New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2001-029-042, Claim No. 95917



prisoner - second-hand smoke. No medical proof, also res judicata as two similar claims were previously dismissed by Judge Corbett and Judge Marin. The other claim, prisoner alleged negligence in failing to provide bed and chair, as well as failure to provide medical showers. Failure of proof, claim dismissed.

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):

Claimant's attorney:
Anthony G. Gill, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 10, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


These two claims, by a
pro se inmate, seek recovery from defendant for damages which claimant alleges (1) were the result of defendant's negligence in failing to enforce the New York State Indoor Clean Air Act and exposing claimant to second-hand smoke (Claim No. 96180) and (2) were the result of the defendant's negligence in (a) denying claimant medical items, (b) failing to follow medical orders, and (c) failing to provide claimant with a blanket in violation of 7 NYCRR § 320.2 (b) (3) (Claim No. 95917). The Court, upon consent of the parties, joined these claims for trial (CPLR § 601). The trial was held at Sing Sing Correctional Facility (hereinafter Sing Sing) on October 12, 2000. The Court gave the parties 30 days from completion of the trial to submit post-trial information.[1] The claim was deemed fully submitted on November 16, 2000.
We deal first with Claim Number 96180. In response to a query from the Court, claimant stated that he did not have a medical expert available to testify that the alleged exposure to second-hand smoke was the cause of his symptoms. In addition, this Court is now aware of two identical cases filed by the claimant against the defendant which were previously dismissed by this Court (Claim Number 101108 and Motion Number M-60868, Corbett, Jr., J., signed 11/6/00; Claim Number 93402, Marin, J., filed 12/22/99). Quite apart from the fact that this Court agrees with the analysis in those cases, this claim is now barred by the doctrine of
res judicata.
A bench decision was rendered granting the State's motion to dismiss for the reasons set forth by the Court on the record. Claim Number 96180 is, therefore, DISMISSED.

We now turn to Claim Number 95917. In essence, claimant testified at some length and in great detail as to the alleged deprivation of certain items to which he claims entitlement. Essentially, claimant asserts a cause of action based upon the failure of the State to provide him with a "standard blanket", a steel bed and a straight-back chair in violation of his medical permits and the failure of the State to provide medical showers within his residence block rather than in a separate building.

We turn first to the issue of the State issued blanket. Claimant asserts that he did not receive a standard blanket in violation of 7 NYCRR Chapter 6. The Court has reviewed 7 NYCRR Chapter 6 and finds that Chapter 6 refers to standards for the operation of Special Housing Units at correctional facilities. It is uncontroverted that when claimant arrived at Sing Sing on October 25, 1996 he was not confined to a Special Housing Unit, but was a member of the general inmate population. Thus, Chapter 6 of 7 NYCRR did not apply to claimant at the time of his arrival at Sing Sing. The Court also notes that in response to claimant's November 4, 1996 grievance regarding the lack of a blanket (Exh. 1), an investigation was conducted and claimant was informed by a sergeant that "the blanket which was provided by the State is considered as one" (see, Exh. A attached to the State's post trial letter [2]
). Thus, it appears that claimant did, in fact, receive a blanket although it may not have been one of his choice. Thus, the cause of action alleging negligence in the failure of Sing Sing to provide him a blanket is dismissed.
Turning now to the issue of the alleged failure to provide a steel bed and a straight back chair, we find that claimant established the Sing Sing medical department issued him a medical permit for a steel bed and a straight back chair on November 7, 1996 (see Exh. 2).

Based upon the documentary evidence at trial, the Court finds that the claimant did, indeed, have valid medical permits for a steel bed and/or a straight-back chair at various times during his incarceration. However, also based upon the documentary evidence, it appears that the State's failure to provide these items to claimant immediately upon issuance of the medical permits resulted from the unavailability of these items. Claimant alleges that the failure to provide these items is a violation of Directive 216 of the Sing Sing Correctional Facility Policies and Procedures (Exh. 3) and that the deprivation was a result of willful and deliberate indifference.

However, a review of Directive 216 (Exh. 3) indicates, at Section V (c), that while steel slab beds may be authorized, "this item may at times be in short supply and inmates may have to wait until available". Thus, based upon the clear language of the policy submitted by claimant as his exhibit, this Court cannot conclude that the defendant breached its own policies in not having a steel bed
immediately available to claimant. Further, although "straight-back chairs" are not mentioned in the policy at all, it is reasonable for this Court to conclude that such items are within the ambit of Directive 216 and are subject to the same terms and conditions for issuance to inmates.
Since the Court finds that the actions of the defendant were consistent with Directive 216, and no violation thereof occurred, claimant has failed to prove that the delay in obtaining a steel bed or straight-back chair resulted from willful action or indifference. As a result, these aspects of the claim are dismissed.

