Alioune Driver, Claimant, v. The State of New York, Defendant. (2025)

Claimant Alioune Driver, an incarcerated individual, brings this action seeking to recover damages resulting from an allegedly excessive use of force against him by multiple officers of the New York State Department of Corrections and Community Supervision (DOCCS) at Green Haven Correctional Facility, and for defendant's negligence, including negligent hiring, supervision, and training.¹ The claim alleges that, during the course of a strip frisk on February 1, 2019, claimant was beaten by the corrections officers and one of them used oleoresin capsicum spray ("OC spray" or "pepper spray") on him, in violation of the applicable DOCCS policies governing the use of force. After considering the testimony and documentary evidence received at the liability trial, the parties' arguments at trial and in their post-trial submissions, as well as the applicable law, the Court finds that defendant is 100% liable for the use of excessive force against claimant on February 1, 2019.

Trial Testimony  ²

Claimant testified on his own behalf and read portions of the deposition testimony of Officer Travis Rowland, one of the officers involved in the use of force, into the record.³ Defendant called Officer Jose Morel and read additional portions of the deposition transcript of Officer Rowland into the record. In addition, upon stipulation of the parties, the Court received claimant's Exhibits 1, 3, 4, 6, 7, 12, 13, 14, and 15, as well as defendant's Exhibits A, B, E, and F into evidence. Further, over claimant's objection, the Court received defendant's Exhibits C and D into evidence.⁴

Claimant testified that he was incarcerated following his conviction for murder in 2014 and subsequently transferred to Green Haven in 2017. He further testified that he had had several "altercations" and "verbal confrontations" with Officer Morel in the weeks leading up to the incident in this matter (Trial Transcript, Vol 1 ["T.1"], at 19). During those interactions, claimant felt uncomfortable and threatened by Morel. According to claimant, Morel had put him on the wall randomly for pat frisks and spoke aggressively to him. During one of the interactions, claimant testified that Morel stated he "will make an example out of" claimant (id. at 20); another time Morel told claimant that he "wish[ed] [he] had five minutes with" claimant (id. at 21), which claimant interpreted as threats. Claimant calmly told Morel that he would not be able to do anything to claimant and denied speaking or acting aggressively towards Morel during their prior interactions.

On February 1, 2019, the date of the underlying incident, claimant spent the day reviewing legal research in connection with the appeal of his criminal conviction. He ate dinner around 4:00 p.m. and intended to go outside for recreation later that evening. Despite the cold weather that day, claimant testified that he was not wearing a jacket to go outside. Instead, he testified that he was wearing several layers of clothing on his upper body—a tank top, a regular T-shirt, two long-sleeve shirts, and a sweater—and "thermals" under his state-issued sweatpants (id. at 25-26). As he headed to the yard for recreation with other incarcerated individuals from his unit, claimant testified that Morel, one of the officers posted in the corridor, was looking at him. Morel told claimant to "come here, put [his] hands on the wall, [and] don't f—ing move" (id. at 27). After claimant immediately complied with the order, Morel told him to "not move a muscle or he would f— [him] up" (id. at 27). Morel also sarcastically told the other officers that claimant was the "tough guy" (id. at 28). According to claimant, Morel then conducted a pat frisk of claimant, while attempting to provoke him and make him move or flinch. During the pat frisk, claimant testified that his hands were spread and placed on the wall above his shoulders and his legs were also spread. According to claimant, the position is difficult to maintain because it required him to lean on the wall at an angle, and his arms and shoulders would get tired. Additionally, Morel ordered claimant to lift each of his legs during the pat frisk. Claimant explained that it was hard to maintain his balance during the frisk, and that Morel continued to make threats while conducting the frisk and complained that claimant was moving too much. Claimant testified that he did not have any marijuana on him that day and that no contraband was found on him during the pat frisk.

After the pat frisk was completed, Morel told claimant he was "going back to [his] F'ing cell" (id. at 31). When claimant asked why, Morel told him he was going with him because he "wanted to ask questions" (id. at 34). Claimant testified that he complied and did not resist when Morel handcuffed him. Morel, along with Officer Rowland and two sergeants, took claimant down a corridor to a room. Claimant stated that all four officers accompanied him inside the room and closed the door. Once inside, claimant was uncuffed and directed to remove his clothing. Although claimant was feeling uncomfortable, he complied after being threatened and started removing the clothing from his upper body. He had to keep facing forward and, as he removed each item of clothing, he handed it back to the officers who would then check it; no contraband was found in any of the articles of clothing. Claimant explained that, after removing and handing over each item of clothing, he would place his hands on the wall again until directed to remove the next item. Once he had removed all of the clothing from his upper body, claimant was directed to remove the clothing from his lower body. He pleaded with one of the sergeants to stop the strip frisk who told him to continue removing his clothing. After he had removed everything except his underwear, claimant told the sergeant he was "being harassed" (id. at 38). In response, the sergeant hit claimant's thigh with a baton. When claimant was struck by the sergeant, his hands were on the wall. Claimant testified that he did not "swing at" the sergeant or any other officer (id. at 39), and did not do anything "physically aggressive" against anyone at any time during the frisk (id. at 40). Nevertheless, claimant was immediately handcuffed again by Morel.

