New York State Court of Claims

New York State Court of Claims

VAN DUYNE v. THE STATE OF NEW YORK, #2003-032-518, Claim No. 103802


Synopsis


A prison inmate's claim based on allegations of excessive force, battery, intentional infliction of emotional distress, involuntary administration of anti-psychotic drugs, deliberate indifference to medical needs, and violation of religious rights is dismissed as unsupported on the record.


Case Information

UID:
2003-032-518
Claimant(s):
EMERALD VAN DUYNE
Claimant short name:
VAN DUYNE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103802
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Emerald Van Duyne, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
August 4, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
This claim was tried on June 23, 2003 at the Clinton Correctional Facility ("Clinton") in Dannemora, New York.

Claimant, Emerald Van Duyne ("claimant"), filed this
pro se claim on February 9, 2001. The claim alleges that employees of Clinton Correctional Facility used excessive force against claimant, stripped him naked in front of a female nurse against his religion, forcibly medicated him with an anti-psychotic drug, and denied his request for medical attention for 15 days. The claim also alleges that defendant was negligent in failing to supervise the employees who allowed this incident to take place. Claimant seeks compensation in the amount of $500,000 for: (1) use of excessive force, (2) battery, (3) intentional infliction of emotional distress, (4) involuntary administration of anti-psychotic medication, (5) deliberate indifference to medical needs, and (6) violation of freedom to exercise religion.
On January 2, 2001, claimant was the subject of a Tier II hearing on an unrelated matter. The hearing was conducted by Lieutenant Steven Jennett, who during the hearing heard an audible tone and noticed that claimant was wearing a Timex Ironman watch. He immediately examined the watch and declared it contraband in violation of prison regulations. The watch was confiscated and claimant became very upset and agitated. At the end of the hearing, claimant requested that he be seen by a psychiatrist in the mental health unit ("Satellite Unit"). Lieutenant Jennett made an emergency referral and radioed for Sergeant N. Senecal to escort claimant to the Satellite Unit. When Lieutenant Jennett ordered Sergeant Senecal to place claimant in handcuffs, claimant protested, saying handcuffs were not necessary since he was not showing any signs of aggression. Lieutenant Jennett informed him that he must be escorted in handcuffs. Claimant then retracted his request to see a psychiatrist, but Lieutenant Jennett informed him that it was too late to do so.

Upon arriving at the Satellite Unit, claimant was seen by Mr. Richardson, a social worker, who told claimant that he was "playing games" and to get out of his office. Claimant was then seen by Dr. Maria Melendez, a psychiatrist and clinical director of the Satellite Unit.[1]
Claimant testified that he told Dr. Melendez that he was a Muslim inmate and that he wanted to talk to her because he was upset that his watch was taken from him by Lieutenant Jennett. Dr. Melendez told claimant that she would first need to perform an evaluation. Dr. Melendez then asked him a few questions about his medical past and about his current state of mind. He answered and explained to her that he was not a threat to himself, he was just upset about having his watch taken. He also told her that as a practicing Muslim he did not want to be admitted to the Observation Unit because he would be stripped of his clothing and would be unable to perform his daily prayers. Dr. Melendez then retreated to her office to make her decision.
While claimant was sitting on the bench in the waiting room he noticed the medical staff exiting the area and correction officers entering the area. Dr. Melendez returned to the waiting area and told claimant that he was going to be put in observation room 5 in the Observation Unit. Claimant objected and said "hell no" (Exhibit A, p. 3). Claimant testified that he became very upset, fell to his knees, and begged Dr. Melendez not to admit him to the Observation Unit. Dr. Melendez walked out of the waiting area without responding.

Correction officers then carried claimant, one officer to a limb and one holding his neck, to observation room 5. Claimant testified that he was choked and punched on the way to the observation room, an approximate two minute trip. Correction officers restrained claimant on a bed in the observation room and began cutting his clothes off. During this time claimant struggled and resisted, albeit still handcuffed (Exhibit A, p. 3). A female nurse then entered and injected claimant twice with an anti-psychotic drug in his bare buttocks.

While in the observation room, claimant was seen by a nurse for his wrist, which claimant alleged was bleeding. The nurse gave claimant a triple antibiotic to treat his wrist (Exhibit C, p. 2). Claimant was not given any other treatment for his injuries until fifteen days later when he received x-rays (Exhibit C, p. 5). On May 10, 2001 he was seen by an outside orthopedic doctor regarding the injuries he claimed (Exhibit 1, p. 2). The x-rays revealed no abnormalities, and the physician found nothing wrong. Claimant was released from the observation room the evening of January 3, 2001 and was issued a Tier III misbehavior report (Exhibit 11, p. 2). After a hearing, claimant received ninety days loss of privileges and a recommended loss of four months of good time, which could affect his conditional release date (Exhibit 11, p. 3).

