David M. Reynolds v. State of New York
New York State of Claims
Claim No. 106738
Mr. Reynolds was pulled over by a New York State Trooper on suspicion of a suspended license. The Trooper had called 911 which reported Mr. Reynolds’ license was suspended as per DMV computer records. Mr. Reynolds repeatedly told the officer his license was in his wallet but the officer refused to allow Mr. Reynolds to show it. The Trooper forced Mr. Reynolds out of his vehicle, handcuffed him and rammed his head several times into the trunk lid of the vehicle he was driving. After Mr. Reynolds was assaulted, the Trooper looked in Mr. Reynolds’ wallet and found a valid temporary New York State drivers license which was issued ten days prior. After assaulting Mr. Reynolds and placing him in the back of a police car, the Trooper uncuffed Mr. Reynolds and let him go. Mr. Reynolds promptly went to a local hospital for medical treatment for his injuries and he went to the police barracks where photos were taken. Separate liability and damages trials were conducted in the Court of Claims in Syracuse, New York. Following the liability trial, the Court held that the Trooper committed battery and used excessive and unlawful force on Mr. Reynolds’ person. A separate damages trial was held in which Mr. Reynolds established that he had suffered a swollen, bloody, and blackened eye, chronic and severe headaches, blurred vision in his left eye, dizziness, stuttering, and cervical herniated discs at the C4-5, C5-6 and C6-7 levels which will require cervical discectomy and fusion surgery performed in two separate procedures. The Court also found that Mr. Reynolds suffered a swollen and blackened left eye, a closed head injury (leaving a permanent bump) resulting in concussion-like symptoms. The Court also held that Mr. Reynolds also suffered insignificant injuries to his wrists where the handcuffs were placed on him. The Court awarded Mr. Reynolds a total of $1,017,500 for past and future pain and suffering and medical expenses. Appeals were taken concerning the issue of damages and on June 20, 2014, the Appellate Division, Fourth Department, unanimously affirmed the damages award and Judgment of the lower Court.
Benny T. Warr and Nina M. Warr vs. Anthony R. Liberatore, Joseph M. Ferrigno, II, Mitchell Stewart, II, James M. Sheppard and City of Rochester
United States District Court Western District of New York
Case No. 13-CV6508-DGL-MWP
This is a police brutality case which is pending in United States District Court in Rochester, New York. On May 1, 2013 at 8:15 p.m., 52 year old Benny Warr was waiting at the bus stop at the northwest corner of Bartlett Street and Jefferson Avenue in Rochester, New York. Mr. Warr is a one leg amputee and utilizes a motorized wheel chair for traveling distances. He has a prosthetic leg which he uses for walking short distances. On the evening in question, Mr. Warr noticed that two (2) City of Rochester police officers were clearing the sidewalks and asking people to disperse under the policy of Operation Cool Down, Clearing the Streets and/ or Block. While Mr. Warr was sitting in his motorized wheelchair waiting for the bus, he was approached by City of Rochester police officers Joseph Ferrigno and Anthony Liberatore who demanded Mr. Warr leave. Mr. Warr told the officers that he was waiting for the bus. One of the Officers then replied back “f—en move”. At this time, Mr. Warr again responded that he was waiting for the bus. Officer Ferrigno immediately responded by spraying mace/pepper spray in Mr. Warr’s face. Officer Liberatore then suddenly and violently pushed Mr. Warr’s wheelchair over causing Mr. Warr to fall over and slam onto the sidewalk on his left side and left stump. This incident was video recorded and posted on youtube.com by Tache Young who is also known as Shakur Muhammad. The incident was also caught on Blue Light Camera video which was installed by the City of Rochester at this intersection. After Mr. Warr’s body slammed onto the ground, his prosthetic leg flew off and the police officers then jumped on Mr. Warr and began striking and kicking him in the stomach, chest, back, head and other areas of his body while he was lying on the sidewalk. The Blue Light camera footage clearly shows Officer Liberatore looking to his right and left before delivering an elbow strike (an “untrained technique” as per RPD standards) to Mr. Warr’s face as he was lying defenseless on the ground. The Blue Light camera footage also showed Officer Ferrigno delivering knee strikes to Mr. Warr’s abdominal area as he was lying helpless on the sidewalk. The Blue Light camera footage has also