Two out of three ain't bad on inmate-plaintiff's excessive force claims

Excessive force claims are not uncommon in the prisons and jails. The question is whether anyone will believe the inmates who claim their jailers beat them up for no good reason. I've seen plaintiffs win and lose these cases, including my own clients, but you can imagine how difficult it is for an inmate to convince a jury that a correction officer broke the law in using force inside the prison walls. In this case, the plaintiff has two excessive force claims reinstated after the trial court dismissed them on summary judgment. Whether the jury will believe the plaintiff at trial is another story, but for now, plaintiff will savor this victory.

The case is Frost v. New York City Police Department, issued on November 12. This is the case that keeps on giving, as the various issues give rise to three blog entries at this link (reinstating the fabrication of evidence claim) and that link (relating to the malicious prosecution claim, which has been dismissed). The final discussion for this case involves excessive force. 

There were three incidents that give rise to plaintiff's case. First, on October 9, 2012, plaintiff says he was transported to Bronx Supreme Court for an attorney visit. Plaintiff told one of the escorting CO's, "I should spit in your fuckin' face." At deposition, plaintiff admitted that he might have said this. As an initial point, inmates who say this to law enforcement are asking for trouble. I am not suggesting they deserve to be beaten up for such a thing, but you know how the world works. In response to plaintiff's comment, the officers took him to the ground, kicked him in the ribs and dragged him by his leg shackles. Plaintiff suffered a ruptured eardrum and bruising on his forehead and cheek. While the district court dismissed this claim because the courts have rejected excessive force claims when inmates spit or threatened to spit on correction officers, this was not really a threat but a statement that plaintiff "should" spit on the officers. A minor distinction, but enough for trial. "Although  it is possible that this statement would have been interpreted as a threat, . . . it is also possible that it would have been interpreted as an insult or an expression of disdain." If the jury agrees with the latter interpretation, then plaintiff can win, as the record does not establish that he had otherwise provoked the beating. You cannot assault inmates simply because you are mad at them.

The next incident took place on January 16, 2013, when plaintiff hid something in his rear-end and would not take it out when the CO's demanded that he do so. The officers used force to get the potential contraband, and they found that plaintiff had been secreting a small weapon. Video footage of the incident shows that the officers did not use excessive force. Rather, plaintiff had resisted the officers and tried to prevent them from doing their jobs. He also struggled with the officers. The Court of Appeals finds that plaintiff cannot win this claim at trial, and it's gone, goodbye.

The third incident happened on July 16, 2013, when CO's had to extract plaintiff from a recreation yard and plaintiff had resisted their authority during that maneuver. Video footage convinces the Court of Appeals that the officers did not use excessive force in trying to do their jobs. But plaintiff can still win this claim because after plaintiff was subdued following a "vigorous" struggle, an officer struck him. One of the officers had repeatedly moved his knee toward plaintiff's head, and other inmates were yelling at the officer to stop striking plaintiff. This sounds like a close call, but the Court of Appeals thinks there is enough for plaintiff to win this claim, even if plaintiff is not the most sympathetic plaintiff in the world, having resisted the officer's authority on multiple occasions.