According to Lieutenant Jennett, the hearing officer for the claimant's Tier II hearing on the day of the incident, he noticed claimant's watch during the hearing. He examined the watch and determined that it was contraband because of its ability to connect to a computer and its ability to produce an audible alarm sound (see Exhibit B). The watch was confiscated and claimant became "irately agitated," to the point where the Tier II hearing was almost canceled. Upon the conclusion of the hearing, claimant was still very agitated, screaming and thrashing in his chair. Claimant requested a referral to the Satellite Unit, but Lieutenant Jennett testified that he would have requested an emergency referral in any event, based on claimant's behavior. He called the Satellite Unit to alert them and then called Sergeant Senecal, because the proper procedure when escorting an inmate on an emergency referral is to have a Sergeant or higher rank officer do the escort. Use of restraints is also standard procedure. According to Lieutenant Jennett, there was no use of force needed to escort claimant to the Satellite Unit.
Dr. Melendez testified that claimant was brought to the Satellite Unit via emergency referral by Lieutenant Jennett, who indicated that claimant had asked to go to the Satellite Unit. When she first saw claimant, he was very upset, angry and agitated. Correction officers could not get him into an interview room to do an evaluation because he was out of control (
see footnote 1). Based upon claimant's erratic behavior, Dr. Melendez concluded that claimant was a danger to himself or others and that he should be admitted for observation. When Dr. Melendez informed claimant he was to be admitted, claimant dropped to his knees and begged not to be admitted. She also observed claimant refusing numerous direct orders from correction officers to get up or he would be carried to the Observation Unit.
After being carried to the Observation Unit while still restrained, claimant was involuntarily given two injections of Haldol, an anti-psychotic medication, which is a sedative. According to Dr. Melendez the procedure for forcible medication is that there must be an emergency situation and a doctor must determine that the inmate is a danger to himself or others. She testified that the New York State Mental Hygiene Law allows forcible medication and that she is an employee of the New York State Department of Mental Health.
Dr. Melendez also testified that she had no recollection of claimant telling her he is a Muslim or that admitting him for observation would keep him from his daily prayers.
Correction Officer James Balko testified that he was called by Lieutenant Jennett to assist with the escort of claimant to the Satellite Unit. When arriving at the hearing room he did not notice anything strange about claimant's demeanor. He testified that claimant was handcuffed and escorted to the Satellite Unit without incident. While claimant was seated on a bench in the waiting room Dr. Melendez came out and spoke to claimant. Correction Officer Balko testified that when Dr. Melendez told claimant that she was admitting him for at least one night, claimant sat on the floor and refused at least three orders to proceed to the Observation Unit. Sergeant Senecal then ordered Correction Officer Balko and others to pick up claimant and carry him to the Observation Unit. Correction Officer Balko did not recall anyone grabbing claimant by the neck while carrying him, but he did recall that claimant was kicking at them.
Excessive Force and Battery
Prison officials are solely responsible for the preservation of order and security in the facilities they administer (Correction Law §§ 112, 137;
Gross v Henderson, 79 AD2d 1086, 1087 [4th Dept 1981], lv denied 53 NY2d 605). In that role they may be required to use force in order to preserve order and security. Use of physical force against an inmate in the custody of the Department of Correctional Services is permitted when "any inmate or group of inmates, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and prevent any such attempt or escape" (Correction Law §137[5]). Whether or not the force used was excessive is to be determined by the trier of fact upon examination of the circumstances confronting the officers (Hinton v City of New York, 13 AD2d 475 [1st Dept 1961]). The credibility of witnesses will be a determinative factor in these cases (Davis v State of New York, 203 AD2d 234 [2d Dept 1994]).
In determining whether physical force is necessary and, if so, what degree of force should be employed, correction officers must use the greatest caution and exercise conservative judgment while acting in good faith with reasonable care and upon probable cause (7 NYCRR 251-1.2[a][1, 2]). The degree of force a correction officer is permitted to use is that which is reasonably required in the circumstance (7 NYCRR 251-1.2[b]).

