DECISION On November 22, 2017, claimant filed this claim seeking damages for assault and battery1 and false imprisonment related to an incident that is alleged to have occurred on October 16, 2017, at Franklin Correctional Facility (FCF), located in Malone, New York. The unified trial of this claim was conducted virtually via Microsoft TEAMS on May 14, 2024,2 and on May 23, 20243. Claimant testified on his own behalf but did not call any additional witnesses. Defendant called three witnesses: Correction Officer Marvin Titus (retired), Lieutenant Donald Villnave, and Registered Nurse Victoria Downer. The Court took judicial notice of the pleadings, the verified claim, and the verified answer without objection from the parties. Claimant marked thirteen exhibits for identification. Exhibit 13 was withdrawn by claimant. The parties stipulated and the Court received into evidence the following of claimant’s exhibits: 4, 5, 6, 7, 11, and 12. The remainder of claimant’s exhibits numbered 1, 2, 3, 8, 9, and 10 were objected to as not relevant. The defendant marked exhibits A through M for identification, but withdrew Exhibit B. The parties stipulated and the Court received into evidence the following of the defendant’s exhibits: A and C through M. At the conclusion of claimant’s case, defendant made a motion to dismiss the claim for failure to make out a prima facie case; claimant opposed the motion, and the Court reserved decision on the motion. The State then presented the testimony of three witnesses. At the conclusion of trial, the parties each waived summation and requested to submit post-trial memoranda. Claimant’s Deposition and Trial Testimony The claimant’s deposition testimony from February 6, 2019 was stipulated into evidence as Defendant’s Exhibit A. At his deposition, claimant acknowledged that he received two disciplinary tickets for smoking in the bathroom and using the phone, so he was on loss of recreation a few days prior to October 16, 2017, but that he was “still cool” with Officer Moritz, his housing unit officer. Further according to his deposition testimony, on the 16th, when claimant exited the bathroom, a conversation with Officer Moritz ensued wherein the officer told claimant that he must tell him when he is going to the bathroom. Claimant testified at deposition that he told Officer Moritz that he did not need to ask permission to go to the bathroom, “[a]nd I guess he felt like I was being a smartass, so he was like well next time you leave your cube, make sure you put your I.D. on my desk. And I brushed him off and went back to my cube” (Defendant’s Exhibit A, p. 48). The second incident with Officer Moritz on October 16th ensued when claimant was proceeding to the mess hall but was told that he could not go. Claimant admitted at deposition that the argument became heated on his end and that he was raising his voice. Further according to claimant’s deposition testimony, even claimant’s friends told him to walk away (Defendant’s Exhibit A, p. 49). After that exchange, the claimant testified that there was a “red dot” response, and he encountered Officer Titus, who was the only officer who laid hands on him. Finally, claimant admitted at deposition that Officer Moritz gave him a direct order to go back to his cube, but claimant disobeyed that order and continued to argue with Officer Moritz (Defendant’s Exhibit A, pp. 75-76). Claimant testified on his own behalf at trial, and he introduced exhibits into evidence as outlined above, to include the October 16th misbehavior report, the resulting disciplinary disposition, and photographs. At the time the claimant testified, he was incarcerated at Rikers Island on firearm charges, and had been so incarcerated since June 11, 2023. By way of background, the claimant stated that he was the individual who filmed the chokehold death of Eric Garner at the hands of the New York City Police Department on July 17, 2014. According to his testimony, since the time that he distributed the video to news outlets, he has been arrested several times on drug and weapons charges, as well as for obstruction of justice and endangering the welfare of a minor (T-5/14-18-26). In sum and substance, the claimant attributes most of his multiple arrests to his notoriety as the individual who filmed the Eric Garner incident, and that his notoriety has followed him into the prison system, leading to harassment by correction officers. Claimant also testified that he was a member of an organization known as CopWatch or WeCopWatch, that informs people how to watch the police, how to stay safe, and to make people aware of their rights (T-5/14-28, 34-35-37). The claimant came to be