Guard Found Liable for Excessive Force against NY Prisoner

In a trial on the issue of liability only, a Coxsackie Correctional Facility (NY) guard was found liable for excessive force after he repeatedly struck a prisoner with his baton for talking too long on the phone.

Lester Ruiz, who represented himself at the trial, testified that he was a new arrival at Coxsackie in 2007, when a guard told him he could use the phone. Unaware that the calls in his unit were limited to five minutes, Ruiz tried to call his brother. But as soon as he got through, the same guard, Kevin Pecore, told him to hang up.

According to Ruiz, he responded to the guard, "You just gave me a phone call." At that point, Pecore took a baton from another guard and struck Ruiz with it three or four times, according to the complaint. Pecore then "yanked" Ruiz off the phone, placed him in handcuffs, and took him to the infirmary and then to segregation. While at the infirmary, photographs were taken and a nurse noted several abrasions to the upper left shoulder and the dorsal region of the left hand,

Pecore later filed disciplinary charges against Ruiz for "assault on staff" and "refusing (a) direct order." After initially being found guilty of the charges, the New York DOC Commissioner reversed the findings two months later without explanation.

At a trial before New York Court of Claims Judge James H. Ferreira, the court found Ruiz to be a credible witness, whose claims were consistent with the evidence.

On the other hand, the court said that it "does not credit portions of Pecore's version of the events.

"Having found claimant's evidence more credible, the Court finds that, based on these facts, the striking of claimant, a minimum of two times, with a baton in order to stop claimant form using the phone was an excessive use of force," the court wrote.

In his reports, Pecore claimed to have "tapped" Ruiz on the shoulder and then lightly struck him once with his baton after Ruiz assaulted him with the phone.

The court found, though, that the phone cord was only 18" long and could not have been used to strike Pecore, and that the photographs of Ruiz's injuries clearly prove he was struck more than the one time Pecore claimed.

The court found Pecore "solely responsible" for assaulting Ruiz, and that Ruiz did nothing to warrant any use of force against his person.

A trial on the issue of damages will determine how much money the State of New York will have to pay Ruiz.

See: Ruiz v. The State of New York (NY Court of Claims), No. 2013-039-373, Claim No. 114178 (June 28, 2013).

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