At that point, while claimant was handcuffed and his chest and face were "on the wall" (id.), Morel forcibly tried to remove claimant's underwear. Claimant testified that he "had one finger like looped around my waistband" (id.), pleading with one of the sergeants and telling him he felt violated. According to claimant, the sergeant thought he was being disobedient and told the officers to "slam [claimant] on the floor . . . on [his] head," even though he was handcuffed (id. at 41). Claimant stated that Morel then slammed claimant to the floor, onto his stomach and left side. As a result of being thrown down, claimant struck his chin on the floor—an impact that claimant described "shook [his] brain" and caused him significant shoulder pain given the position of his arms handcuffed behind him (id.). Once on the floor, claimant testified that Rowland "dropped on my back" with his knee (id. at 43), while other officers kicked and punched claimant on his back, legs, and arms numerous times. Claimant described Rowland as "heavyset," and that when he suddenly knelt on claimant's back, it "kind of crushed [his] face down on the floor" and he "felt a sharp pain" (id.). Claimant further testified that he did not attempt to kick back or otherwise act in a physically aggressive manner toward the attacking officers.

The officers again attempted to remove claimant's underwear while he was on the ground. As he continued to struggle, claimant testified that the officers held him down by his neck, "pinning [him] to the floor," and sprayed his right eye with OC spray at "point blank range" (id. at 43-44). Claimant explained that the officer deploying the OC spray pressed the tip of the canister against claimant's eyelids, digging in and applying a twisting pressure to try and open claimant's eye before spraying. Claimant stated that "when [the officer] felt that he was getting my eyelid open[,] that's when he sprayed the mace" (id. at 44). After being sprayed in his right eye, claimant heard the sergeant instruct the officers to spray claimant's left eye, which they did—"only worse," according to claimant (id.). Claimant testified that Rowland then shifted his position on claimant's back and the officers grabbed his leg, making another attempt to remove his underwear. Once the officers had removed it, they spread his buttocks and claimant felt four fingers "swiping up" between his buttocks and then the pressure of a finger in his anus (id. at 45). Claimant testified that no contraband was found in his anus or buttocks, and also denied having any contraband or drug paraphernalia on his person during the strip frisk. Moreover, claimant's cell was frisked following the incident and no contraband was found there, as explained in the report of the officer who conducted the search (see Exh C, at 26).

Claimant described feeling "weak" from the effects of the OC spray and the pain, like he "was going to die" (T.1, at 46). The officers left claimant lying on the floor for four or five minutes afterwards, and he heard them speaking to each other and laughing. He testified that he heard Rowland say that he was not going to "cover up for the other officers" (id.). The officers finally picked claimant up and pulled up his underwear since he was still handcuffed. Claimant also stated that, while he was being escorted to the infirmary, he was punched "in [his] testicles twice" by Rowland and fell. Rowland also "bent [claimant's] arm up" with the handcuffs and told him not to report any injuries or that he "would receive . . . worse abuse," which claimant understood to mean that Rowland "would beat [claimant] up even more" (id. at 55). Claimant had his eyes closed and did not respond; he explained that he "stayed quiet" because he "didn't want to feel any more pain" (id.). Claimant was decontaminated in the infirmary with running water and soap (see Exh B), and did not report the incident or any injuries at that time. In addition, according to a report contained in the unusual incident packet, claimant was subjected to another strip frisk when he was taken to the infirmary, and no contraband was found on claimant's person at that time (see Exh C, at 13).

Claimant was thereafter taken to the Special Housing Unit, where he eventually started to complain to corrections and medical staff about eye and vision issues. A few days later, claimant was taken back to the infirmary where he remained for approximately two weeks. During his stay in the infirmary, claimant testified that Rowland came to see him and "was basically trying to cover for himself" (T.1, at 56). Claimant stated that he recalled the conversation "verbatim" (id. at 57). According to claimant, Rowland told him during their conversation that the incident was not "intentional," and that he "didn't mean for it to go that far" (id.). He also told claimant that "he was only doing his job" and it was not his idea (id. at 56-57).

Since the incident, claimant testified that he has continued to have problems with his eye, shoulder, and lower back. Other than the underlying incident, claimant stated that he was never involved in any other prison assaults or altercations. Claimant also testified that, other than the present claim, he has never commenced any other claims against the State during his incarceration.

On cross-examination, claimant confirmed his direct testimony that Morel had threatened claimant more than once before February 1, 2019, but conceded that he had not filed any prior complaints against Morel to DOCCS regarding those threats. As to the alleged assault, claimant identified the two officers that were trying to take off his underwear as Officers Rowland and Morel, and stated that each of them had their hands on him. Claimant acknowledged—as he did on direct—that he had tried to hold his underwear up by hooking his fingers in the waistband while these two officers were trying to remove the underwear. But claimant later explained on re-direct examination that the reason that he was resisting having his underwear pulled down was because he had been molested as a child by his grandmother's boyfriend, and the incident was bringing back a lot of memories of what had happened to him.

