Bazil v State of New York

[*1] Bazil v State of New York 2019 NY Slip Op 50548(U) Decided on February 19, 2019 Court Of Claims Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 19, 2019
Court of Claims

Kenneth Bazil, Claimant,

against

The State of New York, Defendant.



123873



Claimant's attorney:

BELDOCK, LEVINE & HOFFMAN, LLP

By: Keith Szczepanski, Esq. and Luna Droubi, Esq.

Defendant's attorney:

HON. LETITIA JAMES

Attorney General for the State of New York

By: J. Gardner Ryan, Assistant Attorney General
Walter Rivera, J.

Claimant seeks damages for the personal injuries he sustained during his incarceration at Fishkill Correctional Facility, when on February 17, 2013 correction officers allegedly assaulted [*2]claimant and used excessive force upon him. Claimant also seeks damages for the alleged wrongful confinement of 30 days that he spent confined in the special housing unit (SHU) after the events of February 17, 2013. A trial was heard on the issues of liability.

Claimant testified at trial via Skype.[FN1] According to claimant, on February 17, 2013 he was returning from the recreation yard and was then ordered to go to Correction Officer Jason Willson to be pat frisked at a random pat-frisk area set up by the correction officers. During the pat frisk, Willson directed claimant to keep his hands on the wall as he continued to step backwards until his body was almost parallel with the floor. Claimant complied and strained to maintain his position. Willson then directed claimant to take off his shoe. As claimant tried to remove his shoe, he fell.

As claimant was falling, Willson grabbed claimant's head and pushed it against the wall (T:32).[FN2] Willson then twisted claimant's ankle continuously. Thereafter, Willson retrieved claimant's black gloves from him because Willson maintained they did not belong to claimant and were considered contraband because of the color. Claimant was then ushered to his "room," which was located a few feet from the pat-frisk area (T:33).

Upon completion of the random pat frisk of all the inmates, claimant was permitted to exit his room. Claimant observed Willson and asked him if he would return the gloves, otherwise claimant wanted to speak with a sergeant. In response to claimant's inquiry, Willson ordered claimant to assume a pat-frisk position against the wall. Claimant complied. As soon as claimant placed his hands on the wall, he felt a blow to the side of his head and was thrown to the ground by Willson. Willson then jumped on claimant's back and grabbed claimant's hands behind his back. According to the Unusual Incident Report, "[o]nce on floor, inmate ceased to struggle" (Ex. A, p 1; Ex. 13). The Use of Force Report noted that Correction Officer Barbetta then placed handcuffs on a "non-combative" inmate (Ex. A, p 4; Ex. 5). Claimant testified that other correction officers responded by kicking and punching claimant. Claimant sustained kicks to the face. Claimant testified that "Willson, in particular, I know had his full weight in [my] back while holding my hands, you know, and he continued to kick and punch me" (T:34).

An alarm was sounded and Sergeant Guarino responded. In accordance with Guarino's direction, the correction officers brought claimant to a standing position. Claimant testified that the correction officers continued to kick and punch claimant. Guarino then directed Correction [*3]Officers Tabor and Eull to escort claimant, who had been handcuffed, to SHU.

While escorting claimant to SHU, which claimant estimated to be a distance of approximately two blocks, Tabor twisted claimant's handcuffs so that the cuffs cut into claimant's wrists and caused him severe pain. When claimant complained of pain, Tabor twisted the cuffs more (T:35). Tabor also lifted claimant's cuffs causing him to walk bent over with pain shooting through his shoulder blades (T:36). Eull bent claimant's thumb in an awkward position to cause claimant additional stress and pain (T:35). While escorting claimant, Tabor and Eull also randomly rammed claimant into the wall "head first" and punched him every chance they had (T:36).

An hour after claimant's arrival in SHU, he underwent a medical examination. Claimant complained of severe pain in his head and shoulders. Claimant's injuries were detailed in the Inmate Injury Report (Ex. 1); the Use of Force Report (Exs. 5, 11); the Unusual Incident Report (Ex. 13) and Claimant's Ambulatory Health Record (Ex. 12). Claimant exhibited edema to his right temple, a small cut to his lip, pain in both shoulders with noticeable marks and bruises, and two cuts on his wrist with some swelling (Ex. A, pp 2, 5). Defendant's Exhibit A, which includes the aforenoted Inmate Injury Report, Use of Force Report and the Unusual Incident Report and other documents, also contained photographs of claimant taken on the date of the incident (Ex. A, p 12). The only medical treatment that claimant received was that he was given "a couple of Band-Aids" and then sent to his cell (T:40).

