New York State Court of Claims

New York State Court of Claims

DIAZ v. STATE OF NEW YORK, #2003-018-254, Claim No. 100697


Claimant failed to prove a prima facie case against the defendant. The claim is 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:
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

The claim seeks damages for two separate incidents which occurred while claimant was an inmate at Marcy Correctional Facility (hereinafter, Marcy). Labeled in the claim as the "First Cause of Action," claimant seeks redress for injuries sustained as a result of the alleged improper medical care he received after he fell, and the "Second Cause of Action" is for an alleged assault and battery committed upon claimant by a correction officer and witnessed by other correction officers who failed to stop the assault. The trial on the issue of liability commenced on November 18, 2002.
First Cause of Action
Claimant testified that on August 12, 1998, while in the Special Housing Unit (hereinafter referred to as SHU) at Marcy, he tripped over the door jamb between the recreation area and his cell and landed on his left knee. When he got up, he was in severe pain and his cell mate assisted him to the bed. His cell mate pounded on the door to get the Correction Officer's (hereinafter referred to as C.O.) attention.[1]
Some time thereafter, no later than 10:30 a.m., a C.O., whose name is unknown to claimant, responded, and claimant requested medical attention. The C.O. said he would return but never did. Another C.O. came to the cell and said she would send medical personnel, but no one came. It was not until 8:00 or 9:00 p.m. that claimant saw a nurse. He recalled hearing the slots on the doors opening and closing and his cell mate calling out to Nurse Boutet. She came to the cell, opened the slot, and asked to see claimant's injured knee.[2] Shortly thereafter, a C.O. brought claimant an ice bag.
Claimant said he continued to bang on the cell door because he was still in pain and wanted medical attention. At approximately midnight, Nurse LaLonde and a C.O. arrived at claimant's cell. The nurse observed claimant's knee through the window near the top of the door and through the slot. The nurse did not provide any assistance to claimant and filed a misbehavior report[3]
against him for falsely reporting that he needed emergency medical care. Claimant was found not guilty. Claimant, in turn, filed a grievance[4] for lack of adequate medical attention. This grievance was denied. The appeal, decided on October 1, 1998 by the Superintendent, was also denied after claimant had received additional medical care.
Claimant testified that during that night (August 12 - 13, 1998), he banged on the door of his cell because of the pain in his knee and was told by the guard he was just wasting his time. He eventually went to sleep.

Early on August 13, 1998, after claimant had submitted a sick call request, Nurse Solli went to claimant's cell. Nurse Solli opened the slot in the cell door, looked at his knee, then slammed the slot shut and ran off yelling. She filed two misbehavior reports[5]
against claimant alleging in one that he exposed himself to her. After the hearings, based upon a videotape of Nurse Solli's visit to claimant, he was again found not guilty. Claimant filed two more grievances[6] and sent letters to the medical staff. These grievances were ultimately denied by both the Inmate Grievance Resolution Committee and the Superintendent.
Claimant testified that he submitted a sick call slip every day until he was taken to the hospital but received no response to his requests. On August 31, 1998, claimant sent a letter to the medical staff requesting attention for his knee. On September 2, 1998, Nurse Tayler examined claimant in the medical cell on S-block. Unlike the prior exams, Nurse Tayler checked claimant's range of motion and his ability to use his left knee. Claimant testified he was taken to a local hospital for x-rays on September 3.[7]
Claimant had a fractured medial tibial plateau. As a result, claimant was issued a velcro-strap leg brace. Nurse Tayler saw claimant a few more times for his knee problems.[8]
Claimant testified he was taken to State University Hospital in Syracuse on two occasions; on September 25, 1998 he gave a history[9]
but due to a mix-up in paperwork, not much else transpired. On October 19, 1998, claimant was examined at State University Hospital by Dr. James Nieman. Claimant stated he was given three prescriptions at that time; one for crutches, one for a velcro leg brace and one for medication. According to claimant, the only prescription honored by Marcy was for the leg brace.
However, a review of claimant's ambulatory health record showed that claimant was examined by Dr. Nieman on September 25, 1998, and the later appointment on October 19, 1998, was cancelled due to a failure to bring x-rays. Furthermore, Dr. Nieman only wrote two prescriptions, one for crutches and the second for a leg brace.