Claimant was also asked on cross-examination about the grievance he filed following the incident, on February 12, 2019, which alleged that he was assaulted by the officers and that they also planted contraband on him (see also Exh D, at 2-8). Claimant's description of the incident in his grievance corresponded to his testimony. In it, claimant similarly described how he was picked out for the pat frisk; the specific threats and other statements initially made by Morel to claimant; being hit once with a baton by a sergeant during the strip frisk; his head being slammed onto the floor, and being kicked and punched by more than one officer while laying on the ground on his stomach, with his hands handcuffed behind his back; Rowland dropping with his knee onto claimant's back; holding onto his underwear "for dear life" out of "fear[ ] that they were trying to rape [him];" and how Rowland and Morel held his head down and forced the pepper spray canister first into his right eye, "applying pressure before spraying to specifically spray my eyeball" and then forcing the canister in his left eye even harder (id. at 2). The grievance also included a reference by claimant to his prior run-ins with Morel. Claimant conceded, however, that his grievance did not detail his conversation with Rowland in the infirmary.

According to claimant, he first learned that he was being charged with disciplinary violations when he received a misbehavior report the day after the incident. The misbehavior report charged claimant with rule violations for drug and contraband possession, smuggling, refusing a direct order, and violent conduct. The misbehavior report was authored by Morel who wrote that, during the strip frisk, an "unknown object," described as a "glove finger with a green leafy substance in it," fell from claimant's buttocks to the floor (Exh C, at 15). Morel stated in the misbehavior report that he recovered the object and it later tested positive for marijuana. Photographs of this object depict what appears to be the finger of a pink latex or plastic glove and several small pieces of a green leafy substance (see Exh 7).

Finally, claimant testified that, although he had previously been provided disposable gloves to perform his job duties while working in the prison as a porter and in food service, he was not working in either of those jobs at the time of the alleged assault and did not otherwise have access to disposable gloves on February 1, 2019. Claimant also testified that incarcerated individuals are not allowed to have colored gloves. He further explained that the disposable gloves provided to incarcerated individuals working in the kitchens were clear, and that incarcerated individuals were not provided pink gloves when working as porters.

At the time of trial, Officer Rowland was no longer employed by defendant and the parties read portions of his deposition testimony into evidence. Claimant relied upon the following testimony in his case-in-chief:

After graduation from the academy, Rowland was assigned to Green Haven. He was six feet, three inches tall and weighed approximately 315 pounds in February 2019, and acknowledged that he had been involved in a use-of-force incident with claimant on February 1 of that year. On that date, Rowland had been directed to assist with the incarcerated individuals going to the yard. Rowland was assigned as an auxiliary, or extra, officer and initially was just observing other officers conducting the pat frisks. According to Rowland, he thereafter observed Sergeant Degraff and Morel escorting claimant to the strip frisk area. Although Rowland's assistance was not directly requested, he decided to join the escort, which he described as uneventful. When they arrived, Rowland testified that Morel and Degraff took claimant inside the strip frisk room while Rowland "stayed by the door" which served as the entrance to the strip frisk area (id. at 87-88). Rowland explained that the room contained curtained-off areas for privacy during strip frisks and that, in consideration of claimant's privacy, Rowland continued to "st[and] at the door"—which he testified remained open (id. at 88). Rowland further testified that Morel was conducting the strip frisk of claimant. Specifically, Rowland stated that Morel was taking each item of clothing received from claimant "and hanging them up or handing them back to be hung up" on one of the curtain bars (id.). According to Rowland, while Morel was conducting the frisk, Rowland was "not sitting around paying attention to" every detail (id. at 88-89). Rather, Rowland testified that he was "barely in the room" and was often "facing away from the strip frisk" and "sp[eaking] to people" as they walked by outside (id. at 89).

Initially, Rowland described the strip frisk as "pretty routine" (id.). But then he heard a "commotion" and "ran over" to where the strip frisk was being performed, and saw Morel with "his arms around" claimant, who was "naked" (id. at 89). According to Rowland, both Morel and claimant were standing "up against the wall" and Morel had claimant in a bear hug from behind (id. at 90). Rowland gave claimant an order to stop resisting, but he continued to struggle and attempt to break out of Morel's hold. Rowland then administered the OC spray while "Morel was still behind [claimant] holding him in the bear hug" and the two men were "still standing" (id. at 91). Rowland testified that because claimant was facing away from him, Rowland had to bring his hand over and in front of claimant to get the OC spray directly into his face. According to Rowland, the nozzle of the spray canister was "[a]pproximately four feet or slightly less" from claimant's face when Rowland sprayed him (id. at 91). Although Rowland conceded the two men "were close," Rowland denied that the nozzle was closer than four feet to claimant or placed right up against claimant's face because that would cause unnecessary pain (id.). Additionally, Rowland conceded that placing the nozzle against claimant's face would violate DOCCS policy (see id. at 92). After he administered the OC spray, Rowland observed that claimant was in discomfort. Claimant became compliant after the spray was administered and Morel then placed mechanical restraints on claimant. In addition, Rowland confirmed that Sergeant Degraff had a baton with him during the incident, but Rowland was not sure whether Morel had one.

As to the purported item of contraband, Rowland testified that, after he administered the OC spray, he saw a "small white object" on the floor further "behind" where claimant and Morel were [standing] "toward the back" (id. at 92). According to Rowland, the object was round. He denied seeing any leafy substance in the strip frisk area.

