Chisholmv.State

New York State Court of ClaimsDec 27, 2018
# 2018-028-006 (N.Y. Ct. Cl. Dec. 27, 2018)

# 2018-028-006 Claim No. 124497

12-27-2018

CHRISTOPHER CHISHOLM v. THE STATE OF NEW YORK

CHRISTOPHER CHISHOLM, PRO SE HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Glenn King, Esq. Assistant Attorney General and Paul F. Cagino, Esq. Assistant Attorney General


Synopsis

Trial of a claim for excessive force in which claimant alleges he was assaulted by multiple correction officers.

Case information

Defendant(s):

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Cross-motion number(s):

Judge:

Signature date:

Official citation:

Appellate results:

See also (multicaptioned case)


UID:

2018-028-006

Claimant(s):

CHRISTOPHER CHISHOLM

Claimant short name:

CHISHOLM

Footnote (claimant name) :

THE STATE OF NEW YORK

Footnote (defendant name) :

124497

Motion number(s):

RICHARD E. SISE

Claimant's attorney:

CHRISTOPHER CHISHOLM, PRO SE

Defendant's attorney:

HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Glenn King, Esq. Assistant Attorney General and Paul F. Cagino, Esq. Assistant Attorney General

Third-party defendant's attorney:

December 27, 2018

City:

Albany

Comments:


Decision

This is the matter of Christopher Chisholm v The State of New York. The trial was heard on September 28, 2017 and on May 18, 2018 at Clinton Correctional Facility. Claimant seeks damages for the injuries he sustained during his incarceration at Clinton Correctional Facility ("Clinton") when, on April 4, 2014, corrections' officers allegedly assaulted Claimant during a strip frisk.

On April 4, 2014 at approximately 3:00 pm, Claimant had just finished a visit with his girlfriend, whom he was scheduled to marry on the following day, when he was subject to a routine strip frisk conducted in a room near the visiting room. Claimant was shackled and the area supervisor, Sergeant Sweeney, was contacted. Sgt. Sweeney then directed CO Jaquish and CO Crusie to assist in the escort of Claimant to the infirmary frisk room on the first floor. Claimant testified that Sgt. Sweeney approached him and specifically said, "Give me the drugs or I'm gonna beat it out of you." Claimant recalled responding that he did not have any drugs, he did not do drugs and that he was getting married the next day. To this, Sgt. Sweeney replied, "If I can help it, you're not getting married!" Claimant then stated that when he arrived at the infirmary, he was ordered to face the wall. Next, Claimant testified that the officers removed the mechanical restraints in order to conduct the strip frisk. According to Claimant, while he stood completely naked, he was suddenly struck at the base of the neck and crashed to the floor.

Claimant testified, that as he lay on the floor, he was rushed by approximately five to six officers. Claimant recalled two officers were at his feet, two officers stood behind him kneeing his back, and two officers were near his head. According to Claimant the officers kicked and stomped on him. Claimant testified that he complied when the officers instructed him to lie on his stomach and to put his hands behind his back because he believed that would end the assault. Nevertheless, Claimant testified that the officers continued to stomp and kick him even though he was naked, handcuffed, and had been compliant. Then, Claimant stated that CO Jaquish stood over him, grabbed his head by the hair, and hit him in the face. Claimant then heard

Sgt. Sweeney react by saying, "No, no! Not the face!" In response, Claimant testified that CO Jaquish beat his head into the floor. Claimant reported he then lost consciousness.

When Claimant regained consciousness, he recalled he was on the floor handcuffed in his boxer shorts and the assault continued. Claimant testified as he lay on his side an officer was stomping his right leg. Claimant stated that CO Jaquish then stood over him and said, "You Velcro 'N'.", as he proceeded to tear Claimant's dread's from his scalp. Meanwhile, according to Claimant, the other officers continued to kick and stomp him. Claimant further testified that eventually the officers lifted Claimant and dragged him out of the strip frisk room to a nearby room. Claimant estimated that the assault lasted approximately eight to ten minutes.