In the instant case the evidence indicates that claimant became highly agitated when his watch was taken at the Tier II hearing and became agitated at several other points during the incident. Upon being told he would be held in the Observation Unit, claimant became defiant. He told Dr. Melendez that he "would not participate in going to Obs [Observation Unit] on my own volition and this would mean that the security staff would have to take me there by force" (Exhibit A, p. 3). Claimant then dropped to his knees and begged Dr. Melendez to change her decision (
id). The evidence indicates that claimant then disobeyed several directions from Sergeant Senecal to get up off the floor and walk to the observation room, as testified to by Correction Officer James Balko, whom the Court found credible. This description of events is almost identical to that found in the Use of Force Report, prepared by Sergeant Senecal in the days after the incident (Exhibit 1, p. 4). Consequently, the Court finds there was sufficient evidence to establish that the use of force by correction officers in moving claimant from the Satellite Unit to the Observation Unit was warranted.
There is no credible evidence that correction officers used any more than the minimal force necessary to move claimant from the Satellite Unit to the Observation Unit. Claimant alleges he was kicked and punched while being carried, but there is no medical or other evidence to support that allegation. The physical examination after the incident reveals that claimant only had a small scrape on his wrist which did not bleed (Exhibit 1, p. 14). Claimant's x-rays were negative. He consulted with an orthopedic surgeon who found no injuries related to this incident. It might be expected that when four correction officers carry someone of the claimant's stature, who is "struggling to resist with all of [his] might" (Exhibit A, p. 3), there might even be a more significant injury than a small scrape on the wrist. Thus, the Court finds the force used by correction officers was not excessive but rather extremely reasonable under the circumstances.

Intentional Infliction of Emotional Distress
Claimant's third cause of action, for intentional infliction of emotional distress, fails because "[i]n performing acts that constitute official conduct, public policy prohibits an action against the State for intentional infliction of emotional distress" (
Brown v State of New York, 125 AD2d 750, lv denied 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496; DeLesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610).
Involuntary Administration of Anti-Psychotic Medication
It is well established in the State of New York that patients have a fundamental liberty interest in their right to reject anti-psychotic medication (
Rivers v Katz, 67 NY2d 485, 495 [1986], rearg denied 68 NY2d 808). The right to reject treatment with anti-psychotic medication, however, is not absolute and under certain circumstances may have to yield to a compelling State interest. Where the patient presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution, the State may be warranted, in the exercise of its police power, in administering anti-psychotic medication over the patient's objections (id).
This framework is employed in the New York State Mental Hygiene Law which states that facilities may give treatment to any patient where the patient is presently dangerous and the proposed treatment is the most appropriate available means of reducing that dangerousness (14 NYCRR 527.8[c][1]). The United States Supreme Court has also upheld this approach for involuntary treatment of patients with anti-psychotic medication, in an emergency situation, when the patient presents a danger to himself or others (
Washington v Harper, 494 US 210, 227 [1990]; accord, Sell v United States, ___ US ___, 123 S Ct 2174, 2187 [2003]).
In this case, claimant through his own testimony indicated that he was completely confused and distressed due to the confiscation of his watch and that he requested to see a psychiatrist (Exhibit A, p. 1). Lieutenant Jennett described claimant as being agitated and "thrashing" in his chair. Once in the Satellite Unit, Dr. Melendez testified that claimant was "agitated, upset and wouldn't calm down." When claimant dropped to the floor and refused a direct order to stand, in combination with his mental state, a dangerous situation existed for the correction officers and staff. "Dangerous" is defined as when a patient engages in conduct or is imminently likely to engage in conduct posing a risk of physical harm to himself or others (14 NYCRR 527.8[a][4]). The evidence indicates that it took four correction officers to carry claimant who was resisting with all of his might (Exhibit A, p. 3). Claimant was injected and sedated with the anti-psychotic medication, Haldol, and was released the next day from the Observation Unit. The credible evidence establishes that Dr. Melendez's assessment that claimant was a danger to himself or others was reasonable and that involuntarily medicating him was a reasonable action under the circumstances.

Deliberate Indifference to Medical Needs
It is undisputed that a prisoner who must rely on prison authorities to treat his medical needs has a fundamental right to reasonable and adequate medical care (
Powlowski v Wullich, 102 AD2d 575, 587 (4th Dept 1984). Further, it is the State's duty to render medical care without undue delay and, therefore, whenever delays in diagnosis and/or treatment are a proximate or aggravating cause of a claimed injury, the State may be liable (Marchione v State of New York, 194 AD2d 851, 855 [3d Dept 1993]). As a dependent of the State, however, an inmate is only entitled to receive essential, not optimal, care (Jarvis v Pullman, 297 AD2d 842, 843 [3d Dept 2002]). The State is also under no obligation to provide inmates with medically unnecessary services (Smith v Alves, 282 AD2d 844, 845 [3d Dept 2001]). The burden is on the inmate to demonstrate that the State was deliberately indifferent to a serious medical need (Moore v Leonardo, 185 AD2d 489, 490 [3d Dept 1992]).
Within one hour of claimant's being sedated in the Observation Unit, he was seen by Ms. Taft-Taylor, a registered nurse (Exhibit 1, p. 5). Nurse Taft-Taylor reported that claimant sustained a "small, reddened 2-3 cm scrape on his right wrist," and this area was cleansed and treated with an antibiotic. There was no evidence, written or photographic, that demonstrated any further injury (Exhibits 1, 7-10, C). Later, when he complained of pain in his right ankle and right wrist, x-rays were taken which indicated no abnormalities (Exhibit C, p. 5). In addition, on May 10, 2001, claimant was examined by an orthopedic surgeon who found no abnormalities related to the alleged incident (Exhibit 1, p. 2).