Finally, a few days after the incident, Rowland saw claimant again in the infirmary. As stated in the portion of Rowland's deposition transcript read into the record by defendant, Rowland saw and spoke with claimant several times in the infirmary over the course of the following two or three weeks (see T.2, at 8). Rowland also fed claimant breakfast and lunch in the infirmary, and let him out for recreation every day (see id.).

At the conclusion of claimant's case, the State called Officer Morel. Morel has been a corrections officer since 2012 and testified he was working as a resource officer at Green Haven on February 1, 2019. As a resource officer, Morel did not have a specific assignment, but would be given his responsibilities each day when he arrived for work. He was five feet, eight inches tall and weighed approximately 260 pounds in February 2019. During his time in the academy, Morel received basic training in conducting pat frisks and strip frisks, as well as in the use of force. According to Morel, the purpose of a pat frisk is to check for contraband, including weapons and drugs. Morel further testified that the use of force is appropriate when an officer deems either himself or an incarcerated individual to be in danger. He also explained that there are different levels of force that officers are trained to use in the course of their duties. According to Morel, the lowest level of force appropriate for the incident with claimant that took place on February 1, 2019 was the administration of OC spray.

On the date of the incident, Morel was assigned to conduct pat frisks in B and C corridor, in an area specifically set up for that purpose. According to Morel, some incarcerated individuals are randomly selected for pat frisks while they are lined up to go to the yard. Morel testified that he was not responsible for selecting which incarcerated individuals would be pat frisked on that date and time. Rather, his responsibility was just to conduct pat frisks of the incarcerated individuals who had been chosen. Morel testified that he did not select claimant to be pulled out for a pat frisk, but Morel performed claimant's pat frisk after claimant was called out by another officer. As claimant came forward, Morel directed claimant to empty his pockets and place his hands "high and flat" on the wall (T.1, at 104). Morel also directed claimant to take a couple steps backwards once his hands were on the wall. Morel testified that this position would intentionally take away claimant's balance. He conceded that claimant complied with his directions during the pat frisk. When Morel began the pat frisk, Morel observed that claimant's clothing was "very bulky" and that he was wearing too many layers. Morel testified that he counted "approximately six" layers (id. at 104). Because of the multiple layers, Morel stated that he felt bulges throughout claimant's clothing but was unable to conduct a thorough pat frisk of claimant. Morel thus informed a sergeant that he was unable to conduct the pat frisk properly and the sergeant directed Morel to place claimant in handcuffs and escort him to the strip frisk room.

Morel, along with the area supervisor, Sergeant Degraff, and Officer Rowland, escorted claimant to the strip frisk room. According to Morel, all four of the men entered the room. Morel testified that the strip frisk room is divided into separate areas by two hanging shower curtains. Morel was the only one in the curtained off area with claimant initially. After removing the handcuffs, Morel ordered claimant to face and place his hands on the wall. Morel then instructed claimant to begin removing his clothing layer by layer, starting with his "sweaters," and hand them back to Morel (id. at 107). As claimant handed him items of clothing, Morel was hanging them on the bar behind him where Rowland was standing. According to Morel, Rowland removed each item of clothing from the bar and checked it (see id. at 154-155). Morel testified that claimant removed multiple sweaters and "approximately six" layers of pants (id. at 107-108). Claimant was hesitant to remove his underwear and Morel gave him multiple orders to do so. After claimant continued to refuse to take off his boxers, Morel testified that he "asked [claimant] to turn around" and face him and they "spoke about it," after which claimant complied and removed his underwear (id. at 108).

In describing what happened next, Morel testified that he instructed claimant to bend forward at the waist. When claimant did so, Morel saw something fall from claimant's buttocks. According to Morel, claimant dove toward the ground to recover the object. Morel grabbed claimant's upper body and ordered him to put his hands behind his back. When claimant refused to comply, Morel testified that Rowland administered OC spray to claimant. After Rowland sprayed him, claimant complied with the officers' directives and Morel was able to apply mechanical restraints. He then assisted claimant to his feet and the response team took over the situation. Regarding the object that had fallen to the floor, Morel testified that it was the fingertip of a disposable glove with a green leafy substance inside. When shown photographs of the object (see Exh E), Morel testified that it was what he saw fall to the floor during the strip frisk.

Morel did not recall claimant filing a grievance regarding the incident, but denied punching, kicking, or hitting claimant during the frisk. Morel testified that the only force he used was a body hold and applying the mechanical restraints. Morel also denied ever threatening claimant, or having any fights or arguments with claimant, prior to February 1, 2019. In connection with the incident, Morel submitted a use-of-force memorandum (see Exh C, at 33-34). Notably, the use-of-force memorandum did not list Segreant Degraff as being present during the incident despite Morel's testimony that he was in the room. In addition, the memorandum states that Morel was not injured during the incident. Morel was not disciplined for his use of force during the strip frisk on February 1, 2019. Additionally, he was not disciplined for any other behavior during the incident, including—as claimant has alleged—for planting contraband on claimant during the strip frisk.

