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MALIK ABDULLAH AKILI v. WARD

September 22, 1982

Malik Abdullah AKILI, George Cardwell, and Mark Frasier, Plaintiffs,
v.
Benjamin WARD, Commissioner of the New York State Department of Correctional Services, Paul W. Metz and J. Leland Casscles, Supt. of Great Meadow Correctional Facility and former Supt. of Great Meadow Correctional Facility, respectively, Everett Jones, Deputy Superintendent for Security and William Fitzgerald, former Deputy Supt. for Security at Great Meadow Correctional Facility, one Currans and one Ripley, Lieutenants at Great Meadow Correctional Facility, one Welch, one Mulhall, one Fitzgerald, and one Henry, Sergeants at Great Meadow Correctional Facility, one Catalfamo, one Griffin, one Logan, and one Petticone, Correction Officers at Great Meadow Correctional Facility, and other Correction Officers known to plaintiffs, all Defendants being sued individually and in their official capacities, Defendants


James T. Foley, Senior District Judge.


The opinion of the court was delivered by: FOLEY

MEMORANDUM -- DECISION and ORDER

JAMES T. FOLEY, Senior District Judge.

 The complaint in this action was drafted for the three named plaintiffs, inmates of Great Meadow Correctional Facility, by the Albany branch of the Prisoners' Legal Services of New York. Judge Edmund Port by decision of July 19, 1976, granted leave to the plaintiffs to proceed in forma pauperis, directed filing of the complaint and its service upon the fifteen named defendants without payment of the required statutory fees. The complaint under 42 U.S.C. § 1983 set forth nine incidents of alleged assaults by various defendants claimed to be constitutional violations. Plaintiff, Mark Frasier, in the passage of years was released from confinement and by stipulation of the attorneys voluntarily dismissed his claims against all defendants. See Frazier v. Ward, 426 F. Supp. 1354 (N.D.N.Y.1977). The claims of the two remaining plaintiffs, Akili and Cardwell, were dismissed against Commissioner Ward by stipulation of February 11, 1982.

 Since the filing and service of the complaint, my contact with the case has been the denial and dismissal of seven separate motions filed by the Attorney General to dismiss the complaint in my single memorandum-decision and order of May 2, 1977. My next contact occurred by the filing of a motion by the plaintiffs on March 9, 1981, for trial by jury, and a motion by the Attorney General for separate trials. Both motions were denied, and finally, when the attorneys advised of their readiness for trial, the case was tried to the court for three days, February 22 to February 25, 1982. Testimony was taken and exhibits offered and received concerning five incidents of alleged use of excessive force. At the trial, upon motion, the complaint was dismissed against Superintendent Casscles and Deputy Superintendent Fitzgerald (Walter B., deceased) for failure of proof.

 In Wright v. McMann, 321 F. Supp. 127, 134 (N.D.N.Y.1970), aff'd in part, rev'd in part, 460 F.2d 126 (2d Cir.), cert. denied, 409 U.S. 885, 93 S. Ct. 115, 34 L. Ed. 2d 141 (1972), my observation was that the record of the trial was a portrayal of the real thing -- prison life as it is. The record in this trial again portrays the actualities of daily prison life, the existing hostility and tension that many of us on the outside are totally unfamiliar with. Trials of this kind teach that many unforeseen and unexpected incidents are bound to happen in the confinement, servicing, movement and discipline of prisoners in the maximum security prisons such as Great Meadow with large inmate populations. Brutality and use of excessive force by correction officers, no matter the provocation, is unwarranted and, of course, should never be condoned. However, from experience, the court is mindful in evaluating the propriety of the use of force that the inmates are not to be considered seminarians, and the correction officers should not be expected to be supine and saintly when unexpectedly involved in volatile situations.

 The testimony and exhibits received in evidence at the trial related to three separate incidents involving plaintiff Cardwell in which excessive force is alleged to have been used by certain correction officers. The dates of the Cardwell incidents are March 14, 1975, September 3, 1975, and September 4, 1975. Plaintiff Akili alleges the use of excessive force on September 3, 1975 and October 11, 1975. Plaintiff Cardwell, no longer in custody, and plaintiff Akili, still in confinement, testified at the trial about all the incidents, and two other inmates, who had to be transported to Albany from state prisons, testified concerning the Cardwell incident of March 14, 1975. Several of the correction officers mainly involved in the five incidents testified at the trial. As expected there is wide divergence in the testimony about the events that happened inside a prison in a tense and emotional atmosphere more than six years before. The task imposed upon the court is the same as that often imposed upon a jury to try to ascertain the truth from the conflicting versions. The evaluation of credibility is very important in the discharge of that responsibility.