housed at FCF because, in 2016, he entered a guilty plea to firearms and drug charges. On or about July 7, 2016, he was sentenced to concurrent indeterminate terms of imprisonment of two to four years for the firearms charge and four years for the drug charge. Claimant entered the Department of Corrections and Community Supervision (DOCCS) system on October 3, 2016. According to his testimony, he advised DOCCS personnel that he was “high profile and that [he] was the guy who videotaped the death of Eric Garner” (T-5/14-26), and that his face was “all over the news” (T-5/14-29). In February 2017, claimant was transferred to FCF. Once again, the claimant advised the FCF personnel that he was the person who filmed the Eric Garner incident. The incident giving rise to this claim allegedly occurred on October 16, 2017, and Officer Moritz was claimant’s housing unit officer on that date. Claimant’s housing unit at FCF consisted of two large rooms, one of which is a television room, and the other of which contains tables and seating. The bathrooms and phones are located off those rooms, and the inmates slept in an adjacent area containing cubicles. As noted, by October 16, 2017, the claimant was already under restriction due to the prior disciplinary infraction. Claimant testified that to his understanding, he was not allowed outside to the yard or to the gym, nor was he allowed to use the phone. The prior disciplinary sanctions that were in place on October 16, 2017 had been imposed on or about October 4, 2017. Claimant testified that he had an argument with Officer Moritz on October 16, 2017. According to the claimant, it was lunch time and he was standing by the door when Officer Moritz told claimant to go back to his cube. hen claimant asked why, Officer Moritz is said to have told the claimant, “because he said so.” Claimant denied raising his voice and behaving in a hostile manner to Officer Moritz, which is contrary to claimant’s deposition testimony. A sergeant then came up to the dorm, and the next thing that claimant noticed was that a minivan pulled up outside and officers jumped out and came rushing inside the housing area. When claimant noticed the minivan pull up, claimant was back in his cube. Further, according to claimant, one of the officers, who claimant identified as Officer Titus, grabbed claimant by his neck, brought claimant into a little hallway, grabbed claimant by his hair and kept jerking claimant’s head backward. Claimant also testified that Officer Titus said, “oh, so you think you’re a tough guy and you think you’re going to disrespect my officer.” Claimant testified that when he went to answer Officer Titus, Titus slapped claimant on the right side of claimant’s face twice (T-5/14-41-47). Claimant was then placed into the minivan and transported to the Special Housing Unit (SHU). According to the claimant, he was punched and kicked by officers while he was being transported to the SHU. When claimant arrived at the SHU, he was seen by a nurse. Claimant testified that he told the nurse what happened, and claimant refused to be brought to the SHU cell until his complaint was documented. Claimant stated that pictures were taken of him; his ribs were hurting; his chest was hurting, and his face was “a little bruised up” (T-5/14-48-49). The photographs (Defendant’s Exhibit L) were shown by claimant’s counsel to the claimant. Claimant acknowledged that the photographs were taken on October 20, 2017, not on the date of the alleged incident. When he was asked if he saw any injuries in these photographs, the claimant testified that there was swelling on the right side of his face/his cheek, “irritation that I had and up closer to my ribs it was a little darker from the bottom of my stomach — on my back” (T-5/14-52). On cross-examination, when asked if he filed a grievance with respect to allegedly being assaulted on October 16, 2017, the claimant answered, “[n]ot that I can remember” (T-5/14-56). The claimant also acknowledged that he had previously testified at his deposition held on February 6, 2019 (Defendant’s Exhibit A) that the entire basis of his assault claim is with respect to Officer Titus although claimant testified at trial that he had been assaulted by other officers inside the minivan (T-5/14-57-58). Upon cross-examination, the claimant further confirmed his deposition testimony attesting that the only officer with whom he had an interaction was Officer Titus, and that the sergeant that responded did not place his hands upon the claimant; however, according to the claimant, the sergeant was present when Officer Titus allegedly slapped claimant’s face (T-5/14-63-64). Claimant was also