Regarding the disposable gloves provided to officers and incarcerated individuals, Morel testified that he has seen different color gloves during his employment with DOCCS, including blue, pink, white, and clear gloves. He denied that DOCCS only purchased a specific color of gloves, explaining that DOCCS takes "whatever's available at the time" (T.1, at 124). According to him, incarcerated individuals were allowed to request gloves if they were working as porters or serving food. Morel further testified that incarcerated individuals could also request gloves if they were cleaning their cells. In his experience, Morel testified that officers generally provided disposable gloves to incarcerated individuals when they requested them.

On cross-examination, Morel was asked further about certain details of the pat frisk in the corridor, as well as the strip frisk. Morel first stated that his practice in performing pat frisks is to have incarcerated individuals empty their pockets before approaching the wall to be frisked. He further testified that, on the date at issue here, claimant's pockets were emptied before he approached the wall for the pat frisk. However, Morel agreed that during his prior deposition testimony, he had testified that when he conducts pat frisks, he would put his hands in the incarcerated person's pockets and empty them himself. Regarding the strip search, Morel testified on cross-examination that he did not close the door to the strip frisk room after the four officers entered it with claimant. However, Morel agreed that, when asked during his deposition whether he had closed the door to the room, he responded in the affirmative with "yes" (id. at 161).

As to Rowland's presence and role in the strip frisk, Morel confirmed that, as claimant removed each item of his clothing and handed it back, Morel hung the item on the bar behind him—without checking it—and then Rowland "took it off the bar" (id. at 153) because it was Rowland's job to "check the clothing" (id. at 155). Morel agreed that Rowland "played a critical role in [the] search that day" (id.), and stated he would be "surprise[d] . . . to hear that Rowland testified he was at the doorway and wasn't touching any of the clothing" (id. at 156). In further describing his use of force during the strip frisk, Morel testified on cross-examination that he placed claimant in a bear hug from behind as claimant dove for the object that Morel saw fall from claimant's buttocks. While he was wrestling with claimant, Rowland approached them and administered OC spray from a distance of approximately four feet from claimant's face. Although Morel was hit with some of the OC spray, he testified that it does not "bother" him (id. at 159). Morel also testified that he was not wearing goggles or other eye protection at the time of the incident, and was not treated in the medical unit after being sprayed.

Morel was also asked about DOCCS' policy on the permitted dress code for incarcerated individuals at Green Haven, which was received in evidence (see Exh 15). Morel acknowledged that he was aware of the guidelines and that incarcerated individuals are limited in the number of layers of clothing they may wear. Specifically, Morel agreed that Section L of the policy provides that, during the winter months, they may wear one pair of long underwear or sweatpants under their state-issued green pants. Although Morel stated that claimant had four additional, unauthorized layers of clothing on his lower body in violation of the clothing policy, Morel did not charge him with such a violation in the misbehavior report Morel issued. Morel further conceded that he similarly did not document the number of layers of pants, or any other clothing that claimant was wearing, in any of Morel's other reports and memoranda that he completed following the incident (see Exh 1; Exh 3; Exh 6). Morel also testified that the basis for requesting authorization from Sergeant Degraff for a strip frisk of claimant was the presence of the multiple bulges in his clothing that Morel felt during the pat frisk, and not the specific number of layers of clothing that claimant was wearing. After the incident, Morel gave the object he recovered from the floor to an Officer Himmelstein. Although Himmelstein photographed the fingertip of the glove and its contents, Morel did not ask him to photograph the clothing claimant had been wearing prior to the strip frisk.

In connection with claimant's grievance following the incident, Morel and Rowland submitted separate "To/From" memoranda (Exh D, at 10-11). The statements contained in these memoranda are strikingly similar and significant portions of the statements are identical (id.). For example, in his memorandum, Morel stated "I have never harassed or threatened inmate Driver, or spoke to him unprofessionally" and, further, "I have never fabricated any information that I have reported, or planted any item of contraband on inmate Driver, or touched him inappropriately" (id. at 10). Almost verbatim, Rowland's memorandum states that "I have never witnessed anyone harass or threatened [sic] inmate Driver, or speak to him unprofessionally" and, further, "I have never fabricated any information that I have reported, or introduced any item of contraband on inmate Driver that he did not possess, or touched him inappropriately" (id. at 11). The memos of both Morel and Rowland stated that "[a]ny interaction between inmate Driver and me on 2/1/19 were reported in UI#19009-UOF#190041" (id. at 10-11).

Although Sergeant Degraff did not testify, several of his reports and memoranda pertaining to the incident were received into evidence. In his "To/From" memorandum contained in the unusual incident report, Degraff stated that he questioned claimant regarding the bulges Morel reported feeling (see Exh C). According to Degraff, claimant told him that he was wearing ten layers of clothing. Degraff thus authorized Morel to conduct a strip frisk of claimant. The description of the incident in Degraff's memorandum generally conforms to the testimony of Morel. Degraff also details a conversation he claims to have had with claimant in the infirmary following the incident where claimant admitted that he did not want the officers to recover the drugs. Claimant also reportedly told Degraff that the drugs were only for his personal use, but Degraff believed claimant was distributing drugs at Green Haven. Degraff also submitted an altered version of this memorandum consisting of only two paragraphs in connection with claimant's grievance regarding the incident (see Exh D). The language of the first paragraph is identical to his memorandum in the unusual incident report. The second paragraph is substantially the same but omits information regarding where Rowland was standing before he heard a commotion and responded. Indeed, the version of the memorandum contained in the unusual incident report packet stated that Rowland was on the other side of the curtain when he went to assist Morel. The version in the grievance packet also omits the remaining information contained in the memorandum contained in the unusual incident report materials, including Degraff's post-incident conversation with claimant. Additionally, another "To/From" memorandum submitted by Degraff in connection with the grievance states that Degraff authorized the strip frisk conducted by Morel (id. at 12). This memorandum states that a blue glove fell from claimant's buttocks during the strip frisk. The memorandum is otherwise substantially similar to the "To/From" memoranda submitted by Morel and Rowland to the extent that Degraff states that all of the applicable documentation was submitted in connection with the incident, the only force used during the incident was documented in connection with the unusual incident report, and the officers did not plant contraband on claimant during the strip frisk.