been posted to youtube.com. After the assault, Mr. Warr continued to lay on the sidewalk for 25 minutes before an ambulance arrived and transported him to Strong Memorial Hospital for medical treatment. Mr. Warr was thereafter charged with disorderly conduct and resisting arrest but both charges were eventually dismissed when an Adjournment in Contemplation of Dismissal was granted by Rochester City Court. Charlie Burkwit represented Mr. Warr on these charges. As for injuries, Mr. Warr suffered left rib fractures, head pain, neck pain, back pain, left hand numbness, bilateral shoulder pain, left elbow and arm pain, left hip pain, left leg pain at the hip joint and stump, post traumatic stress disorder, chest pain, stomach pain going to the rectum, internal injuries, abrasions and scratches around the wrist since the handcuffs were too tight, burning to the facial area and eyes due to pepper spray/mace together with other physical injuries. Mr. Warr continues treating for his injuries. As part of his lawsuit, Mr. Warr is seeking compensatory damages, punitive damages against the individually named police officers, reasonable attorney fees, declaratory judgment and injunctive relief. Mr. Warr seeks a declaratory judgment declaring the City or Rochester’s official policy or custom known as “Operation Cool Down”, “Clearing the Block” and/or “Clearing the Street as unconstitutional since these policies infringe upon the constitutional rights of City of Rochester residents. Mr. Warr. is also seeking injunctive relief restraining and prohibiting the Defendant officers and City of Rochester from authorizing and permitting City of Rochester police officers to aggressively approach, stop and engage citizens on City of Rochester Streets, without reasonable suspicion that a crime is occurring, has or will occur since this policy or custom violates and infringes upon the constitutional rights of City of Rochester citizens to be free from unlawful stops, searches and seizures and excessive force. This action is in the discovery phase of litigation and it is anticipated that the case will not be ready for trial until sometime in 2017. Mr. Warr has received tremendous support from the community and from the support group “Enough is Enough” who is advocating for an end to police misconduct and brutality in the Rochester community.
Dwayne Ivery vs. Alexander C. Baldauf, Rickey J. Harris, Jr., James M. Sheppard and City of Rochester
US District Court, Western District of New York
Case No. 14CV6041
On August 17, 2013 at approximately 10:30 p.m., Rochester Police Officers Alexander C. Baldauf and Ricky J. Harris, Jr. were dispatched to Dwayne Ivery’s home due to a disagreement between him and his girlfriend. They were in the process of breaking up. When the officers arrived, Mr. Ivery and his girlfriend had finished their disagreement and began discussing removing license plates from a GMC truck that registered to her and titled to him. Mr. Ivery agreed that his girlfriend should remove the license plates from the GMC truck in his driveway since the registration was in her name. Mr. Ivery was standing at the back of the GMC truck with Officer Harris while his girlfriend went to the front of the GMC truck with Officer Balduaf to remove the front license plate. Mr. Ivery then walked from the rear of the GMC truck toward the front of the GMC truck and asked Officer Baldauf if one of the officers could go with him to his girlfriend’s home to get his TVs. At this point, Officer Baldauf, who was removing the front license plate, stood up and said “I thought I told you to be quiet”. Officer Baldauf then grabbed Mr. Ivery’s right arm and punched him in the head. Mr. Ivery then tried to move away from Officer Baldauf to avoid further physical harm but Officer Baldauf continued going after him, punching him numerous times in the head and face before landing him on the ground.Mr. Ivery’s shirt went over his head when Officer Baldauf knocked him down to the ground. Officer Baldauf then jumped on Mr. Ivery and continued punching him in the head, face and over many areas of his body. Office Baldauf stomped on Mr. Ivery’s head with his foot. Officer Harris stood quietly and watched Officer Baldauf beat Mr. Ivery who lost consciousness. After numerous more punches, Officer Harris handcuffed Mr. Ivery. Officer Baldauf then continued punching and beating Mr. Ivery while he was handcuffed and while his shirt was over his head. Mr. Ivery then asked Officer Harris why he was letting the other officer beat him while he had handcuffs on. Officer Harris replied “Alright….Alright…”. Officer Baldauf then punched Mr. Ivery a