claimant after Claimant kicked Blake (Exhibit A-1, A-3). As a result of the incident, Ploss called for a response team to subdue and gain control over Claimant. Ploss further testified that Claimant was taken to the medical unit to examine any injuries. Thereafter, Claimant left the facility for his court appearance. One of the Use of Force Report documents included within Exhibit A, which was executed by Sergeant Ploss, corroborates her testimony (Exhibit A-3).

Corrections Nurse Wilcox testified she examined and treated Claimant after the incident. Wilcox explained that she treated minor abrasions with band aids and that it was not necessary to send Claimant to the hospital.

The Claim sets forth a cause of action for assault and battery and the use of excessive force by the involved correction officers. In a correctional facility, DOCCS' employees are authorized to use a limited degree of physical force when it is reasonably necessary to enforce an inmate's compliance with a lawful directive (see Correction Law 137 [5]).(2) DOCCS' regulations also provide that "[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]) and a correction officer shall not lay hands on or strike an inmate "unless the employee reasonably believes that the physical force to be used is reasonably necessary: for 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" (7 NYCRR 251-1.2 [d]). The State may be held liable for any injuries sustained by an inmate when a State employee uses a degree of force that is excessive under the circumstances (see Jones v State of New York, 33 NY2d 275, 279-280 [1973], rearg dismissed 55 NY2d 878 [1982]; Gumbs v State of New York, UID No. 2019-038-113 [Ct Cl, DeBow, J., Sept. 27, 2019]). However, "[t]he fact that an altercation between [an inmate] and a correction officer occurred, in which force was used and [the inmate] was injured, is not in and of itself a basis for liability" (Patterson v State of New York, UID No. 2002-031-015 [Ct Cl, Minarik, J., Apr. 23, 2002]; see Sheils v State of New York, UID No. 2019-032-504 [Ct Cl Hard. J., July 2, 2019]). A claimant must establish that "the force used was unreasonable in light of the circumstances surrounding the altercation" (Patterson v State of New York, UID No. 2002-031-015, citing Thomas v State of New York, UID No. 2001-013-517 [Ct Cl, Patti, J., Dec. 2001]; see Sheils v State of New York, UID No. 2019-032-504). In order to assess what degree of force was necessary at the time of the incident, this Court will consider the circumstances that confronted the correction officer at the time that the force was applied (see e.g. Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]). In determining whether excessive force occurred, the trial court's findings are entitled to great deference in its assessment of the evidence and witness credibility (see Barnes v State of New York, 89 AD3d 1382, 1383 [4th Dept 2011], lv dismissed 19 NY3d 949 [2012]; Bush, 57 AD3d at 1066).

Upon consideration of the testimony of Claimant and the correction officers who testified, observing their demeanor while testifying, as well as examining the documentary evidence received at trial, it is the finding of this Court that Claimant failed to establish, by a preponderance of the credible evidence, that any of the correction officers involved in this incident assaulted him or used force which could be construed as excessive when initially handcuffing and shackling Claimant, walking him to the van, placing him in the van and/or restraining Claimant in order to gain control over him after placing him in the van.

Accordingly Claim Number 126648 is dismissed. Any and all other evidentiary rulings or motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


January 28, 2020

Albany, New York


Judge of the Court of Claims


1 Exhibit A consists of 21 pages which includes five pages of a Use of Force Report with Addenda; four pages of an Unusual Incident Report; one page of an Inmate Injury Report; one page of an Inmate Misbehavior Report; eight photographs of the Claimant from the date of the incident; one page indicating when the photographs were taken; and one page entitled "Certificate of Records.



2 Correction Law 137 (5) provides:

"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."