questioned about the photographs taken of his person on October 20, 2017, and the fact that he acknowledged at his deposition that those photographs did not depict any injuries (T-5/14-59-61). Regarding the basis for his false imprisonment claim, claimant testified that Officer Moritz filed false misbehavior reports against him on October 16, 2017 related to the order that claimant put his identification on Moritz’s desk when claimant leaves his cube, and the order to return to his cube. The claimant acknowledged that he had testified at deposition that he had brushed off Officer Moritz on October 16, 2017, and that he was not going to do what Officer Moritz told him to do vis a vis the identification (T-5/14-67-68). During the continued cross-examination of the claimant at trial, he testified that he received a hearing on the October 16, 2017 misbehavior reports on October 20, 2017, that he testified at that hearing, and that he was found guilty of all charges delineated in those misbehavior reports. It was also established during cross-examination that the guilty findings (creating a disturbance, harassment [2 counts], refusing direct order [2 counts], threats, non-compliance with hearing disposition) were never reversed but that the 60-day penalty was eventually reduced to a 30-day penalty upon a discretionary review issued on October 27, 2017 (T-5/14-68-73; Defendant’s Exhibit J). Also, contained in the hearing packet introduced into evidence as Defendant’s Exhibit J, are four “Inmate Witness Refusal” forms indicating that four witnesses that the claimant requested to testify at his disciplinary hearing either did not know him, did not witness the incident, did not want to be involved, or refused to give a reason for not testifying on his behalf. The claimant was also confronted with his disciplinary hearing testimony (Defendant’s Exhibit M). Claimant conceded that Officer Moritz testified at the disciplinary hearing, and that he had no questions for Officer Moritz at that hearing (T-5/14-103-104). The Court notes that it was during the disciplinary hearing on October 20, 2017, related to the two misbehavior reports written by Officer Moritz, that the claimant apparently raised for the first time the claim that Officer Titus shoved his face into the wall, smacked him, and pulled his hair (Defendant’s Exhibit M, pp. 9-11). Defendant’s Exhibit E was stipulated into evidence, and that exhibit consists of Officer Moritz’s misbehavior reports issued to the claimant on October 16, 2017, for refusing a direct order, verbal harassment, threats, creating a disturbance and non-compliance with hearing disposition (see above). Specifically, Officer Moritz wrote that he observed the claimant in the recreation area, talking, and that when the officer questioned claimant as to why he had not told him where he went, claimant is alleged to have said that he was “not red or green pin. [I] don’t have to tell you shit.” According to that report, claimant was given a direct order to lower his voice and go to his cube, but claimant continued yelling “don’t tell me what to do,” and then he went to his cube. The housing sergeant was then notified according to the report and claimant was notified that he was full bed pending a hearing. Claimant then demanded that the sergeant come to the dorm at once. When claimant was advised that the sergeant was on his rounds, claimant is alleged to have continued cursing and came out of his cube. Further according to the report, claimant said, “fuck you, I’ll go when I want to go.” After he cursed at Officer Moritz, claimant returned to his cube. Officer Titus Trial Testimony Officer Titus testified that he worked for DOCCS for thirty-one and one-half (31 ½) years, and that he retired in October of 2019. At the time of his retirement, he was working at the FCF, and had been working there for 30 years and three months. Officer Titus was a “rec officer” whose responsibility was to monitor inmates as they moved to and from their dorm to other areas for school and recreation. Officer Titus was also designated as a “red dot response.” Officer Titus explained that if an officer had an emergency situation, he would “post P.A.S.” and “red dot” officers would be alerted and directed to report to the area where the emergency situation was occurring (T-5/14-115-118). Officer Titus did not recall the incident with the claimant, but he recognized his memorandum dated October 20, 2017 (Defendant’s Exhibit G stipulated into evidence), reading as follows: “On 10-16-17, I, CO M Titus reported to H-Z housing unit for a disturbance. I pat frisked inmate Orta 16A4200 with no contraband found. I then placed inmate Orta