couple more times and then stopped. The incident was captured on Mr. Ivery’s home surveillance camera and has been posted on youtube.com After the assault, Officer Baldauf stood Mr. Ivery to his feet and placed him in a police car. Realizing that Mr. Ivery had home surveillance, the officers then tried to immediately obtain the surveillance footage from Mr. Ivery and his girlfried at the incident scene but they refused to turn it over and refused to allow the officers into Mr. Ivery’s home. Due to his injuries, an ambulance was then called and Mr. Ivery was transported to Rochester General Hospital by ambulance. Mr. Ivery was thereafter transported to Monroe County Jail where he was incarcerated. Mr. Ivery was charged with Harrassment in the Second Degree and Resisting Arrest. These charges were dismissed on November 13, 2013 when Rochester City Court granted an Adjournment In Contemplation of Dismissal. As for injuries, Dwayne Ivery suffered a mildly displaced left nasal fracture, left eye pain, a hematoma superior to left eye, seven or more large throbbing bumps on his face and neck, multiple contusions, right elbow pain and tendonitis, eyes swollen shut, left facial swelling, loss of consciousness multiple times, neck pain, multiple facial and head contusions, neck, back, head and right arm pain, headaches, post concussive syndrome, memory problems/closed head injury, right shoulder pain, post traumatic stress disorder, together with other physical injuries. Mr. Ivery continues treating for his injuries. On January 24, 2014, a civil rights action was commenced on Mr. Ivery’s behalf in the United States District Court in Rochester, NY. Mr. Ivery has alleged that the officers illegally searched and seized his person, used excessive force against him without any provocation by Mr. Ivery and that the officers conspired to violate his civil rights. Mr. Ivery is seeking compensatory damages against all Defendants, punitive damages against the individually named officers, a declaratory judgment declaring that Mr. Ivery’s constitutional rights were violated, reasonable costs and attorney fees. This action is in the discovery stage and likely will not be concluded until sometime in 2017.
A New York wife is suing a doctor after she says he mistakenly pronounced her husband dead even after she says she saw him showing signs of life.
Tammy Cleveland claims that after her husband Michael Cleveland, 46, was pronounced dead, she repeatedly asked the doctor to check his vitals over the span of two hours but was ignored, according to her lawsuit.
It wasn’t until after her fourth attempt that the doctor at DeGraff Memorial Hospital in North Tonawanda, New York examined her husband and declared, “My God, he has a pulse,” the lawsuit states.
“This is every family’s worst nightmare,” Charles Burkwit, Mrs. Cleveland’s attorney, told HLN.
“For Mr. Cleveland to go several hours without medical treatment is negligent, basically he was left for dead,” Burkwit added.
On October 10, 2014, Mr. Cleveland, 46, was in a supermarket with his 13-year-old son when he suddenly went into cardiac arrest and became unresponsive.
An ambulance arrived at the scene and transported Cleveland to DeGraff Memorial Hospital at approximately 8:04 p.m., the lawsuit claims.
At about 8:30 p.m., Dr. Gregory Perry stopped resuscitation efforts and pronounced Cleveland dead, according to the lawsuit.
When she went back to her husband’s hospital room, Tammy Cleveland says her husband was not hooked up to any oxygen or life support means.
Dr. Perry and the nurse assured Mrs. Cleveland that her husband’s heart had stopped, and that he was not alive, the lawsuit states.
Mrs. Cleveland was also advised that her husband may appear as if he was breathing and that was normal because he was expelling what was left in his body, according to the lawsuit.
Once Dr. Perry and the nurse left, Mrs. Cleveland says she was talking to her husband’s body when he suddenly turned his eyes towards her.
Shocked by his movement, Mrs. Cleveland had her daughter grab Perry and the nurse.
When they got back to the room, Dr. Perry and the nurse did not touch or check Mr. Cleveland’s vitals, the lawsuit alleges.
Instead, Mrs. Cleveland says they told her this was normal and they left the room again.
Mrs. Cleveland continued talking to her husband, and he then started looking at her, moving his head side to side, even fighting a tube in his throat with his tongue, according to the lawsuit.
For a second time, Mrs. Cleveland had her family grab Dr. Perry, but when he got back to the room, he still did not touch her husband or check his vitals, the lawsuit claims.