On October 26, 1998, claimant saw Dr. Vadlamudi at Marcy for the first time regarding his knee. Dr. Vadlamudi's notes from that day[10]
indicate that he and Dr. Nieman agreed claimant did not require crutches, but if claimant's pain persisted, he would be allowed bed rest. Claimant had a second set of x-rays on October 9, 1998, which showed the fracture healing. Sporadic complaints of knee pain can be found in claimant's medical records through November 3, 1998. The Court notes no entries regarding knee problems in those records between August 14, 1998 and September 2, 1998.
Claimant submitted various documents at trial, including Department of Correctional Services and facility directives, which address inmates' rights to medical care and the procedure for inmates to obtain such care.[11]
The procedures for medical care for an inmate housed in the SHU are set forth in a separate directive from the one used for the general population.[12] The Court notes that requests by inmates in the SHU are required to be recorded and to be maintained for future reference. No such lists or logs were offered by claimant. Claimant acknowledged on cross-examination that he did not put in sick call slips between August 15, 1998 and September 1, 1998. On redirect examination, however, claimant said he did submit them.
No other witnesses were called by claimant on his first cause of action, and the State moved for dismissal for failure to prove his case. The Court reserved decision on the motion.

Claimant proceeded with his case on a theory of negligence, producing no expert testimony regarding the alleged improper medical care. Whether or not expert proof is required turns on whether the claim is one for medical malpractice and whether the standard of conduct is within the knowledge of the fact finder. The Court of Appeals formulated a general test to determine whether a claim sounds in malpractice or common law negligence in
Bleiler v Bodnar, 65 NY2d 65. In deciding whether or not a nurse could commit medical malpractice, the Court said, "Obviously, not every negligent act of a nurse would be medical malpractice, but a negligent act or omission by a nurse that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice" (Bleiler v Bodnar at 72) (emphasis added). The Court further stated that "[t]he conclusion is no different with respect to the emergency room nurse, functioning in that role as an integral part of the process of rendering medical treatment to a patient" (Bleiler v Bodnar at 72). Clearly, claimant's position that the nurses who saw him from August 12 through September 3, 1998, failed to provide proper medical treatment or failed to properly examine his knee are substantially related to the rendition of medical care. Therefore, the cause of action is for medical malpractice (cf., Zellar v Tompkins Community Hosp., 124 AD2d 287).
The Court must now decide if expert testimony was required to support the medical malpractice alleged by claimant. The proof established that claimant's knee was viewed through a slot in the cell door on the first three visits by the nurses. He was not physically examined until September 2, 1998, when Nurse Tayler saw him and sent him for x-rays. When seen in August, claimant was given ice and ibuprofen and told to elevate his leg. The sufficiency of this treatment and the timing of requesting the x-rays have not been shown to deviate from the applicable standard of care. The Court is not in a position to make such a determination without evidence of the standard of care a nurse or doctor would be required to meet. Therefore, the State's motion to dismiss is GRANTED for claimant's medical malpractice cause of action.

Claimant also argues that his requests for sick call, submitted daily to no avail, in violation of the facility or Department of Correctional Services directives would constitute ordinary negligence or ministerial negligence (
Schneider v Kings Highway Hosp. Center, 67 NY2d 743; Kagan v State of New York, 221 AD2d 7). Ministerial negligence involves a failure to fulfill a duty to perform some non-discretionary action (see, Public Officers Law §73(1)[d]). Clearly, the State has a duty to provide persons in its custody with appropriate medical care (Matter of Farace v State of New York, 176 AD2d 1228). Claimant established that certain non-discretionary directives exist which describe when and how medical care services should be provided to inmates in the Special Housing Unit.[13] However, claimant failed to prove that the State breached its duty to claimant or failed to comply with the directives for providing medical services. Claimant's recollection of his requests for sick call was shown to be inaccurate and the Court does not credit his testimony on this point. The evidence establishes that claimant was seen by a nurse each time a documented request for medical services was made. Whether or not the nurses' medical services were appropriate, requires proof from a medical expert of what is the standard of care - proof which was not presented.
Claimant's argument that the failure to respond to his daily sick call requests constitutes ordinary negligence also fails (
Schneider v Kings Highway Hosp. Center, 67 NY2d 743). The documentary evidence conflicts with claimant's recollection of these events; therefore, claimant has failed to establish ordinary negligence.
Accordingly, claimant's cause of action for ordinary negligence or ministerial negligence must also be DISMISSED.
Second Cause of Action
Claimant's second cause of action is for assault and battery which he alleges was perpetrated by a C.O. on September 21, 1998. He also claims that other correction officers in the vicinity failed to stop the attack.

Claimant testified that on September 21, 1998, he was notified that he had a legal visit which required him to be taken from the SHU to another building. Before being taken from his cell, claimant was handcuffed through the door slot and a chain was wrapped around his waist, to which the handcuffs were attached. He was searched and leg shackles were put on. He recalled that he had his leg brace on that day.

