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April 17, 2001


The opinion of the court was delivered by: Kahn, District Judge.


Plaintiff, an inmate in New York State prison, commenced the instant action against Defendant pursuant to 42 U.S.C. § 1983, claiming that Defendant unlawfully assaulted him in violation of his Eighth and Fourteenth Amendment rights.*fn1 This matter was tried at a bench trial before the Court from November 1, 2001 to November 3, 2001. The Court's findings of fact and conclusions of law follow.*fn2


A. Undisputed Facts Adduced at Trial*fn3

On the morning of May 19, 1998, Plaintiff was inside Building No. 40 of the Mt. McGregor Correctional Facility ("Mt.McGregor") to receive a program assignment. At approximately 9:00 a.m., he and correction officer Michael Jiguere had a loud verbal argument concerning the proper sign-in procedures at the facility.*fn4 Correction Officer Jiguere called his supervisor, Defendant, who arrived about ten minutes later to reprimand Plaintiff for his behavior. Defendant called Plaintiff out of Building 40 and onto its porch to verbally reprimand him. At this point, Defendant's and Plaintiff's version of events differ. The Court will briefly address each version of events seriatim.

B. Disputed Issues of Fact*fn5

1. Synopsis of Defendant's Version of Events

Defendant testified at trial that, once on the porch of Building 40, he discussed the importance of sign-in sheets with Plaintiff and ordered Plaintiff to reenter Building 40 and apologize to Correction Officer Jiguere. Defendant testified that he never touched Plaintiff in any manner and that because Plaintiff presented no threat to him, the utilization of any force against Plaintiff would have been inappropriate. Notably, Superintendent Pedro Quinones provided testimony indicating that, had Defendant used force against Plaintiff simply for "talking back" to him, Defendant would have been subject to disciplinary proceedings. Corrections Officers John Trembly, Dale Jackson, and Alan Seymour each testified, from different vantage points, that they witnessed Defendant talking to Plaintiff outside of Building 40 during the relevant time period and did not see him physically strike Plaintiff.

2. Synopsis of Plaintiff's Version of Events

Plaintiff testified that Defendant struck him across the face three times while they were on the porch of Building 40 causing him injury. He testified that he was not disrespectful towards Defendant and that he did not in any way provoke the alleged attack. He further testified that the force of Defendant's blows injured his ear and caused him to lose portions of his hearing which he has not yet recovered. Moreover, Plaintiff stated that the immediate pain from the blows lasted two weeks and that he was hurt and humiliated by Defendant's actions. When asked why he did not file any complaint against Defendant for his actions until approximately 4:50 p.m. later that afternoon, Plaintiff replied that he was fearful that Defendant would file a retaliatory disciplinary charge against him.

3. Medical Evidence Presented

At trial, Defendant produced photographs of Defendant taken by Sergeant Conderse at 5:00 p.m. on the day of the alleged assault. These pictures showed no visible swelling, bruising, or injury to Plaintiff nor did they provide any other indications of assault. Defendant also introduced the medical records taken by Randell Boice, Plaintiff's treating nurse at Mt. McGregor. These records indicated that because Plaintiff was not injured at the time he complained of pain from the alleged assault, no treatment was required.

After the incident, Plaintiff began complaining of hearing loss, ringing in his left ear, and earaches arising from the alleged assault. These complaints resulted in three additional medical visits to various nurses and doctors in the weeks following the alleged assault. Each examination showed no signs of injury to Plaintiff, although it was noted in a May 20, 1998 examination that both of Plaintiff's ears contained impacted ear wax.

Because of continued complaints regarding his hearing, Plaintiff was eventually referred to a hearing center located in Glens Falls, New York where an examination revealed mild sensorineural loss in his left ear at low frequencies. Notably, when Plaintiff was examined on March 29, 1999 at the Buffalo Hearing and Speech Center, he was found to have mild to moderate sensorineural loss at high frequencies in his left ear. Defendant introduced expert testimony from Dr. Karen Tan to explain these seemingly contradictory medical findings and otherwise comment on Plaintiff's alleged hearing loss. Dr. Tan testified that any earaches Plaintiff suffered were likely the result of abnormal ear wax deposits in his ear and not from any alleged slap to his head. Additionally, she testified that during her examination of Plaintiff, he had normal hearing in both ears and that the inconsistencies in the prior tests were the result of incongruent and subjective testing methods that did not adequately diagnose Plaintiff.

4. Missing Witness Statements

After Plaintiff filed his administrative complaint against Defendant, Lieutenant Carpenter, an officer at Mt. McGregor, began to investigate whether the complaint had merit. Lieutenant Carpenter interviewed nineteen inmates who were present during the alleged assault. According to Lieutenant Carpenter's testimony, nine of these witnesses asserted that they saw Defendant strike Plaintiff between two and four times. The ten remaining witnesses claimed that they were not able to ...

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