When testifying, Claimant related that corrections' officers used the full racial epithet. The Court has chosen to substitute the initial "N".

Upon entering this new room, Claimant recalled he was put into a corner facing the wall. Claimant had observed multiple officers in the room and a video camera. An Office Mason came to him and asked, "Do you want to hit me?" Claimant remained silent. This corrections' officer continued to taunt the Claimant by stating, "It wouldn't be the first time I was punched in the face by a 'N'." Claimant testified that thereafter a different officer informed him that the nurse would ask a few questions and advised him to answer the questions correctly because the video camera had an "off" button. Claimant testified that he had interpreted the officer's instructions to answer the questions "correctly" to mean that Claimant should not claim any injuries. Claimant also testified that when he heard a voice inquiring if he had any injuries, he replied "yes", and then his head was rammed into the wall. After that, Claimant testified that he was dragged out of that room back into the room where he had been assaulted earlier. There he was further assaulted. During this interaction, Claimant testified that the officers squeezed his genitals. After some time, Claimant was again lifted to his feet and the officers informed him that they would try the questions again.

Claimant testified that after the officers brought him back into the room with the video camera, the nurse asked a second time if he had any injuries. This time, Claimant stated that he did not have any injuries.

Photographs of Claimant's injuries to his right wrist, lower back, right leg, and right scalp were received into evidence along with Claimant's medical records acknowledging a pre-existing injury to the right leg. The Use of Force Report states Claimant was seen by a nurse.

According to Claimant, he experienced bruising on his lower back and lacerations on the wrist. Claimant testified that where his hair was ripped out of his scalp there was bruising and scabbing at the time; and to the present time the hair has not grown back. Claimant also testified that having his hair ripped out and suffering from hair loss was a traumatic experience for him spiritually as a Rastafarian. He explained that in this religion, one's hair is a spiritual connection to one's God. He testified that his connection to his God was denied when his hair was ripped from his head. Further, Claimant testified that his right leg was bruised and he continues to feel pain and numbness to the present time. Claimant acknowledged that his right leg had been previously injured in a car accident and asserts that the assault aggravated that pre-existing condition.

Defendant produced testimony by three corrections' officers who denied that they assaulted Claimant. One of the officers testified that Claimant had struck him across the face thereby initiating any use of force by the officers. Namely, CO Jaquish testified that Claimant stated very loudly that he was "not going to a fucking dry cell" and then Claimant spun around to the left and struck him in the left side of his face with Claimant's right fist. CO Jaquish also testified at an earlier time that he was standing behind Claimant waiting for Claimant to hand him a shirt, when Claimant spun and struck the left side of his face. Additionally, CO Jaquish testified that Sgt. Sweeney was not in the room at the time, but outside the door attending to other matters. According to the Unusual Incident Report, CO Jaquish had a swollen right knee as well as a swollen and red right cheek.

The other two officers testified that they exercised only the force they believed necessary to restrain Claimant after their fellow officer had been struck and neither officer reported any injury. Specifically, CO Tamer testified that he delivered strikes to Claimant's back area, while CO Crusie testified that he placed Claimant in a bear hug hold after CO Jaquish fell back into Sgt. Sweeney after getting hit. CO Tamer also testified that he was the officer who eventually shackled Claimant.

In situations involving inmate allegations of excessive force by a corrections' officer, such as here, Claimant has the burden of proving his case by a preponderance of the credible evidence. The credibility of the witnesses is often the dispositive factor in cases of alleged excessive force (Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]). The Court must assess the witnesses' testimony and determine whether it was necessary for the corrections' officers to use force against Claimant, and if so, whether the force used was excessive or unreasonable under the circumstances (Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]).