Correction Officer Willson issued a misbehavior report to claimant charging him with assault on staff, threats and violent conduct. Willson described claimant as coming up from behind and then hitting and grabbing Willson on the back of his left shoulder (id.; Ex. 6; Ex. A, p 15). Willson's Employee Accident Injury Report indicates that Willson denied sustaining any injury from the incident (Ex. 9). Claimant was confined to SHU until his disciplinary hearing. Claimant testified at his disciplinary hearing and presented the testimony of his "roommate," inmate Henry Fuentes (T:33). Correction Officer Willson also testified at the hearing. Claimant testified that he was found not guilty of the charges of assault and violent conduct, but was found guilty of creating a disturbance (T:43). According to claimant, he pursued a "discretionary review" of the hearing officer's determination. The Superintendent reversed the determination of guilt and claimant's institutional record was expunged (T:45; Ex. 14).

Defendant presented the testimony of Correction Officer Jason Willson at trial. Willson testified that, upon his review of the documents in evidence, he recalled the incident with claimant (T:131). He subsequently conceded that he did not independently recall all the facts regarding the incident without reviewing the documents in evidence. He also noted that it had been 5½ years since the occurrence and that his recollection was vague in many respects (T:164). Specifically, Willson testified that he did not recall the pat frisk or directing claimant to remove his shoe during the pat frisk; however Willson maintained that removal of shoes was the standard procedure (T:145). Willson further stated that he "vaguely" remembered taking the black gloves from claimant to determine whether claimant was permitted to have such gloves (T:142-143). Willson told claimant that he would return the gloves to him if the sergeant indicated that they were permitted. According to Willson, claimant later came up from behind Willson and grabbed him by the left shoulder. Willson did not know what was happening or whether claimant was trying to cut him. He just felt a force from behind, and as he was being [*4]grabbed, he heard claimant yelling that he wanted his gloves returned. Willson spun around and pushed claimant down to the floor and fell on top of him (T:134, 136). Willson denied punching or kicking claimant (T:134-135).

Willson grabbed claimant's hands as claimant was face down on the floor. Another correction officer, whose name Willson did not recall, cuffed claimant. There were approximately five other correction officers in the area at that time (T:135). Willson did not recall who they were or what, if anything, the other correction officers did (T:136). Thereafter, a sergeant arrived and directed Willson to bring claimant to a standing position, which Willson stated was standard procedure to prevent asphyxiation. Willson did not recall whether claimant was then escorted to SHU. Willson was escorted to medical because it was the standard procedure when force is used by a correction officer.

Willson prepared an inmate misbehavior report charging claimant with assault on staff, threats and violent conduct (Ex. A, p 15). Willson explained that, for safety and security reasons, an inmate is never permitted to touch a correction officer. Willson has conducted more than 1000 pat frisks and has never been assaulted by an inmate nor has Willson ever been disciplined. Willson did not recall whether he had testified at claimant's disciplinary hearing (T:168-170).

Although Willson testified that he did not recall the pat frisk, he maintained that he did not use excessive force upon claimant during the pat frisk because he would not do that (T:145). Specifically, he testified that he would not slam claimant's head against a wall (id.). Willson did not recall seeing any correction officer use force upon claimant. Willson testified that, had he witnessed a use of force, he would have documented it (T:165). Willson also did not recall seeing any bruises on claimant's temple, a cut on claimant's lip or wrists or hearing claimant scream in pain regarding his shoulders and arms (T:165-166).

Memoranda authored by Sergeant Guarino (Ex. A, p 6), Correction Officer Barbetta (Ex. A, p 9) and Correction Officer Tabor (Ex. A, p 10), were received in evidence. They state that claimant was escorted to SHU without incident. However, without the benefit of hearing the witnesses testify in Court, observing their demeanor, and having them subjected to cross-examination, the Court finds that their memoranda are not compelling. Therefore, the Court found the memoranda to be of no probative value as to whether claimant was escorted to SHU without incident.

At the conclusion of the trial, defendant moved to dismiss the claim regarding the allegations of excessive force "based on all the proof" (T:172). The Court reserved decision on the motion (id.).