Findings of Fact & Conclusions of Law

It is well settled that the State may be held vicariously liable for intentional torts "committed by employees acting within the scope of their employment" (see Rivera v State of New York, 34 NY3d 383, 389 [2019]). "Battery is the unjustified touching of another person, without that person's consent, with the intent to cause a bodily contact that a reasonable person would find offensive; assault involves putting a person in fear of a battery" (id. [internal quotation marks omitted]; see also Bastein v Sotto, 299 AD2d 432, 433 [2d Dept 2002]). In state correctional facilities, DOCCS employees are generally authorized to use force in self-defense, to prevent injury to another person or property, maintain order, and enforce discipline, among other circumstances (see Correction Law § 137 [5]; 7 NYCRR 251-1.2 [d]; Rivera, 34 NY3d at 391). When it is necessary for corrections officers to use force, they may use "only such degree of force as is reasonably required" (see 7 NYCRR 251-1.2 [b]; see also McFadden v State of New York, 200 AD3d 1357, 1357 [3d Dept 2021]). Thus, to recover for assault and battery under these circumstances, a claimant must demonstrate that an officer's use of force was "unreasonable or excessive under the circumstances or in violation of [a] policy or procedure of defendant" (see McFadden, 200 AD3d at 1359 [internal quotation marks omitted]; see also Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]; Davis v State of New York, 203 AD2d 234 [2d Dept 1994]).

Claimant has the burden of proving his case by a fair preponderance of the credible evidence (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]; Weinberger v New York State Olympic Regional Dev. Auth., 133 AD3d 1006, 1007 [3d Dept 2015]). Thus, the Court, as trier of fact, must assess the evidence and the credibility of the witnesses and resolve any factual disputes to determine whether claimant met his burden to establish his claim (see Wester v State of New York, 247 AD2d 468, 468 [2d Dept 1998]; see also Janczylik v State of New York, 126 AD3d 1485, 1485 [4th Dept 2015]). In particular here, in order to determine whether the use of force was more than necessary under the circumstances, "the court's assessment of the credibility of the testimony, and the extent to which the other evidence bears on that assessment of credibility, is crucial" (see Barrington v State of New York, UID No. 2008-029-028 [Ct Cl, July 25, 2008] [Mignano, J.]; see also Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush, 57 AD3d at 1066).

As an initial matter, claimant argues, and defendant does not dispute, that the officers were acting within the scope of their employment during the entirety of the incident. The actions taken by the officers during the pat frisk and strip frisk of claimant, including the use of force and administration of OC spray, were foreseeable and natural incidents of their employment (cf. Rivera, 34 NY3d at 390). As discussed below, even though some of the officers' actions "crosse[d] the line of sanctioned conduct," none was so "gratuitous" or "completely divorced from the employer's interests" to render it outside the scope of employment (id. at 391; see Galloway v State of New York, 212 AD3d 965, 968 [3d Dept 2023]; Siriani v State of New York, 72 Misc 3d 1211[A] [Ct Cl 2021]).

After considering the testimony and documentary evidence received at trial, the Court finds that defendant is liable, to the extent indicated below, for its officers' use of excessive force during the strip frisk of claimant on February 1, 2019. Initially, the Court finds that the incident occurred in exactly the manner described by claimant at trial. Claimant spoke earnestly and was unwavering in his testimony regarding the incident, which the Court found to be articulate, credible, and compelling. Claimant did not embellish his account of the events that took place, which was also corroborated by claimant's description in his grievance, written shortly after the incident. On the other hand, Officer Morel's testimony lacked all credibility. His testimony was inconsistent with respect to material aspects of the incident and surrounding events, and often evasive. Morel's demeanor also undermined the trustworthiness of his testimony; at various times, he was defensive, hostile, obstructive, flippant, disrespectful, and seemingly unable to control his temper. Additionally, the nearly identical language used in the written reports and memoranda of each of the officers involved reflect significant collaboration among them in the preparation of their documents and, thus, the Court does not credit them.

With respect to which particular actions by the officers constituted excessive force, the Court first finds that the officers' conduct before claimant was handcuffed during the strip frisk—including Sergeant Degraff's use of a baton on claimant's leg—was not excessive. At the time of the pat frisk, claimant by his own admission was wearing excess layers of clothing and, not unexpectedly, Morel felt bulges during claimant's pat frisk. Thus, there was probable cause for the strip frisk authorized by Degraff. The testimony and documentary evidence shows that claimant was compliant and escorted to the strip frisk room without incident. It is also undisputed that claimant was initially compliant in removing his clothing during the strip frisk. In addition, claimant acknowledged that he was struck once with the baton and placed in mechanical restraints only after he refused to comply with the initial direct orders to remove his underwear.