Once again, Dr. Perry said Mr. Cleveland had passed and this activity was normal and then left the room.
At approximately 9:55 p.m., Mrs. Cleveland says her husband began bringing his knees up in the air and moving his body side to side.
For a third time, family members grabbed Dr. Perry, but he did not touch Mr. Cleveland or check his vitals; instead Dr. Perry explained he has a lot of energy to expel and said, “This is normal,” the lawsuit states.
At approximately 11 p.m., Mrs. Cleveland says her husband was flipping his head side to side, sticking out his tongue, tipping his head, and she says she also noticed his neck had a pulse.
For the fourth time, Mrs. Cleveland grabbed Dr. Perry, and this this time Dr. Perry did check her husband’s pulse.
Seemingly surprised, Dr. Perry declared, “My God he has a pulse,” and acknowledged he was breathing on his own, the lawsuit states.
After realizing Mr. Cleveland was still in fact alive, Dr. Perry and the hospital staff told his wife they could not handle the situation and had Mr. Cleveland transferred to Buffalo General Medical Center for treatment.
Dr. William Morris at Buffalo General Medical Center explained to Mrs. Cleveland that her husband’s lung had been punctured during resuscitation attempts, and that air and fluid had filled around his lung because he was left unassisted for such a long time, the lawsuit states.
Mrs. Cleveland says the medical staff later advised her that oxygenation could not be maintained; therefore, her husband was pronounced dead again on October 11 at 10:48 a.m.
“There was about a 14-minute commute between hospitals. Due to the close proximity of the hospitals, they should have been able to provide him with emergency medical treatment,” Burkwit told HLN.
“By the time the doctor acknowledged he was alive, at that point Mr. Cleveland had a collapsed lung due to a rib fracture. So much could have been done sooner to save this man’s life,” Burkwit added. “It was unconscionable to leave family to watch their loved one struggling to survive. There needs to be accountability for the family and the public for what happened.”
Brian Sutter, the attorney representing Dr. Gregory Perry, declined to comment on the case, but did tell HLN: “Dr. Perry is a caring physician, and as the facts of this case are fully developed, I am confident it will be established that his actions were appropriate.”
Gregory T. Miller, the attorney for William Morris, the other doctor named in the suit, told HLN: “We reviewed the facts of the case and we stand firmly behind Dr. Morris and the care and treatment he provided Mr. Cleveland and as a result we intend to continue to vigorously defend Dr. Morris in this lawsuit and his group.”
Victor Oliveri, attorney representing Kaleida Health, the owner of DeGraff and Buffalo General hospitals, declined to comment due to privacy and privilege laws.
Tammy Cleveland feared the worst when she arrived to DeGraff Memorial Hospital on the night of Oct. 10, 2014.
Minutes earlier, her husband, Michael, had collapsed in a supermarket in a suburb of Buffalo. Witnesses and paramedics had performed CPR, but Michael had been rushed to the emergency room in serious condition.
Tammy was sitting in a hospital waiting room with her daughter and stepson when a young doctor named Gregory C. Perry delivered the bad news. He had worked on Michael for an hour but her husband’s heart had refused to restart, Perry allegedly told them.
Michael was dead, the doctor said.
But when Tammy and the children were allowed to see the supposedly dead man, what they saw startled them.
Michael was moving.
“I immediately noticed that Michael’s eyes turned to me,” Tammy told The Washington Post in a phone interview. “He was alive.”
When Tammy told Perry, however, she says the doctor didn’t believe her. For more than two and a half hours, she begged the physician, nurses and even a coroner to re-examine her husband — but nobody did, Tammy claims.
When Perry finally agreed to check Michael’s vital signs, he felt a heartbeat.
“My God, he’s got a pulse,” the doctor said, according to Tammy.
The story of how Michael seemingly “came back from the dead” is a strange and ultimately tragic tale of missed opportunities and alleged medical negligence. For the Cleveland family, it has been a nightmare. For countless others, it has conjured up distrust of doctors and captured dark fears of being fatally misdiagnosed by a physician.
And now it’s the subject of a lawsuit.
Tammy is suing Perry, another doctor and two hospitals in New York state court over claims that they “negligently, carelessly and recklessly treated” Michael.