From his cell, he was escorted by officers to a school bus. He carried a net bag with his legal papers and perhaps a book in it. Claimant said he had restricted leg movement from the restraints. When he came to the door of the bus, he had to climb two to three steps. The driver was C.O. Restle who told claimant he could not get on the bus until he put the medallion he was wearing inside his shirt. Claimant said the handcuffs and waist chain prevented him from reaching high enough to comply with C.O. Restle's order. Additionally, he had the net bag in his hands. He started up the bus steps and C.O. Restle threatened him, hit him, put him in a yoke hold, and took him to the floor of the bus. Claimant recalled some other correction officers screaming at him.

Claimant was removed from the bus and taken back to S-block where he was examined by Nurse Tayler. Pictures were taken which show red marks on claimant.[14]
Claimant submitted a grievance as a result of the altercation.[15] On cross-examination, claimant said he exchanged words with C.O. Restle before the assault, telling the C.O. he could not put his chain inside his shirt, he needed the cuffs removed to do so. Claimant did not recall any directive from C.O. Restle regarding buttoning his shirt.
The State called Correction Officers Charles Restle, Paul Cambridge, Thomas Vanno, and Rickie Weber on its direct case in defense of the second cause of action. C.O. Restle was the bus driver on September 21, 1998, and Correction Officers Cambridge and Vanno were on board the bus. The testimony of these three officers was consistent and reflected their recollection of the incident with claimant as follows: As claimant was about to enter the bus, C.O. Restle gave the claimant a direct order to button his shirt and tuck in his medallion. After the second or third direct order, claimant started up the stairs of the bus and said, "You're p_ _ _ _ _ g me off, old man. Take this." Claimant moved toward C.O. Restle who was starting to rise from the driver's seat. Restle pushed claimant away, his hands about chest level, and claimant fell to the bus floor where Officer Cambridge restrained him. Sergeants Weber and Seresky were nearby and ordered claimant removed from the bus and returned to S-block where he was examined by Nurse Tayler. It was claimant's contention that he could not reach the buttons and/or medallion because of the handcuffs and waist chain.

Both Correction Officers Cambridge and Vanno were asked about the length of the chain available to claimant for hand movement up and down. They both said that claimant could reach his buttons; C.O. Vanno said the claimant could reach from his mouth to his zipper.

Sgt. Weber did not see what happened but was there when claimant was removed from the bus. He followed claimant back to S-block and testified that claimant was not wearing leg restraints as claimant had stated. Introduced through this witness were a video tape and still photographs from the video showing claimant returning to S-block from the bus without leg restraints. When asked on cross-examination if the restraints had been removed on the bus, the witness said that leg restraints were not required; they could be omitted for things such as medical reasons. On re-direct examination, the video was shown of claimant leaving S-block, before the incident, also without leg restraints.

Frequently with an inmate's claim of excessive force or assault and battery by a correction officer, the credibility of the witnesses becomes the deciding factor (
Davis v State of New York, 203 AD2d 234). It is the duty of the Court as the fact finder to assess each witness's credibility (Amend v Hurley, 293 NY 587, 594). Claimant's testimony contained several misstatements; although some were minor, others were not. As a result, the Court finds claimant's testimony not credible. Since claimant has the burden of proof and his testimony was the only proof presented on his direct case, his second cause of action must be DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

September 17, 2003
Syracuse, New York

Judge of the Court of Claims

[1]Claimant testified that was the only manner in which inmates could attract a C.O.
[2]Claimant told the Court that there was a window and a slot in the cell door. The slot opened on hinges and is about waist high.
[3]Exhibit 15
[4]Exhibit 10
[5]Exhibits 16 and 17
[6]Exhibits 11 and 12
[7]On cross-examination, claimant acknowledged that he was taken to Walsh Medical Center at Mid-State Correctional Facility.
[8]See, specifically on September 4, 1998, September 7, 1998, September 17, 1998, and September 21, 1998.
[9]The hospital record indicates claimant injured his knee on August 4, 1998. Claimant contends this is an error; however, Exhibit 10, claimant's grievance dated August 12, 1998, reflects a problem with his knee the week before.
[10]Exhibit 1
[11]Exhibits 25, 33, 35, and 36
[12]Exhibit 36
[13]Claimant's Exhibits 25 and 36.
[14]See Exhibits 19-D, 19-F, 19-G, and 19-J.
[15]Exhibit 14.