However, claimant's testimony established that the force used by the officers after claimant was handcuffed during the strip frisk was excessive. Specifically, at Degraff's direction, Morel slammed claimant on the floor while attempting to remove his underwear, causing claimant's chin to strike the floor and result in significant head and shoulder pain. Claimant was punched and kicked by multiple officers while he was handcuffed and down on the ground and, when Rowland dropped his knee into claimant's back, it crushed claimant's face on the floor causing claimant to feel even more pain. Ultimately, when unable to remove claimant's underwear, Rowland gratuitously administered OC spray to claimant's eyes from point-blank range, prying open his eyelids to apply the spray directly into both of his eyes. Moreover, Rowland punched claimant twice in the groin for no apparent reason while he was being escorted—again, in handcuffs—to the infirmary. The fact that claimant did not initially report any injuries does not undermine this conclusion because the Court also credits claimant's testimony that he was threatened by Rowland with further abuse or retaliation if he did so. Indeed, claimant's subsequent admission to the infirmary for approximately two weeks supports the Court's finding that the assault occurred as recounted by claimant.

The evidence presented by defendant failed to rebut claimant's credible testimony. As noted above, Morel was not a credible witness, generally speaking. Notably, there were multiple inconsistencies between Morel's trial testimony and his deposition testimony about certain details of both the pat frisk and the strip frisk. For example, Morel testified at trial that the door to the strip frisk room remained open during the incident but, at his deposition, he had testified that he had closed the door to the room after he and the other four officers entered the room with claimant. In addition, Morel's testimony at trial that his practice when he conducts pat frisks is to direct incarcerated individuals to empty their own pockets before they approach the wall, and that claimant's pockets were emptied before he approached for the pat frisk on the date at issue conflicted with his deposition testimony that his practice is to reach into their pockets to empty them himself. More specifically, the Court did not credit Morel's testimony that he calmly spoke with claimant about the need to remove his underwear, after which claimant complied, and that the strip frisk proceeded without issue until an object purportedly fell to the floor from claimant's buttocks. Nor does the Court credit the testimony that the use of force by the officers occurred because claimant attempted to recover the object and refused to follow their orders. Moreover, Morel's testimony was inconsistent with the documentary evidence in certain key respects. Although Morel testified that claimant was wearing six layers of clothing on his lower body during the pat frisk, he did not include that information in his use-of-force report. Nor did he include the information in the misbehavior report prepared following the incident. In addition, despite agreeing that it was a violation of the facility's policies, Morel did not charge claimant with such a violation in the misbehavior report issued following the incident. In fact, Morel testified that the number of layers of pants was not important to him. On cross-examination, Morel also conceded that his testimony at trial regarding the number of layers was the first time he raised the issue.

In addition, neither Rowland's deposition testimony nor his report and memorandum corroborated Morel's version of events.⁵ First, Rowland's account that he was standing by the room's entrance during the strip frisk of claimant was wholly contradicted by Morel's testimony that Rowland was an integral part of the frisk, standing close behind Morel and removing the items of claimant's clothing that Morel was hanging on the curtain bar and searching them. Indeed, Morel stated at trial that he would be surprised to hear Rowland's account that he was standing back at the doorway and not touching the clothing or otherwise actively involved in the frisk—all of which additionally casts doubt on the truthfulness of either officer's testimony, which simply cannot be reconciled. Rowland's other testimony and written statements likewise deserve no weight. Despite Rowland's testimony that he was not focused on or actively participating in the strip frisk being conducted by Morel before any use of force and that he did not observe the initial use of force by Morel, Rowland stated in his memorandum that an object fell from claimant's buttocks during the frisk and that he dove towards the floor to recover it. But if Rowland's testimony that he was standing at the door to the strip frisk room, talking to passersby and barely paying attention to the frisk of claimant in progress were true, Rowland would not have been in a position to see any of the events which allegedly precipitated Morel grabbing claimant in a body hold, including the discovery of any contraband falling from claimant's buttocks. Thus, the Court accords no weight to Rowland's testimony and statements. Indeed, Rowland's actions and statements made to claimant following the incident, during the period of claimant's convalescence in the infirmary, further support a finding that the incident did not occur as described by Rowland or any of the officers.

Moreover, the officers' varying descriptions of the alleged contraband also cannot be reconciled with each other or the photographic evidence. Rowland testified that he saw a small, round white object on the floor following the incident. Degraff, on the other hand, reported that the fingertip of the glove which reportedly fell from claimant was blue. These observations are both contradicted by the photographs admitted into evidence at trial which show a pink glove fingertip which lays flat. Rowland also testified he did not observe any green leafy substances in the area following the incident. In addition, the post-incident search of claimant's cell did not uncover any additional contraband. In addition, although the version of Degraff's "to/from" memorandum contained in the unusual incident report states that claimant admitted to possessing drugs for personal use, such detail was conspicuously omitted from the version contained in the grievance packet. In sum, these inaccuracies and omissions along with the lack of contraband in claimant's cell further call into doubt the veracity of the officers' testimony, reports, and memoranda, which for the most part appear fabricated.