“He didn’t take the time for me at all,” she said of Perry. “He just told me that my husband passed. He couldn’t just come in there and show that he was dead. He couldn’t take a second and put a stethoscope on him and prove to me that he wasn’t breathing. I don’t understand that. Why wouldn’t you do that to appease a grieving widow at that time, instead of walking in there nonchalant and give me your two cents acting like I was crazy?”
Brian Sutter, an attorney representing Perry, declined to comment on the case “due to privacy concerns.” Sutter did add, however, that “Dr. Perry is a caring physician, and as the facts of this case are fully developed, I am confident it will be established that his actions were appropriate.”
The company that runs the two hospitals declined to comment to local media. A lawyer representing the other doctor in the case said he stood by the physician’s treatment and intended to “vigorously defend the case,” according to the Buffalo News.
Tammy Cleveland’s nightmare began around 8 p.m. on Oct. 10, 2014, when she received a call from Michael’s ex-wife saying he had collapsed at a Tops supermarket in Tonawanda, N.Y.
Michael, 46, was a tall and handsome telemarketer. He and Tammy had met in 2001 at work in Endicott, N.Y. She was roughly a foot shorter and a few years older, but they had fallen in love and moved to Amherst, a suburb of Buffalo, in 2005.
When Michael collapsed last year, the couple was just a few days away from moving again to a bigger house near a golf course.
“We just bought new clubs,” Tammy tearfully told The Post.
As Perry told Tammy that her husband was dead, she felt her future falling apart.
But her sorrow started to turn into confusion, then anger, when she and her daughter were allowed to see Michael. Tammy thought it was strange that Michael had supposedly just died, and yet he wasn’t hooked up to oxygen or life support.
Then she saw Michael move.
When she told the doctor and a nurse what she had seen, however, they “advised that it looked like [Michael] was breathing and that it was normal because he was expelling what was left in his young body,” according to the lawsuit. “Perry and the nurse assured them that [Michael]’s heart had stopped, that he was not alive but he may expel air and that was normal.”
When Perry and the nurse left the room, however, Michael “turned his eyes and looked at [Tammy] as she spoke to him,” according to the lawsuit.
Tammy jumped back in shock. She called Perry and the nurse back in but they “did not touch [Michael] or check his vitals but told the family members this was normal and they again left the room,” according to the lawsuit.
When Tammy kept speaking to her husband, he “responded by turning his eyes towards [her], moving his head side to side, looking at [her] and moving his legs,” the complaint continues.
Again, Tammy called in Perry and the nurse. And again, they told her that her husband was dead. For more than two hours, the process repeated itself, with Tammy increasingly convinced that her husband was alive and trying to communicate with her, while his doctors and nurses insisted he was dead, she said.
“Throughout the night, Michael was doing more and more, and asking for help,” Tammy told The Post. She tried telling Perry and the nurse a third time but was similarly rebuffed, she said.
“I knew he was alive but a part of me felt like maybe I didn’t know that I was talking about,” Tammy said. “I don’t have a medical degree but I knew he was alive and I wanted somebody to believe me.”
She reached her breaking point when the coroner arrived to take Michael away for an autopsy.
“The coroner came in and I just yelled at him: ‘Are you here to prove that my husband is dead? Because he’s not. Look at him,’” Tammy recalled. When Michael’s arm, leg and mouth moved, the coroner “looked at him and walked out” to get the doctor, she said.
“I said: My god. If the doctor doesn’t prove that Mike’s either dead or alive he’s going to be laying there with him,” Tammy told The Post.
Finally, at 11:10 p.m., Perry entered the room for a fifth time and agreed to check Michael’s vital signs. More than two hours after he declared Michael dead, Perry now felt a heartbeat.
“My God, he’s got a pulse,” the doctor said, Tammy recalls.
“No s—,” she replied.
Tammy’s account is backed up by her brother and father, who arrived at the hospital roughly two hours after she did.
“It was very obvious to us when we walked in the room,” her brother, Peter Ferrera, told The Post. “We both walked in the room expecting to console Tammy [because] Mike had passed. We walked in and looked at each other and were stunned because it was obvious to us that he was still breathing. There was condensation in the [breathing] tube. We were just shocked.”
“We asked Tammy what was going on and she indicated that she had tried several times to get someone to look at him but nobody would,” Ferrera added.