The testimony presents conflicting versions of what occurred during the strip frisk and afterward. In Claimant's version the force used was unprovoked and excessive. In the version offered by the State, force was used only to restrain Claimant and was reasonable under the circumstances. Liability, or the absence of it, depends on crediting one version rather than the other.

Claimant testified that multiple corrections' officers kicked him in the back and stomped on his leg before and after Claimant's hands were shackled behind his back by CO Tamer. As a result, he sustained contusions on his lower back and right leg and experienced pain. Additionally, Claimant's wrists were cut by the mechanical restraints. Further, Claimant testified that CO Jaquish tore out his dreadlocks, resulting in the physical injury of scabbing and hair loss,

as well as the emotional and psychological injury of a denial of his connection to his God as a Rastafarian. Finally, according to Claimant, unless he denied injury further assault by the corrections' officers would continue. The Use of Force Report prepared as a result of this incident contains a "medical report" regarding Claimant. The report states: "Viewed in shorts. Denies injury. None noted."

The medical report makes it clear that there was no apparent injury to Claimant. Nevertheless, the photographs the Court received into evidence demonstrate plainly visible injuries that corroborate Claimant's version of the facts. The testimony of the three corrections' officers was silent regarding Claimant's injuries depicted in the photographs. Thus, absent any additional evidence that Claimant sustained these injuries after the April 4, 2014 incident in a dry cell or the special housing unit, the photographs of Claimant taken fourteen days later show contusions, abrasions, and hair loss that comport with Claimant's account of the incident.

In examining CO Jaquish's testimony there are some aspects of his story which appear inconsistent. First, CO Jaquish testified that he was in the process of conducting the strip frisk, waiting for Claimant to hand him a shirt, when Claimant struck him. Later, CO Jaquish testified that Claimant spontaneously yelled out, turned away from the wall, and struck CO Jaquish before the strip frisk had commenced. Moreover, CO Jaquish's testimony places Sgt. Sweeney outside of the frisk room, yet CO Crusie's testimony indicates that when CO Jaquish was struck he fell backward into Sgt. Sweeney inside the room. Further, CO Jaquish testified that Claimant struck on the left side of his face. Yet, the Unusual Incident Report relates Jaquish as having a swollen right cheek. These aspects of CO Jaquish's version of the events cast doubt upon the allegation that Claimant struck him first and serve to undermine the believability of his testimony regarding the other circumstances of the incident.

In addition, Claimant, prior to this physical altercation with the corrections' officers had a visit with his fiancee with whom he was to marry the following day. Claimant's argument of 'why would I start a fight with the corrections' officers the day before my wedding' is a common sense argument which is very compelling. Claimant knew that any violation of institutional rules would cost him his wedding which this altercation ultimately did. Based upon the foregoing, the testimony of Claimant is credited and the Court finds that the force employed by corrections' officers was unnecessary and excessive rendering the defendant liable for his injuries.

Claimant failed to offer competent proof of any permanent injuries other than a partial loss of hair. Nevertheless, he testified to having been savagely attacked by multiple individuals on two occasions and to experiencing pain from his injuries over a long period of time. He was kicked and punched while shackled and naked. His head was pounded into the floor and his hair viscously ripped from his scalp. He was verbally demeaned and insulted and as a consequence of the incident, lost the opportunity to marry including the comfort and support that could bring. For all of his past pain and suffering, both physical and emotional, and for his permanent hair loss, Claimant is awarded $15,000 in damages with interest from the date of this decision. The Chief Clerk is directed to enter judgment in accordance herewith.

When the Court observed the right side of Claimant's scalp at the time of his direct testimony, i.e., on September 28, 2017, it observed areas of hair loss. Given the testimony by Claimant regarding his hair being torn from his scalp, the photos of his scalp taken approximately two weeks after the assault, and nearly three and one half years having passed since the assault, the Court has concluded that this hair loss is permanent in nature. --------

To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

December 27, 2018

Albany, New York

RICHARD E. SISE

Judge of the Court of Claims