into mechanical restraints and escorted him to the rounds van without incident. At no time did I or did I observe any other staff threaten or assault inmate Orta in any way.” Officer Titus explained that he authored that memo because of the allegations made by the claimant (T-5/14-121). Further according to Officer Titus, he accompanied Sergeant Villnave to the disturbance. Sergeant Villnave was the housing sergeant, and he would have been one of the officers to have accompanied the claimant in the van, on the way to the SHU. Officer Titus stayed in the housing annex once the claimant was taken to the van (T-5/14-122-123). Officer Titus testified that he never slapped the claimant or pulled his hair, but if force had been used on the claimant, paperwork alled a “use of force packet” would have been required. The sergeant would also have been required to fill out paperwork, as well as infirmary personnel, had there been a use of force, but Officer Titus did not recall ever seeing anyone use any kind of force against the claimant on October 16, 2017 (T-5/14-124-125). Lieutenant Villnave Trial Testimony Sergeant (now Lieutenant) Villnave testified that he has been employed by DOCCS for more than twenty-four (24) years, having been promoted from sergeant to the rank of lieutenant in 2022. At the time of the alleged incident involving the claimant, Lt. Villnave was stationed at the FCF. He was in charge of the housing units and the officers for the housing units (T-5/23-4-5). Lt. Villnave recalled that there was a situation wherein an officer had some issues with the claimant and was writing claimant a misbehavior report. Lt. Villnave testified that he called his rec officer, Officer Titus, who would take Lt. Villnave’s handcuffs, put claimant in those handcuffs, escort him out of the dorm, pat frisk claimant, then take claimant to the transport van, while Villnave spoke to the reporting officer to find out what precipitated the call and then obtained permission from the lieutenant to take the claimant to the SHU (T-5/23-8-10). According to Villnave, the claimant “was already on a loss,” so he was being put on “full bed,” which meant that the claimant would have to stay in his bed/cube and would not be allowed to go anywhere outside the facility; in addition, the claimant would have to receive the officer’s permission and give the officer his identification at the desk. Prior to October 16, 2017, Lt. Villnave did not recall whether he ever had an interaction with the claimant. On the day of the alleged assault, Lt. Villnave went to the claimant’s dorm to escort claimant to the SHU (T-5/23-6-7). Lt. Villnave stated that by the time he arrived at the dorm, the claimant had gone back to his cube, was not being disorderly, and did not cause Lt. Villnave any problems (T-5/23-33); however, when Lt. Villnave encountered the claimant on October 16, 2017, claimant was “unhappy.” The lieutenant explained that “he was mad about being full bed. He didn’t like the fact that they full bedded him because he thought he was doing the right thing and the officer disagreed. He didn’t leave his I.D., didn’t ask permission to be in the rec area. So the officer wrote him up. So that next, like I said, that was the next progression. I full bedded him, and then he created a disturbance on the dorms, which is the reason why I took him to SHU after that on the second ticket. So, Officer Moritz would have wrote two tickets within a matter of, I don’t know, fifteen, twenty minutes, half an hour, somewhere in that direction, an hour, I don’t know, but they were two quick tickets” (T-5/23-12). Lt. Villnave explained that the progression of the decision to take claimant to the SHU eventuated after claimant created the disturbance due to being “full bedded,” which meant that he could not leave his cube without permission and food would be brought in to the claimant rather than him being permitted to go to “chow.” After claimant created the disturbance, the decision to take him to the SHU was made because in the SHU, the claimant must follow the rules since he will be in a cell rather than in a cubicle (T-5/23-13). Lt. Villnave further testified that Officer Titus never left his sight on October 16, 2017 while Titus was with the claimant, and that Lt. Villnave never saw Officer Titus kick, punch or slap the claimant when they were all in the dorm. Lt. Villnave also testified that he did not see Officer Titus pull the claimant’s hair, or grab claimant by the neck, or push claimant into the van (T-5/23-13-14, 20). Had Lt. Villnave witnessed Officer Titus use physical force against the claimant, the incident would have been reported, and a use of force