To the extent defendant argues that it is entitled to qualified immunity, such argument is rejected. Initially, qualified immunity is an affirmative defense (see Rankel v County of Westchester, 135 AD3d 731, 733 [2d Dept 2016]) which defendant has arguably waived by failing to plead it clearly in the answer (see CPLR 3018 [b]; Pitts v State of New York, 166 AD3d 1505, 1506 [4th Dept 2018], lv denied 35 NY3d 910 [2020]). Moreover, as claimant points out, the cases cited by defendant in support of such a defense all pertain to actions seeking damages for constitutional violations under 42 USC § 1983 (see e.g. Davila v City of New York, 139 AD3d 890, 892 [2d Dept 2016], lv denied 28 NY3d 914 [2017]); independent research has not revealed any cases recognizing the applicability of this specific defense to common-law tort claims for assault and battery brought against the State in the Court of Claims. In any event, defendant failed to establish its entitlement to such a defense. For all the reasons explained above, the force used by Officers Morel and Rowland after claimant was handcuffed during the strip frisk was not " 'objectively reasonable' " (Davila, 139 AD3d at 893, quoting Lepore v Town of Greenburgh, 120 AD3d 1202, 1203 [2d Dept 2014] ; see also Tracy v Freshwater, 623 F3d 90, 99 n 5 [2d Cir 2010] [noting law is clearly established that "the use of entirely gratuitous force is unreasonable and therefore excessive" and "no reasonable officer could have believed that he was entitled to use pepper spray gratuitously against a restrained and unresisting arrestee"]; Toliver v New York City Dept. of Corr., 202 F Supp 3d 328, 338 [SD NY 2016] [citing Tracy and noting that "jury reasonably could have concluded that [officer's] use of pepper spray against (p)laintiff, who was already handcuffed and restrained by two other officers who were far larger, was an unnecessary and wanton infliction of pain"] [internal quotation marks omitted]).

Finally, the cause of action for negligence under a theory of vicarious liability must be dismissed because claimant did not demonstrate that defendant, through its employees, breached the duty of care it owes to claimant (see generally Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]). Moreover, New York does not recognize a cause of action for "negligent assault or battery," and no cause of action for negligence lies where, as here, "the only inference that may be drawn from [the] evidence is that defendant's contact with [the injured party] was intentional" (Borrerro v Haks Group, Inc., 165 AD3d 1216, 1217, 1218 [2d Dept 2018] [internal quotation marks omitted]; see Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376 [3d Dept 1987]). Notably, claimant does not address this cause of action in his post-trial brief, nor was it mentioned in his closing argument at trial. And claimant's cause of action for negligent supervision and training fails because, as the Court has found, defendant's employees were acting within the scope of their employment at the time of the incident. Thus, "no claim may proceed against the employer for negligent supervision or training under New York common law" (Holland v City of Poughkeepsie, 90 AD3d 841, 849 [2d Dept 2011]; see Gray v Schenectady City School Dist., 86 AD3d 771, 773-774 [3d Dept 2011]).

Conclusion

Based upon the foregoing, the Court finds that claimant established, by a preponderance of the credible evidence, the use of excessive force to the extent indicated above, and defendant's vicarious liability for the same. The Court thus finds defendant 100% liable for claimant's injuries.

The parties are encouraged to work together in good faith to resolve the matter of damages. If the parties are unable to settle the matter on their own, following any additional discovery necessary on the extent of claimant's damages, the parties shall participate in a Court-facilitated alternative dispute resolution process (see 22 NYCRR Part 160). In the event a settlement is not ultimately reached, a trial on the issue of damages will be held as soon as practicable.

Any motions or applications not previously ruled upon are denied.

Let interlocutory judgment be entered accordingly.

January 6, 2025

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

FOOTNOTES

1.   A prior order dismissed the causes of action for false imprisonment and malicious abuse of process as untimely (see Driver v State of New York, Motion No. M-94373 [Ct Cl, dated Oct. 24, 2019, filed Jan. 13, 2020] [Mignano, J.]). To the extent that the claim alleged a cause of action for medical malpractice, no proof was offered at trial and therefore that cause of action is deemed abandoned.

2.   The transcript contains numerous notations that portions of the trial testimony were inaudible to the transcriptionist. Thus, in addition to the transcript, the audio recording of the trial was reviewed where necessary.

3.   At the time of trial, Rowland was no longer employed by defendant and he failed to appear pursuant to the subpoena served upon him by claimant's counsel to testify at trial.

4.   Although claimant was granted leave to reargue or further address the admissibility of these exhibits in his post-trial brief, claimant did not submit any additional argument in that regard.

5.   At trial, claimant requested a missing witness inference as to Rowland and Degraff. Such an inference was not warranted inasmuch as both Degraff and Rowland were no longer employed by defendant and, thus, were not under defendant's control (see Coliseum Towers Assoc. v County of Nassau, 2 AD3d 562, 565 [2d Dept 2003]).

Zainab A. Chaudhry, J.