There is no evidence claimant had any injury other than the scrape on his right wrist, which was treated within one hour of the incident. All diagnostic tests and examinations have established that claimant had no other injury. Thus, there is no evidence to support the claim that defendant was indifferent to the medical needs of the claimant, and therefore that cause of action must fail.

Violation of Right to Religious Freedom
Persons committed to correctional institutions and other similar facilities are "entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference" (Correction Law §610[1]).[2]
To enforce their rights under this statute, persons who feel that they are aggrieved "may institute proceedings in the supreme court of the district where such institution is situated" (Correction Law § 610[3]). This statute does not give rise to a private right of action for money damages against the State, as such claims can only be brought in the Court of Claims. The appropriate course of action for an inmate whose rights under the statute may have been violated is to first exhaust their administrative remedies through the inmate grievance process and, if unsuccessful, then commence an Article 78 proceeding in Supreme Court (Matter of Patterson v Smith, 53 NY2d 98 [1981]; Matter of Shahid v Coughlin, 83 AD2d 8, 10-11 [3d Dept 1981], affd 56 NY2d 987).
Freedom of religious expression is also guaranteed by the United States Constitution (1
st Amendment) and the New York State Constitution (Article 1, § 3). The Court of Claims does not have jurisdiction over federal constitutional tort claims because the State is not "a person" within the meaning of 42 USC §1983 (Will v Michigan Dept. of State Police, 491 US 58 [1989], Monell v Department of Social Services of the City of New York, 436 US 658 [1978]). Tort claims seeking money damages for alleged violation of rights guaranteed by the State Constitution are recognized in some relatively rare situations where such a cause of action is "necessary and appropriate to ensure the full realization of the rights" (Brown v State of New York, 89 NY2d 172, 189 [1996]).
This remedy is appropriate only when "(1) the constitutional provision is self-executing; (2) the substantive right is firmly established; (3) the implied tort is necessary or appropriate to ensure the effectiveness of the provision; and (4) the claimant has no common law or statutory remedy available to him" (
Zulu v State of New York, 2001 WL 880833 [Ct Cl], citing to Brown, supra; see also Remley v State of New York, 174 Misc 2d 523, 526 [Ct Cl 1997]). In other words, recognition of a constitutional tort is reserved for those situations in which it is a case of "damages or nothing", if the injured party is to be provided with a remedy and future violations of the constitutional guarantee are to be deterred (Brown, supra, at 192; De La Rosa v State of New York, 173 Misc 2d 1007, 1010 [Ct Cl 1997]). Where the injured party can take advantage of declaratory or injunctive relief, or remedies obtainable by way of an Article 78 proceeding, a viable alternative exists and obviates the need to recognize a constitutional tort in those situations (id; Bullard v State of New York, __ AD2d __, 2003 WL 21756341 [3d Dept]). Consequently, claimant's sixth cause of action fails to state a claim on which relief can be granted in this Court.
In summary, claimant's first and second causes of action for excessive force and battery must fail, because the use of force against claimant was warranted and the degree of force used was not excessive, and the third cause of action for intentional infliction of emotional distress fails for public policy reasons. The Court finds claimant's fourth cause of action, involuntary administration of anti-psychotic medication, to be against the weight of credible evidence and the fifth cause of action for deliberate indifference to medical needs without any credible support. Claimant's sixth cause of action for violation of freedom to exercise religion, fails because, in these circumstances, he does not assert a claim on which relief can be granted in this Court.

The Chief Clerk is hereby directed to enter a judgment for the defendant, dismissing the claim.

Let judgment be entered accordingly.



August 4, 2003
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims




[1]The testimony about where this interview took place is contradictory. Claimant testified that the interview took place in Dr. Melendez's office. Dr. Melendez testified the brief interview took place in the waiting room while claimant was seated on the bench, since he was too "out of control" to get into an interview room. The Court credits the testimony of Dr. Melendez.


[2] It should also be noted that the rights conferred by the statute are not absolute, it also "[e]xpressly authorizes the reasonable curtailment of such rights if such is necessary for the 'proper discipline and management of the institution'" (Matter of Rivera v Smith, 63 NY2d 501 [1984]; Matter of Brown v McGinnis, 10 NY2d 531, 535-536 [1962]; see also Matter of Abdullah v Smith, 115 Misc 2d 105, 108 [ Sup Ct, Wyoming Co. 1982], affd 96 AD2d 742 [4th Dept 1983]). Comparing the facts of this case to those in Matter of Rivera (supra) is instructive.