report and medical photos would have been generated, which did not happen in this case. All that happened was the misbehavior report from Officer Moritz and the transport to the SHU pending a disciplinary hearing. Further according to Lt. Villnave, he and the driver of the van were the two individuals in the van that day with claimant (T-5/23-15-16, 18). Lt. Villnave rode in the back of the van with the claimant, and he also testified that he did not kick, punch, or push the claimant at any time on October 16, 2017 (T-5/23-7, 20-21). When Lt. Villnave arrived at the SHU with the claimant, he turned custody of the claimant over to the SHU sergeant, outside the SHU building. Furthermore, Lt. Villnave testified that nothing unusual happened during the ride to the SHU, and so no photographs of the claimant were taken upon his arrival at the SHU on October 16, 2017 (T-5/23-23-24). Lt. Villnave testified that he took the photographs of the claimant during the disciplinary hearing held on October 20, 2017, due to claimant’s allegation that Officer Titus assaulted him (T-5/23-36-37, Defendant’s Exhibit L). On cross-examination, Lt. Villnave reiterated that Officer Moritz had written the claimant up for the disciplinary violation, that the claimant wanted to speak to a sergeant, that Villnave was on his way, but that claimant continued to create a disturbance, screaming and hollering. At that time, in 2017, based on the fact that the claimant had the previous infraction, making him full bed pending, and then received the subsequent ticket, warranted that he go to the SHU. According to Lt. Villnave, the claimant was determined to be a security issue, so that was the reason for the removal from the dorm to the SHU (T-5/23-31-32). Victoria Downer, R.N. Trial Testimony Nurse Victoria Downer, R.N., testified that she has been employed by DOCCS since 2016, and in October 2017 she worked at the FCF. She evaluated the claimant on October 16, 2017, when he was admitted to the SHU. Her main place of work was in the infirmary, but if there was someone being placed in the SHU, she would go over there and ask the person a series of questions and document the evaluation (T-5/23-43-46). Defendant’s Exhibit D, consisting of claimant’s medical records, were shown to Nurse Downer. She acknowledged that she signed the last page of the evaluation form on October 16, 2017, at 6:02 p.m. According to her testimony, the purpose of the questions is to determine if the incarcerated individual has any medical concerns upon admission. In claimant’s case, he stated that he had a “current health problem” of asthma. He answered the Prison Rape Elimination Act in the negative, and no injuries were noted on the form. Nurse Downer documented that she viewed the claimant in his boxer shorts, and that “no injuries noted, no c.o., which means no complaints offered” (T-5/23-48-49). Claimant did not report to Nurse Downer that he had been assaulted by any officer; had he done so, she would have documented it in the appropriate section of the form. Furthermore, had she seen any injuries to his face, she would have reported that as well. According to Nurse Downer, she did not see any injuries to claimant’s face upon his admission to the SHU on October 16, 2017 (T-5/23-50). Nurse Downer also identified the Ambulatory Health Record and injury reports contained in Exhibit D indicating that claimant was seen on October 20, 2017, and on October 31, 2017. Based upon the Ambulatory Health Record, claimant was brought over to the infirmary from the SHU on October 20, 2017 because of an “alleged staff assault that took place on 10/16/17 at approx. 1730.” Nurse Malak examined the claimant on October 20th, noting that there were “no injuries, bruises noted at this time. Injury report filled out.” In the “Inmate Injury Report” dated October 20, 2017, and signed by the claimant, the cause of claimant’s injury is “alleged altercation/staff assault.” The section for the “inmate’s statement” reads, “No Statement,” followed by the claimant’s signature and the date of “10/20/17.” The section for description of the injury contains the notation, “no injuries noted,” and the section indicating services provided to the claimant is marked “none needed; no injuries noted” (T-5/23-56-57, Defendant’s Exhibit D). On October 31, 2017, Nurse Downer examined the claimant due to the same allegation of a staff assault that took place on October 16, 2017, at 5:30 p.m. The section for the “inmate’s statement” reads, “I was allegedly struck in the face by an officer.” Nurse Downer noted that the claimant was alert and oriented, had a normal temperature, pulse, respiration, and blood pressure (T-5/23-53-55). On October 31st, Nurse Downer wrote in the section designated for the description of the injury, “no injuries noted at this time.” Furthermore, the claimant’s vital signs were stable, and claimant was assessed for pain with none noted (T-5/23-58-59). Claimant’s Additional Trial Testimony The Court provided the claimant the opportunity to submit color copies of Defendant’s Exhibit L, consisting of the photographs taken of claimant on October 20, 2017, and for his counsel to inquire specifically regarding those photographs. Claimant testified that the injury to the right side of his cheek is visible in photo number one, appearing as some swelling by his cheekbone, but that no injuries are visible in photo number two. Claimant further testified that the third photo depicts bruising and redness on the bottom of his back, from the middle down to his waist, and that the fourth photo depicts the swelling on the right side of his face. According to his testimony, the fifth photo does not depict any injuries. Counsel for the defendant was permitted further cross-examination as to these color photographs. The claimant testified that he did not remember if he was shown these same photographs during his deposition, but his counsel stipulated that these are the same photographic exhibits used during the deposition. When confronted with his deposition testimony that none of the photographs depicted any injury, the claimant testified that he recalled giving that answer at his deposition (T-5/23-72-76). Post-trial Submissions The post-trial memoranda/briefs were submitted to this Court on October 2, 2024. According to the claimant’s post-trial submission, he has established by a preponderance of the evidence that the disciplinary infractions leveled against him by Officer Moritz on October 16, 2017 were false and/or unwarranted, thereby constituting false imprisonment, and that the force used on him in being escorted from the dorm to the SHU was excessive, causing injury. The State respectfully submits that this Court grant its motion to dismiss the claim made at the conclusion of claimant’s case for failure to establish a prima facie case of excessive force or false imprisonment. In the alternative, the State requests that this Court dismiss the claim in its entirety based on claimant’s failure to prove by a preponderance of the credible evidence that the defendant used excessive force, and that such actions were a proximate cause of claimant’s alleged injuries, or that he was falsely imprisoned. After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their testimony, all of the other evidence received at trial, the applicable law, and the parties’ post-trial submissions, the Court makes the following findings: Addressing the claim of false imprisonment first, “[t]o establish a claim of false imprisonment or unlawful confinement, [a] claimant [is] required to show that (1) [the] defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged” (Cass v. State of New York, 134 AD3d 1207, 1208 [3d Dept 2015], lv dismissed 27 NY3d 972 [2016] [internal quotation marks and citations omitted]; see also Drayton v. State of New York, 2021 NY Slip Op 34074 [U] [Ct Cl 2021]). Accordingly, it is the claimant’s burden to establish by a preponderance of the credible evidence that his confinement was not otherwise privileged (Lee v. State of New York, 124 AD2d 305 [3d Dept 1986]). “[W]here, as here, the employees act under the authority of and in full compliance with the governing statutes and regulations, their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity” (Arteaga v. State of New York, 72 NY2d 212, 214 [1988] [internal citations omitted]), and their conduct is privileged if it was carried out in accordance with DOCCS’ regulations (Lee, supra at 307). When an action receives absolute immunity, the consideration of reasonableness or bad faith is irrelevant (Arteaga, supra at 216). Because officers responsible for filing the misbehavior reports against claimants housed in a correctional facility are tasked with maintaining order and security in these correctional facilities, in addition to protecting the safety of incarcerated individuals and employees, their actions in this regard are “deserving of absolute immunity” (Id. at 219). Here, the claimant does not allege any violation of a due process safeguard, but merely that the misbehavior reports that he received on October 16, 2017 were false/unwarranted. Not only does claimant’s suggestion that the misbehavior reports were done in bad faith fail to defeat absolute immunity since there is no due process violation claimed (Arteaga, supra at 216), but his own testimony and