Even assuming
arguendo, the State's failure to have the steel bed and straight back chair available for claimant because the medical department ordered them for him constituted a breach of duty owed to claimant, claimant failed to establish, by way of expert medical testimony or medical documentation, that the breach resulted in any damage or injury to him. Without medical proof, no viable claim that gives rise to liability can be sustained (see, Paul v Boschenstein, 105 AD2d 248; Macey v Hassam, 97 AD2d 919). Thus, the causes of action alleging negligence based upon Sing Sing's failure to provide claimant with a straight-back chair and steel bed are dismissed.
We now address the issue of the alleged failure to provide prescribed medical showers, within the cell block. Claimant testified that he did not take showers in his housing block, but was required to take his medical showers in the bath house in violation of facility policy. Claimant did establish that Sing Sing Directive 216 (Exh. 3) provides that medical showers are to be taken in the housing block and not in the bath house. Claimant's uncontroverted testimony is that while he was assigned to Q Gallery he was required to take showers in the bath house. Therefore, the State did not comply with its own regulations and no immunity attached to these actions (
Arteaga v State of New York, 72 NY2d 212). However, claimant again failed to establish, by competent medical proof, that this violation resulted in any damage to him or exacerbated an existing injury. As a result, this cause of action must be dismissed as de minimis.
We further find that claimant failed to establish by a preponderance of the credible evidence that the State failed to provide his medical permits in a timely manner, that the State failed to provide him with his medical items while he was confined in protective custody status, or that drafty conditions in his cell caused him any harm whatsoever. These causes of action are, therefore, dismissed.

Finally, claimant alleges violation of his Due Process rights as established by the New York State and United States Constitutions.

With regard to claimant's allegations of deprivation under the Federal constitution, it is long settled that no action may be maintained in this Court against the State for alleged Federal constitutional violations (
Matter of Thomas v NY Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656; Davis v State of New York, 124 AD2d 420). To the extent that the claimant may assert Federal constitutional violations, his remedy lies elsewhere and the instant cause of action is dismissed.
With regard to claimant's assertions of due process violations pursuant to the New York State Constitution, such claims may be addressed by this Court in the appropriate circumstance (
Brown v State of New York, 89 NY2d 172). This Court considers due process rights to be "self-executing" (see, Brown v State of New York, supra, 186) and, as such, remediable in this Court.
However, while this Court may consider due process claims grounded in the New York State Constitution, nothing obviates the necessity for claimant to establish a "protected right" which was allegedly violated in bringing a claim. In this matter, claimant has failed to establish any such protected right, and therefore does not meet the threshold test for a due process inquiry.

Claimant specifically alleges that the failure of the State to provide a steel bed and/or a "straight chair", despite medical permission for same, constituted a deprivation without due process. Claimant's position would necessarily require that we equate medical permission with a "vested property right". As noted,
supra, Directive 216 of the Sing Sing Policies and Procedures (see Exh. 3) specifically provides that "steel slab" beds may be provided, but that "this item may at times be in short supply, and inmates may have to wait until available" (Exh. 3, Pg. 2). Thus it is clear that claimant had no vested right to obtain a special bed immediately upon grant of medical permission. In the absence of such vested right a due process claim must fail. The sole alternative would be for this Court to unilaterally impose upon the Department of Correctional Services a duty to have sufficient special beds on hand for each prisoner at all times in case one becomes necessary. The Court declines to create this duty and thereby overrule established policies which are within the purview of the Department of Correctional Services.
The cause of action asserting State constitutional violations is dismissed.

Based upon the foregoing, the State's motion to dismiss the claim, made at the conclusion of trial, upon which the Court reserved decision, is now granted and Claim Number 95917 is DISMISSED.

The Chief Clerk is directed to enter judgments accordingly.

January 10, 2001
White Plains, New York

Judge of the Court of Claims

[1] The State's post-trial papers were mailed November 7, 2000 and received by the Court on November 8. Claimant's post-trial papers were mailed Monday, November 13, 2000 and received by the Court on November 16. The Court will consider claimant's papers as the Court's 30 day period expired on a weekend and the papers were mailed on the next business day.
[2] The State, at trial, objected to the admission into evidence of claimant's grievance as the documents did not contain the correctional facility's responses. The Court allowed the State to submit the responses within 30 days of the conclusion of the trial.