When Perry finally felt Michael’s pulse, “all hell broke loose.”
“I think everybody was kind of stunned,” Ferrera said.
Their father, Lynn Ferrera, described a similar scene.
“Everybody who walked into that room, Michael seemed to respond to them,” the elder Ferrera said. “I’ve seen a lot of dead bodies and when we walked in that room, I did not see a dead body there. It was very obvious he was alive.”
“It just seemed like a man struggling for life,” Peter Ferrera added.
That struggle would continue for almost 12 more hours.
“When … Perry and the hospital staff realized [Michael] was alive, they began working on [him] in an emergency pace as one would expect in the Emergency Department,” according to the lawsuit. ” … They told [Tammy] and her family that they could not handle this situation and would have [Michael] transferred to Buffalo General Medical Center for treatment.”
As doctors tried to stabilize Michael, Tammy waited in an ambulance. After hours of begging hospital staff for help, she had gotten angry at a nurse who suggested her husband’s revival was a “miracle.”
But she also couldn’t help thinking that Michael might survive, after all.
“I thought there was a chance, absolutely,” she told The Post.
At 1:06 a.m., hospital staff wheeled Michael’s gurney to the ambulance, where paramedics were shocked to see the same man they had brought in more than five hours earlier — the same man they had been told was dead.
Fifteen minutes later, the ambulance arrived at Buffalo General, where doctors scrambled to insert a stent in Michael’s heart. The procedure went well, and Tammy began to believe that Michael might make it.
“I started to make sounds of joy and the doctor said, ‘No, no, no. He’s not out of the woods yet,’” Tammy recalled.
The problem was no longer Michael’s heart but his lungs. CPR hours earlier in the supermarket had broken his ribs and punctured one of his lungs. Now the lung was filled with fluid. He was still at risk of dying.
“It was all downhill from there,” Tammy said.
At 10:48 a.m. on Oct. 11, 2014, Michael Cleveland died — this time for real.
On April 3 of this year, Tammy sued Perry, a doctor at Buffalo General and both hospitals, accusing them of “negligent” care resulting in her husband’s death. She broke her silence last week in interviews with the Buffalo News,which did an extensive report on the case.
“Defendants’ alleged actions and/or inactions were morally culpable, actuated by evil and reprehensible motives, malicious, reckless, gross, wanton and/or in reckless disregard for Plaintiff’s rights and her family’s rights,” the lawsuit claims, demanding an unidentified amount of punitive damages.
The defendants are contesting the case but, except for one, are not commenting.
Perry did not respond to the Buffalo News’ requests for comment. Sutter, his attorney, asked the newspaper not to contact his client.
A spokesman for Kaleida, the company that owns both Buffalo General and DeGraff Memorial hospitals, told the Buffalo News that “This is a patient care issue, which is covered by federal privacy law. So we are not at liberty to comment at this time.”
Gregory T. Miller, an attorney for William M. Morris, the Buffalo General doctor also named in the suit, told the newspaper: “It’s our policy not to comment on any pending litigation, other than we stand by Dr. Morris and all the care and treatment he provided. We intend to vigorously defend the case.”
Charlie Burkwit, an attorney representing Tammy Cleveland, said his client wasn’t out for money.
“This case is about accountability,” Burkwit said. “This family needs closure.”
And closure, Tammy said, can only come when Perry — a young doctor who had only received his license 15 months before the incident, according to the Buffalo News — admits his mistake.
“I want him to apologize,” she said. “I want him to apologize to my family, I want him to apologize to Mike. And I want to make sure it’s never going to happen again to anyone else.”
Even if that happens, Tammy said she will still be shaken by watching her husband die twice in front of her eyes.
“I still have nightmares,” she said. The thing that stays with her most is the thought of her husband, immobilized, trying to signal that he was still alive as his doctor pronounced him dead and walked away.
“Can you imagine how Mike must have felt?” Tammy said. “His family is fighting for his life and the medical industry is telling us he’s dead. Can you imagine what it must have been like for him, laying there, listening to that?”
The next hearing for the case is scheduled for Feb. 24, when Tammy will appear in court alongside the doctor she blames for her husband’s excruciating double death.
“I wonder if this guy sleeps at night,” she said, “because I sure don’t.”