the admitted evidence stipulated to by the parties belies the suggestion that the misbehavior reports were false/issued in bad faith. The record establishes without contravention that the claimant received a hearing on the misbehavior reports issued by Officer Moritz four days later, that claimant testified at his disciplinary hearing, that Officer Moritz also testified at the hearing, that claimant was given the opportunity to question Officer Moritz but declined to do so, that the witnesses claimant sought to call on his behalf refused to testify for him, that the claimant did not file a grievance as to the alleged assault, and that he raised the alleged assault for the first time on October 20, 2017, during his disciplinary hearing concerning the misbehavior reports (Defendant’s Exhibit M). Furthermore, claimant concedes that he lost twenty days of recreation and phone privileges on October 4, 2017, as the result of a previous disciplinary incident, but now, for the first time, asserts that “[t]he question is whether Orta was engaged in recreational activities by being in the day room on October 16, 2017,” in an apparent attempt to salvage the false imprisonment claim. Notably, this “question” was never advanced during the entire course of the trial. The hearing packet (Defendant’s Exhibit J), as noted, establishes that claimant was found guilty of all the disciplinary infractions written by Officer Moritz, none of which were subsequently reversed. Moreover, included in Defendant’s C stipulated into evidence is a page from the FCF Disciplinary Procedures wherein subdivision (e) provides that with respect to availability of bathroom and shower facilities in the dormitory, they are “with the approval of the Officer (in charge of the dormitory) prior to leaving their cube.” In addition, subdivision (g) provides that, “[d]uring a period of full bed pending confinement, when the inmate is awaiting a hearing, he is not entitled to normal programs or recreation periods, commissary privileges, or phone calls.” Accordingly, Officer Moritz’s directive that the claimant tell the officer where he was going, including to the bathroom, appears to be in accordance with the written disciplinary rules. Claimant also now asserts that Officer Moritz “was trying to provoke [claimant] by asking him why he didn’t inform him where he went when he was clearly able to observe him the entire time,” that “Moritz’s actions were like a matador waving a red cape at a bull,” that “CO Moritz’s misbehavior reports precipitated Orta’s anger,” and that Moritz’s issuance of those reports “is just the type of abusive authority that should not be condoned.” It is beyond cavil that claimant seeks to blame Officer Moritz for claimant’s own misbehavior, especially since the claimant was confronted with his deposition testimony during cross-examination at trial wherein, he admitted that he disobeyed Officer Moritz’s direct order to return to his cube and argued with the officer. Claimant’s counsel’s opinion that “[t]he allegations against Orta appear objectively in my view to be minor transgressions” is not only unpersuasive but is also not relevant to the determination to be made herein. Accordingly, the Court finds that the claimant has not established by a preponderance of the credible evidence that he was falsely imprisoned. Moving next to the allegations of assault/battery/excessive force, “(a) [t]he greatest caution and conservative judgment shall be applied in determining: (1) whether physical force is necessary; and (2) the degree of such force that is necessary. Each employee is personally charged under law and the policies of the department with responsibility for acting in good faith, with reasonable care and upon probable cause. (b) Where it is necessary to use physical force, only such degree of force as is reasonably required shall be used” (7 NYCRR §251-1.2). Where the use of force is unreasonable or excessive under the circumstances or in violation of any policy or procedure of defendant, the State may be held liable (see Bush v. State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]). The claimant alleging excessive force/assault/battery has the burden of proving his claim by a preponderance of the evidence, and the determination of such claims are extremely fact-specific, hinging on the credibility of the witnesses and the Court’s resolution of the weight to be accorded to the evidence presented at trial (Barnes v. State of New York, 189 AD3d 1781 [3d Dept 2020]; Shirvanion v. State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Wester v. State of New York, 247 AD2d 468 [2d Dept 1998]; Davis v. State of New York, 203 AD2d 