Analysis

Correction officers may, under certain circumstances, use physical force where the officer "reasonably believes that the physical force to be used is reasonably necessary . . . to enforce compliance with a lawful direction" (7 NYCRR 251-1.2 [d]); however "only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]). The Court's determination of whether the use of force was excessive is in large measure determined by the credibility of the witnesses (see Shirvanion v State of New York, 64 AD3d 1113 [3d Dept 2009] [deference accorded to trial court's findings of excessive force where determination was based largely on credibility]; (Wester v State of New York, 247 AD2d 468 [2d Dept 1998] [great weight should be accorded trial Court's determinations where issue of excessive force rests upon resolution of [*5]issues of credibility and assessment of weight of evidence]).

Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant's detailed recitation of the facts as they occurred on February 17, 2013 was credible and forthright. By contrast, the testimony of Correction Officer Willson was not compelling. Willson purportedly lacked any recollection of the many details about which he was questioned and his recollection as to the other facts was self-described as vague. Additionally, his testimony was self-serving and conclusory with regard to the allegations of excessive force employed by Willson and other correction officers.

The Court finds that the sum of the credible evidence, along with the photographs of claimant and the reports detailing claimant's injuries, leads the Court to conclude that the use of physical force upon claimant was excessive. Specifically, the Court finds that the evidence was sufficient to establish that claimant, who was noted to be non-combative after he had been forced to the ground by Correction Officer Willson, was the victim of excessive force by more than one correction officer on February 17, 2013 (see Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]). Accordingly, the Court finds the State to be 100 percent liable on the cause of action alleging excessive force.

The Court reaches a different conclusion on the cause of action of wrongful confinement, as set forth below.

It is well established that the State is accorded absolute immunity for the actions of its employees involved in the investigation and prosecution of disciplinary charges brought against inmates in a correctional facility and for the actions of the Hearing Officer charged with presiding over and reviewing such matters. This immunity covers the aforenoted discretionary conduct due to its quasi-judicial nature, even if that discretion was erroneously exercised or the findings were subsequently overturned (see Arteaga v State of New York, 72 NY2d 212 [1988]; Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]). Absolute immunity may be lost, however, if the State acted in contravention of a governing rule or regulation which caused claimant to suffer actual prejudice or a deprivation of his due process rights (see Davidson v State of New York, 66 AD3d 1089 [3d Dept 2009] [absent a showing of actual prejudice, a failure to comply with regulatory provisions in conducting a disciplinary hearing did not eliminate the State's cloak of immunity]).

In this matter, the hearing officer's disposition was reversed pursuant to the superintendent's "discretionary review" (Ex. 14). There has been no proof offered that the reversal of the hearing officer's disposition was based upon the State's violation of any governing rule or regulation which caused claimant to suffer actual prejudice or a deprivation of his due process rights (see Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]). Thus, while claimant maintains his innocence, he has failed to establish any legally cognizable basis for finding that he was wrongfully confined (see Matter of Jones v Prack, 114 AD3d 985, 985 [3d Dept 2014]; Matter of Murrell v Dubray, 47 AD3d 718, 718 [2d Dept 2008]).

Accordingly, defendant's motion to dismiss, made at the conclusion of the trial, is now GRANTED as to the cause of action of wrongful confinement (see Bottom v State of New York, 142 AD3d 1314, 1316 [4th Dept 2016]; Moustakos v State of New York, 133 AD3d 1268, 1270 [4th Dept 2015]). Additionally, all motions not previously ruled upon are DENIED

LET INTERLOCUTORY JUDGMENT BE ENTERED in favor of claimant on the issue [*6]of liability for the injuries that claimant sustained as a result of the correction officers' use of excessive force. A trial on the issue of damages will be scheduled as soon as practicable.

Dated: February 19, 2019

White Plains, New York

Hon. Walter Rivera Footnotes

Footnote 1: Due to claimant's deportation to Guyana following his release from prison, a notary in Guyana administered the oath to claimant on the record and the notary's identification card and a commission by the President of the Republic of Guyana regarding the notary's powers were marked as Court Exhibit 1. The arguments made by defense counsel in the State's post-trial memorandum regarding the notary's qualifications are of no moment as defense counsel stipulated to the procedure on the record. The stipulation was put on the record by the Court as follows: "[c]ounsel for the parties have stipulated that Claimant will be sworn in in Guyana by a notary from that country subject to the notary providing to the Court a certificate, confirming his authority to take an oath - - or to administer an oath to the Claimant in Guyana" (T:7, Court Ex. 1).

Footnote 2: References to the trial transcript are preceded by the letter "T."