New York State Court of Claims

New York State Court of Claims

McKINS v. THE STATE OF NEW YORK, #2001-016-040, Claim No. 93264


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
John McKins
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
June 11, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of John McKins, who complains that he was wrongfully kept in keeplock status for 10 days. Specifically, he alleges that the state was negligent in "failing to refer to the medical department for confirmation of claimant's lower back ailment prior to placing claimant on ten day keeplock . . . and for failing to refer to the Facility Health Services Director (or designee) for medical clearance prior to assigning prisoners to a double bunk cell." The claim was tried at Sullivan Correctional Facility where McKins testified on his own behalf and defendant called Dr. Mervat Makram.

McKins testified that upon being transferred from Sullivan to Woodbourne Correctional Facility, he was initially assigned to a cell with a lower bunk, but the next day was told to move to an upper bunk cell. He informed an officer that he had a back ailment which precluded him from using a top bunk. The officer then made a phone call to check on the issue, but McKins was nonetheless ordered to "lock in" an upper bunk cell. McKins testified that he refused to go, after which he was placed in keeplock status in his lower bunk cell.

Claimant recounted that a disciplinary hearing was commenced seven days after his keeplock status commenced, and was completed three days later. According to McKins, it was confirmed at the hearing that he had a back ailment and the disciplinary charge was dismissed. McKins argues that there is a screening "protocol" which was not followed in his case,
i.e. everyone who is being considered for a top bunk must be screened, and this was not done for him.
Doctor Mervat Makram testified as to claimant's ambulatory health records. See Claimant's Exhibit 3. She stated that when claimant arrived at Woodbourne on November 1, 1995, a screening nurse reviewed his prior medical records. The nurse noted that claimant had a history of chronic lower back pain, but was not on any medication and had no other current medical problems. The ambulatory health record for that date indicates that claimant "states has back problem - wants bed board - advised to sign up for sick call in the morning." Dr. Makram stated that when nurses screen a new patient, they look at certain criteria to determine where an inmate should bunk,
i.e., on an upper or lower bunk. However, a doctor must make the final decision.
Doctor Makram noted that McKins' records show that he came to sick call the next day with regard to his back problem and requested a bed board and an extra blanket, which she approved. She stated that it was not possible to put a bed board on a top bunk so claimant was "automatically" removed from a top bunk and assigned to a lower bunk. Claimant's Exhibit 1, a "Locator System Internal Movement History Display" appears to indicate that on November 2, 1995, claimant's assignment was changed from a lower bunk to an upper bunk and that same day, back from an upper bunk to a lower bunk. Despite the assignments listed on this document, claimant maintained that he never left his original lower bunk cell, but rather refused to move and was then keeplocked. Such document also indicates that on November 8, claimant was reassigned to what he asserted was a designated keeplock area.

Dr. Makram stated that a health record entry for November 9, 1995 shows that McKins again asked for a bed board permit, which was "already written," but that a doctor wrote another permit. Claimant interjected that he was not issued a bed board permit until December 8, 1995 (although it was unclear whether he was referring to the permit or the board itself). Dr. Makram testified that there was no way to tell when McKins actually got the board, but that if he had a problem he could have had a correction officer call to verify that he was entitled to a board.
* * *
7 NYCRR §251-5.1(a) provides in relevant part that "[w]here an inmate is confined pending a disciplinary hearing . . . the hearing must be commenced . . . in no event . . .beyond seven days of said confinement without authorization of the commissioner or his designee." Such hearing "must be completed within 14 days following the writing of the misbehavior report unless otherwise authorized by the commissioner or his designee." 7 NYCRR §251-5.1(b). It is undisputed that McKins' hearing was commenced within seven days and finished within 14. As to the period of days before he was released from keeplock, "corrections personnel are entitled to absolute immunity for those ‘discretionary decisions in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results.'"
Minieri v State of New York, 204 AD2d 982, 613 NYS2d 510, 511 (4th Dept 1994) (citation omitted). Moreover, "[d]isciplinary proceedings in correctional facilities that are conducted consistent with the applicable rules and regulations are covered with a blanket of immunity. . . The fact that claimant was ultimately found not guilty of the charge does not give rise to a viable claim." Brown v State of New York, Ct Cl filed 10/27/98 , Bell, J. (unreported), claim nos. 94875 and 94876.
As set forth above, defendant was in compliance with the relevant timing requirements as to claimant's disciplinary hearing. Nor was there
evidence as to any other failure by defendant to abide by an applicable rule or regulation. As to upper bunk "screening," the evidence was insufficiently developed to show that there was any rule or regulation that was violated in this case. Accordingly, the claim herein is dismissed.

June 11, 2001
New York, New York

Judge of the Court of Claims