234 [2d Dept 1994]). Upon listening to the witnesses testify and observing their demeanor as they did so, in conjunction with the stipulated exhibits received into evidence that include the claimant’s medical records, photographs of the claimant taken while he was clothed in boxer shorts, and claimant’s prior testimony at the disciplinary hearing and at deposition, the claimant’s recitation of the incident as testified to at trial is riddled with inconsistencies and is therefore not credible (see Annan v. New York State Off. of Mental Health, 165 AD3d 1020, 1021 [2d Dept 2018]; Bennett v. Atomic Prods Corp., 132 AD3d 928, 930 [2d Dept 2015]; Fernandez v. State of New York, 130 AD3d 566, 567 [2d Dept 2015]; Shirvanion, supra at 1114; Wester, supra at 468; D.T. v. State of New York, 73 Misc 3d 1204[A], 5 [Ct Cl 2021]). Not only were no use of force reports generated because of this incident as testified to by Officer Titus and Lt. Villnave, but the claimant himself testified at trial that he did not remember filing a grievance with respect to allegedly being assaulted by officers on October 16, 2017 (T-5/14-56). Critically, the testimony of Nurse Downer, the medical records (Defendant’s Exhibit D) from claimant’s SHU admission on October 16, 2017, and the color photographs of the claimant constitute compelling support for the State’s contention that no excessive force or assault was perpetrated upon the claimant on October 16, 2017, thereby discrediting claimant’s allegation of assault and ensuing injury. As noted, the only complaint made by the claimant upon his admission to the SHU was his asthma, and the first time that the assault allegation was alleged by the claimant was during his disciplinary hearing on the misbehavior reports issued by Officer Moritz. Nurse Downer testified that she did not observe any injuries to the claimant; she documented that no injuries were noted, and no complaints were offered, signing the SHU intake form at 6:02 p.m., which is one half-hour after the claimant eventually alleged that the assault occurred (17:30 hours). Had the claimant stated that he had been assaulted by an officer, Nurse Downer would have documented that on the appropriate section of the SHU intake form, but there is no such entry. After claimant asserted that he was assaulted by an officer, he was re-examined on October 20, 2017, and again on October 31, 2017. Neither Nurse Downer nor Nurse Malak observed any injuries or bruises on the defendant’s body, which they each noted. Claimant was assessed for pain, but none was noted, and no treatment was rendered because as reflected in the medical records/injury reports, no treatment was needed. The photographs, which include the color photos that the Court permitted to be introduced to support the claim of injuries, do not depict any injuries. At trial, even the claimant himself conceded that photographs numbered two and five did not depict any injuries. Number two is a photo of the full front of claimant’s body, and number five depicts the left side of claimant’s body, from head to toe. Although the claimant testified at trial that photos one and four depict injuries to his right cheek, and photo number three depicts bruising and redness from the middle of his back down to his waist, claimant was confronted with his deposition testimony wherein he testified that the same series of photographs did not depict any injury. Further undermining claimant’s credibility is the fact that at his deposition he also testified that “these pictures and the incident report was on the 20th. It happened four days after, so my face obviously ain’t red no more, there’s no handprints on my face;” yet, as discussed, he claimed to have seen injury to his right cheek when shown the same pictures at trial. Also, the claimant was asked at deposition that, if the photographs were taken on October 17, 2017, would they depict injury, to which the claimant answered “No” (Defendant’s Exhibit A, p. 79). Based upon the preponderance of the credible evidence that favors the State’s witnesses, the Court finds that the claimant has failed to establish that Correction Officer Titus or any other correction officer assaulted the claimant, or engaged in a use of force that was unreasonable or excessive, or that was in violation of any policy or procedure of the DOCCS. Accordingly, the claim is dismissed in its entirety based upon claimant’s failure to prove by a preponderance of the credible evidence that he was subjected to an assault and battery, or that he was falsely imprisoned. Any motions not previously decided are hereby denied. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: October 29, 2024