 Although the plaintiffs' attorneys view some as concoctions to cover up and conceal the truth, many of the details of these long ago incidents are supplied in the reports that were filed by the correction officers and their superiors on the day of the incidents or shortly thereafter. These reports are exhibits in evidence and among them are: (1) Misbehavior Reports, (2) Use of Physical Force Reports, (3) Facility Health Services Director Report to Superintendent concerning injuries, (4) Investigative Report to Superintendent, (5) Superintendent's Proceeding Report to Commissioner, (6) Superintendent Proceeding Record Sheet, (7) Formal Charges Superintendent Proceeding, (8) Adjustment Committee Report. This array of required reports indicates commendable administrative efforts by the Correction Department to lessen the possibility of unwarranted use of force upon inmates of the State prisons by requiring written explanations in official reports when physical force is used upon inmates.

 March 14, 1975 Incident -- Plaintiff Cardwell

 This incident began on that date when Cardwell appeared before an Adjustment Committee to answer charges that he had been late for gym and had verbally abused the gym teacher (Def. Ex. AA). Cardwell testified he was given seven days keeplock by the Committee and admits he questioned the decision. Correction Officer Hogan, in a misbehavior report, states Cardwell was ordered to leave the Committee Room three times but stood there threatening the Committee, using vulgar language. Correction Officers Catalfamo and Hogan, on duty in the Committee Room, had to grab Cardwell by the arms and shoulders to remove him from the Committee Room. (Def. Ex. AA, BB). The presiding Lieutenant at the hearing directed the officers to take Cardwell to Special Housing Unit D-1, instead of back to his cell in general population.

 Upon the entry into D-Block, the relevant and critical events resulting in the use of force began to happen. The inmates in D-Block, when they saw Cardwell and the officers, started yelling and calling out to Cardwell. Cardwell testified he tried to answer them. Inmate Oliver who testified at the trial said that "everyone was screaming". Defendant Catalfamo testified that Cardwell began shouting the commonly used obscene language at the officers. In this setting of pandemonium, as I view it, there is dispute whether the cell door was open or closed when Cell 27 in which Cardwell was to be placed was reached. I find more credible, and in accord with security interests, the testimony of Correction Officer Hogan that the cell door was closed, and he turned to signal the console officer on the block to open the door for the entry of Cardwell.

 The testimony of plaintiff Cardwell, to the contrary, is that the cell door was open, and as they reached the cell, he was pushed into the cell and hit with a baton by a correction officer from behind. Cardwell said he was propelled to the back of the cell, and that he believed that he sustained the injury over his left eye when he hit the wall. This one-inch cut caused from hitting the wall, as plaintiff states, required thirteen sutures to close, and left a scar -- slight as I observed it at the trial.

 As to the disputed versions of events that then occurred in a very short period of time, I find the testimony of Correction Officers Catalfamo and Hogan more acceptable and plausible. I find that when the cell door opened that Cardwell, stimulated by all the yelling of other inmates, did throw a punch at Catalfamo, and that Catalfamo ducked and tripped into the cell where he and Cardwell fell onto the floor and grappled on the floor and bed. There would be no reason for the officers to enter the cell if as Cardwell says he had been propelled into the wall of the cell and was inside the cell. Plaintiff Cardwell testified that he tussled inside the cell with Correction Officer Catalfamo and that he and Catalfamo wound up with each other on the bed in the cell. Cardwell refused to let Catalfamo go. (Def. Ex. AA -- March 14, 1975 Report). I find that under these circumstances, it was natural for Correction Officer Hogan to go into the cell to aid his colleague and try to pry Cardwell's hands and legs from Catalfamo. I find that Hogan did hit Cardwell on his legs and hands with his baton, and possibly other parts of his body, to loosen Cardwell's grip. I find that Correction Officer Catalfamo fell into the cell and was grabbed around his body by Cardwell, and never used nor had the opportunity to use his baton to strike Cardwell during the altercation in the cell. (Def. Ex. D -- Investigative Report Sgt. Brileya). The use of force reports support the version of the facts that I find acceptable. My finding is that the use of force was caused by Cardwell in hitting Correction Officer Catalfamo and then restraining and wrestling with him in the cell. Under the circumstances, the use of force was reasonable and necessary, and not excessive. The institutional record of Cardwell indicates he was a defiant and troublesome inmate throughout his confinement. (Def. Ex. S).

 September 3, 1975 Incident -- Plaintiff Cardwell

 This incident, and the remaining one involving Cardwell on September 4, 1975, and the two involving Akili on September 3, 1975 and October 11, 1975, arose from their refusal to submit to the rectal examination of the strip search. It is conceded by the attorneys for the plaintiffs that this action does not challenge the legality of this portion of the search mandated at the time after contact with the public by 7 NYCRR 1020.5(b), but only challenges the manner in which the anal search was ...


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